C.w., a minor, by and through his parents B.W. and C.B. v. Denver County School District No. 1

PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
C.W., a minor, by and through his parents
B.W. and C.B.,
Plaintiff - Appellant/Cross -
Appellee,
v.
DENVER COUNTY SCHOOL DISTRICT
NO. 1,
Defendant - Appellee/Cross -
Appellant.
------------------------------
COUNCIL OF PARENT ATTORNEYS
AND ADVOCATES, INC.; ARC OF THE
UNITED STATES,
Amici Curiae.
Nos. 19-1407, 19-1429, 20-1305
(D.C. No. 1:17-CV-02462-MSK-SKC)
(D. Colo.)
_________________________________
ORDER
_________________________________
Before MATHESON, MORITZ, and CARSON, Circuit Judges.
_________________________________
C.W., a minor child with disabilities, is enrolled in the Denver County School
District (“District”). Through his parents, C.W. sought and received a due process
hearing with a state administrative law judge (“ALJ”) under the Individuals with
Disabilities Education Act (“IDEA”). He argued the District had failed to provide him a
FILED
United States Court of Appeals
Tenth Circuit
April 20, 2021
Christopher M. Wolpert
Clerk of Court
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free appropriate public education (“FAPE”) as required by the IDEA. The ALJ provided
C.W. only partial relief.
C.W. appealed the ALJ’s decision to federal district court. The court ruled partly
in favor of C.W. and partly against him. It remanded to the ALJ for further proceedings.
Despite this administrative remand, the court entered what it labeled a “Final Judgment.”
C.W. appealed to this court, the District cross-appealed, and the District later filed a
separate appeal from an order awarding attorney fees to C.W.
In light of the administrative remand, we ordered C.W. and the District to address
whether the finality requirement for appellate jurisdiction has been met. C.W. argues we
have appellate jurisdiction. The District argues we do not. We have considered their
arguments and conclude we lack appellate jurisdiction over the appeals and cross-appeal.
We therefore dismiss the appeals and cross-appeal. We remand with instructions to
vacate the “Final Judgment” and stay this action pending completion of the
administrative remand.
I. BACKGROUND
A. Procedural History
Administrative Proceedings
In September 2016, C.W., through his parents, filed a due process complaint
pursuant to the IDEA with the Colorado Office of Administrative Courts, arguing that the
District had denied him a FAPE. In July 2017, the ALJ issued a final decision holding
that the District had failed to provide C.W. a FAPE during parts of the 2014-15, 2015-16,
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and 2016-17 academic years.1 But the ALJ also held that an individualized education
program (“IEP”) the District prepared for C.W. in February 2017 was substantively
adequate under the IDEA.
District Court Proceedings
C.W. brought this action in October 2017. It has two parts. First, C.W. sought
review of the ALJ’s decision finding the February 2017 IEP adequate. Second, C.W.
alleged non-IDEA claims under the Americans with Disabilities Act, Rehabilitation Act,
and Fourteenth Amendment Equal Protection Clause, seeking only damages.
In a September 2019 order, the district court agreed with C.W. that the February
2017 IEP was inadequate and reversed the ALJ. But the court granted summary
judgment for the District on C.W.’s non-IDEA claims because he did not administratively
exhaust them. The court remanded to the ALJ “for a determination on what relief the
Plaintiff is due given that the 2017 IEP has not provided a FAPE at all times it was
operative.” App. at 367.
Instead of staying the proceedings and retaining jurisdiction over the action in
light of the administrative remand, the district court entered a “Final Judgment.”
Appellate Proceedings
C.W. appealed from the district court’s September 2019 order and the “Final
Judgment.” On appeal, C.W. argues he was not required to exhaust the administrative
process for his non-IDEA claims or alternatively that he met any exhaustion requirement.
1 Colorado law does not provide for an administrative appeal after the ALJ’s
decision. Colo. Rev. Stat. § 22-20-108(3)(c).
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The District cross-appealed. It argues the February 2017 IEP was adequate. While
C.W.’s appeal and the District’s cross-appeal were pending, the district court awarded
attorney fees to C.W. The District appealed from that order, too. In light of the pending
administrative remand, we ordered the parties to address whether the district court’s order
granting summary judgment was final.
B. Legal Background
The following explains (1) the finality requirement, (2) the administrative remand
rule, and (3) the practical finality rule.
Finality Requirement
Under 28 U.S.C. § 1291, we have “jurisdiction of appeals from all final decisions
of the district courts of the United States.” “A final decision is one ‘that ends the
litigation on the merits and leaves nothing for the court to do but execute the judgment.’”
W. Energy All. v. Salazar, 709 F.3d 1040, 1047 (10th Cir. 2013) (quoting Coopers &
Lybrand v. Livesay, 437 U.S. 463, 467 (1978)). “Every appellant bears the burden of
proving appellate jurisdiction by demonstrating the finality of the challenged decision or
identifying a specific grant of jurisdiction.” Zen Magnets, LLC v. Consumer Prod. Safety
Comm’n, 968 F.3d 1156, 1164 (10th Cir. 2020).
Appellate jurisdiction does not depend on whether a district court labeled an order
or a judgment as “final.” Riley v. Kennedy, 553 U.S. 406, 419-20 (2008); see Sullivan v.
Finkelstein, 496 U.S. 617, 628 n.7 (1990) (observing a district court may not “control
[an] order’s appealability” by “label[ing] a nonappealable interlocutory order as a ‘final
judgment’”).
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Administrative Remand Rule
This case implicates the “administrative remand rule.” 2 It provides that a district
court’s order remanding “to an administrative agency for further proceedings is ordinarily
not appealable because it is not a final decision.” W. Energy All., 709 F.3d at 1047
(quotations omitted). “In determining whether the district court’s order was a final
decision under the administrative remand rule, this court considers the nature of the
agency action as well as the nature of the district court’s order.” N.M. Health
Connections v. U.S. Dep’t of Health & Hum. Servs., 946 F.3d 1138, 1157 (10th Cir.
2019) (quotations omitted).
“As to the nature of the agency action, we consider whether it was essentially
adjudicatory, essentially legislative, or some nonadversarial action such as grant of a
license.” Id. (quotations omitted). “[W]e view the [administrative] remand rule as most
appropriate in adjudicative contexts.” Id. (quotations omitted). Typically, “a remand
from a district court to an agency occurs when an agency has acted in an adjudicative
capacity.” Am. Wild Horse Pres. Campaign v. Jewell, 847 F.3d 1174, 1184 (10th Cir.
2016) (quotations omitted).
As to the nature of the district court’s order, “we consider its character, including
whether it returns an action to the agency for further proceedings. If the district court’s
order is not a remand in the typical sense, the administrative remand rule is inapplicable.”
N.M. Health Connections, 946 F.3d at 1158 (citation, quotations, and alteration omitted).
2 This terminology, though not the concept, is unique to our court of appeals.
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We ask whether the district court’s order is analogous to the “traditional notion of a
‘remand,’ wherein the reviewing court returns an action to a lower court for further
proceedings.” New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683,
698 (10th Cir. 2009). For example, we have treated remand orders as final when a
district court “essentially instructs the agency” how to rule, Rekstad v. First Bank Sys.,
Inc., 238 F.3d 1259, 1262 (10th Cir. 2001), orders an administrative agency to
retroactively correct a procedural error that would have “no impact” on the challenged
agency action, Am. Wild Horse Pres. Campaign, 847 F.3d at 1184-85, or enjoins an
agency from future violations of a law, Richardson, 565 F.3d at 698. These examples do
not describe the circumstances here.
Courts of appeal have routinely applied the administrative remand rule when
district courts have remanded IDEA cases to state ALJs. E.g., Avaras ex. rel. A.A. v.
Clarkstown Cent. Sch. Dist., 752 F. App’x 60, 62-63 (2d Cir. 2018) (unpublished); L.W.
v. Jersey City Bd. of Educ., 824 F. App’x 108, 110-11 (3d Cir. 2020) (unpublished);
Shapiro v. Paradise Valley Unified Sch. Dist. No. 69, 152 F.3d 1159, 1160-61 (9th Cir.
1998) (per curiam).
Practical Finality Rule
We have recognized three exceptions to the administrative remand rule: (1) the
collateral order doctrine, (2) the practical finality rule, and (3) the pendent appellate
jurisdiction doctrine. See Zen Magnets, LLC, 968 F.3d at 1166-67; W. Energy All., 709
F.3d at 1049. C.W. invokes only the practical finality rule.
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Under this exception, “we sometimes regard a district court’s remand to an agency
as practically final.” Zen Magnets, LLC, 968 F.3d at 1164 (quotations omitted). We first
ask whether “it is clearly urgent that an important issue—one that is serious and
unsettled, and not within the trial court’s discretion—be decided.” W. Energy All., 709
F.3d at 1049 (quotations omitted). If we find an important and urgent issue, we proceed
to a “balancing test.” Id. at 1050 (quotations omitted). We “ask whether the danger of
injustice by delaying appellate review outweighs the inconvenience and costs of
piecemeal review.” Zen Magnets, LLC, 968 F.3d at 1165 (quotations omitted). The
practical finality rule “must be narrowly construed and pragmatic finality invoked only in
truly unique instances if we are to preserve the vitality of [28 U.S.C.] § 1291.”
W. Energy All., 709 F.3d at 1049 (quotations omitted).
“In practice, we have applied the practical finality rule” to “review important legal
questions which a remand may make effectively unreviewable.” Miami Tribe of Okla. v.
United States, 656 F.3d 1129, 1140 (10th Cir. 2011) (quotations omitted). This concern
most often arises with objections raised on appeal by government agencies and not by
private litigants. Zen Magnets, LLC, 968 F.3d at 1165; N.M. Health Connections, 946
F.3d at 1158 n.17; W. Energy All., 709 F.3d at 1050; see Sierra Forest Legacy v.
Sherman, 646 F.3d 1161, 1175 (9th Cir. 2011). After a district court remands to an
agency for further proceedings, the agency must conform its proceedings to the remand
order. See Miami Tribe of Okla., 656 F.3d at 1138-39 & n.10; 33 Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 8381 (2d ed., Oct. 2020 update)
(“[A]gencies . . . must of course give respect to . . . remand orders.”). And once the
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agency completes its remand proceedings, the government, unlike a private litigant,
typically “has no avenue for obtaining judicial review of its own administrative
decisions.” Bender v. Clark, 744 F.2d 1424, 1428 (10th Cir. 1984) (emphasis omitted).
Thus, when a district court’s remand order requires an agency to undertake further
proceedings, the agency “face[s] the unique prospect of being deprived of [appellate]
review altogether” after the administrative remand, Alsea Valley All. v. Dep’t of Com.,
358 F.3d 1181, 1184 (9th Cir. 2004), unless we invoke the practical finality exception to
“review important legal questions which a remand may make effectively unreviewable,”
Graham v. Hartford Life & Accident Ins. Co., 501 F.3d 1153, 1158 (10th Cir. 2007)
(quotations omitted). By contrast, a private litigant’s objections to a district court’s
rulings are usually “reviewable upon conclusion of the remand proceedings.” W. Energy
All., 709 F.3d at 1050 (quotations omitted); see Rekstad, 238 F.3d at 1262 (similar).
II. ANALYSIS
We lack appellate jurisdiction over the appeals and cross-appeal. Neither the
district court’s September 2019 order nor the “Final Judgment” was a final decision for
jurisdictional purposes. The practical finality rule does not apply.
No Final Decision
The district court never entered a final decision. The September 2019 order
remanded to the ALJ to determine “what relief the Plaintiff is due given that the 2017 IEP
has not provided a FAPE at all times it was operative.” App. at 367. Such “[a]n
administrative remand is not ordinarily considered a final decision.” Zen Magnets, LLC,
968 F.3d at 1164.
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Both “the nature of the agency action as well as the nature of the district court’s
order” confirm that the administrative remand was not a final decision. N.M. Health
Connections, 946 F.3d at 1157 (quotations omitted). The agency action here—an IDEA
due process hearing—was adjudicatory. And the remand was analogous to a remand by
an appellate court to a district court. The district court here affirmed the ALJ in part,
reversed the ALJ in part, and remanded for the ALJ to determine what remedies the
District owed to C.W. Because C.W. and/or the District might seek review of the ALJ’s
remedy determinations in district court, the district court did not make a final decision
when it granted summary judgment to the District on C.W.’s non-IDEA claims.
We owe no deference to the district court’s use of the “Final Judgment” label
when we determine what is truly final and appealable. Riley, 553 U.S. at 419-20;
Finkelstein, 496 U.S. at 628 n.7; see A.A., 752 F. App’x at 63-64 (2d Cir.) (in an IDEA
appeal involving an administrative remand, holding that the district court’s purportedly
final judgment was nonfinal). Because the district court did not render a final decision,
its “Final Judgment” moniker was premature.
We hold that neither the September 2019 order nor the “Final Judgment” was a
final, appealable decision.
Practical Finality Rule Inapplicable
C.W. argues we have jurisdiction under the practical finality rule. We disagree.
C.W. has not identified an “important” and “urgent” issue. W. Energy All., 709
F.3d at 1049-50 (quotations omitted). He wishes to challenge the district court’s grant of
summary judgment to the District on his non-IDEA claims. We can fully adjudicate
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C.W.’s appeal once the administrative remand concludes and the district court enters a
proper final judgment. C.W. is a private litigant. He is not precluded from appealing
issues after an administrative remand.3
Although we need not reach the balancing test, we note that C.W. has not
presented a “truly unique instance[],” id. at 1049, where the benefits of earlier appellate
review of his non-IDEA claims “outweigh[] the inconvenience and costs of piecemeal
review,” Zen Magnets, LLC, 968 F.3d at 1165. If we were to proceed now with this
appeal, we would address the district court’s summary judgment ruling on the non-IDEA
claims, but we would need to await an additional potential appeal by C.W. and/or the
District about the ALJ’s decision on remand. Doing so would open the possibility of
piecemeal review and compromise the finality principle. C.W. does not justify why
immediate appellate review would provide benefits that outweigh these costs.
C.W. argues that because the district court entered a “Final Judgment” and
administratively closed this action, any appeal by C.W. or the District from the ALJ’s
decision on remand would require a new, distinct action to be commenced in district
court. He contends that because the scope of any such action would be limited to the
ALJ’s decision on remand, he could not reassert his non-IDEA arguments in any eventual
appeal. Thus, C.W. argues dismissing this appeal would deny him review of the district
court’s grant of summary judgment against his non-IDEA claims.
3 Although the District is a government entity, it also is akin to a private litigant
for practical finality purposes because the IDEA empowers the District to seek judicial
review in the district court if it is “aggrieved by the findings and decision made” by the
ALJ. 20 U.S.C. § 1415(i)(2).
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C.W.’s argument fails because the district court’s “Final Judgment” label was
inaccurate. The district court may enter final judgment only after the administrative
remand concludes and it has adjudicated any appeal by C.W. and/or the District of the
ALJ’s decision on remand. Once the district court enters a proper final judgment, all
interlocutory orders, including summary judgment on the non-IDEA claims, will merge
into it. See McBride v. CITGO Petroleum Corp., 281 F.3d 1099, 1104 (10th Cir. 2002).
C.W. thus will be able to appeal the district court’s summary judgment ruling. See Zinna
v. Congrove, 755 F.3d 1177, 1181 (10th Cir. 2014) (citing Fed. R. App. P. 4(a)(1)(A))
(time for appeal runs from date of final decision). If, having then properly acquired
appellate jurisdiction from a final decision, we decide in favor of C.W. on his non-IDEA
claims, we would remand to the district court for further proceedings on those claims,
including a possible damages award if C.W. prevails.
We thus lack appellate jurisdiction over the appeals and cross-appeal under the
practical finality rule.
III. CONCLUSION
Applying the administrative remand rule, we dismiss this appeal for lack of
jurisdiction. We remand to the district court with instructions to vacate the “Final
Judgment” and stay this action pending the administrative remand. See Shapiro, 152
F.3d at 1161 (9th Cir.) (in a similar appeal in the IDEA context involving an
administrative remand, vacating the district court’s improper final judgment and
requiring it to enter a stay); see also United States v. Mich. Nat’l Corp., 419 U.S. 1, 4-5
(1974) (per curiam) (“[W]hen the resolution of a claim cognizable in a federal court must
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await a determination by an administrative agency having primary jurisdiction,” the
default rule is to stay the action, and “[d]ismissal rather than a stay has been approved
where there is assurance that no party is prejudiced thereby.”).
Entered for the Court,
Per Curiam
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