                  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

     The School for Arts in Learning Public Charter School

(“SAIL”), a District of Columbia public charter school, has sued

attorney Fatmata Barrie and the Law Offices of Christopher N.

Anwah (the “Anwah Firm”), seeking $3,278.50 in attorney’s fees

under the Individuals with Disabilities Education Act (“IDEA”),

20 U.S.C. § 1415, claiming that it was a prevailing party at the

administrative level and that the defendants brought and

continued a due process complaint that was frivolous.   Barrie

moves to dismiss, disputing that SAIL was a prevailing party and

arguing that her due process complaint was not without merit.

Because SAIL was not a prevailing party, Barrie’s motion to

dismiss, treated as a motion for summary judgment, will be

granted.
                                  -2-

                            BACKGROUND

     In March 2008, the Anwah firm filed an IDEA due process

complaint on behalf of Nakeisha Arrington, the parent and legal

guardian of K.A., a student eligible to receive special

education.   The complaint alleged that SAIL, a local education

agency (“LEA”), and the District of Columbia Public Schools

(“DCPS”) had failed to conduct a neuropsychological evaluation

and Vineland assessment of K.A.    (Compl. ¶¶ 4, 6, 11.)     SAIL

convened a meeting to resolve the complaint and agreed to conduct

the requested evaluation and assessment.     (Id. ¶ 12.)   In April

2008, a due process hearing was held, and the parties settled all

remaining issues before a hearing officer.     (Id. ¶ 13.)    The

hearing officer issued an order, documenting SAIL’s agreement to

conduct the requested evaluations and stating that the parties

would convene a Multi-Disciplinary Team (“MDT”) meeting within 15

days after the evaluations were complete to review the

evaluations and discuss, in part, K.A.’s individualized education

program and compensatory education.     (Id. ¶ 14.)

     SAIL conducted the evaluations in May 2008, and an MDT

meeting was held in June 2008, during which Arrington raised the

possibility of K.A. receiving compensatory education.      (Id.

¶¶ 15-16.)   Although SAIL stated that it did not believe that

compensatory education was warranted, SAIL nevertheless proposed

as a compensatory education plan a program to be implemented at
                                 -3-

SAIL that summer.   (Id. ¶ 16; Def. Barrie’s Mem. of P. & A. in

Supp. of Def.’s Mot. for Summ. J. (“Def.’s Mem.”) at 3, 6.)

Arrington rejected the plan that was offered and asked

unsuccessfully that K.A. be provided with tutoring services at

Sylvan Learning Center.   (Def.’s Mem. at 3, 5, 6.)   SAIL sent a

letter on June 16, 2008 to Georgina Oladukun, Arrington’s

attorney at the Anwah firm, providing details about the summer

program SAIL had proposed, but neither Arrington nor Oladukun

replied.   (Compl. ¶¶ 18-19.)

     In August 2009, Barrie, then employed by the Anwah firm,

filed another due process complaint on behalf of Arrington,

alleging that DCPS and SAIL had failed to develop and implement a

compensatory education plan and seeking as relief the tutoring

services that SAIL had not agreed to in the June MDT meeting.

(Id. ¶¶ 5, 20; Def.’s Mem. at 6-7.)    That same month, SAIL faxed

a letter to Barrie notifying her that it had offered Arrington a

compensatory education plan in a June 16, 2008 letter to

Oladukun, without response, and advising Barrie that if she

pursued the complaint and SAIL prevailed, SAIL would seek

attorney’s fees on the basis that the complaint was frivolous.

(Compl. ¶ 21.)   The next day, SAIL moved to dismiss the

complaint, arguing that it had proposed to Arrington in June a

compensatory education plan but that Arrington had failed to

respond.   (Id. ¶ 22.)   On September 4, 2009, during a pre-hearing
                                -4-

conference, Arrington’s counsel orally withdrew the due process

complaint.   (Def.’s Mem. at 3, 6.)   Thereafter, a hearing officer

dismissed as moot the August 2009 due process complaint, finding

that SAIL and DCPS had developed and offered to implement a

compensatory education plan for the student and Arrington had

failed to respond.   (Compl. ¶¶ 24-25.)1

     SAIL filed this action seeking attorney’s fees, arguing that

it was a prevailing party at the August 2009 administrative

hearing and that Barrie’s August 2009 due process complaint was

frivolous.   Barrie moves to dismiss, claiming that SAIL was not a

prevailing party and has not shown that the August 2009 due

process complaint was frivolous.

                            DISCUSSION

     “A complaint can be dismissed under Federal Rule of Civil

Procedure 12(b)(6) when a plaintiff fails to state a claim upon

which relief can be granted.”   Winston v. Clough, Civil Action

No. 07-1411 (RWR), 2010 WL 1875626, at *3 (D.D.C. May 11, 2010)

(citing Peavey v. Holder, 657 F. Supp. 2d 180, 185 (D.D.C.

2009)).   “In deciding a motion brought under Rule 12(b)(6), a

court does not consider matters outside the pleadings[.]”    Id.

However, if “matters outside the pleadings are presented to and


1
     The complaint alleges that DCPS had also moved to dismiss on
the ground that it had offered a compensatory education plan that
Arrington “signed off on.” (Compl. ¶ 23.) It is unclear how
that squares with the Hearing Officer’s finding that Arrington
had not responded.
                                -5-

not excluded by the court, the motion must be treated as one for

summary judgment under Rule 56.”   Fed. R. Civ. P. 12(d).   When

the party opposing a motion that presents material outside the

pleadings has a reasonable opportunity to contest facts averred

outside the pleadings, “the court may convert the motion to a

motion for summary judgment without providing notice or the

opportunity for discovery to the parties.”   Winston, 2010 WL

1875626, at *3 (internal quotation marks omitted); see Fed. R.

Civ. P. 12(d).   Barrie’s motion and memorandum present facts

outside the complaint.   (See Def.’s Mem. at 3, 5-7.)   SAIL has

had a reasonable opportunity to contest them.   Barrie’s motion,

then, will be treated as one for summary judgment.

     Summary judgment is appropriate when “there is no genuine

issue as to any material fact and the moving party is entitled to

judgment as a matter of law.”   Moore v. Hartman, 571 F.3d 62, 66

(D.C. Cir. 2009).   When a court “consider[s] a motion for summary

judgment, all justifiable inferences from the evidence are to be

drawn in favor of the nonmovant[,]” Cruz-Packer v. District of

Columbia, 539 F. Supp. 2d 181, 189 (D.D.C. 2008) (internal

quotation marks omitted), and the court must determine whether a

genuine issue of material fact exists “such that a reasonable

jury could return a verdict for the non-moving party[.]”    Moore,

571 F.3d at 66 (internal quotation marks omitted).
                                 -6-

       The IDEA permits a court, in its discretion, to award

attorney’s fees

       to a prevailing party who is a State educational agency
       or [LEA] against the attorney of a parent who files a
       complaint or subsequent cause of action that is
       frivolous, unreasonable, or without foundation, or
       against the attorney of a parent who continued to
       litigate after the litigation clearly became frivolous,
       unreasonable, or without foundation[.]

20 U.S.C. § 1415(i)(3)(B)(i)(II).      A prevailing party is one who

obtains a “judicially sanctioned change in the legal relationship

of the parties.”2   Buckhannon Bd. & Care Home, Inc. v. W. Va.

Dep’t of Health and Human Res., 532 U.S. 598, 605 (2001).      “‘[A]

plaintiff is [not] a “prevailing party” if it achieves the

desired result because the lawsuit brought about a voluntary

change in the defendant’s conduct[.]’”     Davy v. CIA, 456 F.3d

162, 164 (D.C. Cir. 2006) (quoting Buckhannon, 532 U.S. at 601-

02).    Rather, “a plaintiff is a prevailing party only if he has

‘received a judgment on the merits[.]’”     Id. (quoting Buckhannon,

532 U.S. at 605).

       The D.C. Circuit has articulated a three-part test for

determining prevailing party status: “(1) there must be a ‘court-

ordered change in the legal relationship’ of the parties; (2) the

judgment must be in favor of the party seeking fees; and (3) the

judicial pronouncement must be accompanied by judicial relief.”

2
     In the context of IDEA administrative proceedings, a hearing
officer’s relief serves as “judicially sanctioned” relief. See
T.S. ex rel. Skrine v. District of Columbia, Civil Action No. 05-
00861 (HHK), 2007 WL 915227, at *4 (D.D.C. Mar. 27, 2007).
                                -7-

District of Columbia v. Straus, 590 F.3d 898, 901 (D.C. Cir.

2010) (quoting Thomas v. Nat’l Sci. Found., 330 F.3d 486, 492-93

(D.C. Cir. 2003)).   Although the IDEA does not itself define

“prevailing party,” Straus applied the second and third factors

in order to determine whether DCPS as a defendant named in an

IDEA administrative complaint was a prevailing party entitled to

attorney’s fees.   See id. (citing District of Columbia v.

Jeppsen, 514 F.3d 1287, 1290 (D.C. Cir. 2008)).

     In Straus, parents of a special needs student filed an

administrative complaint seeking from a hearing officer an order

requiring DCPS to pay for an independent psychiatric evaluation,

a declaration that DCPS’s delay in conducting the evaluation

denied the student a free, appropriate public education, and an

award of attorney’s fees.   Id. at 899-900.   The hearing officer,

however, dismissed the administrative complaint with prejudice as

moot because the only issue then before him was DCPS’ failure to

conduct the independent evaluation, and DCPS had voluntarily

agreed to conduct it.   Id. at 900-02.   DCPS sued for attorney’s

fees and, on appeal, the D.C. Circuit found that DCPS had easily

satisfied the second factor of the test to determine whether a

defendant is a prevailing party because the hearing officer’s

dismissal of the case was in favor of DCPS.   Id. at 901.

However, as to the third factor, the court found that the

dismissal order provided DCPS with no judicial relief as it
                                 -8-

resolved nothing on the merits and provided DCPS with no res

judicata protection since DCPS had already agreed to do the one

thing at issue at the administrative level.   Id. at 902.   The

court stated that “[i]f the District were considered a prevailing

party under these circumstances, then DCPS could ignore its legal

obligations until parents sue, voluntarily comply quickly, file

for and receive a dismissal with prejudice for mootness, and then

recover attorney’s fees from the parents’ lawyers.”   Id.; and see

District of Columbia v. Straus, 607 F. Supp. 2d 180, 184 (D.D.C.

2009) (same).

     Here, Barrie contends in part that SAIL’s complaint should

be dismissed because SAIL has not shown that it is a prevailing

party.   SAIL’s only argument in response to Barrie’s contention

is that “[t]he hearing officer below issued an order granting

[its] Motion to Dismiss the administrative action with

prejudice[.]”   (Pl.’s Mem. of P. & A. in Opp’n to Def. Barrie’s

Mot. to Dismiss at 5.)   The hearing officer’s order denying as

moot Barrie’s due process complaint did favor SAIL.   However, the

hearing officer’s order did not provide SAIL with any judicial

relief because Barrie orally withdrew her due process complaint

at the pre-hearing conference.   (See Def.’s Mem. at 3, 6.)   That

left no live case or controversy for the hearing officer to
                                  -9-

adjudicate.3   As in Straus, “the hearing officer resolved nothing

on the merits.”     590 F.3d at 902.

     Because SAIL was not the prevailing party and is not

entitled to attorney’s fees under the IDEA, Barrie’s motion to

dismiss the complaint, treated as a motion for summary judgment,

will be granted.4    Further, because the complaint does not set

forth facts supporting any actionable claim, the plaintiff’s

complaint will be dismissed as to both defendants.    See, e.g.,

Barnes v. District of Columbia, Civil Action No. 03-2547 (RWR),

2005 WL 1241132, at *3 (D.D.C. May 24, 2005) (“Where, as here,

the basis for dismissal is applicable as to another defendant, it

is proper to make the holding applicable to the non-moving party

as well.”); Whitehead v. New Line Cinema, Civil Action No. 98-

1231 (PLF), 2000 WL 33351821, at *3 (D.D.C. June 14, 2000)

3
     SAIL states that the hearing officer found that the
complaint was moot because SAIL had offered to Arrington by
letter a compensatory education plan to which Arrington failed to
respond. (See Compl. ¶ 22.) However, the plan SAIL offered by
letter was the same plan that Arrington rejected in the June
meeting after she demanded tutoring at Sylvan. While SAIL may
have developed and offered to implement a plan, that may or may
not have mooted the issue raised in the due process complaint
regarding SAIL’s failure to develop and implement the plan
involving tutoring that Arrington had asked for. Whether or not
the June letter from SAIL was properly regarded as mooting the
controversy, Barrie’s withdrawal of the complaint was sufficient
to moot the case.
4
     Barrie also requests attorney’s fees and costs. (Def.’s
Mem. at 8.) Ordinarily, however, parties are required to bear
their own attorney’s fees absent explicit statutory authority.
See Straus, 590 F.3d at 900. Because Barrie points to no
statutory authority that would entitle her to relief, her request
for fees will be denied.
                                 -10-

(granting summary judgment motion filed by one defendant and

entering sua sponte judgment for all remaining defendants because

same deficiencies existed with respect to claims against non-

moving defendants); Bennett v. Stephens, Civil Action No. 88-2610

(RCL), 1989 WL 17751, at *5 (D.D.C. Feb. 23, 1989) (granting

defendants’ motions to dismiss and dismissing sua sponte claims

against remaining non-moving defendants because same deficiencies

existed with regard to claims against non-moving defendants).

                           CONCLUSION

     Because SAIL was not a prevailing party, Barrie’s motion to

dismiss, treated as a motion for summary judgment, will be

granted as to both defendants.    A final, appealable Order

accompanies this Memorandum Opinion.

     SIGNED this 20th day of July, 2010.


                                         /s/
                                 RICHARD W. ROBERTS
                                 United States District Judge
