                                UNITED STATES DISTRICT COURT
                                FOR THE DISTRICT OF COLUM BIA



     BARBARA THEODORE,

           Plaintiff,

                      v.                                       Civil Action No. 09-0667 (JDB)

     DISTRICT OF COLUM BIA, et al.,

           Defendants.




                                     M EM ORANDUM OPINION

         Plaintiff Barbara Theodore brings this action as parent and next friend of A.G. against the

District of Columbia and Michelle Rhee, the Chancellor of the District of Columbia Public Schools

("DCPS"). Theodore alleges that defendants have failed to provide A.G. with appropriate testing to

determine whether she is eligible for special educational services, thereby violating the Individuals with

Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-82. She also challenges a hearing officer's

determination ("HOD") that dismissed her case on December 6, 2009 pursuant to res judicata. Now

before the Court are plaintiff's and defendants' cross-motions for summary judgment pursuant to Fed.

R. Civ. P. 56. Upon consideration of the parties' motions, memoranda, and the entire record, and for

the reasons stated below, the Court will grant defendants' motion for summary judgment and deny

plaintiff's motion.

                                            BACKGROUND

I.       Statutory Background: The Individuals with Disabilities Education Act

         Congress passed the IDEA 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



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meet their unique needs." 20 U.S.C. § 1400(d)(1)(A). The IDEA provides funding to assist states in

implementing a "comprehensive, coordinated, multidisciplinary, interagency system of early

intervention services for infants and toddlers with disabilities and their families." 20 U.S.C. §

1400(d)(2).

        Under the IDEA, all states, including the District of Columbia, receiving federal education

assistance must establish policies and procedures to ensure that "[a] free appropriate public education

[FAPE] is available to all children with disabilities residing in the State." 20 U.S.C. § 1412(a)(1)(A).

The law defines FAPE as "special education and related services that (A) have been provided at public

expense, under public supervision and direction, and without charge; (B) meet the standards of the

State educational agency; (C) include an appropriate preschool, elementary school, or secondary school

education in the State involved; and (D) are provided in conformity with the individualized education

program required." Id. § 1401(9). Once a child is found to qualify, DCPS is required to develop and

implement an Individualized Education Program ("IEP") for him or her. Id. § 1414(d)(2)(A). The IEP

comprehensively describes the student's present academic level, details measurable annual goals for the

student, specifies necessary educational and related services, and establishes the extent to which the

student will participate in a regular education classroom. Id. § 1414(d)(1)(A)(i)(I)-(III).

        In order to implement the IEP, a team including the child's parents determines where the child

should be placed. Id. § 1414(e). If no public school can meet the child's needs, DCPS is required to

find an appropriate private school and cover the tuition for the child. Id. § 1412(a)(10)(B)(i); see Sch.

Comm. of Burlington v. Dep't of Educ. of Mass., 471 U.S. 359, 369 (1985). If a parent disagrees with

the IEP or the subsequent placement, he or she is entitled to an "impartial due process hearing"

conducted by the state or local educational agency. 20 U.S.C. § 1415(f)(1)(A). Any party aggrieved

by the hearing decision may bring a civil action challenging the decision in federal district court. Id. §


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1415(i)(2)(A).

II.    Factual Background

       The Court has previously detailed the history of this case in its September 2009 opinion and

thus will only briefly discuss the relevant facts here. See Theodore v. Dist. of Columbia, 655 F. Supp

2d 136 (D.D.C. 2009). A.G. is a fifteen-year-old resident of the District of Columbia and a student at

Wilson Senior High School. Defs' Renewed Mot. for Summ. J. and Reply in Opp'n to Pl's Renewed

Mot. for Summ. J. (Defs' Mot.) at 2; Administrative Record ("AR") filed December 17, 2009 at 45-55.

In response to A.G.'s performance problems in school, DCPS completed a psychological assessment of

A.G. at the request of Theodore. See Pl's Renewed Mot. for Summ. J. (Pl's Mot.) at 4; Defs' Mot. at 3;

AR at 45-55. The August 2007 report concluded that A.G. did not suffer from a learning disability

and thus was not eligible for special education services. Id. Specifically, the testing found that A.G.

had properly developed skills in reading, reading comprehension, math and writing and stated that

A.G.'s scores were not suggestive of ADHD. Defs' Mot. at 3; AR at 45-52.

       During the course of the 2007-2008 school year, A.G. continued to struggle in school. Pl's

Mot. at 4; AR at 12. On December 5, 2007, a multi-disciplinary team ("MDT") convened to review

the results of the August 2007 testing and to determine whether A.G. was eligible for special education

services. Pl's Mot. at 4; Defs' Mot. at 3; AR at 56-61. Theodore informed the MDT at this time that

A.G. had previously been diagnosed with attention deficit with hyperactive disorder ("ADHD") in

2001, but did not provide the team with any supporting documentation. Pl's Mot. at 4; Defs' Mot. at 3;

AR at 58. Ultimately, the December 2007 MDT concluded that A.G. was not eligible for special

education services. Id.

       In January 2008, Theodore requested that DCPS perform neuropsychological and other

examinations of A.G. Pl's Mot. at 4; Defs' Mot. at 3; AR at 75, 117. After DCPS denied Theodore's


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request, she filed her first due process hearing request (DPHR #1) in March 2008 alleging that DCPS

had denied A.G. a FAPE by failing to fund the additional testing. Pl's Mot. at 4; Defs' Mot. at 4; AR at

98-105. On April 17, 2008, a Hearing Officer Determination (HOD #1) was issued that dismissed

Theodore's complaint with prejudice on the ground that DCPS had properly concluded that A.G. was

ineligible for special educational services. Pl's Mot. at 4; Defs' Mot. at 4; AR at 98-105.

       In May 2008, Theodore filed a second DPHR (DPHR #2) alleging that DCPS had denied A.G.

a FAPE by failing to evaluate, determine eligibility for, and develop an appropriate IEP and placement

for her. Pl's Mot. at 5; Defs' Mot. at 4. A second HOD (HOD #2) in July 2008 found that DCPS had

properly evaluated A.G. and made a timely determination that A.G. was ineligible for special education

services. Id. In September 2008, Theodore requested an additional MDT meeting where she presented

letters from August 2008 indicating that A.G. had been diagnosed with ADHD in 2001. Pl's Mot. at 5-

6; Defs' Mot. at 4; AR at 77-78. DCPS again declined to fund additional testing and Theodore then

filed her third DPHR (DPHR #3). A third HOD (HOD #3), issued in December 2008, dismissed

Theodore's complaint as barred by res judicata after finding that DPHR #3 contained facts and

allegations that had already been addressed in the previous due process complaints and HODs. Pl's

Mot. at 6; Defs' Mot. at 5. After Theodore's motion for reconsideration was constructively denied, she

filed the complaint now before this Court on April 10, 2009.

       In its 2009 opinion, this Court dismissed several of Theodore's requests for relief as moot. See

Theodore, 655 F. Supp. at 144 (finding that Theodore's requests for additional evaluations and an IEP

meeting were moot because a judgment would not "presently affect the parties' rights"). The remaining

claim is Theodore's contention that an administrative hearing officer improperly rejected her allegation

that DCPS's failure to fund independent psychological testing for A.G. denied her a FAPE, and that

A.G. is thus entitled to compensatory education. After requesting additional briefing from the parties


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on the issue of res judicata, the Court can now resolve the parties' cross-motions for summary

judgment.

                                        STANDARD OF REVIEW

I.        Summary Judgment

          Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there

is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."

Fed. R. Civ. P. 56(a). The party seeking summary judgment bears the initial responsibility of

demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986). The moving party may successfully support its motion by identifying those portions

of "the record, including depositions, documents, electronically stored information, affidavits or

declarations, stipulations (including those made for purposes of motion only), admissions, interrogatory

answers, or other materials," which it believes demonstrate the absence of a genuine issue of material

fact. Fed. R. Civ. P. 56(c)(1); see Celotex, 477 U.S. at 323.

          In determining whether there exists a genuine dispute of material fact sufficient to preclude

summary judgment, the court must regard the non-movant's statements as true and accept all evidence

and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla

of evidence" in support of its position. Id. at 252. By pointing to the absence of evidence proffered by

the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322.

"If the evidence is merely colorable, or is not significantly probative, summary judgment may be

granted." Anderson, 477 U.S. at 249-50 (citations omitted). Summary judgment is appropriate if the

non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id.

at 252.


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II.       IDEA

          Under the IDEA, "[a]ny party aggrieved by the findings and decision" rendered during

administrative proceedings may "bring a civil action" in state or federal court without regard to the

amount in controversy. 20 U.S.C. § 1415(i)(2), (i)(3)(A). 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). On review of an HOD, the burden of proof

falls upon the party challenging the administrative determination, who must "at least take on the burden

of persuading the court that the hearing officer was wrong." Reid ex. rel. Reid v. Dist. of Columbia,

401 F.3d 516, 521 (D.C. Cir. 2005) (quoting Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir.

1989)).

          The preponderance-of-the-evidence standard of review, the Supreme Court has held, does not

authorize unfettered de novo review. Bd. of Educ. of Hendrick Hundson Cent. Sch. Dist. v. Rowley,

458 U.S. 176, 206 (1982). Rather, consideration of the record impliedly requires courts to give "due

weight" to the administrative proceedings, id., and "factual findings from the administrative

proceedings are to be considered prima facie correct." S.H. v. State-Operated Sch. Dist. of Newark,

336 F.3d 260, 270 (3d Cir. 2003). Therefore, courts may not substitute their own views for those of

the hearing officer, see Rowley, 458 U.S. at 206; Shaw v. Dist. of Columbia, 238 F.Supp. 2d 127, 136

(D.D.C. 2002), and a court upsetting a hearing officer's decision "must at least explain its basis for

doing so," Kerkam, 862 F.2d at 887. At the same time, "the district court's authority to 'hear additional

evidence at the request of a party,' and 'bas[e] its decision on the preponderance of the evidence' . . .

'plainly suggest[s] less deference than is conventional' in administrative proceedings." Reid, 401 F.3d

at 521 (quoting Kerkam, 862 F.2d at 887). A motion for summary judgment operates as a motion for


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judgment based on the evidence comprising the record and any additional evidence the Court may

receive. See Heather S. v. Wisconsin, 125 F.3d 1045, 1052 (7th Cir. 1997) ("[T]he motion for

summary judgment is simply the procedural vehicle for asking the judge to decide the case on the basis

of the administrative record").

                                              DISCUSSION

        Theodore argues that HOD #3 improperly dismissed her complaint after finding that the issues

raised were barred by res judicata. Res judicata involves two separate legal theories - - claim

preclusion and issue preclusion. "Claim preclusion generally refers to the effect of a prior litigation in

foreclosing successive litigation of the very same claim, whether or not re-litigation of the claim raises

the same issues as the earlier suit. Issue preclusion generally refers to the effect of a prior judgment in

foreclosing successive litigation of an issue of fact or law actually litigated and resolved in a valid court

determination essential to the prior judgment, whether or not the issue arises on the same or a different

claim." New Hampshire v. Maine, 532 U.S. 742, 748-49 (2001) (citing Restatement (Second) of

Judgments § § 17, 27, pp. 148, 250 (1980); D. Shapiro, Civil Procedure: Preclusion in Civil Actions

32, 46 (2001)). Only claim preclusion is at issue here.

        Claim preclusion seeks to "[protect] litigants from the burden of re-litigating an identical issue

with the same party or his privy and [promote] judicial economy by preventing needless litigation."

Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979). The doctrine focuses on whether the same

cause of action is implicated in both the initial and subsequent lawsuits, meaning that the two lawsuits

“share the same nucleus of facts.” Serpas v. Dist. of Columbia, 2005 U.S. Dist. LEXIS 44536, *12-13

(D.D.C. 2005) (citing Drake v. FAA, 291 F.3d 59, 66 (D.C. Cir. 2002)). In determining whether the

same nucleus of facts is at issue, "the court should consider 'whether the facts are related in time, space,

origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit


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conforms to the parties' expectations of the business understanding or usage.'" Id. at *13 (quoting

I.A.M. Nat'l Pension Fund v. Indus. Gear Mfg. Co., 723 F.2d 944, 949 n. 5 (D.C. Cir. 1983)).

Ultimately, the successful application of the claim preclusion doctrine requires three things: “(1) the

presence of the same parties or privies in the two suits; (2) claims arising from the same cause of action

in both suits; and (3) a final judgment on the merits in the previous suit." Friendship Edison Public

Chartered School v. Suggs, 562 F. Supp. 2d 141, 148 (D.D.C. 2008) (citing Apotex, Inc. v. FDA, 393

F.3d 210, 217 (D.C. Cir. 2004)). Although courts were initially hesitant to use res judicata in the

administrative setting, the doctrine has consistently been applied to administrative hearings that reach a

final judgment on the merits. See Hobby v. Hodges, 215 F.2d 754, 759 (10th Cir. 1954); Robinson v.

Heckler, 593 F. Supp. 737, 741 (D.D.C. 1984); Mannerfrid v. Brownell, 145 F. Supp. 55, 56 (D.D.C.

1956); Rhema Christian Center v. Dist. of Columbia Bd. of Zoning Adjustment, 515 A.2d 189, 192

(D.C. 1986) (finding that final administrative decisions that operate as a judicial proceeding generally

will be accorded preclusive effect by courts).

       Theodore argues that Hearing Officer Raskin incorrectly found in HOD #3 that her allegation

that DCPS failed to fund an independent evaluation of A.G. had been fully litigated in HOD #1 and

HOD #2 and thus was barred by res judicata. Pl’s Mot. at 9. But as made clear by the separate HOD

opinions issued in this case, each of Theodore’s three complaints raised the same issues and focused on

the same facts: that her daughter, A.G., was denied a FAPE and that DCPS should have paid for

additional evaluations. In HOD #1, the hearing officer concluded that DCPS "properly determined that

[A.G.] was ineligible for special education services" in December 2007 because DCPS was able to

"rule out any disability." Pl's Ex. 5 (Hearing Officer's Decision issued by Hearing Officer Charles R.

Jones on April 7, 2008), p. 4. In July 2008, a hearing officer again determined in HOD #2 that DCPS

timely evaluated A.G. in all areas of suspected disability and properly concluded that she was not


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eligible for special education services. Pl's Ex. 3 (Hearing Officer's Decision issued by Hearing Officer

Charles R. Jones on July 21, 2008), p. 4-5. Moreover, the hearing officer determined then that DCPS

properly complied with the relevant "Child Find" regulations and that Theodore's reliance on A.G.'s

2001 ADHD diagnosis was not probative because "from an evidentiary prospective, evaluations over 3

years old are not current and therefore, quite unreliable." Id. at 5. The hearing officer concluded that

"the comprehensive psychological did not provide a scintilla of support for a neuropsychological

evaluation." Id.

        Under claim preclusion, "it is the factual nucleus that gives rise to a plaintiff's claims, not a

legal theory on which the claim rests that determines whether the claim may proceed." Lindsey v. Dist.

of Columbia, 609 F. Supp. 2d 71, 77 (D.D.C. 2009) (referencing Page v. U.S., 729 F.2d 818, 820

(D.C. Cir. 1984)). Although Theodore tries to mask her argument under a new legal theory in her

third DPHR, all three of her complaints ultimately rely on the same "factual nucleus" - - her

disagreement with the outcome of A.G.'s 2007 evaluation. Because claim preclusion is intended to

promote judicial efficiency, "'[r]es judicata bars re-litigation not only of matters determined in a

previous litigation but also ones a party could have raised.'" Owens v. Dist. of Columbia, 631 F. Supp.

2d 48, 55 (D.D.C. 2009) (citing Capitol Hill Group v. Pillsbury, Winthrop, Shaw, Pittman, LLC, 569

F.3d 485, 491 D.C. Cir. 2009)). Hence, "'claim preclusion precludes the litigation of claims, not just

arguments.'" Id. Try as Theodore might, all three DPHRs focus on the same factual nucleus and claims

- - that DCPS denied A.G. a FAPE and failed to properly evaluate her. Unfortunately, this issue has

already been decided in HOD #1 and #2 and thus was properly found to be barred by res judicata in

HOD #3.

        Under the res judicata standard, there is little question that the issue whether DCPS failed to

properly evaluate A.G., as raised in DPHR #3, was "related in time, space, and origin" to the issues


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presented in the prior hearings. A district court is expected to give "due weight" to the determination of

the hearing officer. Rowley, 458 U.S. at 206. Although Theodore argues that DPHR #3 is not barred

by res judicata because it included new evidence - - the letters indicating A.G. had previously been

diagnosed with ADHD in 2001 - - "'newly discovered evidence normally does not prevent the

application of res judicata,' unless the evidence was 'either fraudulently concealed or when it could not

have been discovered with due diligence.'" Guerrero v. Katzen, 774 F.2d 506, 508 (D.C. Cir. 1985)

(citing Dreyfus v. First Nat'l Bank of Chicago, 424 F.2d 1171, 1175 (7th Cir. 1970); Costantini v.

Trans World Airlines, 681 F.2d 1199, 1202-03 (9th Cir. 1982)). Neither of those circumstances is

present in this case.

        Here, although Theodore initially raised A.G.’s prior ADHD diagnosis at the December 2007

MDT, she did not provide any documentation to substantiate this diagnosis, especially in light of the

contradictory results of A.G’s 2007 DCPS evaluation. Moreover, as noted in HOD #3, Theodore

made no allegation that DCPS failed to address A.G.’s ADHD. See Pl's Ex. 1 (Hearing Officer's

Decision issued by Hearing Officer Frances Raskin on December 6, 2008), p. 3. While Theodore did

allege in DPHR #3 that A.G. had previously been diagnosed with ADHD, as Officer Raskin noted in

his decision, her complaint "did not allege that this diagnosis was the reason why [she] was again

seeking an authorization for an independent comprehensive psychological evaluation. Rather, the

[c]omplaint reiterates the allegation in the previous complaint that the educational advocate disagreed

with the 2007 evaluation." Id. The fact that Theodore sought to introduce new evidence, then, is

simply not enough to avoid claim preclusion.

        Ultimately, because Theodore’s claims in her third DPHR arise from the same nucleus of facts

as the prior HODs and involve the same parties as a prior action that involved a final judgment on the

merits, this Court affirms the hearing officer’s determination in HOD #3 that DPHR #3 was properly


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barred by res judicata.1

                                                  CONCLUSION

         Accordingly, the Court will deny Theodore's renewed motion for summary judgment and grant

defendants' motion for summary judgment. A separate order has been issued on this date.

                                                                    /s/
                                                             JOHN D. BATES
                                                         United States District Judge

Dated: March 28, 2011




1
 Because res judicata applies, the Court does not need to discuss the merits of Theodore's other claims regarding
DCPS’s failure to provide a FAPE and A.G.’s right to compensatory education.

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