UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STEPHON BROWN,

Plaintiff,

v. Civil Action No. 17-348 (RDM) DISTRICT OF COLUMBIA, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Stephon Brown, a lifelong resident of the District of Columbia, was convicted of

a felony under the D.C. Code and incarcerated in a Bureau of Prisons (“BOP”) facility pursuant

to the National Capital Revitalization and Self Government Improvement Act of 1997,

,

, 734 (1997) (codified at

) [hereinafter

“Revitalization Act”]. While incarcerated, Brown was not afforded “any special education

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

et

seq., because both the BOP and the District denied responsibility for providing him a free and

appropriate education (“FAPE”). Dkt. 25 at 1, 5. The BOP argued that, as a federal entity, it is

not subject to the IDEA, Dkt. 16 at 8–9, and the District argued that its responsibilities to Brown

ended when he entered into BOP custody, Dkt. 14 at 6–7. Caught in a legal limbo, Brown sued

both Defendants for violating the IDEA. Dkt. 1 (Compl.).

The Court previously held that, under the plain language of the IDEA, the District—and

not the BOP—was obligated to provide Brown a FAPE while he was in BOP custody. See

Brown v. District of Columbia,

, 159–60, 162 (D.D.C. 2018). The District

now asks the Court to reconsider that decision, arguing that (1) § 1415(k)(6) of the IDEA “precludes” the Court’s interpretation “because the Court’s interpretation would . . . conflict with

the legitimate law enforcement aims of the BOP and the Superior Court for the District of

Columbia,” Dkt. 39 at 1; (2) the Court misconstrued the District’s argument as positing that the

Revitalization Act impliedly repealed the IDEA as applied to D.C. felons incarcerated by the

BOP, id. at 13; and (3) in any event, the Revitalization Act did, in fact, shift responsibility from

the District to the BOP for the education of D.C. felons incarcerated by the BOP, id. at 14–16.

The Court is unpersuaded and will, accordingly, DENY the District’s motion for reconsideration.

Dkt. 39.

I. BACKGROUND

The background of this matter is discussed in detail in Magistrate Judge Harvey’s Report

and Recommendation (“R&R”), Dkt. 25, and in this Court’s prior opinion, see Brown, 324 F.

Supp. 3d at 158–59. To summarize, Plaintiff is a lifelong resident of the District who has been

eligible for special education and related services since elementary school. Id. at 158. In 2014,

when he was eighteen, Plaintiff was arrested and charged with violating D.C. law. Id. While

awaiting trial, Plaintiff was held at the D.C. Central Detention Facility, where he continued to

receive special education services pursuant to his Individualized Education Program (“IEP”).

Dkt. 25 at 5. After he was tried and convicted as an adult, however, Plaintiff was transferred to

the Hazelton Federal Correctional Institution (“FCI”), and those services ceased. Id. Only after

his release in November 2016, when Plaintiff resumed his high school education, did he once

again receive special education services pursuant to the IDEA. Id.

Shortly before his release from FCI Hazelton, Plaintiff filed a due process complaint

against the District and the BOP, alleging that he was denied access to a FAPE while

incarcerated. Id. at 6. The Hearing Officer dismissed Plaintiff’s complaint against the BOP on

2 the ground that the federal government is not subject to the IDEA and dismissed his complaint

against the District on the ground that the IDEA does not impose any responsibilities on state or

local officials while an individual with disabilities is incarcerated at a federal correctional

facility. Id. at 6–8. Plaintiff then brought suit in this Court, seeking to set aside the Hearing

Officer’s determination, and the Court referred the matter to a magistrate judge for an R&R.

Brown,

.

As explained in greater detail in this Court’s prior opinion, Magistrate Judge Harvey

rejected the Hearing Officer’s conclusion that the combination of the IDEA and the

Revitalization Act created a “Special Education No Man’s Land” in which neither the BOP nor

the District has any obligation to provide benefits under the IDEA to individuals convicted of

violating D.C. law who are incarcerated at a BOP facility.

The R&R concluded that the

IDEA does not apply to the BOP; rather, the statute applies only to states eligible to receive

federal funds under the IDEA. Dkt. 25 at 14–20. That conclusion, however, did not leave

children incarcerated in federal facilities without IDEA benefits because the R&R reasoned that

“a FAPE is triggered by a child’s residency,” and that obligation is not terminated when the child

is in federal custody. Id. at 21.

Plaintiff filed timely objections to the R&R’s conclusion that the IDEA does not bind the

BOP, Dkt. 26, and the District filed timely objections to the R&R’s conclusion that its

obligations under the IDEA continued while Plaintiff was held in BOP custody, Dkt. 27. The

Court adopted in full the R&R’s conclusion and analysis with respect to the BOP. Brown,

. With respect to the District, the Court’s analysis differed from the R&R in two

respects. First, the Court concluded that it was unnecessary to resolve the question whether all

states are responsible for ensuring that their residents who are incarcerated in federal prisons

3 receive FAPEs.

. Although noting that the R&R’s reasoning carried “considerable

force,” the Court limited its analysis to the question whether children who are convicted as adults

for violations of D.C. law and who are incarcerated by the BOP pursuant to the Revitalization

Act are—like all other children serving prison sentences for state-law violations—entitled to

FAPEs.

Second, the Court concluded that it needed to resolve the question whether the

requirement that Plaintiff exhaust his administrative remedies under the Rehabilitation Act posed

a jurisdictional bar to that claim, and the Court concluded that the requirement, in this context, is

non-jurisdictional.

at 162–64. Having reached that conclusion, the Court went on to consider

Plaintiff’s Rehabilitation Act claim on the merits and agreed with the conclusion set forth in the

R&R that the claim lacked merit.

. The Court, accordingly, granted the BOP’s motion

to dismiss and granted in part and denied in part the District’s motion to dismiss.

Approximately a month later, the District filed the instant motion for reconsideration.

Dkt. 39. Plaintiff opposed that motion, Dkt. 47, and the District filed a reply brief, Dkt. 48.

II. LEGAL STANDARD

Because the Court has yet to enter final judgment, the District’s motion for

reconsideration is governed by Federal Rule of Civil Procedure 54(b), which permits the Court to

revisit any order that adjudicates “fewer than all the claims or rights and liabilities of fewer than

all the parties . . . at any time” before the entry of final judgment. Fed. R. Civ. P. 54(b).

Reconsideration of interlocutory orders is permitted “as justice requires.” Cobell v. Jewell,

(D.C. Cir. 2015) (citation omitted). Courts in this Circuit have recognized that relief

is appropriate “when the movant demonstrates: ‘(1) an intervening change in the law; (2) the

discovery of new evidence not previously available; or (3) a clear error in the first order.’”

Murphy v. Exec. Office for U.S. Attorneys,

(D.D.C. 2014) (quoting Zeigler v.

4 Potter,

(D.D.C. 2008)); see also Keystone Tobacco Co. v. U.S.

Tobacco Co.,

(D.D.C. 2003). Although the decision whether to reconsider

an order lies within the Court’s sound discretion, considerations of judicial economy and the

obligation of the courts “to secure the just, speedy, and inexpensive determination of every

action,” Fed. R. Civ. P. 1, require “good reason” before reopening matters once resolved. In Def.

of Animals v. Nat’l Insts. of Health,

(D.D.C. 2008).

II. ANALYSIS

The District moves for reconsideration on three grounds. First, it argues that the Court

“failed to address the District’s argument regarding the implications of

(k)(6),”

which, according to the District, precludes the application of the IDEA to individuals in BOP

custody. Dkt. 39 at 5 (capitalization omitted); see also

at 5–13; Dkt. 48 at 3. Second, the

District contends that the Court’s holding that the Revitalization Act did not impliedly repeal the

IDEA as applied to D.C. Code felons incarcerated by the BOP “was a question not squarely

presented to the Court and [was] not necessary to resolving the parties’ dispute.” Dkt. 39 at 13–

14. Third, the District argues that “reading the relevant statutes all together, the District ceased

being responsible for the education of D.C. Code felons in BOP custody by application of the

Revitalization Act.” Dkt. 48 at 2. For the reasons explained below, the Court is unpersuaded.

A. Subsection 1415(k)(6) of the IDEA

The District first contends that the Court failed to address one of its central arguments—

that

(k)(6) precludes the District from providing a FAPE to a child convicted of

violating D.C. law who is incarcerated by the BOP. That subsection of the IDEA provides:

Nothing in this subchapter shall be construed to prohibit an agency from reporting a crime committed by a child with a disability to appropriate authorities or to prevent State law enforcement and judicial authorities from

5 exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability.

According to the District, because “a function of the Superior Court for the District of

Columbia is to sentence felons, like . . . Brown, to BOP custody;” because “[s]uch persons shall

be subject to any law or regulation applicable to persons committed for violations of laws of the

United States consistent with the sentence imposed;” and because several provisions of the IDEA

are incompatible with federal imprisonment, § 1415(k)(6) precludes application of the IDEA to

those held in BOP custody. Dkt. 39 at 7–9.

Failing to consider or misunderstanding an important argument is, to be sure, a proper

ground for reconsideration. See King v. U.S. Dep’t of Justice,

(D.D.C.

2017). That, however, is not what happened here. Although the District is correct that the Court

did not discuss § 1415(k)(6) in its opinion, the District ignores the fact that the Court adopted the

portion of the R&R that considered—and rejected—the District’s § 1415(k)(6) argument. In the

words of the R&R:

Finally, the District of Columbia asserts that it “lacks authority to control [the] BOP’s provision of educational instruction” and that the IDEA may not be interpreted “to prevent State law enforcement and judicial authorities [from] exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability.” However, it does not explain how requiring it to abide by statutory requirements to provide a FAPE to Plaintiff would so interfere. It is worth noting that the IDEA does not require the District of Columbia to send personnel and supplies to federal prisons in order to fulfill its obligations, to “force[] . . . [the] BOP to permit the District to educate [Plaintiff],” or to force[] . . . [the] BOP to enter into some sort of agreement regarding his education.” . . . Among the possible forms of relief are “the establishment of a fund to be spent on the child’s education,” a funding agreement with a contractor or the BOP to provide Plaintiff’s FAPE, or post-incarceration compensatory educational services to make up for the failure to provide Plaintiff a FAPE while he was in BOP custody.

Dkt. 25 at 26–27 (internal citations omitted). Without pointing to any other “intervening change

in the law,” “discovery of new evidence,” or “clear error,” Murphy,

, the

6 District is seeking to rehash the same argument it unsuccessfully made before the magistrate

judge and before this Court. That does not constitute a “good reason” to reopen the Court’s

decision.

But even if the Court were again to address the District’s argument on the merits, the

result would not change. The District’s motion for reconsideration fails to explain why the

District’s obligation to provide Brown a FAPE would “prevent State law enforcement and

judicial authorities from exercising their responsibilities with regard to the application of Federal

and State law to crimes [he] committed.”

(k)(6). To be sure, the Revitalization

Act charges the BOP with “the custody, care, subsistence, education, treatment[,] and training”

of D.C. offenders, like Brown.

(b). But nothing in the Revitalization Act or

in

(b), which sets forth the BOP’s responsibilities for federal inmates’ care,

precludes the District from having a concurrent obligation—under the IDEA—to provide Brown

a FAPE. Contrary to the District’s assertions, the Court’s interpretation of the IDEA does not

impinge on the operations of the BOP. Rather, it imposes an obligation on the District to work

with the BOP to provide qualifying individuals a FAPE and, if that is not possible, to provide

compensatory education post-incarceration or other appropriate benefits.

With respect to the first of these options, it rings hollow for the District to insist that it

cannot cooperate with the BOP to provide a FAPE to D.C. Code felons incarcerated in federal

prison, without pointing to any evidence that it has ever tried to do so. See Dkt. 47 at 6 n.2

(Plaintiff noting that “[t]he District has never tried to conduct . . . evaluations, or to cooperate

with [the] BOP to ensure the evaluations take place, and it can present no evidence that to do so

is impossible”). The District argues, for example, that the BOP’s telephone policy would

preclude inmates from participating in an IEP meeting conference call. Dkt. 48 at 4–5. But, the

7 District provides no evidence that the BOP would refuse to provide any accommodations to

those who qualify for special education services under the IDEA. 1 With respect to the second

option, the District’s argument is circular: It contends that compensatory education is available

only to those children who have been denied a FAPE, and because Plaintiff was in the BOP’s

custody, he did not have a right to a FAPE in the first place. Dkt. 39 at 12. The District fails to

identify any authority, moreover, that would support such a crabbed view of the IDEA, which

was enacted “to ensure that all children with disabilities have available to them a free appropriate

public education that emphasizes special education and related services designed to meet their

unique needs and [to] prepare them for further education, employment, and independent living,”

(d)(1)(A) (emphasis added).

Finally, it bears note that the District’s argument stretches a provision of the IDEA

designed to preserve the authority of state enforcement and judicial authorities to enforce the

criminal law against children with disabilities to the snapping point. Although the Court has

little doubt that the District lacks authority to control or to direct the day-to-day operations of the

BOP, the District cites no authority for the proposition that § 1415(k)(6)—which preserves state

authority—is the source of such a restriction. In any event, nothing in § 1415(k)(6) or in any

other provision of law that the District cites precludes the District from making efforts to work

cooperatively with the BOP to provide children with disabilities who are serving D.C. sentences

1 The District does cite—in its objections to the R&R, see Dkt. 27 at 20—a case in which its “designated education providers” were denied access to a “D.C. public school student receiving special education services” who was convicted under Maryland law and incarcerated in a Maryland prison. Hester v. District of Columbia,

(D.C. Cir. 2007). There, the D.C. Circuit held that the District did not breach its agreement to provide the plaintiff with special education services when it attempted, but failed, to gain access to him in Maryland prison.

. Hester has no bearing, however, on whether the BOP will permit the District access to D.C. offenders, like Brown. In any event, the decision does not excuse the District from attempting to work with the BOP to provide special education services.

8 with the benefits to which they are entitled under the IDEA and, if necessary, from providing

incarcerated children compensatory education after they are released.

B. Implied Repeal

The District also argues that the Court erred in treating the question presented by this

case as whether the Revitalization Act impliedly repealed the IDEA as applied to children

convicted of crimes in the District and held by the BOP. Dkt. 48 at 2. That is incorrect. As

Plaintiff observes, the issue of implied repeal was front and center in the parties’ briefing. The

District insists that it did not argue implied repeal but, instead, argued that “reading the relevant

statutes all together, the District ceased being responsible for the education of D.C. Code felons

in BOP custody by application of the Revitalization Act.” Dkt. 48 at 2 (emphasis omitted). That

is merely calling a rose by another name; if there is any distinction between the contention that

the Revitalization Act terminated the District’s IDEA obligations to D.C. felons and the

contention that the Revitalization Act impliedly repealed the IDEA to the extent it applied to

D.C. felons, the distinction is a fine one, and it is of no substantive import.

Regardless of the framing, the crux of the District’s position is that the Revitalization Act

supersedes the plain language of the IDEA, which requires that all states (including the District)

that receive covered federal grants ensure that “[a] free appropriate public education is available

to all children with disabilities residing in the State,”

(a)(1)(A). The text of the

IDEA, moreover, affirms that this obligation continues while children with disabilities convicted

under state law are incarcerated in adult prisons. See

§ 1412(a)(11)(C) (addressing

assignment of responsibility for such children); id. § 1414(d)(7) (removing certain IDEA

requirements for such children); id. § 1415(m)(1)(D) (providing that “all rights accorded to

parents under this subchapter transfer to children who are incarcerated in an adult or juvenile

9 [f]ederal, [s]tate, or local correctional institution”). According to the District, the Revitalization

Act supersedes the IDEA, because it assigns the BOP responsibility for “the custody, care,

subsistence, education, treatment[,] and training” of those sentenced pursuant to D.C. law.

. That is, under the District’s theory of the case, the Revitalization Act may not

have mentioned the IDEA by name, but it relieved the District of its preexisting obligation to

provide a FAPE for all disabled children in the District, including those who are incarcerated.

The Court understood and rejected that argument.

C. Revitalization Act

Regardless of whether the District’s argument is framed as an implied repeal or a

reassignment of the obligation to comply with the IDEA from the District to the BOP, it is

unpersuasive. To support its position, the District again points to the text of the Revitalization

Act and the its legislative history. See Dkt. 39 at 14–15. According to the District, both

demonstrate that Congress intended for the “BOP to assume functions normally performed by

state governments.”

. As the Court previously explained, however, the fact that

Congress intended the BOP to assume the day-to-day costs of caring for D.C. offenders does not

preclude the IDEA from imposing a separate obligation on the District to provide incarcerated

D.C. felons with a FAPE. Brown,

. It reads too much into the lone

appearance of the word “education” in the Revitalization Act to conclude that Congress intended,

without elaboration, to reassign all of the District’s IDEA obligations with respect to incarcerated

children to the BOP, particularly in light of the fact that the IDEA is structured as a condition on

receipt of federal grants, which the District continues to receive. See Whitman v. Am. Trucking

Ass’n,

(2001) (“Congress . . . does not alter the fundamental details of a

regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide

10 elephants in mouseholes.”); see also Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy,

(2006) (“Our resolution of the question presented in this case is guided by the fact that

Congress enacted the IDEA pursuant to the Spending Clause.”). And, as the Court has

previously explained, it is equally untenable to conclude that Congress, again without

elaboration, intended to deny IDEA benefits to disabled children convicted of violating D.C. law,

unlike disabled children from every other state that receives IDEA grants. To the contrary, the

text of the IDEA makes clear that Congress intended, subject only to express limitations, to

provide “all children with certain physical or intellectual disabilities” access to a FAPE, Fry v.

Napoleon Cmty. Schs.,

(2017) (emphasis added), including children who are

convicted as adults under state law and incarcerated in adult prisons, cf.

(a)(11)(C);

§ 1414(d)(7); id. § 1415(m)(1)(D).

Nothing contained in the Revitalization Act or the legislative history that the District

invokes constitutes the type of clearly expressed exception that would relieve the District of the

obligation it bears as an IDEA-grant recipient. See FCC v. NextWave Personal Commc’ns Inc.,

(2003) (“When two statutes are capable of co-existence, it is the duty of the

courts, absent a clearly expressed congressional intention to the contrary, to regard each as

effective.” (citation and alteration omitted)). The Court, accordingly, reaffirms its conclusion, as

explained in greater detail in its prior decision and in the R&R, that the District remained

obligated to provide Plaintiff with a FAPE while he was incarcerated or to provide him with

compensatory education after he was released, as required by the IDEA.

CONCLUSION

For the foregoing reasons, the Court the District’s motion for reconsideration, Dkt. 39, is

hereby DENIED.

11 SO ORDERED.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: April 30, 2019

12