                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA



 BARBARA THEODORE, as parent and
 next friend of A.G.,

          Plaintiff,
                 v.                                        Civil Action No. 09-0667 (JDB)
 DISTRICT OF COLUMBIA, et al.,

          Defendants.


                            MEMORANDUM OPINION & ORDER

         The Court has previously detailed the facts underlying this suit, which stems from

Theodore's allegation that the District of Columbia Public Schools ("DCPS") denied her daughter

A.G. a "free appropriate public education" ("FAPE") under the Individuals with Disabilities

Education Act, 20 U.S.C. § 1400 et seq. See Theodore v. Dist of Columbia, 655 F. Supp. 2d

136, 139-40 (D.D.C. 2009). In an earlier opinion, the Court dismissed several of Theodore's

requests for relief as moot. See id. at 143-45. Remaining 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. The parties have filed cross-motions for summary judgment on this

point.

         The Court cannot resolve the parties' motions on the present record. In the decision that

Theodore now challenges, the hearing officer determined that Theodore's claim that DCPS

improperly failed to fund evaluations for her daughter had been adjudicated in a previous


                                                 -1-
hearing, and thus was barred by res judicata. See Administrative Record 3-4. Accordingly, the

hearing officer did not reach the merits of Theodore's claim. In her motion for summary

judgment, however, Theodore does not challenge the hearing officer's res judicata determination,

and instead focuses solely on the merits of her claim concerning the failure to fund evaluations.

But for the Court to rule in Theodore's favor on that claim, it must first find the hearing officer's

res judicata determination incorrect. See Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516,

521 (D.C. Cir. 2005) ("'[A] party challenging the administrative determination must at least take

on the burden of persuading the court that the hearing officer was wrong, and . . . a court

upsetting the officer's decision must at least explain its basis for doing so.'" (quoting Kerkam v.

McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1988))). Because Theodore does not address this issue,

the Court cannot grant her summary judgment.

        The Court also will not grant DCPS's motion for summary judgment. DCPS, like

Theodore, does not address whether the hearing officer's res judicata finding was correct.1 Thus,

the interests of both justice and judicial economy are served by permitting the parties an

opportunity to brief the res judicata issue.2

        Accordingly, it is hereby


        1
         In passing, DCPS does state in its motion for summary judgment that "[g]iven the
paucity of evidence presented by the Plaintiff below, the hearing officer below properly
concluded that the [Second Hearing Officer Decision] was res judicata when it determined that
'A preponderance of the evidence does not support the parent's contention that DCPS failed to
timely evaluate the Petitioner in all areas of suspected disability and failed to timely determine
Petitioner's eligibility.'" Def.'s Mot. for Summ. J. [Docket Entry 19], at 14-15. This isolated
reference to "res judicata" is insufficient to properly present the issue to the Court.
       2
         Although the Court will deny the pending summary judgment motions, it nevertheless
will consider the arguments raised therein when resolving any "renewed" motions for summary
judgment.

                                                 -2-
       ORDERED that [18][19] the parties' cross-motions for summary judgment are DENIED

without prejudice; and it is further

       ORDERED as follows:

       1.      Theodore shall, by not later than August 25, 2010, file a renewed motion for

               summary judgment that addresses the hearing officer's res judicata determination.

       2.      DCPS shall, by not later than September 10, 2010, file a renewed cross-motion for

               summary judgment and opposition to Theodore's motion that addresses the

               hearing officer's res judicata determination.

       3.      Theodore may file an opposition to DCPS's cross-motion, and a reply in support

               of her motion for summary judgment, by not later than September 24, 2010.

       4.      DCPS may file a reply in support of its cross-motion for summary judgment

               by not later than October 8, 2010.

       SO ORDERED.

                                                      /s/ John D. Bates
                                                      John D. Bates
                                                      United States District Judge


Date: August 10, 2010




                                                -3-
