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F.S. v. Dist. of Columbia

April 13, 2007


The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge


This action was originally brought under the Individuals With Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., on behalf of two children, F.S. and R.S., by their parents against the District of Columbia. Following defendants' initial motion to dismiss, plaintiffs filed an amended complaint, which includes claims regarding only one of the children. Specifically, plaintiffs seek to enforce a 2004 administrative order regarding F.S.'s IDEA placement and to recoup attorney's fees for the 2004 proceedings. Currently pending before the Court is defendants' motion to dismiss the second claim in the amended complaint or, in the alternative, stay the case until pending administrative proceedings are complete. Upon consideration of the motion, the response and reply thereto, the applicable law, and the entire record, the Court determines that it has jurisdiction over plaintiffs' second claim, but that issues raised by the claim should be first addressed by the pending due process hearing. Therefore, for the reasons stated herein, defendants' motion is DENIED in part, with regard to the request to dismiss, and GRANTED in part, with regard to the request for a stay.


F.S. is a disabled student who has previously been found entitled to special education and related services under the IDEA.*fn1 In early 2004, F.S. was attending the Lowell School ("Lowell"). Because the District of Columbia Public Schools ("DCPS") did not meet its IDEA obligations to F.S., her parents requested a due process hearing to address DCPS's failure to provide a free appropriate public education. At the hearing, held on March 2, 2004, the parties settled their differences and a hearing officer's determination was issued that embodied their agreement and also directed the parties to perform certain tasks to effectuate it. Hearing Officer's Decision, Mar. 10, 2004, Pls.' Ex. 1.

The hearing officer ordered, inter alia, that: (1) F.S.'s parents obtain new psycho-educational, speech/language, and social history evaluations for F.S.; (2) DCPS pay for these evaluations and then convene a multi-disciplinary team ("MDT") meeting for F.S. within 15 days after receiving the updated evaluations; and (3) participants in the MDT meeting update F.S.'s individualized education program ("IEP"), address her entitlement to compensatory education, and discuss placement, if appropriate. Id. at 4. DCPS was ordered to reimburse F.S.'s parents for tuition and related expenses incurred for schools years 2000-01 through to the present "and continuing until such time as the parents accept a DCPS-proposed alternative placement or DCPS prevails at a due process hearing regarding its proposed alternative placement." Id. at 3. F.S. was ordered to remain at her current placement, Lowell, until her placement "is changed as provided in this paragraph." Id. Finally, if DCPS did not comply with the decision, F.S.'s counsel was directed to contact the DCPS Office of Mediation and Compliance prior to filing a hearing request alleging DCPS's failure to comply. Id. at 4.

Complying with the determination, F.S.'s parents obtained private psycho-educational and speech/language evaluations in 2004 and forwarded them to DCPS in August 2005. DCPS did not convene an MDT meeting during the 2006 spring semester, though it had all necessary evaluations by that point. Consequently, it did not prepare an IEP for F.S., nor did it propose a placement for her, and thus failed to comply with the hearing officer's determination. DCPS funded F.S.'s education at Lowell until June 2006, when F.S. completed the sixth grade at Lowell and graduated. Because DCPS had never proposed a placement for F.S., F.S.'s parents searched on their own for a new school for her. F.S. was accepted at the Edmund Burke School ("Burke"), which offers a program comparable to Lowell's beyond the sixth grade.

Finally, on October 12, 2006, DCPS convened an MDT meeting. Prior to the meeting, DCPS did not observe F.S. engaged in classroom academics or otherwise attempt to gather any information about F.S.'s previous or current educational performance. At the meeting, DCPS officials disclosed that they were not aware of F.S.'s prior special education history or of the 2004 hearing officer's determination, and that they had no file for F.S. and no information about her other than the three evaluations submitted in 2005. DCPS refused to accept additional information from F.S.'s parents, therapist, or current tutor at the meeting. DCPS then proceeded to find F.S. ineligible for special education due to lack of information about the impact of F.S.'s disability upon her academic performance, and thus did not prepare an IEP or propose a special education placement. DCPS refused to continue funding F.S.'s education as apparently required by the 2004 determination.

On October 20, 2006, F.S.'s parents sent a letter to DCPS and its Office of Mediation and Compliance about DCPS's violation of the 2004 determination. No response was ever received. On December 29, 2006, F.S.'s parents requested a due process hearing to challenge DCPS's determination of ineligibility and failure to provide special education for F.S. during the current school year. Due Process Compl. Not., Pls.' Ex. 2. They sought (1) a finding that F.S. was eligible for special education and an appropriate placement, and (2) an order that DCPS continue to comply with the 2004 determination, including funding F.S. in a program comparable to Lowell until the requirements of the 2004 determination have been met. Id. at 4. In the mean time, F.S. continues to attend Burke and F.S.'s parents continue to fund her education there.

On January 8, 2007, plaintiffs filed an amended complaint with two claims under the IDEA. First, plaintiffs seek attorney's fees as the prevailing party in the proceedings that culminated in the 2004 determination. Second, plaintiffs seek an order directing DCPS to place and fund F.S. at Burke unless and until her placement is changed consistent with the applicable law and the 2004 determination. On March 22, 2007, pursuant to this Court's order, the parties submitted a status report stating that F.S.'s due process hearing is scheduled for April 25, 2007.


A motion to dismiss for failure to state a claim should be granted when it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1114 (D.C. Cir. 2000) (citations omitted). The Court will accept as true all factual allegations in the complaint, and give plaintiff the benefit of all inferences that can be drawn from the facts alleged. See Atchinson v. District of Columbia, 73 F.3d 418, 422 (D.C. Cir. 1996). The standard of review for a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) is virtually identical to that used for 12(b)(6) motions, except that the Court is free to consider material outside the pleadings for purposes of resolving jurisdictional issues. Caesar v. United States, 258 F. Supp. 2d 1, 2 (D.D.C. 2003). In the Rule 12(b)(1) context, the plaintiff bears the burden of proving jurisdiction. Id. at 3.


In their motion, defendants argue that the Court cannot, or alternatively should not, consider plaintiffs' second claim until the pending administrative hearing is complete. Plaintiffs contend that administrative exhaustion is unnecessary for this claim, and ...

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