Edward M.r., by and Through His Parents , Et Al . v. District of Columbia

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Submitted September 30, 2024 Decided February 14, 2025
No. 23-7143
EDWARD M.R., BY AND THROUGH HIS PARENTS , ET AL .,
APPELLANTS
v.
DISTRICT OF COLUMBIA ,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:21-cv-00177)
Caitlin E. McAndrews and D. Daniel Woody were on the
briefs for appellants.
Brian L. Schwalb, Attorney General, Office of the
Attorney General for the District of Columbia, Caroline S. Van
Zile, Solicitor General, Ashwin P. Phatak, Principal Deputy
Solicitor General, Thais-Lyn Trayer, Deputy Solicitor General,
and Bryan J. Leitch, Assistant Attorney General, were on the
brief for appellee.
Before: HENDERSON, RAO and W ALKER, Circuit Judges.
Opinion for the Court filed by Circuit Judge W ALKER.

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Concurring opinion filed by Circuit Judge HENDERSON .
W ALKER, Circuit Judge: Edward M.R. claims the District
of Columbia violated his federal rights by failing to meet his
special education needs. But one of his claims is untimely.
And the other two claims lack merit. So we affirm the district
court.
I
Edward is a special-education student in Washington,
D.C.’s public schools. On June 19, 2020, Edward filed an
administrative due process complaint alleging that he was
denied a “free appropriate public education” under the
Individuals with Disabilities Education Act. See 20 U.S.C.
§ 1412(a)(1); id. § 1415(a), (b)(6). He said his individualized
education plans (IEPs) from 2015 through 2019 “have been
insufficient to appropriately meet his needs.” JA 61-68; see
also JA 66 (alleging that the District “fail[ed] to offer an
appropriate IEP to meet [Edward’s] needs”).
In particular, Edward said that his IEPs from 2015 through
2019 “show the following deficiencies”:
 “A dramatic decrease in speech/language therapy
services, despite a noted lack of progress in pragmatic
language skills;”
 “Increasing [Edward’s] time spent outside general
education without an accompanying increase in
programmatic supports to provide him with the
research-based instruction needed to make
meaningful educational progress;”
 “Cutting occupational therapy service hours in half;”

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 “Goals and objectives that do not clearly align with
[Edward’s] needs or present levels of educational
performance;”
 “Failure to appropriately address significant needs in
self-advocacy, social skills, pragmatic language, and
functional academics; and”
 “Failure to offer meaningful, research-based specially
designed instruction.”
JA 62-63. Note that each of these alleged deficiencies
concerns the content of Edward’s IEPs, not their
implementation — more on that later.
The hearing officer dismissed Edward’s claims, finding
that Edward’s challenges to his 2015, 2016, and 2017 IEPs
were untimely, and that his 2018 and 2019 IEPs were
appropriate. Edward then sued in district court, challenging
the hearing officer’s determinations regarding the 2017, 2018,
and 2019 IEPs. In a thorough opinion, the district court
affirmed the hearing officer’s decisions.
On appeal, Edward argues that his challenge to his 2017
IEP was timely and that his 2018 and 2019 IEPs violated the
Individuals with Disabilities Education Act.
II
Edward’s 2017 claim is untimely. The Individuals with
Disabilities Education Act requires a plaintiff to initiate
administrative proceedings “within 2 years of the date [that he]
knew or should have known about the alleged action that forms

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the basis of the complaint.” 20 U.S.C. § 1415(f)(3)(C).1
Edward does not contest the hearing officer’s conclusion that
he had notice of his 2017 IEP claims on the day that the IEP
issued: November 28, 2017. Indeed, he expressly waived any
challenge to that finding in the district court, and he concedes
it on appeal. See SA 64-65; Appellants’ Br. at 7, 23. So
Edward had until November 28, 2019 to challenge the 2017
IEP’s content — as distinct from its later implementation.
And because Edward challenged only the content of the 2017
IEP, his June 2020 challenge was filed seven months too late.
III
Edward’s timely claims regarding his 2018 and 2019 IEPs
lack merit.
First, Edward contends that his 2018 and 2019 IEPs were
deficient because some educational goals were repeated year-
to-year and because he regressed or failed to make meaningful
progress on some goals.
1 Nearby, the Act says that a due process complaint must allege a
“violation that occurred not more than 2 years before the date the
parent . . . knew or should have known about [it].” 20 U.S.C.
§ 1415(b)(6)(B) (emphasis added). Edward does not contest that
§ 1415(b)(6)(B) “reflect[s] the same statute of limitations set forth in
§ 1415(f)(3)(C).” G.L. v. Ligonier Valley School District Authority,
802 F.3d 601, 625 (3d Cir. 2015); see id. at 611-18; JA 64 (due
process complaint) (The Act “neither contains a singular two-year
cap on available remedies, nor two separate limitations periods
totaling four years . . . .”); id. at 64-66 (explaining that the Act has a
“traditional statute of limitations”); see also, e.g., Appellants’ Br. 10
(focusing on § 1415(f)(3)(C) as the operative statute-of-limitations
provision); cf. G.L., 802 F.3d at 607 (noting that some district courts
have read §§ 1415(b)(6)(B) and 1415(f)(3)(C) together to yield a
four-year limitations period).

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Under the Individuals with Disabilities Education Act, an
IEP must be “reasonably calculated to enable a child to make
progress appropriate in light of the child’s circumstances.”
Endrew F. ex rel. Joseph F. v. Douglas County School District
RE-1, 137 S. Ct. 988, 999, 1001 (2017). We evaluate IEPs’
substantive adequacy “as of the time each IEP was created
rather than with the benefit of hindsight.” Z. B. v. District of
Columbia, 888 F.3d 515, 524 (D.C. Cir. 2018) (cleaned up).
Edward needed to prove by a preponderance of the evidence
that “the hearing officer was wrong” in concluding that
Edward’s IEPs were appropriate. Reid ex rel. Reid v. District
of Columbia, 401 F.3d 516, 521 (D.C. Cir. 2005) (cleaned up).
Edward has not met that burden. True, his 2018 IEP
repeated some goals from his 2017 IEP, and his 2019 IEP
repeated several goals from his 2018 IEP. But repeating goals
was reasonable because Edward had yet to achieve them.
Moreover, based on witness testimony, the hearing officer
reasonably concluded that “[c]onsistency and repetition” were
“important” for Edward considering his “severe memory
issues.” JA 23, 46. In addition, Edward’s 2019 IEP
contained a number of new goals, which on this record appear
to have been “appropriately ambitious.” Endrew F., 137 S. Ct.
at 1000.
At times, Edward seems to suggest that an IEP must bring
about “meaningful progress.” Appellants’ Br. 35. But a
child’s “educational outcome” isn’t the measure of his IEP’s
sufficiency — rather, the proper measure is the reasonableness
of his IEP’s design. Endrew F., 137 S. Ct. at 998-1000
(cleaned up). And here, even if we consider Edward’s lack of
progress as some evidence that his IEPs were not reasonably
designed from the get-go, that evidence is not enough.
Edward must identify a flaw in the design of an IEP, and he has
not done so.

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Second, Edward claims that his IEPs did not include
“research-based instruction” in speech and language or in
occupational therapy. Appellants’ Br. 44-45; see 20 U.S.C.
§ 1414(d)(1)(A)(i)(IV) (an IEP must include “a statement of
the special education and related services and supplementary
aids and services, based on peer-reviewed research to the extent
practicable, to be provided to the child”). That claim,
however, is “viable only if” an IEP’s omissions “affected the
student’s substantive rights.” Lesesne ex rel. B.F. v. District
of Columbia, 447 F.3d 828, 834 (D.C. Cir. 2006) (emphasis
omitted). Here, the record shows that Edward did receive
research-based instruction in speech and language, and in
occupational therapy, even if his IEPs were silent on the matter.
As such, his substantive rights weren’t affected, and his claim
fails.
Finally, Edward says that his IEPs provided for the use of
“Applied Behavior Analysis,” but his school didn’t provide
that research-based instruction. Appellants’ Br. 45-46. By
his own admission, this is an implementation claim. But
Edward’s due process complaint raised only IEP content
claims. Because he failed to exhaust this claim through the
administrative process, we do not consider it. See 20 U.S.C.
§ 1415(f)(3)(B); Leonard by Leonard v. McKenzie, 869 F.2d
1558, 1563 (D.C. Cir. 1989).
IV
For these reasons, we AFFIRM the district court.
So ordered.

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KAREN LE C RAFT HENDERSON , Circuit Judge, concurring:
I write separately on a topic that, although not made an
issue here, I believe merits discussion: what procedure should
be followed to resolve IDEA disputes. The District of
Columbia moved for and obtained summary judgment but I
question whether Rule 56 is the correct procedural vehicle.
Summary judgment is appropriate only “if the movant shows
that there is no genuine dispute as to any material fact.” Fed.
R. Civ. P. 56(a). That requires the evidence to be “so one-sided
that one party must prevail as a matter of law.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Because a court
cannot “make credibility determinations, weigh the evidence,
or draw inferences from the facts” in a Rule 56 proceeding,
George v. Leavitt, 407 F.3d 405, 413 (D.C. Cir. 2005), all
“justifiable inferences are to be drawn in [the nonmovant’s
favor].” Anderson, 477 U.S. at 255.
Disputed issues of fact inevitably cloud the district court’s
adjudication of whether a particular IEP is appropriate for a
particular student. This is true even on a closed administrative
record. When “the parties [do] not contradict one another’s
proffered facts, but only dispute[] the inferences that a fact
finder would draw from those underlying facts,” that conflict
suffices to create a triable issue for the factfinder. Int’l
Bancorp, LLC v. Societe des Bains de Mer et du Cercle des
Etrangers, 329 F.3d 359, 362 (4th Cir. 2003); accord Queen v.
Schultz, 747 F.3d 879, 888 (D.C. Cir. 2014) (“summary
judgment is not available when material facts are susceptible to
divergent inferences”) (quotations omitted).
I believe that a better procedure is via a Rule 52 bench trial
limited to the administrative record. Although we have
routinely affirmed IDEA judgments resolved on summary
judgment, see, e.g., Leggett v. District of Columbia, 793 F.3d
59, 66 (D.C. Cir. 2015), the issue has not yet been
authoritatively sanctioned by our Court. See Legal Servs.

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Corp. v. Velazquez, 531 U.S. 533, 557 (2001) (Scalia, J.,
dissenting) (explaining that “judicial decisions do not stand as
binding ‘precedent’ for points that were not raised, not argued,
and hence not analyzed” and collecting cases); Brecht v.
Abrahamson, 507 U.S. 619, 631 (1993) (“[S]ince we have
never squarely addressed the issue, and have at most assumed
[it], we are free to address the issue on the merits.”). The
consensus view of the courts of appeals appears to be that
IDEA cases do not fit the traditional Rule 56 format.1 Even
courts that resolve IDEA cases on summary judgment note that
1 See, e.g., Beth B. v. Van Clay, 282 F.3d 493, 496 n.2 (7th Cir.
2002) (explaining that the district court’s disposition in an
IDEA case “is perhaps better described as judgment on the
record”); Loren F. ex rel. Fisher v. Atlanta Indep. Sch. Sys.,
349 F.3d 1309, 1313 (11th Cir. 2003) (“the usual . . . summary
judgment principles do not apply in an IDEA case” and district
courts “often conduct[] a bench trial on a stipulated record”)
(quotations omitted); L.B. ex rel. K.B. v. Nebo Sch. Dist., 379
F.3d 966, 974 (10th Cir. 2004) (noting that “many IDEA claims
do not fit into the typical summary judgment standard” and are
more properly termed “judgment on the administrative
agency’s record,” but withholding judgment as to whether “all
summary judgment dispositions under the IDEA will always
be better described as judgments on the record”) (cleaned up);
Cnty. Sch. Bd. of Henrico Cnty. v. Z.P. ex rel. R.P., 399 F.3d
298, 309 n.7 (4th Cir. 2005) (“IDEA actions . . . should
typically be disposed of by motions for judgment,” as “there
are clearly disputed issues of material fact” and district courts
are “entering judgment after what amounts to a bench trial”
even if the court “proceed[s] on the basis of an unsupplemented
. . . record”) (quotations omitted); E. R. ex rel. E. R. v. Spring
Branch Indep. Sch. Dist., 909 F.3d 754, 762 (5th Cir. 2018)
(noting that summary judgment is “not typical” for IDEA
proceedings given the nature of the dispute).

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Rule 56 is simply “a ‘pragmatic procedural mechanism’” for
review and that the ordinary Rule 56 standards do not apply.
Lillbask ex rel. Mauclaire v. Conn. Dep’t of Educ., 397 F.3d
77, 83 n.3 (2d Cir. 2005) (relying on the Ninth Circuit’s
determination that courts “may call the procedure ‘a motion for
summary judgment’” yet in substance apply different
adjudicatory standards) (quoting Capistrano Unified Sch. Dist.
v. Wartenberg, 59 F.3d 884, 892 (9th Cir.1995)). Rather than
contort Rule 56, the district court has a readily available tool
on its civil procedure toolbelt for resolving IDEA cases with
disputed facts: Rule 52. Inasmuch as neither party here
objected to the Rule 56 modus operandi, the district court
cannot be faulted for following it. I point it out instead for
future use.

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