N.S. v. Dist. of Columbia

• Decision Date: 28 September 2017
• Docket Number: Civil Action No. 16–306 (JDB–GMH)
• Citation: 272 F.Supp.3d 192
• Parties: N.S., as a minor, BY AND THROUGH her parents and next friends, S.S. and C.S., Plaintiffs, v. DISTRICT OF COLUMBIA, Defendant.
• Court: U.S. District Court — District of Columbia

272 F.Supp.3d 192

N.S., as a minor, BY AND THROUGH her parents and next friends, S.S. and C.S., Plaintiffs,

v.DISTRICT OF COLUMBIA, Defendant.

Civil Action No. 16–306 (JDB–GMH)

United States District Court, District of Columbia.

Signed September 28, 2017

Michael J. Eig, Paula Amy Rosenstock, Michael J. Eig & Associates, PC, Chevy Chase, MD, for Plaintiffs.

Aaron Josiah Finkhousen, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

JOHN D. BATES, United States District Judge

Plaintiff N.S. and her parents brought this suit against the District of Columbia Public Schools (DCPS) under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. Specifically, plaintiffs sought reversal of an administrative hearing officer's February 4, 2016 determination that DCPS did not deny her the "free and appropriate education" (FAPE) required by the IDEA. Id. § 1400(d)(1)(A). This case was referred to Magistrate Judge G. Michael Harvey, who issued a thorough Report and Recommendation (R & R) recommending that the Court affirm the hearing officer's decision, deny plaintiff's motion for summary judgement, and grant defendant's motion for summary judgment. See R & R, Jan. 31, 2017 [ECF No. 26]. Judge Harvey also determined that his R & R was consistent with the Supreme Court's recent decision in Endrew F. ex rel. Joseph F. v. Douglas County School District, ––– U.S. ––––, 137 S.Ct. 988, 197 L.Ed.2d 335 (2017). See Order, May 3, 2017 [ECF No. 33]. Plaintiffs have since moved to voluntarily dismiss this case with prejudice under Federal Rule of Civil Procedure 41(a)(2). See Mot. for Dismissal [ECF No. 37]. Defendant opposes the motion. See Def.'s Opp'n to Pls.' Mot. for Voluntary Dismissal ("Def.'s Dismissal Opp'n") [ECF No. 38]. After considering both parties' filings on the matter, the Court will grant plaintiffs' motion, and will dismiss the case with prejudice.

I. BACKGROUND

A. Statutory and Regulatory Background

As a recipient of federal funding under the IDEA, the District of Columbia must provide a FAPE to all students who reside in the District and who have disabilities. See 20 U.S.C. §§ 1400(d)(1)(A), 1412(a)(1). This is typically accomplished through implementing an individualized education program (IEP) at an appropriate school. See Sch. Comm. of Burlington v. Dep't of Educ. of Mass., 471 U.S. 359, 368, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). An IEP must be developed by a team that includes the student's parents, teachers, and other specialists, and must assess the student's needs, implement strategies to meet those needs, and include goals to measure the IEP's effectiveness. 20 U.S.C. § 1414(d)(1)(A)–(B). The IEP must be revised at least annually to determine whether the student is making progress. Id. § 1414(d)(4)(A). If the public school system cannot meet the student's needs, the student must be placed in a private school at public expense. Id. § 1412(a)(10)(B)–(C).

A parent who believes that her child's IEP is inappropriate may request an administrative hearing, referred to as a "due process hearing," before an independent hearing officer. Id. § 1415(f)(1). After the hearing officer issues a determination ("hearing officer determination" or "HOD"), the parent may seek review of the HOD in the appropriate federal district court. Id. § 1415(i)(2). The party challenging the HOD bears "the burden of persuading the court that the hearing officer was wrong," Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 521 (D.C. Cir. 2005), by a preponderance of the evidence, 20 U.S.C. § 1415(i)(2)(C). While these review processes are underway, "the child shall remain in [her] then-current educational placement"—thus maintaining the status quo—"unless the State or local educational agency and the parents otherwise agree." Id. § 1415(j). This guarantee is known as the IDEA's "stay-put provision."

B. Factual Background

Because no party has objected to the R & R's factual findings, the Court adopts those factual findings in full and incorporates by reference the detailed statement of the case's background contained in the R & R. The summary that follows is drawn from the R & R.

N.S. is a student diagnosed with Attention Deficit Hyperactivity Disorder, executive functioning disorder, an anxiety disorder, and a mixed expressive and receptive language disorder. AR 7; R & R at 2. During the 2015–16 school year—the year at issue in this case—she was in the ninth grade. During the 2008–09 school year, N.S. attended a private school where she did not perform well. AR 61, 945–46. Her parents applied to DCPS to enroll her in the Lab School of Washington, a private school for students with learning disabilities, but DCPS did not respond to their application. N.S.'s parents eventually enrolled her in the Lab School and filed an administrative complaint against DCPS for failing to process her complaint in a timely manner, alleging that this resulted in denying N.S. a FAPE. AR 61; R & R at 2. On January 29, 2010, a hearing officer agreed with N.S.'s parents, and ordered DCPS to partially reimburse them for tuition at the Lab School, and to develop an appropriate IEP for N.S. R & R at 2. N.S. remained at the Lab School thereafter.

In March 2015, N.S.'s parents attended a meeting at DCPS to develop an IEP for N.S. for the 2015–16 school year. Three months later, N.S.'s parents received notice that N.S.'s IEP would be implemented at Woodrow Wilson Senior High School ("Wilson")—which meant that she would have to leave the Lab School. N.S.'s parents objected to this placement, and therefore again unilaterally placed N.S. in the Lab School for the 2015–16 school year and filed a due process complaint against DCPS, asserting a number of procedural and substantive claims. AR 3, 455–69; R & R at 3, 25–26.

The hearing officer held a two-day hearing before issuing his determination on February 4, 2016. He considered extensive evidence, including the parties' representations, the documentation from this and prior IEP meetings, and expert testimony regarding N.S.'s educational needs, all of which is summarized in the R & R. See id. at 3–21. Ultimately, he concluded that DCPS provided N.S. with an appropriate IEP, selected Wilson as an appropriate placement, and did not deny N.S.'s parents an opportunity to participate meaningfully in the development of N.S.'s IEP and in the school placement decision. Therefore, the hearing officer determined, N.S. was not denied a FAPE.

Plaintiffs challenged the HOD in this Court. See Compl. [ECF No. 1]. This Court referred the matter to Magistrate Judge Harvey for full case management. See Order, Mar. 15, 2016 [ECF No. 5]. Judge Harvey considered the parties' cross-motions for summary judgment and on January 31, 2017 issued a Report and Recommendation recommending that plaintiffs' motion be denied and defendant's be granted. See R & R at 59. He first considered DCPS's mootness argument: DCPS asserted that because plaintiffs challenged the IEP for the 2015–16 school year—which was already finished, and for which DCPS had already paid for N.S.'s education at the Lab School—the issue was moot. Id. at 26–27. Judge Harvey concluded that the case was not moot under the capable of repetition yet evading review doctrine. Id. (quoting Spencer v. Kemna, 523 U.S. 1, 17, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) ). This doctrine is particularly applicable here, Judge Harvey concluded, where the parties continue to articulate "irreconcilable views" on certain aspects of N.S.'s IEP, making it extremely likely that the same dispute will arise in the future. Id. at 28–29.

Judge Harvey then explained that the IDEA requires a two-step inquiry when reviewing a FAPE: a court must ask, first, whether "the state [has] complied with the procedures set forth" in the IDEA in designing the IEP, and second, whether the IEP is "reasonably calculated to enable the child to receive educational benefits." Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206–07, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). Applying this standard, Judge Harvey determined that the IEP and N.S.'s placement at Wilson met the requirements of the IDEA and provided N.S. with a FAPE. Judge Harvey also determined that N.S.'s parents "were not denied access to the procedural safeguards that guarantee parents both an opportunity for meaningful input in all decisions affecting their child's education and the right to seek review of any decisions they think inappropriate.' " R & R at 55 (quoting Honig v. Doe, 484 U.S. 305, 311–12, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) ).

After Judge Harvey issued the R & R, he placed the case in abeyance pending the Supreme Court's not-yet-issued decision in Endrew F. See Order, Feb. 8, 2017 [ECF No. 29]. When Endrew F. was issued in March 2017, Judge Harvey reviewed it and determined that supplemental briefing was not necessary because Endrew F. did not require reconsideration of his conclusions in the R & R. Plaintiffs then timely filed their objections to the R & R, asserting that Judge Harvey had applied to two issues legal standards that are incorrect after Endrew F. See Pls.' Objections [ECF No. 34]. Defendant opposed plaintiffs' objections but did not assert any objections of its own to the R & R. See Def.'s Opp'n [ECF No. 35].

Once the objections to the R & R were fully briefed, plaintiffs filed a motion for voluntary dismissal with prejudice under Federal Rule of Civil Procedure 41(a)(2), which allows dismissal at the plaintiff's request if the court determines that doing so would be proper. See Fed. R. Civ. P. 41(a)(2). In that motion, plaintiffs argue that the case is now moot—despite taking the opposite position in their earlier motion for summary judgment—because the 2015–16 school year has already passed and N.S. is enrolled "in another program" for the present school year. See Pls.' Mot. for Voluntary Dismissal [ECF No. 37] at 1. Notwithstanding...