BROWN v. DISTRICT OF COLUMBIA et al

Filing 57

MEMORANDUM OPINION AND ORDER: Upon consideration of Defendant District of Columbia's motion for reconsideration 39 , it hereby ORDERED that the motion is DENIED. See document for details. Signed by Judge Randolph D. Moss on 4/30/2019. (lcrdm3, )

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STEPHON BROWN,
Plaintiff,
v.

Civil Action No. 17-348 (RDM)

DISTRICT OF COLUMBIA, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff Stephon Brown, a lifelong resident of the District of Columbia, was convicted of
a felony under the D.C. Code and incarcerated in a Bureau of Prisons (“BOP”) facility pursuant
to the National Capital Revitalization and Self Government Improvement Act of 1997, Pub. L.
No. 105-33, § 11201, 111 Stat. 251, 734 (1997) (codified at D.C. Code § 24-101) [hereinafter
“Revitalization Act”]. While incarcerated, Brown was not afforded “any special education
services” under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et
seq., because both the BOP and the District denied responsibility for providing him a free and
appropriate education (“FAPE”). Dkt. 25 at 1, 5. The BOP argued that, as a federal entity, it is
not subject to the IDEA, Dkt. 16 at 8–9, and the District argued that its responsibilities to Brown
ended when he entered into BOP custody, Dkt. 14 at 6–7. Caught in a legal limbo, Brown sued
both Defendants for violating the IDEA. Dkt. 1 (Compl.).
The Court previously held that, under the plain language of the IDEA, the District—and
not the BOP—was obligated to provide Brown a FAPE while he was in BOP custody. See
Brown v. District of Columbia, 324 F. Supp. 3d 154, 159–60, 162 (D.D.C. 2018). The District
now asks the Court to reconsider that decision, arguing that (1) § 1415(k)(6) of the IDEA

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“precludes” the Court’s interpretation “because the Court’s interpretation would . . . conflict with
the legitimate law enforcement aims of the BOP and the Superior Court for the District of
Columbia,” Dkt. 39 at 1; (2) the Court misconstrued the District’s argument as positing that the
Revitalization Act impliedly repealed the IDEA as applied to D.C. felons incarcerated by the
BOP, id. at 13; and (3) in any event, the Revitalization Act did, in fact, shift responsibility from
the District to the BOP for the education of D.C. felons incarcerated by the BOP, id. at 14–16.
The Court is unpersuaded and will, accordingly, DENY the District’s motion for reconsideration.
Dkt. 39.
I. BACKGROUND
The background of this matter is discussed in detail in Magistrate Judge Harvey’s Report
and Recommendation (“R&R”), Dkt. 25, and in this Court’s prior opinion, see Brown, 324 F.
Supp. 3d at 158–59. To summarize, Plaintiff is a lifelong resident of the District who has been
eligible for special education and related services since elementary school. Id. at 158. In 2014,
when he was eighteen, Plaintiff was arrested and charged with violating D.C. law. Id. While
awaiting trial, Plaintiff was held at the D.C. Central Detention Facility, where he continued to
receive special education services pursuant to his Individualized Education Program (“IEP”).
Dkt. 25 at 5. After he was tried and convicted as an adult, however, Plaintiff was transferred to
the Hazelton Federal Correctional Institution (“FCI”), and those services ceased. Id. Only after
his release in November 2016, when Plaintiff resumed his high school education, did he once
again receive special education services pursuant to the IDEA. Id.
Shortly before his release from FCI Hazelton, Plaintiff filed a due process complaint
against the District and the BOP, alleging that he was denied access to a FAPE while
incarcerated. Id. at 6. The Hearing Officer dismissed Plaintiff’s complaint against the BOP on

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the ground that the federal government is not subject to the IDEA and dismissed his complaint
against the District on the ground that the IDEA does not impose any responsibilities on state or
local officials while an individual with disabilities is incarcerated at a federal correctional
facility. Id. at 6–8. Plaintiff then brought suit in this Court, seeking to set aside the Hearing
Officer’s determination, and the Court referred the matter to a magistrate judge for an R&R.
Brown, 324 F. Supp. 3d at 158.
As explained in greater detail in this Court’s prior opinion, Magistrate Judge Harvey
rejected the Hearing Officer’s conclusion that the combination of the IDEA and the
Revitalization Act created a “Special Education No Man’s Land” in which neither the BOP nor
the District has any obligation to provide benefits under the IDEA to individuals convicted of
violating D.C. law who are incarcerated at a BOP facility. Id. The R&R concluded that the
IDEA does not apply to the BOP; rather, the statute applies only to states eligible to receive
federal funds under the IDEA. Dkt. 25 at 14–20. That conclusion, however, did not leave
children incarcerated in federal facilities without IDEA benefits because the R&R reasoned that
“a FAPE is triggered by a child’s residency,” and that obligation is not terminated when the child
is in federal custody. Id. at 21.
Plaintiff filed timely objections to the R&R’s conclusion that the IDEA does not bind the
BOP, Dkt. 26, and the District filed timely objections to the R&R’s conclusion that its
obligations under the IDEA continued while Plaintiff was held in BOP custody, Dkt. 27. The
Court adopted in full the R&R’s conclusion and analysis with respect to the BOP. Brown, 324 F.
Supp. 3d at 157. With respect to the District, the Court’s analysis differed from the R&R in two
respects. First, the Court concluded that it was unnecessary to resolve the question whether all
states are responsible for ensuring that their residents who are incarcerated in federal prisons

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receive FAPEs. Id. at 160. Although noting that the R&R’s reasoning carried “considerable
force,” the Court limited its analysis to the question whether children who are convicted as adults
for violations of D.C. law and who are incarcerated by the BOP pursuant to the Revitalization
Act are—like all other children serving prison sentences for state-law violations—entitled to
FAPEs. Id. Second, the Court concluded that it needed to resolve the question whether the
requirement that Plaintiff exhaust his administrative remedies under the Rehabilitation Act posed
a jurisdictional bar to that claim, and the Court concluded that the requirement, in this context, is
non-jurisdictional. Id. at 162–64. Having reached that conclusion, the Court went on to consider
Plaintiff’s Rehabilitation Act claim on the merits and agreed with the conclusion set forth in the
R&R that the claim lacked merit. Id. at 163. The Court, accordingly, granted the BOP’s motion
to dismiss and granted in part and denied in part the District’s motion to dismiss. Id.
Approximately a month later, the District filed the instant motion for reconsideration.
Dkt. 39. Plaintiff opposed that motion, Dkt. 47, and the District filed a reply brief, Dkt. 48.
II. LEGAL STANDARD
Because the Court has yet to enter final judgment, the District’s motion for
reconsideration is governed by Federal Rule of Civil Procedure 54(b), which permits the Court to
revisit any order that adjudicates “fewer than all the claims or rights and liabilities of fewer than
all the parties . . . at any time” before the entry of final judgment. Fed. R. Civ. P. 54(b).
Reconsideration of interlocutory orders is permitted “as justice requires.” Cobell v. Jewell, 802
F.3d 12, 25 (D.C. Cir. 2015) (citation omitted). Courts in this Circuit have recognized that relief
is appropriate “when the movant demonstrates: ‘(1) an intervening change in the law; (2) the
discovery of new evidence not previously available; or (3) a clear error in the first order.’”
Murphy v. Exec. Office for U.S. Attorneys, 11 F. Supp. 3d 7, 8 (D.D.C. 2014) (quoting Zeigler v.

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Potter, 555 F. Supp. 2d 126, 129 (D.D.C. 2008)); see also Keystone Tobacco Co. v. U.S.
Tobacco Co., 217 F.R.D. 235, 237 (D.D.C. 2003). Although the decision whether to reconsider
an order lies within the Court’s sound discretion, considerations of judicial economy and the
obligation of the courts “to secure the just, speedy, and inexpensive determination of every
action,” Fed. R. Civ. P. 1, require “good reason” before reopening matters once resolved. In Def.
of Animals v. Nat’l Insts. of Health, 543 F. Supp. 2d 70, 76 (D.D.C. 2008).
II. ANALYSIS
The District moves for reconsideration on three grounds. First, it argues that the Court
“failed to address the District’s argument regarding the implications of 20 U.S.C. § 1415(k)(6),”
which, according to the District, precludes the application of the IDEA to individuals in BOP
custody. Dkt. 39 at 5 (capitalization omitted); see also id. at 5–13; Dkt. 48 at 3. Second, the
District contends that the Court’s holding that the Revitalization Act did not impliedly repeal the
IDEA as applied to D.C. Code felons incarcerated by the BOP “was a question not squarely
presented to the Court and [was] not necessary to resolving the parties’ dispute.” Dkt. 39 at 13–
14. Third, the District argues that “reading the relevant statutes all together, the District ceased
being responsible for the education of D.C. Code felons in BOP custody by application of the
Revitalization Act.” Dkt. 48 at 2. For the reasons explained below, the Court is unpersuaded.
A.

Subsection 1415(k)(6) of the IDEA
The District first contends that the Court failed to address one of its central arguments—

that 20 U.S.C. § 1415(k)(6) precludes the District from providing a FAPE to a child convicted of
violating D.C. law who is incarcerated by the BOP. That subsection of the IDEA provides:
Nothing in this subchapter shall be construed to prohibit an agency from
reporting a crime committed by a child with a disability to appropriate
authorities or to prevent State law enforcement and judicial authorities from

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exercising their responsibilities with regard to the application of Federal and
State law to crimes committed by a child with a disability.
Id. According to the District, because “a function of the Superior Court for the District of
Columbia is to sentence felons, like . . . Brown, to BOP custody;” because “[s]uch persons shall
be subject to any law or regulation applicable to persons committed for violations of laws of the
United States consistent with the sentence imposed;” and because several provisions of the IDEA
are incompatible with federal imprisonment, § 1415(k)(6) precludes application of the IDEA to
those held in BOP custody. Dkt. 39 at 7–9.
Failing to consider or misunderstanding an important argument is, to be sure, a proper
ground for reconsideration. See King v. U.S. Dep’t of Justice, 292 F. Supp. 3d 182, 187 (D.D.C.
2017). That, however, is not what happened here. Although the District is correct that the Court
did not discuss § 1415(k)(6) in its opinion, the District ignores the fact that the Court adopted the
portion of the R&R that considered—and rejected—the District’s § 1415(k)(6) argument. In the
words of the R&R:
Finally, the District of Columbia asserts that it “lacks authority to control [the]
BOP’s provision of educational instruction” and that the IDEA may not be
interpreted “to prevent State law enforcement and judicial authorities [from]
exercising their responsibilities with regard to the application of Federal and
State law to crimes committed by a child with a disability.” However, it does
not explain how requiring it to abide by statutory requirements to provide a
FAPE to Plaintiff would so interfere. It is worth noting that the IDEA does not
require the District of Columbia to send personnel and supplies to federal
prisons in order to fulfill its obligations, to “force[] . . . [the] BOP to permit the
District to educate [Plaintiff],” or to force[] . . . [the] BOP to enter into some
sort of agreement regarding his education.” . . . Among the possible forms of
relief are “the establishment of a fund to be spent on the child’s education,” a
funding agreement with a contractor or the BOP to provide Plaintiff’s FAPE,
or post-incarceration compensatory educational services to make up for the
failure to provide Plaintiff a FAPE while he was in BOP custody.
Dkt. 25 at 26–27 (internal citations omitted). Without pointing to any other “intervening change
in the law,” “discovery of new evidence,” or “clear error,” Murphy, 11 F. Supp. 3d at 8, the
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District is seeking to rehash the same argument it unsuccessfully made before the magistrate
judge and before this Court. That does not constitute a “good reason” to reopen the Court’s
decision.
But even if the Court were again to address the District’s argument on the merits, the
result would not change. The District’s motion for reconsideration fails to explain why the
District’s obligation to provide Brown a FAPE would “prevent State law enforcement and
judicial authorities from exercising their responsibilities with regard to the application of Federal
and State law to crimes [he] committed.” 20 U.S.C. § 1415(k)(6). To be sure, the Revitalization
Act charges the BOP with “the custody, care, subsistence, education, treatment[,] and training”
of D.C. offenders, like Brown. D.C. Code § 24-101(b). But nothing in the Revitalization Act or
in 18 U.S.C. § 3621(b), which sets forth the BOP’s responsibilities for federal inmates’ care,
precludes the District from having a concurrent obligation—under the IDEA—to provide Brown
a FAPE. Contrary to the District’s assertions, the Court’s interpretation of the IDEA does not
impinge on the operations of the BOP. Rather, it imposes an obligation on the District to work
with the BOP to provide qualifying individuals a FAPE and, if that is not possible, to provide
compensatory education post-incarceration or other appropriate benefits.
With respect to the first of these options, it rings hollow for the District to insist that it
cannot cooperate with the BOP to provide a FAPE to D.C. Code felons incarcerated in federal
prison, without pointing to any evidence that it has ever tried to do so. See Dkt. 47 at 6 n.2
(Plaintiff noting that “[t]he District has never tried to conduct . . . evaluations, or to cooperate
with [the] BOP to ensure the evaluations take place, and it can present no evidence that to do so
is impossible”). The District argues, for example, that the BOP’s telephone policy would
preclude inmates from participating in an IEP meeting conference call. Dkt. 48 at 4–5. But, the

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District provides no evidence that the BOP would refuse to provide any accommodations to
those who qualify for special education services under the IDEA. 1 With respect to the second
option, the District’s argument is circular: It contends that compensatory education is available
only to those children who have been denied a FAPE, and because Plaintiff was in the BOP’s
custody, he did not have a right to a FAPE in the first place. Dkt. 39 at 12. The District fails to
identify any authority, moreover, that would support such a crabbed view of the IDEA, which
was enacted “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 and [to] prepare them for further education, employment, and independent living,”
20 U.S.C. § 1400(d)(1)(A) (emphasis added).
Finally, it bears note that the District’s argument stretches a provision of the IDEA
designed to preserve the authority of state enforcement and judicial authorities to enforce the
criminal law against children with disabilities to the snapping point. Although the Court has
little doubt that the District lacks authority to control or to direct the day-to-day operations of the
BOP, the District cites no authority for the proposition that § 1415(k)(6)—which preserves state
authority—is the source of such a restriction. In any event, nothing in § 1415(k)(6) or in any
other provision of law that the District cites precludes the District from making efforts to work
cooperatively with the BOP to provide children with disabilities who are serving D.C. sentences
1

The District does cite—in its objections to the R&R, see Dkt. 27 at 20—a case in which its
“designated education providers” were denied access to a “D.C. public school student receiving
special education services” who was convicted under Maryland law and incarcerated in a
Maryland prison. Hester v. District of Columbia, 505 F.3d 1283, 1284 (D.C. Cir. 2007). There,
the D.C. Circuit held that the District did not breach its agreement to provide the plaintiff with
special education services when it attempted, but failed, to gain access to him in Maryland
prison. Id. at 1287. Hester has no bearing, however, on whether the BOP will permit the
District access to D.C. offenders, like Brown. In any event, the decision does not excuse the
District from attempting to work with the BOP to provide special education services.
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with the benefits to which they are entitled under the IDEA and, if necessary, from providing
incarcerated children compensatory education after they are released.
B.

Implied Repeal
The District also argues that the Court erred in treating the question presented by this

case as whether the Revitalization Act impliedly repealed the IDEA as applied to children
convicted of crimes in the District and held by the BOP. Dkt. 48 at 2. That is incorrect. As
Plaintiff observes, the issue of implied repeal was front and center in the parties’ briefing. The
District insists that it did not argue implied repeal but, instead, argued that “reading the relevant
statutes all together, the District ceased being responsible for the education of D.C. Code felons
in BOP custody by application of the Revitalization Act.” Dkt. 48 at 2 (emphasis omitted). That
is merely calling a rose by another name; if there is any distinction between the contention that
the Revitalization Act terminated the District’s IDEA obligations to D.C. felons and the
contention that the Revitalization Act impliedly repealed the IDEA to the extent it applied to
D.C. felons, the distinction is a fine one, and it is of no substantive import.
Regardless of the framing, the crux of the District’s position is that the Revitalization Act
supersedes the plain language of the IDEA, which requires that all states (including the District)
that receive covered federal grants ensure that “[a] free appropriate public education is available
to all children with disabilities residing in the State,” 20 U.S.C. § 1412(a)(1)(A). The text of the
IDEA, moreover, affirms that this obligation continues while children with disabilities convicted
under state law are incarcerated in adult prisons. See id. § 1412(a)(11)(C) (addressing
assignment of responsibility for such children); id. § 1414(d)(7) (removing certain IDEA
requirements for such children); id. § 1415(m)(1)(D) (providing that “all rights accorded to
parents under this subchapter transfer to children who are incarcerated in an adult or juvenile

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[f]ederal, [s]tate, or local correctional institution”). According to the District, the Revitalization
Act supersedes the IDEA, because it assigns the BOP responsibility for “the custody, care,
subsistence, education, treatment[,] and training” of those sentenced pursuant to D.C. law. D.C.
Code § 24-101. That is, under the District’s theory of the case, the Revitalization Act may not
have mentioned the IDEA by name, but it relieved the District of its preexisting obligation to
provide a FAPE for all disabled children in the District, including those who are incarcerated.
The Court understood and rejected that argument.
C.

Revitalization Act
Regardless of whether the District’s argument is framed as an implied repeal or a

reassignment of the obligation to comply with the IDEA from the District to the BOP, it is
unpersuasive. To support its position, the District again points to the text of the Revitalization
Act and the its legislative history. See Dkt. 39 at 14–15. According to the District, both
demonstrate that Congress intended for the “BOP to assume functions normally performed by
state governments.” Id. at 15. As the Court previously explained, however, the fact that
Congress intended the BOP to assume the day-to-day costs of caring for D.C. offenders does not
preclude the IDEA from imposing a separate obligation on the District to provide incarcerated
D.C. felons with a FAPE. Brown, 324 F. Supp. 3d at 161. It reads too much into the lone
appearance of the word “education” in the Revitalization Act to conclude that Congress intended,
without elaboration, to reassign all of the District’s IDEA obligations with respect to incarcerated
children to the BOP, particularly in light of the fact that the IDEA is structured as a condition on
receipt of federal grants, which the District continues to receive. See Whitman v. Am. Trucking
Ass’n, 531 U.S. 457, 468 (2001) (“Congress . . . does not alter the fundamental details of a
regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide

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elephants in mouseholes.”); see also Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S.
291, 295 (2006) (“Our resolution of the question presented in this case is guided by the fact that
Congress enacted the IDEA pursuant to the Spending Clause.”). And, as the Court has
previously explained, it is equally untenable to conclude that Congress, again without
elaboration, intended to deny IDEA benefits to disabled children convicted of violating D.C. law,
unlike disabled children from every other state that receives IDEA grants. To the contrary, the
text of the IDEA makes clear that Congress intended, subject only to express limitations, to
provide “all children with certain physical or intellectual disabilities” access to a FAPE, Fry v.
Napoleon Cmty. Schs., 137 S. Ct. 743, 748 (2017) (emphasis added), including children who are
convicted as adults under state law and incarcerated in adult prisons, cf. 20 U.S.C.
§ 1412(a)(11)(C); id. § 1414(d)(7); id. § 1415(m)(1)(D).
Nothing contained in the Revitalization Act or the legislative history that the District
invokes constitutes the type of clearly expressed exception that would relieve the District of the
obligation it bears as an IDEA-grant recipient. See FCC v. NextWave Personal Commc’ns Inc.,
537 U.S. 293, 304 (2003) (“When two statutes are capable of co-existence, it is the duty of the
courts, absent a clearly expressed congressional intention to the contrary, to regard each as
effective.” (citation and alteration omitted)). The Court, accordingly, reaffirms its conclusion, as
explained in greater detail in its prior decision and in the R&R, that the District remained
obligated to provide Plaintiff with a FAPE while he was incarcerated or to provide him with
compensatory education after he was released, as required by the IDEA.
CONCLUSION
For the foregoing reasons, the Court the District’s motion for reconsideration, Dkt. 39, is
hereby DENIED.

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SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: April 30, 2019

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