UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BARBARA THEODORE, as parent and
next friend of A.G.,
Plaintiff,
v. Civil Action No. 09-0667 (JDB)
DISTRICT OF COLUMBIA, et al.,
Defendants.
MEMORANDUM OPINION & ORDER
The Court has previously detailed the facts underlying this suit, which stems from
Theodore's allegation that the District of Columbia Public Schools ("DCPS") denied her daughter
A.G. a "free appropriate public education" ("FAPE") under the Individuals with Disabilities
Education Act, 20 U.S.C. § 1400 et seq. See Theodore v. Dist of Columbia, 655 F. Supp. 2d
136, 139-40 (D.D.C. 2009). In an earlier opinion, the Court dismissed several of Theodore's
requests for relief as moot. See id. at 143-45. Remaining 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. The parties have filed cross-motions for summary judgment on this
point.
The Court cannot resolve the parties' motions on the present record. In the decision that
Theodore now challenges, the hearing officer determined that Theodore's claim that DCPS
improperly failed to fund evaluations for her daughter had been adjudicated in a previous
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hearing, and thus was barred by res judicata. See Administrative Record 3-4. Accordingly, the
hearing officer did not reach the merits of Theodore's claim. In her motion for summary
judgment, however, Theodore does not challenge the hearing officer's res judicata determination,
and instead focuses solely on the merits of her claim concerning the failure to fund evaluations.
But for the Court to rule in Theodore's favor on that claim, it must first find the hearing officer's
res judicata determination incorrect. See Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516,
521 (D.C. Cir. 2005) ("'[A] party challenging the administrative determination must at least take
on the burden of persuading the court that the hearing officer was wrong, and . . . a court
upsetting the officer's decision must at least explain its basis for doing so.'" (quoting Kerkam v.
McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1988))). Because Theodore does not address this issue,
the Court cannot grant her summary judgment.
The Court also will not grant DCPS's motion for summary judgment. DCPS, like
Theodore, does not address whether the hearing officer's res judicata finding was correct.1 Thus,
the interests of both justice and judicial economy are served by permitting the parties an
opportunity to brief the res judicata issue.2
Accordingly, it is hereby
1
In passing, DCPS does state in its motion for summary judgment that "[g]iven the
paucity of evidence presented by the Plaintiff below, the hearing officer below properly
concluded that the [Second Hearing Officer Decision] was res judicata when it determined that
'A preponderance of the evidence does not support the parent's contention that DCPS failed to
timely evaluate the Petitioner in all areas of suspected disability and failed to timely determine
Petitioner's eligibility.'" Def.'s Mot. for Summ. J. [Docket Entry 19], at 14-15. This isolated
reference to "res judicata" is insufficient to properly present the issue to the Court.
2
Although the Court will deny the pending summary judgment motions, it nevertheless
will consider the arguments raised therein when resolving any "renewed" motions for summary
judgment.
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ORDERED that [18][19] the parties' cross-motions for summary judgment are DENIED
without prejudice; and it is further
ORDERED as follows:
1. Theodore shall, by not later than August 25, 2010, file a renewed motion for
summary judgment that addresses the hearing officer's res judicata determination.
2. DCPS shall, by not later than September 10, 2010, file a renewed cross-motion for
summary judgment and opposition to Theodore's motion that addresses the
hearing officer's res judicata determination.
3. Theodore may file an opposition to DCPS's cross-motion, and a reply in support
of her motion for summary judgment, by not later than September 24, 2010.
4. DCPS may file a reply in support of its cross-motion for summary judgment
by not later than October 8, 2010.
SO ORDERED.
/s/ John D. Bates
John D. Bates
United States District Judge
Date: August 10, 2010
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