UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUM BIA
BARBARA THEODORE,
Plaintiff,
v. Civil Action No. 09-0667 (JDB)
DISTRICT OF COLUM BIA, et al.,
Defendants.
M EM ORANDUM OPINION
Plaintiff Barbara Theodore brings this action as parent and next friend of A.G. against the
District of Columbia and Michelle Rhee, the Chancellor of the District of Columbia Public Schools
("DCPS"). Theodore alleges that defendants have failed to provide A.G. with appropriate testing to
determine whether she is eligible for special educational services, thereby violating the Individuals with
Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-82. She also challenges a hearing officer's
determination ("HOD") that dismissed her case on December 6, 2009 pursuant to res judicata. Now
before the Court are plaintiff's and defendants' cross-motions for summary judgment pursuant to Fed.
R. Civ. P. 56. Upon consideration of the parties' motions, memoranda, and the entire record, and for
the reasons stated below, the Court will grant defendants' motion for summary judgment and deny
plaintiff's motion.
BACKGROUND
I. Statutory Background: The Individuals with Disabilities Education Act
Congress passed the IDEA to "ensure that all children with disabilities have available to them a
free appropriate public education that emphasizes special education and related services designed to
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meet their unique needs." 20 U.S.C. § 1400(d)(1)(A). The IDEA provides funding to assist states in
implementing a "comprehensive, coordinated, multidisciplinary, interagency system of early
intervention services for infants and toddlers with disabilities and their families." 20 U.S.C. §
1400(d)(2).
Under the IDEA, all states, including the District of Columbia, receiving federal education
assistance must establish policies and procedures to ensure that "[a] free appropriate public education
[FAPE] is available to all children with disabilities residing in the State." 20 U.S.C. § 1412(a)(1)(A).
The law defines FAPE as "special education and related services that (A) have been provided at public
expense, under public supervision and direction, and without charge; (B) meet the standards of the
State educational agency; (C) include an appropriate preschool, elementary school, or secondary school
education in the State involved; and (D) are provided in conformity with the individualized education
program required." Id. § 1401(9). Once a child is found to qualify, DCPS is required to develop and
implement an Individualized Education Program ("IEP") for him or her. Id. § 1414(d)(2)(A). The IEP
comprehensively describes the student's present academic level, details measurable annual goals for the
student, specifies necessary educational and related services, and establishes the extent to which the
student will participate in a regular education classroom. Id. § 1414(d)(1)(A)(i)(I)-(III).
In order to implement the IEP, a team including the child's parents determines where the child
should be placed. Id. § 1414(e). If no public school can meet the child's needs, DCPS is required to
find an appropriate private school and cover the tuition for the child. Id. § 1412(a)(10)(B)(i); see Sch.
Comm. of Burlington v. Dep't of Educ. of Mass., 471 U.S. 359, 369 (1985). If a parent disagrees with
the IEP or the subsequent placement, he or she is entitled to an "impartial due process hearing"
conducted by the state or local educational agency. 20 U.S.C. § 1415(f)(1)(A). Any party aggrieved
by the hearing decision may bring a civil action challenging the decision in federal district court. Id. §
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1415(i)(2)(A).
II. Factual Background
The Court has previously detailed the history of this case in its September 2009 opinion and
thus will only briefly discuss the relevant facts here. See Theodore v. Dist. of Columbia, 655 F. Supp
2d 136 (D.D.C. 2009). A.G. is a fifteen-year-old resident of the District of Columbia and a student at
Wilson Senior High School. Defs' Renewed Mot. for Summ. J. and Reply in Opp'n to Pl's Renewed
Mot. for Summ. J. (Defs' Mot.) at 2; Administrative Record ("AR") filed December 17, 2009 at 45-55.
In response to A.G.'s performance problems in school, DCPS completed a psychological assessment of
A.G. at the request of Theodore. See Pl's Renewed Mot. for Summ. J. (Pl's Mot.) at 4; Defs' Mot. at 3;
AR at 45-55. The August 2007 report concluded that A.G. did not suffer from a learning disability
and thus was not eligible for special education services. Id. Specifically, the testing found that A.G.
had properly developed skills in reading, reading comprehension, math and writing and stated that
A.G.'s scores were not suggestive of ADHD. Defs' Mot. at 3; AR at 45-52.
During the course of the 2007-2008 school year, A.G. continued to struggle in school. Pl's
Mot. at 4; AR at 12. On December 5, 2007, a multi-disciplinary team ("MDT") convened to review
the results of the August 2007 testing and to determine whether A.G. was eligible for special education
services. Pl's Mot. at 4; Defs' Mot. at 3; AR at 56-61. Theodore informed the MDT at this time that
A.G. had previously been diagnosed with attention deficit with hyperactive disorder ("ADHD") in
2001, but did not provide the team with any supporting documentation. Pl's Mot. at 4; Defs' Mot. at 3;
AR at 58. Ultimately, the December 2007 MDT concluded that A.G. was not eligible for special
education services. Id.
In January 2008, Theodore requested that DCPS perform neuropsychological and other
examinations of A.G. Pl's Mot. at 4; Defs' Mot. at 3; AR at 75, 117. After DCPS denied Theodore's
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request, she filed her first due process hearing request (DPHR #1) in March 2008 alleging that DCPS
had denied A.G. a FAPE by failing to fund the additional testing. Pl's Mot. at 4; Defs' Mot. at 4; AR at
98-105. On April 17, 2008, a Hearing Officer Determination (HOD #1) was issued that dismissed
Theodore's complaint with prejudice on the ground that DCPS had properly concluded that A.G. was
ineligible for special educational services. Pl's Mot. at 4; Defs' Mot. at 4; AR at 98-105.
In May 2008, Theodore filed a second DPHR (DPHR #2) alleging that DCPS had denied A.G.
a FAPE by failing to evaluate, determine eligibility for, and develop an appropriate IEP and placement
for her. Pl's Mot. at 5; Defs' Mot. at 4. A second HOD (HOD #2) in July 2008 found that DCPS had
properly evaluated A.G. and made a timely determination that A.G. was ineligible for special education
services. Id. In September 2008, Theodore requested an additional MDT meeting where she presented
letters from August 2008 indicating that A.G. had been diagnosed with ADHD in 2001. Pl's Mot. at 5-
6; Defs' Mot. at 4; AR at 77-78. DCPS again declined to fund additional testing and Theodore then
filed her third DPHR (DPHR #3). A third HOD (HOD #3), issued in December 2008, dismissed
Theodore's complaint as barred by res judicata after finding that DPHR #3 contained facts and
allegations that had already been addressed in the previous due process complaints and HODs. Pl's
Mot. at 6; Defs' Mot. at 5. After Theodore's motion for reconsideration was constructively denied, she
filed the complaint now before this Court on April 10, 2009.
In its 2009 opinion, this Court dismissed several of Theodore's requests for relief as moot. See
Theodore, 655 F. Supp. at 144 (finding that Theodore's requests for additional evaluations and an IEP
meeting were moot because a judgment would not "presently affect the parties' rights"). The remaining
claim is Theodore's contention that an administrative hearing officer improperly rejected her allegation
that DCPS's failure to fund independent psychological testing for A.G. denied her a FAPE, and that
A.G. is thus entitled to compensatory education. After requesting additional briefing from the parties
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on the issue of res judicata, the Court can now resolve the parties' cross-motions for summary
judgment.
STANDARD OF REVIEW
I. Summary Judgment
Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(a). The party seeking summary judgment bears the initial responsibility of
demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). The moving party may successfully support its motion by identifying those portions
of "the record, including depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of motion only), admissions, interrogatory
answers, or other materials," which it believes demonstrate the absence of a genuine issue of material
fact. Fed. R. Civ. P. 56(c)(1); see Celotex, 477 U.S. at 323.
In determining whether there exists a genuine dispute of material fact sufficient to preclude
summary judgment, the court must regard the non-movant's statements as true and accept all evidence
and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla
of evidence" in support of its position. Id. at 252. By pointing to the absence of evidence proffered by
the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322.
"If the evidence is merely colorable, or is not significantly probative, summary judgment may be
granted." Anderson, 477 U.S. at 249-50 (citations omitted). Summary judgment is appropriate if the
non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id.
at 252.
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II. IDEA
Under the IDEA, "[a]ny party aggrieved by the findings and decision" rendered during
administrative proceedings may "bring a civil action" in state or federal court without regard to the
amount in controversy. 20 U.S.C. § 1415(i)(2), (i)(3)(A). The reviewing court "(i) shall receive the
records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party;
and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court
determines is appropriate." 20 U.S.C. § 1415(i)(2)(C). On review of an HOD, 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." Reid ex. rel. Reid v. Dist. of Columbia,
401 F.3d 516, 521 (D.C. Cir. 2005) (quoting Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir.
1989)).
The preponderance-of-the-evidence standard of review, the Supreme Court has held, does not
authorize unfettered de novo review. Bd. of Educ. of Hendrick Hundson Cent. Sch. Dist. v. Rowley,
458 U.S. 176, 206 (1982). Rather, consideration of the record impliedly requires courts to give "due
weight" to the administrative proceedings, id., and "factual findings from the administrative
proceedings are to be considered prima facie correct." S.H. v. State-Operated Sch. Dist. of Newark,
336 F.3d 260, 270 (3d Cir. 2003). Therefore, courts may not substitute their own views for those of
the hearing officer, see Rowley, 458 U.S. at 206; Shaw v. Dist. of Columbia, 238 F.Supp. 2d 127, 136
(D.D.C. 2002), and a court upsetting a hearing officer's decision "must at least explain its basis for
doing so," Kerkam, 862 F.2d at 887. At the same time, "the district court's authority to 'hear additional
evidence at the request of a party,' and 'bas[e] its decision on the preponderance of the evidence' . . .
'plainly suggest[s] less deference than is conventional' in administrative proceedings." Reid, 401 F.3d
at 521 (quoting Kerkam, 862 F.2d at 887). A motion for summary judgment operates as a motion for
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judgment based on the evidence comprising the record and any additional evidence the Court may
receive. See Heather S. v. Wisconsin, 125 F.3d 1045, 1052 (7th Cir. 1997) ("[T]he motion for
summary judgment is simply the procedural vehicle for asking the judge to decide the case on the basis
of the administrative record").
DISCUSSION
Theodore argues that HOD #3 improperly dismissed her complaint after finding that the issues
raised were barred by res judicata. Res judicata involves two separate legal theories - - claim
preclusion and issue preclusion. "Claim preclusion generally refers to the effect of a prior litigation in
foreclosing successive litigation of the very same claim, whether or not re-litigation of the claim raises
the same issues as the earlier suit. Issue preclusion generally refers to the effect of a prior judgment in
foreclosing successive litigation of an issue of fact or law actually litigated and resolved in a valid court
determination essential to the prior judgment, whether or not the issue arises on the same or a different
claim." New Hampshire v. Maine, 532 U.S. 742, 748-49 (2001) (citing Restatement (Second) of
Judgments § § 17, 27, pp. 148, 250 (1980); D. Shapiro, Civil Procedure: Preclusion in Civil Actions
32, 46 (2001)). Only claim preclusion is at issue here.
Claim preclusion seeks to "[protect] litigants from the burden of re-litigating an identical issue
with the same party or his privy and [promote] judicial economy by preventing needless litigation."
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979). The doctrine focuses on whether the same
cause of action is implicated in both the initial and subsequent lawsuits, meaning that the two lawsuits
“share the same nucleus of facts.” Serpas v. Dist. of Columbia, 2005 U.S. Dist. LEXIS 44536, *12-13
(D.D.C. 2005) (citing Drake v. FAA, 291 F.3d 59, 66 (D.C. Cir. 2002)). In determining whether the
same nucleus of facts is at issue, "the court should consider 'whether the facts are related in time, space,
origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit
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conforms to the parties' expectations of the business understanding or usage.'" Id. at *13 (quoting
I.A.M. Nat'l Pension Fund v. Indus. Gear Mfg. Co., 723 F.2d 944, 949 n. 5 (D.C. Cir. 1983)).
Ultimately, the successful application of the claim preclusion doctrine requires three things: “(1) the
presence of the same parties or privies in the two suits; (2) claims arising from the same cause of action
in both suits; and (3) a final judgment on the merits in the previous suit." Friendship Edison Public
Chartered School v. Suggs, 562 F. Supp. 2d 141, 148 (D.D.C. 2008) (citing Apotex, Inc. v. FDA, 393
F.3d 210, 217 (D.C. Cir. 2004)). Although courts were initially hesitant to use res judicata in the
administrative setting, the doctrine has consistently been applied to administrative hearings that reach a
final judgment on the merits. See Hobby v. Hodges, 215 F.2d 754, 759 (10th Cir. 1954); Robinson v.
Heckler, 593 F. Supp. 737, 741 (D.D.C. 1984); Mannerfrid v. Brownell, 145 F. Supp. 55, 56 (D.D.C.
1956); Rhema Christian Center v. Dist. of Columbia Bd. of Zoning Adjustment, 515 A.2d 189, 192
(D.C. 1986) (finding that final administrative decisions that operate as a judicial proceeding generally
will be accorded preclusive effect by courts).
Theodore argues that Hearing Officer Raskin incorrectly found in HOD #3 that her allegation
that DCPS failed to fund an independent evaluation of A.G. had been fully litigated in HOD #1 and
HOD #2 and thus was barred by res judicata. Pl’s Mot. at 9. But as made clear by the separate HOD
opinions issued in this case, each of Theodore’s three complaints raised the same issues and focused on
the same facts: that her daughter, A.G., was denied a FAPE and that DCPS should have paid for
additional evaluations. In HOD #1, the hearing officer concluded that DCPS "properly determined that
[A.G.] was ineligible for special education services" in December 2007 because DCPS was able to
"rule out any disability." Pl's Ex. 5 (Hearing Officer's Decision issued by Hearing Officer Charles R.
Jones on April 7, 2008), p. 4. In July 2008, a hearing officer again determined in HOD #2 that DCPS
timely evaluated A.G. in all areas of suspected disability and properly concluded that she was not
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eligible for special education services. Pl's Ex. 3 (Hearing Officer's Decision issued by Hearing Officer
Charles R. Jones on July 21, 2008), p. 4-5. Moreover, the hearing officer determined then that DCPS
properly complied with the relevant "Child Find" regulations and that Theodore's reliance on A.G.'s
2001 ADHD diagnosis was not probative because "from an evidentiary prospective, evaluations over 3
years old are not current and therefore, quite unreliable." Id. at 5. The hearing officer concluded that
"the comprehensive psychological did not provide a scintilla of support for a neuropsychological
evaluation." Id.
Under claim preclusion, "it is the factual nucleus that gives rise to a plaintiff's claims, not a
legal theory on which the claim rests that determines whether the claim may proceed." Lindsey v. Dist.
of Columbia, 609 F. Supp. 2d 71, 77 (D.D.C. 2009) (referencing Page v. U.S., 729 F.2d 818, 820
(D.C. Cir. 1984)). Although Theodore tries to mask her argument under a new legal theory in her
third DPHR, all three of her complaints ultimately rely on the same "factual nucleus" - - her
disagreement with the outcome of A.G.'s 2007 evaluation. Because claim preclusion is intended to
promote judicial efficiency, "'[r]es judicata bars re-litigation not only of matters determined in a
previous litigation but also ones a party could have raised.'" Owens v. Dist. of Columbia, 631 F. Supp.
2d 48, 55 (D.D.C. 2009) (citing Capitol Hill Group v. Pillsbury, Winthrop, Shaw, Pittman, LLC, 569
F.3d 485, 491 D.C. Cir. 2009)). Hence, "'claim preclusion precludes the litigation of claims, not just
arguments.'" Id. Try as Theodore might, all three DPHRs focus on the same factual nucleus and claims
- - that DCPS denied A.G. a FAPE and failed to properly evaluate her. Unfortunately, this issue has
already been decided in HOD #1 and #2 and thus was properly found to be barred by res judicata in
HOD #3.
Under the res judicata standard, there is little question that the issue whether DCPS failed to
properly evaluate A.G., as raised in DPHR #3, was "related in time, space, and origin" to the issues
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presented in the prior hearings. A district court is expected to give "due weight" to the determination of
the hearing officer. Rowley, 458 U.S. at 206. Although Theodore argues that DPHR #3 is not barred
by res judicata because it included new evidence - - the letters indicating A.G. had previously been
diagnosed with ADHD in 2001 - - "'newly discovered evidence normally does not prevent the
application of res judicata,' unless the evidence was 'either fraudulently concealed or when it could not
have been discovered with due diligence.'" Guerrero v. Katzen, 774 F.2d 506, 508 (D.C. Cir. 1985)
(citing Dreyfus v. First Nat'l Bank of Chicago, 424 F.2d 1171, 1175 (7th Cir. 1970); Costantini v.
Trans World Airlines, 681 F.2d 1199, 1202-03 (9th Cir. 1982)). Neither of those circumstances is
present in this case.
Here, although Theodore initially raised A.G.’s prior ADHD diagnosis at the December 2007
MDT, she did not provide any documentation to substantiate this diagnosis, especially in light of the
contradictory results of A.G’s 2007 DCPS evaluation. Moreover, as noted in HOD #3, Theodore
made no allegation that DCPS failed to address A.G.’s ADHD. See Pl's Ex. 1 (Hearing Officer's
Decision issued by Hearing Officer Frances Raskin on December 6, 2008), p. 3. While Theodore did
allege in DPHR #3 that A.G. had previously been diagnosed with ADHD, as Officer Raskin noted in
his decision, her complaint "did not allege that this diagnosis was the reason why [she] was again
seeking an authorization for an independent comprehensive psychological evaluation. Rather, the
[c]omplaint reiterates the allegation in the previous complaint that the educational advocate disagreed
with the 2007 evaluation." Id. The fact that Theodore sought to introduce new evidence, then, is
simply not enough to avoid claim preclusion.
Ultimately, because Theodore’s claims in her third DPHR arise from the same nucleus of facts
as the prior HODs and involve the same parties as a prior action that involved a final judgment on the
merits, this Court affirms the hearing officer’s determination in HOD #3 that DPHR #3 was properly
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barred by res judicata.1
CONCLUSION
Accordingly, the Court will deny Theodore's renewed motion for summary judgment and grant
defendants' motion for summary judgment. A separate order has been issued on this date.
/s/
JOHN D. BATES
United States District Judge
Dated: March 28, 2011
1
Because res judicata applies, the Court does not need to discuss the merits of Theodore's other claims regarding
DCPS’s failure to provide a FAPE and A.G.’s right to compensatory education.
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Theodore v. District of Columbia
Combined Opinion