                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
SCHOOL FOR ARTS IN LEARNING   )
PUBLIC CHARTER SCHOOL,        )
                              )
          Plaintiff,          )
                              )
          v.                  )     Civil Action No. 09-2357 (RWR)
                              )
FATMATA BARRIE, et al.,       )
                              )
          Defendants.         )
______________________________)

                  MEMORANDUM OPINION AND ORDER

     The School for Arts in Learning Public Charter School

(“SAIL”), a local educational agency under the Individuals with

Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415, moves to

alter the judgment denying SAIL an award of attorney’s fees for

not prevailing on the merits at the administrative level.    SAIL

argues that the court clearly erred by finding that the

defendants orally withdrew the administrative complaint which

left the hearing officer nothing to resolve on the merits, and

asks for an opportunity to present evidence that the defendants

knowingly pursued a frivolous complaint.   Because SAIL merely

reargues facts upon which the court has already ruled, the motion

to alter judgment will be denied.
                                  -2-

                              BACKGROUND

        The facts of this case are recited in part in SAIL v.

Barrie, et al., 724 F. Supp. 2d 86, 86-88 (D.D.C. 2010).

Briefly, the Law Offices of Christopher N. Anwah (the “Anwah

Firm”) filed an IDEA administrative due process complaint against

SAIL on behalf of parent Nakeisha Arrington’s daughter, K.A., in

2008.    The complaint accused SAIL of failing to conduct various

neuropsychological evaluations of K.A.     The parties resolved

their disputes at a hearing.     Id. at 87.   Thereafter, the hearing

officer issued an order reflecting SAIL’s agreement to complete

the evaluations and to convene a multi-disciplinary team (“MDT”)

to discuss K.A.’s individualized education program and

compensatory education.    Id.   In a June 2008 letter following the

MDT meeting, SAIL offered to enroll K.A. in a 2008 summer youth

program instead of sponsoring the tutoring at Sylvan Learning

Center that Arrington had requested as compensatory education.

(Pl.’s Reply to Def.’s Opp. to Pl.’s Mot. to Alter J. (“Pl.’s

Reply”), Ex. 2A at 2.)    SAIL received no response.   (Pl.'s Reply,

Ex. 2 at 1.)

        In August 2009, defendant Fatmata Barrie, then an Anwah firm

employee, filed a second due process complaint on Arrington’s

behalf.    It alleged that at a May 2009 MDT meeting, Arrington

again requested compensatory education for missed services during

the 2007-2008 and 2008-2009 school years, and that the MDT team
                                -3-

agreed that the school system would address the issue but the

system did not do so.   (Pl.’s Reply, Ex. 3 at 3.)   The complaint

sought funding of an independent tutor of the parent’s choice as

compensatory education.   SAIL moved to dismiss the complaint,

which Barrie announced at the outset of a September 2009 pre-

hearing conference that she withdrew.    (Pl.’s Mot. to Alter J.

(“Mot. to Alter”), Ex. 1 at 2-3.)     The hearing officer

nevertheless concluded thereafter that the June 2008 letter had

offered Arrington the relief she sought and that the complaint

therefore was moot.   He granted SAIL’s motion and dismissed the

complaint with prejudice.

     SAIL sued Barrie and the Anwah Firm here for attorney’s

fees, arguing that it had prevailed1 at the August 2009

administrative hearing and that the second due process complaint

was frivolous.   However, Barrie filed a motion to dismiss which

was construed as one for summary judgment, and it was granted.

The court found that Barrie orally withdrew her due process

complaint at the pre-hearing conference thereby mooting it, and

that the hearing officer’s dismissal of a case thus mooted

resolved nothing on the merits and provided SAIL with no judicial


1
      Under the IDEA, courts may award attorney’s fees “to a
prevailing party who is a State educational agency or local
education agency against the attorney of a parent who files a
complaint or subsequent cause of action that is [or continues to
litigate after the litigation clearly becomes] frivolous,
unreasonable, or without foundation[.]” 20 U.S.C.
§ 1415(i)(3)(B)(i)(II).
                                 -4-

relief.   SAIL, 724 F. Supp. 2d at 90; see also District of

Columbia v. Straus, 590 F.3d 898, 901 (D.C. Cir. 2010).

     Arguing that the hearing officer afforded SAIL judicial

relief, SAIL now moves to vacate the summary judgment in favor of

the defendants and to offer evidence that Barrie knowingly

pursued a frivolous complaint.

                            DISCUSSION

     Courts need not grant a Rule 59(e) motion to alter a

judgment unless “there is an ‘intervening change of controlling

law, the availability of new evidence, or the need to correct a

clear error or prevent manifest injustice.’”    Firestone v.

Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (internal citation

omitted).   Courts have routinely held that Rule 59(e) motions are

not vehicles for “‘reargu[ing] facts and theories upon which a

court has already ruled[,]’” or for “rais[ing] new issues that

could have been raised previously.’”     Ala. Educ. Ass’n v. Chao,

595 F. Supp. 2d 93, 96 (D.D.C. 2009) (internal citation

omitted)); Harvey v. D.C., 949 F. Supp. 878, 879 (D.D.C. 1996).

Indeed, such motions are “disfavored” and granted only upon a

showing of “extraordinary circumstances.”    Sataki v. Broad. Bd.

of Governors, 272 F.R.D. 21, 24 (D.D.C. 2010) (internal citation

omitted).

     SAIL asserts that it was clear legal error to find that the

defendants orally withdrew the due process complaint leaving no
                                -5-

merits relief to be granted.   It argues that the hearing officer

declined to accept the oral withdrawal in the absence of prior

notice of a withdrawal, found on the merits that SAIL's June 2008

letter had granted the relief the defendants sought making moot

their complaint, and as relief to SAIL, dismissed the defendants’

complaint with prejudice.   Therefore, SAIL concludes, it was a

prevailing party and is entitled to present evidence here that

the defendants had knowingly pursued a frivolous due process

complaint.

     A prevailing party obtains a “judicially sanctioned change

in the legal relationship of the parties.”   SAIL, 724 F. Supp. 2d

at 88-89 (internal citation omitted).   In this circuit, courts

assign prevailing party status if: “(1) there . . . [is] a

‘court-ordered change in the legal relationship’ of the parties;

(2) the judgment [is] . . . in favor of the party seeking fees;

and (3) the judicial pronouncement [is] . . . accompanied by

judicial relief.”   See SAIL, 724 F. Supp. 2d at 89 (quoting

Straus, 590 F.3d at 901).   The second and third factors are

applied to assess whether a school named as a defendant in an

IDEA administrative complaint qualifies as a prevailing party

entitled to attorney’s fees.   See District of Columbia v.

Jeppsen, 514 F.3d 1287, 1290 (D.C. Cir. 2008).2   To fulfill the

third prong, a party must succeed on the merits of the case.    See

2
     The court found that the second prong of the Straus test was
satisfied. See SAIL, 724 F. Supp. 2d at 89.
                                -6-

Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep’t of Health and

Human Services, 532 U.S. 598, 605 (2001).

     In turn, clearly erroneous findings lack “substantial

evidentiary support or . . . [were] induced by an erroneous

application of the law[.]”   N. Cent. Airlines, Inc. v. Cont’l Oil

Co., 574 F.2d 582, 587 n.14 (D.C. Cir. 1978) (internal citation

omitted).   “Beyond that, a finding is clearly erroneous when

although there is evidence to support it, the reviewing court on

the entire evidence is left with the definite and firm conviction

that a mistake has been committed.”   Id. (internal quotation

marks and citation omitted).

     SAIL’s challenge to the finding that the defendants orally

withdrew their due process complaint merely reargues an issue

that was previously litigated by the parties and decided, and is

not entitled to a new airing.   In any event, the hearing

officer’s order demonstrates that the finding was not a product

of legal or factual error.   The order makes plain that at the

outset of the hearing, the defendants stated that they withdrew

the due process complaint.   (Mot. to Alter, Ex. 1 at 3.)   As SAIL

explained, that left no live case or controversy to adjudicate.

724 F. Supp. 2d at 90.   Whether the defendants had provided

notice of the withdrawal before the hearing or orally at the

outset of the hearing does not change the result.   And what the

hearing officer did or said after that would not resurrect a
                                -7-

controversy that the defendants had already put to rest.    There

simply were no merits to reach, and there was no relief on the

merits to be awarded.3

     Nor does SAIL identify any other basis for altering the

judgment.   It cites no intervening change of controlling law or

any manifest injustice.   The only “new” evidence SAIL cites --

the hearing officer’s September 2009 Order -- was published five

months before SAIL opposed Barrie’s motion to dismiss.    (See

Pl.’s Mot. to Alter J. at 5.)   The Order is not “new” within the

meaning of Firestone and does not form a basis for altering the

court’s judgment.   Firestone, 76 F.3d at 1208.4   Accordingly, no


3
     As SAIL noted, the plaintiff’s June 2008 letter may or may
not have mooted the controversy. 724 F. Supp. 2d at 90 n.3. The
letter offered a plan for the summer of 2008, not the tutoring at
Sylvan that the defendants sought. While the letter may or may
not have mooted any claim that SAIL failed to develop a plan to
provide compensatory education services missed during the
2007-2008 school year, the due process complaint also complained
of SAIL’s failure to create a plan for the 2008-2009 year, and
failure to keep its May 15, 2009 agreement to address the
defendants’ renewed request for compensatory education.
4
     SAIL claims that had it anticipated that the defendant’s
motion to dismiss would have been treated as a motion for summary
judgment, it would have provided the hearing officer’s order with
its opposition to show that judicial relief was awarded (Pl.’s
Mem. in Supp. of Pl.’s Mot. to Alter J. at 5), and filed its own
summary judgment motion to show that the administrative complaint
was frivolous (Pl.’s Reply at 2). However, SAIL saw the same
facts outside of the pleadings that the defendants presented in
their motion to dismiss as the court saw and cited that warranted
summary judgment treatment under Fed. R. Civ. P. 12(d). SAIL,
724 F. Supp. 2d at 88. That was the time to present a factual
response or a cross motion, not after an adverse judgment was
entered.
                               -8-

clear error infected the court’s determination that the hearing

officer did not afford SAIL judicial relief.

                      CONCLUSION AND ORDER

     SAIL has presented no intervening change in controlling law,

new evidence, clear error, or manifest injustice that would

warrant altering the summary judgment for the defendants.

Accordingly, it is hereby

     ORDERED that SAIL’s motion [13] to alter judgment be, and

hereby is, DENIED.

     SIGNED this 29th day of August, 2011.



                                               /s/
                                     RICHARD W. ROBERTS
                                     United States District Judge
