S.G. v. District of Columbia

• Decision Date: 08 August 2007
• Docket Number: Civil Action No. 06-1317 (RMC).
• Citation: 498 F.Supp.2d 304
• Parties: S.G., a minor, et al., Plaintiffs, v. DISTRICT OF COLUMBIA, et al., Defendants.
• Court: U.S. District Court — District of Columbia

498 F.Supp.2d 304

S.G., a minor, et al., Plaintiffs, v. DISTRICT OF COLUMBIA, et al., Defendants.

Civil Action No. 06-1317 (RMC).

United States District Court, District of Columbia.

August 8, 2007.

COPYRIGHT MATERIAL OMITTED

Diana Marjorie Savit, Savit & Szymkowicz, LLP, Bethesda, MD, for Plaintiffs.

Amy Caspari, Office of the Attorney General, Edward P. Taptich, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

COLLYER, District Judge.

S.G. is a minor child who needs special education services. He and his parents, Harwant Gill and Aleksandra Parpura-Gill (collectively, the "Gills"), lived in Montgomery County, Maryland, where he attended special education classes. The Gills then moved into the District of Columbia, where S.G. has had a difficult time receiving the special education assistance he requires. He and his parents sue "to both enforce and vacate portions of a February 1, 2006 hearing officer's determination [("HOD")] (later amended on April 27, 2006)." See Pls.' Mem. of P. & A. in Opp. to Defs.' Mot. to Dismiss the Complaint ("Pls.' Mem.") [Dkt. # 11] at 1. Defendants, the District of Columbia and former D.C. Public Schools ("DCPS") Superintendent Clifford B. Janey, have moved to dismiss the complaint, asserting that the Court lacks jurisdiction. See Defs.' Mot. to Dismiss the Complaint ("Defs.' Mem.") [Dkt. # 9]. Having carefully considered the parties' briefs and the two hearing officer decisions at issue, the Court agrees with Defendants in part and will dismiss the Complaint in part without prejudice.

I. BACKGROUND FACTS

S.G. is a disabled student who for many years received special education and related services in Montgomery County Public Schools ("MCPS"). See Pls.' Mem. at 2. The Gills purchased a home in D.C. in early 2005, and Dr. Gill moved immediately into the District of Columbia. Id. Dr Parpura-Gil and S.G. remained in Montgomery County until the end of the 2004-2005 school year to avoid disrupting S.G.'s education. Id. They approached DCPS in April 2005 to begin discussions for an Individualized Education Plan ("IEP") for S.G., so that a smooth transition could be achieved. Id. Under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. ("IDEA"), every special education student must start the school year with an IEP, which is deemed appropriate if it charts a course capable of delivering a free appropriate public education ("FAPE") for that student. See 20 U.S.C. § 1414(d); see also 20 U.S.C. § 1414(d)(2)(C)(i)(II) (noting that under the IDEA, a student with an IEP who transfers to a school district in another state is entitled to receive a FAPE comparable to that set forth in the IEP he brings with him until the new local agency makes any changes that are deemed appropriate).

The Gills were rebuffed by Murch Elementary School, their neighborhood school, and told that registration for the 2005-2006 school year would not occur until August 2005. Pls.' Mem. at 3. Repeated visits and calls to Murch Elementary on May 3, 2005, May 20, 2005, June 8, 2005, and June 10, 2005, were unavailing. Compl. ¶ 16. On a May 20, 2005, visit to Murch, Dr. Parpura-Gill spoke with the principal of the school and gave her a copy of the MCPS IEP for S.G.; the principal said that she did not know DCPS's policy on transfers of students with IEPs from other jurisdictions but she would obtain guidance from DCPS Headquarters and contact the Gills. Compl. ¶ 17. That contact never occurred.¹ Id.

The Gills returned in August and registered S.G. at Murch on August 22, 2005, again providing a copy of his IEP.² Pls.' Mem. at 3. S.G. was placed in a regular education class with no special education services. Id. DCPS then informally invited the Gills to attend an IEP planning meeting for S.G. on August 26, 2005. The Gills were unable to gather all of the necessary professionals needed for the meeting on such short notice and asked for a postponement to September 2. Compl. ¶ 22.

On August 26, 2005, the Gills' counsel wrote to Murch to inform them that it appeared that DCPS's many delays and missteps in processing S.G.'s admission meant that it could not offer him a free appropriate public education at the start of school, as it was legally required to do. The Gills therefore notified Murch that S.G. would remain at Kingsbury, but that they still wanted DCPS to provide special education for him and to be involved in developing his program. They therefore asked Murch to reschedule the IEP meeting, with adequate notice.

Murch's principal responded to the August 26, 2005 letter with a voice mail message on September 5, 2005 — Labor Day — saying that she wished to discuss the issues in that letter. Despite three follow-up telephone calls to the principal, no further discussions took place. Instead, on September 20, 2005 she informed counsel that the matter had been turned over to DCPS's Office of the General Counsel, which would be handling the matter. The principal expressed surprise that there had been no follow-up, and said she would call the Office of the General Counsel about S.G. There was no further communication from DCPS to discuss S.G. or to develop a program for him. Instead, without notice to the Gills, DCPS removed S.G. from the ranks of enrolled students because he did not appear for classes at Murch.

Compl. ¶¶ 24, 26. On October 25, 2005, the Gills requested an administrative hearing to challenge DCPS's failure to provide a FAPE for S.G. commencing with the start of the 2005-2006 school year. Compl. ¶ 27. The Gills asked for an order directing DCPS to begin the process of determining S.G.'s eligibility for special education immediately, to develop an IEP for him, to propose an appropriate placement, and to fund his education at Kingsbury until a legally permissible change occurred. Id.

When the parties convened for the hearing on January 26, 2006, DCPS had no witnesses and could not proceed. Compl. ¶ 29. The hearing officer brokered a settlement whereby DCPS agreed to commence the process of evaluating S.G., developing an IEP and proposing a placement, while he remained at Kingsbury. The Gills specifically reserved the right to seek reimbursement for S.G.'s Kingsbury tuition and related services. Compl. ¶ 30. The Hearing Officer Decision ("HOD") that issued on February 1, 2006, summarized the relevant evidence:

This case involves allegations by parent's counsel that the District of Columbia Public Schools (hereinafter "DCPS") failed to provide a f[r]ee appropriate public education. According to parent's counsel, the parent's [sic] acquired a new residence in the District of Columbia. However, the parents decided to allow the student to complete the 2004-2005 school years [sic] in the Montgomery county [sic] school system, as the decision was made not to interrupt the student's educational year. The parent [sic] did seek to register the student early[,] on or around March 2005[,] in order to allow DCPS to determine an appropriate placement.

It is alleged that early registration was not allowed. The parent's [sic] were allowed to register the student in August 2005, but the student remained enrolled at Kingsbury at the beginning of the 2005-2006 school years [sic], as the student attended ESY [sic] at Kingsbury. The parents alleged, through their counsel, that DCPS failure [sic] to allow early registration constitute[d] a denial of a free appropriate public education (FAPE). DCPS alleges the student parent's [sic] decided to place the petitioner within a private school, as DCPS did not refuse to develop an appropriate educational program for S.G. Additionally, DCPS alleged that the petitioner was never registered as a nonattending student.

Compl. Ex. A, February 1, 2006 HOD, at 4. The HOD ordered that "Petitioner's request for relief is GRANTED, as the parties have agreed to terms" and that "Petitioner is not the prevailing party." Id. at 5. It also included the terms of settlement to which the parties had agreed: DCPS would convene a Multi-Disciplinary Team/ IEP meeting to review S.G.'s evaluations, develop an IEP, and determine an appropriate placement within 30 days; and, within five days of the MDT/IEP meeting, issue a prior notice of placement to a public school, or, within thirty days, issue a prior notice of placement to a private school. Id.

An Amended HOD was issued on April 27, 2006, upon the Gills' request for clarification. Compl. ¶ 32. Their concern was that "the hearing officer ruled that the Gills were not prevailing parties [and][t]he order was silent as to the Gills' reservation of their rights with respect to retroactive funding" for Kingsbury. Compl. ¶ 31. The evidence summary in the first paragraph of the Amended HOD was virtually identical to the first. A second paragraph was added:

At the commencement of the hearing, counsel for the respondent entered a motion to dismiss this matter, alleging that the petitioner had not been registered at DCPS. The motion to dismiss was not granted. Counsel for the petitioner requested that the record reflect that all of petitioner's rights be reserved with respect to Future claims of relief in light of the fact that there was a settlement component to the order. The Hearing Officer noted that request in the record, but there was no determination made that DCPS had violated any of the petitioner's right [sic] at the hearing, as there was no denial of a free appropriate public education (FAPE).

Compl. Ex. B April 27, 2006 Am. HOD at 3. Reflecting the settlement achieved, the Amended HOD concluded that "Petitioner's counsel entered into a settlement agreement" and "Petitioner is not the prevailing party in this matter." Id. at 4. The orders to DCPS to evaluate S.G., develop an IEP, and determine an appropriate placement were repeated, with the same deadlines. Id.

DCPS finally concluded the re-evaluation of S.G. 30 days after the Amended HOD and, on May...