United States District Court, District of Columbia
November 18, 2014
S.W., a minor, by her parent and next friend, SHANNON WEEMS, et al., Plaintiffs,
DISTRICT OF COLUMBIA, Defendant
For SHANNON WEEMS, On her own behalf and as next friend of minor child, S.W., Plaintiff: Sarah Liley Flohre, THE CHILDREN'S LAW CENTER, Washington, DC.
For DISTRICT OF COLUMBIA, Defendant: Laura George, LEAD ATTORNEY, OFFICE OF ATTORNEY GENERAL/DC, Washington, DC.
Amended Report and Recommendation 
ALAN KAY, UNITED STATES MAGISTRATE JUDGE.
Pending before the Court are Defendant's Motion to Dismiss and Memorandum of Points and Authorities in Support thereof (collectively, the " Motion") , Plaintiffs' Opposition to the Motion (" Opposition")  and Memorandum of Points and Authorities in support thereof (Pls.' Memorandum") [6-1], and Defendant's Reply (" Reply") . The Honorable Tanya S. Chutkan referred this case to the undersigned for full case management, which includes a report and recommendation on Defendant's Motion to Dismiss. (8/20/2014 Minute Order.)
The underlying suit is brought pursuant to the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. § 1400 et seq . (" IDEIA"). (Complaint  ¶ 1.) Plaintiff S.W. is a minor, proceeding through her parent Shannon Weems, who is also named as a Plaintiff. On February 10, 2014, District of Columbia Public Schools (" DCPS") convened a meeting to determine if S.W. was eligible for special education and related services and DCPS concluded that S.W. was ineligible. (Complaint ¶ ¶ 26-27.) On February 24, 2014, Plaintiffs filed a due process complaint alleging that DCPS denied S.W. a free and appropriate education ('FAPE") by: 1) failing to locate, identify and evaluate S.W. pursuant to D.C.'s Child Find obligations; 2) failing to find that S.W. was eligible for special education; and 3) failing to provide S.W. with a safe and appropriate school placement. (Complaint ¶ 31.) A due process hearing was conducted on April 8, 2014 and the Hearing Officer issued his Hearing Officer Determination (" HOD") on April 23, 2014. (Complaint ¶ ¶ 38, 43.)
In his HOD, the Hearing Officer concluded that DCPS defaulted on its Child Find obligation by " failing to evaluate Student for an ED [emotional disturbance] disability after receiving the January 2014 evaluation request from Petitioner's Counsel." (Complaint Exh. 1 [HOD] at 11.) The Hearing Officer further found that Petitioner established that the Student " exhibited at least three of the five characteristics of the ED condition" but noted that " the evidence does not establish whether Student also requires special education services as a result of her ED disability." (Exh. 1 at 13; Complaint ¶ ¶ 49-50.) " Instead of finding S.W. eligible for services, the Hearing Officer ordered DCPS to convene an MDT meeting (" Multidisciplinary Team Meeting") within ten school days to determine if S.W. is a child with a disability. . . ." (Complaint ¶ 51; Exh. 1 at 15.)
Plaintiffs seek relief from the April 23, 2014 " HOD that found S.W. ineligible for special education and related services." (Pls.' Memorandum at 4.) More specifically, Plaintiffs assert that:
The HOD contains palpable errors of fact and law, especially with regard to the conclusion that the Plaintiffs did not meet their burden of proof in arguing S.W. was eligible for special education and related services. The Plaintiffs are aggrieved by the HOD's finding that S.W. is not eligible for special education and related services.
(Complaint ¶ ¶ 53-54.)
Defendant District of Columbia (" Defendant" or " the District") moves to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(1), for lack of jurisdiction, and Fed.R.Civ.P. 12(b)(6), for failure to state a claim. (Motion at 2.)
II. Legal Standard
A. Legal Standard Under Rule 12(b)(1)
Pursuant to Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss a complaint, or any portion thereof, for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). No action of the parties can confer subject matter jurisdiction on a federal court because subject matter jurisdiction is both a statutory requirement and an Article III requirement. Akinseye v. District of Columbia, 339 F.3d 970, 971, 358 U.S.App.D.C. 56 (D.C. Cir. 2003). A claim alleging a lack of subject-matter jurisdiction is never waived, and may be raised by a party or sua sponte by the court. Fed.R.Civ.P. 12(b); Kontrick v. Ryan, 540 U.S. 443, 455, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004). Plaintiff, as the party invoking the jurisdiction of this Court, bears the burden of establishing subject matter jurisdiction. Khadr v. United States, 529 F.3d 1112, 1115, 381 U.S.App.D.C. 408 (D.C. Cir. 2008).
When reviewing a motion to dismiss for lack of jurisdiction, the court reviews the complaint liberally, granting the plaintiff the benefit of all inferences that can be derived from the facts alleged. Barr v. Clinton, 370 F.3d 1196, 1199, 361 U.S.App.D.C. 472 (D.C. Cir. 2004). The court " need not accept factual inferences drawn by plaintiffs if those inferences are not supported by facts alleged in the complaint, nor must the Court accept plaintiffs' legal conclusions." Speelman v. United States, 461 F.Supp.2d 71, 73 (D.D.C. 2006) (citations omitted). On a motion to dismiss under Rule 12(b)(1), courts are " not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction to hear the action." Wilderness Soc. v. Griles, 824 F.2d 4, 16 n.10, 262 U.S.App.D.C. 277 (D.C. Cir. 1987) (quoting 2A J. Moore & J. Lucas, Moore's Federal Practice, ¶ 12.07(2.-1), at 12-45-46 (1986)). See also Macharia v. United States, 238 F.Supp.2d 13, 19-20 (D.D.C. 2002), aff'd, 334 F.3d 61, 357 U.S.App.D.C. 223 (2003) (in reviewing a factual challenge to the truthfulness of the allegations in a complaint, a court may examine testimony and affidavits). Consideration of those documents under those circumstances does not convert the motion to dismiss into a motion for summary judgment. Al-Owhali v. Ashcroft, 279 F.Supp.2d 13, 21 (D.D.C. 2003).
B. Legal Standard Under Rule 12(b)(6)
A court may grant a defendant's motion to dismiss if a plaintiff fails to state a claim upon which relief could be granted. Fed.R.Civ.P. 12(b)(6). A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242, 352 U.S.App.D.C. 4 (D.C. Cir. 2002). Plaintiffs have a burden to provide " [f]actual allegations...enough to raise a right to relief above the speculative level." Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In evaluating a motion to dismiss, a court should employ a two-pronged approach. Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). First, the court should identify " pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. Second, " [w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id.
For a claim to be facially plausible, the pleaded factual content must " allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). " The plausibility standard is not akin to a 'probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citing Twombly, 550 U.S. at 556).
A court may dismiss a complaint without prejudice when the court finds that the plaintiff has not alleged all the material elements of his cause of action. Taylor v. FDIC, 132 F.3d 753, 761, 328 U.S.App.D.C. 52 (D.C. Cir. 1997). A complaint may be dismissed with prejudice when the court " determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency." Firestone v. Firestone, 76 F.3d 1205, 1209, 316 U.S.App.D.C. 152 (D.C. Cir. 1996) (citation and internal quotation omitted).
Defendant argues for dismissal on grounds that " Plaintiff's complaint purports to appeal an April 23, 2014 hearing officer decision, but asks the Court to overturn the District of Columbia Public Schools' subsequent May 6, 2014 determination that S.W. is ineligible for special education services -- a determination that has not been subject to administrative review." (Motion at 2.) In support of its argument, Defendant explains that " Plaintiff alleges errors in the hearing officer's April 23, 2014 determination [but] also alleges errors in DCPS's May 6, 2014 eligibility determination, contending that DCPS 'failed to consider' a psychological evaluation and 'only reviewed its own cursory assessments of S.W.'" (Motion at 4, referencing Plaintiff's Complaint at 10-11.) Defendant concludes that " [b]ecause Plaintiff's complaint asks the Court to review and overturn an agency determination that has not been reviewed by a hearing officer in an administrative proceeding, it should be dismissed for failure to exhaust administrative remedies." (Motion at 6.)
Plaintiff asserts that " Defendant's argument for dismissal relies on a misstatement of Plaintiffs' complaint, where Defendant states that Plaintiffs are asking this Court to overturn DCPS's May 6, 2014 eligibility determination." (Pls.' Memorandum at 3.) " Plaintiffs have explicitly and exclusively requested that this Court reverse the April 23, 2014 HOD that found S.W. ineligible for special education and related services [and they] have not requested that this Court reverse the May 2014 eligibility determination." (Pls.' Memorandum at 3-4.)
Pursuant to 20 U.S.C. § 1415(i)(2)(A), a party aggrieved by findings or a decision made at an impartial due process hearing has the right to bring a civil action with respect to the complaint " in a district court of the United States." (Pls.' Memorandum at 5.) Prior to initiating the civil action under 20 U.S.C. § 1415(i)(2)(A), plaintiffs are required to pursue their claims through the administrative channels provided by IDEIA, unless it would be " futile" to do so. Cox v. Jenkins, 878 F.2d 414, 418, 278 U.S.App.D.C. 312 (D.C. Cir. 1989) (citing Honig v. Doe, 484 U.S. 305, 327, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988)). Plaintiffs in the instant case exhausted their administrative remedies when they filed a due process complaint, participated in a due process hearing and received a decision at the administrative level.
Plaintiffs assert that DCPS's subsequent actions do not defeat their right to appeal the April 23, 2014 HOD and further note that:
[I]f this Court were to find that Plaintiffs' right to appeal [was] contingent on Defendant's actions subsequent to the issuance of an HOD, regardless of whether or not those actions were beneficial to the child, the Court could set a dangerous precedent that would eviscerate the statutory rights of parents to seek a judicial review of administrative decisions under the IDEIA.
(Pls.' Memorandum at 8-9.) Plaintiffs further contend that " if this Court were to find that more than a final administrative order was required for plaintiffs to exhaust their administrative remedies, this Court would render Plaintiffs' right to appeal an HOD meaningless and would contradict the IDEIA by making any plaintiff's right to appeal extinguishable by any subsequent act of the LEA, regardless of whether or not that act was beneficial to the child." (Pls.' Memorandum at 12 (emphasis in original)).
In the HOD, the Hearing Officer ordered DCPS " to reopen its eligibility evaluation of Student and reconvene Student's MDT team to determine if she is a child with a disability" after finding that DCPS defaulted on its Child Find obligation by failing to evaluate the Student for an ED disability. (Exh. 1 at 15 (emphasis added)). The Hearing Officer denied without prejudice Plaintiff's request for a determination that the Student was eligible for special education and related services as a child with a disability on grounds that Petitioner " did not meet her burden of proof to establish that the Student should have been found eligible on the basis of an ED or an SLD [Specific Learning Disability] disability." (Exh. 1 at 15.) The Hearing Officer specifically stated that " DCPS' Child Find obligation is distinct from its obligation to provide FAPE to a student who has affirmatively been determined to be a child with a disability." (Id. (emphasis added)). The HOD clearly noted that it is " the final administrative decision in this matter" and that an aggrieved party " may bring a civil action in any state court of competent jurisdiction or in a District Court of the United States . . . within ninety (90) days from the date of the [HOD]. . . ." (Exh. 1 at 16.)
A review of Plaintiffs' Complaint indicates that Count 1 of the Complaint focuses on the Hearing Officer's alleged errors including misapplication of 34 C.F.R.§ 300.8(a)(2)(i) and failure to consider evidence that S.W. needed special education as a result of her disability. (Complaint ¶ ¶ 59-79.) Count 2 focuses on the Hearing Officer's failure to properly weigh the evidence and his finding that Plaintiffs did not demonstrate by " sufficient evidence" that S.W. was eligible for special education and had been denied a FAPE. (Complaint ¶ ¶ 81-96.) The undersigned finds it clear that Plaintiffs' Complaint focuses on challenging the April HOD after the Plaintiffs exhausted their administrative review process.
In its Reply, Defendant asks that the trial court dismiss Plaintiff's claims against the District or alternatively " grant Plaintiff leave to file an amended complaint that focuses on the hearing officer decision and does not impinge on the administrative exhaustion requirement for the May 6, 2014 agency determination." (Reply at 5 (emphasis added)).
The undersigned finds that Plaintiffs' Complaint does reference events that occurred after the issuance of the April 23, 2014 HOD. (Complaint ¶ ¶ 56-57.) While this information may have been intended to demonstrate that the relief sought by Plaintiffs is not moot (even after DCPS held an MDT meeting subsequent to the April 23, 2014 HOD), Plaintiffs' statements about " DCPS's refusal to consider the findings of the psychological evaluation" and DCPS's " review [ ] [of] its own cursory assessments of S.W" may be seen as a challenge to DCPS's May 6, 2014 decision and there has been no administrative exhaustion of that decision. The undersigned thus recommends that Complaint ¶ ¶ 56-57 be stricken to avoid any confusion about the scope of the decision that is being appealed by Plaintiffs. The undersigned further recommends that Defendant's Motion to Dismiss  be otherwise denied.
V. Review by the District Court
The parties are hereby advised that under the provisions of Local Rule 72.3(b) of the United States District Court for the District of Columbia, any party who objects to the Report and Recommendation must file a written objection thereto with the Clerk of this Court within 14 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the report and/or recommendation to which objection is made, and the basis for such objections. The parties are further advised that failure to file timely objections to the findings and recommendations set forth in this report may waive their right of appeal from an order of the District Court that adopts such findings and recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).