United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 16, 2010 Decided July 6, 2010

No. 09-7026

DISTRICT OF COLUMBIA,

APPELLEE

v.

JOHN DOE,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:04-cv-01451-EGS)

Jane Doe argued the cause for the appellant.

Mary L. Wilson, Senior Assistant Attorney General, argued

the cause for the appellee. Peter J. Nickles, Attorney General,

Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy

Solicitor General, were on brief.

Before: HENDERSON, TATEL and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.
2

KAREN LECRAFT HENDERSON, Circuit Judge: John Doe1

appeals the district court’s grant of summary judgment to the

District of Columbia (District or D.C.) on its claim that a

hearing officer exceeded his authority under the Individuals with

Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (IDEA),

in modifying a disciplinary action the D.C. Public Schools

system (DCPS) had imposed on Doe. Doe argues the matter is

moot, the District’s complaint is untimely, the district court

erred on the merits and the district judge was biased against him. 

We proceed by, first, laying out the relevant federal and local

legal framework, then describing this dispute’s ample history

and, finally, assessing Doe’s arguments. We conclude the

district court erred on the merits but we reject Doe’s other

arguments.

I.

Through the IDEA federal funds support state and local

educational agencies in furthering the education of disabled

children. As a condition to receiving funds under the IDEA, an

educational agency must maintain policies and procedures

ensuring that a “free appropriate public education [(FAPE)] is

available to all children with disabilities residing in the state

between the ages of 3 and 21, inclusive, including children with

disabilities who have been suspended or expelled from school.” 

20 U.S.C. § 1412(a)(1)(A) (1998).2

 To that end, the IDEA

1

Jane Doe, as the next best friend of John Doe, was the defendant

and original appellant in this action. After reaching majority John

replaced Jane as the defendant/appellant.

2

In 2004 the Congress amended the IDEA effective July 1, 2005.

Pub. L. No. 108-446, § 302, 118 Stat. 2647, 2803 (2004). Because the

hearing officer’s decision reviewed herein occurred in 2004, see infra

Part II, all subsequent citations to the IDEA are to the version in effect

from July 1, 1998, see Pub. L. No. 105-17, § 201, 111 Stat. 37, 156

(1997), until June 30, 2005, unless otherwise noted. 
3

“establishes various procedural safeguards that guarantee

parents both an opportunity for meaningful input into all

decisions affecting their child’s education and the right to seek

review of any decisions they think inappropriate.” Honig v.

Doe, 484 U.S. 305, 311-12 (1988) (discussing IDEA’s

predecessor—the Education of the Handicapped Act of 1975

(EHA)). 

Under certain circumstances, an educational agency may

remove a disabled child from his school and place him in an

“alternative educational setting” in response to disciplinary

problems. 20 U.S.C. § 1415(k). If, as in this case, an

educational agency intends to place a disabled student in an

alternative educational setting for more than ten days because

the child broke a rule applicable to all students, it must notify

the child’s parents and timely conduct a “manifestation

determination review” (MDR). Id. § 1415(k)(4)(A). An MDR

team—including the child’s parents, at least one of the child’s

teachers, at least one special education teacher, a representative

of the local educational agency and, if appropriate, the child

himself—determines whether the offending behavior was a

manifestation of the child’s disability. See id. §§ 1415(k)(4)(C),

1414(d)(1)(B). If the MDR team determines that the behavior

was not a manifestation of the child’s disability, then “the

relevant disciplinary procedures applicable to children without

disabilities may be applied to the child in the same manner in

which they would be applied to children without disabilities,”

except that the educational agency must continue to provide the

child a FAPE. Id. § 1415(k)(5)(A) (cross-referencing

id. § 1412(a)(1)). If a child’s parent “disagrees with a

determination that the child’s behavior was not a manifestation

of the child’s disability or with any decision regarding

placement,” id. § 1415(k)(6)(A)(i), she may request an

“impartial due process hearing” under the IDEA, id. § 1415(f).

See also id. § 1415(b)(6) (ensuring parents “an opportunity to

present complaints with respect to any matter relating to the . . .
4

educational placement of the child, or the provision of a [FAPE]

to such child”). Any party aggrieved by an IDEA hearing

officer’s decision may bring suit in district court. 

Id. § 1415(i)(2)(A).

At the local level, D.C. Municipal Regulations provide for

the discipline of DCPS students. Among the disciplinary actions

they permit is “class exclusion,” which may entail placement in

an alternative educational setting. 5 DCMR3

 § 2599.2;4 see id.

§§ 2501.1(g), 2502.3. The regulations delineate “Level I”

infractions, which are punishable by class exclusion for ten days

or fewer, and “Level II” infractions, which are punishable by

class exclusion for no fewer than eleven days and no longer than

two semesters. Id. § 2502.3. The regulations also detail

procedures the DCPS must follow when taking disciplinary

action. Under this framework, “[t]he decision to effect a

disciplinary action shall be made by the principal or the

principal’s designee,” although “[t]he implementation of

disciplinary action for a Level II infraction” must be approved

by, and may be modified by, the DCPS Superintendent or his

designee. Id. § 2505.2. Before a child is disciplined his parent

must be notified and the child must “be given a conference with

3

All references herein to the DCMR are to the version in effect

throughout 2004. See 47 D.C. Reg. 1718 (Feb. 23, 2001); 52 D.C.

Reg. 10558 (Dec. 2, 2005).

4

Although the District, hearing officers and district court have

conflated the terms “class exclusion” and “suspension” in this case,

they have distinct meanings under the DCMR. “Class exclusion” is

“the temporary denial of the right of a student to attend a particular

class or classes for less than one (1) school year,” which may include

“placement in an alternative education setting.” 5 DCMR § 2599.2.

“Suspension” is “the denial of the right of a student to attend any D.C.

Public School or program . . . for a defined period of time . . . but in

no event exceeding ten (10) school days.” Id.
5

the school official responsible for making or approving the

disciplinary action.” Id. §§ 2505.3-2505.4. Also, the child’s

parent is entitled to request a “disciplinary hearing.” See

id. § 2505.11-2505.25. At the disciplinary hearing, the “hearing

officer shall determine that all due process procedures have been

followed or waived,” id. § 2505.22, and “[i]t shall be the burden

of the D.C. Public Schools to show by a preponderance of the

evidence that the student did, in fact, commit the infraction(s)

upon which the disciplinary action is based,” id. § 2505.18.

“Upon conclusion of a disciplinary hearing,” the hearing officer

must issue a written determination including, inter alia, a

“determination regarding the appropriateness of the disciplinary

action or an order for a modification thereof.” Id. § 2507.1(d).

“The hearing officer’s determination with respect to disciplinary

actions other than expulsion shall be binding unless changed

following appeal to the [DCPS] Superintendent or

Superintendent’s designee.” Id. § 2507.4; see also id. § 2508.2

(“With respect to all disciplinary actions, the Superintendent

may overrule or modify any proposed disciplinary action

including expulsion.”).

In addition to these generally applicable provisions, D.C.

Municipal Regulations also implement the IDEA. See

id. § 2510 (“Proposed Discipline of a Student with Disability”);

id. § 2502.8 (“Disciplinary action for students with disabilities

shall be imposed in compliance with § 2510 of these Rules.”).

Like the IDEA, these regulations provide that (1) a disciplinary

change in placement lasting over ten days for a violation of a

generally applicable rule must be proceeded by an MDR,

id. § 2510.7; (2) if a child’s infraction was not a manifestation

of his disability, he is subject to the same manner of discipline

as a non-disabled child, except that the DCPS must continue to

provide him a FAPE, id. § 2510.10; and (3) if a child’s parent

wants to challenge “any decision regarding placement,” she is

entitled to a hearing, id. § 2510.12.
6

II.

On March 5, 2004 the DCPS determined that John Doe—a

sixth-grade student nearing graduation from the District’s

Janney Elementary School—was eligible for special education

under the IDEA5 due to a diagnosis of attention deficit

hyperactivity disorder. On March 30, 2004 Doe “acted out in

class and was disrespectful to [a] substitute teacher.” IDEA

Hearing Officer’s Decision at 4, DCPS Office of Compliance

(June 4, 2004) (HOD).6

 The substitute reported the incident to

Janney’s principal, Charles Abelmann. Abelmman conferred

with Doe the next day and determined that his conduct had

violated 5 DCMR § 2503.1(b), constituting a Level I infraction.

See 5 DCMR § 2503.1(b) (Level I infractions include “repeated

5

A central component of a disabled child’s special education

under the IDEA is the provision and maintenance of an

“individualized education program” (IEP), which is a written

statement setting out a disabled child’s individually tailored goals and

the means of achieving them. See 20 U.S.C. § 1414(d). The team that

formulates a child’s IEP includes the child’s parents, at least one of the

child’s teachers, at least one special education teacher, a representative

of the local educational agency and, if appropriate, the child himself. 

Id. § 1414(d)(1)(B). Doe’s IEP went into effect when his mother

signed it, after some delay, on April 8, 2004.

6

Specifically, Doe: 

taunted [the substitute] by coming into the classroom with

a sucker and getting two (2) more after being told to remove

the first one, not giving his name when asked, taking off his

hat when asked, but going to the closet to get another hat

and then put it on his head, taking an umbrella out of the

closet that he thought belonged to the substitute and

threatening not to give it back until the end of the school

day.

HOD at 4. 
7

failure to comply with the orders or directions of a . . . teacher

. . . where failure to comply with the order constitutes a

disruption”). Because Doe had committed two other Level I

infractions during that school year, both involving fighting,

Abelmann classified this latest as a Level II infraction, pursuant

to 5 DCMR § 2503.1, and decided to remove Doe from Janney

for fifty-four days and place him in another facility, Choice

Academy, as an alternative educational setting. The Assistant

Superintendent approved the Level II classification.

An MDR convened on April 1, 2004 to determine whether

Doe’s infraction had been a manifestation of his disability. The

MDR team included Abelmann, Doe’s regular teacher, a special

education teacher, a social worker and a behavior specialist.

Doe’s mother was notified of the MDR but did not attend. The

team concluded that Doe’s infraction had not been a

manifestation of his disability and agreed with Abelmann’s

decision to remove Doe from Janney. The team did not,

however, document discussion of any specific alternative

educational setting.

Doe’s mother requested a hearing to challenge the

manifestation determination and the class exclusion. Instead of

requesting an IDEA “impartial due process hearing,” however,

she requested a “disciplinary hearing” pursuant to 5 DCMR §§

2505.11-2505.25.7

 (Doe’s mother later made clear that the

7

Although the record is bereft of any clear explanation of the

practical distinctions between the two kinds of hearings, in Doe v.

D.C. Pub. Schs., C.A. No. 04-732 (D.D.C.), the District filed a

declaration by a “Staff Assistant for the Student Disciplinary Hearing

Office in the Division of Student Services for the District of Columbia

Public Schools,” which explained:

The disciplinary hearings are separate and distinct from the

IDEA administrative due process hearings, although they

use similar terms such as “hearing officer” and “hearing
8

choice of hearing was a mistake, resulting from her unfamiliarity

with the IDEA’s intricacies.) The disciplinary hearing convened

on April 8, 2004 and the hearing officer issued a determination

on April 14. He upheld the MDR team’s conclusion that Doe’s

infraction was not a manifestation of his disability. But he

reduced the duration of Doe’s class exclusion from fifty-four

days to ten, concluding that the longer term was inappropriate

given the infraction’s trivial nature. See id. § 2507.1(d)

(authorizing disciplinary hearing officer to modify inappropriate

disciplinary action). 

The DCPS appealed the disciplinary hearing officer’s

determination to the Assistant Superintendent, in his capacity as

the Superintendent’s designee, pursuant to 5 DCMR § 2507.4.

It argued the hearing officer erred in reducing a class exclusion

for a Level II infraction to fewer than eleven days. The

Assistant Superintendent agreed and, on April 23, 2004, changed

Doe’s class exclusion to forty-five days.

Jane Doe then filed suit in the district court to obtain a

temporary restraining order preventing implementation of the

class exclusion. Doe v. D.C. Pub. Schs., C.A. No. 04-732

(D.D.C.). The District opposed Doe on the ground that she had

officer’s determination.” Moreover, the qualifications for a

disciplinary hearing officer differ from that [sic] of an IDEA

hearing officer.

Under IDEA, the hearing officer must be an attorney who

has practice [sic] law for a period of five (5) or more years

or one who has a Ph. D. or a terminal degree in education.

Under disciplinary hearings, the disciplinary hearing officer

may be a school system employee whereas IDEA hearing

officers may not be . . . .

Declaration of Ms. Yvonne Martin, Doe v. D.C. Pub. Schs., C.A. No.

04-732 (D.D.C. May 11, 2004) (Supplement to Def.’s Opp’n to Pl.’s

Mot. for TRO ex. 6).
9

not exhausted her administrative remedies by “request[ing] a

due process hearing pursuant to the IDEA.” Def.’s Opp’n to

Pl.’s Mot. for TRO at 6, Doe v. D.C. Pub. Schs., C.A. No. 04-

732 (D.D.C. May 7, 2004). On May 11, 2004 the district court

dismissed the case without prejudice after the parties agreed at

a motions conference to pursue an IDEA hearing. See 20 U.S.C.

§ 1415(f). 

The IDEA hearing took place on three days in May 2004.

The hearing officer heard testimony from nine witnesses,

including a teacher, a psychologist, a social worker and

Abelmann. He issued his decision (HOD) on June 4, 2004

“pursuant to” the IDEA. HOD at 3. He framed the “issue” as

“[w]hether DCPS denied [Doe] a Free and Appropriate Public

Education” by imposing the forty-five day class exclusion. 

HOD at 3. In his analysis, he first upheld the determination that

Doe’s infraction had not been a manifestation of his disability.

He then reduced the length of Doe’s class exclusion from fortyfive days to eleven, holding that the latter duration was “more

appropriate” because Doe’s infraction consisted of nothing more

than being a “nuisance.” HOD at 28. Next, he determined that,

while Choice Academy “may be able to provide [Doe] with

educational benefit,” it was “not appropriate” and “not

warranted” as an alternative academic setting for him. HOD at

29. He based his conclusion in part on the fact that Doe’s MDR

team had not specifically approved of that facility. Id. He also

stated that “it is not reasonable to place the student at Choice for

the remainder of the school year and his last year in elementary

school at Janney for the purpose of having him learn that there

are consequences for [sic] his behavior.” HOD at 29.

Accordingly, he ordered that Doe spend the remainder of the

year at Janney. He also ordered that, in the event Doe had not

already served the entire eleven days of class exclusion, Janney

was to “offer alternatives such as those specified in [5 DCMR §]
10

2501.1.”8

 HOD at 30. Doe graduated from Janney soon

thereafter.

On July 2, 2004 the District requested reconsideration,

which the IDEA hearing officer denied on July 28, 2004. The

District then filed suit in the district court, see 20 U.S.C.

§ 1415(i)(2)(A), alleging the IDEA hearing officer exceeded his

authority by modifying the terms of Doe’s class exclusion. Doe

countered that the hearing officer had acted within his authority

and, in any event, the case was moot because he no longer

attended a DCPS school. The parties eventually filed cross

motions for summary judgment and, on August 28, 2008, the

court granted the District summary judgment. First the court

held that the action should not be dismissed as moot because it

was “‘capable of repetition, yet evading review.’” District of

Columbia v. Doe ex rel. Doe, 573 F. Supp. 2d 57, 62 (D.D.C.

Aug. 28, 2008) (quoting Jenkins v. Squillacote, 935 F.2d 303,

308 (D.C. Cir. 1991)). On the merits, the court interpreted the

HOD as finding that Doe’s class exclusion did not violate the

IDEA; the court then concluded that the hearing officer

exceeded his authority in modifying the Assistant

Superintendent’s disciplinary decision notwithstanding the

finding. Doe moved for reconsideration, which the district court

denied on New Year’s Eve 2008. Doe timely appealed.

8

Section 2501.1 provides for “(a) Reprimands; (b) Detention; (c)

Additional work assignments; (d) Restitution; (e) Mediation; (f)

In-school disciplinary centers; (g) Alternative educational programs

and placements; (h) Rehabilitative programs; (i) Crime

awareness/prevention programs; (j) Probation; (k) Exclusion from

extracurricular activity; (l) Peer court; and (m) Transfer.” 5 DCMR

§ 2501.1.
11

III.

Having traveled a long, unusual road to this court, Doe now

argues that (1) this action is moot, (2) the district court erred in

declining to dismiss the District’s complaint as untimely, (3) the

district court erred on the merits in holding that the IDEA

hearing officer exceeded his authority and (4) the district judge

was biased against him. We address his arguments in turn.

A. Mootness

Under Article III of the United States Constitution we “may

only adjudicate actual, ongoing controversies.” Honig, 484 U.S.

at 317; see Nat’l Black Police Ass’n v. District of Columbia, 108

F.3d 346, 349 (D.C. Cir. 1997). Accordingly, the mootness

doctrine prohibits us from deciding a case if “events have so

transpired that the decision will neither presently affect the

parties’ rights nor have a more-than-speculative chance of

affecting them in the future.” Clarke v. United States, 915 F.2d

699, 701 (D.C. Cir. 1990) (en banc) (internal quotation omitted).

That seems to be the case here; both parties acknowledge that

the DCPS can no longer enforce additional discipline against

Doe as he is no longer a DCPS student. There is a mootness

exception, however, if an action is “capable of repetition, yet

evading review.” Jenkins, 935 F.2d at 308. The exception

applies where: “‘(1) the challenged action is in its duration too

short to be fully litigated prior to its cessation or expiration, and

(2) there [is] a reasonable expectation that the same complaining

party will be subject to the same action again.’” Id. at 307

(quoting Murphy v. Hunt, 455 U.S. 478, 482 (1982)) (quotation

omitted) (alteration in Jenkins).

We had occasion to apply the exception in the IDEA

context in Jenkins, 935 F.2d at 307-308. In that case, an IDEA

hearing officer ruled that the DCPS had given insufficient notice

to a disabled child’s parents that it intended to change his

placement in furtherance of his IEP. Id. at 305-06; see supra
12

note 5. As a remedy, the hearing officer ordered that the child

spend the impending school year in a private school in

accordance with the parents’ wishes but contrary to the DCPS’s.

Id. at 306. The DCPS Superintendent filed suit in the district

court challenging the hearing officer’s decision to change the

child’s placement. Id. The district court held the case was moot

because, by the time it had ruled on the parents’ motion to

dismiss, the school year had already ended. Id. We reversed,

holding that the challenged action was “capable of repetition, yet

evading review.” Id. at 308. Applying the exception’s first

prong, we held that “there can be no doubt that a one-year

placement order under the IDEA is, by its nature, ‘too short [in

duration] to be fully litigated prior to its . . . expiration.’” Id. at

307 (quoting Honig, 484 U.S. at 322-23). Regarding the second

prong, we held that “there is a ‘reasonable expectation’ that the

District will again be aggrieved by a similar application of the

IDEA’s notice requirements.” Jenkins, 935 F.2d at 308. We

concluded that the issue was “a recurring one” as the “case

[wa]s not simply about where [the child] would attend school for

the [relevant] school year, but rather about what sort of legal

standard the District must meet in providing notice to [his]

parents, and to other parents as well.” Id. at 308, 306. And,

while we noted a reasonable likelihood that the District would

be confronted again with the same question regarding the same

student, our decision turned on the reasonable expectation that

“the same complaining party”—the District—would repeatedly

confront the issue as to disabled children generally. See id. at

307-08 (emphasis added).

Turning to this appeal, we start by asking whether the

challenged action—a class exclusion modified by an IDEA

hearing officer—evades review. The Supreme Court once

somewhat euphemistically characterized administrative and

judicial review of cases under this statute as “ponderous.”

Honig, 484 U.S. at 322; see also Roland M. v. Concord Sch.

Comm., 910 F.2d 983, 1000 (1st Cir. 1990) (“[P]lacement
13

disputes may take years to wind their way through the

administrative/judicial labyrinth.”). This is a case in point.

Doe’s class exclusion was nearly six years ago. It has been

several years since he attended a DCPS school. He has long

been immune from any discipline the District might impose

were it to successfully litigate a challenge to the IDEA hearing

officer’s decision. And there is no reason to think that Doe’s

status is anomalous. As the Supreme Court noted in Honig, “the

adolescent student improperly disciplined . . . will often be

finished with school or otherwise ineligible for EHA protections

by the time review can be had” of the improper disciplinary

decision. 484 U.S. at 322-23. We conclude, therefore, that this

action “evades review.” As for the second prong, here, as in

Jenkins, the legal issue—an IDEA hearing officer’s authority to

revise DCPS-imposed discipline upon finding that an infraction

is not a manifestation of a disability—is almost certain to be “a

recurring one.” Jenkins, 935 F.2d at 308. We can reasonably

expect that the District will again “be aggrieved by similar

application of the IDEA.” Id. In other words, this case is

“capable of repetition.” The exception therefore applies. See

DeVries by DeBlaay v. Spillane, 853 F.2d 264, 268 (4th Cir.

1988) (“EHA cases are classic cases for application of the

‘capable of repetition, yet evading review’ rule.”).

Doe counters that the case is moot because the District is

pursuing it only to avoid paying attorney fees. See Appellee’s

Br. 23 n.8 (acknowledging District’s offer to settle if Doe would

waive right to attorney fees). He is right that “[a]n ‘interest in

attorneys’ fees is . . . insufficient to create an Article III case or

controversy where none exists on the merits of the underlying

claim.’” Spirit of the Sage Council v. Norton, 411 F.3d 225, 229

(D.C. Cir. 2005) (quoting Lewis v. Cont’l Bank Corp., 494 U.S.

472, 480 (1990)) (ellipsis in Norton). As explained above,

however, our jurisdiction is based on our conclusion that the

action is “capable of repetition, yet evading review,” not on a

controversy regarding attorney fees.
14

B. Timeliness

When the District brought this action in the district court the

limitations period for filing a complaint challenging an IDEA

hearing officer’s decision was thirty days under our decision in

Spiegler v. District of Columbia, 866 F.2d 461, 466 (D.C. Cir.

1989).9 The District filed its complaint on August 26, 2004,

eighty-three days after the HOD issued. Relying primarily on

R.S. v. District of Columbia, 292 F. Supp. 2d 23 (D.D.C. 2003),

however, the District argues that its complaint was timely

because its request for reconsideration by the IDEA hearing

officer tolled the limitations period. Doe argues that R.S. “was

wrongly decided” and that, contrary to the holding in that case,

the District’s request for reconsideration was itself untimely.

Reply. Br. 11.

We do not resolve this dispute because it is not properly

before us. Doe did not raise his timeliness argument in the

district court until his post-judgment “Motion to Stay

Proceedings and to Vacate and Reconsider,” District of

Columbia v. Doe ex rel. Doe, C.A. No. 04-1451 (D.D.C. Sept.

12, 2008). The district court properly characterized that motion

as one to alter or amend the judgment pursuant to Federal Rule

of Civil Procedure 59(e). See Mem. Op. at 2, District of

Columbia v. Doe ex rel. Doe, C.A. No. 04-1451 (D.D.C. Dec.

31, 2008); Emory v. Sec’y of Navy, 819 F.2d 291, 293 (D.C. Cir.

1987) (“‘[A]ny motion that draws into question the correctness

of the judgment is functionally a motion under Civil Rule 59(e),

whatever its label.’” (quoting 9 Moore’s Fed. Practice

§ 204.12[1] at 4-67 (1987))) (alteration in Emory). It is well

settled that “an issue presented for the first time in a motion

pursuant to Federal Rule of Civil Procedure 59(e) generally is

not timely raised; accordingly, such an issue is not preserved for

9

The Congress has since enacted a ninety-day statute of

limitations. 20 U.S.C. § 1415(i)(2)(B) (2005).
15

appellate review unless the district court exercises its discretion

to excuse the party’s lack of timeliness and consider the issue.”

Holland v. Big River Minerals Corp., 181 F.3d 597, 605 (4th

Cir. 1999) (collecting cases); see also Nat’l Ecological Found.

v. Alexander, 496 F.3d 466, 477 (6th Cir. 2007) (“Rule 59(e)

motions are aimed at reconsideration, not initial consideration.”)

(internal quotation omitted). The district court did not exercise

its discretion to excuse Doe’s untimeliness; on the contrary, it

declined to consider the issue because Doe “should have raised

[it] earlier.” Mem. Op. at 4, District of Columbia v. Doe ex rel.

Doe, C.A. No. 04-1451 (D.D.C. Dec. 31, 2008). As a result, it

is not for us to decide timeliness vel non. 

But Doe says we must reach his argument because the

district court did not have jurisdiction over the District’s

untimely complaint. See Bowles v. Russell, 551 U.S. 205, 213

(2007) (“forfeiture or waiver” does not apply where

untimeliness precludes jurisdiction). As noted, however, the

applicable limitations period was then prescribed by common

law, not by statute. See Spiegler, 866 F.2d at 466 (borrowing

limitations period from D.C. App. R. 15(a)). The limitations

period was not jurisdictional and Doe’s argument thus fails. See

Bowles, 551 U.S. at 210-11 & n.2 (describing “jurisdictional

significance” of limitations period set by statute); Kontrick v.

Ryan, 540 U.S. 443, 452 (2004) (“Only Congress may determine

a lower federal court’s subject matter jurisdiction.”); S.J. v.

Issaquah Sch. Dist. No. 411, 470 F.3d 1288, 1290 n.1 (9th Cir.

2006) (failure to comply with limitations period borrowed from

local law is not jurisdictional in IDEA action).

C. Merits

Because the district court relied entirely on the

administrative record, cf. 20 U.S.C. § 1415(i)(2)(B)(ii) (district

court “shall hear additional evidence at the request of a party”),

we review its grant of summary judgment de novo, applying the

same standard it used. See Reid ex rel. Reid v. District of
16

Columbia, 401 F.3d 516, 521-22 (D.C. Cir. 2005). Under that

standard, the IDEA hearing officer’s decision warrants “less

deference than is conventional” in administrative proceedings

but the District “must at least take on the burden of persuading

the court that the hearing officer was wrong.” Kerkam v.

McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1988); see also Dale M.

ex rel. Alice M. v. Bd. of Educ., 237 F.3d 813, 815 (7th Cir.

2001) (if district court relies solely on administrative record,

IDEA hearing officer’s decision warrants “due deference”).

Doe claims the district court erred in holding that the IDEA

hearing officer exceeded his authority by modifying the terms of

Doe’s class exclusion. Doe argues, in part, that the IDEA

hearing officer was authorized to decide whether the DCPS’s

disciplinary action denied Doe a FAPE and that the hearing

officer modified Doe’s punishment only after finding that the

proposed class exclusion did so. The District counters that the

district court’s holding is well founded inasmuch as the

Superintendent (or his designee), not an IDEA hearing officer,

has the final say regarding discipline that does not imperil a

disabled child’s rights under the IDEA. It contends that the

hearing officer “did not find any violation of the IDEA” but

modified Doe’s punishment on non-IDEA grounds. Appellee’s

Br. 11.

It is true that the Superintendent has the last word regarding

discipline imposed under the DCMR for misconduct that is not

a manifestation of the child’s disability as long as the

disciplinary action does not deprive the child of a FAPE. See 5

DCMR § 2508.2 (“With respect to all disciplinary actions, the

Superintendent may overrule or modify any proposed

disciplinary action including expulsion.”); id. § 2502.8

(“Disciplinary action for students with disabilities shall be

imposed in compliance with § 2510 of these Rules.”);

id. § 2510.10 (if no manifestation, disabled child subject to same

disciplinary procedures as non-disabled children, except school
17

system must provide FAPE). It is also true, however, that

federal law and D.C. regulations empower an IDEA hearing

officer to review “any decision regarding placement of a

[disabled] child,” 20 U.S.C. § 1415(k)(6)(A)(i); 5 DCMR

§ 2510.12, and also require the hearing officer to ensure that

disciplinary action does not deprive a disabled child of a FAPE. 

See 20 U.S.C. § 1415(k)(5)(A); 5 DCMR § 2510.10. Because

we find that the hearing officer modified Doe’s punishment only

after finding that class exclusion would deny Doe a FAPE, we

reject the District’s argument that the hearing officer exceeded

his authority.

That the IDEA hearing officer’s focus was on Doe’s FAPE

is apparent from the HOD; it contains numerous references to

the IDEA and to the IDEA’s central maxim that a disabled

student is entitled to a free appropriate public education. It is

captioned: “Individuals with Disabilities Education Act . . .

Impartial Due Process Hearing.” HOD at 3. It declares that it

“was written pursuant to the Individuals with Disabilities

Education Act.” Id. (italics in original). It defines the issue as

“[w]hether DCPS denied the student a [FAPE] by suspending

the student for forty-five (45) days.” Id. Setting out the legal

authority, it makes clear that “DCPS is obligated to ensure that

all children with disabilities receive a [FAPE]” and that “[t]his

obligation includes . . . determining an appropriate placement.”

Id. at 24. Then, having established that ensuring Doe’s FAPE

requires evaluating the appropriateness of his proposed

placement, it does so. In particular, it determined that, while

Choice Academy “may be able to provide the student with

educational benefit,” it was “not appropriate” and “not

warranted” as an alternative academic placement for Doe.10 Id.

10Although our review is de novo, we note that the district court’s

account of this aspect of the HOD missed the mark, viz., at no point

did the IDEA hearing officer “conclud[e] that placement at Choice
18

at 29. Viewing the HOD as a whole, therefore, we find the

IDEA hearing officer’s review of Doe’s class exclusion within

the scope of his duty to ensure Doe’s FAPE. Indeed, few

developments could bear more on the “appropriateness” of a

child’s education than his being taken from his elementary

school and placed in a new setting for nine weeks. 

To be sure, the HOD contains numerous references to the

DCMR, which, taken piecemeal, seem to support the District’s

argument that the IDEA hearing officer usurped the

Superintendent’s disciplinary prerogative by reviewing Doe’s

class exclusion for defects unrelated to the IDEA. For example,

the HOD repeatedly refers to the DCPS’s non-compliance with

5 DCMR § 2510.4, which section is inapplicable to Doe.11 But

we believe the hearing officer’s invocation of the DCMR merely

informed his IDEA-centered appraisal of Doe’s FAPE. After

all, section 2510 implements the IDEA. And it empowers a

hearing officer to review “any decision regarding placement,” 

id. § 2510.12, in conjunction with ensuring a disabled child’s

FAPE, id. § 2510.10. Further, it specifically directs a hearing

Academy would not constitute denial of a FAPE.” Doe, 573 F. Supp.

2d at 63. 

11Section 2510.4 permits a hearing officer to “order a change in

the placement of a child with a disability to an appropriate interim

alternative educational setting for not more than forty-five (45) days”

if, inter alia, the DCPS has (1) “demonstrated by substantial evidence”

that the child is likely a danger to others and (2) made reasonable

efforts to minimize the danger the child poses in his current setting.

Here, however, the District was not required to make these showings

because its disciplinary action was premised on a finding that Doe’s

infraction was not a manifestation of his disability; because of that

finding, Doe could be disciplined in the same manner as a nondisabled child, i.e., without regard to section 2510.4, so long as he was

provided a FAPE. See 5 DCMR § 2510.10.
19

officer, when evaluating a proposed alternative educational

placement, to consider the criteria listed in section 2510.4,

including the placement’s “appropriateness.” See id. § 2510.15. 

Taking all of this into consideration, we conclude that the IDEA

hearing officer acted within his authority in rejecting the

DCPS’s disciplinary action as inconsistent with Doe’s FAPE,

notwithstanding his determination that Doe’s infraction was not

a manifestation of his disability. 

D. Recusal

Finally, Doe argues the district judge was biased against

him and therefore should have recused himself. By statute,

“[a]ny justice, judge, or magistrate judge of the United States

shall disqualify himself in any proceeding in which his

impartiality might reasonably be questioned.” 28 U.S.C. § 455.

In reviewing claims of this sort, “this circuit applies an

‘objective’ standard: Recusal is required when a reasonable and

informed observer would question the judge’s impartiality.”

SEC v. Loving Spirit Found. Inc., 392 F.3d 486, 494 (D.C. Cir.

2004) (internal quotation omitted). “[J]udicial rulings alone

almost never constitute a valid basis” for an allegation of “bias

or partiality.” Liteky v. United States, 510 U.S. 540, 555-56

(1994). Nor do “expressions of impatience, dissatisfaction,

annoyance, and even anger.” Id. 

Doe argues the district judge’s impartiality was objectively

questionable because he (1) failed to seal a hearing transcript

that allegedly revealed John Doe’s identity,12 (2) “personally

12Doe refers to his April 7, 2006 motion to seal the transcript of

the hearing held on February 15, 2006. Appellant’s Br. 32-33.

According to him, “the record of that hearing remains unsealed.”

Reply Br. 18 n.17. The District responds that the district court’s

failure to seal the transcript “appears to have been an oversight” and

that the District “has no objection to an order providing that, if

someone orders a copy of the transcript, the court reporter should
20

attacked [Jane] Doe by accusing her of deceptively working

around his ‘no personal service rule’ . . . and . . . of engaging in

unethical behavior by having ‘ex parte’ communications with

chambers” and (3) graduated from D.C. public schools and has

“been given special recognition by that system.” Appellant’s

Br. 32. Liteky forecloses Doe’s first two grounds for recusal

because they are based on the district judge’s allegedly flawed

rulings and excessive statements. As for the third ground, being

an alumnus of DCPS schools does not preclude a district judge

from presiding over a case involving the DCPS. See, e.g., Lunde

v. Helms, 29 F.3d 367, 370-71 (8th Cir. 1994) (recusal not

required where judge was party defendant’s alumnus, financial

contributor and participant in its educational programs); Wu v.

Thomas, 996 F.2d 271, 274-75 & n.7 (11th Cir. 1993) (recusal

not required where judge was party defendant’s alumnus,

adjunct professor and financial contributor). We see no

objective indicia of bias here.

***

In Honig the Supreme Court explained that, in enacting the

IDEA’s precursor, the “Congress very much meant to strip

schools of the unilateral authority they had traditionally

employed to exclude disabled students . . . from school.” 484

U.S. at 323 (emphasis in original). Today we attempt to

effectuate the Congress’s intention by recognizing the authority

of an IDEA hearing officer to ensure that every disabled child

receives a free appropriate public education, including in the

context of a local school system’s disciplinary decision.

Accordingly, and for the foregoing reasons, we reverse the

district court’s grant of summary judgment to the District.

So ordered.

substitute the pseudonym John Doe for the name of the child, and Jane

Doe for the name of the mother in the transcript.” Appellee’s Br. 36.