Error: Expected the default config, but wasn't able to find it, or it isn't a Dictionary
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 10, 2007 Decided October 19, 2007
No. 06-7102
ANTONIO HESTER AND
DALE WILLIAMS, FATHER OF ANTONIO HESTER,
APPELLEES
v.
DISTRICT OF COLUMBIA, ET AL.,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 04cv01291)
Mary T. Connelly, Assistant Attorney General, Office of
Attorney General for the District of Columbia, argued the
cause for appellants. With her on the briefs were Linda J.
Singer, Attorney General, Todd S. Kim, Solicitor General, and
Edward E. Schwab, Deputy Solicitor General.
Emmanuel Nwazuo Agbara, Student Counsel, argued the
cause for appellees. With him on the brief was Joseph B.
Tulman.
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Before: ROGERS and KAVANAUGH, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge
KAVANAUGH.
KAVANAUGH, Circuit Judge: In April 2001, Antonio
Hester pled guilty in a Maryland court to two criminal
offenses. He was sentenced to incarceration in a Maryland
prison. At the time, Hester was a 17-year-old D.C. public
school student receiving special education services from the
District of Columbia under the federal Individuals with
Disabilities Education Act. After the Maryland criminal
proceedings, D.C. reached an agreement with Hester that it
would provide him with special education services in the
Maryland prison. This case arises because Maryland prison
officials did not permit D.C.’s designated education providers
into the prison; instead, Maryland provided Hester its own
IDEA services.
Hester sued the District of Columbia, seeking
“compensatory” special education services from D.C. to make
up for the time he spent in the Maryland prison without
services from D.C. – even though he received such services in
prison from Maryland. The District Court ruled for Hester.
The court held that the 2001 agreement between D.C. and
Hester contemplated that D.C. would provide special
education services after Hester’s release from incarceration if
D.C.’s educational providers could not obtain access to the
Maryland prison. We disagree with the District Court’s
interpretation of the 2001 agreement, and we reverse.
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I
The Individuals with Disabilities Education Act requires
states and the District of Columbia, as a condition of their
receiving federal special education funding, to provide
disabled children with a “free appropriate public education.”
20 U.S.C. § 1412(a). Antonio Hester, a D.C. student, was
learning disabled and began receiving IDEA special education
services from D.C. in 1994, when he was 10. See 20 U.S.C.
§ 1414(d).
In April 2001, at age 17, Hester pled guilty to criminal
charges in Prince George’s County, Maryland. The Maryland
court sentenced him to 10 years in a Maryland prison, with a
possibility of parole after five years.
Shortly after the sentencing, Hester filed an IDEA
administrative request in the District of Columbia. He asked
that D.C. provide him a free appropriate public education
“while in the correctional institution.” Hearing Officer
Determination, No. 2001-0655 (May 31, 2001), Joint
Appendix (“J.A.”) 70; see also 20 U.S.C. § 1415(f). Hester
and D.C. then reached an oral agreement about the special
education services he would receive in prison, and the
administrative hearing officer incorporated the agreement into
a Hearing Officer Determination.
Under the 2001 agreement, the Certified Learning Center
(CLC), a private organization that offers special education
services, would educate Hester in the Maryland prison. See
Hearing Officer Determination, J.A. 71. The agreement
further stated that D.C. would “forward a letter” to Maryland
correctional authorities requesting facilities in which CLC
could meet with Hester. Id. at 72. But the agreement did not
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specify a course of action if D.C. officials could not obtain
access to the Maryland prison.
Problems arose when CLC Director Patricia Felton
attempted to carry out the agreement. When Felton initially
met with Daphne Matthews, principal of the Maryland
prison’s education program, Matthews cautioned that CLC
educators may not be allowed into the prison. Felton followed
up with many phone calls to Matthews. But Matthews
responded that she “simply couldn’t get [CLC] instructors in
to facilitate the instruction,” in part due to security concerns.
Hearing Transcript (March 19, 2004), J.A. 175. Matthews
told Felton that Maryland officials instead were developing
their own IDEA Individualized Education Program (IEP) for
Hester.
In 2001, Maryland officials developed the IEP for Hester;
in 2002 and 2003, they reviewed and revised the plan. See 20
U.S.C. § 1414(d)(4)(A)(i) (requiring that the local educational
agency review a child’s IEP “not less frequently than
annually”). Hester participated in all three Maryland IEP
meetings, and his attorney represented him at the 2002 and
2003 meetings. Consistent with the Maryland IEP, Hester
received special education services from Maryland while in
the Maryland prison.
In December 2003, Hester filed an IDEA administrative
complaint against the District of Columbia challenging D.C.’s
failure to provide him with the services required under the
2001 agreement. Reasoning that Maryland did not allow CLC
into the prison and noting that Maryland provided IDEA
education services to Hester, the administrative hearing
officer found that D.C. did not breach the 2001 agreement.
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Hester then sued the District of Columbia, requesting
special education services from D.C. to make up for the time
he spent in the Maryland prison without receiving services
from D.C. Complaint, Hester v. District of Columbia, No. 04-
1291 (D.D.C. July 30, 2004). The District Court granted
summary judgment to Hester based on its interpretation of the
2001 agreement: “Foreseeing that [Maryland prison officials]
might not permit CLC to enter the facility to provide
educational services to Hester, the parties agreed that the
educational services could be provided in the form of
compensatory education after Hester’s release.” Hester v.
District of Columbia, 433 F. Supp. 2d 71, 76 (D.D.C. 2006).
We review de novo the District Court’s interpretation of
the 2001 agreement and its grant of summary judgment. See
Tax Analysts v. IRS, 495 F.3d 676, 679 (D.C. Cir. 2007);
KiSKA Const. Corp. v. Wash. Metro. Area Transit Auth., 321
F.3d 1151, 1158 (D.C. Cir. 2003). The agreement is a
contract governed by D.C. law. See Makins v. District of
Columbia, 277 F.3d 544, 547-48 (D.C. Cir. 2002).
II
While Hester was serving time in the Maryland prison,
Maryland assumed responsibility for Hester’s education and
did not allow D.C.’s designated education providers into the
prison. See 34 C.F.R. § 300.2 (applying IDEA to state and
local correctional facilities); see also 20 U.S.C.
§ 1412(a)(11)(C); 34 C.F.R. § 300.149. Because Maryland
officials made it impracticable for D.C. to provide special
education services in the prison, D.C. did not breach its 2001
agreement with Hester: “Where, after a contract is made, a
party’s performance is made impracticable without his fault
by the occurrence of an event the non-occurrence of which
was a basic assumption on which the contract was made, his
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duty to render that performance is discharged, unless the
language or the circumstances indicate the contrary.”
RESTATEMENT (SECOND) OF CONTRACTS § 261 (1981); see
also Bergman v. Parker, 216 A.2d 581, 583 (D.C. 1966);
Whelan v. Griffith Consumers Co., 170 A.2d 229, 230 (D.C.
1961); RESTATEMENT (SECOND) OF CONTRACTS § 264 (“If the
performance of a duty is made impracticable by having to
comply with a domestic or foreign governmental regulation or
order, that regulation or order is an event the non-occurrence
of which was a basic assumption on which the contract was
made.”).
In an attempt to avoid straightforward application of the
contract impracticability doctrine, Hester advances three
arguments. None is persuasive.
First, Hester argues – and the District Court agreed – that
the 2001 agreement required D.C. to provide Hester with
special education services after his release from prison if D.C.
did not provide such services in prison. We do not read the
agreement that way. The agreement refers repeatedly to
Hester’s confinement, explaining that D.C. will provide
services to him “while in the correctional institution,” “while
he is incarcerated in Maryland,” and “while Antonio is
incarcerated.” Hearing Officer Determination, No. 2001-0655
(May 31, 2001), J.A. 70, 71, 72. And more to the point, the
agreement by its terms says nothing to suggest that D.C.
would provide services after Hester’s release from prison in
the event Maryland declined D.C.’s request for access to
Hester and instead decided to provide special education
services itself. We therefore reject Hester’s argument that the
terms of the agreement required D.C. to provide special
education services after Hester’s release from the Maryland
prison.
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Second, according to Hester, D.C. admitted in the district
court that the 2001 agreement contemplated services after
Hester’s release from prison. Hester points to his statement of
undisputed material facts in support of summary judgment,
which purportedly asserted that D.C. had agreed to provide
services after Hester’s release if D.C. could not provide
services to Hester in prison. And Hester suggests that D.C.
conceded this factual point by not contesting it in opposition
to Hester’s summary judgment motion. See U.S. Dist. Ct. for
D.C. Local R. 7(h) (“In determining a motion for summary
judgment, the court may assume that facts identified by the
moving party in its statement of material facts are admitted,
unless such a fact is controverted in the statement of genuine
issues filed in opposition to the motion.”). The waiver
argument rests, however, on a mistaken premise: Hester’s
statement of undisputed material facts in support of summary
judgment made no such claim about the 2001 agreement; this
assertion instead appeared in Hester’s statement of material
disputed facts in opposition to D.C.’s summary judgment
motion. For that reason, D.C. had no obligation or occasion to
controvert this contention in its opposition to Hester’s
summary judgment motion. In short, D.C. has consistently
maintained that the 2001 agreement did not contemplate
services after Hester’s release from the Maryland prison; D.C.
has never waived the argument.
Third, Hester contends that D.C. did not live up to its
obligations under the 2001 agreement, thus requiring D.C. to
compensate for the breach by providing him with special
education services after his release from prison. Hester argues
that the agreement obligated D.C. to do more to obtain access
to the Maryland prison; in particular, Hester notes that the
agreement specifically required D.C. officials to “forward a
letter” to Maryland officials requesting facilities for CLC to
meet with Hester in prison. To begin with, Hester’s argument
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overlooks the extensive personal efforts of CLC Director
Patricia Felton (on behalf of D.C.) to obtain access to the
prison – efforts that went well beyond what the agreement
required, albeit ultimately to no avail. In any event, even
assuming that D.C. did not fully meet its obligation to
“forward a letter,” the Maryland officials repeatedly and
definitively stated that D.C.’s designated education providers
would not be allowed into the prison, in part because of
security concerns. As a result, D.C.’s mere failure to forward
a letter to Maryland plainly did not cause Hester’s inability to
obtain special education services from D.C. while in prison,
and thus cannot be a basis for now requiring D.C. to provide
“compensatory” special education services to Hester. See
RESTATEMENT (SECOND) OF CONTRACTS § 347 cmt. e
(“Recovery can be had only for loss that would not have
occurred but for the breach.”); cf. Anda v. Ralston Purina Co.,
959 F.2d 1149, 1152-53 (1st Cir. 1992).
***
We understand and appreciate the desire of Antonio
Hester, his family, and his representatives to secure additional
special education services. But the 2001 agreement between
D.C. and Hester does not entitle Hester to such services from
D.C. We therefore reverse the judgment of the District Court,
remand, and direct that the District Court grant D.C.’s cross-
motion for summary judgment.
So ordered.