The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
These two cases concern the education of C.M., a minor child who once received special education services at Integrated Design and Electronics Academy Public Charter School ("IDEA PCS") in the District of Columbia. Ms. Miller is C.M.'s mother.*fn2 In Civil Case No. 05-467, IDEA PCS appealed a Hearing Officer's Decision ("HOD") issued under the Individuals with Disabilities Education Improvement Act (IDEIA), 20 U.S.C. § 1400, et. seq.; that 2005 HOD ordered IDEA PCS to conduct an occupational therapy evaluation on C.M. and to consider a neurological evaluation. See Pl.'s Mot. for Summ. J. [Dkt. #23] at 4. In Civil Case No. 06-1459, Ms. Miller sued to recover her attorneys' fees for the same hearing. The tests have been performed. The question remaining is whether Ms. Miller was a "prevailing party" entitled to recover attorneys' fees. On the particular facts of this case, the Court will deny the application for attorneys' fees and grant summary judgment in favor of the Plaintiff because res judicata barred the result of the 2005 HOD.
This dispute is old enough to have whiskers. C.M. initially attended District of Columbia Public Schools ("DCPS"), where he received special education services until his mother withdrew him from special education in 1997. See Administrative Record ("AR") [Dkt. #21]at 23. Ms. Miller filed a request for an administrative due process hearing on February 18, 2004, alleging that IDEA PCS, where C.M. was then in school, and/or DCPS had failed to conduct a neurological evaluation on the student based on the recommendation of a 1997 psychological evaluation. AR at 50. Ms. Miller filed an Amended Hearing Request on April 5, 2004, adding allegations that DCPS had failed to provide C.M. with appropriate services and failed to reevaluate him before terminating special education services. Id. The requested hearing convened on April 26, 2004.
Hearing Officer Terry Banks issued an HOD ("2004 HOD") on May 11, 2004. See generally AR at 48-53. The decision noted that both DCPS and IDEA PCS presented witnesses and that Ms. Miller testified on behalf of C.M., who was at that time a 12-year-old student. AR at 51. The 2004 HOD found that C.M. had been removed from special education services in 1998 at his mother's request but that, on December 8, 2003, his counsel requested that he be evaluated to determine his eligibility for special education services. Id. Ms. Marcia Gustafson completed a psychoeducational evaluation of C.M. on February 5, 2004. Id.
Ms. Gustafson found that (1) [C.M.] suffers from a reading disorder and a Disorder of Written Language, (2) [C.M.] would benefit from "supplemental tutoring from a reading specialist to provide him with a grounding in phonetic awareness and word attack skills, as well as to assist him in expanding his sight vocabulary," and (3) the test results "should be shared with [C.M.'s] pediatrician with a view to determining whether he requires a neurological assessment . . . ."
AR at 51. In his conclusions of law, Hearing Officer Banks held that "[n]othing in [C.M.'s] current evaluations, including Ms. Gustafson's nuanced suggestion, compels the performance of a neurological evaluation." AR at 52. He "DISMISSED WITH PREJUDICE" Ms. Miller's request for a neurological evaluation. Id. (upper case in original). He also ruled that all allegations relating to DCPS's failure to comply with the recommendation in the 1997 evaluation were barred by the statute of limitations. Id.; see D.C. Code § 12-301 (2001). He further ordered that DCPS convene a Multidisciplinary Team ("MDT") meeting on May 10, 2004, to determine C.M.'s eligibility for special education services. AR at 52.
An MDT meeting was convened on August 17, 2004 to consider an educational plan for C.M. for the 2004-2005 school year. AR at 4. C.M. was found eligible for special education and related services with a disability classification of learning disabled ("LD"). Id. At the end of that meeting, Ms. Miller requested that a neurological evaluation be done and that an occupational therapy ("OT") evaluation be done, based on Ms. Gustafson's psychoeducational evaluation. AR at 5. Ms. Miller also requested compensatory education from DCPS from November 1997. Id. IDEA PCS responded that there was nothing new in C.M.'s file since the 2004 HOD that would support a neurological evaluation and that Ms. Miller should appeal the 2004 HOD if she disagreed with it. Id. In addition, IDEA PCS told Ms. Miller that nothing in the psychoeducational evaluation supported or recommended an OT evaluation. Id.
Ms. Miller filed a request for a due process hearing on November 26, 2004, challenging the failure of IDEA PCS to conduct the neurological and OT evaluations on C.M. that she had requested at the August MDT meeting. AR at 13. IDEA PCS filed a motion on January 12, 2005, seeking to dismiss the request on res judicata grounds in light of the unappealed decision in the 2004 HOD. AR at 14. On or about January 27, 2005, Chief Hearing Officer Smith granted the motion and dismissed Ms. Miller's request for a hearing; this decision was not served on IDEA PCS, although Ms. Miller's counsel received it and requested reconsideration because the matter had already proceeded to a hearing on January 18, 2005. AR at 1, 3, 15-16. It appears that the Chief Hearing Officer reconsidered his ruling and vacated it. Although this second ruling is not part of the Administrative Record, it was supplied by Ms. Miller. See Def.'s Opp. to Pl.'s Mot. for Summ. J. and Def.'s Mot. Cross-Motion for Summ. J. ("Def.'s Opp.") [Dkt. #25] at 5 & Exh. 3 (Hearing Officer Smith declaring the January 27, 2005, decision "NULL AND VOID"). On February 2, 2005, Hearing Officer Coles B. Ruff issued the 2005 HOD in which he directed IDEA PCS to conduct an OT evaluation on C.M. and to "convene a student evaluation team (SEP) meeting to determine whether a neurological or neuropsychological evaluation is more appropriate for the student and determine any other evaluations that are warranted, if any." AR at 7.
All the tests have been performed but the results are not part of the record. C.M. no longer attends IDEA PCS.
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56 (c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). Moreover, summary judgment is properly granted against a party that "after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson, 477 U.S. at 248 (1986). A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248.
In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Greene, 164 ...