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Case number 14-7086, Latonia Boose, appellate versus District of Columbia.

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Mr. Tirka for the appellant, Mr. Love for the appellee.

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Good morning.

[00:00:12] Speaker 00:
Good morning.

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May it please the court.

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I'm Douglas Tirka.

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I represent the plaintiff below and appellant here, Ms.

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Boose.

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With me at the table is Nick Ostrom, co-counsel who also represented Ms.

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Boose before the district court and before that at the administrative level.

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It is clear that a case is only moot if no effectual relief is available to the court.

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And in fact, this court held in the same that a case is not moot where compensatory education has been sought and remains outstanding.

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In this case, the court has available to it at least four kinds of relief that would affect compensatory education.

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The first is a declaratory judgment.

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Even in the absence of any substantive relief, the court may find that AG, the student, was denied faith by DCPS.

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And that finding would... Was denied a fair... Fair appropriate public education.

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The court may find that AG with denied faith

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And that would affect Ms.

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Booze's ability to bring a future case for compensatory education, at which point she could develop the record for a specific compensatory education relief.

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And she would need that in order to bring a new case?

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Certainly, yes.

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What I'm getting at, in other words, according to the brief, the city or the public schools has now agreed to pay for all this additional testing.

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And for all I know, it's been completed.

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And so if she were to challenge the adequacy of that or the adequacy of whatever Public Schools comes up with or doesn't come up with as a result of that, she could just go into court again, right?

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She can certainly go into challenge her existing program.

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No, I'm talking about she's, I just need to understand what's happening.

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When I read the brief, I thought this is a case where it's been overtaken by events.

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Um, and,

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I'm just trying to understand, if you were the district court and you got this back, what would you do?

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So the district court would look at this, and as compared to the relief originally sought at the administrative level, the evaluations have been done.

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That's correct.

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An IEP has been developed.

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That's correct.

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What has not been addressed is compensatory education, if any, for that period before which the district did that.

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So is it that the district court failed to make a finding on that?

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The district court failed to make a finding on that correct on whether DCPS had failed in its responsibilities and the district court failed to issue, to make any relief.

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Because a declaratory judgment is not the only thing that still remains available to the district court or to this court.

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The court can also order, as was requested by Ms.

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Booze, funding for an independent compensatory education evaluation.

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I thought the brief said

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public schools have already agreed to pay for that?

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No, the public schools have paid for the basic evaluations of the student that they do as a matter of course.

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So there's an evaluation called the psychoeducational evaluation, which... So what more is Mrs. Boo seeking?

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Well this would, so in her original complaint she asked for the declaratory judgment and one of a couple of kinds of relief.

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There could be funding for an independent compensatory education evaluation.

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So that is an evaluation specifically designed to determine what harm had befallen H.E.

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as a result of these violations.

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So suppose, so just

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take a lot of it and just say practically, the differences between forward-looking relief and backward-looking relief.

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And for backward-looking relief, I get that you want an evaluation to see what the backward-looking relief should be, but what are we talking about?

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What is the kinds of backward-looking relief that can be issued in a situation in which somebody makes a determination that a compensatory relief is warranted?

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The shape of that relief can be all kinds of things.

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Sometimes it's very obvious things like tutoring and where there have been related services missed.

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There'll be makeup services for occupational therapy or things like that.

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So when we speak in those terms, I assume that the forward-looking really also involves tutoring and occupational services.

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But the forward-looking relief resolves the child's current situation as of the moment that relief is presented.

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Reid addresses exactly this point and says, and addresses that argument and says, we understand that the IEP is supposed to help the child as a child is.

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That is not the same as compensatory education.

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And we cited the relevant portion of Reid in there.

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I know, but we just, well, I can't speak for the other judge, but I just want to be clear.

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The record before the district court was

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that an IEP had been developed, the evaluations had been done, and at least there were notes.

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I'm sorry, at least there were?

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Notes, N-O-T-E-S, from someone involved saying that a compensatory education was not needed.

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there was evidence that the child is functioning at his then current grade level.

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And so the district argues, even as I read it, even if it was error to rule that the matter was moot, Mrs. Booz has failed to meet her burden to demonstrate that she can survive summary judgment.

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And what's your response on that?

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Well, as the district court saw it, there had been the evaluations done.

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The IEP had been developed.

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To say that there was a record that everything was therefore fixed is not the case.

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There was a conclusion by the district court.

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The district court deduced that because the IEP had not been challenged with a new hearing, that everything was therefore OK.

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But there's a big difference between challenge and IEP

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you know, as it exists going forward and challenging... That means I can give you a hypothetical case.

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A mother is very concerned about her child because the child is acting out, he's getting into fights, etc.

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The child ages, all right?

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The city does an evaluation.

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It decides the child needs some tutoring.

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The child, according to the school's evaluations,

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is doing better.

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He's focusing more, concentrating, etc., and he's functioning at his grade level.

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So at that point the question is, does anybody have a burden to do anything to show that something is missing?

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I mean, I just want to understand that part of it.

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If the district did its evaluation and determined that the child did not need special education, the child was not even eligible, the child was completely fine.

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No, the city has, in my hypothetical, come up with this IEP.

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So the child is getting that aspect of the statutory relief that you seek.

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And you're saying there are four kinds of relief.

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that you can still seek that would be meaningful.

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And one is this declaratory judgment.

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And so we explored that.

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What's the second?

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The second relief would be, along with that finding, would be to order funding for an independent evaluation of what compensatory education would be appropriate.

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That is, what would make up for the past time.

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And so she has no burden at summary judgment.

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I just want to be clear.

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Because she has this statutory right.

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She has a burden at summary judgment to show that there was a deprivation.

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Of what?

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Of that the school system failed to meet its obligations.

[00:08:17] Speaker 04:
Is the difference, maybe I can help this, is the difference between Judge Rogers' hypothetical and this case, that in this case, the district, as compared to her hypothetical, which as I understood, the district identifies a student, develops an IP and provides special ed.

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In this case, as I understand it, you're arguing that the DCPS failed to identify this child two years earlier, correct?

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A year and a half earlier.

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A year and a half earlier.

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And that's what this is all about, right?

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In other words, the child has the IEP, a legal IEP for whatever condition AG is operating under now.

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Your point is that

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the district failed to identify the child a year and a half ago, correct?

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Absolutely.

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And under read, it has to provide compensatory education for that failure.

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That's the difference between this case and Judge Rogers' hypo, right?

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Exactly.

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OK.

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So back to my hypo.

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The two years earlier, is it that you say you want the district court to enter a declaratory judgment as to this year and a half?

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You want the district court to order the city to do this evaluation?

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To fund an evaluation.

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To fund the evaluation.

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And you say that that footnote in the brief that they've already agreed to do that is not what you're seeking.

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And where do you identify what you are seeking?

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So those are different evaluations.

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That's what you tell me.

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Where have you identified that it is different from what you say you want now?

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In the due process complaint in the original administrative record, I believe in this case Mr. Ostrom had a section separately that said compensatory education and requested in the alternative either in a value – I think I'm over time.

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May I finish my answer?

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Of course.

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As in the alternative that they send the issue to a new meeting,

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to determine compensatory education or fund independent compensatory education evaluation.

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And so my question is, you have said that what the city has agreed to fund is not the evaluation you're seeking.

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And what is it you're seeking?

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An evaluation to determine appropriate compensatory education for those 18 months.

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You know, we're going around in circles here.

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In other words,

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You say, or you just said here, that the evaluation the city has agreed to fund is what they do for every child normally.

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Correct.

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And what your client wants is something different.

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And what is that difference?

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And did you tell the district court what that difference was?

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Yes, so in the federal complaint that went to the district court, on the first page of it, where Mr. Austin declared the relief sought, there is a request for, I believe you identified specifically, a cycle educational evaluation and an evaluation for ADHD.

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So is it that the evaluation the city did not address the one and a half year period?

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Correct.

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The evaluation the city did was not geared to determine what harm had befallen AG in the 18 months and what would remedy that harm.

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The evaluation was designed solely to determine what AG needed going forward.

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And we know this because?

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Because there was no indication in that evaluation that it was for that purpose.

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And so it's the failure of the district court to make the finding regarding this that is the error?

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is the failure of the district court to determine whether AG had denied faith for those 18 months, one, to order either, as I said, the declaratory judgment, the funding for the evaluation.

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So the District of Columbia files a motion for summary judgment.

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And I just need you to tell me what it is your client had to show at that point.

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Is it just

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that there is no document saying we have done the necessary evaluations within one year, one and a half years, and we find that nothing more is needed?

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What we had to show at that point was the absence of any evaluation for that 18 months, which was conceded.

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We had to show the evidence that AG was a child suspected of having a disability, which triggers a responsibility.

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So the city says we have a note saying that a determination was made that compensatory education was not necessary.

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And did you challenge that?

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Yes, absolutely.

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And that was challenged with two affidavits from people present.

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And I'll note that the city's evidence was not backed by anything.

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It was just a blank form document of notes.

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Right.

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So as I remember, one of the affidavits, the person said, I was at the meeting and there was no discussion.

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Correct.

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They both said that, yes.

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We also pointed out in our brief that even had the discussion occurred, that discussion would not move the case because the relief requested was not any discussion, but of course, a discussion that resulted in appropriate determination.

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In other words, the district court could have disagreed and said, I find that compensatory services are warranted.

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Exactly.

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The district court ordered that determination to be an appropriate determination.

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A determination was made, and Ms.

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Boots disagreed with it.

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She could come back, and it would be essentially a motion for contempt.

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But it would be the challenge then.

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All right, thank you.

[00:14:03] Speaker 02:
Thank you.

[00:14:18] Speaker 05:
Ms.

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Boozer's complaint here appealed the hearing officer's decision that DCPS did not fail to provide an appropriate public education by not having evaluated AG prior to the time that it did.

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That appeal, that decision was appealed to the district court by the time the

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appeal was taken to the district court.

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AG had been evaluated by DCPS and indeed three days after the complaint was filed in the district court an IEP was developed.

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But you've heard our discussion with Appellant's Council.

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What's your response?

[00:15:05] Speaker 04:
Well, let me just focus the question, let me just try to focus that question and get to the heart, what I think is the heart of this case.

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You're right, there's an IEP in place.

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But in the administrative complaint and in the district court, AG's mother asks for compensatory education.

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Everybody agrees that the IEP does not include compensatory education.

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So why is the case moot?

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That's the only issue before us.

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How can the case possibly be moved?

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Maybe he's not entitled to compensatory education, but the question of whether he's entitled is not moved.

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Because the IP doesn't include compensatory education.

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He sought it.

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The context of this complaint is a claim for compensatory education is premature.

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He sought a claim.

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He sought a... Premature for what?

[00:16:05] Speaker 04:
I don't understand.

[00:16:05] Speaker 05:
Premature because he was seeking what he challenged in the hearing office.

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Do you agree that the administrative complaint sought compensatory education?

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That is, the argument was that this child should have had an IEP since kindergarten, right?

[00:16:24] Speaker 04:
I mean, since first grade.

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That's the administrative complaint.

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Same thing in the district court complaint.

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DC responded with a regular IEP, and under read, that's not sufficient, or it may not be sufficient.

[00:16:42] Speaker 05:
Right.

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So I get your argument.

[00:16:44] Speaker 05:
Well, under Reed, the court also said that, as I understand it, you know that- Reed says that IEPs are forward-looking.

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That's correct.

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And they're designed under Raleigh to provide some educational benefit.

[00:17:01] Speaker 04:
But it also said- But because- I'm sorry.

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Well, you go ahead and finish.

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What does it say?

[00:17:05] Speaker 05:
I thought it also said that comp ed was dependent on a deficient IEP.

[00:17:10] Speaker 04:
No, it doesn't.

[00:17:10] Speaker 04:
Really?

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Where does it say that?

[00:17:13] Speaker 04:
I mean, all it says, as I read it, is that a normal IEP, even a, that a perfectly adequate IEP, a perfectly adequate IEP does not, an IEP is not deficient because it doesn't include compensatory education.

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An IEP is designed to provide some educational benefit under WALL-E.

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But the question under Reid is whether or not the district is also obligated to provide compensatory education for failing to comply with the fine requirements of the act.

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And that's what Reid says.

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Reid says we hold that here,

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It says, we join our sister circuits and hold the compensatory education awards comfortably within the broad discretion of the district courts, fashioning remedies.

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And that's because IEPs aren't sufficient, by definition, to compensate for the district's failure to identify the child a year and a half earlier.

[00:18:32] Speaker 05:
Maybe I phrased it wrong.

[00:18:33] Speaker 05:
I think it says it's a prospective correct

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with defying Comp Ed as a prospective correction of a deficient IEP, the court here reasonably inferred since the parent never challenged in seven months the IEP that it wasn't deficient.

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But I understand the court's point.

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But just tell me, why is it moot?

[00:19:01] Speaker 04:
I mean, if you wanted to argue about whether or not AG was entitled to compensatory education, it's a different question.

[00:19:09] Speaker 04:
But it just explained to me,

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It's very simple.

[00:19:13] Speaker 04:
One, she sought compensatory education for failing to identify the child earlier.

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Two, DC has an IEP that does not include compensatory education.

[00:19:28] Speaker 04:
Why is the case moot?

[00:19:31] Speaker 04:
That's what I don't understand.

[00:19:33] Speaker 05:
I understand, and all I can say is, as we tried to set out in the brief, that the complaint here is, in the context of this complaint, is either premature or too speculative.

[00:19:45] Speaker 01:
And when you say too speculative, I don't understand what you mean by premature, because that doesn't sound like mootness, but when you say speculative, it seems like what you're saying is,

[00:19:55] Speaker 01:
the claim is not meritorious, that it's speculative because it's unlikely that compensatory relief, in fact, is warranted.

[00:20:02] Speaker 01:
But that doesn't go to mootness.

[00:20:04] Speaker 01:
That just goes to whether there's an entitlement to prevail in summary judgment.

[00:20:09] Speaker 05:
Yeah.

[00:20:10] Speaker 05:
I understand.

[00:20:10] Speaker 05:
I think it does certainly get into the facts of this case.

[00:20:20] Speaker 05:
And we did argue, alternatively, that on this record,

[00:20:24] Speaker 05:
Ms.

[00:20:26] Speaker 05:
Boos did not meet her obligation to support her claim for summary judgment for a comprehensive education.

[00:20:36] Speaker 01:
Which is a summary judgment argument.

[00:20:37] Speaker 05:
It is a summary judgment argument, but we raised that and we do believe on this record

[00:20:42] Speaker 05:
You know, it's quite clear that Ms.

[00:20:46] Speaker 05:
Boos did not support her claim at all.

[00:20:49] Speaker 05:
But I think the record is clear.

[00:20:53] Speaker 05:
Ms.

[00:20:54] Speaker 05:
Boos in her reply brief says that she doesn't have to because

[00:20:59] Speaker 01:
you know, the claim here was that... Can I just ask you, just before you go on to the summary judgment argument, just to clarify the mootness argument, it sounds like you acknowledge that the mootness argument that you put forward and that the district court accepted is bound up with merits of whether summary judgment should be granted.

[00:21:17] Speaker 05:
Well, well,

[00:21:19] Speaker 05:
Yeah, I think much of the argument is tied into the facts of this case.

[00:21:26] Speaker 05:
But I do believe that what

[00:21:38] Speaker 01:
Yes.

[00:21:38] Speaker 01:
Could you make all the... Maybe I can ask a question this way.

[00:21:41] Speaker 01:
If we were to say that it was erroneous to dismiss the case on witness grounds, but then remand for an opportunity for you to make the exact same summary judgment arguments that you're making now, you'd have an opportunity then to make your case.

[00:21:56] Speaker 05:
Yes.

[00:21:56] Speaker 05:
And the district court would have to address... I mean, you can't jump right to comp-ed.

[00:22:01] Speaker 05:
For there to be comp-ed, there has to be a violation of faith.

[00:22:04] Speaker 05:
The hearing officer found that there was... But you can make all those arguments.

[00:22:08] Speaker 04:
You can make all those arguments in the district court.

[00:22:11] Speaker 04:
That would be the merits, wouldn't it?

[00:22:13] Speaker 05:
Yes, it would.

[00:22:15] Speaker 05:
But what I was moving on to was the argument that we raised alternatively and that the record here is that there is no evidence supporting the comp ed claim.

[00:22:25] Speaker 05:
What Ms.

[00:22:26] Speaker 05:
Boos argues in reply is she didn't need to make that, she didn't need to support her comp ed claim because her complaint was that DCPS failed to evaluate the student as required by

[00:22:42] Speaker 05:
idea, it seems to me you can't have it both ways.

[00:22:47] Speaker 04:
But it's the district's obligation under the law to provide, to identify the children, evaluate them and provide the program.

[00:22:57] Speaker 04:
And here DC, here it's obvious from the record that the child was not identified and served beginning in first grade.

[00:23:08] Speaker 05:
So that's not what the hearing officer found.

[00:23:12] Speaker 05:
The hearing officer found that he was at grade level.

[00:23:15] Speaker 05:
There was some behavioral and academic adjustments in both kindergarten and the beginning of first grade.

[00:23:21] Speaker 04:
And she's challenging that.

[00:23:22] Speaker 04:
And she challenged that.

[00:23:25] Speaker 04:
Right.

[00:23:25] Speaker 04:
And maybe the administrative law judge is right.

[00:23:28] Speaker 04:
But the only question before us is Moons.

[00:23:31] Speaker 04:
Mr. Turkin mentioned

[00:23:34] Speaker 04:
Can you distinguish this case from Lesesney?

[00:23:41] Speaker 04:
Let me read you the key sentence.

[00:23:43] Speaker 04:
This is from Lesesney.

[00:23:45] Speaker 04:
The complaint contains an explicit demand for compensatory education, period.

[00:23:53] Speaker 04:
Because the party's agreement that is the IP does not address that demand for compensatory education,

[00:24:00] Speaker 04:
the complaint presents a live controversy.

[00:24:02] Speaker 04:
And we reverse the district court's finding of mootness.

[00:24:05] Speaker 05:
The only way I could distinguish it is by pointing, Your Honor, to a case I did not cite in the brief, and I can't pronounce, so I'll expel.

[00:24:14] Speaker 05:
What is it?

[00:24:15] Speaker 05:
I-J-E-A-B-U-O-N-W-U.

[00:24:19] Speaker 05:
It's at 642 F.

[00:24:20] Speaker 05:
3rd, 1191.

[00:24:21] Speaker 05:
Is that this court?

[00:24:27] Speaker 05:
In this case, this court found that CompEd did not save the claim from mootness and said, excuse me.

[00:24:38] Speaker 04:
This case is not in your brief?

[00:24:40] Speaker 04:
It is not.

[00:24:42] Speaker 05:
What's it say?

[00:24:44] Speaker 05:
And there are differences in the case.

[00:24:48] Speaker 05:
But it did point out that CompEd or the evaluations were the preliminary step

[00:24:55] Speaker 05:
And if the evaluations show for a need for Compaq, then DC would need to provide it.

[00:25:01] Speaker 05:
Here, the evaluations were provided.

[00:25:04] Speaker 05:
So that's the only way I could distinguish the two.

[00:25:10] Speaker 02:
All right, thank you.

[00:25:11] Speaker 05:
Thank you very much.

[00:25:13] Speaker 02:
Council Member Farrell, would you like a minute?

[00:25:17] Speaker 00:
Please, thank you.

[00:25:18] Speaker 00:
it's a it's a it's a it's a it's a it's a it's a it's a it's a

[00:25:39] Speaker 00:
This is something of a question that comes up at the administrative level before it ever reaches the district.

[00:25:45] Speaker 00:
And I think depending on how this court phrases its opinion, it may give helpful guidance to the hearing officers.

[00:25:53] Speaker 00:
So we contend that the court or the hearing officer could have issued a declaratory relief

[00:25:58] Speaker 00:
could have required the funding for the combat evaluation, could have enjoined the district to following the regular evaluation in the IEP to hold a meeting to determine compensatory education.

[00:26:12] Speaker 00:
And now, as it is before this court, the court could order the district court to do an evidentiary hearing now that the evidence actually exists.

[00:26:19] Speaker 00:
Earlier, there was no evidence to show what harm had occurred, so a case can be made for either side.

[00:26:24] Speaker 00:
Now the evidence does exist.

[00:26:25] Speaker 00:
That's something available to the district court that would not have been available to the administrative hearing officer.

[00:26:32] Speaker 02:
So the district has done the evaluation?

[00:26:36] Speaker 00:
The district has done it?

[00:26:37] Speaker 02:
You say the evidence exists.

[00:26:38] Speaker 00:
Yes, the district did the, not the competitive education evaluation, the basic evaluation, but that provides something of a record.

[00:26:44] Speaker 00:
Now that there is an IEP, we have some basis for determining what was missed for those 18 months.

[00:26:50] Speaker 02:
And all that was before the district court?

[00:26:52] Speaker 00:
Well, it came in piecemeal.

[00:26:54] Speaker 00:
So the evaluation in IEP was finished, I think it was eight days after the filing of the federal complaint.

[00:27:02] Speaker 00:
And as of the time of the summary judgment motions, Ms.

[00:27:05] Speaker 00:
Booze was still seeking independent evaluations.

[00:27:08] Speaker 00:
So now that process has now concluded.

[00:27:09] Speaker 00:
That was after all the briefing was done.

[00:27:13] Speaker 02:
So the independent evaluations, are those the evaluations the district agreed to fund?

[00:27:19] Speaker 00:
Eventually, yes.

[00:27:21] Speaker 02:
And are those the evaluations that you say provide the necessary evidence with regard to her claim for compensatory education?

[00:27:33] Speaker 00:
They provide something, but they do not provide what Ms.

[00:27:36] Speaker 00:
Budistel seeks, which is funding for an independent evaluation specifically designed to determine compensatory education.

[00:27:42] Speaker 02:
So the independent evaluation that has been done, that the city has paid for, is simply what you referred to initially?

[00:27:52] Speaker 04:
Yes.

[00:27:53] Speaker 02:
All right.

[00:27:54] Speaker 04:
And am I right that the evaluation you're seeking focuses on whether there was any damage done

[00:28:03] Speaker 04:
as a result of the year and a half delay.

[00:28:07] Speaker 04:
That's the focus, right?

[00:28:08] Speaker 00:
Correct.

[00:28:08] Speaker 04:
That's what hasn't been done.

[00:28:10] Speaker 00:
Whether there was damage, what damage was done, and what would remedy it.

[00:28:13] Speaker 04:
But that's the difference between what you're seeking and what the district has done.

[00:28:17] Speaker 00:
Exactly.

[00:28:18] Speaker 04:
Thank you.

[00:28:21] Speaker 02:
We'll take the case under advisement.