District of Columbia v. Doe

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 16, 2010 Decided July 6, 2010

No. 09-7026

DISTRICT OF COLUMBIA,
APPELLEE

v.

JOHN DOE,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:04-cv-01451-EGS)

Jane Doe argued the cause for the appellant.

Mary L. Wilson, Senior Assistant Attorney General, argued
the cause for the appellee. Peter J. Nickles, Attorney General,
Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy
Solicitor General, were on brief.

Before: HENDERSON, TATEL and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.
 2

KAREN LECRAFT HENDERSON, Circuit Judge: John Doe1
appeals the district court’s grant of summary judgment to the
District of Columbia (District or D.C.) on its claim that a
hearing officer exceeded his authority under the Individuals with
Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (IDEA),
in modifying a disciplinary action the D.C. Public Schools
system (DCPS) had imposed on Doe. Doe argues the matter is
moot, the District’s complaint is untimely, the district court
erred on the merits and the district judge was biased against him.
We proceed by, first, laying out the relevant federal and local
legal framework, then describing this dispute’s ample history
and, finally, assessing Doe’s arguments. We conclude the
district court erred on the merits but we reject Doe’s other
arguments.
I.
Through the IDEA federal funds support state and local
educational agencies in furthering the education of disabled
children. As a condition to receiving funds under the IDEA, an
educational agency must maintain policies and procedures
ensuring that a “free appropriate public education [(FAPE)] is
available to all children with disabilities residing in the state
between the ages of 3 and 21, inclusive, including children with
disabilities who have been suspended or expelled from school.”
20 U.S.C. § 1412(a)(1)(A) (1998).2 To that end, the IDEA

1
Jane Doe, as the next best friend of John Doe, was the defendant
and original appellant in this action. After reaching majority John
replaced Jane as the defendant/appellant.
2
In 2004 the Congress amended the IDEA effective July 1, 2005.
Pub. L. No. 108-446, § 302, 118 Stat. 2647, 2803 (2004). Because the
hearing officer’s decision reviewed herein occurred in 2004, see infra
Part II, all subsequent citations to the IDEA are to the version in effect
from July 1, 1998, see Pub. L. No. 105-17, § 201, 111 Stat. 37, 156
(1997), until June 30, 2005, unless otherwise noted.
 3

“establishes various procedural safeguards that guarantee
parents both an opportunity for meaningful input into all
decisions affecting their child’s education and the right to seek
review of any decisions they think inappropriate.” Honig v.
Doe, 484 U.S. 305, 311-12 (1988) (discussing IDEA’s
predecessor—the Education of the Handicapped Act of 1975
(EHA)).
Under certain circumstances, an educational agency may
remove a disabled child from his school and place him in an
“alternative educational setting” in response to disciplinary
problems. 20 U.S.C. § 1415(k). If, as in this case, an
educational agency intends to place a disabled student in an
alternative educational setting for more than ten days because
the child broke a rule applicable to all students, it must notify
the child’s parents and timely conduct a “manifestation
determination review” (MDR). Id. § 1415(k)(4)(A). An MDR
team—including the child’s parents, at least one of the child’s
teachers, at least one special education teacher, a representative
of the local educational agency and, if appropriate, the child
himself—determines whether the offending behavior was a
manifestation of the child’s disability. See id. §§ 1415(k)(4)(C),
1414(d)(1)(B). If the MDR team determines that the behavior
was not a manifestation of the child’s disability, then “the
relevant disciplinary procedures applicable to children without
disabilities may be applied to the child in the same manner in
which they would be applied to children without disabilities,”
except that the educational agency must continue to provide the
child a FAPE. Id. § 1415(k)(5)(A) (cross-referencing
id. § 1412(a)(1)). If a child’s parent “disagrees with a
determination that the child’s behavior was not a manifestation
of the child’s disability or with any decision regarding
placement,” id. § 1415(k)(6)(A)(i), she may request an
“impartial due process hearing” under the IDEA, id. § 1415(f).
See also id. § 1415(b)(6) (ensuring parents “an opportunity to
present complaints with respect to any matter relating to the . . .
 4

educational placement of the child, or the provision of a [FAPE]
to such child”). Any party aggrieved by an IDEA hearing
officer’s decision may bring suit in district court.
Id. § 1415(i)(2)(A).
At the local level, D.C. Municipal Regulations provide for
the discipline of DCPS students. Among the disciplinary actions
they permit is “class exclusion,” which may entail placement in
an alternative educational setting. 5 DCMR3 § 2599.2;4 see id.
§§ 2501.1(g), 2502.3. The regulations delineate “Level I”
infractions, which are punishable by class exclusion for ten days
or fewer, and “Level II” infractions, which are punishable by
class exclusion for no fewer than eleven days and no longer than
two semesters. Id. § 2502.3. The regulations also detail
procedures the DCPS must follow when taking disciplinary
action. Under this framework, “[t]he decision to effect a
disciplinary action shall be made by the principal or the
principal’s designee,” although “[t]he implementation of
disciplinary action for a Level II infraction” must be approved
by, and may be modified by, the DCPS Superintendent or his
designee. Id. § 2505.2. Before a child is disciplined his parent
must be notified and the child must “be given a conference with

3
All references herein to the DCMR are to the version in effect
throughout 2004. See 47 D.C. Reg. 1718 (Feb. 23, 2001); 52 D.C.
Reg. 10558 (Dec. 2, 2005).
4
Although the District, hearing officers and district court have
conflated the terms “class exclusion” and “suspension” in this case,
they have distinct meanings under the DCMR. “Class exclusion” is
“the temporary denial of the right of a student to attend a particular
class or classes for less than one (1) school year,” which may include
“placement in an alternative education setting.” 5 DCMR § 2599.2.
“Suspension” is “the denial of the right of a student to attend any D.C.
Public School or program . . . for a defined period of time . . . but in
no event exceeding ten (10) school days.” Id.
 5

the school official responsible for making or approving the
disciplinary action.” Id. §§ 2505.3-2505.4. Also, the child’s
parent is entitled to request a “disciplinary hearing.” See
id. § 2505.11-2505.25. At the disciplinary hearing, the “hearing
officer shall determine that all due process procedures have been
followed or waived,” id. § 2505.22, and “[i]t shall be the burden
of the D.C. Public Schools to show by a preponderance of the
evidence that the student did, in fact, commit the infraction(s)
upon which the disciplinary action is based,” id. § 2505.18.
“Upon conclusion of a disciplinary hearing,” the hearing officer
must issue a written determination including, inter alia, a
“determination regarding the appropriateness of the disciplinary
action or an order for a modification thereof.” Id. § 2507.1(d).
“The hearing officer’s determination with respect to disciplinary
actions other than expulsion shall be binding unless changed
following appeal to the [DCPS] Superintendent or
Superintendent’s designee.” Id. § 2507.4; see also id. § 2508.2
(“With respect to all disciplinary actions, the Superintendent
may overrule or modify any proposed disciplinary action
including expulsion.”).
In addition to these generally applicable provisions, D.C.
Municipal Regulations also implement the IDEA. See
id. § 2510 (“Proposed Discipline of a Student with Disability”);
id. § 2502.8 (“Disciplinary action for students with disabilities
shall be imposed in compliance with § 2510 of these Rules.”).
Like the IDEA, these regulations provide that (1) a disciplinary
change in placement lasting over ten days for a violation of a
generally applicable rule must be proceeded by an MDR,
id. § 2510.7; (2) if a child’s infraction was not a manifestation
of his disability, he is subject to the same manner of discipline
as a non-disabled child, except that the DCPS must continue to
provide him a FAPE, id. § 2510.10; and (3) if a child’s parent
wants to challenge “any decision regarding placement,” she is
entitled to a hearing, id. § 2510.12.
 6

II.
On March 5, 2004 the DCPS determined that John Doe—a
sixth-grade student nearing graduation from the District’s
Janney Elementary School—was eligible for special education
under the IDEA5 due to a diagnosis of attention deficit
hyperactivity disorder. On March 30, 2004 Doe “acted out in
class and was disrespectful to [a] substitute teacher.” IDEA
Hearing Officer’s Decision at 4, DCPS Office of Compliance
(June 4, 2004) (HOD).6 The substitute reported the incident to
Janney’s principal, Charles Abelmann. Abelmman conferred
with Doe the next day and determined that his conduct had
violated 5 DCMR § 2503.1(b), constituting a Level I infraction.
See 5 DCMR § 2503.1(b) (Level I infractions include “repeated

5
A central component of a disabled child’s special education
under the IDEA is the provision and maintenance of an
“individualized education program” (IEP), which is a written
statement setting out a disabled child’s individually tailored goals and
the means of achieving them. See 20 U.S.C. § 1414(d). The team that
formulates a child’s IEP includes the child’s parents, at least one of the
child’s teachers, at least one special education teacher, a representative
of the local educational agency and, if appropriate, the child himself.
Id. § 1414(d)(1)(B). Doe’s IEP went into effect when his mother
signed it, after some delay, on April 8, 2004.
6
Specifically, Doe:
taunted [the substitute] by coming into the classroom with
a sucker and getting two (2) more after being told to remove
the first one, not giving his name when asked, taking off his
hat when asked, but going to the closet to get another hat
and then put it on his head, taking an umbrella out of the
closet that he thought belonged to the substitute and
threatening not to give it back until the end of the school
day.
HOD at 4.
 7

failure to comply with the orders or directions of a . . . teacher
. . . where failure to comply with the order constitutes a
disruption”). Because Doe had committed two other Level I
infractions during that school year, both involving fighting,
Abelmann classified this latest as a Level II infraction, pursuant
to 5 DCMR § 2503.1, and decided to remove Doe from Janney
for fifty-four days and place him in another facility, Choice
Academy, as an alternative educational setting. The Assistant
Superintendent approved the Level II classification.
An MDR convened on April 1, 2004 to determine whether
Doe’s infraction had been a manifestation of his disability. The
MDR team included Abelmann, Doe’s regular teacher, a special
education teacher, a social worker and a behavior specialist.
Doe’s mother was notified of the MDR but did not attend. The
team concluded that Doe’s infraction had not been a
manifestation of his disability and agreed with Abelmann’s
decision to remove Doe from Janney. The team did not,
however, document discussion of any specific alternative
educational setting.
Doe’s mother requested a hearing to challenge the
manifestation determination and the class exclusion. Instead of
requesting an IDEA “impartial due process hearing,” however,
she requested a “disciplinary hearing” pursuant to 5 DCMR §§
2505.11-2505.25.7 (Doe’s mother later made clear that the

7
Although the record is bereft of any clear explanation of the
practical distinctions between the two kinds of hearings, in Doe v.
D.C. Pub. Schs., C.A. No. 04-732 (D.D.C.), the District filed a
declaration by a “Staff Assistant for the Student Disciplinary Hearing
Office in the Division of Student Services for the District of Columbia
Public Schools,” which explained:
The disciplinary hearings are separate and distinct from the
IDEA administrative due process hearings, although they
use similar terms such as “hearing officer” and “hearing
 8

choice of hearing was a mistake, resulting from her unfamiliarity
with the IDEA’s intricacies.) The disciplinary hearing convened
on April 8, 2004 and the hearing officer issued a determination
on April 14. He upheld the MDR team’s conclusion that Doe’s
infraction was not a manifestation of his disability. But he
reduced the duration of Doe’s class exclusion from fifty-four
days to ten, concluding that the longer term was inappropriate
given the infraction’s trivial nature. See id. § 2507.1(d)
(authorizing disciplinary hearing officer to modify inappropriate
disciplinary action).
The DCPS appealed the disciplinary hearing officer’s
determination to the Assistant Superintendent, in his capacity as
the Superintendent’s designee, pursuant to 5 DCMR § 2507.4.
It argued the hearing officer erred in reducing a class exclusion
for a Level II infraction to fewer than eleven days. The
Assistant Superintendent agreed and, on April 23, 2004, changed
Doe’s class exclusion to forty-five days.
Jane Doe then filed suit in the district court to obtain a
temporary restraining order preventing implementation of the
class exclusion. Doe v. D.C. Pub. Schs., C.A. No. 04-732
(D.D.C.). The District opposed Doe on the ground that she had

officer’s determination.” Moreover, the qualifications for a
disciplinary hearing officer differ from that [sic] of an IDEA
hearing officer.
Under IDEA, the hearing officer must be an attorney who
has practice [sic] law for a period of five (5) or more years
or one who has a Ph. D. or a terminal degree in education.
Under disciplinary hearings, the disciplinary hearing officer
may be a school system employee whereas IDEA hearing
officers may not be . . . .
Declaration of Ms. Yvonne Martin, Doe v. D.C. Pub. Schs., C.A. No.
04-732 (D.D.C. May 11, 2004) (Supplement to Def.’s Opp’n to Pl.’s
Mot. for TRO ex. 6).
 9

not exhausted her administrative remedies by “request[ing] a
due process hearing pursuant to the IDEA.” Def.’s Opp’n to
Pl.’s Mot. for TRO at 6, Doe v. D.C. Pub. Schs., C.A. No. 04-
732 (D.D.C. May 7, 2004). On May 11, 2004 the district court
dismissed the case without prejudice after the parties agreed at
a motions conference to pursue an IDEA hearing. See 20 U.S.C.
§ 1415(f).
The IDEA hearing took place on three days in May 2004.
The hearing officer heard testimony from nine witnesses,
including a teacher, a psychologist, a social worker and
Abelmann. He issued his decision (HOD) on June 4, 2004
“pursuant to” the IDEA. HOD at 3. He framed the “issue” as
“[w]hether DCPS denied [Doe] a Free and Appropriate Public
Education” by imposing the forty-five day class exclusion.
HOD at 3. In his analysis, he first upheld the determination that
Doe’s infraction had not been a manifestation of his disability.
He then reduced the length of Doe’s class exclusion from forty-
five days to eleven, holding that the latter duration was “more
appropriate” because Doe’s infraction consisted of nothing more
than being a “nuisance.” HOD at 28. Next, he determined that,
while Choice Academy “may be able to provide [Doe] with
educational benefit,” it was “not appropriate” and “not
warranted” as an alternative academic setting for him. HOD at
29. He based his conclusion in part on the fact that Doe’s MDR
team had not specifically approved of that facility. Id. He also
stated that “it is not reasonable to place the student at Choice for
the remainder of the school year and his last year in elementary
school at Janney for the purpose of having him learn that there
are consequences for [sic] his behavior.” HOD at 29.
Accordingly, he ordered that Doe spend the remainder of the
year at Janney. He also ordered that, in the event Doe had not
already served the entire eleven days of class exclusion, Janney
was to “offer alternatives such as those specified in [5 DCMR §]
 10

2501.1.”8 HOD at 30. Doe graduated from Janney soon
thereafter.
On July 2, 2004 the District requested reconsideration,
which the IDEA hearing officer denied on July 28, 2004. The
District then filed suit in the district court, see 20 U.S.C.
§ 1415(i)(2)(A), alleging the IDEA hearing officer exceeded his
authority by modifying the terms of Doe’s class exclusion. Doe
countered that the hearing officer had acted within his authority
and, in any event, the case was moot because he no longer
attended a DCPS school. The parties eventually filed cross
motions for summary judgment and, on August 28, 2008, the
court granted the District summary judgment. First the court
held that the action should not be dismissed as moot because it
was “‘capable of repetition, yet evading review.’” District of
Columbia v. Doe ex rel. Doe, 573 F. Supp. 2d 57, 62 (D.D.C.
Aug. 28, 2008) (quoting Jenkins v. Squillacote, 935 F.2d 303,
308 (D.C. Cir. 1991)). On the merits, the court interpreted the
HOD as finding that Doe’s class exclusion did not violate the
IDEA; the court then concluded that the hearing officer
exceeded his authority in modifying the Assistant
Superintendent’s disciplinary decision notwithstanding the
finding. Doe moved for reconsideration, which the district court
denied on New Year’s Eve 2008. Doe timely appealed.

8
Section 2501.1 provides for “(a) Reprimands; (b) Detention; (c)
Additional work assignments; (d) Restitution; (e) Mediation; (f)
In-school disciplinary centers; (g) Alternative educational programs
and placements; (h) Rehabilitative programs; (i) Crime
awareness/prevention programs; (j) Probation; (k) Exclusion from
extracurricular activity; (l) Peer court; and (m) Transfer.” 5 DCMR
§ 2501.1.
 11

III.
Having traveled a long, unusual road to this court, Doe now
argues that (1) this action is moot, (2) the district court erred in
declining to dismiss the District’s complaint as untimely, (3) the
district court erred on the merits in holding that the IDEA
hearing officer exceeded his authority and (4) the district judge
was biased against him. We address his arguments in turn.
A. Mootness
Under Article III of the United States Constitution we “may
only adjudicate actual, ongoing controversies.” Honig, 484 U.S.
at 317; see Nat’l Black Police Ass’n v. District of Columbia, 108
F.3d 346, 349 (D.C. Cir. 1997). Accordingly, the mootness
doctrine prohibits us from deciding a case if “events have so
transpired that the decision will neither presently affect the
parties’ rights nor have a more-than-speculative chance of
affecting them in the future.” Clarke v. United States, 915 F.2d
699, 701 (D.C. Cir. 1990) (en banc) (internal quotation omitted).
That seems to be the case here; both parties acknowledge that
the DCPS can no longer enforce additional discipline against
Doe as he is no longer a DCPS student. There is a mootness
exception, however, if an action is “capable of repetition, yet
evading review.” Jenkins, 935 F.2d at 308. The exception
applies where: “‘(1) the challenged action is in its duration too
short to be fully litigated prior to its cessation or expiration, and
(2) there [is] a reasonable expectation that the same complaining
party will be subject to the same action again.’” Id. at 307
(quoting Murphy v. Hunt, 455 U.S. 478, 482 (1982)) (quotation
omitted) (alteration in Jenkins).
We had occasion to apply the exception in the IDEA
context in Jenkins, 935 F.2d at 307-308. In that case, an IDEA
hearing officer ruled that the DCPS had given insufficient notice
to a disabled child’s parents that it intended to change his
placement in furtherance of his IEP. Id. at 305-06; see supra
 12

note 5. As a remedy, the hearing officer ordered that the child
spend the impending school year in a private school in
accordance with the parents’ wishes but contrary to the DCPS’s.
Id. at 306. The DCPS Superintendent filed suit in the district
court challenging the hearing officer’s decision to change the
child’s placement. Id. The district court held the case was moot
because, by the time it had ruled on the parents’ motion to
dismiss, the school year had already ended. Id. We reversed,
holding that the challenged action was “capable of repetition, yet
evading review.” Id. at 308. Applying the exception’s first
prong, we held that “there can be no doubt that a one-year
placement order under the IDEA is, by its nature, ‘too short [in
duration] to be fully litigated prior to its . . . expiration.’” Id. at
307 (quoting Honig, 484 U.S. at 322-23). Regarding the second
prong, we held that “there is a ‘reasonable expectation’ that the
District will again be aggrieved by a similar application of the
IDEA’s notice requirements.” Jenkins, 935 F.2d at 308. We
concluded that the issue was “a recurring one” as the “case
[wa]s not simply about where [the child] would attend school for
the [relevant] school year, but rather about what sort of legal
standard the District must meet in providing notice to [his]
parents, and to other parents as well.” Id. at 308, 306. And,
while we noted a reasonable likelihood that the District would
be confronted again with the same question regarding the same
student, our decision turned on the reasonable expectation that
“the same complaining party”—the District—would repeatedly
confront the issue as to disabled children generally. See id. at
307-08 (emphasis added).
Turning to this appeal, we start by asking whether the
challenged action—a class exclusion modified by an IDEA
hearing officer—evades review. The Supreme Court once
somewhat euphemistically characterized administrative and
judicial review of cases under this statute as “ponderous.”
Honig, 484 U.S. at 322; see also Roland M. v. Concord Sch.
Comm., 910 F.2d 983, 1000 (1st Cir. 1990) (“[P]lacement
 13

disputes may take years to wind their way through the
administrative/judicial labyrinth.”). This is a case in point.
Doe’s class exclusion was nearly six years ago. It has been
several years since he attended a DCPS school. He has long
been immune from any discipline the District might impose
were it to successfully litigate a challenge to the IDEA hearing
officer’s decision. And there is no reason to think that Doe’s
status is anomalous. As the Supreme Court noted in Honig, “the
adolescent student improperly disciplined . . . will often be
finished with school or otherwise ineligible for EHA protections
by the time review can be had” of the improper disciplinary
decision. 484 U.S. at 322-23. We conclude, therefore, that this
action “evades review.” As for the second prong, here, as in
Jenkins, the legal issue—an IDEA hearing officer’s authority to
revise DCPS-imposed discipline upon finding that an infraction
is not a manifestation of a disability—is almost certain to be “a
recurring one.” Jenkins, 935 F.2d at 308. We can reasonably
expect that the District will again “be aggrieved by similar
application of the IDEA.” Id. In other words, this case is
“capable of repetition.” The exception therefore applies. See
DeVries by DeBlaay v. Spillane, 853 F.2d 264, 268 (4th Cir.
1988) (“EHA cases are classic cases for application of the
‘capable of repetition, yet evading review’ rule.”).
Doe counters that the case is moot because the District is
pursuing it only to avoid paying attorney fees. See Appellee’s
Br. 23 n.8 (acknowledging District’s offer to settle if Doe would
waive right to attorney fees). He is right that “[a]n ‘interest in
attorneys’ fees is . . . insufficient to create an Article III case or
controversy where none exists on the merits of the underlying
claim.’” Spirit of the Sage Council v. Norton, 411 F.3d 225, 229
(D.C. Cir. 2005) (quoting Lewis v. Cont’l Bank Corp., 494 U.S.
472, 480 (1990)) (ellipsis in Norton). As explained above,
however, our jurisdiction is based on our conclusion that the
action is “capable of repetition, yet evading review,” not on a
controversy regarding attorney fees.
 14

B. Timeliness
When the District brought this action in the district court the
limitations period for filing a complaint challenging an IDEA
hearing officer’s decision was thirty days under our decision in
Spiegler v. District of Columbia, 866 F.2d 461, 466 (D.C. Cir.
1989).9 The District filed its complaint on August 26, 2004,
eighty-three days after the HOD issued. Relying primarily on
R.S. v. District of Columbia, 292 F. Supp. 2d 23 (D.D.C. 2003),
however, the District argues that its complaint was timely
because its request for reconsideration by the IDEA hearing
officer tolled the limitations period. Doe argues that R.S. “was
wrongly decided” and that, contrary to the holding in that case,
the District’s request for reconsideration was itself untimely.
Reply. Br. 11.
We do not resolve this dispute because it is not properly
before us. Doe did not raise his timeliness argument in the
district court until his post-judgment “Motion to Stay
Proceedings and to Vacate and Reconsider,” District of
Columbia v. Doe ex rel. Doe, C.A. No. 04-1451 (D.D.C. Sept.
12, 2008). The district court properly characterized that motion
as one to alter or amend the judgment pursuant to Federal Rule
of Civil Procedure 59(e). See Mem. Op. at 2, District of
Columbia v. Doe ex rel. Doe, C.A. No. 04-1451 (D.D.C. Dec.
31, 2008); Emory v. Sec’y of Navy, 819 F.2d 291, 293 (D.C. Cir.
1987) (“‘[A]ny motion that draws into question the correctness
of the judgment is functionally a motion under Civil Rule 59(e),
whatever its label.’” (quoting 9 Moore’s Fed. Practice
§ 204.12[1] at 4-67 (1987))) (alteration in Emory). It is well
settled that “an issue presented for the first time in a motion
pursuant to Federal Rule of Civil Procedure 59(e) generally is
not timely raised; accordingly, such an issue is not preserved for

9
The Congress has since enacted a ninety-day statute of
limitations. 20 U.S.C. § 1415(i)(2)(B) (2005).
 15

appellate review unless the district court exercises its discretion
to excuse the party’s lack of timeliness and consider the issue.”
Holland v. Big River Minerals Corp., 181 F.3d 597, 605 (4th
Cir. 1999) (collecting cases); see also Nat’l Ecological Found.
v. Alexander, 496 F.3d 466, 477 (6th Cir. 2007) (“Rule 59(e)
motions are aimed at reconsideration, not initial consideration.”)
(internal quotation omitted). The district court did not exercise
its discretion to excuse Doe’s untimeliness; on the contrary, it
declined to consider the issue because Doe “should have raised
[it] earlier.” Mem. Op. at 4, District of Columbia v. Doe ex rel.
Doe, C.A. No. 04-1451 (D.D.C. Dec. 31, 2008). As a result, it
is not for us to decide timeliness vel non.
But Doe says we must reach his argument because the
district court did not have jurisdiction over the District’s
untimely complaint. See Bowles v. Russell, 551 U.S. 205, 213
(2007) (“forfeiture or waiver” does not apply where
untimeliness precludes jurisdiction). As noted, however, the
applicable limitations period was then prescribed by common
law, not by statute. See Spiegler, 866 F.2d at 466 (borrowing
limitations period from D.C. App. R. 15(a)). The limitations
period was not jurisdictional and Doe’s argument thus fails. See
Bowles, 551 U.S. at 210-11 & n.2 (describing “jurisdictional
significance” of limitations period set by statute); Kontrick v.
Ryan, 540 U.S. 443, 452 (2004) (“Only Congress may determine
a lower federal court’s subject matter jurisdiction.”); S.J. v.
Issaquah Sch. Dist. No. 411, 470 F.3d 1288, 1290 n.1 (9th Cir.
2006) (failure to comply with limitations period borrowed from
local law is not jurisdictional in IDEA action).
C. Merits
Because the district court relied entirely on the
administrative record, cf. 20 U.S.C. § 1415(i)(2)(B)(ii) (district
court “shall hear additional evidence at the request of a party”),
we review its grant of summary judgment de novo, applying the
same standard it used. See Reid ex rel. Reid v. District of
 16

Columbia, 401 F.3d 516, 521-22 (D.C. Cir. 2005). Under that
standard, the IDEA hearing officer’s decision warrants “less
deference than is conventional” in administrative proceedings
but the District “must at least take on the burden of persuading
the court that the hearing officer was wrong.” Kerkam v.
McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1988); see also Dale M.
ex rel. Alice M. v. Bd. of Educ., 237 F.3d 813, 815 (7th Cir.
2001) (if district court relies solely on administrative record,
IDEA hearing officer’s decision warrants “due deference”).
Doe claims the district court erred in holding that the IDEA
hearing officer exceeded his authority by modifying the terms of
Doe’s class exclusion. Doe argues, in part, that the IDEA
hearing officer was authorized to decide whether the DCPS’s
disciplinary action denied Doe a FAPE and that the hearing
officer modified Doe’s punishment only after finding that the
proposed class exclusion did so. The District counters that the
district court’s holding is well founded inasmuch as the
Superintendent (or his designee), not an IDEA hearing officer,
has the final say regarding discipline that does not imperil a
disabled child’s rights under the IDEA. It contends that the
hearing officer “did not find any violation of the IDEA” but
modified Doe’s punishment on non-IDEA grounds. Appellee’s
Br. 11.
It is true that the Superintendent has the last word regarding
discipline imposed under the DCMR for misconduct that is not
a manifestation of the child’s disability as long as the
disciplinary action does not deprive the child of a FAPE. See 5
DCMR § 2508.2 (“With respect to all disciplinary actions, the
Superintendent may overrule or modify any proposed
disciplinary action including expulsion.”); id. § 2502.8
(“Disciplinary action for students with disabilities shall be
imposed in compliance with § 2510 of these Rules.”);
id. § 2510.10 (if no manifestation, disabled child subject to same
disciplinary procedures as non-disabled children, except school
 17

system must provide FAPE). It is also true, however, that
federal law and D.C. regulations empower an IDEA hearing
officer to review “any decision regarding placement of a
[disabled] child,” 20 U.S.C. § 1415(k)(6)(A)(i); 5 DCMR
§ 2510.12, and also require the hearing officer to ensure that
disciplinary action does not deprive a disabled child of a FAPE.
See 20 U.S.C. § 1415(k)(5)(A); 5 DCMR § 2510.10. Because
we find that the hearing officer modified Doe’s punishment only
after finding that class exclusion would deny Doe a FAPE, we
reject the District’s argument that the hearing officer exceeded
his authority.
That the IDEA hearing officer’s focus was on Doe’s FAPE
is apparent from the HOD; it contains numerous references to
the IDEA and to the IDEA’s central maxim that a disabled
student is entitled to a free appropriate public education. It is
captioned: “Individuals with Disabilities Education Act . . .
Impartial Due Process Hearing.” HOD at 3. It declares that it
“was written pursuant to the Individuals with Disabilities
Education Act.” Id. (italics in original). It defines the issue as
“[w]hether DCPS denied the student a [FAPE] by suspending
the student for forty-five (45) days.” Id. Setting out the legal
authority, it makes clear that “DCPS is obligated to ensure that
all children with disabilities receive a [FAPE]” and that “[t]his
obligation includes . . . determining an appropriate placement.”
Id. at 24. Then, having established that ensuring Doe’s FAPE
requires evaluating the appropriateness of his proposed
placement, it does so. In particular, it determined that, while
Choice Academy “may be able to provide the student with
educational benefit,” it was “not appropriate” and “not
warranted” as an alternative academic placement for Doe.10 Id.

10
Although our review is de novo, we note that the district court’s
account of this aspect of the HOD missed the mark, viz., at no point
did the IDEA hearing officer “conclud[e] that placement at Choice
 18

at 29. Viewing the HOD as a whole, therefore, we find the
IDEA hearing officer’s review of Doe’s class exclusion within
the scope of his duty to ensure Doe’s FAPE. Indeed, few
developments could bear more on the “appropriateness” of a
child’s education than his being taken from his elementary
school and placed in a new setting for nine weeks.
To be sure, the HOD contains numerous references to the
DCMR, which, taken piecemeal, seem to support the District’s
argument that the IDEA hearing officer usurped the
Superintendent’s disciplinary prerogative by reviewing Doe’s
class exclusion for defects unrelated to the IDEA. For example,
the HOD repeatedly refers to the DCPS’s non-compliance with
5 DCMR § 2510.4, which section is inapplicable to Doe.11 But
we believe the hearing officer’s invocation of the DCMR merely
informed his IDEA-centered appraisal of Doe’s FAPE. After
all, section 2510 implements the IDEA. And it empowers a
hearing officer to review “any decision regarding placement,”
id. § 2510.12, in conjunction with ensuring a disabled child’s
FAPE, id. § 2510.10. Further, it specifically directs a hearing

Academy would not constitute denial of a FAPE.” Doe, 573 F. Supp.
2d at 63.
11
Section 2510.4 permits a hearing officer to “order a change in
the placement of a child with a disability to an appropriate interim
alternative educational setting for not more than forty-five (45) days”
if, inter alia, the DCPS has (1) “demonstrated by substantial evidence”
that the child is likely a danger to others and (2) made reasonable
efforts to minimize the danger the child poses in his current setting.
Here, however, the District was not required to make these showings
because its disciplinary action was premised on a finding that Doe’s
infraction was not a manifestation of his disability; because of that
finding, Doe could be disciplined in the same manner as a non-
disabled child, i.e., without regard to section 2510.4, so long as he was
provided a FAPE. See 5 DCMR § 2510.10.
 19

officer, when evaluating a proposed alternative educational
placement, to consider the criteria listed in section 2510.4,
including the placement’s “appropriateness.” See id. § 2510.15.
Taking all of this into consideration, we conclude that the IDEA
hearing officer acted within his authority in rejecting the
DCPS’s disciplinary action as inconsistent with Doe’s FAPE,
notwithstanding his determination that Doe’s infraction was not
a manifestation of his disability.
D. Recusal
Finally, Doe argues the district judge was biased against
him and therefore should have recused himself. By statute,
“[a]ny justice, judge, or magistrate judge of the United States
shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.” 28 U.S.C. § 455.
In reviewing claims of this sort, “this circuit applies an
‘objective’ standard: Recusal is required when a reasonable and
informed observer would question the judge’s impartiality.”
SEC v. Loving Spirit Found. Inc., 392 F.3d 486, 494 (D.C. Cir.
2004) (internal quotation omitted). “[J]udicial rulings alone
almost never constitute a valid basis” for an allegation of “bias
or partiality.” Liteky v. United States, 510 U.S. 540, 555-56
(1994). Nor do “expressions of impatience, dissatisfaction,
annoyance, and even anger.” Id.
Doe argues the district judge’s impartiality was objectively
questionable because he (1) failed to seal a hearing transcript
that allegedly revealed John Doe’s identity,12 (2) “personally

12
Doe refers to his April 7, 2006 motion to seal the transcript of
the hearing held on February 15, 2006. Appellant’s Br. 32-33.
According to him, “the record of that hearing remains unsealed.”
Reply Br. 18 n.17. The District responds that the district court’s
failure to seal the transcript “appears to have been an oversight” and
that the District “has no objection to an order providing that, if
someone orders a copy of the transcript, the court reporter should
 20

attacked [Jane] Doe by accusing her of deceptively working
around his ‘no personal service rule’ . . . and . . . of engaging in
unethical behavior by having ‘ex parte’ communications with
chambers” and (3) graduated from D.C. public schools and has
“been given special recognition by that system.” Appellant’s
Br. 32. Liteky forecloses Doe’s first two grounds for recusal
because they are based on the district judge’s allegedly flawed
rulings and excessive statements. As for the third ground, being
an alumnus of DCPS schools does not preclude a district judge
from presiding over a case involving the DCPS. See, e.g., Lunde
v. Helms, 29 F.3d 367, 370-71 (8th Cir. 1994) (recusal not
required where judge was party defendant’s alumnus, financial
contributor and participant in its educational programs); Wu v.
Thomas, 996 F.2d 271, 274-75 & n.7 (11th Cir. 1993) (recusal
not required where judge was party defendant’s alumnus,
adjunct professor and financial contributor). We see no
objective indicia of bias here.
***
In Honig the Supreme Court explained that, in enacting the
IDEA’s precursor, the “Congress very much meant to strip
schools of the unilateral authority they had traditionally
employed to exclude disabled students . . . from school.” 484
U.S. at 323 (emphasis in original). Today we attempt to
effectuate the Congress’s intention by recognizing the authority
of an IDEA hearing officer to ensure that every disabled child
receives a free appropriate public education, including in the
context of a local school system’s disciplinary decision.
Accordingly, and for the foregoing reasons, we reverse the
district court’s grant of summary judgment to the District.
So ordered.

substitute the pseudonym John Doe for the name of the child, and Jane
Doe for the name of the mother in the transcript.” Appellee’s Br. 36.