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Case number 15-70-2.

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B.D., a minor, by and through his parents and ex-friends and in Brantley, Davis at L. Appellants v. District of Columbia.

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Ms.

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Sevet for the appellants, Mr. Love for the appellate.

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I remain in court.

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I am Diana Savitt appearing on behalf of minor plaintiff BD and his parents, Anne and Brentley Davis.

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With this permission, I will reserve three minutes for rebuttal.

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I am assisted by Alyssa Patzol as a staff attorney out with the Children's Law Center, which is one of the ME's courier offices.

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We are asking this court today to find, as seven other circuit courts have found, that there is a right to enforce an administrative win under the Individuals with Disabilities Education Act in federal court.

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We would note that three courts have found that there is a direct right of enforcement under the Individuals with Disabilities Education Act, known as IDEA.

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Four courts have found that it is enforceable under 42 U.S.C.

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section 1983.

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Those are older cases than the three finding the direct right of action under the IDEA.

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And one circuit

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The 10th Circuit, while not holding directly, has indicated in dicta, and cited with approval, the First Circuit's decision finding.

[00:02:15] Speaker 05:
And we've indicated in dicta that there is no right of action, right?

[00:02:20] Speaker 02:
You're referring, Your Honor, to the 2006 Blackman decision.

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The Blackman decision that is dicta, issued before the court.

[00:02:27] Speaker 05:
That's what I said.

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Yes.

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Yes.

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Yeah.

[00:02:31] Speaker 05:
So go ahead.

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I mean, there's circuit splits on everything.

[00:02:34] Speaker 05:
So why don't you start with the language of the statute?

[00:02:38] Speaker 05:
Your case would be stronger if it said aggrieved party, but it says aggrieved by the findings and decisions.

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The specific language in that section says a party aggrieved by the findings and decisions.

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The three decisions, and most particularly the Nevis Marquez case,

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have found that when there is no compliance with the decision, that creates an agreement.

[00:03:04] Speaker 05:
I know that, but I don't understand why those decisions.

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You have to convince us that those decisions are correct, given this language.

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And also, the district pointed out in its brief that there's a statute of limitations for this.

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That you have to sit within 90 days?

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And their point, which you didn't respond to, at least I don't think you did in your reply brief, was that if Congress had intended a cause of action.

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By the way, I think your argument about purpose is powerful.

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I get that.

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But we have this statutory language that we have to deal with here.

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School system points out that the 90-day statute of limitations is pretty powerful evidence that Congress did not have in mind a suit to enforce a successful administrative hearing office or decision.

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Because there's no indication that, I mean, there's no reason to expect that violations would occur within those 90 days.

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And you didn't respond to that in the reply

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You didn't say much at all about this in the reply brief.

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You switched to the implied theory.

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So I take it, the way you began your argument, you're not conceding this point.

[00:04:29] Speaker 02:
No, we're not conceding that.

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Essentially, there's a reason for having a 90-day limitation on an appeal.

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And what the cases say is it's very important when the student and or parents have lost their case that that matter be resolved quickly because the needs of a special needs child are at stake.

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Correct.

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When there is a win by the student or parents, compliance may or may not come quickly.

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In this case, for example, the district.

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So is it your position then that the 90-day statute doesn't apply at all to a suit to enforce?

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The 90-day statute would not apply to a suit to enforce, the reason being that the compliance might or might not occur within that 90 days.

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In this case, for example, they were given 70 days to apply.

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The point that we made in the reply brief was that the statute says there's a right of appeal within 90 days for an aggrieved party.

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But it is silent about how one enforces an administrative way.

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And the district's response on that was, well, go to the state enforcement procedure, state complaint procedure.

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And that is an ineffective remedy.

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Therefore, one looks at the canon line of authority where the statute is silent about enforcement

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But there is this statute silent.

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It says aggrieved by the decision.

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So why is that statutory silence?

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I mean, I would agree with you.

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If it was silent, we could look at the fact that there's no other effective remedy.

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And we could look at your very powerful arguments about purpose.

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I think you've got a problem with the clarity of this language, aggrieved by the decision.

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That is the language that gives the right to appeal an adverse decision.

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It does not say only an aggrieved party may appeal.

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And it just does not address it.

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But we only have jurisdiction over causes of action awarded by statute.

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That is correct.

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Right.

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So you have to find an affirmative grant of a cause of action to be able to make this case.

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Well, that is right.

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Well, as I said, we believe that the three other circuits that have found that have analyzed it correctly.

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But for current purposes, we would also submit that because it does not bar an enforcement action and inspects

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Act does not speak to enforcement at all.

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The enforcement right is found only in the regulations that the enforcement right must be read into the statute following the well-established precedent.

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So that's your argument that it's implied.

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Yes.

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Which argument, I think, is only made in your reply brief.

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Yes, it was in response to the district's rate argument that the statute does not address it.

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That still means the district, in terms of the adversarial process here, the district hasn't had an opportunity to respond to your argument as is implied.

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Normally what you would do is in your blue brief you would say, we think the statute allows it, but if it doesn't, there's an implied cause of action.

[00:08:14] Speaker 02:
Well, we did make the argument in the opening brief that there was a general federal right of jurisdiction to hear this case, and the reply brief expanded on that in direct response to the districts.

[00:08:28] Speaker 05:
Let me ask you this about the statutory interpretation.

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Other than the other circuits, you know, this circuit has lots of cases which say, you know, when the language of the statute is clear, we follow the language of the statute, even if it creates, you know, problems with respect to the purposes of the statute.

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Do you have a case that you can cite that would support

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your approach under this statute.

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What's your best case you can think of?

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I would cite the score to the Supreme Court's recent decision in King v. Burwell, the Affordable Care Act case, where they said you look to the statute as a whole, you don't look to a specific section, you have to interpret the statute to give effect to its purposes.

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And that decision...

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King viewed the phrase established by the state, it found that that was ambiguous after reading it along with other provisions of the statute.

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And here, the other provision of the statute, the statute of limitations, goes the other way.

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Smith versus Robinson, the Supreme Court case, which ultimately Congress overruled by amending the statute, did say that there is a judicial right to enforce

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a child's right to a free, appropriate public education.

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That was a general statement of that.

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But there is an overriding statutory grant of the right to a free, appropriate public education enforced through the procedures which the Davis has followed, taking this two-way due process case, winning that case for the most part, and then trying to enforce it.

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Could the Secretary of Education remedy this?

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The Department of Education.

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They could cut off funds to a district that refuses to comply with administrative judges.

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The United States Department of Education?

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Yes.

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They can, in theory.

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In fact, this is not in the record, but there have been multiple citations over the years by the Department of Education of the District of Columbia Public Schools for noncompliance.

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They have never actually cut off funds.

[00:10:39] Speaker 05:
Really, for not complying with decisions of administrative judges?

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For general noncompliance with the IDEA.

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Until this decision is issued, I'm not aware of any issues.

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that were not of noncompliance with decisions of hearing officers that were not enforced in federal court.

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Before Judge Friedman issued his 1999 order in the Blackman Jones case, these cases were filed as enforcement actions.

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After that, when there was a need for emergency relief, as the amicus point out, preliminary injunctions were filed in that case, and there were at least 100 brands of preliminary injunctions.

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So the Department of Education did not become involved in the enforcement because there was a procedure and, as I said, until the decision issued in this case, it had not really been an issue that these cases were enforceable.

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In the Porter case that you cite, the government, the Justice Department filed an amicus brief.

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And it said that when there's failure to comply with a hearing officer decision, the right remedy is for the parties to then go back for another due process hearing.

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Because if they're not complying with the order, you're not getting a free, appropriate public education.

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Go have another hearing officer decision.

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And if the hearing officer doesn't or cannot enforce

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the terms needed to get the free, appropriate public education, then you will be able to have your appeal.

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Why isn't that the right way to enforce these?

[00:12:21] Speaker 02:
In this case, there are understandings in the District of Columbia.

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The hearing officers do not enforce other hearing officer decisions.

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They do not have jurisdiction to do so.

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And what we would be doing would be asking one hearing officer to interpret another hearing officer's decision and to

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enforce it.

[00:12:42] Speaker 04:
Right, and if that hearing officer says either, no, I won't give you what you need for free, appropriate public education, or I can't, then you're agreed by the findings of that hearing officer.

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Because if you can't, if you don't have a decision that's being enforced, you don't have the education you're entitled to, and then you will have a decision that isn't giving you what you need, and you'll be able to seek judicial review.

[00:13:06] Speaker 04:
That's the Justice Department's view of these regulations.

[00:13:09] Speaker 02:
It seems to, though, put the

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the parents and the child on an endless loop of more and more hearings, particularly when there's no jurisdiction.

[00:13:19] Speaker 02:
I'm unfortunately running into my rebuttal time.

[00:13:21] Speaker 05:
That's OK.

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We have a few more questions.

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And then, I guess the other question I had is what are you still now trying to enforce in this case?

[00:13:33] Speaker 02:
At this point, we are seeking compensatory education for BD for more than a year of not getting appropriate educational services, tracing back to that.

[00:13:43] Speaker 04:
But that's not enforcing the hearing officer decision.

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That was your objection to, at least the one objection I thought you had to the hearing officer decision was that it gave too little

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Is that correct?

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Am I incorrect?

[00:13:53] Speaker 02:
No, there were two separate requests for compensatory education below.

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The first was for the period from August 2011 through the date of the hearing where we said he did not give enough.

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The other would be since the district did not comply with the hearing officer's decision by completing BD's educational program within the specified time, even after we fraudulently gave them an extension on that, he went without educational services for a substantial period of time, about that a year.

[00:14:24] Speaker 04:
So can I break this into two parts then?

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So with respect to the hearing officer decision that you obtained, there's nothing left that you want to enforce.

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You still have an objection to the scope of compensatory services offered for that first window of time until you got the hearing officer decision, but there's nothing left that you need to enforce in that decision?

[00:14:46] Speaker 02:
No, because under the authority of the boost case, the delayed compliance would give right to an entitlement.

[00:14:52] Speaker 04:
Right, so that's compliant.

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Well, we would be enforcing it in the sense of seeking a determination by the court that the district did not comply, and because

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With the passage of time, it's been overtaken by events.

[00:15:09] Speaker 05:
Was that failing to completely compensate the parents for their costs?

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Is that what the district has failed to do?

[00:15:17] Speaker 05:
The district says this is all about $900 or something.

[00:15:21] Speaker 02:
No, that's not correct.

[00:15:22] Speaker 02:
That was one issue raised, and that is a mischaracterization.

[00:15:26] Speaker 05:
So the district has reimbursed the parents?

[00:15:31] Speaker 02:
No, they have not.

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That money has never been paid, but we wouldn't be here over $900.

[00:15:37] Speaker 04:
This is what I'm trying to find out, is whether you still have a live enforcement objection even as to the original hearing officer decision.

[00:15:45] Speaker 02:
Yes, because they did not comply with the original hearing officer's determination

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Eventually, an individualized education plan was proposed, a placement was proposed, and then withdrawn, and we went to a second due process hearing, which is not part of this case, but for the period of time before all of

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those later events happened, BD received no educational services.

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Under the hearing officer's decision, he was to receive services until he had an appropriate educational plan, which was denied to him for approximately a year.

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And although with the passage of time, certain events have perhaps made actual enforcement a simple matter of a declaration of a finding that they didn't comply

[00:16:33] Speaker 02:
he would still be entitled to compensatory education for it.

[00:16:36] Speaker 05:
Wait, hold on.

[00:16:38] Speaker 05:
Just to follow up on what Judge Mallette said, there is a second due process hearing.

[00:16:48] Speaker 05:
If the district had failed, let's assume you're right, that the district failed to provide the educational services directed by this hearing officer,

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Wouldn't that then become a basis for more compensatory education in the second case?

[00:17:04] Speaker 02:
It could be, although on different grounds.

[00:17:06] Speaker 05:
Right, as compensatory education.

[00:17:08] Speaker 05:
But it would be a bigger compensatory education award because the failure to provide a fee would be far more serious, correct?

[00:17:17] Speaker 06:
Yes, it would.

[00:17:17] Speaker 05:
So that isn't judgeable at right.

[00:17:19] Speaker 05:
The remedy here, given the clarity of the statute, is the second hearing officer's hearing.

[00:17:29] Speaker 02:
Not completely.

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There can certainly be an award of compensatory education in connection with the further disputes over the appropriateness of the ultimate proposal from ED, but that would not necessarily resolve the compliance with the first issue.

[00:17:44] Speaker 05:
But wouldn't the compensatory education component address that?

[00:17:47] Speaker 02:
I'm sorry?

[00:17:48] Speaker 05:
Wouldn't the compensatory education

[00:17:51] Speaker 05:
You're right.

[00:17:52] Speaker 05:
You're right.

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The faith question in the next hearing is different from the one here.

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But you would presumably, the parents are entitled to compensatory education under Reid in the other hearing also.

[00:18:05] Speaker 05:
And if in fact the district has failed to fulfill its obligations under this administrative, this hearing officer's order, then presumably that would require a much larger compensatory education award in the next one.

[00:18:19] Speaker 02:
But in the second hearing, the hearing officer could certainly find that the district failed in its obligation to propose a free, appropriate public education BD as of March 2013, but could find that it had not failed prior to that.

[00:18:41] Speaker 02:
And so that would still leave us with a compliance issue up till that point.

[00:18:45] Speaker 05:
Let me ask you completely what you thought about that issue.

[00:18:48] Speaker 04:
Before I change the subject.

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Oh, I just want to go to one thing.

[00:18:50] Speaker 04:
You said certain things have changed and really maybe all you needed is a declaration that they didn't enforce.

[00:18:58] Speaker 04:
Well, I'm trying to think.

[00:19:00] Speaker 04:
Do they owe you $900 still or not?

[00:19:02] Speaker 02:
No, they have not paid that sum of money.

[00:19:04] Speaker 04:
OK.

[00:19:05] Speaker 02:
That remains.

[00:19:06] Speaker 04:
So things haven't changed enough that there's something that actually.

[00:19:08] Speaker 02:
No, things have not changed on the reimbursement.

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I just don't want to overemphasize what's a relatively small amount of money.

[00:19:15] Speaker 02:
But what has happened since then, because it's now 2016, and we're talking about a decision that issued in 2012, is that BD has had additional IEP meetings, finally received an individualized education plan, which has gone to due process since then, and has had proposals for educational placements for him to attend.

[00:19:39] Speaker 02:
And those are being litigated in subsequent matters.

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when we filed our motion for summary judgment, which post-dated all of those activities asked specifically for relief for the period through the date that the new due process hearing was requested on the theory that after that, that was really within the province of the new due process hearing and the new hearing officer.

[00:20:06] Speaker 00:
What are you asking for in count one?

[00:20:09] Speaker 02:
In count one, we are asking for compensatory education to restore BD to the educational achievement he would have had had they provided an appropriate education.

[00:20:20] Speaker 02:
from August of 2011 through March of 2012.

[00:20:23] Speaker 05:
And the point there, as I understand it, is that the five hours of occupational physically wasn't enough, right?

[00:20:31] Speaker 02:
No.

[00:20:31] Speaker 05:
That was designed so that's not your argument?

[00:20:35] Speaker 02:
That is.

[00:20:35] Speaker 02:
That is your argument, right?

[00:20:36] Speaker 02:
That wasn't enough.

[00:20:38] Speaker 02:
When I said no, I meant no was not enough.

[00:20:39] Speaker 00:
Sorry.

[00:20:39] Speaker 00:
And your view of what is enough to deal with that is what?

[00:20:45] Speaker 02:
We had actually submitted a compensatory education plan.

[00:20:50] Speaker 02:
The occupational therapy was designed for one purpose only, which was to remediate the egregious behaviors that had developed during the hiatus from education.

[00:21:00] Speaker 02:
He would need individualized education instruction, highly specialized instruction.

[00:21:07] Speaker 02:
He would need other supportive services that everybody agrees he needs, behavioral support services,

[00:21:13] Speaker 02:
speech language therapy and so forth and none of that was considered or ordered.

[00:21:20] Speaker 02:
because the sole remedy was to remediate his behavior, which was necessary.

[00:21:27] Speaker 02:
We're not arguing that he didn't need that, but it didn't address the academic needs.

[00:21:32] Speaker 02:
It didn't address the other supportive services that he had not received for those six months.

[00:21:36] Speaker 00:
And so you're saying that's just something that someone has to think about if we agree with you, because it's hard to figure out what you're entitled to for those past failures so many years later, and you're saying that

[00:21:50] Speaker 00:
that should be thought about now because it affects not only what was going on during those several months, but the ability of him to continue on later on.

[00:22:01] Speaker 02:
That is correct that he had lost quite a bit of ground during that time.

[00:22:06] Speaker 02:
He continued to lose ground because he did not get

[00:22:09] Speaker 02:
those services designed to put him back where he could have been.

[00:22:14] Speaker 02:
That was the whole point that the Davises were seeking comprehensive and extensive evaluations to figure that out.

[00:22:21] Speaker 05:
Let me ask you just quickly about your 1983 claim.

[00:22:28] Speaker 05:
DCPS says that that's forfeited because it wasn't raised until your reply brief.

[00:22:34] Speaker 05:
And also, you didn't even plead a 1983 cause of action.

[00:22:39] Speaker 05:
What's your best argument that we can entertain that?

[00:22:42] Speaker 02:
I would suggest the Jean, I believe it's pronounced, versus Hathaway case.

[00:22:47] Speaker 02:
which says that if the underlying facts are pled and a claim for relief, the specific theory advanced is not required to be pled.

[00:22:58] Speaker 02:
As long as the proper claim is placed before the court, the particular legal theory can be addressed.

[00:23:07] Speaker 02:
That is one case.

[00:23:13] Speaker 02:
Also in the Singleton.

[00:23:15] Speaker 05:
Does your 1983 claim depend entirely on the inadequacy of other remedies?

[00:23:21] Speaker 02:
That is correct.

[00:23:22] Speaker 02:
You don't reach 1983.

[00:23:24] Speaker 05:
Did you plead that?

[00:23:25] Speaker 02:
No.

[00:23:25] Speaker 05:
So I don't understand why that case would apply.

[00:23:28] Speaker 02:
We did not plead it because it appeared based on the more recent authorities, including the two

[00:23:36] Speaker 02:
cases that had been decided at that point, the first and the ninth, that the better claim was a direct cause of action under the IDEA and that in order to reach 1983 one would have to find... Did you say there was a second reason that we could consider it?

[00:23:51] Speaker 02:
Under Singleton v. Wolf, the Supreme Court case, it says that the court can reach, in its discretion, a clear legal issue that has not been passed upon before.

[00:24:03] Speaker 02:
The important thing to do here is to do justice.

[00:24:09] Speaker 02:
This case is obviously about B.D.

[00:24:11] Speaker 02:
and his parents.

[00:24:12] Speaker 02:
but it is also about the children of the District of Columbia.

[00:24:16] Speaker 05:
Great.

[00:24:17] Speaker 04:
Did you have anything?

[00:24:17] Speaker 04:
Yeah, I just had one other quick question, because you talked about, in addition to the occupational therapy that you received for count one, that you wanted

[00:24:30] Speaker 04:
He had to be evaluated and assessed, and then he really had to essentially determine what he needed to then get him.

[00:24:37] Speaker 04:
And I don't mean to confuse the two cases, but I'm just trying to find out what's still at issue in this case.

[00:24:41] Speaker 04:
Did the IEP that he obtained address those things, or is there still a gap on the compensatory education for that past period that you need to have remediated?

[00:24:52] Speaker 04:
It wasn't clear from your briefing to me.

[00:24:54] Speaker 02:
No.

[00:24:54] Speaker 02:
The IEP was prospective only.

[00:24:56] Speaker 02:
It did include a high level of service, but it included no provisions to address the gaps in his education.

[00:25:07] Speaker 02:
The evaluations that were conducted did not address where he could have been as opposed to where he was.

[00:25:14] Speaker 02:
And the IEP, every IEP that's been developed for him since does not address that.

[00:25:21] Speaker 02:
It just says going forward, this is what he's going to get.

[00:25:23] Speaker 04:
And the compensatory education plan that you say you submitted, that did spell out the additional things that you needed other than occupational therapy and other than the Meridel placement?

[00:25:34] Speaker 04:
Oh, yes, yes.

[00:25:35] Speaker 04:
And that's in the record, the compensatory education plan?

[00:25:38] Speaker 02:
Yes, it is in the record.

[00:25:39] Speaker 02:
It's in the record on appeal.

[00:25:45] Speaker 02:
Excuse me, the compensatory plan that we submitted laid out in great detail the highly intensive services that he needed to remediate, noting in particular the long period of time that he had not received appropriate services and what it would take.

[00:26:01] Speaker 02:
Thank you.

[00:26:13] Speaker 07:
May it please the Court, Richard Love for the District of Columbia.

[00:26:18] Speaker 07:
As the Court has pointed out, the plain language here does limit judicial review to the parties that are agreed by the findings and decisions of the hearing officer, and adherence to that text will not disregard a clearly expressed contrary legislative intent, and it's imperative here... It does produce a ridiculous result.

[00:26:38] Speaker 05:
It does produce a ridiculous result, doesn't it?

[00:26:42] Speaker 05:
Which is that parents who win before an administrative judge are worse off than parents who lose.

[00:26:52] Speaker 07:
No, that's presuming that there's going to be disregard for the hearing officer's decision.

[00:26:56] Speaker 07:
Well, but that's what this case is all about.

[00:26:58] Speaker 07:
Well, I think you need to look at the congressional intent here.

[00:27:03] Speaker 05:
Your argument has to be.

[00:27:05] Speaker 05:
Yes, it produces a ridiculous result, but that's what the statute requires, right?

[00:27:11] Speaker 05:
I mean, what's the explanation for why would Congress have done it the way you think it did?

[00:27:14] Speaker 07:
I think that it likely reflects Congress's expectation that states would provide their own remedies for any failure to implement.

[00:27:22] Speaker 05:
For any remedy for violations by their own officer?

[00:27:24] Speaker 05:
I mean, why would you think about it that way?

[00:27:27] Speaker 05:
Why would you say, why would Congress say, OK, we're going to create a nationwide right to education for children with disabilities, right?

[00:27:39] Speaker 05:
It's a clear statutory right.

[00:27:42] Speaker 05:
And states that don't comply with their own administrative judge orders in due process hearings, remedies for those, you've got to go to the state that's denying the remedy.

[00:27:58] Speaker 05:
Well, first of all, say that makes any sense.

[00:28:02] Speaker 07:
Public education is rooted in local control.

[00:28:05] Speaker 07:
So you might have a state agency as a super.

[00:28:08] Speaker 05:
This is a federal entitlement.

[00:28:11] Speaker 05:
It is a federal entitlement.

[00:28:13] Speaker 05:
All federal entitlements I know of provide for federal remedies.

[00:28:18] Speaker 05:
Can you imagine Title VI prohibits discrimination by saying, okay, for state violations for that, you remedy in the state courts?

[00:28:32] Speaker 05:
I never heard of any.

[00:28:33] Speaker 05:
Nobody would think that that's a rational approach.

[00:28:35] Speaker 07:
Well, there's two issues here.

[00:28:38] Speaker 07:
One, his idea is spending clause legislation.

[00:28:41] Speaker 05:
What does that have to do with this?

[00:28:43] Speaker 07:
Well, because state participation and idea has to be set forth unambiguously.

[00:28:48] Speaker 07:
And there's nothing in this statute that provides clear notices to state participants.

[00:28:55] Speaker 07:
that it authorizes district courts to enforce favorable hearing officer decision.

[00:29:00] Speaker 07:
The second is that there is... That goes to your argument that the statute's clear.

[00:29:07] Speaker 05:
I was asking you, what's the rationale for the result it produces?

[00:29:12] Speaker 07:
I think the rationale is, as I said, that the Congress likely did not want to embroil district courts in the numerous types of disputes that can be instilled under the rubric of enforcing a favorable hearing officer determination.

[00:29:33] Speaker 05:
So you think the language grieved by the order.

[00:29:36] Speaker 07:
I haven't finished.

[00:29:39] Speaker 05:
Expresses congressional intent on exactly this issue.

[00:29:43] Speaker 05:
Did Congress actually thought of this?

[00:29:45] Speaker 07:
I think Congress intentionally did limit a remedy in district court.

[00:29:53] Speaker 07:
to what it clearly says, and that is parties that are grieved by the findings and decisions of a hearing officer.

[00:30:02] Speaker 07:
I think that was intentional, and the question is, is it absurd to do that?

[00:30:07] Speaker 07:
And my suggestion is it's not absurd to do that because

[00:30:12] Speaker 07:
Congress likely expected that these hearing officer's decisions would be addressed by the states as required by federal regulations.

[00:30:27] Speaker 05:
Is there any legislative history on that at all?

[00:30:29] Speaker 05:
I'm just asking.

[00:30:30] Speaker 05:
Not that I'm aware of.

[00:30:31] Speaker 05:
So we're just guessing about what Congress meant here.

[00:30:37] Speaker 07:
Well, I think that's a reasonable inference that the Congress left it to the states to enforce in an area that's well-rooted in local control in spending clause legislation that requires a contrary scheme to be a clearly... I'm just trying to understand why Congress would have treated

[00:31:05] Speaker 05:
the enforceability of administrative, of hearing officer decisions differently depending on... I understand your argument about the states.

[00:31:16] Speaker 05:
I get that.

[00:31:17] Speaker 05:
And I also understand the plaintiff's arguments about federal enforcement.

[00:31:21] Speaker 05:
What I don't understand is what's the rationale for Congress distinguishing between cases where the parents prevail before the hearing officer and cases where they don't?

[00:31:34] Speaker 05:
That's my question.

[00:31:37] Speaker 05:
Because our cases say we follow the plain language of the statute unless it produces an absurd result.

[00:31:45] Speaker 05:
Right?

[00:31:46] Speaker 05:
Right.

[00:31:46] Speaker 05:
OK, so what's not absurd about that?

[00:31:49] Speaker 07:
Well, I don't think it's absurd when there is a local remedy to enforce you.

[00:31:57] Speaker 05:
You're not answering my question.

[00:31:58] Speaker 05:
My question is why is it not absurd to distinguish between decisions where the plaintiffs prevail and decisions where they don't?

[00:32:09] Speaker 05:
That's my only question.

[00:32:12] Speaker 07:
Well, because the Congress could well have believed that the states would comply with hearing officers' decisions, that there is a great deal of emphasis placed on local remedies within IDEA's procedural requirements itself.

[00:32:38] Speaker 07:
and that in addition there was a state enforcement procedure that was required by federal regulation.

[00:32:49] Speaker 04:
You thought that state enforcement procedure was only prospective contempt or essentially like contempt.

[00:32:54] Speaker 04:
You have to go, come on, now really please go do it.

[00:32:57] Speaker 04:
Did they have any ability to remedy the

[00:33:00] Speaker 04:
harm caused by delayed unfortunate under the state system?

[00:33:04] Speaker 07:
Yes, they do.

[00:33:06] Speaker 04:
Where is that?

[00:33:07] Speaker 07:
In the procedures, ASI's procedures are in the appendix, and it clearly indicates that they can order compensatory education, they can order future additional services, and they can order monetary reimbursement.

[00:33:20] Speaker 05:
Are you suggesting now that in this case,

[00:33:25] Speaker 05:
So there's two things that parents are requesting.

[00:33:27] Speaker 05:
One is they say the district didn't comply with the specific orders of the officer.

[00:33:34] Speaker 05:
That your position is they can't bring here, right?

[00:33:37] Speaker 05:
Because they want.

[00:33:38] Speaker 05:
But they're also appealing the administrative officer's failure to provide the compensatory education they believe the child needs.

[00:33:48] Speaker 05:
You're not arguing we don't have jurisdiction over that, are you?

[00:33:51] Speaker 05:
No.

[00:33:51] Speaker 07:
Oh, OK, fine.

[00:33:52] Speaker 05:
No, no.

[00:33:54] Speaker 05:
Right.

[00:33:55] Speaker 05:
So your answer to Judge Millett is not yes, but no, right?

[00:34:00] Speaker 05:
That is correct?

[00:34:03] Speaker 07:
I lost the third question.

[00:34:04] Speaker 04:
So the question was, my understanding of OSSC's authority was that if you filed a complaint with them, they could go, oh, fix this prospectively.

[00:34:14] Speaker 04:
But they could not actually enforce it.

[00:34:18] Speaker 04:
They would just issue, what would OSSC issue to DCPS?

[00:34:23] Speaker 04:
or to itself?

[00:34:24] Speaker 04:
What would it do had they gone to them?

[00:34:26] Speaker 07:
Well, it is in itself.

[00:34:27] Speaker 07:
OSSE is the state educational agency and DCPS is the local educational agency.

[00:34:34] Speaker 03:
What would this process have produced?

[00:34:38] Speaker 07:
Well, they could order that the DCPS provide the services that were identified in the hearing officer's decision.

[00:34:46] Speaker 07:
Going forward.

[00:34:47] Speaker 07:
Going forward.

[00:34:48] Speaker 07:
They also can order compensatory education to account for any delay.

[00:34:55] Speaker 07:
That's what's set forth in the procedures.

[00:34:59] Speaker 07:
It's in the appendix.

[00:35:01] Speaker 07:
So they could do both.

[00:35:07] Speaker 04:
Are you changing?

[00:35:09] Speaker 04:
So if the hearing officer, when it originally issued this decision, had said at the end of it, pretty please DC.

[00:35:16] Speaker 04:
Otherwise, I confess that this thing is not worth the paper it's written on.

[00:35:21] Speaker 04:
We just have to hope DC will comply.

[00:35:25] Speaker 04:
Would they have been able to appeal that?

[00:35:27] Speaker 04:
Would they have been aggrieved by that finding?

[00:35:33] Speaker 07:
No, I mean, I think the language is clear.

[00:35:41] Speaker 07:
I'm not sure I'm perceiving the distinction that the additional language you're suggesting.

[00:35:47] Speaker 04:
Right, the distinction is at the end of this decision it said, by the way, this isn't really worth the paper, it's written on.

[00:35:54] Speaker 04:
All they can do is say, pretty please do this, DC, but if they don't,

[00:36:00] Speaker 04:
Oh well, then surely they could have filed a district court action and been aggrieved by that hearing officer decision.

[00:36:17] Speaker 04:
I'm not sure what they would be... They're aggrieved by the fact that it's not worth the paper it's written on.

[00:36:24] Speaker 04:
That seems like an aggrievement to me.

[00:36:27] Speaker 07:
Again, I think there's a distinction between being aggrieved of the findings and decisions and being aggrieved by the local educational agency's failure to implement that.

[00:36:39] Speaker 04:
I'm collapsing the two.

[00:36:41] Speaker 04:
I'm putting them two into the order.

[00:36:43] Speaker 04:
The order itself acknowledged that we really can't enforce this.

[00:36:47] Speaker 04:
Nothing you can do to enforce this other than asking them again and again and again pretty please.

[00:36:57] Speaker 04:
They'd be aggrieved.

[00:37:01] Speaker 04:
All right, and then if they're aggrieved by that, then if the practical consequences of your position are exactly that, why aren't they aggrieved by the order?

[00:37:11] Speaker 07:
of my argument, the district agrees it has to comply with hearing officer's decisions, and it does.

[00:37:19] Speaker 07:
But when Jones was terminated, because we not only complied at the percentage required by the district court, but the district court found that the system was sustainable and durable.

[00:37:29] Speaker 07:
So there's not disagreement here.

[00:37:31] Speaker 04:
That's no help to them in this case, where their allegation is that y'all didn't comply, and you didn't do it in a timely manner.

[00:37:37] Speaker 04:
That's their allegation.

[00:37:39] Speaker ?:
Right.

[00:37:39] Speaker 07:
I'm talking as a systemic issue, and here the question really is,

[00:37:52] Speaker 07:
Where can hearing officers' decisions be enforced?

[00:37:56] Speaker 07:
We don't disagree that they can be enforced should the local educational agency not comply.

[00:38:03] Speaker 07:
But what we're suggesting is that here there is a local remedy.

[00:38:08] Speaker 07:
Here it's not absurd.

[00:38:09] Speaker 07:
for Congress to have limited the right of action in district court to parties that are grieved by the findings and decisions of the hearing office.

[00:38:18] Speaker 04:
What is your reaction to the Justice Department position in the Porter case that the right remedy is to file a second due process hearing and if it doesn't get enforced then they can go to court?

[00:38:27] Speaker 04:
Do you object?

[00:38:27] Speaker 07:
Do you disagree?

[00:38:28] Speaker 07:
I think that's another possibility.

[00:38:30] Speaker 07:
But I think federal regulation requires this complaint review process.

[00:38:37] Speaker 07:
The district complies with that regulation, has a complaint review process.

[00:38:43] Speaker 07:
It is designed to be expedited and finalized within 60 days.

[00:38:47] Speaker 07:
It does have the power to correct for non-implementation issues.

[00:38:54] Speaker 07:
I think that would be a quicker and more effective route.

[00:38:57] Speaker 07:
And I think it is a reason why the scheme that Congress plainly set forth is not absurd.

[00:39:06] Speaker 05:
But look, we're way over time here.

[00:39:08] Speaker 05:
I just have a quick question about the part of the case that you do not object to in terms of our jurisdiction.

[00:39:14] Speaker 05:
Yes.

[00:39:14] Speaker 05:
And that is the parent's argument that the AJ, the hearing, I'm mixing up this case with the first case, that the hearing officer

[00:39:22] Speaker 05:
did not provide adequate compensatory education, right?

[00:39:27] Speaker 05:
And their argument is,

[00:39:30] Speaker 05:
It can't be the five hours of occupational therapy.

[00:39:34] Speaker 05:
Occupational therapy deals with one aspect of this student's problem, but it doesn't deal with all the other aspects of it.

[00:39:41] Speaker 05:
They ask for tutoring, they ask for counseling, and the hearing officer rejects it all.

[00:39:47] Speaker 05:
And you agree that that's properly before us, right?

[00:39:51] Speaker 05:
Yes, I do.

[00:39:51] Speaker 05:
OK, so why aren't they right about that?

[00:39:56] Speaker 05:
The administrative judge actually acknowledged Reed

[00:39:58] Speaker 05:
acknowledged the Reed standard that the obligation of the district is to provide compensatory education sufficient to put the student in the position he would have been had the district not denied a fake, right?

[00:40:12] Speaker 05:
So he acknowledged that.

[00:40:14] Speaker 05:
And for his award, he awarded only one aspect.

[00:40:21] Speaker 05:
He ordered occupational therapy, which would deal only with a small part of this student's disability.

[00:40:28] Speaker 05:
So what's the answer to that?

[00:40:30] Speaker 07:
The answer is that, you know, BD, I mean, the clear testimony here, and it was really undisputed, is that BD could not benefit from additional services until a diagnostic workup was completed.

[00:40:43] Speaker 07:
And so the hearing officer reasonably left the rest of BD's educational program to be developed after the variety of assessments that he ordered were completed.

[00:40:54] Speaker 05:
That's for the future, really.

[00:40:58] Speaker 07:
Well, it could have involved compensatory education.

[00:41:02] Speaker 05:
By the way, he didn't say what you just said.

[00:41:04] Speaker 05:
He said he denied anything beyond occupational therapy because he said it wasn't supported by the record.

[00:41:10] Speaker 05:
He didn't say it was dependent on future assessments.

[00:41:14] Speaker 07:
He did exactly what BD and his parents asked for.

[00:41:17] Speaker 07:
If you look at the due process complaint, it's in the appendix on page 163, he asks

[00:41:25] Speaker 07:
They asked the hearing officer to, and I'm quoting, order DCPS to consider when it develops BD's new IEP, the comp services he may require to address the failure to provide a fake for him since August 2011.

[00:41:42] Speaker 07:
And that's what he did.

[00:41:44] Speaker 07:
He reasonably, given the complexity of this case,

[00:41:49] Speaker 07:
allowed or identified that the prerequisite here was to get an understanding of BD's triggers, of BD's complex problems, and to build an educational plan then.

[00:42:04] Speaker 07:
Not just, it didn't rule out compensatory being a part of that.

[00:42:09] Speaker 07:
The other thing, if I just... Finish your sentence.

[00:42:12] Speaker 05:
That's it.

[00:42:14] Speaker 07:
Go ahead.

[00:42:14] Speaker 07:
You can start and finish it.

[00:42:17] Speaker 00:
They asked for residential placement to his party.

[00:42:22] Speaker 00:
They asked for it.

[00:42:23] Speaker 07:
They did.

[00:42:24] Speaker 07:
And he ruled that he rejected it for three reasons.

[00:42:29] Speaker 07:
That it had no accessible educational component.

[00:42:33] Speaker 07:
Similar diagnostic evaluative services could be found in the district metropolitan area and completed in a setting other than a residential treatment center.

[00:42:43] Speaker 07:
And he found it was ill-advised for BD to be away from home and his mother for two to three months and would benefit from being accessed at home.

[00:42:52] Speaker 07:
You know, I wanted to point out, you know, with regard to compensatory education, he never ordered

[00:42:58] Speaker 07:
a residential treatment facility.

[00:43:02] Speaker 07:
In fact, he specifically rejected it.

[00:43:05] Speaker 07:
So, you know, a combat award for the alleged delay in identifying a residential treatment center seems inappropriate in the context of this case where the hearing officer didn't order it.

[00:43:23] Speaker 05:
I'm going back to your argument that all he did, he just said, look, this all depends on future assessments, right?

[00:43:28] Speaker 05:
We don't know what beyond occupational therapy he could benefit from, right?

[00:43:32] Speaker 05:
That was your position.

[00:43:33] Speaker 07:
Well, everybody agreed he could handle anything more than he ordered at that time.

[00:43:37] Speaker 05:
But didn't the hearing officer also order the parents reimbursed for the cost of tutoring?

[00:43:45] Speaker 05:
Yes, he did.

[00:43:45] Speaker 05:
Well, then if he couldn't benefit from tutoring, why did they do that?

[00:43:49] Speaker 07:
He limited the amount of tutoring to exactly what his tutor said he could handle.

[00:43:55] Speaker 05:
Two hours a week.

[00:43:55] Speaker 05:
But if you were right, Mr. Love, that beyond occupational therapy, there was no way to know what this student could benefit from without further assessments, why would it have been appropriate to order the district to compensate the parents for tutoring?

[00:44:10] Speaker 05:
He must have thought that the tutoring was necessary for his education.

[00:44:14] Speaker 07:
Yes.

[00:44:15] Speaker 05:
And now the parents are saying,

[00:44:17] Speaker 05:
tutoring is necessary and there has to be compensatory education for the tutoring that he didn't get while he had no FIC.

[00:44:25] Speaker 07:
And he limited to two hours a week, consistent with the testimony of his tutor, that that's all that he could benefit from.

[00:44:34] Speaker 07:
So he tailored his award of compensatory services

[00:44:38] Speaker 05:
to what the testimony and the evidence indicated he could benefit from at that period of time.

[00:44:54] Speaker 05:
This argument that we're now talking about, that is that what the hearing officer did here was he ordered everything he could that he could without any further assessments.

[00:45:07] Speaker 05:
Everything else was dependent on further assessments.

[00:45:11] Speaker 02:
We did ask the hearing officer for further assessments to develop a future compensatory education plan because BD's

[00:45:20] Speaker 02:
disabilities was so severe and his current availability was unknown, but he didn't do that.

[00:45:26] Speaker 02:
He simply ordered DCPS to develop a prospective educational program and did not order it to include compensatory education.

[00:45:37] Speaker 05:
And in the record, you say there's record evidence that the parents sought counseling and tutoring for comp ed, right?

[00:45:47] Speaker 05:
Is that your?

[00:45:48] Speaker 02:
No, we actually, not in the hearing request.

[00:45:53] Speaker 02:
The hearing request says specifically that a compensatory education plan needs to be developed down the road once we know where he is right now and where he wouldn't have been.

[00:46:04] Speaker 05:
Okay, but Mr. Lawson, that's what you got.

[00:46:05] Speaker 05:
Oh, you say you didn't get that.

[00:46:07] Speaker 02:
No, we did not get that.

[00:46:08] Speaker 05:
That he did not order that at all.

[00:46:09] Speaker 02:
No, he ordered additional evaluations and then told

[00:46:13] Speaker 02:
the District of Columbia to develop an educational plan upon receipt of the assessments.

[00:46:18] Speaker 02:
He did not specifically order compensatory education as part of that plan and, in fact, compensatory education therefore was never included in any plan that BD received.

[00:46:30] Speaker 02:
It was prospective only.

[00:46:31] Speaker 02:
It never addressed what his past deficits were.

[00:46:36] Speaker 05:
Is this what you're looking at?

[00:46:37] Speaker 05:
Are you looking at his order?

[00:46:39] Speaker 05:
He orders to reconvene the IEP team, right?

[00:46:46] Speaker 05:
Yes.

[00:46:48] Speaker 05:
To determine which assessments are necessary to determine the antecedents to the student's behavior.

[00:46:55] Speaker 05:
to develop a behavioral plan.

[00:46:58] Speaker 05:
Your point is this is all about a future IEP.

[00:47:01] Speaker 02:
That is correct.

[00:47:01] Speaker 05:
Not about compensatory education.

[00:47:03] Speaker 02:
And that is in fact how it played out.

[00:47:05] Speaker 02:
At future IEP meetings, and I believe at least one of the IEPs is in the record, there is no mention of compensatory services.

[00:47:13] Speaker 00:
What would the compensatory services have been?

[00:47:16] Speaker 02:
That would have been more intensive services than what DCPS was prepared to provide for him.

[00:47:21] Speaker 05:
You mean like more tutoring and more counseling?

[00:47:23] Speaker 02:
Correct.

[00:47:24] Speaker 02:
Correct.

[00:47:25] Speaker 02:
The IEP that was finally developed had him in a school, in a classroom that we contended was too large for him at that point.

[00:47:34] Speaker 02:
It didn't really address his deficits.

[00:47:39] Speaker 02:
It had him working at an academic level that he was not capable of working at, and so forth.

[00:47:45] Speaker 02:
A compensatory plan would have gotten him to that point.

[00:47:49] Speaker 05:
We use up all your time with our questions.

[00:47:52] Speaker 05:
You can have one minute.

[00:47:53] Speaker 05:
Is there anything you want to say in addition to the compensatory education?

[00:47:57] Speaker 02:
Yes, let me just tick off what I have here.

[00:48:00] Speaker 02:
On the issue of the spending clause, I would simply say that the spending clause cases go to clear requirement of congressional notice

[00:48:09] Speaker 02:
of an obligation, and the obligation here is clear.

[00:48:14] Speaker 02:
It is to comply with the hearing officer's determination.

[00:48:16] Speaker 02:
The issue is the forum on which it can be enforced, and I would distinguish those cases on that basis.

[00:48:23] Speaker 02:
As far as legislative history goes, I'm not aware of any legislative history one way or the other on enforcement, but I would note for the court that Congress has amended the IDEA

[00:48:32] Speaker 02:
Twice since the 1983 enforcement cases, and once since the first nine circuit cases that found a direct right of enforcement under IDEA, and they did not disturb any of those.

[00:48:45] Speaker 02:
They left the language as it was.

[00:48:48] Speaker 02:
There is precedent that it is, that Congress does not overrule judicial interpretations.

[00:48:55] Speaker 05:
Yeah, OK, we got those cases.

[00:48:56] Speaker 04:
Can I just one quick record thing?

[00:49:00] Speaker 04:
Is it your compensatory education plan where I will find this request that you made to essentially have assessments done and then compensatory needs revisited?

[00:49:09] Speaker 04:
Where will I find that?

[00:49:10] Speaker 02:
That is in the due process complaint.

[00:49:12] Speaker 02:
The due process complaint asks that the hearing officer send BD to Meridale.

[00:49:19] Speaker 02:
to develop a comprehensive diagnostic and prospective plan to be used to develop a compensatory services plan, compensatory education plan.

[00:49:30] Speaker 04:
But he rejected Meridel.

[00:49:32] Speaker 02:
He rejected Meridel, but he agreed that educational evaluations were necessary.

[00:49:39] Speaker 02:
The point of Meridel was that was the only place we knew of that we thought could do the evaluations.

[00:49:44] Speaker 02:
It wasn't the be all and end all of the...

[00:49:48] Speaker 02:
Thank you.

[00:49:49] Speaker 02:
Case is submitted.