                                                     UNITED STATES DISTRICT COURT
                                                     FOR THE DISTRICT OF COLUMBIA

SHAWN BANKS,

                                            Plaintiff,

                                            v.                     Civil Action No. 09-cv-0990 (RLW)

DISTRICT OF COLUMBIA, et al.,


                                            Defendants.

    MEMORANDUM OPINION1 ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

              This matter is before the Court on Plaintiff’s Motion for Summary Judgment and

Defendants’ Cross-Motion for Summary Judgment. For the reasons set forth briefly below,2

Defendants’ motion for summary judgment is granted, and Plaintiff’s motion is denied.

              This matter was previously assigned to Judge Walton, who denied prior cross-motions for

summary judgment without prejudice and remanded the matter to the Hearing Officer for further

findings. Banks ex rel. D.B. v. District of Columbia, 720 F.Supp.2d 83 (D.D.C. 2010). Judge

Walton remanded this matter to the Hearing Officer for a finding as to whether the Plaintiff’s

                                                            
1
        This is a summary opinion intended for the parties and those persons familiar with the
facts and arguments set forth in the pleadings; not intended for publication in the official
reporters.
2
        Rule 56(a) was amended in 2010 to require the trial court to “state on the record the
reasons for granting or denying the motion [for summary judgment].” The Advisory Committee
Notes to the amendment point out that “[t]he form and detail of the statement of reasons are left
to the court’s discretion” and that “[t]he statement on denying summary judgment need not
address every available reason.” Prior to the 2010 amendments, detailed rulings on summary
judgment motions were generally not required by the federal rules or by the law of our Circuit,
even when granting summary judgment, since the trial court makes no actual factual findings and
the legal ruling is reviewed de novo. See, e.g., Summers v. Department of Justice, 140 F.3d
1077, 1079-80 (D.C. Cir. 1998) (stating general rule, but creating an exception for Freedom of
Information Act cases due to particular statutory requirements); Randolph-Sheppard Vendors of
America, Inc. v. Harris, 628 F.2d 1364, 1368 (D.C. Cir. 1980); Gurley v. Wilson, 239 F.2d 957,
958 (D.C. Cir. 1956).
                                                                  1 
 
child, D.B., was denied a free appropriate public education (FAPE) when the School System

failed to provide all of the services required by his Individualized Educational Program (IEP),

and, if so, to craft the proper compensatory education award as a remedy. Id. at 89-92.

         Upon remand, the Hearing Officer found that D.B. was not denied a FAPE, and so he did

not reach the issue of how to craft the proper compensatory education award. The matter was

thereafter returned to the District Court, and the parties subsequently filed new cross-motions for

summary judgment. In the interim, the case was transferred from Judge Walton and reassigned

to me.

         Judge Walton’s prior opinion sets forth the standard for evaluating summary judgment

motions, the standard of review in IDEA cases and the background facts of this case, and the

Court will not reiterate those here. Id. at 85-88. The ruling of the Hearing Officer being

challenged by Plaintiff, and sought to be upheld by Defendants, found:

                that the Defendant’s failure to provide the student with all of his
                recommended related services hours during the period from April
                2006 to February 2008 was not a material failure of its obligation
                to provide the student with his recommended IEP services.
                Accordingly, the student was not denied a FAPE and I am not
                required to consider Plaintiff’s request for the equitable remedy of
                a compensatory education plan.

Dkt 21-1, Hearing Officer Decision at 18. It is the Plaintiff’s burden to demonstrate that the

Hearing Officer’s decision is wrong. Banks, 720 F.Supp.2d at 88. Plaintiff has failed to meet

her burden.

         Plaintiff makes two overall arguments to attack the Hearing Officer’s ruling. First,

Plaintiff argues that the Hearing Officer “exceeded the scope of his authority” by weighing the

credibility of the witnesses that testified on Plaintiff’s behalf during the May 2008 hearing. See

Dkt. 19 at 13-16. The Court disagrees. The record indicates that Plaintiff’s witness, educational



                                                  2 
 
advocate Dr. Ida Holman, testified during the May 2008 hearing about the amount of services

that were allegedly not provided to D.B. from February 2006 to February 2008. On remand, the

Hearing Officer found that Dr. Holman’s testimony, though purportedly based on a review of the

service tickets, did not match his independent review of the service tickets. The Plaintiff seems

to argue that the Hearing Officer should have ignored the documentary evidence and simply

accepted Dr. Holman’s testimony. The Plaintiff cites no authority, and the Court knows of none,

for the proposition that the Hearing Officer was required to accept testimonial evidence that

contradicted the documents upon which the testimony was based. Even more telling, Plaintiff

makes no attempt in her briefs to describe any specific error in the Hearing Officer’s findings

and calculations. This is a critical issue, and Plaintiff’s counsel simply dodges it. As such,

Plaintiff has failed to meet her burden to show that the Hearing Officer’s calculations of denied

services were in error.

              Second, Plaintiff argues that the Hearing Officer erred by determining that the failure to

provide services to D.B. was not a “material failure” that resulted in a denial of a FAPE. Id at

17-21.3 To reach his decision, the Hearing Officer performed a detailed evaluation of the

documentary and testimonial evidence of D.B.’s academic and functional levels and progress

during the 2006-2008 time period. Dkt. 21-1, at 10-17. The Hearing Officer made a finding

that D.B. showed behavioral, functional and academic progress from 2006 to 2008 that was

consistent with his cognitive and physical abilities. Id. Based on this finding, the Hearing


                                                            
3
        Plaintiff does not challenge the “material failure” standard that Judge Walton directed the
Hearing Officer to use to determine whether there was a denial of a FAPE. See Banks, 720
F.Supp.2d at 88-89 (citing Catalan ex rel. E.C. v. District of Columbia, 478 F.Supp.2d 73, 76
(D.D.C. 2007)). Our Circuit has not yet ruled on the propriety of the material failure standard,
but several courts in this District and in other Circuits have adopted it. See, e.g., Wilson v.
District of Columbia, 770 F.Supp.2d 270 (D.D.C. 2011); Trenker, Thomas R., AMERICANS WITH
DISABILITIES: PRACTICE AND COMPLIANCE MANUAL § 11:237. 
                                                               3 
 
Officer ruled that the School System’s failure to provide all of the services specified in D.B.’s

IEP was not a “material failure” sufficient to establish a denial of a FAPE. Id. Again, Plaintiff

makes no meaningful effort to point out any specific errors in the Hearing Officer’s lengthy and

detailed analysis. Instead, Plaintiff argues generally that the Hearing Officer should have

credited her witnesses, that the material failure is “obvious,” and that D.B. made no progress on

his educational goals from 2006 to 2008. Ultimately, Plaintiff’s arguments are vague,4 not

supported by the record, and fail to carry Plaintiff’s burden.

                                                               CONCLUSION

               For the foregoing reasons, Defendants’ Motion for Summary Judgment is granted and

Plaintiff’s Motion for Summary Judgment is denied. An Order accompanies this Memorandum.

SO ORDERED.

Date: September 12, 2011
                                                                                   /s/
                                                                        ROBERT L. WILKINS
                                                                        United States District Judge




                                                            
4
        Plaintiff’s opening and reply briefs inexplicably, and quite ineffectively, repeat some
boilerplate arguments verbatim. Compare Dkt. 19-20 with Dkt. 23 at 7. 
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