United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 20, 2006 Decided May 19, 2006
No. 05-7123
LAKEISHA LESESNE, AS PARENT OF B.F., OF MINOR,
APPELLANT
v.
DISTRICT OF COLUMBIA AND
ELFREDA MASSIE, INTERIM SUPERINTENDENT, DISTRICT OF
COLUMBIA PUBLIC SCHOOLS,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 04cv00620)
Douglas W. Tyrka argued the cause and filed the briefs for
appellant.
Mary T. Connelly, Assistant Attorney General, Office of
Attorney General for the District of Columbia, argued the cause
for appellees. With her on the brief were Robert J. Spagnoletti,
Attorney General, and Edward E. Schwab, Deputy Attorney
General.
Before: GINSBURG, Chief Judge, and SENTELLE and
GARLAND, Circuit Judges.
2
Opinion for the Court filed by Circuit Judge SENTELLE.
SENTELLE, Circuit Judge: Lakeisha Lesesne claims the
District of Columbia Public Schools (“DCPS”) violated the
rights of her disabled son, “B.F.,” under the Individuals with
Disabilities Education Act, 20 U.S.C. §§ 1400-1482 (“IDEA” or
“the Act”). Alleging that DCPS failed to create an
individualized education program (“IEP”) for B.F., Lesesne filed
a complaint in the United States District Court for the District of
Columbia seeking injunctive and declaratory relief against
DCPS. The District Court granted summary judgment in favor
of DCPS, and Lesesne appealed. Because Lesesne has failed to
demonstrate that B.F. was harmed by any statutory violations
DCPS might have committed, we affirm.
I
B.F. is a mentally retarded and cannabis-dependent sixteen-
year-old boy. During the fall of 2003, the Social Services
Division of the Superior Court of the District of Columbia
referred B.F. to DCPS for an “evaluation” to determine whether
he was covered by IDEA. See 20 U.S.C. § 1414(a)(1) (requiring
an initial evaluation to determine whether a child is covered by
IDEA); 34 C.F.R. § 300.320 (prescribing procedures for an
“initial evaluation”); D.C. Code § 38-2501(a) (2001) (requiring
an “initial evaluation” within 60 days of a “referral”), as
amended by D.C. L. 15-39 (eff. Nov. 13, 2003) (requiring an
“initial evaluation” within 120 days of a “referral”). The Act
guarantees “that all children with disabilities have available to
them a free appropriate public education [“FAPE”] that
emphasizes special education and related services designed to
meet their unique needs.” 20 U.S.C. § 1400(d)(1)(A); see also
34 C.F.R. § 300.7 (defining “child with a disability”). If a
child’s initial evaluation suggests he is entitled to a FAPE,
IDEA then requires the school district to create and implement
3
an IEP, which is the “primary vehicle” for implementing the
Act. Honig v. Doe, 484 U.S. 305, 311 (1988). The IEP is
“[p]repared at meetings between a representative of the local
school district, the child’s teacher, the parents or guardians, and,
whenever appropriate, the disabled child.” Id. It “sets out the
child’s present educational performance, establishes annual and
short-term objectives for improvements in that performance, and
describes the specially designed instruction and services that
will enable the child to meet those objectives.” Id.; see also 34
C.F.R. § 300.343(b)(2) (requiring a “meeting to develop an IEP”
within 30 days following the completion of a disabled student’s
initial evaluation).
B.F. was referred to DCPS for an initial “evaluation” on
October 30, 2003. Over the following four months, DCPS
attempted to test B.F.’s speech as part of his evaluation, but its
efforts were repeatedly thwarted by B.F.’s truancy and
Lesesne’s refusals to facilitate the process. In early February
2004, Lesesne and B.F. finally reported for speech testing, but
before B.F. could complete the test, a police officer arrested him
for assaulting his girlfriend. At some point thereafter (the record
is unclear as to exactly when), B.F. finally completed his speech
test and his “evaluation.”
Given the practical difficulties associated with conducting
B.F.’s evaluation, DCPS decided to begin planning his IEP
meeting, see 34 C.F.R. § 300.343(b)(2), even before B.F. had
completed his testing (and thus even before DCPS was sure that
he was covered by IDEA). On February 10, 2004—while DCPS
was struggling to complete B.F.’s evaluation, and while DCPS
was making preliminary plans for B.F.’s IEP meeting—Carolyn
W. Houck (Lesesne’s attorney at the time) contacted DCPS
about the need for an IEP meeting. DCPS told Lesesne’s
attorney about B.F.’s pattern of uncooperative behavior,
described the portions of his evaluation that remained
4
incomplete, and told her about DCPS’s plans to convene an IEP
meeting anyway.
Rather than facilitate DCPS’s efforts to help B.F., Lesesne
and her attorney instead focused their energies on litigation. On
February 11, 2004—the day immediately following her first
conversation with DCPS—Lesesne’s attorney filed a request for
a due process hearing with an independent hearing officer
(“HO”), pursuant to 20 U.S.C. § 1415(b)(6), (f)(1). Alleging
that DCPS had made no attempt to provide a FAPE for B.F.,
Lesesne demanded a hearing officer’s decision (“HOD”)
requiring DCPS to perform all necessary evaluations of B.F.,
develop his IEP, determine an appropriate educational
placement for him, and provide him with compensatory
education.
On February 24, 2004—while Lesesne’s request for a due
process hearing was pending—DCPS faxed a “Letter of
Invitation” to Lesesne’s attorney, proposing three possible dates
for an IEP meeting. Lesesne rejected all three dates by fax on
February 26, 2004. That same day, DCPS responded by
suggesting three more dates, which it hoped would be more
convenient for Lesesne and her attorney. However, Lesesne and
her new attorney (Douglas W. Tyrka) offered no response before
the HO held an administrative hearing on March 5, 2004.
On March 19, 2004, the HO issued his final ruling, which
dismissed the case and denied Lesesne’s requests for relief. The
HO found that the proceeding was moot because DCPS had
made reasonable efforts to evaluate B.F. and to schedule an IEP
meeting, but both Lesesne and her attorney had frustrated those
efforts. The HO explained:
5
My only complaint is that when it looks like a solution is in
play I’m still sitting here despite the fact that you’re here
looking for an IEP meeting, an invitation has been sent and
rather than calling . . . the school, apparently Ms. Houck
wrote a letter and complained about the dates instead of
picking up the phone and working out dates. So I’ve got to
sit here and referee what seems not to be a very serious
[denial of a] FAPE.
Accordingly, the HO denied Lesesne’s requests for relief and
dismissed her due process request with prejudice.
On April 1, 2004, DCPS again tried to contact Lesesne to
schedule an IEP meeting. DCPS wrote: “[t]his is the (4th)
attempt to meet with you and your Educational Advocate in
regards to your son [sic] evaluations [sic] we are submitting
another Letter of Invitation. This is the final Letter of Invitation.
We will move forward with the meeting to insure his academic
success.” Instead of responding to DCPS’s fourth and final
invitation to convene an IEP meeting, on April 14, 2004,
Lesesne filed a complaint in the District Court as a parent
“aggrieved by” the HOD, 20 U.S.C. § 1415(i)(2). Reiterating
her allegations that DCPS failed to provide B.F. with a FAPE,
Lesesne’s complaint sought various forms of injunctive and
declaratory relief, including an IEP and an alternative
educational placement for her son. After Lesesne filed her
complaint in the District Court, she then filed two more due
process requests with a second HO.
At some point amidst Lesesne’s flurry of litigation activity,
the parties reached an “agreement . . . on the record” that
purported to resolve this case. Second HOD at 2. Unhelpfully,
the parties failed to provide us with the text of their agreement.
However, the record does reveal that the parties reached an
agreement; pursuant to that agreement, B.F. was transferred to
6
an alternative educational placement; DCPS created and
implemented an interim IEP, which the parties agreed to “review
and revise . . . as necessary,” id.; Lesesne’s attorneys1 sent two
written acknowledgments to DCPS, confirming the fact that they
had received and “reviewed” the IEP; and B.F.’s IEP was in
place before the beginning of the 2004-2005 school year. The
record contains no evidence that the parties ever revised B.F.’s
IEP.
On July 26, 2005, the District Court entered summary
judgment in favor of DCPS. After emphasizing that “B.F. is
currently in a new educational placement following a second
due process hearing,” and after noting that “the record provides
no indication that either the placement is inappropriate, or that
an IEP has not been created,” the District Court held the case
moot. The court further held that even if the case was not moot,
violations of IDEA’s procedural requirements are actionable
only if they affect a student’s substantive rights. Because
Lesesne failed to show that B.F. had been harmed by any
procedural violations DCPS might have committed, the District
Court granted summary judgment in favor of DCPS. Lesesne
filed a timely notice of appeal. Our review is de novo. See, e.g.,
Goldring v. District of Columbia, 416 F.3d 70, 73 (D.C. Cir.
2005).
1
As of the end of April 2004—when Lesesne’s attorneys
acknowledged receiving and “review[ing]” B.F.’s IEP—the record
suggests that Lesesne was represented by both Mr. Tyrka and Ms.
Houck: The former represented her at the administrative hearing on
March 5, 2004 and continued to represent her before both the District
Court and our court, while the latter demanded the administrative
hearing in February 2004 and signed two letters acknowledging
receipt of the IEP on April 21 and April 27, 2004.
7
II
Lesesne’s appeal presents two issues. First, she argues that
this case is not moot. Second, Lesesne argues that the District
Court inappropriately exercised “hypothetical jurisdiction” over
the merits of her claim. While we agree with Lesesne’s first
argument, we reject the second. Because the District Court
erred in concluding this case is moot, both it and we have
jurisdiction to review Lesesne’s claim on the merits. And
because we agree with the District Court’s merits holding, we
affirm.
A
Lesesne argues that this case is not moot because “effectual
relief [i]s possible.” Pet. Br. at 15. Specifically, Lesesne points
out that her complaint includes requests for an IEP, “a
declaratory judgment that DCPS denied B.F. FAPE,” and “any
other relief the Court deems just.” Claiming that DCPS has
never complied with any of her prayers for relief, Lesesne offers
two arguments against mootness. While we conclude that both
are without merit, we nonetheless agree that this case is not
moot.
Lesesne’s first argument is unavailing. In her briefs,
Lesesne makes repeated assertions that this case is not moot
because DCPS never created an IEP for B.F. See Pet. Br. at 8,
12 (two assertions), 13, 15, 16 (five assertions), 17, 24; Reply
Br. at 1, 2 (four assertions), 3. Then at oral argument, Lesesne’s
attorney made repeated assertions that DCPS failed to create an
IEP for B.F. (We have reproduced the relevant portions of the
transcript in the Appendix attached hereto.) Five days after oral
argument, however, DCPS submitted evidence documenting the
fact that an IEP was developed on April 16, 2004. Moreover, in
two separate letters to DCPS (dated April 21 and April 27,
8
2004), Lesesne and her attorney acknowledged having received
and “reviewed” the IEP, although they declined to accept it.
Notwithstanding the existence of the IEP and their documented
knowledge of it, Lesesne’s counsel steadfastly insisted—before
the District Court and this Court—that an IEP had not been
created. Regardless of whether Lesesne’s assertions are amnesic
oversights or unseemly pettifogging, there is no doubt that
DCPS did develop an IEP. Accordingly, Lesesne’s demand for
an IEP is moot.
Lesesne’s second argument against mootness is that her
request for a declaratory judgment, combined with her
boilerplate request for “any other relief the Court deems just,”
entitles B.F. to receive “compensatory education.” See Pet. Br.
at 12; Reply Br. at 3-4; see also Reid ex rel. Reid v. District of
Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005) (“When a school
district deprives a disabled child of [FAPE] in violation of
[IDEA], a court fashioning ‘appropriate’ relief [under 20 U.S.C.
§ 1415(i)(2)(C)(iii)], may order compensatory education, i.e.,
replacement of educational services the child should have
received in the first place.”). In Lesesne’s view, this implied
request for “compensatory education” is sufficient to forestall
mootness. While we reject Lesesne’s rationale, we agree that
this case is not moot.
Although Lesesne’s own attorney fails to notice it, the very
first paragraph on the very first page of her complaint contains
an explicit demand for compensatory education. Because it does
not appear that the parties’ “agreement . . . on the record”
addresses Lesesne’s demand for compensatory education, her
complaint presented the District Court with a live controversy.
Compare DeFunis v. Odegaard, 416 U.S. 312, 316-17 (1974)
(per curiam). Accordingly, we proceed to consider the merits of
the District Court’s decision to enter summary judgment for
DCPS.
9
B
Lesesne argues that this case must be reversed and
remanded to the extent it is not moot because the District
Court’s treatment of the merits constituted an unlawful
assumption of “hypothetical jurisdiction.” See Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 101 (1998)
(“Hypothetical jurisdiction produces nothing more than a
hypothetical judgment—which comes to the same thing as an
advisory opinion, disapproved by this Court from the
beginning.”). In Lesesne’s view, the District Court’s mootness
holding rendered its alternative holding on the merits an
unconstitutional advisory opinion. We disagree.
Because this case is not moot, both the District Court and
this Court have jurisdiction to reach the merits. See Info.
Handling Servs., Inc. v. Def. Automated Printing Servs., 338
F.3d 1024, 1031 (D.C. Cir. 2003) (“Although the district court
would have been without jurisdiction to consider the merits had
[the plaintiff] truly lacked standing, because we have concluded
that [the plaintiff] does have standing, we now proceed to
consider the court’s decision to grant summary judgment.”
(citing Steel Co., 523 U.S. at 93-94)); see also Utah Animal
Rights Coal. v. Salt Lake City Corp., 371 F.3d 1248 (10th Cir.
2004) (reviewing district court’s alternative holdings on
mootness and the merits and affirming only the latter);
Verhoeven v. Brunswick Sch. Comm., 207 F.3d 1, 7 (1st Cir.
1999) (“[I]t appears that the district court reached the merits of
the [appellants’ claim], despite its mootness conclusion.
Therefore, we treat the district court’s decision on the merits as
an alternative ground for the denial and review it accordingly.”);
id. at 7-11 (rejecting the district court’s conclusion that the case
was moot but affirming the district court on the merits). Given
that the District Court did, in fact, have jurisdiction, it did not err
in reaching the merits of this case.
10
Upon de novo review, we conclude that Lesesne’s claims
fall short on the merits. In a lone footnote on the last page of her
opening brief, Lesesne argues that “B.F. was per se harmed” by
DCPS’s alleged failure to meet some of IDEA’s procedural
deadlines. Pet. Br. at 26 n.6. We disagree. Even assuming
Lesesne has not waived her argument on the merits, see Sugar
Cane Growers Co-op. of Fla. v. Veneman, 289 F.3d 89, 93 n.3
(D.C. Cir. 2002), and even assuming that DCPS violated its
procedural obligations,2 an IDEA claim is viable only if those
procedural violations affected the student’s substantive rights.
See, e.g., Kruvant v. District of Columbia, 99 Fed. Appx. 232,
233 (D.C. Cir. 2004) (denying relief under IDEA because
“although DCPS admits that it failed to satisfy its responsibility
to assess [the student] for IDEA eligibility within 120 days of
her parents’ request, the [parents] have not shown that any harm
resulted from that error”); C.M. v. Bd. of Educ., 128 Fed. Appx.
876, 881 (3d Cir. 2005) (per curiam) (“[O]nly those procedural
violations of the IDEA which result in loss of educational
opportunity or seriously deprive parents of their participation
rights are actionable.”); M.M. ex rel. D.M. v. Sch. Dist., 303 F.3d
523, 533-34 (4th Cir. 2002) (“If a disabled child received (or
was offered) a FAPE in spite of a technical violation of the
2
We hasten to add that we do not think DCPS violated any of its
procedural obligations. Lesesne’s only argument to the contrary (Pet.
Br. at 4) rests on the version of the District of Columbia’s special
education law that was in effect on October 30, 2003, when B.F. was
first “referred” to DCPS for an “evaluation.” See D.C. Code §
38-2501(a) (2001) (requiring an “evaluation” within 60 days of a
“referral”). On November 13, 2003—before the 60-day period
expired and thus before B.F. was entitled to an “evaluation”—an
amendment to D.C. Code § 38-2501(a) became effective and extended
the “evaluation” deadline. See D.C. L. 15-39 (requiring an
“evaluation” within 120 days of a “referral”). The record does not
suggest that DCPS failed to complete B.F.’s “evaluation” before the
new deadline, February 27, 2004.
11
IDEA, the school district has fulfilled its statutory
obligations.”); Roland M. v. Concord Sch. Comm., 910 F.2d 983,
994 (1st Cir. 1990) (en banc) (“[P]rocedural flaws do not
automatically render an IEP legally defective. Before an IEP is
set aside, there must be some rational basis to believe that
procedural inadequacies compromised the pupil’s right to an
appropriate education, seriously hampered the parents’
opportunity to participate in the formulation process, or caused
a deprivation of education benefits.” (citations omitted)); W.G.
v. Bd. of Trustees, 960 F.2d 1479, 1484 (9th Cir. 1992)
(rejecting the proposition that procedural flaws “automatically
require a finding of a denial of a FAPE”); Thomas v. Cincinnati
Bd. of Educ., 918 F.2d 618, 625 (6th Cir. 1990) (rejecting an
IDEA claim for technical noncompliance with procedural
requirements where the alleged violations did not result in a
“substantive deprivation” of the student’s rights); Burke County
Bd. of Educ. v. Denton, 895 F.2d 973, 982 (4th Cir. 1990)
(refusing to award compensatory education where procedural
faults committed by Board did not cause the child to lose any
educational opportunity).
Lesesne has made no effort to demonstrate—much less
demonstrated—that B.F.’s education was affected by any
procedural violations DCPS might have committed. Cf. Reid,
401 F.3d at 519-20 (chronicling substantive deprivations of a
disabled student’s rights). Accordingly, her claims fail on the
merits.
III
For the reasons stated above, the judgment of the District
Court is
Affirmed.
12
APPENDIX
***
Mr. Tyrka: “The District Court did find that there was an IEP,
and that was a major error on the District Court’s part.” (Tr.
of Oral Argument at 2:42)
***
Mr. Tyrka: “The District Court found that an IEP had been
developed and that a placement had been made.”
The Court: “They had, hadn’t they?”
Mr. Tyrka: “Excuse me, your Honor?”
The Court: “That’s correct, isn’t it?”
Mr. Tyrka: “That’s absolutely incorrect.” (Tr. of Oral
Argument at 3:18 (emphasis in original))
***
The Court: “You’re saying they didn’t [create an IEP]?”
Mr. Tyrka: “They did not do that.” (Tr. of Oral Argument at
6:05)
***
The Court: “Was there never an IEP of any kind?”
Mr. Tyrka: “I know of no IEP.” (Tr. of Oral Argument at
6:51)
***
Mr. Tyrka: “Again, there has been no suggestion that there
was any IEP developed.” (Tr. of Oral Argument at 7:43)
***
Mr. Tyrka: “What is alleged is they failed to develop an IEP
in a timely fashion.” (Tr. of Oral Argument at 14:22)
***