                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

ALICIA CARSON,
           Plaintiff,

        v.
                                                      Civil Action No. 14-1976 (EGS-AK)
DISTRICT OF COLUMBIA,
           Defendant.



                                  MEMORANDUM OPINION

       Plaintiff Alicia Carson seeks to present the Court with additional evidence that was

improperly excluded or otherwise unavailable at the due process hearing. (Pl.’s Mot. [9] at 1.)

United States District Judge Emmet G. Sullivan referred this matter to the undersigned for a

determination of Plaintiff’s Motion to Permit Additional Evidence (“Plaintiff’s Motion”). (See

Nov. 10, 2015 Min. Order). For the reasons discussed below, Plaintiff’s Motion is granted in

part and denied in part.

                                   I.      Factual Background

       Plaintiff is the mother of D.C., a minor child who is entitled to receive a free appropriate

public education (“FAPE”) pursuant to the Individuals with Disabilities Education Act and the

Individuals with Disabilities in Education Improvement Act (collectively, “IDEA”), 20 U.S.C. §

1400 et seq.

       Plaintiff filed an administrative due process complaint on May 22, 2014, and an amended

complaint on June 10, 2014, alleging that the District of Columbia Public Schools (“DCPS”)

denied D.C. a FAPE by (1) failing to timely evaluate D.C. after Plaintiff made a request on

October 25, 2013; (2) failing to meet its Child Find obligations; (3) failing to assess the

circumstances warranting an evaluation; (4) failing to have an appropriate Individual Education

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Program (“IEP”) at the beginning of the school year; and (5) failing to provide an appropriate

placement. (Compl. [1] at 5.)

       On June 17, 2014, the parties held a resolution session meeting. (AR 92–95.) At the

meeting, DCPS offered to perform a comprehensive psychological evaluation and functional

behavior assessment to determine whether D.C. was eligible for special education services. (AR

93.) Plaintiff requested that the following information be provided before the evaluation,

otherwise Plaintiff would not provide her consent to evaluate her child:

       1. A list of all evaluations to be performed, i.e.—the Woodcock Johnson III, etc.
       2. The names of all evaluators and which evaluations they will be conducting;
       3. The educational background of all evaluators, including the degree(s) they
          received and the year(s) in which they received them;
       4. All boards and/or agencies in which the individual is currently licensed or
          certified, the date in which those licenses or certifications were granted or
          issues, and the license or certification number for each agency and/or board.

(AR 93.) Ms. Zalika Wright, a special education coordinator at D.C.’s high school, stated that

she was not privy to the requested information, but suggested Plaintiff contact the Office of the

State Superintendent of Education to get the answers. (AR 93.) Ms. Wright also told Plaintiff to

send her an email after she found the answers because Ms. Wright would then send her a consent

form. (AR 93.)

       The parties also discussed a possible settlement agreement. (AR 94.) Contrary to

Plaintiff’s requests, however, DCPS would not offer any attorney’s fees or compensatory

education. (AR 94.) As such, the parties did not enter into a settlement agreement or resolve the

matter during the resolution period. (See AR 94–95; Pl.’s Mot. Ex. 4 [9-4].)

       On July 16, 2014, Plaintiff filed a notice of her intent to raise procedural errors that

occurred during the resolution session. (AR 112.) Specifically, Plaintiff alleged that DCPS (1)

failed to approach the resolution session meeting as an opportunity to resolve all of Plaintiff’s



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concerns; (2) failed to have someone at the resolution session meeting who could negotiate a

settlement agreement “in a meaningful way”; and (3) refused to provide compensatory

education. (AR 112–13.)

       On July 23, 2014, the administrative hearing was held. (AR 252–485.) On August 24,

2014, the Hearing Officer’s Determination (“HOD”) was issued and denied all the relief

requested by Plaintiff. (AR 15.) Plaintiff now seeks to present the Court with additional

evidence in anticipation of her motion to reverse the HOD. (Pl.’s Mot. [9] at 1.)

                                      II.     Legal Standard

       Under the IDEA, a party aggrieved by a hearing officer’s decision may seek review in

either state or federal court. 20 U.S.C. § 1415(a)(2)(A). During its review, the district court

“shall receive the records of the administrative proceedings . . . [and] shall hear additional

evidence at the request of a party[.]” Dist. of Columbia v. Masucci, No. 13-cv-1008 (PLF), 2014

WL 329621, at *1 (D.D.C. Jan. 30, 2014) (quoting 20 U.S.C. § 1415(i)(2)(C)). Despite the

statute’s use of the word “shall,” the D.C. Circuit has held that district courts have broad

discretion to accept or reject additional evidence. Id.; Reid ex. rel. Reid v. Dist. of Columbia, 401

F.3d 516, 521–22 (D.C. Cir. 2005); see also Miller ex rel. S.M. v. Bd. of Educ. of Albuquerque

Pub. Sch., 565 F.3d 1232, 1241 (10th Cir. 2009) (noting that a “federal court proceeding must

maintain the character of review and not rise to the level of a de novo trial.”) (internal quotation

omitted).

       “In determining whether to consider additional evidence, ‘[t]he reasons for

supplementation will vary; they might include gaps in the administrative transcript owing to

mechanical failure, unavailability of a witness, an improper exclusion of evidence by the

administrative agency, and evidence concerning relevant events occurring subsequent to the



                                                  3
administrative hearing.’” Dist. of Columbia v. Masucci, No. 13-cv-1008 (PLF), 2014 WL

329621, at *1 (D.D.C. Jan. 30, 2014) (quoting Town of Burlington v. Dep't of Educ. for

Commonwealth of Mass., 736 F.2d 773, 790 (1st Cir. 1984)).

                                              III.     Discussion

        Plaintiff seeks to supplement the administrative record with four types of documents: (1)

emails sent from Plaintiff’s counsel to Zalika Wright that were used for impeachment purposes at

the administrative hearing; (2) emails between Plaintiff’s counsel and DCPS along with a copy

of a proposed settlement agreement to show that DCPS engaged in misconduct; (3) an

individualized education plan and multi-disciplinary team notes that occurred after the

administrative hearing to show the Hearing Officer committed “factual errors” in the HOD; and

(4) a psychiatric evaluation that was completed after the administrative hearing to challenge the

HOD’s finding that DCPS met its Child Find obligations.1 (See Pl.’s Mem. [9-1] at 3–6; Pl.’s

Mot. Ex. 3–7 [9-3–9-7].) These requests will be addressed in turn.

        A.       Exhibit 3: June 20, 2014 Emails from Plaintiff’s Counsel to Zalika Wright

        Plaintiff seeks to add two emails to the record that were used for impeachment purposes

at the administrative hearing, but not included in the administrative record. (Pl.’s Mem. [9-1] at

3; see also Pl.’s Mot. Ex. 1 [9-3].) At the administrative hearing, Ms. Zalika Wright testified that

she told Plaintiff at the resolution session meeting to email her after she reviewed the

qualifications of the evaluators. (AR 416.) Once Ms. Wright received Plaintiff’s email, she

would then send Plaintiff a consent to evaluate form. (AR 416.) Ms. Wright also testified that

she had not received any communication from Plaintiff or her attorney following the resolution



1
  Plaintiff also requested the Court to replace page 12 of the psycho-educational evaluation in the administrative
record because the copy filed in the record was unreadable. (Pl.’s Mem. at 6.) Defendant has since corrected the
error and replaced the page. (See Errata Correcting Administrative Record [10].) Thus, this issue has been resolved.

                                                         4
session, thereby implying that Plaintiff was at fault for the untimely evaluation of her child

because parental consent is a necessary predicate to performing an evaluation. (See AR 416); 34

C.F.R. §300.300(a)(1)(i).

       During cross-examination, Plaintiff’s counsel presented Ms. Wright with two emails that

were allegedly sent to her by Plaintiff’s attorney after the resolution session meeting. (AR 419.)

Defense counsel objected to the presentation of these emails because he had not yet reviewed

them. (AR 419.)

       The Hearing Officer decided to allow Plaintiff to use the documents: “Well -- and the

bare minimum rule, I allow it, because definitely it (inaudible) impeaching information,

impeaching material.” (AR 420.) Plaintiff now relies on this statement from the Hearing Officer

as evidence that the two emails were admitted into evidence, but improperly excluded from the

administrative record. (Pl.’s Mem. at 3.)

       Reading the Hearing Officer’s statement in context, however, shows that Plaintiff is

mistaken. The Hearing Officer’s statement only allowed Plaintiff to use these documents for

impeachment purposes. Plaintiff never moved to have the emails admitted into evidence in the

first place. (See AR 419–20.)

       Plaintiff’s failure to submit these emails into evidence at the administrative hearing

dismantles her current request to add the emails to the administrative record. The various

reasons for supplementing the administrative record focus on evidence that is either acquired

after the hearing or omitted from the record due to some error in the hearing process by the

agency. Dist. of Columbia v. Masucci, No. 13-cv-1008 (PLF), 2014 WL 329621, at *1 (D.D.C.

Jan. 30, 2014) (“The reasons for supplementation will vary; they might include gaps in the

administrative transcript owing to mechanical failure, unavailability of a witness, an improper



                                                 5
exclusion of evidence by the administrative agency, and evidence concerning relevant events

occurring subsequent to the administrative hearing.”). Notably absent from the list of

justifications to supplement the record are those that deal with evidence that was available at the

hearing, but due to an omission by a party, not added to the administrative record. See id.;

Foland M. v. Concord Sch. Committee, 910 F.2d 983, 997 (1st Cir. 1990) (“In the absence of

special circumstances, courts should ordinarily exercise that discretion in favor of excluding the

belatedly offered evidence.”). Because of this, the Court will not consider Plaintiff’s exhibit 3

containing the two emails as evidence in the HOD appeal.

       B.      Exhibit 4: Evidence of DCPS Misconduct During the Resolution Period

       Plaintiff requests the Court to add exhibit 4—which consists of hearing exhibits 8, 9, and

12—to the administrative record on the basis that the Hearing Officer improperly excluded them.

(Pl.’s Mot. Ex. 4 [9-4]; Pl.’s Mem. [9-1] at 4.) Hearing exhibits 8 and 9 involved email chains

between Plaintiff’s counsel and DCPS regarding DCPS’s decision not to include compensatory

education or attorney’s fees in the proposed settlement agreement. (See Pl.’s Mot., Ex. 4 at 1–5.)

Hearing exhibit 12 was a copy of the proposed settlement agreement. (See Pl.’s Mot., Ex. 4 at 5–

10.)

       Plaintiff offered these three hearing exhibits to show that DCPS engaged in misconduct at

the resolution session meeting by conditioning the settlement agreement on a waiver of her

attorney’s fees and implementation fees. (Pl.’s Mem. at 4.) The Hearing Officer excluded these

exhibits because they concerned settlement negotiations that she believed were “outside the

jurisdiction of the hearing.” (AR 277–81.)

       The IDEA provides that “[t]he party requesting the due process hearing may not raise

issues at the due process hearing that were not raised in the due process complaint . . . unless the



                                                  6
other party agrees otherwise.” U.S.C. § 1415(f)(3)(B), 34 CFR § 300.511(d). Plaintiff does not

dispute that she did not raise the misconduct allegations in her complaint. (See Pl.’s Reply [13]

at 3.) However, Plaintiff argues that DCPS consented to allow her to raise these issues in the

Blackman/Jones Consent Decree, whereby it agreed that “[a]ny alleged procedural failures that

occur during the RS [Resolution Session Meeting] may be presented to the HO [Hearing Officer]

at the due process hearing and considered by the HO, consistent with 20 U.S.C. § 1415(f)(3)(E),

34 CFR § 500.513.” (See id.; Blackman/Jones Consent Decree, Case No. 97-cv-1629 [1762–4],

at ¶ 36; AR 138.)

       The Blackman/Jones Consent Decree arose out of two 1997 consolidated class action

lawsuits—Blackman v. District of Columbia and Jones v. District of Columbia—challenging the

inadequacies of DCPS’s special education system and failures to comply with the IDEA. See

Blackman v. Dist. of Columbia, No. 97-cv-1629 (D.D.C. 1997) (consolidated with Jones v. Dist.

of Columbia, No. 97-cv-2402 (D.D.C. 1997)). In a 2006 Consent Decree, commonly referred to

as the “Blackman/Jones Consent Decree,” the District of Columbia agreed to improve many of

its shortfalls in its special education system, such as eliminating the backlog of students waiting

for special education hearings and reducing the wait time between the Hearing Officer’s

Determination (“HOD”) and implementation of services. (AR 133, 139).

       Important to this case, the Blackman/Jones Consent Decree only protected two classes of

plaintiffs: The first subclass (the “Blackman class”), protected students “who present complaints

to DCPS . . . [under] the IDEA and whose requests for impartial due process hearings . . . are

overdue according to these provisions.” (AR 127.) The second subclass (the “Jones class”),

protected students “who are entitled to have DCPS provide them with a free appropriate public

education (FAPE) and who have been denied same [sic] because DCPS either (a) has failed to



                                                 7
fully and timely implement the determinations of hearing officers, or (b) failed to fully and

timely implement agreements concerning a child’s identification, evaluation, educational

placement, or provisions of FAPE that DCPS has negotiated with child’s parent or education

advocate.” (AR 128.)

       On July 5, 2011, after finding that the District had timely adjudicated hearing requests for

a sufficient period of time, the Court ordered that the Blackman portion of the consolidated

lawsuit be dismissed. (See J. Friedman Order, Case No. 97-cv-1629 [2259].) On December 18,

2014, after determining that the District had sufficiently eliminated its backlog regarding the

untimely implementation of hearing officer determinations and settlement agreements, the Court

ordered that the Jones portion of the consolidated lawsuit be dismissed. (See J. Friedman Order,

Case No. 97-cv-1629 [2504].)

       A review of the procedural history of the Blackman/Jones consolidated lawsuit shows

that Plaintiff is not a protected member of the Blackman/Jones Consent Decree. On May 22,

2014, Plaintiff filed her due process complaint. At this time, the Blackman portion of the

consolidated lawsuit was already dismissed, thus Plaintiff could not be a protected member of

the Blackman class. Plaintiff is also not a protected member of the Jones class because Plaintiff

never entered into a settlement agreement with DCPS, and there are no allegations that DCPS

failed to timely implement the HOD. Indeed, there were no services that needed to be

implemented by DCPS because the HOD denied Plaintiff all relief. (AR 15); see also Gray v.

D.C. Public Schools, 688 F. Supp. 2d 1, 5 (D.D.C. 2010) (finding Plaintiff was not a protected

member of the Blackman/Jones Consent Decree because Plaintiff “has not indicated that she

entered into any settlement agreement with Defendants, or that any provision of her HOD has not

been implemented in a timely fashion.”). Because Plaintiff is not a member of the protected



                                                 8
classes in the Blackman/Jones Consent Decree, her reliance on the Blackman/Jones Consent

Decree as evidence that the District agreed to her raising procedural violations at the

administrative hearing is misplaced.

       Having found that the District did not consent to allowing Plaintiff to raise misconduct

claims, the undersigned also finds that it would be improper to supplement the record with such

evidence. The IDEA states that “[t]he party requesting the due process hearing may not raise

issues at the due process hearing that were not raised in the due process complaint[.]” U.S.C. §

1415(f)(3)(B), 34 CFR § 300.511(d). Here, Plaintiff did not include a misconduct claim in her

due process complaint. Allowing Plaintiff to introduce this evidence on appeal that was properly

excluded below would convert the proceeding into a de novo trial. As such, the Court will not

consider Plaintiff’s exhibit 4—which consists of hearing exhibits 8, 9, or 12—as evidence in the

HOD appeal.

       C.      Exhibits 5 and 6: The September 29, 2014 Multi-Disciplinary Team Meeting
               Notes and the October 27, 2014 Individualized Education Plan

       Plaintiff seeks to supplement the administrative record with multi-disciplinary team

(“MDT”) meeting notes and an individualized education plan (“IEP”) that were created after the

issuance of the Hearing Officer’s determination (“HOD”). (Pl.’s Mem. [9-1] at 5.) In the HOD,

the Hearing Officer concluded that DCPS did not deny D.C. a FAPE by failing to timely evaluate

him. (AR 12.) In making her determination, the Hearing Officer noted,

       Before [DCPS] may provide special education services to a Student, [DCPS] must
       conduct a full and individual initial evaluation. See 34 C.F.R. 300.301(a).
       However, before such evaluation process may begin, an informed parental consent
       must be obtained. 34 C.F.R. §300.300(a)(1)(i). In the case at bar, no such consent
       from the parent has been obtained.

(AR 10.)




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         Plaintiff argues that the MDT notes and the IEP should be admitted because they show

that the Hearing Officer committed a “factual error” by finding that DCPS needed to conduct a

full initial evaluation before providing special education services to D.C. (Pl.’s Reply [13] at 6–

7.) Specifically, the IEP that Plaintiff requests to add to the record ultimately found D.C. to be

eligible for special education services, but “DCPS never conducted its own evaluation but

instead relied exclusively on the court-ordered psychological and psychiatric evaluations.”2 (Pl.’s

Reply at 7.) According to Plaintiff, the MDT notes and IEP “show beyond all dispute that DCPS

was not required to conduct its own evaluations prior to finding the student to be eligible.” (Id.)

         The undersigned is not persuaded. First, the statement Plaintiff characterizes as a

“factual error” is merely a restatement of the governing regulation, not a factual finding. See 34

C.F.R. § 300.301(a) (“Each public agency must conduct a full and individual initial evaluation . .

. before the initial provision of special education and related services to a child with a disability

under this part.”). Thus, the undersigned fails to see how the MDT notes and IEP could

challenge the HOD on these grounds, or is relevant to the issues of the case.

         Moreover, Plaintiff’s statement that DCPS relied “exclusively” on the July 22, 2014

psychiatric evaluation is factually incorrect. The part of the MDT meeting notes that Plaintiff

omitted and replaced with an ellipses shows that DCPS relied upon the “psychiatric and

psychological assessments, as well as other existing data,” such as D.C.’s transcript, schedule,

and reports from teachers. (MDT notes [9-5] at 2 (emphasis added); see also Pl.’s Reply at 7.)

         Finally, allowing Plaintiff to supplement the record with such evidence runs the risk of

converting the proceeding into a de novo trial. The Hearing Officer determined that no special



2
  To support this proposition, Plaintiff quotes the MDT notes as follows: “The purpose of today’s meeting is to
review the independently provided psychiatric and psychological assessments . . . .” (MDT notes [9-5] at 2; Pl.’s
Reply at 7.)

                                                         10
education services were warranted for D.C. (AR 12.) The Hearing Officer based her decision on

the fact that Plaintiff “has not met her burden of proof on this issue” because Plaintiff had not

provided proof that she consented to begin the evaluation process as required under the IDEA.

(See AR 9–12.) The MDT notes and IEP, however, show that special education services were

eventually warranted for D.C. In essence, this new evidence seeks to challenge the Hearing

Officer’s finding that Plaintiff failed to meet her burden by supplementing the record with

information that was not presented to the Hearing Officer at the time. For the foregoing reasons,

the Court will not supplement the administrative record with MDT meeting notes or the IEP.

        D.      Exhibit 7: July 22, 2014 Psychiatric Evaluation

        Plaintiff alleges in her complaint that DCPS denied her child a FAPE by failing to meet

its Child Find obligations. (Compl. [1] at 5.) Under the Child Find provision of the IDEA,

DCPS is required to have policies and procedures in effect that ensure that children with

disabilities are identified, located, and evaluated so that they can receive special education

services. See 34 C.F.R. § 300.111. In this case, the Hearing Officer concluded that DCPS met

its Child Find obligations because there was no evidence that DCPS knew or had reason to

suspect D.C. of having a disability. (AR 13.)

        Plaintiff now seeks to supplement the record with a July 22, 2014 psychiatric evaluation.

(Pl.’s Mem. [9-1] at 6.) The evaluation was completed a day before the administrative hearing,

but was not presented at the hearing because of IDEA’s five-day disclosure deadline. See 20

U.S.C. § 1415(f)(2) (“Not less than 5 business days prior to a hearing . . . each party shall

disclose to all other parties all evaluations completed by that date . . . that the party intends to use

at the hearing.”). According to Plaintiff, this document should be added because it

“demonstrates the extent to which the student’s disabilities impaired his ability to access the



                                                   11
general education curriculum, thereby rebutting the hearing officer’s finding that DCPS ‘did not

suspect or have reason to suspect the Student of having a disability or [being] in need of special

education services.’” (Pl.’s Reply [13] at 6.)

        Defendant argues that the psychiatric evaluation should be excluded on grounds that it

“does not challenge the decisions of the hearing officer (see Miller 565 F.3d at 1241) because

there is no evidence that the psychiatric evaluation was available to DCPS or the hearing officer

while the administrative proceedings were ongoing.” (Def.’s Opp’n [12] at 10 (internal

quotations marks omitted)).

        The undersigned agrees with Plaintiff. Without addressing the merits of Plaintiff’s Child

Find allegations, the psychiatric evaluation could show that the student suffered from such severe

emotional and behavioral disorders that anyone who interacted with him would have suspected a

disability. This would substantiate Plaintiff’s claim that DCPS violated the IDEA’s Child Find

provisions. Accordingly, the Court will consider the July 22, 2014 psychiatric evaluation to the

extent that it is necessary to resolve the issues in this case.

                                       IV.     CONCLUSION

        For the reasons set forth in above, Defendant’s Motion to Compel [9] is granted in part

and denied in part. Plaintiff’s request to supplement the administrative record with the July 22,

2014 Psychiatric Evaluation [9-7] is GRANTED. Plaintiff’s requests to supplement the

administrative record with all other exhibits are DENIED. An Order consistent with this

Memorandum Opinion will be issued separately.



DATE: May 20, 2016                                                   /s/
                                                        ALAN KAY
                                                        UNITED STATES MAGISTRATE JUDGE



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