J. T. v. DC ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Submitted November 12, 2020 Decided December 29, 2020
No. 19-7136
J. T.,
APPELLANT
v.
DISTRICT OF COLUMBIA,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:17-cv-01319)
Douglas Tyrka was on the briefs for appellant.
Karl A. Racine, Attorney General, Office of the Attorney
General for the District of Columbia, Loren L. Alikhan,
Solicitor General, Caroline S. Van Zile, Principal Deputy
Solicitor General, Carl J. Schifferle, Deputy Solicitor General,
and Sonya L. Lebsack, Assistant Attorney General, were on the
brief for appellee.
Before: HENDERSON and GARLAND*, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
*
Judge Garland was a member of the panel at the time this case was
submitted but did not participate in the final disposition of the case.
2
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: The
Individuals with Disabilities Education Act (IDEA) requires
that the District of Columbia Public Schools (DCPS) provide
its students with disabilities a free appropriate public education
(FAPE). Plaintiff J.T. asserts that DCPS failed to provide her
son, V.T., with a FAPE based on his 2017 individualized
education program (IEP). After the IDEA administrative
hearing officer ruled against her, J.T. filed this suit in federal
court. The district court dismissed J.T.’s claim as moot because
the 2017 IEP no longer governed V.T.’s education and J.T. did
not seek retrospective relief. J.T. v. District of Columbia, No.
17-cv-1319, 2019 WL 3501667 (D.D.C. Aug. 1, 2019).
Because the case presents a fact-specific challenge to particular
provisions in an inoperative IEP, the parties agreed to a
subsequent IEP and J.T. does not seek retrospective relief, we
affirm the district court.
I. BACKGROUND
A. Statutes and Regulations
The IDEA seeks to provide to children with disabilities a
FAPE that “emphasizes special education and related services
designed to meet their unique needs and prepare them for
further education, employment, and independent living.” 20
U.S.C. § 1400(d)(1)(A). The IEP is “the centerpiece of the
[IDEA]’s education delivery system for disabled children.”
Honig v. Doe, 484 U.S. 305, 311 (1988).
At the beginning of each school year, a participating
educational agency must have an IEP “in effect . . . for each
child with a disability in the agency’s jurisdiction.” 20 U.S.C.
§ 1414(d)(2)(A). The IDEA requires that every IEP include “a
3
statement of the child’s present levels of academic achievement
and functional performance,” describe “how the child’s
disability affects the child’s involvement and progress in the
general education curriculum,” and set out “measurable annual
goals, including academic and functional goals,” along with a
“description of how the child’s progress toward meeting” those
goals will be gauged. Id. §§ 1414(d)(1)(A)(i)(I)-(III). The IEP
is prepared by a child’s IEP Team, which includes teachers,
school officials and the child’s parents. Id. § 1414(d)(1)(B).
The IEP Team must review and revise the child’s IEP “not less
frequently than annually, to determine whether the annual
goals for the child are being achieved.” Id. § 1414(d)(4)(A).
The IDEA provides a dispute resolution procedure in the
event a child’s parents and school officials disagree over what
a child’s IEP includes. Either party may file a “due process
complaint” to challenge the IEP or its implementation. Id.
§§ 1415(b)(6), (c)(2). Filing a complaint triggers a
“[p]reliminary meeting” between the parties to attempt to
resolve their differences and provides the option to pursue
resolution through mediation. Id. §§ 1415(f)(1)(B)(i), (e). If
these measures fail to produce accord, the parties may proceed
to what the IDEA calls a “due process hearing” before a state
or local educational agency. Id. § 1415(f)(1)(A). The
administrative hearing process requires that the hearing
officer’s decision “be made on substantive grounds based on a
determination of whether the child received a [FAPE].” Id.
§ 1415(f)(3)(E)(i).
If the hearing officer finds a violation, the hearing officer
can grant relief including (i) retroactive reimbursement for
private school tuition, (ii) an order that the school district
provide a FAPE or (iii) compensatory education to make up for
educational services that the child should have received. See
Sch. Comm. of Burlington, Mass. v. Dep’t of Educ. of Mass.,
4
471 U.S. 359, 370 (1985) (prospective relief and retroactive
reimbursement); Reid ex rel. Reid v. District of Columbia, 401
F.3d 516, 523 (D.C. Cir. 2005) (compensatory education). At
the conclusion of the administrative process, “any party
aggrieved” may seek redress in state or federal court. 20 U.S.C.
§§ 1415(i)(1), (i)(2)(A).
B. Facts and Procedure
V.T. is a fifth-grade student who has been diagnosed with
Autism Spectrum Disorder. V.T. attended Kingsbury, a
nonpublic day school in the District, for the 2016–17 and
2017–18 school years. The IEP at issue was drafted in April
and May 2017 (2017 IEP) when V.T. was completing the first
grade.
The 2017 IEP was drafted after the resolution of a due
process complaint brought by V.T.’s parents. This earlier
complaint, filed on October 31, 2016, challenged an IEP
drafted in August 2016 (2016 IEP), at the start of V.T.’s first-
grade school year. On April 3, 2017, a hearing officer
determined that the 2016 IEP denied V.T. a FAPE. J.A. 228
(April 3, 2017 Hearing Officer Determination (HOD)). The
hearing officer instructed that:
Within 15 school days, DCPS shall convene an
IEP meeting (including Parents) and review and
revise [V.T.’s] IEP, by (a) increasing [his]
O[ccupational] T[herapy] and Speech
Language services, (b) providing a specified
minimum amount of 1:1 instruction, (c)
providing a maximum student-teacher ratio, (d)
defining a quiet instructional environment, and
5
(e) providing a maximum class size and other
necessary aspects of a school environment.
J.A. 238.
On April 27, 2017, an IEP meeting was held to amend the
2016 IEP consistent with the HOD’s requirements. Although
DCPS attempted to observe V.T. at Kingsbury before the IEP
amendment meeting to “ascertain the level of restriction [he]
actually needed in light of the directives in the [April] HOD[,]
DCPS was not permitted to observe” him. J.A. 323–24
(November 27, 2017 HOD, at 5 ¶ 5). At the April 27, 2017 IEP
meeting, the parties agreed to increase V.T.’s occupational
therapy and speech-language services and include two hours
per day of one-on-one instruction.
But the parties disagreed on the maximum class size, ratio
of students-to-adults and the definition of a quiet instructional
environment. For example, DCPS proposed a maximum class
size of eight students and a student-to-adult ratio of four-to-
one. On the other hand, J.T. requested, based on consultation
with personnel at Kingsbury, a class size of four students and a
student-to-adult ratio of two-to-one. The April 2017 IEP
meeting concluded with DCPS disagreeing with J.T.’s
proposals but stating it was open to making further changes
when the IEP was reviewed in August 2017 and after DCPS
observed V.T.
The 2017 IEP set a maximum class size of eight students
and a four-to-one ratio of students-to-adults. It also required
V.T.’s instruction and independent work time to be in “a quiet
area of the classroom” with “minimal risk of noise and
distraction from outside of the classroom” and adults
“speak[ing] in low, calm tones.” J.A. 244 (2017 IEP).
6
On July 6, 2017, J.T. filed a due process complaint
alleging that the 2017 IEP was “inappropriate” because it
lacked the provisions she had requested, thus denying V.T. a
FAPE. See J.A. 131–35. J.T. requested (i) that DCPS “be found
to have denied [V.T.] a FAPE by developing an inappropriate
IEP,” (ii) that DCPS place and fund V.T. at Kingsbury and (iii)
that DCPS be ordered to “convene an IEP meeting with the
parents, and at that meeting to review and revise the IEP to
include the parents’ requested changes.” J.A. 134.
An administrative hearing was held on October 13, 2017
and November 6, 2017. By that time, DCPS had agreed to fund
V.T. at Kingsbury for the 2017–18 school year and therefore
J.T. no longer sought tuition reimbursement. On November 27,
2017, the hearing officer determined that the 2017 IEP
provided V.T. with a FAPE.
In July 2018, the IEP Team met and developed a new IEP
(2018 IEP). The 2018 IEP set the maximum class size at six
and removed the student-to-adult ratio. The 2018 IEP made
these changes because “[V.T.] was able to tolerate more from
a sensory perspective this [past] year” and his teacher reported
that V.T. had been successful in a group of five. J.A. 24. The
2018 IEP also provided V.T. with a dedicated aide for six hours
a day.
Five months before the parties reached agreement on the
2018 IEP, on February 23, 2018, J.T. filed suit challenging the
hearing officer’s November 27, 2017 determination that the
2017 IEP provided V.T. with a FAPE. The complaint sought a
declaration that DCPS “violated the IDEA and denied her son
V.T. a [FAPE] . . . by failing to develop an appropriate [IEP]”
and an order requiring DCPS to “make the specific changes to
V.T.’s IEP requested by J.T.” J.A. 13. The complaint did not
7
seek retrospective relief—neither tuition reimbursement nor
compensatory education.
The parties filed cross-motions for summary judgment,
which were referred to a magistrate judge. On June 11, 2019,
the magistrate judge issued a report and recommendation
(R&R) that, in relevant part, recommended J.T.’s challenge to
the 2017 IEP was moot. The magistrate judge also
recommended that in the event J.T.’s challenge to the 2017 IEP
was not moot, it failed on the merits. J.T. objected to the R&R
on both mootness and the merits.
On August 1, 2019, the district court concluded that “J.T.’s
claim regarding the November 2017 HOD is moot because the
challenged 2017 IEP already has been modified and no claim
for compensatory education has been made.” J.T. v. District of
Columbia, 2019 WL 3501667, at *2. First, the district court
found that neither of the two forms of relief J.T. sought “would
be effectual as the 2017 IEP no longer governs V.T.’s
education.” Id. at *4. Specifically,
the adequacy of the 2017 IEP is irrelevant
because, as J.T. notes in her objections to the
R&R, V.T. has advanced since the 2017–18
school year. . . . Irrespective of whether J.T. is
right about the 2017 IEP, V.T. is not at the same
level he was two years ago and declaring what
accommodations V.T. needed then has no value
now.
Id. Second, the district court concluded that the voluntary
cessation exception to mootness did not apply because “DCPS
did not cease enforcing the 2017 IEP due to litigation, but
rather because of its annual obligation to reevaluate V.T.’s
educational needs.” Id.
8
Third, the district court concluded that J.T.’s challenge to
the 2017 IEP did not fall within the capable of repetition but
evading review exception to mootness. Id. at *5–6. Although
the district court acknowledged that “conduct challenged under
the IDEA may present a legal issue capable of repetition,” the
IDEA cases J.T. cited “involved a legal question that
transcended the specific facts which prompted the case.” Id. at
*5. In contrast, the district court concluded, fact-dependent
claims based on specific alleged deficiencies in an IEP—like
J.T.’s challenge to the 2017 IEP—did not fall within the
mootness exception for issues capable of repetition, yet likely
to evade review. Id. at *5–6.
J.T. then moved to alter or amend the judgment, raising
allegedly new evidence from an IEP Team meeting held to
draft a 2019 IEP. On September 26, 2019, the district court
denied J.T.’s motion, concluding that:
J.T.’s motion overlooks a critical factor in the
Court’s prior decision: V.T., by the plaintiff’s
own account, is not the same student he was in
2017. Nothing the Court says about whether the
2017 IEP adequately met V.T.’s needs at the
time will benefit the plaintiff as V.T.’s needs
now are different than they were then.
J.T. v. District of Columbia, No. 17-cv-1319, slip op. at 3
(D.D.C. Sept. 26, 2019). J.T. timely appealed the denial of her
motion to alter or amend the judgment.
II. ANALYSIS
We review de novo a district court’s dismissal for lack of
subject matter jurisdiction based on mootness. Schmidt v.
United States, 749 F.3d 1064, 1068 (D.C. Cir. 2014). This case
is moot and does not fall within an exception to mootness
9
because (1) J.T.’s challenge is a fact-specific challenge to
particular provisions in the no-longer operative 2017 IEP, (2)
the 2017 IEP was replaced with a 2018 IEP to which all parties
agreed and (3) J.T. does not seek retrospective relief stemming
from the alleged deficiencies in the 2017 IEP. Accordingly, we
affirm the district court.
A. Mootness
“Article III, Section 2 of the Constitution permits federal
courts to adjudicate only actual, ongoing controversies.”
McBryde v. Comm. to Review Circuit Council Conduct, 264
F.3d 52, 55 (D.C. Cir. 2001) (internal quotations omitted).
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 quotations omitted).
Here, no effective remedy for J.T.’s claim is available
because V.T.’s IEP was revised in July 2018 and thus the 2017
IEP has no operative force. “Critically, J.T. has not sought
retrospective relief for the year that V.T. was educated pursuant
to the 2017 IEP because DCPS funded V.T.’s education for the
2017–18 school year at Kingsbury, which provided V.T. the
educational accommodations that his parents had advocated be
included in the 2017 IEP.” J.T. v. District of Columbia, 2019
WL 3501667, at *4 (citations omitted).1 Instead, J.T. seeks only
1
Notably, J.T. admitted in district court that no injury resulted
from the 2017 IEP she challenges. See Pl.’s Objs. to R&R at 11 n.5,
J.T. v. District of Columbia, No. 17-cv-1319 (D.D.C. Aug. 1, 2019)
(“V.T. was never educated with the lesser accommodations in the
2017 IEP . . . [and that] is why J.T. brought no compensatory
education claim.”).
10
(1) a declaration that the 2017 IEP was inadequate and (2) an
order that DCPS change the 2017 IEP in accordance with J.T.’s
specific requests. Neither of these forms of relief “would be
effectual as the 2017 IEP no longer governs V.T.’s education.”
Id.Seeking to avoid this conclusion, J.T. argues that a
declaratory judgment “will still provide effectual relief to J.T.”
because “[p]rior IEPs help establish a baseline for the
development of future IEPs.” Appellant Br. 16. But where, as
here, a plaintiff “merely attacks an isolated agency action, then
the mooting of the specific claim moots any claim for a
declaratory judgment that the specific action was unlawful,”
unless an exception to mootness applies. City of Houston v.
HUD, 24 F.3d 1421, 1429 (D.C. Cir. 1994). Moreover, the
2017 IEP at issue cannot serve as the baseline for future IEP
negotiations because it has already been replaced by a
subsequent IEP. Specifically, the 2018 IEP replaced the 2017
IEP and all parties agreed to the 2018 IEP. J.T. provides no
legal authority to support her argument that a several-years-old
IEP can be used as a baseline for future IEP negotiations.
Rather, the statutory provision she cites contemplates only that
the current IEP will be reviewed and “revise[d] . . . as
appropriate.” 20 U.S.C. § 1414(d)(4)(A)(ii); see M.C. ex rel.
Mrs. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 67 (2d Cir.
2000) (“Since the IDEA requires a child’s IEP Team to
formulate a new IEP at least every year, . . . the adequacy vel
non of an IEP . . . is to be judged on its own terms.” (internal
citation omitted)). Because the 2017 IEP has been replaced, a
declaratory judgment on its adequacy would provide no
effectual relief.
Accordingly, J.T.’s challenge to the 2017 IEP is moot. The
only question that remains is whether an exception to mootness
applies.
11
B. Voluntary Cessation Exception to Mootness
J.T. first argues that her claim fits within the voluntary
cessation exception to mootness because “DCPS voluntarily
changed V.T.’s accommodations in a later IEP.” Appellant Br.
19. But DCPS did not voluntarily cease the challenged conduct;
the 2017 IEP expired due to the end of the 2016–17 school year.
Thus, the voluntary cessation exception to mootness does not
apply.
We have held that “[t]he voluntary-cessation doctrine has
no apparent relevance” where the “source of
‘cessation’ . . . lies beyond the unilateral legal authority of any
of the named defendants.” Guedes v. ATF, 920 F.3d 1, 15 (D.C.
Cir. 2019) (per curiam). As noted, the IDEA requires a child’s
IEP Team to formulate a new IEP at least every year. See 20
U.S.C. § 1414(d)(4)(A)(i). Thus, the 2017 IEP did not expire
because of DCPS’s conduct but because the 2016–17 school
year ended. See Clarke v. United States, 915 F.2d 699, 705
(D.C. Cir. 1990) (en banc) (“[N]on-reenactment of a one-time
condition that expired of its own terms cannot be viewed as
cessation of conduct. . . . [T]he expiration date of the
[challenged action] was set well before this dispute arose.”).
Accordingly, the voluntary cessation doctrine has no
applicability where, as here, the challenged IEP has been
replaced by a new IEP and the parties have agreed to the terms
in the new IEP.
C. Capable of Repetition but Evading Review Exception
to Mootness
J.T. also argues that the case is not moot because the
capable of repetition but evading review exception to mootness
applies. Although J.T.’s claim meets the evading review prong,
it fails to meet the capable of repetition prong because the
12
challenge focuses on a fact-specific inquiry rather than a
recurring legal question.
The capable of repetition but evading review exception
applies if “(1) the challenged action was in its duration too short
to be fully litigated prior to its cessation or expiration, and (2)
there was a reasonable expectation that the same complaining
party would be subjected to the same action again.” Weinstein
v. Bradford, 423 U.S. 147, 149 (1975) (per curiam); see also S.
Pac. Terminal Co. v. ICC, 219 U.S. 498, 515 (1911)
(announcing exception). The party invoking the exception
bears the burden to show that both elements are satisfied. Del
Monte Fresh Produce Co. v. United States, 570 F.3d 316, 322
(D.C. Cir. 2009).
We examine the “evading review” prong first. “To evade
review, the challenged action must be incapable of surviving
long enough to undergo Supreme Court review.” United Bhd.
of Carpenters & Joiners of Am. v. Operative Plasterers’ &
Cement Masons’ Int’l Ass’n of the U.S. & Can., 721 F.3d 678,
688 (D.C. Cir. 2013). We have 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.’” Jenkins v. Squillacote, 935 F.2d 303, 307
(D.C. Cir. 1991) (quoting Honig v. Doe, 484 U.S. 305, 333
(1988) (Scalia, J., dissenting)) (alteration in original).
Accordingly, J.T.’s challenge to the 2017 IEP meets the
“evading review” prong because the 2017 IEP had a maximum
shelf-life of fewer than four months, that is, from May 3 to
August 23.
Whether the dispute is “capable of repetition” is a closer
question. “This prong requires that the same parties will engage
in litigation over the same issues in the future.” Pharmachemie
B.V. v. Barr Labs., Inc., 276 F.3d 627, 633 (D.C. Cir. 2002).
13
The party invoking the exception must show “a reasonable
degree of likelihood that the issue will be the basis of a
continuing controversy between the[] two parties.” Id. (internal
quotations omitted) (alteration adopted). The relevant inquiry,
however, is not “whether the precise historical facts that
spawned the plaintiff’s claims are likely to recur.” Del Monte,
570 F.3d at 324. Rather, “[t]he ‘wrong’ that is, or is not,
‘capable of repetition’ must be defined in terms of the precise
controversy it spawns,” to wit, “in terms of the legal questions
it presents for decision.” PETA v. Gittens, 396 F.3d 416, 422–
23 (D.C. Cir. 2005).
To determine the precise nature of the alleged wrong, “we
must initially look to [J.T.’s] complaint.” Gittens, 396 F.3d at
423. The complaint alleges that: “On May 3, 2017, DCPS
developed an ‘Amended [IEP]’ for V.T., which IEP is
inappropriate for the following reasons”:
a. it prescribes too large a class;
b. it prescribes too high a student/adult
classroom ratio;
c. it does not prescribe a quiet classroom;
d. it does not appropriately limit classroom
noise;
e. it allows for very noisy fellow students in
the classroom;
f. it does not appropriately limit group sizes
outside of the classroom;
g. it does not appropriately limit the business
[sic] of hallways;
h. it does not prescribe that the student will
attend all specials with the same small group
as his academic class;
i. it does not prescribe teacher supervision of
lunch;
14
j. it does not prescribe a location for
instruction and services.
J.A. 12 (¶ 17) (alteration in original). Plainly, J.T.’s challenge
to the 2017 IEP is fact-specific.
As we have made clear, “a ‘legal controversy so sharply
focused on a unique factual context’ w[ill] rarely present ‘a
reasonable expectation that the same complaining party would
be subjected to the same actions again.’” Gittens, 396 F.3d at
424 (quoting Spivey v. Barry, 665 F.2d 1222, 1234–35 (D.C.
Cir. 1981)). Importantly, if we were to decide now whether the
2017 IEP provided V.T. with a FAPE in 2017, the decision
would not determine whether an IEP provides V.T. with a
FAPE today or in the future.
This conclusion necessarily follows from the IDEA’s
requirement that every IEP include “a statement of the child’s
present levels of academic achievement and functional
performance” and set out “measurable annual goals, including
academic and functional goals.” 20 U.S.C.
§§ 1414(d)(1)(A)(i)(I)-(III) (emphases added); see also
Branham v. District of Columbia., 427 F.3d 7, 12 (D.C. Cir.
2005) (“[D]etermining what constitutes a FAPE will always
require a fact-intensive and child-specific inquiry.”). Indeed,
J.T. has acknowledged that “[t]o the degree that the 2018 IEP
does not include changes [J.T.] originally sought in the 2017
IEP, it is because V.T. had developed during the 2017–18
school year such that he no longer needed those
accommodations.” See Pl.’s Objs. to R&R at 23–24, J.T. v.
District of Columbia, No. 17-cv-1319 (D.D.C. Aug. 1, 2019).
Thus, if a specific issue like class size were to recur, as it
apparently did in the 2019 IEP,2 it would arise in a materially
2
See Reply Br. 9 & n.6. The 2019 IEP prescribed a class size of
six to nine students. J.T. argued for a maximum class size of four
15
different factual context from that presented in the 2017 IEP.3
Accordingly, the precise controversy alleged in J.T.’s
complaint—specific deficiencies in the inoperative 2017
IEP—does not present the type of recurring legal question the
capable of repetition but evading review exception to mootness
was designed to permit.
The Tenth and Seventh Circuits have concluded that
similar fact-specific IEP challenges do not fall within the
capable of repetition but evading review exception to
mootness. See Nathan M. ex rel. Amanda M. v. Harrison Sch.
Dist. No. 2, 942 F.3d 1034, 1041–46 (10th Cir. 2019); Brown
v. Bartholomew Consol. Sch. Corp., 442 F.3d 588, 598–600
(7th Cir. 2006). In Nathan M., the Tenth Circuit concluded that
a parent’s five alleged IDEA violations related to the child’s
2016 IEP were moot. Nathan M., 942 F.3d at 1044–45. By the
time the case reached the Tenth Circuit, a 2019 IEP that
included provisions different from those in the 2016 IEP
governed the child’s education. Id. at 1045. In concluding that
the case was moot, the Tenth Circuit found that “[n]othing in
[the parent’s] briefing hints at a ‘precise controversy’
presenting ‘legal questions’ for our decision.” Id. at 1046
(quoting Gittens, 396 F.3d at 422–23). Instead, the Tenth
Circuit found the parents’ challenges suffered from “fatal
vagueness” and were “fact-specific disagreement[s] unlikely to
recur in a recognizable form in a future IEP.” Id. at 1045.
Accordingly, the Tenth Circuit found that, if it decided the
students, the same position taken by J.T. in the 2017 IEP discussions.
See id. The 2017 IEP set a maximum class size of eight students. J.A.
244. And the 2018 IEP, to which all parties agreed, set a maximum
class size of six students. J.A. 24.
3
For example, V.T.’s 2018 IEP and 2019 IEP include a
designated aide for V.T. for six hours a day, which affects whether
additional children in the classroom would impede V.T.’s academic
progress.
16
parent’s challenge, it would be issuing an advisory opinion that
“would tell the parties who was right about [the child’s] 2016
IEP, but nothing more, thus failing to ensure that future
repetitions of the alleged injury could be avoided.” Id. at 1046
(internal quotations omitted) (alteration adopted). The same
conclusion follows in this case.
Similarly, the Seventh Circuit in Brown addressed a
challenge to the appropriateness of an IEP. Brown, 442 F.3d at
590. By the time the challenge reached the Seventh Circuit, the
parents had agreed to a new IEP for the upcoming school year.
Id. at 590, 596. In determining whether a reasonable
expectation existed that, in the future, the educational agency
would again subject the child to an IEP that allegedly denied
him a FAPE, the Seventh Circuit concluded:
What was right for [the child] in kindergarten
may not be the proper educational program
when he enters the third grade. The dispute over
the 2002–2003 IEP turned on whether [he] was
ready for full-time mainstream class. Now, as a
nine-year old, [his] readiness for mainstream
education presents a different question calling
for reassessment of his educational
development. Were we to decide, at this later
date, whether mainstreaming was right for
[him] back in 2002–2003, we would be issuing,
in effect, an advisory opinion. Our decision
would merely tell the parties who was correct
about [his] outdated IEP. It would do nothing to
define the contours of the parties’ continuing
legal relationship under the IDEA such that
future repetitions of the injury could be avoided.
The case therefore must be dismissed as moot.
17
Id. at 599–600. Nathan M. and Brown provide persuasive
support for the conclusion reached here—J.T.’s fact-specific
challenge to the 2017 IEP does not satisfy the exception’s
capable of repetition prong.
Although J.T. cites United States Supreme Court and D.C.
Circuit cases that have held that conduct challenged under the
IDEA may present a legal issue capable of repetition, those
cases are inapposite. Those cases involved a legal question that
had broader implications for the parties. For example, in Honig,
the Supreme Court addressed whether a school district’s policy
of unilaterally changing a student’s placement because of
behavior growing out of the student’s disability violated the
IDEA’s stay-put provision, 20 U.S.C. § 1415(e)(3). Honig v.
Doe, 484 U.S. 305, 318–23 (1988). The legal question
presented in Honig, therefore, was whether a “dangerousness”
exception should be read into the unequivocal stay-put mandate
in § 1415(e)(3). Id. at 323. This legal question is meaningfully
different from the question J.T. asks us—whether the 2017 IEP
should have included her requested provisions.
Our IDEA cases are similarly inapposite. In Jenkins, we
held that “the degree of specificity required of the District in
providing notice to parents under the IDEA is . . . . reasonably
likely to be a recurring legal question with respect to the
District’s educational plans for the very pupil whose parents
are now before this court.” Jenkins, 935 F.2d at 308. There, the
“case [wa]s not simply about where [the child] would attend
school for the [particular] 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 306.
Similarly, in District of Columbia v. Doe, we concluded that
“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
18
recurring one.’” District of Columbia v. Doe, 611 F.3d 888, 895
(D.C. Cir. 2010) (quoting Jenkins, 935 F.2d at 308). And in
Abney, we found that whether, by statute, the parent must be
notified of certain decisions involving her son was a recurring
legal issue where DCPS “seemed indifferent to [the child’s]
education.” Abney ex rel. Kantor v. District of Columbia, 849
F.2d 1491, 1495–96 (D.C. Cir. 1988). Our “capable of
repetition” precedent in the IDEA context thus authorizes the
review of recurring legal questions arising from the statute. In
contrast, J.T.’s challenge is based on the fact-specific
provisions of her son’s 2017 IEP.
Seeking to avoid the conclusion that this IDEA challenge
does not present a recurring legal issue, J.T. offers three issues
she argues are likely to recur: (1) the IDEA hearing officer
misapplied the burden of proof in the administrative hearing
and that injury is likely to recur; (2) DCPS’s development of
an IEP “that contradicts the recommendations of [V.T.’s]
providers in key areas, without any basis for those
discrepancies,” is likely to recur; and (3) the dispute over the
maximum class size in V.T.’s IEP is likely to recur and did
recur in the 2019 IEP. Appellant Br. 26.
The first two issues were not raised in the complaint. Our
precedent mandates that the assertion of broader injuries than
those alleged in a complaint meet with skepticism in evaluating
mootness, if they are considered at all. Clarke v. United States,
915 F.2d 699, 703 (D.C. Cir. 1990) (en banc) (“[W]here
plaintiffs are resisting a mootness claim we think they must be
estopped to assert a broader notion of their injury than the one
on which they originally sought relief.”). Granted, J.T. made
the burden of proof and IEP development arguments in her
summary judgment brief in district court before the magistrate
judge’s sua sponte mention of mootness. Even if we were to
consider the two arguments, however, the same conclusion
19
follows—in this case, they do not present legal questions
capable of repetition.
Specifically, a key constraint in the 2017 IEP process
(which the hearing officer identified) was that “DCPS was not
permitted to observe” V.T. at Kingsbury. J.A. 323–24
(November 27, 2017 HOD, at 5 ¶ 5). The lack of observation
was central to both issues. The crux of the first issue was that,
because of the lack of observation, DCPS had little direct
evidence that the accommodations J.T. requested were more
restrictive than necessary. In J.T.’s view, the hearing officer
was required to side with the parents under the circumstances.
The second issue is similar. J.T. argues that, because DCPS had
not observed V.T. in a classroom, it was required to include
J.T.’s and Kingsbury’s recommended terms in the IEP.
Subsequent events make clear that this fact-specific
situation is unlikely to recur. DCPS observed V.T. at
Kingsbury twice in December 2017 and all parties agreed to
the 2018 IEP based in part on the data from those DCPS
observations.4 Magistrate Judge R&R at 45–47, J.T. v. District
of Columbia, No. 17-cv-1319 (D.D.C. June 11, 2019).
Moreover, J.T.’s burden of proof argument is highly dependent
on the specific evidence before the hearing officer in 2017.
J.T.’s IEP development argument is similarly dependent on a
specific set of facts. Simply put, resolving these two issues
would “do nothing to define the contours of the parties’
continuing legal relationship under the IDEA.” Brown, 442
F.3d at 599–600. Accordingly, neither the challenge to the
IEP’s development process nor the challenge to the hearing
4
DCPS has received additional information pertinent to V.T.’s
educational needs since 2017, including a comprehensive
psychological evaluation completed in 2019. Appellee Br. 6 n.3, 36.
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officer’s application of the burden of proof presents a recurring
legal question capable of repetition.
The third issue—the appropriate maximum class size for
V.T.—is the only purportedly repetitive issue alleged in J.T.’s
complaint. The appropriate maximum class size is plainly a
factual question, the answer to which is likely to change both
(i) over time in response to V.T.’s development and (ii) in
response to other changes in V.T.’s IEP (e.g., providing a
dedicated aide to V.T.). Accordingly, this dispute is not the
type of legal question that is capable of repetition as it is
“sharply focused on a unique factual context.” Gittens, 396
F.3d at 424 (internal quotations omitted).
For the foregoing reasons, the district court’s judgment of
dismissal is affirmed.
So ordered.