Adams v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CHUNDRA ADAMS,
Parent and next friend of T.J.,

Plaintiff,
v. Civil Action No. 17-1816 (JEB)
DISTRICT OF COLUMBIA,

Defendant.

MEMORANDUM OPINION

Plaintiff 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.

I. Background

The 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

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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.

On May 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

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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 106:10-11.

On 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

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special-education offerings of Phillips School and DCPS, and the alleged prior deprivations of

FAPE.

On 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.

Turning 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

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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.

Subsequent 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 33-34.

The 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.

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II. Legal Standard

Under 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).

Because 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)).

Prior 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 “‘independent, free-standing requirement[s].’”

Sherley v. Sebelius, 644 F.3d 388, 392-93 (D.C. Cir. 2011) (quoting Davis, 571 F.3d at 1296

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(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 omitted).

Regardless 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.

III. Analysis

Plaintiff 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 to consider all factors

for a preliminary injunction, including that Plaintiff is likely to prevail on the merits of her

appeal from the HOD to this Court. Id. at 1-2, 25-27, 34.

The Court can quickly dispose of the second Objection – i.e., the question of whether the

Magistrate Judge erred in “suggesting” that the Court did not have the authority to order

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emergency injunctive relief. Plaintiff’s parsing of her Report is, in this respect, off the mark.

The Magistrate Judge simply “observe[d]” that Plaintiff had cited no authority for the

proposition that injunctive relief in the form of a private-school placement could issue under

IDEA “based solely upon the recommendation of a student’s educational advocate.” R & R at 5.

In doing so, the Report did not “suggest” that the Court lacked ultimate authority to grant

injunctive relief under IDEA. In any event, this Court is well aware that it has broad remedial

authority under IDEA and discretion to grant “such relief as the court determines is appropriate”

as guided by the goals of the Act. See 20 U.S.C. § 1415(i)(2)(C)(iii). Although the Act prohibits

schools from altering a child’s “then-current educational placement” during any review

proceedings, id. § 1415(j), this “stay-put” provision “in no way purports to limit or pre-empt the

authority conferred on courts.” Honig v. Doe, 484 U.S. 305, 326-27 (1988). It follows,

therefore, that if a party makes the requisite showing to obtain a preliminary injunction, the

Court has authority to issue such relief. See Q.C-C. v. D.C., 164 F. Supp. 3d 35, 46-47 (D.D.C.

2016) (Court’s discretion to fashion equitable relief includes authority “to order prospective

relief in the form of awarding placement at a private school”).

With respect to Plaintiff’s remaining objections, the Court concludes that the futility of

her final contention – that she can demonstrate a likelihood of success on appeal – is dispositive

of her Motion. The Court, consequently, need not review the Report’s discussion of irreparable

harm. It notes, moreover, that Plaintiff’s first and third objections are intertwined with the merits

issue, as the question of whether Adams can prevail here rests in part upon “the facts and the

contents of the administrative records” and an analysis of the Hearing Officer’s decision to order

an IEP review and revision. Before proceeding to the merits, the Court will first set forth some

of IDEA’s basic principles.

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 A. Framework of IDEA

The purpose of IDEA is “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 meet their unique needs . . . .” 20 U.S.C. § 1400(d)(1)(A). As a condition of

receiving federal funding, IDEA requires school districts to adopt procedures to ensure

appropriate educational placement of disabled students. See 20 U.S.C. § 1413. A student’s

eligibility for a FAPE under IDEA is determined by the results of testing and evaluating the

student, and the findings of a “multidisciplinary team” or “individualized education program

team.” § 1414. Such a team consists of the parents and teachers of the disabled student, as well

as other educational specialists, who meet and confer in a collaborative process to determine how

best to accommodate the needs of the student and provide a FAPE. See § 1414(d)(1)(B).

School districts must also develop a comprehensive plan, known as an individualized

education program (IEP), for meeting the special-education needs of each disabled student. See

§ 1414(d)(2)(A). The IEP must be formulated in accordance with the terms of IDEA, and “[t]o

meet [this] substantive obligation under the IDEA, a school must offer an IEP reasonably

calculated to enable a child to make progress appropriate in light of the child's circumstances.”

Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist., 137 S.Ct. 988, 999 (2017). “If no

suitable public school is available, the school system must pay the costs of sending the child to

an appropriate private school.” Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 519

(D.C. Cir. 2005) (citation and alterations omitted).

IDEA requires that children with disabilities be placed in the “least restrictive

environment” (LRE) so that they can be educated in an integrated setting with children who are

not disabled to the maximum extent appropriate. See § 1412(a)(5)(A). IDEA also guarantees

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parents of disabled children the opportunity to participate in the evaluation and placement

process. See §§ 1414(f), 1415(b)(1). Parents who object to their child’s “identification,

evaluation, or educational placement” are entitled to an impartial due-process hearing, see

§§ 1415(b)(6), (f)(1), at which they have a “right to be accompanied and advised by counsel” and

a “right to present evidence and confront, cross-examine, and compel the attendance of

witnesses.” § 1415(h). A qualified, impartial hearing officer conducts the due-process hearing

in accordance with the Act. See 5 D.C. Mun. Regs. § 3030.1.

Parents “aggrieved by” a hearing officer’s findings and decision may bring a civil action

in either state or federal court. See § 1415(i)(2); 5 D.C. Mun. Regs. § 3031.5. In a review of a

Hearing Officer Decision (HOD), the burden of proof is always on the party challenging the

administrative determination, who 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.’” Reid, 401 F.3d at 521 (quoting Kerkam v. McKenzie, 862 F.2d

884, 887 (D.C. Cir. 1989)). In assessing the determination of the hearing officer, moreover, the

district court does not exercise unfettered de novo review. See Rowley, 458 U.S. at 206 (“Thus

the provision that a reviewing court base its decision on the ‘preponderance of the evidence’ is

by no means an invitation to the courts to substitute their own notions of sound educational

policy for those of the school authorities which they review.”). Courts must give administrative

proceedings “due weight,” id., and “‘[f]actual findings from the administrative proceedings are

to be considered prima facie correct.’” Roark ex rel. Roark v. District of Columbia, 460 F. Supp.

2d 32, 38 (D.D.C. 2006) (alteration in original) (quoting S.H. v. State-Operated Sch. Dist. of the

City of Newark, 336 F.3d 260, 270 (3d Cir. 2003)). The statute, however, also suggests “less

deference than is conventional in administrative proceedings,” Reid, 401 F.3d at 521, since the

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district court is allowed to hear additional evidence at the request of the party. See §

1415(i)(2)(C)(ii).

B. Likelihood of Success on the Merits

To prevail here, Adams must demonstrate her likelihood of success on at least one count

of her underlying Complaint. See Winter, 555 U.S. at 20; League of Women Voters, 838 F.3d at

6. To remind the reader, the four causes of action allege that the Hearing Officer erred by: 1) not

“ruling separately on the placement claim”; (2) invalidating the March 2017 IEP on procedural

grounds and “failing to consider any of the substantive allegations made by the parent”; (3)

failing to address Plaintiff’s assertion that delegation to the LRE team impeded Adams’s

participation in the placement decision; and (4) finding that Plaintiff did not meet her burden of

proving that there was no appropriate public-school option. See Compl., ¶¶ 101-139. The Court

looks at each separately.

1. Educational Placement

Plaintiff first asserts that the Hearing Officer erred in “not ruling separately” on her

allegation that DCPS denied T.J. a FAPE by providing him with an inappropriate educational

placement from September 10, 2015, to the time of the administrative hearing. See Compl., ¶¶

102-104. Officer Vaden found that “there [was] no need to address the appropriateness of the

placements [for 2016 and 2017] as a separate issue” because he had set aside the corresponding

IEPs, and the adequacy of T.J.’s 2015 IEP and placement was “not at issue in this case.” Interim

HOD at 30. She contends that, in reaching these conclusions, the Hearing Officer “avoided

making any findings of fact relevant to the student’s needs to guide the development of the . . .

educational placement.” Compl., ¶ 106. This error, Adams alleges, precluded findings of fact

showing that T.J. cannot be provided for in a public-school setting. She therefore contends that

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if she were to prevail on this placement claim on appeal, such a finding would support injunctive

relief placing T.J. at the Phillips School. See Mot. for PI at 14. Finally, Plaintiff asserts that the

Hearing Officer’s dismissal “of the placement issue as a separate issue . . . left the student

without a timely decision, as required under IDEA, regarding his allegation that DCPS had failed

to offer him an appropriate placement.” Compl., ¶ 109.

DCPS responds that Adams’s placement claim cannot prevail, as (1) any challenge to the

2015 placement is time barred; (2) the Hearing Officer already invalidated the March 2016 and

March 2017 IEPs; (3) the alleged deficiencies in T.J.’s prior placements do not support

injunctive relief enrolling him in a private school; and (4) the HOD rendered a timely decision

regarding the placement claim. See Opp. to PI at 7-8. Defendant hits the mark on all four.

First, with respect to the 2015 placement claim, the Court agrees that Plaintiff’s challenge

is untimely. As Adams admits, the statute of limitations for challenging T.J.’s April 30, 2015,

IEP and his resulting placement in September had run by the time she filed her Due Process

Complaint. See Mot. for PI at 15; 20 USC § 1415(f)(3)(c). The Hearing Officer therefore had

before him only the two more recent placements – those implementing the March 2016 and

March 2017 IEPs. In light of the clear time bar, Plaintiff cannot now shoehorn a challenge to the

2015 placement into her current claims.

Second, by setting aside the 2016 and 2017 IEPs, the Hearing Officer rendered irrelevant

any separate analysis of T.J.’s placements during those years. IDEA directs that a student’s

placement be “based on the child’s IEP.” 34 C.F.R. § 300.116(b)(2). Having determined that

the 2016 and 2017 IEPs were fatally flawed, Officer Vaden had no need to further examine the

placements arising from those now-defunct documents. Instead, he correctly concluded that his

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findings “encompass the educational placements determined by the respective IEP teams.”

Interim HOD at 30.

Third, Adams is unlikely to prevail on her assertion that the Hearing Officer violated

IDEA by leaving T.J. “without a timely decision” on the placement claim. She states in her

Complaint that the “parent still ha[d] no decision on the placement issue, despite properly raising

it” at the administrative hearing. See Compl., ¶ 109. Yet this is a misinterpretation of the

HOD’s conclusions of law. The Hearing Officer did in fact address T.J.’s 2016 and 2017

placements when he found that his invalidation of T.J.’s IEPs for those year “encompass[ed]” the

corresponding placements. Adams therefore got a decision on the placement issue – albeit one

based on the Hearing Officer’s conclusions regarding the 2016 and 2017 IEPs. Plaintiff’s

preference that Officer Vaden had instead made “specific findings” on and separately addressed

T.J.’s past placements does not mean that she recieved “no decision” at all. Indeed, when an

HOD finds an IDEA violation, “[w]hether the Hearing Officer based such a finding on one, or

two, or three alleged violations is irrelevant – the result would be the same.” Green v. D.C.,

2006 WL 1193866, at *9 (D.D.C. May 2, 2006).

Finally, the Court finds that Adams is unable to show how prevailing on this past-

placement claim would support an injunction placing T.J. in a private school. Plaintiff suggests

that a favorable decision on this count would have “proven that [he] should have been placed at

Phillips.” Reply at 9-10. Yet this assertion does not account for the fact that, unlike

compensatory education, prospective placements address whether a child’s current needs and

IEP can be met in a public-school setting. See Branham v. Gov’t of D.C., 427 F.3d 7, 11 (D.C.

Cir. 2005) (an award of private-school placement is not retrospective relief designed to

compensate for yesterday’s IDEA violations, but rather “prospective relief aimed at ensuring that

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the child receives tomorrow the education required by IDEA”). Even if the Hearing Officer had

found that T.J. was inappropriately placed from September 10, 2015, to the time of the Due

Process Complaint, such a determination would not resolve the question of T.J.’s appropriate

future placement. The Court thus concludes that this count is neither likely to succeed nor able

to support the remedy Adams now seeks – an order prospectively placing T.J. at the Phillips

School.

2. March 16, 2017, IEP

Plaintiff next alleges that the Hearing Officer erred when he invalidated T.J.’s March

2017 IEP “on procedural grounds” rather than “consider[ing] any of the substantive allegations

made by the parent.” Compl., ¶¶ 112, 114. She asserts that this error relates to the instant

request for injunctive relief, as a resolution of the substantive concerns was “necessary to make a

placement determination,” including the question of whether T.J. should be prospectively placed

at a private school. Id., ¶ 116. DCPS rejoins that this Count is “moot,” as Officer Vaden

ultimately invalidated the March 2017 IEP, and “the educational harm caused by [it] has already

been compensated.” Opp. to PI at 7.

Once more, the Court agrees. Although Adams may have preferred that Officer Vaden

had discussed the alleged substantive shortcomings of T.J.’s 2017 IEP, such an exegesis was

unnecessary. Instead, having found a procedural ground upon which to set aside the March 2017

IEP, the Hearing Officer was not required to address Plaintiff’s allegations regarding the content

of that Plan. See Green, 2006 WL 1193866, at *9 (rejecting Plaintiff’s contention that Hearing

Officer should have provided “greater ‘guidance’” when making his determination and granting

Plaintiff’s requested relief as “emblematic of a classic request for an advisory opinion”).

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 The Court notes, moreover, that Adams is again unable to demonstrate how the violations

alleged in Count II support a preliminary injunction placing T.J. at the Phillips School. As

discussed above, compensatory education is the proper remedy for past deprivations of

educational opportunity, and that is the relief the Hearing Officer ordered in the Final HOD. See

Final HOD at 6. In short, the March 2017 IEP has been invalidated and T.J.’s deprivations

during the period of its effect appropriately compensated. Whatever substantive deficiencies

Plaintiff may have alleged at the Due Process Hearing, such claims do not now give her a

likelihood of success on the merits or a basis for prospective injunctive relief.

3. Delegation to LRE Team

Plaintiff’s third count alleges that DCPS “denied [T.J.] a FAPE in March of 2017 by

delegating the placement decision to a team that did not include the parents or those

knowledgeable about the decision.” Compl., ¶ 118. Specifically, Adams asserts that the District

violated IDEA’s directive that “the parents of each child with a disability [be] members of any

group that makes decisions on the educational placement of their child,” 20 U.S.C. § 1414(e); 34

C.F.R. § 300.327, when DCPS allowed its “LRE team” to determine the appropriate placement

to implement T.J.’s March 2017 IEP. She therefore contends that the Hearing Officer erred

when he concluded that “[t]urning to DCPS to identify [a] school capable of implementing the

IEP was not a denial of FAPE.” Compl., ¶ 118 (quoting Interim HOD at 29). The District

responds to this count as it does to the one above, arguing that because Officer Vaden invalidated

the March 2017 IEP, any further challenges to the Plan’s implementation are now moot. See

Opp. to PI at 7.

For the same reason as just discussed, the Court finds it unlikely that Plaintiff will prevail

on this claim. Whatever the merits of the Hearing Officer’s finding that the District

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appropriately used its LRE team to implement the March 2017 IEP, the fact remains that he

invalidated the 2017 plan in toto. See Green., 2006 WL 1193866, at *9 (finding that plaintiff’s

argument that Hearing Officer made “five factual mistakes” unavailing given that HOD found

deprivation of FAPE and granted relief). As another court held in rejecting an IDEA plaintiff’s

claim that the “Hearing Officer . . . erred in not finding more violations of FAPE by DCPS,”

what “is critical” is not the number of ways in which that conclusion could be reached, but

simply “the fact that the Hearing Officer found that DCPS had denied [Student] a FAPE.” Id.

Here, the hearing officer made just such a determination with respect to the March 2017 IEP.

See Final HOD at 3-4. Plaintiff therefore does not have a likelihood of success on the merits on

her claim that he should have found yet more ways in which the Plan or its implementation

violated IDEA.

4. Prospective Placement

The Court turns, finally, to the heart of Plaintiff’s request for emergency injunctive relief

– her allegation that the Hearing Officer improperly declined to prospectively place T.J. at the

Phillips School. Adams makes a plethora of claims under this count, which the Court will, for

clarity’s sake, condense into four substantive allegations. Specifically, she asserts that Officer

Vaden erred by: (1) “fail[ing] to order any substantive relief” and instead impermissibly

directing the parties to hold a new IEP meeting; (2) “failing to consider the proposed placement

by DCPS and the evidence submitted by [Plaintiff] rebutting” the adequacy of a 20-hour IEP and

placement in the BES program; (3) finding that Plaintiff did not “prove that there was no

appropriate [public] school option” that would be “the student’s LRE”; and (4) “blaming

[Plaintiff’s] counsel” for failing to agree to a meeting discussing the 20-hour/BES IEP. See

Compl., ¶¶ 125-27, 134. Unsurprisingly, DCPS disputes all of these contentions, maintaining

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that the HOD correctly determined that the appropriate relief in this case was an IEP review and

revision, rather than prospective placement at the Phillips School. See Opp. at 9-10.

a. Substantive Relief

In considering whether the hearing officer denied “substantive relief,” the Court first

concludes that Adams is unlikely to prevail in showing that the remedy ordered here – a review

and revision of the IEP to comply with the HOD’s findings of fact and conclusions of law – was

error. Because Officer Vaden made “reasoned and specific findings” regarding T.J.’s disabilities

and past IEPs, this Court gives “due weight” to his conclusions and “exercise of discretion” in

determining appropriate relief for the FAPE violations identified in the HOD. See Turner v.

D.C., 952 F. Supp. 2d 31, 35–36 (D.D.C. 2013). This includes his finding that the directives of

IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective

placement in a private school. See Lopez-Young v. D.C., 211 F. Supp. 3d 42, 57 (D.D.C. 2016)

(noting that “Hearing Officer has broad discretion to fashion a remedy”).

As the Court discusses in greater depth below, this remedy was a reasonable reflection of

the issues before the Hearing Officer and the administrative record. It appears, moreover, that

such relief is not unusual in IDEA cases, including those in which the plaintiff requests private-

school placement. See, e.g., Pinto v. D.C., 938 F. Supp. 2d 25, 28 (D.D.C. 2013) (noting that

Hearing Officer determined that DCPS had developed inappropriate IEP, but declined to grant

placement at private school and instead ordered District to “convene a meeting to revise [the]

IEP as appropriate within 30 days of a written request by Plaintiffs”); Mary Struble v. Fallbrook

Union High Sch. Dist., 2011 WL 291217, at *7-8 (S.D. Cal. Jan. 27, 2011) (rejecting argument

that ALJ erred by “ordering the parties to meet again and develop a new IEP . . . rather than

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ordering a placement”). The Court therefore finds that Adams is not likely to prevail on her

claim that Officer Vaden erroneously denied “substantive relief.”

The Court notes, moreover, that Plaintiff’s own Due Process Complaint listed a new IEP

meeting as an alternative to prospective placement. Among her remedies, Adams requested “an

Order that DCPS hold a meeting within 15 days of a decision in this matter to revise the IEP to

comply with the hearing officer’s findings of fact and conclusions of law.” Due Process

Complaint at 14. The Interim HOD granted, almost verbatim, this relief. See Interim HOD at

34. Plaintiff cannot now maintain that this conclusion was out of bounds.

b. Adequacy of 20-hour IEP

As to the second issue, the HOD determined that whether the 20-hour/BES plan “would

be reasonably calculated for [T.J.] to make educational progress [was] not an issue in this case,”

and it thus “ma[de] no finding as to the appropriateness of the propos[al].” Interim HOD at 28-

29. Plaintiff asserts that this was error. She claims that Officer Vaden should have instead

considered the merits of the 20-hour plan, in part because it was established during the hearing

that the parties disagreed as to whether this IEP would provide a FAPE.

The law is clear that the scope of an IDEA hearing extends only to those issues raised in

the Due Process Complaint, and that matters not presented to the Hearing Officer are not

administratively exhausted for the purposes of district-court review. See Damarcus S. v. D.C.,

190 F. Supp. 3d 35, 55 (D.D.C. 2016) (“Plaintiffs are prohibited from “rais[ing] issues . . . that

were not raised in the due process complaint”) (citing 34 C.F.R. § 300.511(d)) (alteration in

original); S.S. by & through St. v. D.C., 68 F. Supp. 3d 1, 19 (D.D.C. 2014) (issue not certified

in prehearing order and arising after HOD “presents an entirely new issue which must first be

raised in an IDEA administrative complaint”); Douglass v. D.C., 605 F. Supp. 2d 156, 165

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(D.D.C. 2009) (“[A]bsent a showing that exhaustion would be futile or inadequate, a party must

pursue all administrative avenues of redress under the [IDEA] before seeking judicial review

under the Act.”) (alteration in original) (quoting Cox v. Jenkins, 878 F.2d 414, 419 (D.C. Cir.

1989)). Here, although the BES program was discussed during the hearing (and was, in fact,

implemented in the subsequent IEP meeting), the 20-hour/BES IEP was not before the Hearing

Officer. See Prehearing Order. Indeed, it could not be, as it was only finalized after the Due

Process Complaint had been filed. See Final HOD at 13. The Court therefore finds that Plaintiff

is unlikely to show that her challenge to the 20-hour plan was before the Hearing Officer and

properly exhausted below. See G.G. ex rel. Gersten v. D.C., 924 F. Supp. 2d 273, 282 (D.D.C.

2013) (holding that “[t]o the extent that the [Plaintiffs are] dissatisfied with the District’s

proposed placement, they must bring a new and separate action”); Morgan v. Greenbrier Cty. W.

Va. Bd. of Educ., 83 F. App'x 566, 568 (4th Cir. 2003) (affirming order of new IEP meeting after

finding IDEA violations, and holding that Court did not “have before us the issue of the

appropriateness of any IEP that was developed or any actions taken after the due process

hearing”).

The Court similarly finds little merit to Plaintiff’s assertion that the Hearing Officer

should have considered the 20-hour/BES program because “the parties [had] already determined

that they disagree[d] about the student’s current needs.” Compl., ¶ 139; see Mot. for PI at 34-35

(asserting that Hearing Officer should have addressed 20-hour program because “the parent

made it clear that the [IEP] was not acceptable to her”). Adams seems to contend that, regardless

of the fact that the IEP was not in place at the time of the hearing, Officer Vaden should

nonetheless have addressed the parties’ dispute over its adequacy and assessed its merits. She

claims that he failed to recognize that the parties “fundamentally disagreed” about the BES

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program and therefore “wasted judicial resources” by requiring them to, once again, discuss

T.J.’s appropriate placement. Yet, in addition to its exhaustion defect, this claim finds no footing

in the Hearing Officer’s treatment of the 20-hour/BES IEP. Although the HOD did not address

the “appropriateness of the proposed placement,” Officer Vaden did not turn a blind eye to the

fact that the parties might well disagree as to the adequacy of the IEP arising from his Order. In

light of Plaintiff’s concern that the District would go no further than again offering the 20-

hour/BES IEP, the Hearing Officer explicitly provided her the option of amending her Due

Process Complaint to address disputes arising from the revised IEP. See ECF 7-4 (Order on

Motion for Reconsideration).

In doing so, Officer Vaden provided Plaintiff a path to expediently challenge the IEP

developed after the HOD, rather than “having to file a new due process proceeding [that] may

delay the ultimate resolution of this case and result in duplicative evidence.” Id.; see Final HOD

at 2, 4 (noting that Hearing Officer “ordered that the Interim HOD be amended to provide that

before the final decision in this case was issued, Petitioner would be allowed to file a request to

amend her Due Process Complaint, should she disagree with the decisions made by the Student’s

IEP team convened pursuant to the original order in the Interim HOD”). Indeed, the Hearing

Officer’s decision denying Plaintiff’s request to place T.J. in a private school was explicitly

“without prejudice” and “pending completion of the review and revision of Student’s IEP.”

Order on Mot. for Reconsideration at 3. It is clear that, although he concluded that the 20-

hour/BES IEP was not at issue during the hearing, Officer Vaden left the door well ajar for

Adams to contest the adequacy of such a program. Yet Plaintiff did not seek to amend her Due

Process Complaint, instead appealing the Interim HOD to the District Court. See Final HOD at

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2; AR 1052 (noting that Adams did not seek leave to amend). It is not this Court that should

parse these unexhausted claims.

c. No Public-School Option

The Court turns next to Plaintiff’s assertion that the record developed at the

administrative hearing was sufficient to show that T.J. had no suitable public-school option. See

Compl., ¶ 134. The HOD stated that it was “premature to conclude that DCPS cannot make a

suitable placement available,” Interim HOD at 31, a conclusion that Adams contends is

unsupported by the record. Yet a review of the filings and transcript in this case shows

otherwise. Although there was substantial testimony regarding the specifics of the BES program

and the Phillips School, the hearing was by no means limited to considering these two options.

Rather, the Hearing Officer also heard more general testimony regarding DCPS’s asserted

capacity to provide for T.J.’s educational needs and offer an LRE placement. See Tr. 64:1-8

(discussing benefit to T.J. from having opportunity to interact with non-disabled peers); 103:18-

104:10 (discussing reading support available in general-education electives); 109:20-110:6

(discussing participation in electives); 137:21-138:20 (discussing available reading-support

programs in DCPS); 243:3-12, 246:7-18 (discussing ability of New Kramer Middle School to

provide up to 30 hours specialized instruction outside general education and over 240 minutes

behavior-support services); 245:1-20 (discussing accommodations that can be made for students

in DCPS restrictive environments).

“[A] Hearing Officer’s authority is flexible and case-specific,” and, in light of these

discussions regarding the various DCPS services and supports, Officer Vaden appropriately

declined to order prospective placement in a private school. Lopez-Young v. D.C., 211 F. Supp.

3d 42, 57 (D.D.C. 2016). He instead directed the District to review and revise T.J.’s IEP, “in

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order to make an informed decision about his ongoing placement.” Interim HOD at 31. This

remedy was supported by the record and was a reasonable conclusion in light of the fact that

“D.C. statutes and regulations permit DCPS to place and fund a student at a school outside the

District only if there is no appropriate public, charter or private school program within the

District.” Roark ex rel. Roark v. D.C., 460 F. Supp. 2d 32, 44 n.11 (D.D.C. 2006); see D.C.

Code § 38-2561.02 (providing that placement decision made in order of : (i) DCPS schools or

charter schools; (ii) private or residential facilities in District; and (iii) facilities outside District).

The Court concludes that Adams is therefore unlikely to succeed in demonstrating that the HOD

erred in not finding that the Phillips School was T.J.’s LRE. See Morgan, 83 F. App'x at 568

(holding that “with respect to the Morgans’ request that [Student] be placed forthwith at an out-

of-state residential school, the officer concluded that such a placement was not justified, and to

order such a placement without pursuing a revised IEP would ignore the Act's requirement that,

to the greatest extent possible, children are to be educated in the least restrictive environment.”);

R.G. v. New York City Dep't of Educ., 980 F. Supp. 2d 345, 364-65 (E.D.N.Y. 2013) (finding

that “appropriate remedy” for IDEA violation was requiring Defendant to “develop a new IEP”

in order to “fully and fairly consider[] whether a general education environment, with

appropriate support, can provide [Student] with an education likely to produce progress, not

regression”).

d. Role of Plaintiff’s Counsel

Finally, the Court briefly addresses the claim that Officer Vaden improperly found that

Plaintiff’s counsel “refus[ed] to hold an IEP meeting” after filing her Due Process Complaint.

As part of the resolution process preceding the administrative hearing, the District proposed

holding an IEP meeting to discuss the 20-hour/BES program. Counsel did not agree, and the

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Hearing Officer found that she therefore prevented T.J.’s IEP team from “hav[ing] the

opportunity to consider and decide whether the proposed [20-hour/BES plan] would be

appropriate.” Interim HOD at 31. Counsel asserts that she refused the meeting because the

proposed IEP was sent “only three calendar days in advance of the meeting,” Opp. at 10, while

DCPS contends and the HOD concludes that she did so because she was mistaken as to the effect

of IDEA’s stay-put provision. See ECF No. 7-6 (Respondent’s Exhibits) at 5. Yet, whatever the

reasons for counsel’s refusal, they do not alter the validity of the Hearing Officer’s ultimate

conclusion that, at the point of the administrative hearing, T.J.’s educational team had not

reviewed the 20-hour/BES IEP. While counsel may (or may not) be correct that she was not

responsible for stonewalling the proposed meeting, the fact remains that T.J.’s IEP team never

discussed or finalized this plan. Any error in the HOD’s analysis of counsel’s actions therefore

does not vitiate the Court’s conclusion that the 20-hour/BES IEP was not administratively

exhausted below.

As another court here has stated, “[T]he consideration of prospective placement is

frustrated without an IEP and an accompanying determined placement.” G.G. ex rel. Gersten v.

D.C., 924 F. Supp. 2d 273, 282 (D.D.C. 2013) (citing Eley v. D.C., 2012 WL 3656471, at *11

(D.D.C. Aug. 24, 2012)); see Lofton v. D.C., 7 F. Supp. 3d 117, 123 (D.D.C. 2013) (noting that

“the primary tool for ensuring that the student is provided a FAPE is the child’s IEP” and that

“once the IEP is developed, the school system must provide an appropriate placement that meets

those needs”) (emphasis added). Even when a Hearing Officer finds “an actionable violation of

the IDEA,” courts have therefore upheld an HOD ordering the parties to “convene an . . . IEP

meeting within ten days of [the decision]” so that prospective placement would “not be

addressed by this Court, but instead, by the IEP team, as soon as practicable.” Id. This was the

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route chosen by the Hearing Officer in this case, and the reasonableness of such a remedy is

supported by the record below. Rather than prognosticating about the merits of the BES/20-hour

program or ordering a specific prospective placement, Officer Vaden instead directed the parties

to attempt to address T.J.’s needs through a new IEP review and revision. Such relief comports

with the collaborative, team-based process envisioned under IDEA as the best way of pursuing

the “fact-intensive exercise” of “crafting an appropriate program of education” for students with

disabilities. See Endrew F., 137 S. Ct. at 999. The Court therefore concludes that Plaintiff is

unlikely to prevail on her prospective-placement claims.

IV. Conclusion

Because Plaintiff is unable to demonstrate a likelihood of success on any of her counts,

the Court need go no further in denying her Motion. See Arkansas Dairy Co-op Ass'n, Inc. v.

U.S. Dep't of Agr., 573 F.3d 815, 832 (D.C. Cir. 2009) (court need not address “the other three

preliminary injunction factors” when there is no likelihood of success on the merits). Yet it is

not without sympathy for the difficult circumstances of Plaintiff and her son. The record makes

clear that T.J. has faced significant educational and behavioral challenges, and DCPS does not

contest that he requires special education and extensive support. In light of these needs, and the

concerns raised by Plaintiff regarding T.J.’s performance at his current placement, the Court

trusts that all sides will strive for an efficient and equitable result. Although this Opinion

concludes that Adams does not have a likelihood of success on her underlying claims, this

determination does not minimize DCPS’s ongoing obligation to provide T.J. with educational

opportunities that are “reasonably calculated to enable [him] to make progress” in light of his

circumstances. Endrew F., 137 S. Ct. at 1001. The law requires as much, and surely all parties

can agree that this child deserves no less.

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 For the reasons stated herein, the Court will issue a contemporaneous Order accepting the

Recommendation of the Magistrate Judge to deny Plaintiff’s Motion.

/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: January 29, 2018

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