United States District Court, D. Columbia.
TABITHA LOFTON, Parent and Next Friend to T.C., a minor, Plaintiffs,
DISTRICT OF COLUMBIA, Defendant
For TABITHA LOFTON, Parent and Next Friend of T.C., a minor, Plaintiff: Daniel W. Wolff, LEAD ATTORNEY, Robert J. Sneckenberg, CROWELL & MORING LLP, Washington, DC.
For DISTRICT OF COLUMBIA, Defendant: Victoria Lynne Healy, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Public Interest Division, Washington, DC.
REGGIE B. WALTON, United States District Judge.
Plaintiffs Tabitha Lofton, on her behalf and on behalf of her minor son T.C., seek a temporary restraining order and preliminary injunction compelling the District of Columbia (" District" ) to reinstate T.C.'s enrollment at The Ivymount School (" Ivymount" ) in Rockville, Maryland, pursuant to the Individuals with Disabilities Education Act (" IDEA" ), 20 U.S.C. § § 1400-1482 (2012). In the memorandum in support of their motion, the plaintiffs allege that " [o]n May 21, 2013, District of Columbia Public Schools (" DCPS" ) unilaterally and without the consent or meaningful participation of Plaintiff Tabitha Lofton, determined to remove Ms. Lofton's son, T.C., from his educational placement at the Ivymount School (" Ivymount" ), a private, entirely special education school in Rockville, Maryland, in violation of the [IDEA]." Memorandum in Support of Plaintiffs' Application for Temporary Restraining Order and Preliminary Injunction (" Pls.' Mem." ) at 1. According to the plaintiffs, this decision " has placed T.C. into [Dunbar High School] . . . where he has been subject to physical harm, his safety is threatened on a daily basis, and he cannot possibly achieve educational success." Id. at 2. The plaintiffs assert that because " there is a significant likelihood that [the p]laintiff[s] will succeed on the merits of her claims; Ms. Lofton and T.C. have suffered, and will continue to suffer, irreparable harm if T.C. is forced to continue attending Dunbar; and the balance of harms and public interest favor [the p]laintiffs," id., the Court should issue a temporary restraining order and preliminary injunction requiring " DCPS to pay for T.C. to attend . . . Ivymount . . . until . . . T.C.'s IEP Team is reconvened and properly determines to remove T.C. from Ivymount." Complaint for Declaratory and Injunctive Relief (" Compl." ) ¶ 1.
The Court conducted a hearing on the motion on December 11, and December 16, 2013. During the hearing the District asserted that Dunbar High School (" Dunbar" ) was T.C.'s current educational placement and that, pursuant to the stay put provision of the IDEA, T.C. should be required to continue attending Dunbar until the issue of T.C.'s placement is permanently resolved. Def.'s Opp'n at 7-8; see 20 U.S.C. § 1415(j) (" [D]uring the pendency of [administrative due process hearings under § 1415], the child shall remain in the then-current educational placement of the child." ) Since this Circuit has determined that a " child is entitled to an injunction only outside the stay-put provision . . . by establishing the usual grounds
for such relief," Andersen v. District of Columbia, 877 F.2d 1018, 1024, 278 U.S.App. D.C. 230 (D.C. Cir. 1989), after careful consideration of the parties' motions  as well as evidence presented during the December 11 and 16, 2013 hearings,  the Court concludes the T.C. meets the " usual grounds" for a temporary restraining order and preliminary injunction. Accordingly, for the following reasons, the DCPS is ordered to pay for T.C.'s attendance at and transportation to and from Ivymount until such time that a properly developed Individual Education Plan (" IEP" ) is developed for T.C. - one that includes Ms. Lofton's meaningful participation - addressing the services T.C. is entitled to receive and a location where all of those services can be provided.
STANDARD OF REVIEW
Temporary restraining orders and preliminary injunctions are " extraordinary remed[ies] that should be granted only when the party seeking the relief, by a clear showing, carries the burden of persuasion." Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297, 372 U.S.App. D.C. 94 (D.C. Cir. 2006) (internal quotation and citation omitted). In determining whether to issue a temporary restraining order, the Court must apply the same standard that is applied to preliminary injunctions, see, e.g., Hall v. Johnson, 599 F.Supp.2d 1, 3 n.2 (D.D.C. 2009), which requires that " '[a] plaintiff seeking a preliminary injunction must establish  that [he or she] is likely to succeed on the merits,  that [he or she] is likely to suffer irreparable harm in the absence of preliminary relief,  that the balance of equities tips in [his or her] favor, and  that an injunction is in the public interest.'" Sherley v. Sebelius, 644 F.3d 388, 392, 396 U.S.App. D.C. 1 (D.C. Cir. 2011) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)) (some alterations in original). Because they are " extraordinary remed[ies]," temporary restraining orders and preliminary injunctions " should be granted only when the party seeking the relief, by a clear showing, carries the burden of persuasion." Cobell v. Norton, 391 F.3d 251, 258, 364 U.S.App. D.C. 2 (D.C. Cir. 2004) (citing Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997)).
The District of Columbia Circuit has applied a " sliding scale" approach in evaluating the temporary restraining order/preliminary injunction factors. Sherley, 644 F.3d at 392. Under this analysis,
[i]f the movant makes an unusually strong showing on one of the factors, then it does not necessarily have to make as strong a showing on another factor. For example, if the movant makes a very strong showing of irreparable harm and there is no substantial harm to the non-movant, then a correspondingly lower standard can be applied for likelihood of success . . . Alternatively, if substantial harm to the nonmovant is very high and the ...