DISTRICT OF COLUMBIA v. KIRKSEY-HARRINGTON

Filing 19

ORDER ADOPTING IN FULL 18 REPORT AND RECOMMENDATIONS; GRANTING the defendant's 12 Cross-Motion for Summary Judgment; DENYING the plaintiff's 10 Motion for Summary Judgment. See Order for further details. Signed by Judge Beryl A. Howell on February 4, 2015. (lcbah3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DISTRICT OF COLUMBIA,
Plaintiff,
Civil Action No. 14-180 (BAH) (AK)
v.
Judge Beryl A. Howell
ALICE KIRKSEY-HARRINGTON,
Defendant.
MEMORANDUM AND ORDER
The plaintiff, District of Columbia, brought this appeal seeking to overturn a November
14, 2013 Hearing Officer Determination (“HOD”) finding that the plaintiff improperly denied
the defendant, Alice Kirksey-Harrington, parent of “D.K.,” due process rights under the
Individuals with Disabilities Act and the Individuals with Disabilities in Education Improvement
Act (collectively, “IDEA”) and D.C. Law. Specifically, the hearing officer found that “[t]he
[Plaintiff] unilaterally determined the Student [D.K.] would be moved from the Non-Public
School to Attending School when it refused to place [D.K.] in the only specific program the IEP
team discussed when it determined to change his educational placement.” See Report and
Recommendation (“R&R”) at 5, ECF No. 18 (quoting Admin. Record, at 14). The plaintiff
appealed the decision on the grounds that it was “contrary to the IDEA, the case law in this
District that allows DCPS the discretion to select the school a student will attend, and the
municipal regulations which give local schools priority over private schools for implementing
students’ IEPs.’” Id.
The case was referred to Magistrate Judge Kay, due to his current assignment to a related
case between the parties, Kirksey-Harrington v. District of Columbia, Case No. 13-2029, for full

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case management. See Referral to Magistrate Judge, ECF No. 5.1 Thereafter, the parties crossmoved for summary judgment. See Pl.’s Mot. Summ J., ECF No. 10; Def.’s Cross-Mot. Summ
J., ECF No. 12.
On January 14, 2015, the Magistrate Judge issued an R&R, which recommended that the
plaintiff’s Motion for Summary Judgment be denied and the defendant’s Cross-motion for
Summary Judgment be granted. See R&R at 24. The R&R found that the hearing officer did not
err in concluding: (1) “that Defendant was unable to effectively evaluate whether Dunbar High
School was capable of implementing D.K.’s IEP,” id. at 19, and (2) that Kennedy at Dunbar and
Dunbar High School’s implementation of the IEP were not equivalent, id. at 24 (“Plaintiff has
not demonstrated by a preponderance of the evidence that the Hearing Officer erred in finding
that there were differences in educational programming that favor the selection of Kennedy at
Dunbar over Dunbar High School.”). Consequently, the R&R recommended that the HOD
decision to place D.K. at Kennedy at Dunbar for School year 2013-2014 be upheld. See R&R at
24. In addition, the R&R recommended that the defendant be considered as a prevailing party
for the purposes of recovering attorney’s fees in connection with the due process hearing. Id.
The R&R cautioned the parties that failing to file a timely objection within 14 days of the
party’s receipt of the R&R, could result in their waiving the right to appeal an order of the
District Court adopting the recommendations. See id. at 25. No objection to the R&R has been
timely filed, and the time to file such an objection has lapsed, see Local Civil Rule 72.3(b), and
thus all objections are deemed waived. See, e.g., Thomas v. Arn, 474 U.S. 140, 149–55 (1985).
The Court, upon independent consideration of the pending motions and the entire record
herein, fully concurs with the recommendations made in the R&R. Accordingly it is hereby
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The related matter, Kirksey-Harrington v. District of Columbia, Case No. 13-2029, was consolidated with the
instant matter, District of Columbia v. Kirksey-Harrington, Case No. 14-180. See Case No. 13-2029, Minute Order,
dated July 30, 2014.

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ORDERED that the Report and Recommendation, ECF No. 18, is ADOPTED in full;
and it is further
ORDERED that, for the reasons stated in the Report and Recommendation, the
Plaintiff’s Motion for Summary Judgment, ECF No. 10, is DENIED; and it is further
ORDERED that, for the reasons stated in the Report and Recommendation, the
Defendant’s Cross-Motion for Summary Judgment, ECF No. 12, is GRANTED; and it is further
ORDERED that, for the reasons stated in the Report and Recommendation, the
Defendant is considered the prevailing party for purposes of recovering attorney’s fees incurred
in connection with the Due Process Hearing; and it is further
ORDERED that the parties shall file a joint status report, by February 11, 2015,
proposing a schedule to govern any further proceedings in this matter.
SO ORDERED.
Digitally signed by Hon. Beryl A.
Howell
DN: cn=Hon. Beryl A. Howell,
o=U.S. District Court for the
District of Columbia, ou=United
States District Court Judge,
email=[e-mail]
courts.gov, c=US
Date: 2015.02.04 18:43:58 -05'00'

Date: February 4, 2015

_________________________
BERYL A. HOWELL
United States District Judge

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