PINTO et al v. DISTRICT OF COLUMBIA

Filing 7

OPINION denying the District of Columbia's Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. An order consistent with this opinion will issue this same day. Signed by Judge Paul L. Friedman on April 10, 2013.(MA)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
NILS RAFAEL PINTO, et al.,
)
)
Plaintiff,
)
)
v.
)
Civil Action No. 12-1699 (PLF)
)
DISTRICT OF COLUMBIA,
)
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Defendant.
)
__________________________________________)

OPINION
Plaintiffs, minor K.P.R. and his parents, bring this case under the Individuals with
Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq., to challenge in part a Hearing
Officer’s decision denying tuition reimbursement and prospective placement of K.P.R. at the Lab
School of Washington. The matter is now before the Court on a motion by defendant District of
Columbia to dismiss the complaint for lack of subject matter jurisdiction pursuant to Rule
12(b)(1) of the Federal Rules of Civil Procedure. The District contends that plaintiffs’ claims are
moot and that plaintiffs have failed to exhaust their administrative remedies. Upon consideration
of the parties’ arguments, the relevant legal authorities, and the entire record in this case, the
Court will deny the District’s motion. 1

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The papers reviewed in connection with the pending motion include: plaintiffs’
complaint (“Compl.”) [Dkt. 1]; defendant’s motion to dismiss (“Def.’s Mot.”) [Dkt. 3];
plaintiffs’ opposition (Pls.’ Opp.”) [Dkt. 4]; defendant’s reply (“Def.’s Reply”) [Dkt. 5]; and the
December 12, 2012 Report and Recommendations of the Special Master in Blackman v. Dist. of
Columbia, Civ. Action No. 97-1629 [Dkt. 2298] (“Blackman R&R”).

I. BACKGROUND
Plaintiffs in this action are K.P.R., a student eligible to receive special education
and related services under the IDEA, and his parents and next friends, Nils Rafael Pinto and
Marta Rivera. During the fall of 2010, K.P.R. was enrolled at Horace Mann Elementary School,
a public school within the District of Columbia Public Schools (“DCPS”). Compl. ¶ 13. Around
that time, K.P.R. was diagnosed with a learning disability, a mixed receptive-expressive
language disorder, inability to sustain attention, deficits in certain subject areas, and difficulties
with organization, planning and motor control. Id. ¶¶ 10, 15, 17-21.
During the 2010-2011 school year, plaintiffs met with DCPS officials on several
occasions to develop an individualized education program (“IEP”) for K.P.R. Compl. ¶¶ 22-24,
28, 44. According to plaintiffs, DCPS refused to incorporate adequate special education support
and speech and language therapy into K.P.R.’s IEP. Id. ¶¶ 26, 30-33, 45-46, 49, 52. On January
11, 2011, K.P.R.’s parents notified DCPS that they were removing K.P.R. from Horace Mann
and would be seeking reimbursement for appropriate non-public special education services. Id.
¶ 35. K.P.R. finished the school year at Kingbury Day School, a private school that serves
learning disabled students. Id. ¶ 36. Before the 2011-2012 school year began, K.P.R.’s parents
transferred him to the Lab School of Washington, another private educational institution
providing services exclusively to learning disabled children. Id. ¶ 53.
In April 2012, K.P.R.’s parents filed a request for an administrative due process
hearing to challenge the IEP created for K.P.R. Compl. ¶ 54. After a four-day hearing in June
and July 2012, the Hearing Officer determined that DCPS had failed to conduct appropriate
evaluations of K.P.R. and, as a result, had developed an inappropriate IEP for him. Id. ¶¶ 56, 60.
The Hearing Officer declined, however, to grant plaintiffs’ request for publicly funded placement

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at the Lab School or reimbursement for already-paid tuition expenses, on the basis that the Lab
School was not the least restrictive environment for K.P.R. Id. ¶¶ 62, 65. The Hearing Officer
instead ordered DCPS to conduct appropriate evaluations of K.P.R. and convene a meeting to
revise his IEP as appropriate within 30 days of a written request by plaintiffs. Compl. ¶ 64.
On July 26, 2012, plaintiffs timely notified DCPS of their desire to have DCPS
commence this process. Id. ¶ 68. By October 2012, however, DCPS had not completed the
required evaluations. Id. ¶ 71. Plaintiffs brought two actions in this Court: the first seeking
compliance with the Hearing Officer’s order that DCPS conduct the necessary evaluations and
develop an appropriate IEP; the second requesting review of the Hearing Officer’s decision not
to place K.P.R. at the Lab School or grant tuition reimbursement.
To remedy DCPS’ noncompliance with the Hearing Officer’s order, plaintiffs
filed a motion for preliminary injunction in a related case, Blackman v. Dist. of Columbia, Civ.
Action No. 97-1629, Dkt. No. 2289. The Court referred the preliminary injunction motion to
Special Master Elise Baach. While the motion was pending, DCPS completed the required
evaluations and developed a new IEP for K.P.R., which includes special education services as
well as speech and language therapy. See Plaintiffs’ Supplemental Memorandum, Blackman v.
Dist. of Columbia, Civ. Action No. 97-1629, Dkt. No. 2293. On December 11, 2012, the Special
Master issued her report agreeing with plaintiffs that DCPS had failed to timely comply with the
Hearing Officer’s order. Blackman R&R at 5-8. The Special Master declined to award plaintiffs
their requested relief of prospective placement at the Lab School, however, explaining:
An outright adoption of the requested relief would require DCPS to
fund a placement at [the Lab School]. What makes the
recommendation of this remedy particularly problematic here is
that the Hearing Officer expressly rejected a request for the same
relief. It is one thing to penalize DCPS for not doing what a
Hearing Officer has ordered; it is entirely different to require
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DCPS to do something that a Hearing Officer expressly declined to
order.
Moreover, the Hearing Officer’s refusal to order placement
at the [Lab School], and the rationale for that refusal, is now the
subject of the appeal in this Court. Unlike this request for
injunctive relief, which is discretionary in nature, the plaintiffs
have a statutory right under the IDEA to appeal in federal court
part or all of an HOD, and they have now exercised that right. By
doing so, the plaintiffs and the local education agency will both be
presented with an opportunity to address the soundness of the
Hearing Officer’s reliance on the IDEA’s mandate to educate a
student in the “least restrictive environment.” The combination of
these two factors – the Hearing Officer’s rejection of the same
relief and the fact that the resolution in federal court might answer
an outstanding question of substance – lead to the conclusion that a
decision on placement and funding under IDEA is preferable to
granting the relief sought in this forum.
Blackman R&R at 8.
The Special Master noted that DCPS’ delay in conducting the necessary
evaluations had forced plaintiffs to choose between continuing K.P.R.’s enrollment at the Lab
School or starting him at a public school without an appropriate IEP. Blackman R&R at 8-9.
Accordingly, she recommended tuition reimbursement for the period between August 28, 2012
through February 15, 2013. Id. at 9-10. Neither party filed objections, and the Court therefore
adopted and approved the Report and Recommendations. See Blackman v. Dist. of Columbia,
Civ. Action No. 97-1629, Dkt. No. 2305 (Jan. 9, 2013).
Plaintiffs brought the instant action to challenge the Hearing Officer’s decision
denying placement at the Lab School and reimbursement for already paid tuition and fees.
Plaintiffs assert four claims against the District: (1) failure to provide a free, appropriate public
education, in violation of the IDEA and District of Columbia law; (2) failure to place and fund
K.P.R. in an appropriate program and placement, in violation of the IDEA and District of
Columbia law; (3) failure by the Hearing Officer to properly evaluate the relevant facts and
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apply the relevant legal standards, in violation of plaintiffs’ due process rights under the IDEA
and District of Columbia law; and (4) failure by the Hearing Officer to award the requested
remedy, including reimbursement for tuition expenses and costs. Compl. ¶¶ 78-87. Plaintiffs
request declaratory, injunctive, and monetary relief, including reimbursement for tuition
expenses and costs incurred in enrolling K.P.R. at the Lab School for most of the 2011-2012
school year, as well as prospective placement of K.P.R. at that institution. Id. at 13.
The District argues that plaintiffs’ claims were mooted when plaintiffs requested
that DCPS complete the necessary evaluations and develop a new IEP for K.P.R pursuant to the
Hearing Officer’s order. Def.’s Mot. at 4. The District also contends that plaintiffs are barred
from bringing this action for failure to exhaust their administrative remedies. Id.

II. LEGAL FRAMEWORK
A. Motion to Dismiss under Rule 12(b)(1)
Federal courts are courts of limited jurisdiction, with the ability to hear only cases
entrusted to them by a grant of power contained either in the Constitution or in an act of
Congress. See, e.g., Beethoven.com LLC v. Librarian of Congress, 394 F.3d 939, 945 (D.C. Cir.
2005); Tabman v. FBI, 718 F. Supp. 2d 98, 100 (D.D.C. 2010). On a motion to dismiss for lack
of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the
plaintiff bears the burden of establishing that the Court has jurisdiction. See Tabman v. FBI, 718
F. Supp. 2d at 1001; Brady Campaign to Prevent Gun Violence v. Ashcroft, 339 F. Supp. 2d 68,
72 (D.D.C. 2004). In determining whether to grant such a motion, the Court must construe the
complaint in the plaintiff’s favor and treat all well-pled allegations of fact as true. See Jerome
Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253-54 (D.C. Cir. 2005). But the Court need not
accept unsupported inferences or legal conclusions cast as factual allegations. See Primax
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Recoveries, Inc. v. Lee, 260 F. Supp. 2d 43, 47 (D.D.C. 2003). Under Rule 12(b)(1), the Court
may dispose of the motion on the basis of the complaint alone or it may consider materials
beyond the pleadings “as it deems appropriate to resolve the question whether it has jurisdiction
to hear the case.” Scolaro v. D.C. Board of Elections and Ethics, 104 F. Supp. 2d 18, 22 (D.D.C.
2000); see also Coalition for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir.
2003).

B. Appeals of IDEA Hearing Officer Determinations
The Individuals with Disabilities Education Act requires all states and the District
of Columbia to provide resident children with disabilities a “free appropriate public education”
(“FAPE”). 20 U.S.C. § 1412(a)(1). A FAPE consists of “special education and related services”
that, among other things, “include an appropriate . . . education” and “are provided in conformity
with the individualized education program required” by the statute. 20 U.S.C. § 1401(9)(C)-(D).
The IEP must set forth in writing the impact of the child’s disabilities, the annual “academic and
functional” goals for the child, and the forms of individualized education and support that will be
provided. See 20 U.S.C. § 1414(d)(1)(A). An IEP must be “reasonably calculated to enable the
child to receive educational benefits” in order to adequately confer a FAPE upon a given child.
Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Because the IEP must be “tailored to the
unique needs” of each child, id. at 181, it must be revised regularly in response to new
information regarding the child’s performance, behavior, and disabilities. See 20 U.S.C.
§ 1414(d)(4).
In implementing the IEP, the IEP team selects the school where the child is to be
placed. 20 U.S.C. § 1414(e); 34 C.F.R. § 300.116 (2012). In determining this placement,
preference is given to the “least restrictive environment” and the appropriate schools closest to
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the child’s home. 20 U.S.C. § 1412(a)(5); 34 C.F.R. §§ 300.114-300.120. If a public school
cannot provide the services that the child needs, DCPS must place the child at an appropriate
private school and pay the child’s tuition. Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516,
519 (D.C. Cir. 2005) (citing Jenkins v. Squillacote, 935 F.2d 303, 305 (D.C. Cir. 1991));
Friendship Edison Pub. Charter Sch. Chamberlain Campus v. Suggs, Civ. Action No. 06-1284,
slip op. at 7 (D.D.C. Apr. 21, 2008) (Report & Recommendation), adopted in full, 562 F. Supp.
2d 141, 147 (D.D.C. 2008); Petties v. Dist. of Columbia, 881 F. Supp. 63, 65 (D.D.C. 1995); see
also 34 C.F.R. § 300.146.
If a parent disagrees with the content of the IEP, including a proposed placement,
he or she may request an administrative due process hearing before an impartial hearing officer.
20 U.S.C. § 1415(f)(1). Any party aggrieved by the findings and decision rendered during this
hearing may bring a civil action in state or federal court challenging the decision. 20 U.S.C.
§ 1415(i)(2). The reviewing court “(i) shall receive the records of the administrative
proceedings; (ii) shall hear additional evidence at the request of a party; and, (iii) basing its
decision on the preponderance of the evidence, shall grant such relief as the court determines is
appropriate.” 20 U.S.C. § 1415(i)(2)(C).

III. DISCUSSION
A. Mootness
Federal courts have jurisdiction only over “real and substantial controvers[ies]
admitting of specific relief through a decree of a conclusive character.” Pharmachemie B.V. v.
Barr Labs., Inc., 276 F.3d 627, 631 (D.C. Cir. 2002) (quoting Lewis v. Cont’l Bank Corp., 494
U.S. 472, 477 (1990)). A federal court therefore must dismiss a claim as moot “when the court’s
decision ‘will neither presently affect the parties’ rights nor have a more-than-speculative chance
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of affecting them in the future.’” Kifafi v. Hilton Hotels Retirement Plan, 701 F.3d 718,
724 (D.C. Cir. 2012) (quoting Am. Bar Ass’n v. F.T.C., 636 F.3d 641, 645 (D.C. Cir. 2011)).
The District asserts that plaintiffs’ claims were mooted when plaintiffs sought
DCPS’s compliance with the Hearing Officer’s order and requested a free, appropriate public
education. See Def.’s Mot. at 8. In the District’s view, “[p]laintiffs cannot comply with the
order and seek DCPS’ compliance with the order and yet [simultaneously] argue that there is a
genuine ongoing controversy as to the correctness of the order.” Id.
The Court disagrees. There were two parts to the Hearing Officer’s decision.
Although the District has remedied its failure to evaluate and design an IEP for K.P.R., as
directed by the Hearing Officer, these actions do not resolve plaintiffs’ other claim: that a FAPE
for K.P.R. requires placement at the Lab School. Nor do the District’s actions address plaintiffs’
request for reimbursement for past educational expenses at the Lab School. The Special Master
dealt only with the District’s failure to comply with the first part of the Hearing Officer’s
decision in a timely fashion, and she noted that plaintiffs were separately appealing the Hearing
Officer’s decision not to place K.P.R. at the Lab School at the District’s expense. See Blackman
R&R at 4. The Special Master further noted that under the IDEA, a plaintiff may accept part of a
Hearing Officer’s decision and appeal another part of the same decision. Id. at 8. She is correct.
Under the IDEA, “[w]here a school district has provided a [family] with some forms of relief,
but not with all of the specific relief requested . . . [its] claims are not moot.” Suggs v. Dist. of
Columbia, 679 F. Supp. 2d 43, 54 (D.D.C. 2010) (citing Lesesne v. Dist. of Columbia, 447 F.3d
828, 833 (D.C. Cir. 2006)); see also Theodore v. Dist. of Columbia, 655 F. Supp. 2d 136, 144
(D.D.C. 2009) (declining to dismiss as moot unresolved claims, though the District had provided
partial relief to plaintiffs).

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This Court, when it addresses plaintiffs’ claims on the merits, ultimately may
conclude that the Hearing Officer was correct in determining that placement at the Lab School
was unnecessary. If, however, the Court finds that the Hearing Officer’s decision was in error,
the Court may grant plaintiffs’ request for reimbursement or prospective placement at the Lab
School, or both. As the Court’s decision on this matter likely will “affect the parties’ rights” and
“have a more-than-speculative chance of affecting them in the future,” Kifafi v. Hilton Hotels
Retirement Plan, 701 F.3d at 724, plaintiffs’ claims are not moot.

B. Exhaustion of Administrative Remedies
The District next contends that (a) by not requesting an administrative due process
hearing regarding the IEP newly revised in October 2012, and (b) by failing to file an
administrative due process complaint relating to the 2012-2013 school year, plaintiffs have failed
to exhaust their administrative remedies. Def.’s Mot. at 8. The District argues that “[t]o permit
Plaintiffs to contend – as they do in this action – that the student’s current educational program is
inappropriate would circumvent these statutory requirements.” Id. at 10.
Defendants correctly note that plaintiffs cannot bring this suit under the IDEA if
they did not seek relief through the appropriate administrative channels. “[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.” Douglass v. Dist. of
Columbia, 605 F. Supp. 2d 156, 165 (D.D.C. 2009) (quoting Cox v. Jenkins, 878 F.2d 414, 419
(D.C. Cir. 1989)). Thus, a court “cannot address an issue that was not first presented to the
hearing officer.” Roark ex. Rel. Roark v. Dist. of Columbia, 460 F. Supp. 2d 32, 43 (D.D.C.
2006) (internal citations omitted).

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The problem with the District’s argument is that the issues presented in this action
– whether plaintiffs are entitled to reimbursement for tuition expenses and costs and prospective
placement at the Lab School – were in fact presented to the Hearing Officer in the first instance.
See Compl. ¶ 62. Defendants have cited no authority in support of their contention that parents
must recommence the administrative appeal process after every revision to a child’s IEP. Nor
have they pointed to any statute or regulation requiring plaintiffs to renew or refile their
administrative complaint every school year. In the absence of some legal authority suggesting
that plaintiffs were required to refile an administrative complaint, the Court finds that the
plaintiffs have exhausted their administrative remedies with respect to the claims presented.

IV. CONCLUSION
In light of the foregoing, the Court concludes that plaintiffs’ claims are not moot
and that plaintiffs properly exhausted their administrative remedies. Accordingly, the Court will
deny the District’s Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. An
Order consistent with this Opinion will issue this same day.

/s/___________________________
PAUL L. FRIEDMAN
United States District Judge

DATE: April 10, 2013

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