B.D. v. DC

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 11, 2016 Decided March 22, 2016
No. 15-7002
B.D., A MINOR, BY AND THROUGH HIS PARENTS AND NEXT
FRIENDS, ANNE AND BRANTLEY DAVIS, ET AL.,
APPELLANTS
v.
DISTRICT OF COLUMBIA,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cv-00934)
Diana M. Savit argued the cause and filed the briefs for
appellants.
Allen R. Snyder and Jennifer Ancona Semko were on the
brief for amici curiae Children’s Law Center and Council of
Parent Attorneys and Advocates, Inc. in support of appellants.
Richard S. Love, Senior Assistant Attorney General,
Office of the Attorney General for the District of Columbia,
argued the cause for appellee. With him on the brief were
Karl A. Racine, Attorney General, Todd S. Kim, Solicitor
General, and Loren L. AliKhan, Deputy Solicitor General.
2
Before: TATEL and MILLETT, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
Concurring opinion filed by Circuit Judge MILLETT.
TATEL, Circuit Judge: This case concerns a family’s
efforts to enforce a child’s right under the Individuals with
Disabilities Education Act (IDEA) to a “free appropriate
public education,” or “FAPE.” In administrative proceedings,
a hearing officer determined that the District of Columbia
Public Schools (DCPS) had denied the child a FAPE and
ordered limited compensatory education. The parents sued,
challenging the adequacy of the compensatory education
award. They also sought to enforce other portions of the
Hearing Officer’s Decision that were favorable to them, as
well as to require the District to secure a therapeutic
residential placement. The district court granted summary
judgment for the District. For the reasons set forth below, we
affirm in part, reverse in part, and remand for further
proceedings consistent with this opinion.
I.
“Congress enacted IDEA . . . to ensure that all children
with disabilities are provided a free appropriate public
education which emphasizes special education and related
services designed to meet their unique needs [and] to assure
that the rights of [such] children and their parents or guardians
are protected.” Forest Grove School District v. T.A., 557 U.S.
230, 239 (2009) (alterations in original) (internal quotation
marks and footnote omitted). In service of this goal, the
statute requires school districts in states receiving IDEA funds
to provide all resident children, including those requiring
special-education services, with a “free appropriate public
3
education.” 20 U.S.C. § 1412(a)(1)(A); see Forest Grove, 557
U.S. at 232.
Due to a variety of documented learning and other
disabilities, DCPS has provided B.D., the son of Anne and
Brantley Davis, with special-education services since at least
the fall of 2006. In June 2009, B.D.’s new individualized
education plan (IEP) reported substantial regression and
recommended a change from the school he had attended for
three years. For the next two school years, B.D.’s program,
provided outside the school setting, “consisted of 21 hours of
service per week, including tutoring, speech, counseling
services and occupational therapy.” Hearing Officer
Determination (HOD) at 6. In the fall of 2011, B.D. enrolled
at District expense at the Katherine Thomas School, a private
special-education school located in Maryland. Although
B.D.’s 2009 IEP remained his most recent, see id. at 19, the
Katherine Thomas School planned to provide a one-on-one
aide, and, on a weekly basis, 26.5 hours of specialized
instruction, two hours of speech-language therapy, three hours
of occupational therapy, and two hours of counseling.
Problems with this placement quickly became apparent.
After a month or so, the school determined that it was unable
to “meet [B.D.’s] present emotional and behavioral needs.”
Letter from Cathleen Burgess, Katherine Thomas School, to
Ben Persett, DCPS. A report from the school identified issues
including disruptive and unsafe behavior. This report also
provided summaries of B.D.’s academic baselines, though the
precision of these assessments was limited by B.D.’s lack of
cooperation. Record evidence reveals not only that B.D. made
no meaningful educational progress at the Katherine Thomas
School, see Katherine Thomas School Report at 3 (noting that
B.D. participated in only 27% of academic class time), but
also that he regressed in a number of ways. For example, he
4
grew more compulsive and less able to tolerate the amount of
services he had been receiving prior to his stint at Katherine
Thomas. Hearing Tr. at 67–69 (Feb. 29, 2012); HOD at 8.
In October 2011, shortly after B.D. left the Katherine
Thomas School, DCPS held an IEP meeting. Although B.D.’s
mother attended, she chose not to participate because she
believed DCPS lacked sufficient information or assessments
to produce a meaningful IEP. The resulting IEP called for the
same specialized services B.D. had been receiving at the
Katherine Thomas School, all to be provided outside the
general education environment. DCPS also proposed
enrolling B.D. at the Children’s Guild, another private
special-education school.
Objecting to the IEP and proposed placement, the
Davises chose to provide limited in-home tutoring and
occupational therapy at their own expense. Although the
Davises would have liked to provide additional tutoring and
other services—such as psychological counseling—that
B.D.’s IEP called for, they were unable to do so because of a
lack of funds, as well as concerns over B.D.’s ability to
tolerate and benefit from additional services. Hearing Tr. at
65–72 (Feb. 29, 2012).
Meanwhile, the Davises retained a psychologist to
evaluate B.D. After examining the child, the psychologist
expressed a “strong professional opinion that [B.D.] is not
presently ready to be placed in an educational setting.” Report
of Dr. Gladys Sweeney at 5. She recommended that
assessment of B.D.’s needs would be best accomplished in a
“therapeutic in-patient treatment facility, where he can be
observed, and treated.” Id. at 6. A short time later, the Davises
informed DCPS that Meridell Achievement Center, a
residential treatment center in Texas, had accepted B.D. An
5
IEP meeting followed, at which all participants, including
B.D.’s mother, agreed that they needed an updated
assessment. The Davises requested placement at Meridell in
large part to obtain this assessment, but DCPS took the
position that such action was not “on the table right now.” IEP
Meeting Tr. at 40 (Nov. 29, 2011). Instead, DCPS suggested a
referral to the Department of Mental Health to consider
placement at a psychiatric residential treatment facility. This
referral was sent on December 19.
About a month later, frustrated by the lack of progress,
the Davises filed an administrative complaint. See 20 U.S.C.
§ 1415(f) (laying out applicable procedures). After receiving
testimony and documentary evidence, the Hearing Officer
ruled that DCPS had denied B.D. a FAPE from August to
October 2011, which included B.D.’s time at Katherine
Thomas, “by failing to provide [him] with an IEP or an
appropriate educational setting.” HOD at 20. The Hearing
Officer further held that DCPS had continued to deny B.D. a
FAPE for the five-month period beginning with the district’s
adoption of the October 2011 IEP and ending on the date of
the Hearing Officer’s Decision because: (1) “the IEP team did
not rely on sufficient evaluative data” in producing the
October 2011 IEP; (2) the Children’s Guild was not an
appropriate placement for B.D.; (3) the October 2011 IEP
failed to adequately specify B.D.’s current level of academic
performance; and (4) “the goals in the IEP do not contain
baselines and are not measurable.” Id. at 23.
Turning to the question of remedy, and finding that the
Davises had acted appropriately in hiring a tutor and
occupational therapist, the Hearing Officer ordered DCPS to
reimburse the Davises for their costs. Id. at 23–24. He also
awarded B.D. five hours per week of “intensive occupational
therapy” for three months as compensatory education, id. at
6
24–26—a type of remedy aimed at putting a student in the
educational position he would be in absent a FAPE denial.
Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 524
(D.C. Cir. 2005) (describing the standards governing
compensatory education awards). In doing so, the Hearing
Officer credited testimony that the occupational therapy
would help B.D. unlearn some of the negative behaviors that
began or worsened while he was at the Katherine Thomas
School. HOD at 24–26. The Hearing Officer, however,
declined to award further compensatory education in the form
of other services from the same facility, finding that “[n]one
of these services are adequately explained on the record” and
that “[t]here is nothing in the record to indicate how such
services might meet the [applicable] standard of putting the
Student in the same place as he would have been [if] he [had]
not been denied a FAPE.” Id. at 26. The Hearing Officer also
rejected the Davises’ request for a temporary placement at
Meridell.
Acknowledging the need for further assessments, the
Hearing Officer ordered the IEP team to “immediately
reconvene” to “determine which assessments are necessary to:
1) determine antecedents to [B.D’s] behavior in school and
2) . . . develop a behavioral plan that would allow [B.D.] to
attend school.” Id. at 31. The Hearing Officer also ordered the
IEP team to “determine appropriate services for [B.D.] to
receive until assessments are completed,” including “1:1
home instruction for two hours per day, five days a week.” Id.
The Officer ordered that the relevant assessments be
completed within sixty days, and that the IEP team meet
within ten days of their completion “to review the
assessments and create an educational program for [B.D.].”
Id. The Hearing Officer, however, imposed no compensatory
education obligations on DCPS beyond the five hours per
week of occupational therapy for three months.
7
Soon after the Hearing Officer issued his decision, the
IEP team convened and authorized speech-language,
occupational therapy, and social history assessments, as well
as a records-based psychological assessment. DCPS
authorized the Davises to secure the ordered occupational
therapy and tutoring at specified rates. After completion of the
assessments, the IEP team took several actions, including
producing a new IEP, albeit some time after the deadline set
out in the Hearing Officer’s Decision. See generally IEP
Meeting Tr. (June 8, 2012); July 2012 IEP. This IEP called
for placement at a special-education day school, though it
specified no particular location.
Ultimately unable to find a special-education day school
willing to accept B.D., DCPS issued an amended IEP that
included placement at a residential facility. See October 2012
IEP. DCPS subsequently offered B.D. a placement at
Eagleton School, a residential treatment facility, which the
Davises declined because they believed it would not meet
B.D.’s needs. Although the Davises are challenging this
amended IEP in a separate proceeding, they “accept, solely
for purposes of this appeal,” that both it and the proposed
residential placement “were appropriate for B.D.” Appellants’
Br. 24 n.7.
The Davises filed a complaint in United States district
court, which, as amended, contained four causes of action. In
count one, the Davises appealed unfavorable portions of the
Hearing Officer’s Decision, especially the refusal to provide
more compensatory education. In count two, they sought to
enforce favorable portions of the Hearing Officer’s Decision,
which they alleged DCPS had violated in a number of ways,
including by “failing to fully reimburse [them]” for the
tutoring and occupational therapy they provided before the
Hearing Officer’s Decision. In count three, they sought an
8
injunction requiring the District “to find an appropriate
therapeutic residential placement for B.D. and to work with
that facility to develop appropriate educational and treatment
programs for him without further delay” or,
“[a]lternatively, . . . to provide all services B.D. needs while
he awaits completion of an appropriate IEP and a proper
educational and therapeutic placement.” Second Am. Compl.
¶¶ 74–75. And in count four, the Davises requested legal fees
and expenses as partially prevailing parties at the
administrative level. The parties filed cross-motions for
summary judgment, which the district court granted in favor
of the District on the first three counts and in favor of the
Davises on the fourth. B.D. v. District of Columbia, 75 F.
Supp. 3d 225 (D.D.C. 2014).
The Davises now appeal the district court’s judgment on
each of the first three counts.
II.
The Davises first argue that the Hearing Officer’s
Decision, affirmed by the district court, failed to award
sufficient compensatory education. Because the district court
based its ruling on this count entirely on the administrative
record, our review is de novo. Reid, 401 F.3d at 522.
Accordingly, we apply the same standard of review the
district court did in evaluating the Hearing Officer’s Decision,
namely, assessing whether the appealing party has
“persuad[ed] the court that the hearing officer was wrong.” Id.
at 521 (internal quotation marks omitted). This standard is
“less deferen[tial] than is conventional in administrative
proceedings,” and we give “little deference” to “a hearing
decision without reasoned and specific findings.” Id. (internal
quotation marks omitted).
9
When a hearing officer or district court concludes that a
school district has failed to provide a student with a FAPE, it
has “broad discretion to fashion an appropriate remedy,”
which can go beyond prospectively providing a FAPE, and
can include compensatory education. Boose v. District of
Columbia, 786 F.3d 1054, 1056 (D.C. Cir. 2015) (internal
quotation marks omitted). As we held in Reid ex rel. Reid v.
District of Columbia, an award of compensatory education
“must be reasonably calculated to provide the educational
benefits that likely would have accrued from special
education services the school district should have supplied in
the first place.” 401 F.3d at 524. In other words,
compensatory education aims to put a student like B.D. in the
position he would be in absent the FAPE denial.
An appropriate compensatory education award must “rely
on individualized assessments,” and the equitable and flexible
nature of the remedy “will produce different results in
different cases depending on the child’s needs.” Id. In some
cases, the award may consist of “only short, intensive
compensatory programs targeted at specific problems or
deficiencies,” while in others the student may require
“extended programs, perhaps even exceeding hour-for-hour
replacement of time spent without FAPE.” Id. To fully
compensate a student, the award must seek not only to undo
the FAPE denial’s affirmative harm, but also to compensate
for lost progress that the student would have made.
An example might be helpful. Imagine a student who
with the benefit of a FAPE would have learned to add in
month one, multiply in month two, and divide in month three.
If the school system denies her a FAPE in month two in a way
that not only prevents her from learning to multiply, but also
causes her to lose the ability to add, a proper compensatory
education award would both reteach addition and teach
10
multiplication. Moreover, if the award did not issue until the
end of month three, during which the school system had
resumed providing a FAPE and taught the student how to add
and multiply, but not divide, a compensatory education award
aimed at teaching the student to divide would be required, as
that would be the only way to put the student in the position
she would be in absent the FAPE denial.
In this case, the Hearing Officer began by stating the
correct standard—that compensatory education should
“provide the educational benefits that likely would have
accrued from special education services the school district
should have supplied in the first place.” HOD at 24 (citing
Reid, 401 F.3d at 524). Applying that standard, the Hearing
Officer determined that five hours of occupational therapy per
week for three months appropriately compensated B.D. for
one harm he suffered as a result of his FAPE denial—namely,
the negative behaviors that manifested or worsened while he
attended the Katherine Thomas School. As mentioned above,
however, the Hearing Officer declined to award any
additional compensatory education.
In our view, the Hearing Officer’s determination was
inconsistent with proper application of the Reid standard. The
record before the Hearing Officer demonstrated that the FAPE
denial caused B.D. not only to learn or relearn negative
behaviors, but also to fail to make meaningful educational
progress during the FAPE denial period. The report submitted
by the Katherine Thomas School makes clear that B.D. made
little if any progress while there. See Katherine Thomas
School Report at 3 (noting that B.D. participated in only 27%
of academic class time). True, the Davises provided some
tutoring and occupational therapy at their own expense
between the time of B.D.’s departure from Katherine Thomas
and the Hearing Officer’s Decision. But even so, they were
11
unable to afford all of the services that B.D.’s IEP—prepared
by DCPS during this time period—called for, including
psychological counseling and more tutoring. Hearing Tr. at
65–71 (Feb. 29, 2012). It makes little sense to think that the
absence of these services left B.D. no worse off than he would
have been had the District provided them.
Of course, compensatory education awards require a
“flexible approach” tailored to the facts of each case, and, as
we made clear in Reid, a mechanical award of services
identical to those wrongly denied is inappropriate. Reid, 401
F.3d at 524. Nonetheless, in the unique circumstances of this
case, where the record so strongly indicates that the FAPE
denial prevented B.D. from making educational progress, the
Hearing Officer had an obligation either to fashion a
compensatory education program to redress that harm or to
provide an adequate explanation for his decision not to do so.
To return to our math example, the Hearing Officer’s award
was equivalent to reteaching addition, but failing to teach
either multiplication or division.
Without much explanation, the Hearing Officer
concluded that nothing in the record indicated how certain
other services “might meet the Reid standard” and, for reasons
inapplicable to an award of compensatory education, rejected
a temporary placement at Meridell. HOD at 26–29. Critically,
however, the Hearing Officer failed to address the broader
question of how to put B.D. in the educational position he
would be in but for the FAPE denial. The Decision’s lack of
reasoned explanation for its implicit conclusion that B.D. was
only minimally harmed by the FAPE denial means that we
owe it “little deference.” Reid, 401 F.3d at 521.
We recognize, of course, the difficulty inherent in
figuring out both what position a student would be in absent a
12
FAPE denial and how to get the student to that position. We
also understand that B.D.’s out-of-date and incomplete
assessments exacerbated these difficulties. Indeed, the
Hearing Officer agreed that new assessments were “necessary
to determine an appropriate educational program for [B.D.].”
HOD at 29. But, contrary to the District’s suggestion that the
Hearing Officer viewed these assessments as precursors to a
more extensive compensatory education award, see
Appellee’s Br. 28–29, the Hearing Officer actually appeared
to see them as informing only the measures that DCPS would
have to take to prospectively provide a FAPE. Nothing in the
Hearing Officer’s Decision required updating or
supplementing the compensatory education award upon
completion of the new assessments. See HOD at 31.
Accordingly, the Davises have met their burden of
demonstrating that the Hearing Officer, affirmed by the
district court, was “wrong,” see Reid, 401 F.3d at 521, as he
failed to award sufficient compensatory education to put B.D.
in the position he would be in absent the FAPE denial. We
shall thus reverse the district court’s grant of summary
judgment to the District on this count. On remand, the
ultimate goal will be not merely to restore B.D. to the position
he was in prior to the FAPE denial in August 2011, nor even
merely to put him where he would have been in March 2012,
the end of the FAPE denial period at issue here. Rather, the
district court must either fashion a compensatory education
award that seeks to put B.D. in the educational position he
would be in at the time of the new award had the District not
denied him a FAPE from August 2011 to March 2012 or
remand to the Hearing Officer with instructions to do so. See
id. at 526 (indicating that on remand, the district could either
“fashion an appropriate compensatory remedy” or “determine
that the ‘appropriate’ relief is a remand to the hearing officer
for further proceedings”).
13
In carrying out the complicated work of fashioning such a
remedy, the district court or Hearing Officer should pay close
attention to the question of assessment. Assessments
sufficient to discern B.D.’s needs and fashion an appropriate
compensatory education program may now exist. But it may
also well be that further assessments are needed. If so, the
district court or Hearing Officer should not hesitate to order
them, including, if appropriate on the updated record,
assessment at a residential treatment facility. Cf. id. at 522(explaining that compensatory education awards may include
services that would not ordinarily be available under IDEA,
such as education beyond age 21).
III.
This brings us to the Davises’ effort to enforce the
favorable portions of the Hearing Officer’s Decision. Among
other things, the Davises complain that the District failed,
contrary to the Hearing Officer’s order, to reimburse them for
all of the tutoring and occupational therapy they provided for
B.D. prior to the decision. The District contends that the
Davises have failed to point to any statutory basis for an
enforcement cause of action. The Davises insist that several
such statutory bases exist, but they have forfeited two of
them: (1) that 42 U.S.C. § 1983 provides an enforcement
cause of action, see also Amicus Br. 19–23 (making the same
argument), and (2) that an enforcement cause of action may
be implied from IDEA as a whole. Indeed, because the
Davises presented these arguments neither to the district court
nor to this court in their opening brief, they have forfeited
them twice over. American Institute of Certified Public
Accountants v. IRS, 804 F.3d 1193, 1199 (D.C. Cir. 2015)
(failure to present argument to district court); American
Wildlands v. Kempthorne, 530 F.3d 991, 1001 (D.C. Cir.
2008) (failure to present argument in opening brief); see also
Narragansett Indian Tribe v. National Indian Gaming
14
Commission, 158 F.3d 1335, 1338 (D.C. Cir. 1998) (declining
to consider an argument raised only in an amicus brief). We
thus reserve the question of their validity for a later case.
We turn, then, to the Davises’ primary preserved
argument: that a particular provision of IDEA—20 U.S.C.
§ 1415(i)(2)(a)—provides a cause of action to enforce a
favorable hearing officer decision. That provision grants
“[a]ny party aggrieved by the findings and decision” of a
hearing officer “the right to bring a civil action . . . in any
State court of competent jurisdiction or in a district court of
the United States, without regard to the amount in
controversy.” Since 2004, IDEA has also included a
limitations provision for actions brought under section
1415(i)(2)(A). Specifically, “[t]he party bringing the action
shall have 90 days from the date of the decision of the hearing
officer to bring such an action, or, if the State has an explicit
time limitation for bringing such action . . . , in such time as
the State law allows.” Id. § 1415(i)(2)(B).
The District has a very different view of section
1415(i)(2)(A). Focusing first on the statute’s plain text, the
District argues that a plaintiff trying to enforce a hearing
officer’s decision cannot be said to be “aggrieved by the
findings and decision.” The District also points out that the
statute of limitations runs from the time of the hearing
officer’s decision, which suggests that the cause of action was
intended to reach defects only in the decision itself, not in its
implementation.
The Davises and amici contend that the District’s reading
of section 1415(i)(2)(A) would undermine IDEA’s purpose of
ensuring a FAPE for all students. In particular, they argue that
the District’s interpretation would produce an anomalous
result: families that lose in administrative proceedings could
15
obtain judicial review and court enforcement of any resulting
court order under the court’s inherent power to enforce its
decisions, but families that win before a hearing officer could
not.
Both sides find some support in the case law. The District
points to Robinson v. Pinderhughes, 810 F.2d 1270, 1275 (4th
Cir. 1987), in which the Fourth Circuit held that a party
seeking to enforce a hearing officer’s decision was not
aggrieved by that decision and thus could not bring a claim
under an identically worded predecessor of section
1415(i)(2)(A), although it did permit the enforcement action
to go forward under an alternative theory. This Court,
moreover, has twice suggested in dicta that parties seeking
enforcement cannot proceed under section 1415(i)(2)(A) or its
predecessor because they are not “aggrieved by the findings
and decision.” Blackman v. District of Columbia, 456 F.3d
167, 172 n.6 (D.C. Cir. 2006) (“Because the appellees were
either ‘prevailing parties’ at the administrative level or had
reached private agreements with the DCPS, they had no IDEA
cause of action. See 20 U.S.C. § 1415(i)(2) (limiting IDEA
cause of action to ‘[a]ny party aggrieved . . . .’)”); Moore v.
District of Columbia, 886 F.2d 335, 337 (D.C. Cir. 1989)
(“None of the appellees was a ‘party aggrieved’ by the
administrative decision in these cases, since all the appellees
prevailed in those proceedings.” (citing Pinderhughes)),
vacated on other grounds, 907 F.2d 165 (D.C. Cir. 1990) (en
banc).
For their part, the Davises point to more recent circuit
court decisions that allowed enforcement claims to proceed
under section 1415(i)(2)(A). Most notably, the First Circuit so
held in Nieves-Márquez v. Puerto Rico, 353 F.3d 108, 115–17
(1st Cir. 2003), as did the Third Circuit in D.E. v. Central
Dauphin School District, 765 F.3d 260, 276–78 (3d Cir.
16
2014). Both relied heavily on purpose arguments similar to
those the Davises offer here. Moreover, other circuit courts
have taken a similar approach in dicta or in cases where the
question was not squarely presented. E.g., Porter v. Board of
Trustees of Manhattan Beach Unified School District, 307
F.3d 1064, 1069 n.7 (9th Cir. 2002) (“Nor do the parties
dispute that the IDEA’s right of action provides a proper
means to enforce a due process hearing order . . . .”).
The purpose arguments that the Davises and amici
advance and that the First and Third Circuits accepted have
some real force. Nonetheless, the statutory text and structure
persuade us that section 1415(i)(2)(A) provides no
enforcement cause of action. See Hartford Underwriters
Insurance Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6
(2000) (“[W]hen the statute’s language is plain, the sole
function of the courts—at least where the disposition required
by the text is not absurd—is to enforce it according to its
terms.” (internal quotation marks omitted)). Section
1415(i)(2)(A)’s plain text refers not simply to an “aggrieved”
party, but to one aggrieved “by the findings and decision” of a
hearing officer. 20 U.S.C. § 1415(i)(2)(A). One who wins
before a hearing officer is not “aggrieved” by the hearing
officer’s decision.
The statute of limitations confirms this reading, as the
limitations period runs from the issuance of the hearing
officer’s decision, not from the moment of noncompliance.
This is especially telling because such decisions often require
more than ninety days to implement. And even when
noncompliance occurs within ninety days, it may well take
some time to discover. Given this, we doubt very much that
Congress intended section 1415(i)(2)(A) to provide an
enforcement cause of action. Odd as it may seem for the
statute to lack such a cause of action, it would be even odder
17
for Congress to have created one but limited it to violations of
hearing officer decisions that both occur and are discovered
within ninety days. Although the District made this precise
point in its brief, the Davises failed to respond in theirs.
Asked about the issue at oral argument, counsel for the
Davises recognized that “compliance might or might not
occur within . . . ninety days,” but contended that this means
that the statute of limitations simply does not apply to
enforcement suits. Oral Arg. Rec. 5:01–5:24. The statute of
limitations, however, applies to “[t]he party bringing the
action,” with no indication that different kinds of actions are
treated differently. 20 U.S.C. § 1415(i)(2)(B).
Notably, moreover, IDEA did not contain this statute of
limitations when the First Circuit held that parties seeking
enforcement were “aggrieved by the findings and decision.”
See Nieves-Márquez, 353 F.3d at 115–17. Nor did the Third
Circuit consider the statute of limitations when it followed the
First Circuit’s lead. See D.E., 765 F.3d at 276–78.
The Davises criticize the District’s plain meaning
argument as inconsistent with the principle expressed in King
v. Burwell that courts should not interpret statutes “to negate
their own stated purpose.” 135 S. Ct. 2480, 2493 (2015)
(internal quotation marks omitted). But in King, the Supreme
Court looked to the “broader structure of the Act” only
“[a]fter reading [the relevant language] along with other
related provisions” and finding “that the text is ambiguous.”
Id. at 2492. Here, as noted above, far from making the text
ambiguous, the most related provision—the statute of
limitations—only reinforces its plain meaning.
Moreover, we are unconvinced that our conclusion that
section 1415(i)(2)(A) provides no enforcement cause of
action necessarily leaves families like the Davises without a
18
viable route to relief in federal court. Indeed, although the
argument that section 1983 provides an enforcement cause of
action is forfeited in this case, some courts have accepted it,
compare, e.g., Mrs. W. v. Tirozzi, 832 F.2d 748, 755 (2d Cir.
1987) (accepting the theory), with, e.g., A.W. v. Jersey City
Public Schools, 486 F.3d 791, 803 (3d Cir. 2007) (en banc)
(rejecting it), and its viability remains an open question in this
circuit, see Blackman, 456 F.3d at 172 n.6 (reserving the
question and “assum[ing], without deciding, that [such]
section 1983 actions are cognizable”). Likewise, we are aware
of no decision specifically foreclosing an IDEA enforcement
suit premised on an implied cause of action.
The Davises’ second preserved argument requires much
less attention. They claim that the general federal question
jurisdiction statute, 28 U.S.C. § 1331, gives the district court
jurisdiction over their enforcement suit. That is true as far as it
goes, as the District concedes. The problem with the Davises’
suit, however, is not a lack of jurisdiction. Rather, it is that
they have failed to identify a cause of action, a problem this
jurisdictional statute in no way helps them solve.
We thus hold that neither section 1415(i)(2)(A) nor
section 1331 provides a cause of action for parents seeking to
enforce a favorable hearing officer decision. We leave for
another day the viability of the alternative bases for such a
cause of action.
IV.
Finally, the Davises challenge the district court’s
judgment for the District on count three of their second
amended complaint. This count, which the Davises labeled
“Injunction,” requested an order requiring the District “to find
an appropriate therapeutic residential placement for B.D. and
to work with that facility to develop appropriate educational
19
and treatment programs for him without further delay” or,
“[a]lternatively, . . . to provide all services B.D. needs while
he awaits completion of an appropriate IEP and a proper
educational and therapeutic placement.” Second Am. Compl.
¶¶ 74–75. The district court reasoned that this count became
moot because “B.D. has an updated and appropriate IEP that
was completed in October 2012, recommending that he be
educated in a therapeutic residential facility” and “the District
has located an appropriate therapeutic residential facility that
has accepted B.D. and is capable of implementing his current
IEP.” B.D., 75 F. Supp. 3d at 231–32. And indeed, the
Davises have “accept[ed], solely for purposes of this appeal,
the district court’s comment that both the October 2012 IEP
and the April 4, 2014 acceptance by a residential school (the
Eagleton School) were appropriate for B.D.” Appellants’ Br.
24 n.7.
The Davises insist that despite these concessions, count
three remains live because it should be read together with
count two, which seeks compliance with the Hearing
Officer’s Decision more generally. As the Davises correctly
point out, in summarizing the relief they sought, the district
court grouped those two counts together. B.D., 75 F. Supp. 3d
at 229. But in finding that count three had become moot, the
district court neither foreclosed relief under count two (which,
as discussed above, failed for the independent reason that the
Davises advanced no viable enforcement cause of action), nor
spoke to compensatory education more broadly. Rather, it
merely held that the request for an injunction—the only relief
count three specifically sought—had become moot. Because
this is correct, we shall affirm the district court’s judgment on
count three.
20
V.
For the foregoing reasons, we reverse the district court’s
grant of summary judgment to the District on count one and
remand for either the district court or Hearing Officer to
fashion a compensatory education award aimed at putting
B.D. in the educational position he would be in had the
District provided him a FAPE from August 2011 to March
2012. We affirm the district court’s judgment for the District
on counts two and three.
So ordered.
MILLETT, Circuit Judge, concurring: I join Judge Tatel’s
opinion for the Court in full, including the holding that 20
U.S.C. § 1415(i)(2)(A) does not provide a cause of action to
enforce school district compliance with a hearing officer’s
decision. As the opinion explains, the Davises are aggrieved
by the District’s actions, not any “findings [or] decision” by
the Hearing Officer, id.The opinion notes that refusing to recognize an atextual
cause of action under Section 1415(i)(2)(A) may not leave
parents without a route to relief when school districts fail to
adhere to hearing officer decisions because there might be a
cause of action under 42 U.S.C. § 1983, or perhaps even an
implied cause of action under the IDEA itself. See Slip Op.
18. I write only to note that the United States Department of
Education, which has responsibility for the federal
administration and enforcement of the IDEA, see 20 U.S.C.
§ 1412(d), 1416(a), 1406(d)–(f), has identified a third
possible avenue for enforcing a hearing officer’s decision.
See Brief for the United States as Amicus Curiae 13–14,
Porter v. Board of Trustees of Manhattan Beach Unified
School District, 307 F.3d 1064 (9th Cir. 2002) (No. 01-
55032). Under the IDEA, any “matter relating to the
identification, evaluation, or educational placement of the
child, or the provision of a free appropriate public education
to such child” can be the basis of a due process complaint and
hearing. See 20 U.S.C. § 1415(b)(6) & (f)(1). In the federal
government’s view, a school district’s failure to comply with
a hearing officer’s decision is such a matter. Thus, according
to the Department of Education, parents facing a lack of
compliance might be able to bring another due process
complaint to enforce the prior decision and, if necessary, seek
judicial review of any denial of needed relief in that
proceeding.