Whatley v. District of Columbia

• Decision Date: 18 September 2002
• Docket Number: Civil Action No. 98-2961 (PLF/JMF).
• Citation: 224 F.Supp.2d 62
• Parties: Jamel WHATLEY, et. al., Plaintiffs, v. DISTRICT OF COLUMBIA, a municipal corporation, et. al., Defendants.
• Court: U.S. District Court — District of Columbia

224 F.Supp.2d 62

Jamel WHATLEY, et. al., Plaintiffs, v. DISTRICT OF COLUMBIA, a municipal corporation, et. al., Defendants.

Civil Action No. 98-2961 (PLF/JMF).

United States District Court, District of Columbia.

September 18, 2002.

Diana Marjorie Savit, Bowytz, Savit Szymkowicz, L.L.P., Bethesda, MD, for plaintiff.

Barbara A. Miller, Birch, Horton, Bittner & Cherot, Grace Perry-Gaiter, Melvin W. Bolden, Jr., David E. Edmonds, Laurie Pouzzner McManus, Arlington, VA, Laura Elizabeth Jordan, Washington, DC, for defendant.

MEMORANDUM OPINION

FACCIOLA, United States Magistrate Judge.

This case was referred to me by Judge Friedman for the resolution of discovery disputes pursuant to LCvR 72.2(a). I now resolve both Plaintiffs' Motion to Compel Defendants District of Columbia and Arelene Ackerman to Pay Expert Witness and Attorney's Fees Or, Alternatively, For An Order Directing Defendants to Show Cause Why They Should Not Be Held In Contempt ("Plains.Mot.") as well as Plaintiffs' Supplemental Request for Legal Fees and Expenses ("Plains.Supp.Mot.").

BACKGROUND

Plaintiffs, Jamel Whatley and his guardian, Esther Williams, bring this action against the District of Columbia ("the District") and several current and former employees of the District in their official and individual capacities. Williams bears sole responsibility for Whatley's health and welfare, including his education. At the time plaintiffs filed the complaint in December of 1998, Whatley was a 10 year old student in the District of Columbia Public School System ("DCPS") enrolled at Ketcham Elementary School ("Ketcham"). Though old enough for the fifth grade, Whatley remained in the third grade. Throughout his schooling, Whatley has experienced academic difficulties and has had significant difficulty learning to read. As a result, Ketcham suggested Whatley repeat the first grade. Complaint ("Compl.") ¶ 10. However, Whatley's academic performance did not improve and he has continued to struggle with his educational pursuits. Id.

Despite Whatley's overt academic difficulties, Williams alleges that DCPS neither recommended that Whatley be evaluated for possible special education nor referred Whatley for educational assessments that could have initiated the process of identifying him as disabled and, therefore, in need of special education. Compl. ¶ 11. In 1996, Williams completed DCPS Form 6, which begins the evaluation and placement process for children who may be disabled and in need of special education. According to Williams, an educational assessment was conducted by DCPS and it indicated that Whatley suffers from a learning disorder and should be considered for special education. Compl. ¶ 13.

Two years later, Williams requested that the DCPS Student Hearing Office convene a due process hearing as a result of DCPS's failure to respond to the 1996 request for special education assessment and services. Compl. ¶ 14. Plaintiffs premise their case upon the Individuals with Disabilities Education Act, 20 U.S.C.A. § 1400 et seq. ("IDEA") and 42 U.S.C.A. § 1983, seeking a declaratory judgment that Whatley is a disabled student. Compl. ¶ 18. Additionally, plaintiffs allege that the inattention of the DCPS stemmed from a systematic problem within the DCPS.

DISCUSSION

By my Order of October 26, 2001, I allowed plaintiffs to file a supplemental affidavit of its costs and expenses in obtaining information from August 9, 2000, up to the present time. The requested affidavit was filed on November 7, 2001, and defendant District of Columbia subsequently responded. First, the District concedes that it owes plaintiffs' counsel $4,399.50. However, the District's arithmetic is incorrect. The District's calculation of the final award is based on the plaintiff's prior claim of $9,449.50, not the revised amount of $ 9,746.28. Plains. Supp. Motion at 1. From this number, the District subtracts $200, which plaintiffs inadvertently failed to do and also excluded $46.78 in other expenses. Opposition to Plaintiffs' Supplemental Request For Legal Fees and Expenses ("Defs.Opp."). Therefore, the District's final award calculation is off by $246.78 and its concession will be adjusted upward to $4,646.78.¹ Second, because the District was not involved with negotiating the protective order for Armstrong, the District asserts that it is not required to pay for the fees resulting from that negotiation. Id. Lastly, the District claims it is not its financial responsibility to pay for time Mr. Szymkowicz spent familiarizing himself with the case. I will address each objection in turn.

The Mistake

In her supplemental affidavit, Ms. Savit requested an additional payment of $200 for expenses incurred in connection with the original motion to compel discovery, which expenses were unintentionally omitted from plaintiffs initial request. See Plains. Supp. Mot. at 4.

The District waxes wroth and claims a "waiver" because of the mistake. First, a waiver is an intentional relinquishment of a known right. BLACK'S LAW DICTIONARY 1574 (7th ed.1999). A mistake is "some unintentional act, omission, or error." Id. at 1017. The words are, therefore, antonyms and thus a waiver cannot possibly arise from a mistake. Second, not too long ago, there was a time when opposing counsel, upon learning of a mistake by his opponent, would not object to its correction as a matter of simple courtesy. It is a sad comment on the lack of civility and professionalism of the Bar that such simple courtesy is disappearing and courts are burdened with $200 objections. That is about what this objection is worth. De minimis non curat lex. Men not being angels, I shall allow the correction. Speaking of angels, they would weep over what is happening to the practice of law.

Protective Order

Joyce Armstrong is one of the defendants in this case. Plaintiffs sued her in her individual capacity and in her capacity as Director, Special Advisor, Special Education Division. Compl. ¶ 24-29. Initially, Ms. Armstrong was represented by Corporation Counsel. Later, however, Ms. Armstrong was fired from her position at DCPS and she subsequently challenged that firing. Recognizing that Ms. Armstrong could no longer be represented by the agency that was defending against her employment action, I directed Corporation Counsel to withdraw from her representation by my Order of October 10, 2000.

The relevance of Ms. Armstrong's firing to the case before me is that questions regarding her employment were raised by plaintiffs' interrogatory Number 5. Specifically, plaintiffs demanded to know whether Ms. Armstrong was still employed by DCPS, and if not, what prompted her termination. Corporation Counsel, at the time still representing Ms. Armstrong, initially objected to this interrogatory, asserting a "privacy" privilege. By my Order of August 9, 2000, however, I concluded that all claims of privilege had been waived:

Interrogatory Number 5. The privilege claimed having been waived, defendants shall answer this interrogatory by providing all reasons why Joyce Armstrong left the employ of DCPS. If necessary, the parties shall promptly submit to me a protective order as to this information.

Memorandum & Order at 5.

The District complied with this order by ultimately providing plaintiff four reasons for Armstrong's termination, one of which was that she "failed to complete the assessment of 184 students for special education services within the 120-day period established by Congress in October 1998." Plaintiffs' Response to District of Columbia Defendants' Opposition to Supplemental Request for Legal Fees and Expenses ("Plains.Response") at 3 and Exhibit A. Plaintiffs' counsel contended that the District should have stated more specifically why Armstrong failed to complete the assessments and whether Whatley was one of those 184 children. Counsel insisted on additional supplementation of the answer to interrogatory number 5, believing that the answer given was insufficient.

Previously, I had urged the parties to attempt to work out their differences. Plaintiffs' counsel believed, with justification, that the supplementation she sought would be found in the record created by Armstrong's challenge to her termination. She insists, however, that in a meeting held in December, 2000, the Assistant Corporation Counsel refused to provide her with any greater particulars regarding Armstrong, relying on privilege and privacy grounds. Plaintiffs' counsel insists that these are the very objections I ruled by my August 9, 2000, order, had been waived. Rather than return to me with another motion to compel, plaintiffs' counsel proposed that she be permitted access, subject to a protective order, to the file created by Armstrong's challenge to her termination. In the meanwhile, Armstrong had retained her own counsel and plaintiffs' counsel negotiated a protective order with this new counsel.

The District takes the technical position that it should not have to pay for time spent negotiating that protective order with Armstrong's counsel. But, as plaintiffs point out, the District continued to refuse to produce any more particulars about Armstrong's firing. I am certain that, had plaintiffs' counsel sought more information by seeking the entire file created by Armstrong's firing, I would have granted relief once I learned that one of the allegations made by DCPS justifying Armstrong's firing had to do with alleged deficiencies in her performance as to special education children like Whatley. Obviously, that DCPS found Armstrong's performance in this area deficient would be a remarkably damaging admission if plaintiffs could show a sufficient connection between the deficiencies the DCPS found and the deficiencies about which plaintiffs complained in Whatley's case. The best possible source of that information would be the administrative record created by Armstrong's challenge to her termination. I am, therefore, certain that I would have ordered...