B.D. v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
B.D., by and through his parents
and next friends, ANNE DAVIS and
BRANTLEY DAVIS, et al.,
Plaintiffs,
Civil Case No. 13-1223 (RJL)
v.
DISTRICT OF COLUMBIA,
Defendant.
Nee! New Nee re Nee ee ree eee ee ee eee”
MEMORANDUM OPINION
(September /S* 2023) [Dkt. ## 97, 99]
In one of their many administrative actions against District of Columbia Public
Schools (“DCPS”), Anne and Brantley Davis sought and obtained an administrative
determination of the educational placement of their disabled son, B.D., as of when they
filed the action. Disagreeing with the determination, the Davises challenged it in this
Court, and the Court remanded for reconsideration. On remand, the hearing officer only
partially expanded B.D.’s educational placement, and so they have returned yet again to
this Court with more objections. They also claim attorneys’ fees and costs for partially
prevailing in establishing B.D.’s educational placement, which the District of Columbia
does not oppose. For the following reasons, the hearing officer was correct not to expand
the educational placement any further, and the Davises are entitled to attorneys’ fees and
costs, but not quite as much as they claim. Accordingly, the Court will GRANT the
District’s motion for partial summary judgment and will GRANT IN PART and DENY IN
PART the Davises’ motion for summary judgment.
BACKGROUND
I. Legal Background
The Individuals with Disabilities Education Act (“JDEA”) provides federal funding
to states, the District of Columbia, and territories on the condition that they provide a free
appropriate public education (“FAPE”) to all children with disabilities. 20 U.S.C.
§ 1412(a)(1)(A). “The ‘primary vehicle’ for securing an appropriate public education is
the child’s ‘individualized education program,’ which is commonly referred to as an
‘IEP.’” Olu-Cole ex rel. M.K. v. E.L. Haynes Pub. Charter Sch., 930 F.3d 519, 523 (D.C.
Cir. 2019) (quoting Honig v. Doe, 484 U.S. 305, 311 (1988)). “Once the IEP is developed,
the school system must provide an appropriate educational placement that comports with
the IEP.” GB. v. District of Columbia, 78 F. Supp. 3d 109, 112 (D.D.C. 2015) (Kollar-
Kotelly, J.).
When parents and school officials disagree over a child’s educational placement,
formal procedures govern the resolution of those disputes, starting with the filing of a “due
process complaint.” 20 U.S.C. § 1415(b)(7)(A), (c)(2). Pursuant to what is called the
“stay-put” provision, “during the pendency of any proceedings conducted pursuant to this
section, unless the State or local educational agency and the parents otherwise agree, the
child shall remain in the then-current educational placement of the child.” Jd. § 1415().
I. Case History Until 2020 Remand
The present dispute has its roots in early 2012, when the Davises filed a due process
complaint after they struggled to agree with DCPS on B.D.’s educational placement for
part of 2011. A.R. at 1433-35, 1438-41. In that action, a Hearing Officer Determination
was issued in March 2012 (“March 2012 HOD”), concluding that DCPS had denied B.D.
a FAPE from August 2011 through the 2011-12 school year. Jd. at 1451-55. The hearing
officer ordered B.D.’s IEP team to create a new IEP for him; in the interim, DCPS was to
provide one-on-one home instruction for two hours per day, five days per week. Jd. at
1463. He also found that the occupational therapy for which the Davises had been paying
out of pocket was an appropriate service for B.D., and so he ordered DCPS to reimburse
the Davises for the expenses they had incurred and to provide occupational therapy for
another three months, five hours per week, as compensatory education. Jd. at 1446-47,
1456-58, 1463. Pursuant to that order, a new IEP for B.D. was finalized in July 2012 and
then amended in October 2012, but the Davises objected to both iterations. Jd. at 206-28,
237-61, 2213-17.
The next April, the Davises filed another due process complaint challenging those
July and October IEPs and then filed a motion in that proceeding for a determination of
B.D.’s then-current educational placement for purposes of the IDEA’s stay-put provision.
Id. at 1489-95. In an order that May (“May 2013 Order”), the hearing officer found that,
because B.D. did not have an operative IEP at the time, the March 2012 HOD would serve
as an implied agreement as to B.D.’s placement for stay-put purposes. /d. at 1498. B.D.’s
then-current educational placement would thus be the one-on-one home instruction for two
hours per day, five days per week, that was ordered on an interim basis in March 2012. Id.
at 1499. But the Davises did not get everything they asked for: the hearing officer declined
their request to include occupational therapy, speech/language therapy, behavioral support
services, and parent counseling and training, which were included in the July 2012 IEP.
Id. at 1490, 1499. Because DCPS had provided those services “voluntarily and/or as
administratively-ordered compensatory education,” they could not be part of an implied
agreement as to B.D.’s placement. Jd. at 1499.
The Davises filed this action against the District in August 2013. In their Amended
Complaint, they alleged eight violations of the IDEA, the Rehabilitation Act of 1973, and
the Americans with Disabilities Act. Am. Compl. [Dkt. #6] 9] 74-123. After the Court
granted in part the District’s motion to dismiss, B.D. v. District of Columbia (B.D. I), 66 F.
Supp. 3d 75, 79-81 (D.D.C. 2014), four claims remained (Counts 2, 3, 4, and 5), all alleging
violations of the IDEA. The parties subsequently filed cross-motions for summary
judgment, and the Court granted summary judgment for the District on Counts 2 and 5.
B.D. v. District of Columbia (B.D. ID), 548 F. Supp. 3d 222, 237 (D.D.C. 2020).
On Count 4, however, the Court remanded to the hearing officer. /d. at 233. That
count alleges that the May 2013 Order failed to include the full range of services making
up B.D.’s then-current educational placement—beyond the one-on-one home instruction
for two hours per day, five days per week. Am. Compl. { 86-89. The Court remanded
for two reasons. First, the July 2012 IEP, which added the services the Davises wanted to
be included, was finalized pursuant to the same March 2012 HOD that served as the implied
agreement for stay-put purposes, and the Court wondered whether those services should
have been considered part of B.D.’s educational placement. B.D. IJ, 548 F. Supp. 3d at
233. Second, the Court accepted the Davises’ representation that, in 2017, the same
hearing officer observed in a separate proceeding involving B.D. that one-on-one home
instruction was alone an inadequate FAPE in 2012. Jd.! Remand was thus appropriate for
the hearing officer to consider “these subsequent developments and their impact on the
hearing officer’s interpretation of B.D.’s ‘current educational placement.’” Jd.
That decision necessitated deferral on Count 3, which claims attorneys’ fees for
prevailing in establishing B.D.’s educational placement, because those fees could continue
to grow on remand. J/d.; see 20 U.S.C. § 1415(i)(3)(B).
II. Procedural Background Since 2020 Remand
In a Hearing Officer Decision on Remand issued in May 2021 (“May 2021
HODR”), the hearing officer did not believe that those “subsequent developments” had
much impact on his prior thinking on B.D.’s educational placement. First, as to the July
2012 IEP, most of the related services it proposed were not (and could not have been)
considered by the hearing officer months earlier in the March 2012 HOD and thus could
not be part of an implied agreement as to B.D.’s placement. A.R. at 16-17. Moreover,
' That proceeding was also on remand, after the D.C. Circuit held that the occupational therapy
ordered in the March 2012 HOD was insufficient compensatory education for the FAPE denial from August
2011 through the 2011-12 school year. B.D. v. District of Columbia, 817 F.3d 792, 799 (D.C. Cir. 2016).
As part of its decision, the D.C. Circuit noted that, during the period of the FAPE denial, the Davises had
provided some tutoring and occupational therapy at their own expense but those services did not account
for everything that B.D. needed, according to an JEP created by DCPS. /d. at 798-99. In a hearing on
remand, the hearing officer asked the parties which IEP the D.C. Circuit was referring to, “because there
wasn’t an IEP” in place at the time. A.R. at 1315-16. The parties confirmed it was an IEP created in
October 2011, which was not implemented. /d. at 1316~17.
Upon closer inspection, the hearing officer did not, as the Davises claimed, “recogni[ze], in 2017,
that the 1:1 instruction ordered for B.D. in 2012 was insufficient and would not have been effective without
the other supportive services he omitted when he decided that only 1:1 instruction, without related services,
was B.D.’s ‘current placement.’” Pls.’ Suppl. Mem. in Supp. of Mot. for Summ. J. [Dkt. #76] at 11. The
hearing officer was simply trying to figure out which JEP the D.C. Circuit was referring to, not second-
guessing any prior decision that one-on-one instruction was adequate on its own.
because the Davises rejected the July 2012 IEP, the related services it proposed could not
be considered part of B.D.’s “IEP in place” thereafter. Jd.
The one exception was B.D.’s occupational therapy. Unlike the other related
services, occupational therapy at five hours per week had been provided prior to, and was
found to be appropriate in, the March 2012 HOD. Jd. at 15-16. It therefore should have
been considered part of the implied agreement as to B.D.’s placement for stay-put
purposes, alongside the one-on-one home instruction. Jd. To compensate for that
omission, the hearing officer awarded to the Davises the value of the occupational therapy
that B.D. missed, $93,750, to be allocated toward any services that B.D. now needs in his
current residential placement. Jd. at 18-21.
As to the 2017 proceeding that the Court remanded for the hearing officer to
consider as well, the hearing officer did not think it was relevant to the proceeding here.
Id. at 1708-09. That separate proceeding presented the issue of what compensatory
education was appropriate for DCPS’s denial of a FAPE from August 2011 to the March
2012 HOD—“a wholly separate question from” the one here of what B.D.’s educational
placement was when the Davises initiated the administrative action being reviewed in this
case, in April 2013. Jd.
Receiving less than they hoped for on remand, the Davises came back to this Court
and filed a Supplemental Complaint adding two more causes of action. Count 9 alleges
that the May 2021 HODR incorrectly excluded the other related services from B.D.’s
educational placement as of April 2013 and failed to provide specific instructions to DCPS
for complying with the order to reimburse the $93,750 to the Davises. Suppl. Compl. [Dkt.
#86] ff 124-144. Count 10 claims additional attorneys’ fees—beyond those claimed in
Count 3—for enforcing the May 2013 Order after Count 3 was raised in the Amended
Complaint, and for partially prevailing on remand in getting occupational therapy added to
B.D.’s educational placement as of April 2013. Jd. §§ 145-151. Summary judgment
briefing on Counts 3, 9, and 10 followed thereafter. Pls.’ Mot. for Summ. J. (“Pls.’ Mot.”)
[Dkt. #97]; Def.’s Partial Opp’n to Pls.’ Mot. and Cross-Mot. for Summ. J. (“Def.’s Mot.”)
[Dkt. #99]; Pls.” Mem. in Opp’n to Def.’s Mot. and in Reply to Def.’s Opp’n to Pls.’ Mot.
(“Pls.’ Reply”) [Dkt. #101]; Def.’s Reply to Pls.’ Opp’n to Def.’s Mot. [Dkt. #103]. The
parties’ cross-motions for summary judgment are now ripe for decision.
LEGAL STANDARD
When a party is “aggrieved by the findings and decision” of a hearing officer and
brings an action in federal court, the 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()(2)(A), (C). That statutory command to
hear additional evidence and to apply a preponderance standard “‘plainly suggest[s] less
deference than is conventional’ in administrative proceedings.” Reid ex rel. Reid v. District
of Columbia, 401 F.3d 516, 521 (D.C. Cir. 2005) (alteration in original) (quoting Kerkam
v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1988)). Still, “courts must give ‘due weight’ to
the administrative proceedings,” and “[flactual findings from the administrative
proceeding are to be considered prima facie correct.” Z.B. v. District of Columbia, 382 F.
Supp. 3d 32, 41 (D.D.C. 2019) (Kollar-Kotelly, J.) (first quoting Bd. of Educ. v. Rowley,
458 U.S. 176, 206 (1982); and then quoting Roark v. District of Columbia, 460 F. Supp.
2d 32, 38 (D.D.C. 2006) (Bates, J.)).
“A motion for summary judgment operates as a motion for judgment based on the
evidence comprising the record and any additional evidence the Court may receive.” D.R.
v. District of Columbia, 637 F. Supp. 2d 11, 16 (D.D.C. 2009) (Bates, J.). The party
challenging the hearing officer’s decision has “the burden of persuading the court that the
hearing officer was wrong,” and if the Court upsets the officer’s decision, it “must at least
explain its basis for doing so.” Reid, 401 F.3d at 521 (quoting Kerkam, 862 F.2d at 887).
DISCUSSION
I. Count 9
The hearing officer’s addition of occupational therapy—but no more—to B.D.’s
educational placement as of April 2013 was appropriate. Because no IEP was in place
then, “an administrative determination in favor of the parents [could] constitute[] an
implied agreement as to a placement for stay-put purposes, so long as the hearing officer
made findings on the merits that the school system had failed to provide a FAPE and that
the private program chosen by the parents was appropriate.” District of Columbia v.
Vinyard, 901 F. Supp. 2d 77, 86 (D.D.C. 2012) (Kollar-Kotelly, J.). That determination
here was the March 2012 HOD, in which the hearing officer concluded that DCPS had
failed to provide a FAPE and that the one-on-one home instruction and occupational
therapy that B.D. was receiving were appropriate. A.R. at 1457, 1462-63. The hearing
officer here was therefore correct to decide on remand that occupational therapy should
have been included in B.D.’s educational placement as of April 2013, alongside one-on-
one home instruction. /d. at 15—16.
The hearing officer was also correct to exclude from B.D.’s educational placement
as of April 2013 the other related services that B.D.’s July 2012 IEP deemed appropriate.
The IDEA’s stay-put provision is a procedural protection meant to “maintain[] the
educational status quo for students with disabilities until proceedings have concluded.”
Olu-Cole, 930 F.3d at 523; see 20 U.S.C. § 1415G). And the status quo for B.D. after the
March 2012 HOD did not include those related services. They were not added to B.D.’s
IEP until July 2012, and the Davises rejected them. A.R. at 2213-17. Accordingly,
notwithstanding their efforts to prove that B.D. needed those related services and to
quantify their value, Pls.’ Mot. at 29-35, 37-38,? they simply were not part of his
educational placement when the Davises filed their administrative action in April 2013.
See G.B., 78 F. Supp. 3d at 113 (observing that challenged IEP does not serve as
educational placement for stay-put purposes).
The hearing officer was also correct to conclude that the 2017 proceeding involving
B.D. was not relevant to the stay-put decision here. The Davises point to a hearing in that
proceeding at which the hearing officer purportedly recognized that one-one-one home
instruction was alone an insufficient FAPE for B.D. Pls.’ Mot. at 24-25; Pls.’ Reply at
25-29. As already noted, that is simply not what the hearing officer did, see supra note 1,
and it would be irrelevant to a stay-put decision anyway. “[Bl]y definition, a court’s stay-
? Citations to the parties’ briefs refer to the page number in the ECF stamp at the top of each page.
put ruling is limited to maintenance of a child’s current placement pending proceedings; it
does not constitute a determination on the merits as to the adequacy of that placement or
even to the child’s entitlement to services in the first instance.” Vinyard, 901 F. Supp. 2d
at 88. The 2017 proceeding was thus correctly ignored by the hearing officer here.’
That decision did not, as the Davises argue, violate the mandate rule. The mandate
rule “renders a lower court or decisionmaker, including an administrative agency, ‘without
power to do anything . . . contrary to either the letter or spirit of a higher court’s ‘mandate
construed in the light of the opinion of the court deciding the case.’” Am. Waterways
Operators v. Regan, 590 F. Supp. 3d 126, 137 (D.D.C. 2022) (Mehta, J.) (omission in
original) (quoting City of Cleveland v. Fed. Power Comm’n, 561 F.2d 344, 346 (D.C. Cir.
1977)); see Pls.’ Br. at 27-29. The rule applies only to issues that were actually decided
by the higher court, Maggard v. O’Connell, 703 F.2d 1284, 1289 (D.C. Cir. 1983), and the
Court did not actually decide which related services were part of B.D.’s educational
placement as of April 2013. It simply remanded for the hearing officer to reconsider as
much in the first instance. B.D. IT, 548 F. Supp. 3d at 233. The hearing officer was thus
free to render his own decision. 18B Charles Alan Wright, Arthur R. Miller & Edward H.
Cooper, Federal Practice and Procedure § 4478.3, at 713-15 (3d ed. 2019) (explaining that
3 The hearing officer distinguished B.D.’s stay-put rights from the ultimate question to be resolved
in that separate proceeding—what compensatory education would suffice to remedy the FAPE denial from
August 2011 to March 2012—-even though the Davises have focused on the exchange in the earlier hearing
in that proceeding. A.R. at 1708-09. Still, the same reasoning applies: that question of compensatory
education is different from the question here of what B.D.’s educational placement was as of April 2013.
See Olu-Cole, 930 F.3d at 523, 531.
10
“TaJn express direction to reconsider on remand” “leaves the trial court [or agency here]
free to decide matters that were not resolved on appeal”).
Setting aside the scope of B.D.’s educational placement as of April 2013, the
Davises also claim error in the hearing officer’s order for DCPS to “promptly issue funding
authorization” to the Davises to obtain independent educational services for B.D., A.R. at
20-21, insofar as it “gives DCPS excessive control over how the funds could be used and
creates the danger that DCPS could entirely thwart the purpose of the award.” Pls.’ Mot.
at 35. They think the funds should instead be placed in a “services bank” administered by
a neutral third party. Jd. at 35-36. But their proposal lacks legal support, and their worries
are unfounded and speculative. DCPS has allowed the Davises to use the funds toward
any independent provider of their choice and, if they do not use the funds by September
30, 2023, to request an extension so that the Davises can continue to use funds while DCPS
complies with its anti-deficiency obligations not to authorize funds before an appropriation.
Def.’s Mot. Ex. 2 [Dkt. #99-2]; see D.C. Code § 47-355.02. There is simply no indication
that “it is inappropriate or impractical for DCPS to fulfill its IDEA obligations,” Pls.’ Mot.
at 36, and thus no error from the hearing officer in ordering DCPS to issue funding
authorization.*
4 The Davises also argue that the funds to which they are entitled should be adjusted for inflation
since the May 2021 HODR was issued. Pls.’ Mot. at 38-39. But they cite no authority providing for awards
of compensatory education to be adjusted for inflation. /d.; see also Pls.’ Reply at 33 (conceding that “we
are unaware of a reported IDEA decision in which the amount required to compensate for a FAPE denial
was adjusted to account for the passage of time and intervening inflation”). The Court declines to be the
first to do so.
11
II. Counts 3 and 10
The Court will award $163,793.88 in prevailing-party attorneys’ fees and costs,
even though the District does not oppose the Davises’ claim for $170,806.51. Am. Compl.
4] 82-85; Suppl. Compl. {ff 145-151; Pls.’ Mot. at 39-47; Def.’s Mot. at 3. The IDEA
allows a court, in its discretion, to award attorneys’ fees and costs “to a prevailing party
who is the parent of a child with a disability,” subject to certain exceptions not applicable
here. 20 U.S.C. § 1415()(3)(B)(), (D)-(E). The Davises prevailed here by obtaining
“some form of judicial relief” in successive decisions that B.D.’s educational placement as
of April 2013 included one-on-one home instruction and occupational therapy. Douglas v.
District of Columbia, 67 F. Supp. 3d 36, 41-42 (D.D.C. 2014) (Friedman, J.).
The fees awarded shall be based on rates prevailing in the community for the kind
and quality of services furnished, and no bonus or multiplier may be used in calculating
the fees. 20 U.S.C. § 1415q)(3)(C). The “basic formula” is to multiply the number of
hours reasonably expended by a reasonable hourly rate. DL v. District of Columbia, 924
F.3d 585, 588 (D.C. Cir. 2019). The Davises claim the following hours and rates, and the
Court has calculated the total fees from there:
Attorney Hourly Rate | Hours Worked Total Fees
Diana M. Savit _ $495.00 282.5 | $139,837.50
Diana M. Savit at 75 percent of rate? $371.25 36.8 | $13,662.00
Diana M. Savit at 15 percent of rate $74.25 20.2 $1,499.85 _
Diana M. Savit at paralegal rate $140.00 54.7 $7,658.00
Harvey Schweitzer $300.00 1.6 $480.00
Lisa Seltzer Becker $325.00 0.1 $32.50
Total 395.9 $163,169.85
> Ms. Savit billed some work at reduced rates to account for only partial success or to avoid double-
counting with another case. Pls.’ Mot. at 42.
12
Pls.’ Mot. at 20-21, 42; Savit Decl. [Dkt. #97-9] 9] 12, 14, 19, 24. Everyone agrees that
the hourly rates and the number of hours expended are reasonable. Still, the fees claimed
from each attorney’s work simply do not add up to the $170,182.48 total claimed by the
Davises; they add up to $163,169.85. The Davises also claim $624.03 in costs, including
a filing fee, printing/copying, postage, and travel. Pls.’ Mot. at 21-22, 40; Savit Decl. ¥ 25.
As the District agrees, those costs are reasonable. See Coates v. District of Columbia, 79
F. Supp. 3d 42, 51 (D.D.C. 2015) (Collyer, J.).
In total, the Court will award $163,793.88 in attorneys’ fees and costs.
CONCLUSION
For the foregoing reasons, the Court will GRANT the District’s motion for partial
summary judgment; will GRANT IN PART and DENY IN PART the Davises’ motion for
summary judgment as to Counts 3 and 10, with an award of $163,793.88; and will DENY
their motion as to Count 9. An order consistent with this decision accompanies this
‘
“dag town]
RICHARD $-L.EON
United States District Judge
Memorandum Opinion.
13