District of Columbia v. Kirksey-Harrington

• Court: District Court, District of Columbia
• Decided: February 4, 2015
• Docket: Civil Action No. 2014-0180
• Status: Published

Opinion

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

1 case management. See Referral to Magistrate Judge, ECF No. 5.1 Thereafter, the parties cross-

moved 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

1 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.

2 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 Date: February 4, 2015 DN: cn=Hon. Beryl A. Howell, o=U.S. District Court for the District of Columbia, ou=United States District Court Judge, email=Howell_Chambers@dcd.us courts.gov, c=US Date: 2015.02.04 18:43:58 -05'00' _________________________ BERYL A. HOWELL United States District Judge