Lesesne ex rel. B.F. v. District of Columbia

Decision Date19 May 2006
Docket NumberNo. 05-7123.,05-7123.
Citation447 F.3d 828
PartiesLakeisha LESESNE, As Parent of B.F., of Minor, Appellant v. DISTRICT OF COLUMBIA and Elfreda Massie, Interim Superintendent, District of Columbia Public Schools, Appellees.
CourtU.S. Court of Appeals — District of Columbia Circuit

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.

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.


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 an IEP, which is the "primary vehicle" for implementing the Act. Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (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 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:

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 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).


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.


Lesesne argues that this case is not moot because "effectual relief [i]s possible." Pet. Br. at...

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