Smith v. Cheyenne Mountain School District 12

Filing 45

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Kathleen M. Tafoya on 5/9/2018. This court RECOMMENDS that ALJ Lights decision be REVERSED and that the case be REMANDED consistent with the reasons in this Recommendation. (Attachments: # 1 Schedule A) (jgonz, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 17–cv–00022–CMA–KMT
MICHAEL SCOTT SMITH,
Plaintiff,
v.
CHEYENNE MOUNTAIN SCHOOL DISTRICT 12,
Defendant.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Magistrate Judge Kathleen M. Tafoya
This matter is, in effect, an administrative appeal. It comes before the court by way of
complaint, filed by pro se Plaintiff Michael Scott Smith on January 3, 2017. Since that time,
Plaintiff has filed an opening brief, dated July, 26, 2017.1 Defendant Cheyenne Mountain School
District 12 has filed a response, dated March 12, 2018. (Doc. No. 39.) A reply was filed on
March 26, 2018. (Doc. No. 43.) The Administrative record (“AR”) has also been conventionally
filed in this case in the form of a CD Rom.2 (Doc. No. 27.) For ease of reference, the
administrative decision of ALJ Tanya T. Light, dated October 3, 2017, is attached in Schedule A.

1

The terms Plaintiff and Defendant will be used to describe the parties despite the posture of this
case being more akin to an appeal, than a trial at first instance.
2

The passing of time between opening and responsive briefing was caused by the filing and
procedural errors of the parties. This is explained in full in a previous order (incorporated
herein). It need not be reiterated here. (Doc. No. 41.)

INTRODUCTION
This case involves action brought under the Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. § 1400, et seq. challenging the administrative decision of ALJ Tanya T.
Light. Plaintiff alleges that his child, R.S., has been denied relief under the statute.
Under the statute’s provisions, states that receive federal educational assistance must
establish “policies and procedures to ensure” that “free appropriate public education” (“FAPE”)
is available to disabled children. See 20 U.S.C. § 1412(a)(1)(A). Its purpose, therefore, is to
ensure “that all children with disabilities have access to FAPE designed to meet their unique
needs.” Murray v. Montrose County School District RE-JJ, 51F.3d921, 927 (10th Cir. 1995)
(quotations and alterations omitted). To fulfill this purpose, an individualized education program
(“IEP”) is the basic mechanism through which each child’s individual goals are achieved. Id. The
statute sets forth detailed procedures through which an IEP is to be developed. Id. The IEP is a
detailed written document that describes the student’s educational goals for an academic year
and establishes a plan to achieve those goals. Id.
Notwithstanding the vast array of provisions (and the acronyms that come with them), it
is safe to say that the statute is one of the more complex in the federal system—not just its
review and regulatory requirements, but its procedural and substantive provisions that create
liability and relief. See generally, Daniel W. Morton-Bentley, The Rowley Enigma: How Much
Weight is Due to IDEA State Administrative Proceedings in Federal Court?, 36 J. Nat’l Ass’n
Admin. L. Judiciary 428, 434, 467 (2016) (“The IDEA’s judicial review provision is not a model
of clarity . . . its multilayered administrative and judicial review procedure is predisposed toward
confusion.”).

2

In addition to the legal complexities, the parties have navigated a thorny procedural
history—tethered to cases adjudicated by U.S. District Court Judge Phillip A. Brimmer. See,
e.g.,14-cv-2651. It is now before this court on separate, but related issues—as follows:
1. Whether the Administrative Law Judge (“ALJ”) erred when she allowed Defendant to
determine the extent of the harm it caused when it violated R.S.’s right to a FAPE, and to
then determine the remedy for its own violation.
2. Whether the ALJ erred when she held that compensatory education was unavailable as a
remedy in the absence of educational regression.
3. Whether the ALJ erred when she peremptorily eliminated private school placement as a
potential remedy.
Wedded to the third issue is Defendant’s affirmative defense—to wit, Defendant argues
that res judicata applies based on a preliminary injunction issued by Judge Brimmer in an earlier
case and affirmed by the Tenth Circuit.
The court is persuaded by Plaintiff’s position on the first issue—i.e., the ALJ wrongly
delegated power to an educational agency—warranting remand. Because the second issue is tied
to the first, it, too, requires further factual development by the ALJ to determine what
compensatory education (if any) to which M.S. is entitled. Separately, the third issue also sways
in favor of Plaintiff. Being a question of law—res judicata—the issue provides for ease of
disposition; ever more so when the defense was a non-starter to begin with. The prior decision
that Defendant relies upon was set in the preliminary injunction context. There is no final
decision to preclude Plaintiff’s case. The defense is rejected. Each of the issues before the court,
therefore, will require remand and further factual development to assess the appropriate relief.

3

BACKGROUND
On March 10, 2016, the Colorado Department of Education, Exceptional Student
Services Unit, received a due process complaint filed by Plaintiff on behalf of his minor son,
R.S., alleging that Defendant violated 20 U.S.C. §§ 1400 – 1482 and the Colorado Exceptional
Children’s Educational Act (“ECEA”), 1 CCR 301-8, by failing to provide him with FAPE.
Plaintiff alleged that Defendant denied R.S. FAPE when it denied his enrollment at the Cheyenne
Mountain Charter Academy (“CMCA”) in 2014.
The ALJ found for Plaintiff on the liability issue—i.e., denial of FAPE—from at least
August 13, 2014 through October 16, 2014. Relevantly, on page 10 of the ALJ’s October 3, 2016
decision, the ALJ stated:
The ALJ concludes that Respondent did not provide FAPE to R.C.V.S. between
August 13, 2014 and October 16, 2014. Accordingly, the ALJ ORDERS as
follows:
Respondent shall re-test R.C.V.S.’s early literacy skills through the DIBELS test,
or a test of Respondent’s choosing that assesses the same or similar early literacy
skills as the DIBELS test if Respondent believes the DIBELS test is no longer
appropriate due to the passage of time. If R.C.V.S.’s scores are below benchmark
levels, Respondent, in coordination with the IEP team, shall decide what
compensatory services are necessary in order to improve R.C.V.S.’s scores up to
benchmark levels and will implement those services accordingly. If R.C.V.S.’s3
scores are at benchmark levels, then nothing more is required of the District.
(See Schedule A at 10)4 (emphasis added). Defendant then filed a Motion for Clarification on
October 7, 2016, noting that R.S. had taken several DIBELS tests since the fall of 2014 and that

3

The ALJ’s decision refers to Plaintiff’s child as R.C.V.S.; whereas the parties have referred to
him as R.S. in these proceedings, providing no explanation for this change. R.S. will be used in
these proceedings.
4

Other than Schedule A, the referencing and numbering used in this recommendation is based on
ECF numbering, denoted in the top right hand corner of a filing.
4

after the initial DIBELS assessments that were administered upon his return to school in October
2014, he received scores above benchmark levels on his next three DIBELS assessments. (AR at
666-676.)
After reviewing the Motion for Clarification, ALJ Light issued an Order on October 27,
2016, finding that Defendant had purportedly complied with the October 3, 2016 decision and
that nothing further was required. (AR at 516.)
Having exhausted all administrative remedies, Plaintiff now appeals the October 3, 2016
decision and the subsequent October 27, 2016 order that flowed from it.
STANDARD OF REVIEW
“Judicial review in IDEA cases differs substantially from judicial review of any other
agency action, in which courts generally are confined to the administrative record and are held to
a highly deferential standard of review.” 5 Murray, 51F.3d921, 927; L.B. ex rel. K.B. v. Nebo Sch.
Dist., 379 F.3d 966, 973 (10th Cir. 2004) (stating that the statute “sets up a unique standard for a
federal court's review”).6 In reviewing an administrative record, a district court applies “a
modified de novo standard in reviewing a hearing officer’s decision.” Id. It looks to the “record
of the administrative proceedings” and “decide[s], based on a preponderance of the evidence,
whether the requirements of the IDEA are met.” Nebo Sch. Dist. 379 F.3d 974. In so doing, a
5

In a lawsuit brought to challenge an IDEA administrative finding, the district 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).

6

The Tenth Circuit is yet to determine who carries the burden of persuasion. Case law from
sister circuits is instructive—specifically, “a party challenging the administrative determination
must at least take on the burden of persuading the court that the hearing officer was wrong, and
that a court upsetting the officer’s decision must at least explain its basis for doing so.” See
Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1989).
5

district court must give “due weight” to the hearing officer’s findings of fact, which are
“considered prima facie correct.” Id. Although the district court may accept additional evidence,
such evidence is merely supplemental to the administrative record. See 20 U.S.C. §
1415(i)(2)(B); Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1472–73 (9th Cir. 1993). The
district court’s proceedings “maintain [a deferential] character of review,” Nebo Sch. Dist. 379
F.3d 974.7 Relevantly, although deference is afforded to questions of fact, questions of law are
reviewed under a de novo standard. See O’Toole v. Olathe District Schools Unified School
District No. 233, 144 F.3d 692, 699 (10th Cir. 1998) (“[A]ny legal conclusions [are reviewed]
under our usual de novo standard”).
“Courts fashioning discretionary equitable relief under IDEA must consider all
relevant factors.” See Florence County Sek Dist. Four v. Carter, 510 U.S. 7, 15 (1993). The
prerequisite of a “compensatory education award [is] a simple finding that a child has received
an inappropriate education.” See MC. ex rel. J.C. v. Central Regional Sch. Dist., 81F.3d389, 397
(3rd Cir. 1995).

7

The standard of review varies between the circuits. See Andriy Kralmal et. al., “Additional
Evidence” Under the Individuals with Disabilities Education Act: The Need for Rigor, 9 TEX. J.
C.L. & C.R. 201, 204 (2004) (the IDEA “is silent about ... the standard of review,” i.e., degree of
deference). For instance, the Sixth Circuit conducts a deferential review of factual determinations
grounded in educational expertise. N.W. ex rel. J.W. v. Boone Cty. Bd. of Educ., 763 F.3d 611,
614 (6th Cir. 2014). The Seventh Circuit reviews administrative findings of fact under the
substantial evidence standard so long as no additional evidence was offered and accepted. M.B.
ex rel. Berns v. Hamilton Se. Sch., 668 F.3d 851, 860 (7th Cir. 2011). The Eighth Circuit locates
its standard of deference somewhere between the de novo and substantial evidence tests with
particular weight given to hearing officer credibility findings and educational policy
determinations. See, e.g., Blackmon ex rel. Blackmon v. Springfield R-XII Sch. Dist., 198 F.3d
648, 654-55 (8th Cir. 1999).
6

ANALYSIS
The parties do not dispute liability. What is in dispute is Plaintiff’s relief—being, the
manner in which the specific relief for R.S. is to be determined. Critically, there is little factual
analysis by the ALJ that underscored the decision not to grant relief on October 27, 2016, despite
the ALJ finding Defendant liable under the statute two weeks earlier.8 For the reasons that
follow, error exists in the ALJ’s decision-making that warrants remand and further factual
development of the record.
A. Whether the ALJ erred when she allowed Defendant to determine the extent of the
harm it caused when it violated R.S.’s right to a FAPE, and to then determine the
remedy for its own violation
Plaintiff challenges the ALJ’s decision for not adhering to her statutory duty to tailor
relief to R.S. after finding that Defendant was liable under the statute. Plaintiff contends that the
ALJ allowed Defendant “to [1] determine the extent of its harm to R.S., [2] the method of
determining that harm, and [3] the appropriate remedy for that harm.” (Doc. No. 30 at 13.) In
short, Plaintiff contends that R.S.’s relief was wrongly delegated to individuals expressly barred
from ‘standing in the shoes’ of the ALJ. The court agrees. The relevant case law fortifies this
view. Elucidation of each case confirms as much.
The first is Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005).
There, the hearing officer awarded the student in question 810 hours of compensatory education
to remedy the school district’s denial of a FAPE for four and a half years. 401 F.3d at 518. He

8

Note, there were tests taken by R.S. (and test scores) in this interim period that was said to
support Defendant’s Motion for Clarification on October 7, 2016 and the subsequent ALJ
decision on October 27, 2016 (AR at 666-676); but it is the directive on page 10 of the ALJ
decision on October 3, 2016 that Plaintiff challenges—arguing that the directive was wrong to
begin with, tarnishing everything that followed because it was inconsistent with the statute itself.
7

also vested the student’s IEP team with the power to reduce or discontinue compensatory
services if and when the IEP team determined that the student either no longer needed or was no
longer benefitting from the compensatory education. Id. Specifically, “[t]he team’s decision that
[the student] no longer needs or is not benefitting from this award of compensatory education
services will terminate this award.” Id. at 520. The district court affirmed. Id. at 526. On appeal,
the District of Columbia Circuit reversed the district court’s ruling—holding that hearing officers
may not authorize IEP teams to reduce or discontinue awards of compensatory education. Id.
In reversing the district court decision, the District of Columbia Circuit reasoned that the
“IDEA due process hearings ‘may not be conducted by an employee of the State educational
agency or the local educational agency involved in the education or care of the child.’” Id. (citing
20 U.S.C. § 1415(f)(3)). An IEP team, in contrast, is statutorily required to include a
representative of the local educational agency. 20 U.S.C. § 1414(d)(1)(B)(iv). Since the IEP team
was delegated power to reduce or terminate the compensatory award initially set by the hearing
officer, the court held that “the IEP team would in effect exercise the officer’s powers.” Reid,
401 F.3d at 526. Stated another way, “while the IEP team certainly must monitor [the student’s]
progress and coordinate compensatory relief with his current IEP, a delegation that permits the
team to reduce or terminate his awarded amount of compensatory education exceeds the statute’s
bounds.” Id. at 527.
Further, the District of Columbia Circuit held that the fact that the IEP team was
comprised of nonemployees, including the student’s mother, did not change the court’s ultimate
conclusion because “under the statute, the hearing officer may not delegate his authority to a

8

group that includes an individual specifically barred from performing the hearing officer’s
functions.” Id. at 526.
The next case, Bd. of Educ. of Fayette Cty. v. L.M., 478 F.3d 307, 317–18 (6th Cir. 2007),
piggy-backs on Reid’s reasoning. Specifically, the Sixth Circuit held that the ALJ violated the
statute because instead of requiring a certain number of hours of compensatory education, the
ALJ ordered the student’s IEP team to determine the type and duration of compensatory services
the student was to receive. Id. In adopting Reid, the Sixth Circuit further stated that division
between the hearing officer duties and the IEP “creat[es] a clean and clear separation by barring
altogether an IEP team’s power to terminate a compensatory-education award.” Id. This
conclusion was drawn irrespective of whether the student was enrolled in the school or not. Id.
(“T.D. is not currently enrolled in the School District, so the possibility of the School District
exerting an undue influence in his particular case is not great, but we decline to approve a
practice that might have such an impermissible effect in the future.”)
In M.S. ex rel. J.S. v. Utah Schools for Deaf and Blind, 822 F.3d 1128 (10th Cir. 2016),
the district court refused to resolve the placement issue (plaintiff’s requested relief), leaving the
matter entirely to the discretion of the IEP team on remand. In rejecting the district court’s
delegation—and in relying on Reid and L.M.’s reasoning (adopting “it as our own”)—the Tenth
Circuit stated:
Allowing the educational agency that failed or refused to provide the covered
student with a FAPE to determine the remedy for that violation is simply at odds
with the review scheme set out at § 1415(i)(2)(C). Furthermore, as noted by J.S.,
such an approach could trap M.S. in an endless cycle of costly and timeconsuming litigation. That is, by remanding the placement issue to the IEP team,
J.S. will have no recourse but to seek another due process hearing, and potentially
file another federal lawsuit should the IEP team refuse to place M.S. at Perkins.

9

Id. at 1136. The Tenth Circuit concluded, however, “that the passage of time and additional
developments might bear significantly on the issue of M.S.’s placement.” Id. To help mitigate
this concern, it was noted that the statute allows for the presentation of additional evidence at the
request of a party and empowers the district court to “grant such relief as [it] determines is
appropriate.” 20 U.S.C. § 1415(i)(2)(C)(ii).9
These cases are dispositive of the issue here—particularly the Tenth Circuit’s recent M.S.
decision. The reason is two-fold. First, each case parallels with the present. The common thread
running through each is the outsourcing of the ALJ’s duty to a third-party in violation of the
statute. The provisions of the statute provide that a hearing officer conducting a hearing “shall,
at a minimum not be an employee of the State educational agency or the local educational
agency involved in the education or care of the child; or a person having a personal or
professional interest that conflicts with the person’s objectivity in the hearing.” 20 U.S.C. §
1415)3)(A). Under the statute, “the hearing officer may not delegate his authority to a group that
includes an individual specifically barred from performing the hearing officer’s functions.” Reid,
401 F.3d at 526 (emphasis added).
In this case, the ALJ erred in delegating her authority to individuals barred under the
statute. The ALJ did so by mandating that Defendant re-test R.S., permitting Defendant to

9

It is worth noting that the level of briefing in these three cases, and the circuit opinions
themselves, are detailed as they are thorough. The parties and the decisions below articulated
precisely what each was seeking. This comes in stark contrast with Plaintiff’s prayer of relief in
his verified complaint. (Doc. No. 1 at 10-11.) Whether it be additional tutorial hours or other
more specific remedies, Plaintiff would be well served in using a laser-like focus to articulate the
specific and concrete remedies it seeks—and then develop the record before the ALJ to support
that evidence. This is one case where the parties should have the ‘end in mind.’ If the record is
not properly developed on remand with the seeking of additional evidence, this case has the
potential to be become a merry-go-round, something that the parties (no doubt) disfavor.
10

“choos[e]” the test if Defendant “believe[d]” the previous test was no longer appropriate. (See
Schedule A at 10). And then, if the scores were below benchmark, Defendant was mandated to
“coordinat[e] with the IEP team … to decide what compensatory services [were] necessary.” Id.
Although some degree of commonsense underscores aspects of the ALJ’s decision, it is at
odds with the statute itself. Indeed, in this case, the ALJ not only erred by delegating the
compensatory services to the IEP team (which squares with the abovementioned cases), but the
ALJ erred by affording Defendant the scope to ‘pick and choose’ the testing methods that
determined compensation—affording Defendant broad power beyond what is contemplated by
the statute. This gave Defendant “undue influence on the delegated decision” because those
testing methods (and its choice) were wedded to the compensatory award. M.S., 822 F.3d 1135;
see also Reid; 478 F.3d at 318 (same). As such, because the ALJ failed to mandate the tests that
R.S. would take—and because the award was to be determined by an IEP team in contravention
of prevailing case law—the court recommends that the case be remanded for further factual
development and implementation.
A second reason further reinforces Plaintiff’s position. Nowhere in Defendant’s brief
does it address the fact that it was Defendant, not the ALJ, who could ‘pick and choose’ the
testing methods relevant to R.S.—being a wrongful delegation of the ALJ’s duty. Granted, the
Tenth Circuit’s M.S. decision focused on the delegation to the IEP team; rather than the school
district itself, but the decision more broadly held that any delegation to an educational agency is
inconsistent with the statute. M.S., 822 F.3d 1135-6 (“Allowing the educational agency that
failed or refused to provide the covered student with a FAPE to determine the remedy for that

11

violation is simply at odds with the review scheme set out” in the IDEA.). This is particularly
true where, as here, the student is still enrolled in the school that caused the violation. Id.
Still, even if the Tenth Circuit did not hold what it did (nor Reid and L.M.), it is difficult
to disavow the plain meaning of the statute that bars a state or local “agency” from being
involved in the work of the hearing officer. 20 U.S.C.A. § 1415)3)(A). Because of this, and
since Defendant has failed to meaningfully rebut Plaintiff’s argument, the ALJ’s deficiencies
cannot be revived. Cf. Bancoult v. McNamara, 227 F. Supp. 2d 144, 149 (D.D.C. 2002). Remand
is, therefore, warranted.
In sum, it is critical to appreciate that what Plaintiff is challenging in this case is the
wrongful delegation of power to an educational agency.10 Plaintiff is correct in this challenge.
Whether delegation be to Defendant (or an IEP team), the statute is clear: the hearing officer
must determine the relief if liability is established. In mandating remand, however, the parties
must have some opportunity to present evidence regarding R.S.’s specific educational deficits
resulting from his loss of FAPE and the specific compensatory measures needed to best correct
those deficits (if any). Realizing that the passing of time provides an additional layer of
complexity, the court still recommends that there be further factual development of the record
and the ALJ’s expertise in this field be fully utilzed. By doing so, and by examining the cases

10

While the parties have not raised the issue, Chevron deference would not apply because there
is no ambiguity in the statute to afford such deference. See SAS Institute Inc. v. Iancu, __ U.S.
__, 2018 WL 1914661, at *8 (Apr. 24, 2018) (“[W]e are left with no uncertainty that could
warrant deference. The statutory provisions before us deliver unmistakable commands.”) So too,
here. See 20 U.S.C.A. § 1415)3)(A). Even if such deference did apply, the same result would
yield.
12

identified in this opinion, the ALJ will be on firmer footing to make the determination it needs to
in accordance with the statute.11
B. Whether ALJ erred when she held that compensatory education was unavailable as
a remedy in the absence of educational regression.
As foreshadowed earlier, the second issue before the court is so entwined with the first
that they travel together. The ALJ found that Defendant is liable under the statute, but has not
afforded any relief to compensate for Plaintiff’s loss. Indeed, the evidence that formed the bases
for denying R.S.’s relief stems from a wrongful delegation of power as addressed above. Given
that remand is warranted for this wrongful delegation of power (and that further factual
development will flow from such remand), it follows that compensatory education can be
determined upon reconsideration (if any).
To be sure, however, the court expresses no opinion as to whether Plaintiff will be
successful before the ALJ when this issue is reconsidered. The court does not intend by this
opinion to suggest the result that should be reached on remand; rather, the court encourages the
parties, as well as the ALJ, to consider the evidence and the issues anew.
11

Boone Cty. Bd. of Educ., 763 F.3d at 614 (The education agency of the ALJ is “presumed” to
have “educational expertise.”) In light of this, inter alia, remand is the only sensible option that
the court can exercise in its discretion—particularly given the expertise of the educational
agency. And as alluded to earlier, there is a dearth of evidence in the record relevant to the issue
of relief. Even that evidence has been tarnished by a wrongful delegation of power by the ALJ—
meaning that, there is, effectively no evidence. Because of this, and since the parties have not
sought the reopening of further evidence in this case, the court recommends remand for further
factual development. See Reid, 401 F.3d 516 (“[I]n light of the absence of pertinent findings in
the administrative record and given that both parties previously filed cross-motions for summary
judgment rather than exercising their right to request consideration of additional evidence, the
district court may determine that the appropriate relief is a remand to the hearing officer for
further proceedings.”); see also JH ex rel. JD v. Henrico County Sch. Bd., 395 F.3d 185, 198 (4th
Cir.2005) (remanding IDEA suit to district court with instructions to remand to hearing officer);
Shapiro v. Paradise Valley Unified Sch. Dist. No. 69, 152 F.3d 1159, 1160 (9th Cir.1998)(same).
13

C. Whether the ALJ erred when she peremptorily eliminated private school placement
as a potential remedy
Plaintiff contends that ALJ Light peremptorily denied the possibility of private school
placement as a remedy because that remedy was sought in a prior case—specifically: Smith v.
Cheyenne Mountain Sch. Dist. 12, No. 14-02651-PAB-CBS, 2014 WL 5315033, at *1 (D. Colo.
Oct. 17, 2014), order clarified, No. 14-CV-02651-PAB-CBS, 2015 WL 4979773 (D. Colo. Aug.
20, 2015) (Brimmer J.).
In Smith, R.S.’s mother sought injunctive relief in the United States District Court for the
District of Colorado, requesting, inter alia, that Cheyenne Mountain School District be ordered
to fund the private school placement. Judge Brimmer denied that preliminary request; and,
instead held that the statute’s stay-put provisions required Defendant to maintain R.S.at
Cheyenne Mountain Charter Academy. See Re Smith, 2014 WL 5315033, at *3; see also 20
U.S.C. § 1415(j). Judge Brimmer’s decision was subsequently affirmed in Smith v. Cheyenne
Mountain Sch. Dist. 12, 652 F. App’x 697, 698 (10th Cir. 2016).12 Defendant now relies on the
collective weight of Judge Brimmer’s decision and its affirmance in the Tenth Circuit to preclude
Plaintiff from seeking private school placement under the doctrine of res judicata. (Doc. No. 42
at 13.)
A claim is barred by claim preclusion if four elements are met: (1) a final judgment on
the merits in the prior suit; (2) the prior suit involved the same parties or their privies; (3) identity
12

Note, in some case in the Tenth Circuit have held that three elements, not four, must exist: (1)
a judgment on the merits in an earlier action; (2) identity of parties or privies in the two suits;
and (3) identity of the cause of action in both suits. See Satsky, 7 F.3d at 1467; Lowell Staats
Mining Co., 878 F.2d at 1274 (same). While the court, here, recommends adoption of the more
recent Plotner framework over Satsky, the issue is of no moment in this case because the first
element—common to both frameworks—cannot be met.
14

of the cause of action in both suits; and (4) a full and fair opportunity to litigate the claim in the
prior suit. Plotner v. AT & T Corp., 224 F.3d 1161, 1168 (10th Cir.2000); King, 117 F.3d at 445;
Satsky, 7 F.3d at 1467.
The doctrine of res judicata is “intended to relieve parties of the cost and vexation of
multiple lawsuits, conserve judicial resources, prevent inconsistent decisions, and encourage
reliance on adjudication.” Satsky v. Paramount Communications, Inc., 7 F.3d 1464, 1467 (10th
Cir. 1993). “Res judicata, or claim preclusion, precludes a party or its privies from relitigating
issues that were or could have been raised in an earlier action, provided that the earlier action
proceeded to a final judgment on the merits.” King v. Union Oil Co. of Calilf., 117 F.3d 443, 445
(10th Cir. 1997) (citing Lowell Staats Mining Co., Inc. v. Philadelphia Elec. Co., 878 F.2d 1271,
1274 (10th Cir. 1989)). More specifically, “[w]here a second suit between the same parties or
their privies is on the same cause of action, the final judgment in the prior action is conclusive as
to all matters which were actually litigated as well as those which could have been litigated.”
Spence v. Latting, 512 F.2d 93, 98 (10th Cir. 1975)
Fatal to this affirmative defense from the onset is that there is no final judgment upon
which to anchor Defendant’s position. The decision upon which Defendant relies was set in the
context of a preliminary injunction. While the merits of the case are assessed for the purposes of
relief, that assessment is made at the onset of the proceedings. A preliminary injunction order, by
its very nature, cannot form the basis of a res judicata claim. Courts have held that such orders
are not a final determination on the merits. See Watrous v. District Court of the United States for
the District of Colorado, the Tenth Circuit held that “the denial of [a] preliminary injunction [is]
not an adjudication of the ultimate rights in controversy. It [is not] conclusive on the court or the

15

rights of the plaintiffs at a subsequent hearing.” 207 F.2d 50, 58 (10th Cir. 1953); Tobacco Co. v.
Engida, 611F.3d1209, 1217 (10th Cir. 2010) (injunction decision “is not equivalent to actual
success on the merits.”); see also Hunter v. Atchison, T. & S. F. Ry. Co., 188 F.2d 294, 299 (7th
Cir. 1951) (“The decision of the trial court on granting the motion for preliminary injunction will
not estop either of the parties on the trial of the case on its merits, nor would any determination
of those questions by this court on appeal be binding on the trial court nor upon either of the
parties in considering and determining the merits of the controversy.”); see also Mesabi Iron Co.
v. Reserve Mining Co., 270 F.2d 567, 570 (8th Cir. 1959) (a TRO ruling “may not be invoked as
res judicata”); Cf. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396 (1990) (“‘[D]ismissal ...
without prejudice’ is a dismissal that does not ‘operat[e] as an adjudication upon the merits,’ and
thus does not have a res judicata effect.” (citation omitted)).13
In sum, Defendant’s res judicata defense is misplaced. In rejecting the defense, however,
it is important to note that this recommendation does not address the substantive issue of private
placement of R.S. in favor of Plaintiff, a matter which the ALJ must address and resolve on
remand.

13

In Smith, on appeal. 12, 652 F. App’x 697, the Tenth Circuit simply affirmed what was found
before Judge Brimmer, the Tenth Circuit stating: “we affirm the preliminary injunction requiring
the School District to maintain R.S.’s educational placement at CMCA . . . [and] affirm the
court’s denial of Ms. Smith’s alternative claim for private-school funding.” Id. at 701.
16

CONCLUSION
WHEREFORE, for the foregoing reasons, this court
RECOMMENDS that ALJ Light’s decision be REVERSED and that the case be
REMANDED consistent with the reasons in this Recommendation.
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may
serve and file written objections to the Magistrate Judge’s proposed findings and
recommendations with the Clerk of the United States District Court for the District of Colorado.
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A
general objection that does not put the district court on notice of the basis for the objection will
not preserve the objection for de novo review. “[A] party’s objections to the magistrate judge’s
report and recommendation must be both timely and specific to preserve an issue for de novo
review by the district court or for appellate review.” United States v. One Parcel of Real Prop.
Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to
make timely objections may bar de novo review by the district judge of the magistrate judge’s
proposed findings and recommendations and will result in a waiver of the right to appeal from a
judgment of the district court based on the proposed findings and recommendations of the
magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579–80 (10th Cir. 1999) (stating that a
district court’s decision to review a magistrate judge’s recommendation de novo despite the lack
of an objection does not preclude application of the “firm waiver rule”); One Parcel of Real
Prop., 73 F.3d at 1059–60 (stating that a party’s objections to the magistrate judge’s report and
recommendation must be both timely and specific to preserve an issue for de novo review by the

17

district court or for appellate review); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52
F.3d 901, 904 (10th Cir. 1995) (holding that cross-claimant had waived its right to appeal those
portions of the ruling by failing to object to certain portions of the magistrate judge’s order);
Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (holding that plaintiffs waived their
right to appeal the magistrate judge’s ruling by their failure to file objections).
Dated this 9th day of May, 2018.

18

SCHEDULE A
ALJ Light’s October 3, 2016 decision and the subsequent October 27, 2016 order that flowed
from it. These documents are found in the Administrative Record. (Doc. No. 27 at 505-516.)

19