The opinion of the court was delivered by: Richard W. Roberts United States District Judge
Latonia Jenkins and her minor son, J.J., brought this action under the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq., as amended by the Individuals with Disabilities Education Improvement Act, Pub. L. No. 108-446, 118 Stat. 2647 (2004) ("IDEA"), and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq., challenging the dismissal of their administrative complaint following a hearing officer's determination ("HOD") that the plaintiffs failed to respond to attempts by the District of Columbia Public Schools ("DCPS") to schedule a meeting and failed to work with the DCPS to advance the educational review process. The plaintiffs move for summary judgment, and the defendants cross-move for summary judgment. Because the plaintiffs have not established that the hearing officer erred, the defendants' motion for summary judgment will be granted, and the plaintiffs' motion for summary judgment will be denied.
J.J. was a student enrolled at Noyes Elementary ("Noyes"), a public
school. (Compl. ¶¶ 5-6.) He was diagnosed as having a conduct
disorder. On June 6, 2006, Hearing Officer Seymour DuBow ordered an
independent psycho-educational evaluation and a comprehensive
psychological evaluation for J.J. The hearing officer also ordered the
DCPS to convene a multi-disciplinary team ("MDT") meeting within 15
business days after the receipt of J.J.'s evaluations to review the
evaluations, determine J.J.'s eligibility for compensatory education,
and if warranted, determine the appropriate placement and develop a
compensatory and individual education plan ("IEP").*fn1
(A.R. 43-44.) DCPS received the evaluations on October 2,
2006, and thus was required to hold the MDT eligibility meeting by
October 24, 2006. (A.R. at 38; Defs.' Stmt. of Mat. Facts Not in
Dispute ("Defs.' Stmt.") ¶ 4.) However, DCPS did not do so. (Defs.'
Mem. at 2; Pls.' Mem. in Supp. of Mot. for Summ. J. ("Pls.' Mem.") at
3.) Jenkins filed an administrative due process complaint
alleging that DCPS failed to provide J.J. with special education services.
(A.R. at 38.)
On November 8, 2006, the special education coordinator from Noyes sent the plaintiffs' counsel a letter inviting Jenkins to select one of three possible times that month for the DCPS to conduct an MDT meeting with MDT team members to review the evaluations, discuss placement, eligibility and compensatory education, and develop a student evaluation plan ("SEP").*fn2 (A.R. at 128; Defs.' Stmt. ¶ 6.) The plaintiffs did not respond to that letter (A.R. at 4; Defs.' Stmt. ¶ 7), and as a result, the DCPS did not hold the meeting. On December 19, 2006, a hearing officer found that the DCPS failed to comply with the June 6, 2006 HOD and ordered the DCPS to schedule that meeting for J.J. before the 2006 Winter Recess began three days later. (A.R. at 165-66; Compl. ¶ 12; Defs.' Stmt. ¶ 8.) However, no meeting occurred before the beginning of the 2006 Winter Recess. (Compl. ¶ 12.) On January 10, 2007, the DCPS sent a second letter of invitation to Jenkins' counsel proposing an additional three dates in that month on which to hold an MDT meeting with MDT team members to review the evaluations, discuss eligibility and placement, and develop an IEP. (A.R. at 125.) The plaintiffs did not respond to that letter. (Defs.' Stmt. ¶ 9.)
In February 2007, Jenkins filed two administrative due process complaints, alleging that the DCPS denied J.J. a free appropriate public education ("FAPE") in part because the DCPS failed to hold the MDT eligibility meeting ordered on December 19, 2006. (A.R. at 94-98, 132-37; Defs.' Stmt. ¶ 10; Compl. ¶ 15.) DCPS in February sent another letter of invitation to Jenkins' counsel proposing three more dates for a meeting. On February 26, 2007, Jenkins responded by proposing three additional dates because she could not attend a meeting on any of the dates proposed by the DCPS. (A.R. at 4; Defs.' Stmt. ¶¶ 11-12.) The DCPS responded by fax on February 28, 2007, informing Jenkins that the dates she suggested would not work and instead proposing two additional dates. (A.R. at 4; Defs.' Stmt. ¶ 13.) Jenkins responded one week later, proposing a date in March that worked for DCPS. The next day, DCPS sent Jenkins another letter of invitation for that date to meet with MDT team members to review the evaluations, discuss placement, eligibility and compensatory education, and develop the SEP. (A.R. at 4, 117-19; Defs.' Stmt. ¶ 14.)
The parties met on March 19, 2007. To resolve the complaint, DCPS offered to hold an eligibility and SEP meeting at Jenkins' next available date, after which any educational services and compensatory education and placement could be provided if they were warranted. Jenkins and her counsel rejected that offer. (A.R. at 4, 109; Defs.' Stmt. ¶¶ 14-16; Pls.' Stmt. ¶ 10.) Jenkins "wanted a new placement . . . in addition to the meeting and evaluations." (Pls.' Reply at 5.) She claims that "not all issues raised by the [due process] complaint could be resolved," so Jenkins "elected to move forward with the due process hearing." (Pls.' Stmt. ¶ 10)*fn3 .
On April 5, 2007, Hearing Officer DuBow conducted a hearing regarding the plaintiffs' February 2, 2007 due process complaint. (A.R. at 2.) On April 20, 2007, that hearing officer issued an HOD dismissing the plaintiffs' due process complaint against the defendants. (Defs.' Stmt. ¶¶ 18; Pls.' Stmt. ¶ 14.) The issue that the HOD addressed was whether "DCPS den[ied] a Free Appropriate Public Education . . . to [J.J.] by failing to convene an MDT/Eligibility Meeting[.]" (A.R. at 3.) The hearing officer found, among other things, that DCPS made multiple attempts to schedule a resolution meeting for J.J. between October 2006 and the April 2007 hearing. (A.R. at 4.) The hearing officer ruled:
Counsel for the parent has not met her burden of proof that DCPS denied a FAPE to [J.J.] by failing to convene an MDT eligibility meeting. The . . . DCPS tried on several occasions to convene an MDT meeting to review evaluations and determine eligibility. . . . [S]everal Letters of Invitation were faxed to counsel for the parent offering various dates to convene an MDT meeting. . . . [M]any of the delays in convening an MDT meeting were caused by a lack of response or unavailability of counsel for the parent and the parent. . . . This hearing officer finds that counsel for the parent engaged in the same type of troubling conduct of holding out for a hearing instead of going through the MDT educational review process that the . . . federal courts [have] found further delays the educational process to the detriment of the student and fails to give the school district an opportunity to rectify the situation. At this stage, it is in the best interests of the student for counsel for the parent to directly contact counsel for DCPS to arrange a mutually agreeable date to hold an MDT Eligibility Meeting at Noyes Elementary School. (A.R. at 4-5.)
The plaintiffs filed this three-count complaint challenging the hearing officer's dismissal. They allege that the DCPS failed to provide J.J. with a FAPE in violation of the IDEA and Section 504 of the Rehabilitation Act, that DCPS' failure to comply with the three-day deadline for holding an MDT eligibility meeting set forth in the December 19, 2006 order violated the IDEA and deprived J.J. of a FAPE, and that the hearing officer erred since there was no evidence that DCPS made any attempts to comply with the December 19 order. (Compl. ¶¶ 23-28.)
Both parties have moved for summary judgment. The plaintiffs argue that the "DCPS provided no documentation" to the hearing officer to show that it attempted to convene an MDT eligibility meeting to comply with the previous HODs. The plaintiffs further argue that "courts generally find irreparable harm" when school districts fail to implement a hearing officer's decision, and therefore, because the DCPS did not provide J.J.'s mother the opportunity to participate in an eligibility and placement meeting, it denied J.J. a FAPE. (Pls.' Mem. at 9-11.) The defendants argue that the hearing officer correctly determined that the plaintiffs failed to carry their burden of proving that DCPS denied J.J. a FAPE because they failed to respond to DCPS' invitations to attend an MDT eligibility meeting and held out to J.J.'s detriment for litigating rather than advancing the educational review process. (Defs.' Mem. at 5-6.)
"Rule 56(c) provides for entry of summary judgment if . . . 'there is no genuine issue as to any material fact and . . . the movant is entitled to a judgment as a matter of law.'" J.N. v. Dist. of Columbia, 677 F. Supp. 2d 314, 319 (D.D.C. 2010) (quoting Fed. R. Civ. P. 56(c)); see also Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). "The plain language of Rule 56(c) mandates the entry of summary judgment . . . against a party who 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). In an action challenging a hearing officer's decision under the IDEA where both parties move for summary judgment, the motions are treated as motions for judgment based on the evidence in the record if neither party introduces additional evidence. Stanton v. Dist. of Columbia, 680 F. Supp. 2d 201, 205 (D.D.C. 2010).
The IDEA "'ensure[s] that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.'" J.N., 677 F. Supp. 2d at 319 (quoting 20 U.S.C. § 1400(d)(1)(A)). The statute gives parents the ability to file administrative complaints and "request due process hearings 'with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.'" J.N., 677 F. Supp. 2d at 319 (quoting Wright v. Dist. of Columbia, Civil Action No. 05-990 (RWR), 2007 WL 1141582, at *2 (D.D.C. April 17, 2007) (quoting 20 U.S.C. § 1415(b)(6)(A))). A court reviewing an administrative determination made in an IDEA case reviews the administrative record and may grant relief it determines to be appropriate, based upon the preponderance of the evidence. J.N., 677 F. Supp. 2d at 319 (citing Wright, 2007 WL 1141582, at *2). The court must give the administrative officer's findings due weight, although less deference than would normally be accorded an administrative decision. J.N., 677 F. Supp. 2d at 319 (citing Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1988)). "The burden of proof falls upon the party challenging the administrative determination, who must 'at least take on the burden of persuading the court that the hearing officer was wrong.'" Suggs v. Dist. of Columbia, 679 F. Supp. 2d 43, 48 (D.D.C. 2010) ...