United States District Court, District of Columbia
E. BOASBERG UNITED STATES DISTRICT JUDGE.
Chundra Adams, acting on behalf of her child T.J., brought
this action alleging that the District of Columbia is
violating the Individuals with Disabilities Education Act
(IDEA), 20 U.S.C. § 1400 et seq., by failing to
provide her son a free and appropriate public education. She
now seeks a preliminary injunction requiring his placement at
a private school. Magistrate Judge Deborah A. Robinson,
having been referred the case, has issued a Report and
Recommendation to deny the Motion, largely for lack of
irreparable harm. Finding alternatively that Adams does not
have the requisite likelihood of success on the merits for an
injunction to issue, the Court will adopt the Report's
conclusion and deny the Motion.
Court will not reiterate the full factual background of the
case, which is set out in detail in the 35-page hearing
officer determination (HOD) and the Report and
Recommendation. In short, T.J. is a minor child currently
enrolled in the 6th grade in the District of Columbia Public
School system. See ECF No. 1 (Complaint), ¶ 7.
He is eligible for special education and related services as
a student with Attention Deficit Hyperactivity Disorder and
Emotional Disturbance, and his reading and math skills are
significantly below grade level. Id., ¶ 9; ECF
No. 1-4 (Interim HOD) at 24. In 2015, T.J.'s
Individualized Education Program required two hours per day
of specialized instruction outside general education and one
hour per day within general education, with 120 minutes per
month of Behavioral Support Services. See Compl.,
¶ 11. In March 2016, the IEP was increased to four hours
a day of special education, with 120 minutes per month of
Behavioral Support. Id., ¶ 27. After T.J.
underwent a series of psychological and behavioral
assessments in early 2017, his IEP team was reconvened on
March 16. Determining that he required additional support,
the team bumped up his Specialized Instruction Services to 20
hours per week, including 15 hours outside general education,
and increased his Behavior Support to 240 minutes per month.
Id., ¶ 44. The District later determined,
however, that in order for T.J. to have this level of special
education, all 20 hours of his Specialized Instruction would
have to be outside general education. See Interim
HOD at 17. On May 23, 2017, the Special Education Manager for
DCPS circulated a proposed revised IEP reflecting this change
and suggested holding an IEP meeting to finalize a plan
providing for 20 hours outside general education and
placement in a Behavior and Education Support (BES)
classroom. See AR 338-354. Plaintiff, however,
declined to participate in the May IEP meeting. On June 30,
DCPS sent Adams a location-of-services letter for the 2017-18
school year informing her that T.J. would be placed in a BES
classroom at Kramer Middle School. See AR 163.
15, however, prior to the circulation of the revised IEP and
proposed BES placement, Plaintiff filed a Due Process
Complaint naming DCPS as respondent. See AR 05-21.
The Complaint alleged that T.J.'s 2015, 2016, and 2017
IEPs and placements denied him a free and appropriate public
education (FAPE) and requested that the Hearing Officer
“[o]rder DCPS to fund the student's tuition and
transportation at a non-public school of the parent's
choosing.” AR 18. Plaintiff later identified her chosen
private school as the Phillips School, which is a private
special-education day school located in Maryland with an
annual tuition of approximately $49, 000. See ECF
12-1 (Administrative Hearing Transcript) at 94:22. It enrolls
only students with IDEA disabilities and implements a
school-wide behavior system to accommodate those students
with emotional and behavioral challenges. Id. at
113:12-15. Phillips currently holds a Certificate of Approval
from the State Superintendent of Education, and it enrolls a
number of students from DCPS. Id. at 93:2; 95:12-14.
T.J. has been accepted for admission for the 2017-18 school
year and would, at this point, still be able to attend
Phillips for the remainder of the term. Id. at
August 2-3, the parties participated in an administrative
hearing before Hearing Officer Peter B. Vaden. See
Interim HOD at 1. Plaintiff called as witnesses T.J's
educational advocate, Dr. Ida Holman, who offered testimony
as to his educational needs and past IEPs, as well as Laura
Green from the Lindamood-Bell Reading Center, who testified
as to the Center's reading program, and Sarah Headley,
the Program Director at Phillips School, who discussed the
offerings at Phillips and the school's ability to serve
T.J.'s disabilities. See Compl., ¶ 61. DCPS
called Tina Allen, a school social worker, who testified as
to T.J.'s prior IEPs and the educational impacts of his
disabilities; Dr. Jamie Wyche, the Special Education Manager
from Aiton Elementary School, where T.J. had been previously
placed; and Jacqueline Walters, the Assistant Principal of
Kramer Middle School, who testified as to the
special-education programs available at Kramer. Id.,
¶ 62 Over the course of the two-day hearing, Officer
Vaden heard testimony from both sides on T.J.'s
educational and behavioral impairments, the respective
special-education offerings of Phillips School and DCPS, and
the alleged prior deprivations of FAPE.
August 18, the Hearing Officer issued his determination,
finding that DCPS had violated IDEA by denying T.J. his right
to a FAPE. Specifically, Officer Vaden concluded that: (1)
DCPS's delay of one year in conducting an updated
Functional Behavioral Assessment (FBA) impeded T.J.'s
access to a FAPE; (2) DCPS denied T.J. a FAPE by providing
him with an inappropriate IEP on March 22, 2016; (3) DCPS
denied T.J. a FAPE by providing him with an inappropriate IEP
on March 16, 2017; and (4) Plaintiff did not, however,
demonstrate that DCPS could not provide a special-education
placement capable of meeting T.J.'s needs.
to the appropriate remedies for DCPS's violations, the
Hearing Officer found that the “evidence [did] not
establish that no suitable public school is available for
Student.” Interim HOD at 31. He therefore declined to
order DCPS to fund T.J.'s private-school placement and
instead directed the District to convene T.J.'s IEP team
within 15 business days of his decision to “review and
revise, as appropriate, Student's IEP, in accordance
[with] this decision” and to, within five days of the
IEP revision, “identify to the parent a suitable school
location to implement the revised IEP.” Id.
Finally, Officer Vaden found that T.J. was entitled to an
award of compensatory education to remedy his prior denials
of FAPE. On September 7, the parties held the IEP meeting
ordered in the Interim HOD, see ECF No. 4-3 (Holman
Affidavit), ¶ 8, where they agreed upon T.J.'s
enrollment in the 20-hour/BES program as a “stay
put” placement. See ECF No. 18 (Objections) at
3 (stating that 20-hour/BES IEP proposed by DCPS in May 2017
is “the same one that student has now”). On
September 12, 2017, after continuing the final decision date
to allow for additional evidence on the
compensatory-education award, the Hearing Officer ordered
that DCPS fund 400 hours of individual reading instruction,
as well as 75 hours of mentoring services by a social worker
or counselor in order to compensate for the denials of FAPE
identified in the Interim HOD. See ECF No. 8-1
(Final HOD) at 6.
to Officer Vaden's determination on the merits -
i.e., the Interim HOD - Plaintiff filed this action
on September 5. Adams's Complaint alleged that the
Hearing Officer erred in the following ways: (1) by not
“ruling separately on the placement claim”; (2)
by invalidating the March 2017 IEP on procedural grounds and
failing to “consider any of the substantive allegations
made by the parent”; (3) by failing to address
Plaintiff's assertion that delegation to the LRE team
impeded Adams's participation in the placement decision;
and (4) by finding that Plaintiff did not meet her burden of
proving that there was no appropriate public-school option
for T.J. See Compl., ¶¶ 101-139. As relief
for these alleged errors, Plaintiff requested that the Court
grant both declaratory and injunctive relief, including
issuing an Order requiring DCPS to fund T.J.'s tuition at
and transportation to the Phillips School. Id. at
case was then referred to Magistrate Judge Robinson for full
case management. See ECF No. 3 (Referral Order).
Three days after filing her Complaint, Plaintiff filed a
Motion for a Preliminary Injunction, requesting that the
Court place T.J. at the Phillips School. See ECF No.
4 (Emergency Motion for Preliminary Injunction). On November
8, 2017, Magistrate Judge Robinson issued a Report and
Recommendation to deny Plaintiff's request for emergency
relief, finding that Adams could not demonstrate irreparable
harm. See ECF No. 17 (Report and Recommendation).
Adams timely filed her Objections to the Report on November
20, and DCPS responded on December 4. See ECF Nos.
18 (Objections); 20 (DCPS Response). On January 9, 2018, this
Court held oral argument on the Motion.
Federal Rule of Civil Procedure 72(b), once a magistrate
judge has entered her recommended disposition, a party may
file specific written objections. The district court
“must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to.” Fed.R.Civ.P. 72(b)(3); see,
e.g., Winston & Strawn LLP v. FDIC, 841
F.Supp.2d 225, 228 (D.D.C. 2012) (court must conduct de
novo review of objections to magistrate judge's
report and recommendation). The district court may then
“accept, reject, or modify the recommended
disposition.” Fed.R.Civ.P. 72(b)(3).
the Report and Recommendation addresses Plaintiff's
Motion for a Preliminary Injunction, the Court also sets
forth the relevant standard for such relief. A party seeking
preliminary relief must make a “clear showing that four
factors, taken together, warrant relief: likely success on
the merits, likely irreparable harm in the absence of
preliminary relief, a balance of the equities in its favor,
and accord with the public interest.” League of
Women Voters of United States v. Newby, 838 F.3d 1, 6
(D.C. Cir. 2016) (quoting Pursuing America's
Greatness v. FEC, 831 F.3d 500, 505 (D.C. Cir. 2016)).
to the Supreme Court's decision in Winter v.
NRDC, 555 U.S. 7 (2008), courts weighed these factors on
a “sliding scale, ” allowing “an unusually
strong showing on one of the factors” to overcome a
weaker showing on another. Davis v. PBGC, 571 F.3d
1288, 1291-92 (D.C. Cir. 2009); see Davenport v.
Int'l Bhd. of Teamsters, 166 F.3d 356, 360-61 (D.C.
Cir. 1999). This Circuit has since suggested, though not
held, that Winter - which overturned the Ninth
Circuit's “possibility of irreparable harm”
standard - establishes that “likelihood of irreparable
harm” and “likelihood of success” are
requirement[s].'” Sherley v. Sebelius, 644
F.3d 388, 392-93 (D.C. Cir. 2011) (quoting Davis,
571 F.3d at 1296 (Kavanaugh, J., concurring)). Unresolved,
too, is the related question of “whether, in cases
where the other three factors strongly favor issuing an
injunction, a plaintiff need only raise a ‘serious
legal question' on the merits.” Aamer v.
Obama, 742 F.3d 1023, 1043 (D.C. Cir. 2014) (citation
of these areas of uncertainty, however, courts in our Circuit
have squarely held that a failure to show a likelihood of
success on the merits alone is sufficient to defeat the
motion. See Ark. Dairy Co-op Ass'n, Inc. v.
USDA, 573 F.3d 815, 832 (D.C. Cir. 2009) (citing
Apotex, Inc. v. FDA, 449 F.3d 1249, 1253-54 (D.C.
Cir. 2006)). Conversely, a plaintiff's showing of
likelihood of success does not end the inquiry; rather,
“the movant has the burden to show that all four
factors, taken together, weigh in favor of the
injunction.” Davis, 571 F.3d at 1292.
raises four objections to the Magistrate Judge's denial
of her Motion for a Preliminary Injunction. See Obj.
at 1-2. She asserts that: (1) the Report and Recommendation
“rested on fundamental misunderstandings of the facts
and the contents of the administrative records”; (2)
the Report erred by “suggest[ing] that the Court did
not have the authority to grant the Preliminary
Injunction”; (3) the Report failed to correctly
conclude that “the IEP and placement provided to the
student after the HOD was issued . . . was already proven
unable to provide T.J. a FAPE at the” hearing; and (4)
the Magistrate Judge failed ...