United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 8, 2015 Decided May 26, 2015

No. 14-7086

LATONYA BOOSE,

APPELLANT

v.

DISTRICT OF COLUMBIA,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:13-cv-00305)

Douglas W. Tyrka argued the cause and filed the briefs 

for appellant. Nicholas Ostrem entered an appearance.

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.

Before: ROGERS, TATEL, and SRINIVASAN, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge TATEL.
2

TATEL, Circuit Judge: In this case arising under the 

Individuals with Disabilities Education Act, 20 U.S.C. § 1400 

et seq., plaintiff seeks an order requiring the District of 

Columbia Public Schools to provide her son with 

compensatory education to make up for the period during 

which the school system, allegedly in violation of the statute,

failed to identify and evaluate him. The school system 

responded with an individualized education plan that is, by all 

accounts, adequate to keep the child on track going forward, 

and the district court dismissed the suit as moot. But because 

the district court failed to address whether A.G. was entitled 

to compensatory education—a remedy that remains 

available—we reverse.

I.

The Individuals with Disabilities Education Act aims to 

ensure that every child has a meaningful opportunity to 

benefit from public education. To serve that goal, the statute 

requires that public school systems provide all resident 

children with disabilities a “free appropriate public 

education,” or FAPE. Id. § 1412(a)(1)(A). It also requires that 

school systems promptly “identif[y], locate[], and evaluate[]” 

every “child[] with disabilities residing in the [district] . . . 

who [is] in need of special education and related services”—a 

requirement known as “child find.” 20 U.S.C. 

§ 1412(a)(3)(A). Once such a child is identified, located, and 

evaluated, the school system must develop an “individualized 

education plan,” or IEP, for the child. Id. §§ 1412(a)(4), 

1414(d). 

If a school district fails to satisfy its “child-find” duty or 

to offer the student an appropriate IEP, and if that failure 

affects the child’s education, then the district has necessarily 

denied the student a free appropriate public education. See

Lesesne ex rel. B.F. v. District of Columbia, 447 F.3d 828, 

834 (D.C. Cir. 2006) (a FAPE denial is actionable if it 
3

“affect[s] the student’s substantive rights”) (emphasis 

omitted). And when a school district denies a child a FAPE, 

the courts have “broad discretion” to fashion an appropriate

remedy. See Florence County School District Four v. Carter, 

510 U.S. 7, 15–16 (1993). That equitable authority, this court 

has held, must include the power to order “compensatory

education”—that is, education services designed to make up 

for past deficiencies in a child’s program. Reid ex rel. Reid v. 

District of Columbia, 401 F.3d 516, 522–23 (D.C. Cir. 2005). 

If compensatory education were unavailable, after all, a 

child’s access to appropriate education could depend on his 

parents’ ability to pull him out of the deficient public program 

and front the cost of private instruction—a result “manifestly 

incompatible with IDEA’s purpose of ‘ensur[ing] that all

children with disabilities have available to them a free 

appropriate public education.’” Id. at 522–23 (quoting 20 

U.S.C. § 1400(d)(1)(A)); see also School Committee of the 

Town of Burlington, Massachusetts v. Department of 

Education of Massachusetts, 471 U.S. 359 (1985) (compelling 

reimbursement for private instruction to avoid the same 

harm). Worse yet, “students who remained in public school 

[without an appropriate plan] would lack any effective redress 

for FAPE denials, even those extending over many years.” 

Reid, 410 F.3d at 523. To be sure, such students could seek a 

satisfactory IEP. But because the Supreme Court has held that 

IEPs need do no more than provide “some educational 

benefit” going forward, Board of Education of the Hendrick 

Hudson Central School District, Westchester County v. 

Rowley, 458 U.S. 176, 200 (1982), an education plan 

conforming to that standard will speak only to “the child’s 

present abilities,” Reid, 401 F.3d at 523. Unlike compensatory 

education, therefore, an IEP “carries no guarantee of undoing 

damage done by prior violations,” id., and that plan alone 

cannot take the place of adequate compensatory education. 
4

Latonya Boose, the plaintiff in this case, seeks 

compensatory education for her son, A.G. Now nine years old 

and about to enter the fourth grade, A.G. exhibited behavioral 

problems during the first few months of kindergarten at 

Kimball Elementary School—the kinds of things that may

signal attention and hyperactivity disorders. Although his 

performance improved enough for him to advance with his 

class, issues arose again at the beginning of his first-grade 

year. Responding to those difficulties, A.G.’s teacher 

evaluated him for attention-deficit disorder, attention-deficit 

hyperactivity disorder, and anxiety. Before anything came of 

that evaluation, Boose filed an administrative complaint 

alleging that DCPS had failed “to identify, locate, and 

evaluate” A.G., who, it should have known, was “a student 

with a suspected disability.” That is, Boose alleged that DCPS

had violated its “child-find” obligations. A Hearing Officer 

denied the claim, finding that A.G. had had the benefit of a 

FAPE during kindergarten and the beginning of first grade. 

As evidence, the Hearing Officer noted that although A.G. 

had fallen behind at the beginning of both academic years, his 

performance and behavior had improved to the point that he 

was keeping up with his class. Hearing Officer Determination 

5–7.

That decision, however, addressed only DCPS’s liability 

for failing to identify and evaluate A.G.—that is, the Hearing 

Officer determined that the school system had not denied 

A.G. a FAPE up to that point. Because it was still possible 

that A.G. needed special education going forward, Boose 

formally asked DCPS to evaluate the child to determine 

whether he needed such services. After three months in which 

DCPS failed to act, Boose asked the district court to step in, 

challenging both the Hearing Officer’s retrospective 

compensatory-education ruling and the school system’s

failure to offer a prospective IEP. See Compl. 7.
5

Before the court could issue a decision, DCPS completed 

the comprehensive evaluation Boose had asked for. As a 

result of that evaluation, school officials determined that A.G. 

was in fact eligible for special education going forward, and 

they developed an IEP for him. But as DCPS concedes, that 

IEP included no education to compensate for the period—

kindergarten through the first few weeks of first grade—

during which A.G. allegedly lacked an appropriate education 

plan. See Boose v. District of Columbia, 44 F. Supp. 3d 10, 12 

(D.D.C. 2014).

Although the IEP was no doubt helpful, and Boose has 

never challenged its adequacy, she believed that DCPS still 

owed A.G. compensatory education, so she continued to 

pursue her lawsuit. As it stands, then, this case is about A.G.’s 

right to compensatory education, a remedy he has yet to 

receive. Although Boose continued to pursue compensatory 

education for A.G. even after school officials evaluated him, 

DCPS urged the district court to dismiss the case as moot. 

According to DCPS, Boose seeks redress for alleged 

violations of the child-find provision of IDEA and, if it were 

granted, “such redress . . . would consist of an order requiring 

DCPS to evaluate A.G. in order to determine his eligibility for 

special education and other related services.” Id. at 13. That 

evaluation, of course, had already happened by the time the 

court took up Boose’s case, and, in fact, DCPS had found that 

A.G. is entitled to special education. So, the argument goes, 

Boose has already gotten everything she asked for. In these 

circumstances, DCPS argued, even a victory could offer 

Boose no redress. In the alternative, DCPS moved for 

summary judgment, asking the district court to decide the case 

in the school system’s favor on the merits. The district court, 

however, agreed with DCPS’s mootness argument and 

dismissed the case. Id.
6

In defending the district court’s order, DCPS begins by 

mischaracterizing the remedy Boose seeks. Specifically, it 

argues that Boose asked only for an evaluation, not for 

compensatory education itself. Because school officials

completed that evaluation—and, DCPS says, made a reasoned 

determination that no compensatory education was 

necessary—that request is moot. But in the very next clause

of her complaint, Boose makes her intention clear: she asks 

the court to order DCPS to “devise a compensatory education 

plan to compensate A.G. for [DCPS’s] failures.” Compl. 8. 

This request clearly seeks compensatory education, not just a 

determination as to whether such compensation is appropriate. 

DCPS, moreover, conflates the compensatory education 

Boose seeks with the evaluation and IEP it offered. 

Specifically, it argues that the evaluation and the IEP satisfied 

Boose’s request for compensatory education. But that cannot 

be. As noted above, and as DCPS concedes, the IEP included 

no compensatory education. IEPs are forward looking and 

intended to “conform[] to . . . [a] standard that looks to the 

child’s present abilities,” whereas compensatory education is 

meant to “make up for prior deficiencies.” Reid, 401 F.3d at 

522–23. Unlike compensatory education, therefore, an IEP 

“carries no guarantee of undoing damage done by prior 

violations,” Reid, 401 F.3d at 523, and that plan alone cannot 

do compensatory education’s job. So the mere fact that DCPS

offered A.G. an IEP cannot render moot Boose’s request for 

compensatory education. 

In the end, then, this case is indistinguishable from our 

decision in Lesesne v. District of Columbia. There, we held 

that where the plaintiff’s “complaint contains an explicit 

demand for compensatory education” and where it did “not 

appear that the parties’ [settlement] addresse[d] [the 

plaintiff’s] demand,” the “complaint presented the District 

Court with a live controversy.” 447 F.3d 828, 833 (D.C. Cir. 
7

2006) (emphasis omitted). So too here. Because Boose 

expressly requested compensatory education, and because 

DCPS has never offered it, “the complaint present[s us] with a 

live controversy,” and Boose’s case is not moot.

DCPS offers just one response to this commonsense 

conclusion. Boose’s claim can be moot, the school system

argues, even if “the district court could theoretically provide 

her [the] relief” she seeks, Appellee’s Br. 17, if that relief is 

“too speculative,” id. 12–14. The relief is speculative, DCPS

seems to be suggesting, because either it or the district court

might ultimately determine that no compensatory education is 

warranted. In support, DCPS points out that “the record 

evidence here shows that [A.G.] was promoted to the first 

grade,” that he “showed academic and behavioral progress,” 

and that “there is no evidence that . . . a compensatory 

education service is necessary to address [any educational] 

deficit.” Id. 13–14. But this argument misunderstands the 

relationship between mootness and the merits. A court does 

not lack jurisdiction merely because the complaint may fail to 

state a claim, and “[w]hether the complaint states a cause of 

action on which relief could be granted . . . must be decided 

after and not before the court has assumed jurisdiction.” Bell 

v. Hood, 327 U.S. 678, 682 (1946). In other words, at this 

stage of the litigation, we must assume that Boose has stated a 

valid legal claim, i.e., that she would prevail on the merits.

See Information Handling Services v. Defense Automated 

Printing Services, 338 F.3d 1024, 1029 (D.C. Cir. 2003).

Given this, it is obvious that this case is far from moot. If 

Boose were to prevail on the merits, the district court could

either order the school system to determine the appropriate 

amount of compensatory education or make that 

determination itself. In other words, the district court has the 

authority to grant Boose the compensatory education she asks 

for—a question it should have addressed on the merits.
8

II.

In the alternative, DCPS asks us to reach the merits and 

hold that A.G. is not entitled to compensatory education. But 

because the district court never considered that question, we 

think it far better to reverse and remand for the district court 

to consider it in the first instance. See, e.g., U.S. ex rel. Oliver 

v. Philip Morris USA Inc., 763 F.3d 36, 44 (D.C. Cir. 2014)

(remanding for consideration of the merits because the district 

court had erroneously dismissed the case on jurisdictional 

grounds). Indeed, we have expedited the preparation and

issuance of this opinion because the new school year begins in 

a few months and we want to be sure that DCPS and the 

district court have as much time as possible to consider A.G.’s 

eligibility for compensatory education.

So ordered.