[00:00:01] Speaker 00: Case number 24-5065, William Skew-Scox, appellant, versus Georgetown University Law Center and Department of Education Office for Civil Rights. [00:00:12] Speaker 00: Mr. Skew-Scox for the appellant, Ms. [00:00:15] Speaker 00: Schuster for the appellees. [00:00:19] Speaker 04: Good morning, whenever you're ready. [00:00:21] Speaker 03: Good morning, Your Honors, and may it please the court [00:00:25] Speaker 03: The district court's findings that service is defective and that in the alternative, I failed to state a claim are erroneous. [00:00:34] Speaker 03: Regarding service of process, the district court's findings rely almost entirely on the fact that I filled out the return address field on the envelope that contained the summons and the complaint. [00:00:49] Speaker 03: The district court relied on this fact to find that I had personally mailed the summons and the complaint. [00:00:59] Speaker 03: This is despite the fact that I submitted to the court a signed affidavit signed under the penalty of perjury from a third party stating that she had, in fact, mailed the summons in the complaint. [00:01:13] Speaker 04: Putting aside the facts of this case, are you willing to accept the general proposition that a plaintiff can't self-serve [00:01:27] Speaker 03: No, Your Honor. [00:01:29] Speaker 03: The district court relied on Johnson Richardson cases for the proposition that a plaintiff may not file, may not mail the summons and complaint by himself or herself. [00:01:46] Speaker 03: The plain text of Federal Rules of Civil Procedure Rule 4 says that service or process can be affected under the local rules, and the local rules [00:01:57] Speaker 03: in this area are the rules of the DC Superior Court, which permit a plaintiff to mail a summons and a complaint himself. [00:02:07] Speaker 04: Which is one option for manner of service under 4E, seems independent of the who should serve rule, which is 4C. [00:02:23] Speaker 03: Correct, Your Honor. [00:02:24] Speaker 03: And there are, well, while Georgetown has pointed to Johnson Richardson for the prohibition on a plaintiff mailing a summons and a complaint, there are other cases at the DC District Court level where a plaintiff has mailed a summons and complaint, and that service has been recognized as [00:02:48] Speaker 03: properly served without much analysis or further explanation because the plain text is clear under Rule 4E and it's uncontroversial in DC Superior Court that a plaintiff may do so. [00:03:08] Speaker 03: Because the district court's finding of ineffective service entirely relies on one the fact that I filled out the return address field which in my opinion is completely irrelevant to whether I mailed it or not which I didn't because there was a third party who submitted it. [00:03:25] Speaker 03: signed affidavit under the penalty of perjury that she did. [00:03:27] Speaker 03: There's no other finding to support the district court's conclusion that service was not effective. [00:03:37] Speaker 03: Georgetown alleges that service was not effective because it was not received by [00:03:42] Speaker 03: an authorized agent or there was not a return receipt. [00:03:45] Speaker 03: The district court made no findings on either of these arguments raised by Georgetown. [00:03:51] Speaker 03: Georgetown raised them before the district court twice and two times the district court said nothing on these two other arguments. [00:04:02] Speaker 04: We can affirm on any ground [00:04:06] Speaker 04: Correct. [00:04:07] Speaker 04: So why, suppose we agree with you on your principle point that second time around you had your friend do the service. [00:04:17] Speaker 04: So you went on that ground. [00:04:19] Speaker 04: Why shouldn't we affirm on the alternative ground that there was no receipt? [00:04:27] Speaker 03: First, the district court made no factual findings, whether there was or was not. [00:04:31] Speaker 03: So as a court of review, I [00:04:33] Speaker 03: My opinion is that there's nothing on in the record. [00:04:37] Speaker 03: There aren't sufficient facts in the record for this court to make that finding in the alternative that this court does agree with Georgetown. [00:04:47] Speaker 04: approved service. [00:04:49] Speaker 03: Correct. [00:04:50] Speaker 03: And there are attachments that I submitted to the district court that I believe meet my burden on these two other requirements that Georgetown has raised. [00:05:01] Speaker 03: The district court did not make any findings on that. [00:05:05] Speaker 04: What in the record would show that there was receipt and return? [00:05:11] Speaker 03: So there is the attached to the service of process affidavit. [00:05:19] Speaker 03: There is the green certified mail receipt there filled out in the handwriting of the third party who. [00:05:29] Speaker 03: No, I know I'm giving you that. [00:05:30] Speaker 03: Okay. [00:05:30] Speaker 03: Focused on the receipt. [00:05:32] Speaker 03: And also the tracking and everything. [00:05:35] Speaker 03: I also submitted a screenshot showing it had been delivered. [00:05:39] Speaker 03: And it's addressed to the office of the general counsel. [00:05:43] Speaker 03: Georgetown claims that their general counsel is not authorized to accept service or process. [00:05:50] Speaker 03: Even if this court agrees with Georgetown that for those alternative reasons, service was defective, I should be given a further opportunity to affect service, one, because [00:06:04] Speaker 03: even though Georgetown had raised these arguments twice, the district court never relied on these. [00:06:09] Speaker 03: And if we are going to look to Johnson Richardson, the pro se plaintiff in Johnson Richardson was given three chances to effect service. [00:06:21] Speaker 03: Also in this, in Johnson. [00:06:23] Speaker 04: You sort of had a third chance that district court dismissed the second time. [00:06:31] Speaker 04: And the limitations period was still open. [00:06:36] Speaker 04: It could have re-served. [00:06:39] Speaker 03: So the district court dismissed, in its last order, dismissed it. [00:06:44] Speaker 03: Without prejudice. [00:06:45] Speaker 03: Without prejudice, but did not give, unlike its prior order, did not give me another opportunity to further effect service. [00:06:52] Speaker 04: And in Johnson Richardson. [00:06:53] Speaker 04: The dismissal is without prejudice. [00:06:55] Speaker 04: Why wouldn't you have that just from the without prejudice? [00:07:00] Speaker 03: I suppose I could have refiled and started the whole process again, but I also immediately took leave of appeal and well, now we're here. [00:07:09] Speaker 03: And again, in Johnson Richardson, that court found after two attempts of service of process based on the mailings issue that has been at issue in this case, [00:07:21] Speaker 03: that that plaintiff had not mailed it to an agent authorized to receive service. [00:07:30] Speaker 03: And that plaintiff was given another opportunity to effect service. [00:07:34] Speaker 03: So if we're going to rely on Johnson and Richardson, which again, my position is that the several other cases that [00:07:43] Speaker 03: you know, uncontroversially accept that a plaintiff can serve through the mail is my preference. [00:07:49] Speaker 03: But if we're going to rely on Johnson Richardson, then as a similarly situated plaintiff, I should also be given a third opportunity on remand to effect service. [00:07:57] Speaker 03: And I can affirm and swear to this court that I will hire a professional process server so we won't be in the same territory again. [00:08:07] Speaker 05: Well, I have a question about standing. [00:08:09] Speaker 05: Georgetown argues you don't have standing. [00:08:12] Speaker 05: And I just want to make sure I understand your theory of it. [00:08:14] Speaker 05: Is it essentially that this grade is going to harm your future job prospects? [00:08:21] Speaker 05: And that's the injury that you're trying to remedy? [00:08:24] Speaker 03: Correct, Your Honor. [00:08:24] Speaker 03: The harm is this illegitimate grade on my transcript. [00:08:31] Speaker 03: Every time that I apply for a job, I'm asked to declare my GPA, and they ask for a copy of my transcript. [00:08:40] Speaker 03: So this is an ongoing violation. [00:08:42] Speaker 03: There's continuing harm. [00:08:44] Speaker 03: I mean, unfortunately, as lawyers, our law school GPAs do end up determining a large part of our professional opportunities. [00:08:53] Speaker 05: This may not end up being important, but we don't know. [00:08:59] Speaker 05: which direction, I can assume, which direction you think your GPA would change if this was changed to a pass. [00:09:05] Speaker 05: But we don't know from the papers. [00:09:07] Speaker 05: And we don't know how much. [00:09:08] Speaker 05: Do you know how much your GPA would change? [00:09:13] Speaker 03: OK, I don't want to get in trouble by offering facts to the court that are not already contained in the record. [00:09:18] Speaker 03: But yes, I've recalculated my GPA. [00:09:21] Speaker 03: And it would have been the difference between graduating cum laude and not. [00:09:25] Speaker 03: which is very significant. [00:09:27] Speaker 03: For example, federal clerkships many times have as a requirement that an applicant must have graduated at least with cum laude. [00:09:37] Speaker 03: And so any time that I look at any sort of job posting, I'm left out of an entire category of [00:09:49] Speaker 03: opportunities due to this illegitimate grade on my transcript that ended up being outcome determinative for whether I received honors or not. [00:10:01] Speaker 03: As regards the district court's finding that I failed to state a claim, first the district court improperly construed the facts in a light actually most favorable to [00:10:17] Speaker 03: the defendant and not the running into your red light. [00:10:21] Speaker 03: I'll give you a minute. [00:10:22] Speaker 03: OK. [00:10:23] Speaker 03: Thank you, Your Honor. [00:10:23] Speaker 03: First of all, I would state that it demonstrates an inherent bias that affects the entire legal reasoning. [00:10:31] Speaker 03: The district court said that I turned in a subpar paper and received a poor grade. [00:10:36] Speaker 03: That's not even something that Georgetown has stated in any of their filings. [00:10:40] Speaker 03: It's something that the district court completely made up. [00:10:42] Speaker 03: And it's an adverse one. [00:10:44] Speaker 03: It violates concerning the facts the light most reasonable. [00:10:47] Speaker 03: But it's evidence of judicial bias in that this order is based on facts that they completely made up. [00:10:55] Speaker 03: And again, my view of my legal claim is that I was otherwise discriminated against because I raised an issue about whether professors fulfilled their minimum requirements under the rules of Georgetown. [00:11:09] Speaker 03: And in deciding that issue, which was unrelated to my [00:11:14] Speaker 03: modest extension in a paper, Georgetown decided to excuse the professor's failure to meet their minimum requirements. [00:11:22] Speaker 03: Thank you. [00:11:23] Speaker 04: We'll give you some rebuttal. [00:11:24] Speaker ?: Thank you. [00:11:35] Speaker 04: Ms. [00:11:36] Speaker 04: Schuster, good morning. [00:11:38] Speaker 01: Good morning, your honors. [00:11:39] Speaker 01: May it please the court? [00:11:40] Speaker 01: I'm Stephanie Schuster, here on behalf of Georgetown. [00:11:43] Speaker 01: I wanna pick off where plaintiff left off on the notion of judicial bias. [00:11:48] Speaker 01: I think the record shows the district court. [00:11:50] Speaker 01: Let's start on this. [00:11:52] Speaker 01: Yeah, plaintiff fairly and reasonably. [00:11:54] Speaker 01: The lawsuit is properly dismissed because it was procedurally and substantively defective in at least three ways, starting with service, Judge Katzis. [00:12:03] Speaker 01: Plaintiff failed to properly serve Georgetown despite getting a second opportunity to do so. [00:12:07] Speaker 01: Both times he attempted service himself, contrary to both the federal rules and DC law. [00:12:13] Speaker 01: In both times, plaintiffs failed to direct the papers to a person authorized to accept service on Georgetown's behalf and consequently failed to produce proof. [00:12:21] Speaker 04: Your first point, your first ground of insufficient service. [00:12:26] Speaker 04: Why isn't it enough for him to hand it to a friend who put it in the mail? [00:12:32] Speaker 04: I mean, this rule that you have to, you can't self-serve by mail is ridiculous enough to begin with. [00:12:40] Speaker 04: And he has a friend do it. [00:12:43] Speaker 01: So certainly if he'd had a friend, if the district court had found that his friend had actually deposited the envelope in the mail, that would be effective service in our David. [00:12:56] Speaker 01: Yeah, but the submitted the affidavit is very clear. [00:12:59] Speaker 01: The person who signed it. [00:13:01] Speaker 04: The only question is whether the friend putting [00:13:07] Speaker 04: papers in the mail is rendered invalid because he wrote out the address and the return address. [00:13:14] Speaker 01: I disagree with that, Your Honor. [00:13:15] Speaker 01: I think that's inconsistent with the district court's findings. [00:13:17] Speaker 01: What the district court found is that it wasn't clear from the face of the affidavit. [00:13:20] Speaker 01: If you look at the affidavit, the person who signed it does not attest that she served it. [00:13:25] Speaker 01: She did not say, I delivered these papers. [00:13:27] Speaker 01: There are several boxes to check where a process server can check, I served, I left, I returned the summons. [00:13:33] Speaker 01: That wasn't done here. [00:13:34] Speaker 05: I'm just reading from footnote in the district court opinion. [00:13:38] Speaker 05: He had a third party deliver his complaint and summons to the U.S. [00:13:42] Speaker 05: Postal Service. [00:13:44] Speaker 05: I don't see it at any time when he says the affidavit is unclear. [00:13:48] Speaker 01: I want you to your honor if you bear with me for just one second. [00:13:53] Speaker 01: He says the affidavit the attachments to the proof of service. [00:13:56] Speaker 01: are not exactly clear as to who submitted the package. [00:14:01] Speaker 01: Bottom of page, it's on 97 of the appendix, page five of the opinion. [00:14:07] Speaker 01: The exhibits attached to his proof of service do not clearly indicate who physically submitted the package complaint to the U.S. [00:14:12] Speaker 01: Postal Service for delivery. [00:14:14] Speaker 01: And if you look at the affidavit of service, it says where she checked other, she says, in the passive voice sent by certified mail, [00:14:21] Speaker 01: The district court had that and it had the evidence of the envelope which says from the plaintiff plaintiff had an opportunity to submit additional evidence he didn't but based on the evidence in the record the district court's conclusion that plaintiff served is not clearly erroneous and its decision to dismiss rather than give plaintiff. [00:14:40] Speaker 01: third chance at the apple, a third bite at the apple was not an abusive discretion. [00:14:44] Speaker 01: But even putting aside who sent the papers, we have the other deficiency that the papers were not directed to an appropriate person authorized to accept service. [00:14:54] Speaker 01: Again, the federal rules and DC law require entities to be served via a registered agent or a person authorized to accept service. [00:15:01] Speaker 04: Who's the appropriate person? [00:15:03] Speaker 01: The the registered agent, I believe, is the General Counsel, CT Corp. [00:15:08] Speaker 01: The General Counsel is, I mean, Georgetown University's General Counsel is a vice president and so could be the law school separately incorporated. [00:15:17] Speaker 01: I believe it is, but the law school has its own. [00:15:21] Speaker 01: The law school does not have its own general counsel. [00:15:22] Speaker 01: The Georgetown University's Office of General Counsel is the office right person. [00:15:29] Speaker 01: It could be if it was delivered to them, but the Office of the General Counsel from a simple Google search is not located at the law school. [00:15:35] Speaker 04: There is no Georgetown Law General Counsel. [00:15:36] Speaker 04: The problem was it went to New Jersey Ave rather than across the river in Georgetown. [00:15:42] Speaker 01: Correct. [00:15:43] Speaker 01: It was not directed to the appropriate office or to the appropriate person. [00:15:46] Speaker 01: And that's why there's no return receipt showing it was received by the Office of the General Counsel. [00:15:53] Speaker 01: Effective service is essential to personal jurisdiction and for good reason. [00:15:57] Speaker 01: If you look at what happened in this case, the first misdirected service not directed to an authorized person resulted in entry of default against Georgetown. [00:16:06] Speaker 01: That's when Georgetown learned about this lawsuit. [00:16:08] Speaker 01: These aren't mere technicalities. [00:16:09] Speaker 01: These are essential requirements to personal jurisdiction. [00:16:12] Speaker 01: And as this court has made clear, courts have uniformly held that any judgment rendered in a case where service does not comply with the effective service requirements is invalid. [00:16:21] Speaker 05: I'm sorry, who did you say he should have served? [00:16:23] Speaker 01: He should, he could have served the office of the general counsel at its address, because that is that individual whose name is not placed in these papers is an officer of Georgetown University under the rules, an officer of an entity or another person legally authorized to accept service, like a registered agent would have been appropriate. [00:16:40] Speaker 01: Georgetown also has a registered agent. [00:16:45] Speaker 01: But even putting the service issues aside and turning quickly to standing, [00:16:49] Speaker 01: Plaintiff lacks standing because he seeks only declaratory and injunctive relief, both of which are forms of relief that require either an ongoing injury or an imminent future injury. [00:17:00] Speaker 01: Plaintiff has asserted in his reply brief and then here again today that the grade being permanent on his transcript might harm unspecified job prospects. [00:17:11] Speaker 01: The complaint doesn't support that theory. [00:17:13] Speaker 01: It's not alleged. [00:17:14] Speaker 02: I mean, why? [00:17:15] Speaker 02: Why wouldn't Mr skews Cox have standing to have his grade petition reviewed without animus? [00:17:24] Speaker 02: Well, I mean, it's a kind of procedural harm, arguably under the rehabilitation act. [00:17:30] Speaker 01: Certainly, but he does not have the sort of injury, in fact, necessary to have the grade petition reviewed. [00:17:35] Speaker 01: He does not have an ongoing injury that supports giving the court jurisdiction because he does not. [00:17:40] Speaker 04: It's a little bit abstract, but we look to harms analogous to common law, defamation in FICRA cases. [00:17:52] Speaker 04: If you have adverse information in your credit report, maybe it [00:17:58] Speaker 04: harms you going forward with some future application. [00:18:01] Speaker 04: Maybe it doesn't, but that is not to abstract an injury. [00:18:06] Speaker 01: I do think it's too abstract an injury for Article 3 purposes. [00:18:10] Speaker 01: It's not concrete. [00:18:11] Speaker 01: He's not alleged. [00:18:12] Speaker 01: It's pure speculation based on the assertions, which again are unalleged, not in the complaint, but based on the assertions in his briefing here today, just speculated about it. [00:18:19] Speaker 01: There we the Article 3 requires plausible allegations at this stage of a concrete, particularized and either actual or imminent injury. [00:18:28] Speaker 04: I didn't go back and. [00:18:30] Speaker 04: reread Spokio. [00:18:32] Speaker 04: So I'm doing this for memory. [00:18:33] Speaker 04: But there was a distinction between information like the person has the wrong zip code versus information that, you know, the person is a tax cheat or something. [00:18:47] Speaker 04: And that's bad grade seems more like the latter. [00:18:52] Speaker 01: But a concrete entry needs to have a real world. [00:18:54] Speaker 01: We're talking about concreteness at this point, rather than whether it's ongoing. [00:18:58] Speaker 01: It was what Spokio was about. [00:19:00] Speaker 01: But in terms of it being concrete, it need to have a real world impact. [00:19:03] Speaker 01: You need to allege some real world effect that actually resulted in negative impact. [00:19:08] Speaker 01: We're all lawyers. [00:19:08] Speaker 01: We all know that. [00:19:09] Speaker 02: law school GPAs matter for job prospects. [00:19:14] Speaker 01: Certainly, GPAs matter for all sorts of job prospects, Your Honor. [00:19:17] Speaker 02: But the plaintiff has not alleged a single instance where he attempted to get a job and was denied or was... But does he have to allege that in order to show that he is standing for what's a sort of procedural harm to have his grade reviewed without animus? [00:19:33] Speaker 01: He does. [00:19:34] Speaker 01: He needs to allege an ongoing harm that affects him in a real way for the court to order that relief. [00:19:39] Speaker 02: his allegation is that his grade was reviewed with bias. [00:19:46] Speaker 02: And so if it were reviewed without bias, the outcome may be different. [00:19:49] Speaker 02: And in that kind of procedural harm, ordinarily causation and redressability is somewhat relaxed. [00:19:55] Speaker 02: He doesn't have to show that his grade would definitely change or that it would change in a certain direction. [00:20:01] Speaker 01: And the definiteness of the change is not our argument, but he does need to show [00:20:06] Speaker 01: that the injury is ongoing. [00:20:08] Speaker 01: A past injury is not enough to make out a present case or controversy for a plaintiff seeking the type of injunctive or declaratory relief that he's seeking. [00:20:16] Speaker 01: But moving to the point of animus, I see my time's about to expire. [00:20:21] Speaker 01: So let me turn to the final grounds. [00:20:24] Speaker 01: Putting aside lack of personal jurisdiction, defective service, lack of standing, the plaintiff also fails to state a claim, whether it's construed as a failure to accommodate claim or a disparate treatment claim based on animus. [00:20:36] Speaker 01: plaintiff doesn't plausibly allege that his grade change was denied because of or by reason of his disability. [00:20:42] Speaker 01: He never requested that Georgetown extend the deadline for him to submit his final paper even though he sought and was granted an extension of the interim deadline to submit the draft for feedback. [00:20:52] Speaker 01: Plaintiff challenged his grade because as a result he had less time for feedback. [00:20:56] Speaker 01: The complaint doesn't plausibly allege that Georgetown denied that challenge because of the [00:21:01] Speaker 01: The fact that he requested an accommodation the complaint makes clear Georgetown denied the allegation because plaintiff chose this truncated review period and then complained about it after the fact plaintiff's choice to seek that extension defeats this disparate treatment claim or an animus claim in two ways one it breaks the causal chain necessary to make out that claim. [00:21:20] Speaker 01: But in another, it demonstrates that on the face of the complaint, there is an obvious alternative explanation to any insinuation of animus that is now being argued on appeal, that there was, this was plaintiff's choice. [00:21:31] Speaker 01: He asked for this, he did not, he had options available to him and did not exercise them. [00:21:35] Speaker 01: I see my time's about to expire, so unless the court has questions for these reasons, we ask that the judgment be affirmed. [00:21:40] Speaker 04: Thank you. [00:21:41] Speaker 04: Thank you very much. [00:21:45] Speaker 04: Mr. Skuzcox will give you two minutes. [00:21:54] Speaker 03: On rebuttal, I would like to draw the court's attention to the proof of service affidavit found on page 35 of the Joint Appendix. [00:22:04] Speaker 03: To parse the language, [00:22:07] Speaker 03: Georgetown has said that, again, I delivered it the second time. [00:22:11] Speaker 03: We have this affidavit signed under a penalty of perjury. [00:22:15] Speaker 03: And just reading through the text here, it says, this summons for Georgetown University Law Center was received by me, referring to the third party, on April 6, 2023. [00:22:27] Speaker 03: And then she checks the box and says, sent by certified mail. [00:22:31] Speaker 03: If we look at the con, yes, okay, I is not there. [00:22:36] Speaker 03: Um, but if we look at the context of this, it's saying received by me and sent on, uh, by certified mail. [00:22:45] Speaker 03: So the context here is clear that it was she, there's a missing eye here, but the context is clear that it was her who sent it. [00:22:53] Speaker 03: And again, I mean, if George down's position here is that. [00:22:57] Speaker 03: Service was defective now because there was an pronoun I missing after the pronoun me. [00:23:05] Speaker 03: I mean, I think that stretches all reasonability. [00:23:08] Speaker 03: And given the fact that, again, I'm a pro se plaintiff here, working with a third party to effect service, I mean, it's just unreasonable. [00:23:17] Speaker 03: And in the grammatical context here, it's clear that it was sent by her. [00:23:22] Speaker 03: To conclude, even if this court agrees with Georgetown that for one of these reasons services, even if the court agrees that. [00:23:31] Speaker 03: For example, plaintiffs are prohibited from filling out a return address field, and that should trump an affidavit signed in on the penalty of perjury. [00:23:41] Speaker 03: I should get another opportunity to effect service, even if the court agrees that I lack standing or that there was a failure to state a claim. [00:23:50] Speaker 03: Again, I would ask that this court grant me leave on remand to amend the complaint to comply with these standards as is custom under rule 15. [00:24:00] Speaker 04: Thank you, counsel. [00:24:01] Speaker 04: The case is submitted.