UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

HAWA LATTISAW, parent of minor child M.L.,

Plaintiff, Case No. 1:22-cv-510 (TNM) v.

DISTRICT OF COLUMBIA,

Defendant.

MEMORANDUM OPINION

A parent was displeased with an administrative decision about her child’s disability

services. So she sued the District of Columbia. Reviewing dueling motions for summary

judgment, a Magistrate Judge recommended that the Court remand the case for more

administrative hearings. But because the parent failed to meet her burden of showing that her

child’s substantive rights were violated during the administrative proceedings and then never

supplemented the record here, this Court rejects her request for vacatur and remand.

I.

The Individuals with Disabilities Education Act offers the District of Columbia federal

funding to provide a “free appropriate public education” (FAPE) to disabled children.

(a)(1)(A). To ensure a child receives a FAPE, services must conform to “the [child’s]

individualized education program,” a plan for educating her.

(9)(D).

M.L. attends D.C. public schools. Because M.L. has disabilities, she has had an

individualized education program (IEP) for over ten years. See Administrative Record (AR) at

29, ECF No. 8. A few years ago, the District re-evaluated M.L. and crafted a new IEP based on that evaluation.

at 127–28. But M.L.’s mother, Hawa Lattisaw, disapproved of that IEP and

asked the District to pay for an Independent Educational Evaluation. See

at 797–803.

After hearing little from the school for two months, Lattisaw filed an administrative due

process complaint against the District. See

at 25–27. She asked that the District be made to

pay for the Independent Evaluation and claimed that the school had denied M.L. a FAPE when it

failed to provide the testing. See

at 29–32. And she alleged that the school unreasonably

withheld some of M.L.’s educational records. See

. In response, the District offered

M.L. a series of tests. See

at 461–62. The case then proceeded into various administrative

hearings.

In the end, a Hearing Officer found that the school’s delay in responding to Lattisaw’s

testing request counted as a procedural violation of the IDEA. See

. But the Hearing

Officer found that there was not enough evidence to show that the procedural violation denied

M.L. a FAPE, so he dismissed that part of Lattisaw’s claim without prejudice. See

at 14–16.

In his view, she could renew her administrative complaint once M.L. had completed the series of

tests. See

. That way, Lattisaw might be able to show that M.L. had been denied

services that she needed while waiting for an Independent Evaluation.

Lattisaw then sued here, alleging that the Hearing Officer made four mistakes: (1)

“finding that Plaintiff was not entitled to an Independent Education Evaluation at public

expense,” (2) failing to find that the “procedural violation rose to the level of a failure to provide

a FAPE to the Student,” (3) finding that the tests that were eventually provided counted as an

Independent Evaluation, and (4) failing to provide some of the relief the parent had requested.

Compl. ¶¶ 29–35, ECF No. 1. The Court referred the case to a Magistrate Judge, and both

parties moved for summary judgment.

2 The Magistrate Judge issued a Report & Recommendation, suggesting the following:

The Court should deny the parent’s motion for summary judgment to the extent that it challenges

(1) the Hearing Officer’s finding that the District need not pay for an Independent Evaluation

and (2) his order that the school convene a team to decide whether M.L. should get

compensatory education. And it should grant the District’s cross motion on those points. Plus,

the Court should grant the parent’s motion to the extent that it challenged the Hearing Officer’s

“conclusion that it was premature to consider whether the delayed IEE was a substantive

violation of the IDEA” and deny the District’s motion on that point. Finally, the Magistrate

Judge recommends that the Court remand to the Hearing Officer to decide whether the

procedural violation counted as a substantive one. See Rep. and Rec. (R&R) at 24, ECF No. 18.

The District objects. In its view, the R&R wrongly found that the Hearing Officer “erred

in simply dismissing the claim without prejudice as ‘premature,’ instead of digging deeper into

the relevant facts.” District Objections to R&R (District Objections) at 9, ECF No. 20 (quoting

R&R at 21). And the District disagrees with the R&R’s suggestion to vacate and remand on that

point. See

II.

Normally, the Court “must determine de novo any part of the magistrate judge’s

disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). But objections that

“merely rehash an argument presented and considered by the magistrate judge are not ‘properly

objected to’ and are therefore not entitled to de novo review.” Shurtleff v. EPA,

(D.D.C. 2013). The Court “may accept, reject, or modify the recommended disposition;

receive further evidence; or return the matter to the magistrate judge with instructions.” Fed. R.

Civ. P. 72(b)(3).

3 III.

A.

Only one part of the Hearing Officer’s decision remains in dispute: The Hearing Officer

found that he lacked enough evidence to decide whether the procedural violation violated M.L.’s

right to a FAPE and thus he dismissed that claim without prejudice. See AR15.

As he explained, “[a] delay does not affect substantive rights if the student’s education

would not have been different had there been no delay.”

at 14 (quoting D.R. ex rel. Robinson

v. Dist. of Columbia,

(D.D.C. 2009)). And without the results of the new

tests that the District had authorized, the Hearing Officer did not have enough evidence to tell

“whether the delay in [the school] granting [the tests] will” show that M.L.’s IEP would have

been different but for the District’s delay. AR14–15. And thus, once M.L. completed the new

tests the District had authorized, “it can then be determined if the Student’s education is

different, and if so, what remedy is appropriate.”

. So the Hearing Officer dismissed

that claim without prejudice.

The R&R “acknowledge[d] that the Hearing Officer had little information from which to

[decide] whether the delayed [testing] denied M.L. a FAPE.” R&R at 20. And the Magistrate

Judge noted that she “face[d] the same problem.”

As the R&R explained, briefing and expert

testimony before the Hearing Officer did “not establish whether the delay deprived M.L. of a

FAPE or educational benefit, or significantly impeded the Parent’s ability to participate in the

process.”

. In other words, it did not show whether the procedural violation was also

substantive.

Indeed, while the record had evidence from before Lattisaw requested more testing,

“there is little evidence in the record about M.L.’s IEP and related developments after [the

4 testing request], thus making it hard to ascertain whether and how a more timely [Independent

Evaluation] would have affected her IEP.”

Finding that “the record is not robust enough,”

the Magistrate Judge recommended vacating the Hearing Officer’s decision.

And she

suggested remanding the case for the Hearing Officer to determine whether the procedural

violation was substantive too. See

The District protests that the case should not be remanded to the Hearing Officer. The

parent bore the burden of showing the Hearing Officer that there had been a substantive

violation. See

(6)(A). And she bore the burden in this case too. S.B. v.

Dist. of Columbia,

(D.D.C. 2011). And because both the Hearing Officer

and the Magistrate Judge lacked enough evidence to decide the substantive denial of a FAPE

issue, Lattisaw failed to meet her burden. See District Objections at 5–6. More, she could have

tried to introduce more evidence in this case but never did so.

at 6 (citing

(i)(2)(C)(ii)). Because of this, the District says, dismissal was entirely appropriate. See

Plus, the District adds, “hearing officers sit in equity” and thus have an “implied power

. . . to dismiss claims without prejudice.”

at 6–7.

B.

The Court agrees with the District and rejects the challenged portion of the R&R. 1 For

one, Lattisaw concedes that she failed to meet her administrative burden by never meaningfully

contesting it in her opposition. See Lattisaw Opp’n (Opp’n), ECF No. 21. And regardless, the

Court agrees with both the R&R and Hearing Officer’s determinations that “the record is not

1 The parent argues that the R&R should be reviewed for clear error because the District made similar arguments at summary judgment. Opp’n at 4. But even if Lattisaw is right, the Court would still reject the R&R’s recommendation to remand this case and its finding that the Hearing Officer erred. 5 robust enough” to determine the substantive denial of a FAPE issue. R&R at 21; AR15. And

thus, Lattisaw cannot have carried her burden of showing that the District’s delay amounted to a

substantive violation.

Rather than contesting the District’s claim that she never met her burdens, Lattisaw

insists that a remand makes prudential sense because hearing officers are better suited to hear

new evidence than federal courts. See

. That may be so, but it misses the point. If she

failed to meet her burden of showing a substantive denial of a FAPE, then the Hearing Officer

was not wrong to dismiss that claim, especially since he did so without prejudice.

Lattisaw could have re-filed her claim with new evidence before a hearing officer.

Instead, she sued in federal court, again failing to offer new evidence. Now, she asks the Court

to return the case to a hearing officer to present evidence that she could have presented in a new

administrative claim or to this Court. This the Court will not do.

IV.

Because the Hearing Officer did not err in dismissing Lattisaw’s substantive-violation

claim without prejudice, the Court will reject the part of the R&R finding otherwise. And the

Court will reject the related suggestion to vacate that part of the Hearing Officer’s decision and

remand for further proceedings. But the Court will accept the rest of the R&R and will thus

grant summary judgment to the District in full.

A separate Order will issue today.

2023.05.30 15:03:18 -04'00' _____________________________ Dated: May 30, 2023 TREVOR N. McFADDEN, U.S.D.J.

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