UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
A.M., a minor, by his parent and next friend, TRACY DAVENPORT, Case No. 11-cv-1506 (ABJ) (AK) Plaintiffs,
v.
DISTRICT OF COLUMBIA
Defendant.
MEMORANDUM OPINION
Before the Court is Plaintiffs’ Motion for Discovery [5]. Plaintiffs filed a Memorandum
of Points and Authorities in Support of the Motion [5-2] on January 6, 2012. Defendant filed an
Opposition to the Motion for Discovery [6] on January 20, 2012. Plaintiffs’ Motion requests that
they be provided sixty days to conduct discovery in this case. Based on the following reasons,
Plaintiffs’ Motion will be denied.
I. BACKGROUND
Plaintiffs originally brought suit against the District of Columbia alleging that the District
of Columbia Public Schools (“DCPS”) denied A.M. a free appropriate public education
(“FAPE”), as required under the Individuals with Disabilities in Education Act (“IDEA”), 20
U.S.C. §§ 1400 et seq. (Compl. [1] at ¶ 1.) A.M. is an eight-year old student with special
-1- education needs. (Id. at ¶ 4.) Tracy Davenport (“Davenport”), A.M.’s parent, believed that A.M.
was not making progress under his IEP, so she arranged for him to attend Kingsbury Day School
(“Kingsbury”), a private school that services children with disabilities, for the 2010-11 school
year. (Id. at ¶ 18-19.)
A.M. continued to be enrolled in DCPS as a non-attending student, which required DCPS
to revise A.M.’s IEP during the 2010-11 school year. Davenport asserts that the revised IEP was
also deficient, and Plaintiffs filed a due process complaint against DCPS on March 17, 2011.
(See id. at ¶¶ 22-51.) A hearing was held before Hearing Officer James Gerl (“Hearing Officer”)
on May 11, 2011. (Id. at ¶¶ 51, 54.) On May 21, 2011, the Hearing Officer issued a decision
dismissing Plaintiffs’ due process complaint. (Id. at ¶ 68.)
Plaintiffs filed a complaint in this Court seeking to overturn that decision. Plaintiffs
allege five counts, including: (1) DCPS failed to provide A.M. with a FAPE; (2) the Hearing
Officer failed to order an appropriate program and placement for A.M.; (3) the Hearing Officer
committed factual and legal errors in his Decision; (4) the Hearing Officer violated Plaintiffs’
due process rights by showing clear and material bias against Plaintiffs and preventing them from
presenting their case; and (5) the D.C. Office of State Superintendent of Education (“OSSE”)
violated Plaintiffs’ rights by failing to appropriately hire, train and monitor the Hearing Officer.
(Id. at ¶¶ 84-94.)
Plaintiffs request that the Court vacate the decision of the Hearing Officer, order DCPS to
place and fund A.M. at Kingsbury for the 2011-12 school year, and reimburse Plaintiffs for
tuition and costs at Kingsbury for the 2010-11 school year. (Id. at pp. 15-16.) Further, Plaintiffs
seek a judgment in their favor and declaratory relief that Defendants violated their rights. (Id.)
-2- II. DISCUSSION
20 U.S.C. § 1415(i)(2) allows a party in an administrative due process hearing to
challenge the decision of the hearing officer in federal court. In addition to reviewing the record
from the administrative hearing, the federal court “shall hear additional evidence at the request of
a party.” 20 U.S.C. § 1415(i)(2)(C)(ii). Despite the statute’s use of the word “shall,” district
courts have discretion to hear and take into account additional evidence under the IDEA. Gill v.
District of Columbia, 751 F. Supp. 2d 104, 113 (D.D.C. 2010) (citing Reid ex rel Reid v. District
of Columbia, 401 F.3d 516, 526 (D.C. Cir. 2005). See also E.M. ex rel E.M. v. Pajaro Valley
Unified School Dist. Office of Admin. Hearings, 652 F. 3d 999, 1005 (9th Cir. 2011) (“evidence
that is non-cumulative, relevant, and otherwise admissible constitutes ‘additional evidence’ that
the district court ‘shall’ consider under 20 U.S.C. § 1415(i)(2)(C)(ii).”)
In the motion before the Court, Plaintiffs wish to open discovery for a period of sixty
days. (Memo of Points and Authorities in Support of Pls.’ Mot. for Discovery (“Pls.’ Memo”) at
1.) Plaintiffs seek information regarding the Hearing Officer, including (1) the reason he
allegedly truncated some witnesses’ testimony and refused to allow other witnesses to testify; (2)
his schedule and travel around the date of the hearing; and (3) why he is no longer a hearing
officer with OSSE as of December 31, 2011. (Id. at 3-4.) Further, Plaintiffs want information
regarding the Chief Hearing Officer’s presence at the hearing, including the reason for his
attendance and his observation notes. (Id. at 3.)
The information Plaintiffs seek through discovery is not in the administrative record.
(Pls.’ Memo at 5.) Therefore, the information could only be considered in the review of the
Hearing Officer’s Decision as “additional evidence.” See 20 U.S.C. § 1415(i)(2)(C). As
-3- additional evidence, this Court has discretion to allow the introduction of such evidence. See
Gill, 751 F. Supp. 2d, at 113 (D.D.C. 2010).
This Court’s role is to determine whether the Hearing Officer’s Decision was correct
based on the IDEA and the relevant facts. See 20 U.S.C. § 1415(i)(2). The Hearing Officer
determined that DCPS’ IEP and proposed placement did not deny A.M. a FAPE and that DCPS
did not need to reimburse A.M.’s parent for tuition at Kingsbury for the 2010-11 school year.
(Compl. at ¶ 2.)
Much of the information Plaintiffs seek, such as the Hearing Officer’s schedule and why
he no longer works as a hearing officer, goes to the qualifications of the Hearing Officer and how
much time he took in making his determination. (See Pls. Memo at 3-4.) Similarly, Plaintiffs
seek facts about why the Chief Hearing Officer observed part of the proceedings and how hearing
officers are trained - information that could be used to suggest that the Hearing Officer’s
superiors believed he was doing a poor job. (See Pls.’ Memo at 3.) Plaintiffs argue that this
information goes to the claims in their Complaint alleging that the Hearing Officer’s
determination was incorrect because he was biased against Plaintiffs and because OSSE failed to
appropriately train the Hearing Officer. (Id. at 2-4.)
Plaintiffs seek a reversal of the placement and funding determination for A.M. as well as
declaratory relief that their rights were violated. Whether the Hearing Officer was biased or not
properly trained is not before this Court. The Court’s statutory responsibility is to review
whether the Hearing Officer’s Decision was correct and whether Plaintiffs should be granted the
relief they seek. Further, the presence of the Chief Hearing Officer and his purpose for attending
the hearing has no bearing on whether the Hearing Officer came to the correct decision.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
A.M., a minor, by his parent and next friend, TRACY DAVENPORT, Case No. 11-cv-1506 (ABJ) (AK) Plaintiffs,
v.
DISTRICT OF COLUMBIA
Defendant.
MEMORANDUM OPINION
Before the Court is Plaintiffs’ Motion for Discovery [5]. Plaintiffs filed a Memorandum
of Points and Authorities in Support of the Motion [5-2] on January 6, 2012. Defendant filed an
Opposition to the Motion for Discovery [6] on January 20, 2012. Plaintiffs’ Motion requests that
they be provided sixty days to conduct discovery in this case. Based on the following reasons,
Plaintiffs’ Motion will be denied.
I. BACKGROUND
Plaintiffs originally brought suit against the District of Columbia alleging that the District
of Columbia Public Schools (“DCPS”) denied A.M. a free appropriate public education
(“FAPE”), as required under the Individuals with Disabilities in Education Act (“IDEA”), 20
U.S.C. §§ 1400 et seq. (Compl. [1] at ¶ 1.) A.M. is an eight-year old student with special
-1- education needs. (Id. at ¶ 4.) Tracy Davenport (“Davenport”), A.M.’s parent, believed that A.M.
was not making progress under his IEP, so she arranged for him to attend Kingsbury Day School
(“Kingsbury”), a private school that services children with disabilities, for the 2010-11 school
year. (Id. at ¶ 18-19.)
A.M. continued to be enrolled in DCPS as a non-attending student, which required DCPS
to revise A.M.’s IEP during the 2010-11 school year. Davenport asserts that the revised IEP was
also deficient, and Plaintiffs filed a due process complaint against DCPS on March 17, 2011.
(See id. at ¶¶ 22-51.) A hearing was held before Hearing Officer James Gerl (“Hearing Officer”)
on May 11, 2011. (Id. at ¶¶ 51, 54.) On May 21, 2011, the Hearing Officer issued a decision
dismissing Plaintiffs’ due process complaint. (Id. at ¶ 68.)
Plaintiffs filed a complaint in this Court seeking to overturn that decision. Plaintiffs
allege five counts, including: (1) DCPS failed to provide A.M. with a FAPE; (2) the Hearing
Officer failed to order an appropriate program and placement for A.M.; (3) the Hearing Officer
committed factual and legal errors in his Decision; (4) the Hearing Officer violated Plaintiffs’
due process rights by showing clear and material bias against Plaintiffs and preventing them from
presenting their case; and (5) the D.C. Office of State Superintendent of Education (“OSSE”)
violated Plaintiffs’ rights by failing to appropriately hire, train and monitor the Hearing Officer.
(Id. at ¶¶ 84-94.)
Plaintiffs request that the Court vacate the decision of the Hearing Officer, order DCPS to
place and fund A.M. at Kingsbury for the 2011-12 school year, and reimburse Plaintiffs for
tuition and costs at Kingsbury for the 2010-11 school year. (Id. at pp. 15-16.) Further, Plaintiffs
seek a judgment in their favor and declaratory relief that Defendants violated their rights. (Id.)
-2- II. DISCUSSION
20 U.S.C. § 1415(i)(2) allows a party in an administrative due process hearing to
challenge the decision of the hearing officer in federal court. In addition to reviewing the record
from the administrative hearing, the federal court “shall hear additional evidence at the request of
a party.” 20 U.S.C. § 1415(i)(2)(C)(ii). Despite the statute’s use of the word “shall,” district
courts have discretion to hear and take into account additional evidence under the IDEA. Gill v.
District of Columbia, 751 F. Supp. 2d 104, 113 (D.D.C. 2010) (citing Reid ex rel Reid v. District
of Columbia, 401 F.3d 516, 526 (D.C. Cir. 2005). See also E.M. ex rel E.M. v. Pajaro Valley
Unified School Dist. Office of Admin. Hearings, 652 F. 3d 999, 1005 (9th Cir. 2011) (“evidence
that is non-cumulative, relevant, and otherwise admissible constitutes ‘additional evidence’ that
the district court ‘shall’ consider under 20 U.S.C. § 1415(i)(2)(C)(ii).”)
In the motion before the Court, Plaintiffs wish to open discovery for a period of sixty
days. (Memo of Points and Authorities in Support of Pls.’ Mot. for Discovery (“Pls.’ Memo”) at
1.) Plaintiffs seek information regarding the Hearing Officer, including (1) the reason he
allegedly truncated some witnesses’ testimony and refused to allow other witnesses to testify; (2)
his schedule and travel around the date of the hearing; and (3) why he is no longer a hearing
officer with OSSE as of December 31, 2011. (Id. at 3-4.) Further, Plaintiffs want information
regarding the Chief Hearing Officer’s presence at the hearing, including the reason for his
attendance and his observation notes. (Id. at 3.)
The information Plaintiffs seek through discovery is not in the administrative record.
(Pls.’ Memo at 5.) Therefore, the information could only be considered in the review of the
Hearing Officer’s Decision as “additional evidence.” See 20 U.S.C. § 1415(i)(2)(C). As
-3- additional evidence, this Court has discretion to allow the introduction of such evidence. See
Gill, 751 F. Supp. 2d, at 113 (D.D.C. 2010).
This Court’s role is to determine whether the Hearing Officer’s Decision was correct
based on the IDEA and the relevant facts. See 20 U.S.C. § 1415(i)(2). The Hearing Officer
determined that DCPS’ IEP and proposed placement did not deny A.M. a FAPE and that DCPS
did not need to reimburse A.M.’s parent for tuition at Kingsbury for the 2010-11 school year.
(Compl. at ¶ 2.)
Much of the information Plaintiffs seek, such as the Hearing Officer’s schedule and why
he no longer works as a hearing officer, goes to the qualifications of the Hearing Officer and how
much time he took in making his determination. (See Pls. Memo at 3-4.) Similarly, Plaintiffs
seek facts about why the Chief Hearing Officer observed part of the proceedings and how hearing
officers are trained - information that could be used to suggest that the Hearing Officer’s
superiors believed he was doing a poor job. (See Pls.’ Memo at 3.) Plaintiffs argue that this
information goes to the claims in their Complaint alleging that the Hearing Officer’s
determination was incorrect because he was biased against Plaintiffs and because OSSE failed to
appropriately train the Hearing Officer. (Id. at 2-4.)
Plaintiffs seek a reversal of the placement and funding determination for A.M. as well as
declaratory relief that their rights were violated. Whether the Hearing Officer was biased or not
properly trained is not before this Court. The Court’s statutory responsibility is to review
whether the Hearing Officer’s Decision was correct and whether Plaintiffs should be granted the
relief they seek. Further, the presence of the Chief Hearing Officer and his purpose for attending
the hearing has no bearing on whether the Hearing Officer came to the correct decision.
-4- Generally, parties have the ability to take discovery of information relevant to its claims or
defenses. See Fed. R. Civ. P. 26(b)(1). However, the information sought by Plaintiffs is
irrelevant to the question of whether Plaintiffs should obtain the relief they seek and is unlikely
to lead to the discovery of admissible evidence. Id.
One of Plaintiffs’ arguments deserves further mention. Plaintiffs assert that the Hearing
Officer cut off some of Plaintiffs’ witnesses and refused to allow other witnesses to testify. (Pls.’
Memo at 3.) Plaintiffs do not include any information in their brief regarding the Hearing
Officer’s alleged cutting off of Plaintiffs’ witnesses or refusal to allow witnesses to testify. If
Plaintiffs were improperly denied the opportunity to present evidence, they should advise this
Court of the specific evidence that was denied and whether the evidence would have been
presented at the administrative hearing through witness testimony, introduction of documents or
some other form. No discovery would be necessary to provide the Court with such information
because the information is already known to Plaintiffs and is in Plaintiffs’ possession. The
information Plaintiffs seek through discovery, however, is not relevant to whether the Hearing
Officer erroneously refused to hear certain testimony.
-5- III. CONCLUSION
For the preceding reasons, Plaintiffs’ Motion for Discovery will be denied. A separate
order will accompany this memorandum.
Date: March 16, 2012 /s/
ALAN KAY UNITED STATES MAGISTRATE JUDGE
-6-