B.D. v. Dist. of Columbia

• Docket Number: CIVIL 13-1223 (RJL)
• Decision Date: 15 September 2023
• Parties: B.D., by and through his parents and next friends, ANNE DAVIS and BRANTLEY DAVIS, et al., Plaintiffs, v. DISTRICT OF COLUMBIA, Defendant.
• Court: U.S. District Court — District of Columbia

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B.D., by and through his parents and next friends, ANNE DAVIS and BRANTLEY DAVIS, et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA, Defendant.

CIVIL No. 13-1223 (RJL)

United States District Court, District of Columbia

September 15, 2023

MEMORANDUM OPINION (SEPTEMBER 15^th 2023) [DKT. ## 97, 99]

RICHARD J. LEON UNITED STATES DISTRICT JUDGE

In one of their many administrative actions against District of Columbia Public Schools (“DCPS”), Anne and Brantley Davis sought and obtained an administrative determination of the educational placement of their disabled son, B.D., as of when they filed the action. Disagreeing with the determination, the Davises challenged it in this Court, and the Court remanded for reconsideration. On remand, the hearing officer only partially expanded B.D.'s educational placement, and so they have returned yet again to this Court with more objections. They also claim attorneys' fees and costs for partially prevailing in establishing B.D.'s educational placement, which the District of Columbia does not oppose. For the following reasons, the hearing officer was correct not to expand the educational placement any further, and the Davises are entitled to attorneys' fees and costs, but not quite as much as they claim. Accordingly, the Court will GRANT the District's motion for partial summary judgment and will GRANT IN PART and DENY IN PART the Davises' motion for summary judgment.

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BACKGROUND

I. Legal Background

The Individuals with Disabilities Education Act (“IDEA”) provides federal funding to states, the District of Columbia, and territories on the condition that they provide a free appropriate public education (“FAPE”) to all children with disabilities. 20 U.S.C. § 1412(a)(1)(A). “The ‘primary vehicle' for securing an appropriate public education is the child's ‘individualized education program,' which is commonly referred to as an TEP.'” Olu-Cole ex rel. M.K. v. E.L. Haynes Pub. Charter Sch., 930 F.3d 519, 523 (D.C. Cir. 2019) (quoting Honig v. Doe, 484 U.S. 305, 311 (1988)). “Once the IEP is developed, the school system must provide an appropriate educational placement that comports with the IEP.” G.B. v. District of Columbia, 78 F.Supp.3d 109, 112 (D.D.C. 2015) (Kollar-Kotelly, J.).

When parents and school officials disagree over a child's educational placement, formal procedures govern the resolution of those disputes, starting with the filing of a “due process complaint.” 20 U.S.C. § 1415(b)(7)(A), (c)(2). Pursuant to what is called the “stay-put” provision, “during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child.” Id. § 1415(j).

II. Case History Until 2020 Remand

The present dispute has its roots in early 2012, when the Davises filed a due process complaint after they struggled to agree with DCPS on B.D.'s educational placement for part of 2011. A.R. at 1433-35, 1438-41. In that action, a Hearing Officer Determination

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was issued in March 2012 (“March 2012 HOD”), concluding that DCPS had denied B.D. a FAPE from August 2011 through the 2011-12 school year. Id. at 1451-55. The hearing officer ordered B.D.'s IEP team to create a new IEP for him; in the interim, DCPS was to provide one-on-one home instruction for two hours per day, five days per week. Id. at 1463. He also found that the occupational therapy for which the Davises had been paying out of pocket was an appropriate service for B.D., and so he ordered DCPS to reimburse the Davises for the expenses they had incurred and to provide occupational therapy for another three months, five hours per week, as compensatory education. Id. at 1446-47, 1456-58, 1463. Pursuant to that order, a new IEP for B.D. was finalized in July 2012 and then amended in October 2012, but the Davises objected to both iterations. Id. at 206-28, 237-61,2213-17.

The next April, the Davises filed another due process complaint challenging those July and October IEPs and then filed a motion in that proceeding for a determination of B.D.'s then-current educational placement for purposes of the IDEA'S stay-put provision. Id. at 1489-95. In an order that May (“May 2013 Order”), the hearing officer found that, because B.D. did not have an operative IEP at the time, the March 2012 HOD would serve as an implied agreement as to B.D.'s placement for stay-put purposes. Id. at 1498. B.D.'s then-current educational placement would thus be the one-on-one home instruction for two hours per day, five days per week, that was ordered on an interim basis in March 2012. Id. at 1499. But the Davises did not get everything they asked for: the hearing officer declined their request to include occupational therapy, speech/language therapy, behavioral support services, and parent counseling and training, which were included in the July 2012 IEP.

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Id. at 1490, 1499. Because DCPS had provided those services “voluntarily and/or as administratively-ordered compensatory education,” they could not be part of an implied agreement as to B.D.'s placement. Id. at 1499.

The Davises filed this action against the District in August 2013. In their Amended Complaint, they alleged eight violations of the IDEA, the Rehabilitation Act of 1973, and the Americans with Disabilities Act. Am. Compl. [Dkt. #6] ¶¶ 74-123. After the Court granted in part the District's motion to dismiss, B.D. v. District of Columbia (B.D. T), 66 F.Supp.3d 75,79-81 (D.D.C. 2014), four claims remained (Counts 2,3,4, and 5), all alleging violations of the IDEA. The parties subsequently filed cross-motions for summary judgment, and the Court granted summary judgment for the District on Counts 2 and 5. B.D. v. District of Columbia (B.D. If, 548 F.Supp.3d 222, 237 (D.D.C. 2020).

On Count 4, however, the Court remanded to the hearing officer. Id. at 233. That count alleges that the May 2013 Order failed to include the full range of services making up B.D.'s then-current educational placement-beyond the one-on-one home instruction for two hours per day, five days per week. Am. Compl. ¶¶ 86-89. The Court remanded for two reasons. First, the July 2012 IEP, which added the services the Davises wanted to be included, was finalized pursuant to the same March 2012 HOD that served as the implied agreement for stay-put purposes, and the Court wondered whether those services should have been considered part of B.D.'s educational placement. B.D. II, 548 F.Supp.3d at 233. Second, the Court accepted the Davises' representation that, in 2017, the same hearing officer observed in a separate proceeding involving B.D. that one-on-one home

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instruction was alone an inadequate FAPE in 2012. Id.^[1] Remand was thus appropriate for the hearing officer to consider “these subsequent developments and their impact on the hearing officer's interpretation of B.D.'s ‘current educational placement.'” Id.

That decision necessitated deferral on Count 3, which claims attorneys' fees for prevailing in establishing B.D.'s educational placement, because those fees could continue to grow on remand. Id.; see 20 U.S.C. § 1415(i)(3)(B).

III. Procedural Background Since 2020 Remand

In a Hearing Officer Decision on Remand issued in May 2021 (“May 2021 HODR”), the hearing officer did not believe that those “subsequent developments” had much impact on his prior thinking on B.D.'s educational placement. First, as to the July 2012 IEP, most of the related services it proposed were not (and could not have been) considered by the hearing officer months earlier in the March 2012 HOD and thus could not be part of an implied agreement as to B.D.'s placement. A.R. at 16-17. Moreover,

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because the Davises rejected the July 2012 IEP, the related services it proposed could not be considered part of B.D.'s “IEP in place” thereafter. Id.

The one exception was B.D.'s occupational therapy. Unlike the other related services, occupational therapy at five hours per week had been provided prior to, and was found to be appropriate in, the March 2012 HOD. Id. at 15-16. It therefore should have been considered part of the implied agreement as to B.D.'s placement for stay-put purposes, alongside the one-on-one home instruction. Id. To compensate for that omission, the hearing officer awarded to the Davises the value of the occupational therapy that B.D. missed, $93,750, to be allocated toward any services that B.D. now needs in his current residential placement. Id. at 18-21.

As to the 2017 proceeding that the Court remanded for the hearing officer to consider as well, the hearing officer did not think it was relevant to the proceeding here. Id. at 1708-09. That separate proceeding presented the issue of what compensatory education was appropriate for DCPS's denial of a FAPE from August 2011 to the March 2012 HOD-“a wholly separate question from” the one here of what B.D.'s educational placement was when the Davises initiated the administrative action being reviewed in this case, in April 2013. Id.

Receiving less than they hoped for on remand, the Davises came back to this Court and filed a Supplemental Complaint adding two more causes of action. Count 9 alleges that the May 2021 HODR incorrectly excluded the other related services from B.D.'s educational placement as of April 2013 and failed to provide specific instructions to DCPS for complying with the order to reimburse the $93,750 to the Davises. Suppl. Compl.

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[Dkt. #86] ¶¶ 124-144. Count 10 claims additional attorneys' fees-beyond those claimed in...