United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
KATHLEEN M TAFOYA UNITED STATES MAGISTRATE JUDGE.
matter is, in effect, an administrative appeal. It comes
before the court by way of complaint, filed by pro
se Plaintiff Michael Scott Smith on January 3, 2017.
Since that time, Plaintiff has filed an opening brief, dated
July, 26, 2017. Defendant Cheyenne Mountain School
District 12 has filed a response, dated March 12, 2018. (Doc.
No. 39.) A reply was filed on March 26, 2018. (Doc. No. 43.)
The Administrative record (“AR”) has also been
conventionally filed in this case in the form of a CD
(Doc. No. 27.) For ease of reference, the administrative
decision of ALJ Tanya T. Light, dated October 3, 2017, is
attached in Schedule A.
case involves action brought under the Individuals with
Disabilities Education Act (“IDEA”), 20 U.S.C.
§ 1400, et seq. challenging the administrative
decision of ALJ Tanya T. Light. Plaintiff alleges that his
child, R.S., has been denied relief under the statute.
the statute's provisions, states that receive federal
educational assistance must establish “policies and
procedures to ensure” that “free appropriate
public education” (“FAPE”) is available to
disabled children. See 20 U.S.C. §
1412(a)(1)(A). Its purpose, therefore, is to ensure
“that all children with disabilities have access to
FAPE designed to meet their unique needs.” Murray
v. Montrose County School District RE-JJ, 51F.3d921, 927
(10th Cir. 1995) (quotations and alterations omitted). To
fulfill this purpose, an individualized education program
(“IEP”) is the basic mechanism through which each
child's individual goals are achieved. Id. The
statute sets forth detailed procedures through which an IEP
is to be developed. Id. The IEP is a detailed
written document that describes the student's educational
goals for an academic year and establishes a plan to achieve
those goals. Id.
the vast array of provisions (and the acronyms that come with
them), it is safe to say that the statute is one of the more
complex in the federal system-not just its review and
regulatory requirements, but its procedural and substantive
provisions that create liability and relief. See
generally, Daniel W. Morton-Bentley, The Rowley
Enigma: How Much Weight is Due to IDEA State Administrative
Proceedings in Federal Court?, 36 J. Nat'l Ass'n
Admin. L. Judiciary 428, 434, 467 (2016) (“The
IDEA's judicial review provision is not a model of
clarity . . . its multilayered administrative and judicial
review procedure is predisposed toward confusion.”).
addition to the legal complexities, the parties have
navigated a thorny procedural history-tethered to cases
adjudicated by U.S. District Court Judge Phillip A.
Brimmer. See, e.g., 14-cv-2651. It is now before
this court on separate, but related issues-as follows:
1. Whether the Administrative Law Judge (“ALJ”)
erred when she allowed Defendant to determine the extent of
the harm it caused when it violated R.S.'s right to a
FAPE, and to then determine the remedy for its own violation.
2. Whether the ALJ erred when she held that compensatory
education was unavailable as a remedy in the absence of
3. Whether the ALJ erred when she peremptorily eliminated
private school placement as a potential remedy.
to the third issue is Defendant's affirmative defense-to
wit, Defendant argues that res judicata applies based on a
preliminary injunction issued by Judge Brimmer in an earlier
case and affirmed by the Tenth Circuit.
court is persuaded by Plaintiff's position on the first
issue-i.e., the ALJ wrongly delegated power to an
educational agency-warranting remand. Because the second
issue is tied to the first, it, too, requires further factual
development by the ALJ to determine what compensatory
education (if any) to which M.S. is entitled. Separately, the
third issue also sways in favor of Plaintiff. Being a
question of law-res judicata-the issue provides for ease of
disposition; ever more so when the defense was a non-starter
to begin with. The prior decision that Defendant relies upon
was set in the preliminary injunction context. There is no
final decision to preclude Plaintiff's case. The defense
is rejected. Each of the issues before the court, therefore,
will require remand and further factual development to assess
the appropriate relief.
March 10, 2016, the Colorado Department of Education,
Exceptional Student Services Unit, received a due process
complaint filed by Plaintiff on behalf of his minor son,
R.S., alleging that Defendant violated 20 U.S.C. §§
1400 - 1482 and the Colorado Exceptional Children's
Educational Act (“ECEA”), 1 CCR 301-8, by failing
to provide him with FAPE. Plaintiff alleged that Defendant
denied R.S. FAPE when it denied his enrollment at the
Cheyenne Mountain Charter Academy (“CMCA”) in
found for Plaintiff on the liability issue-i.e.,
denial of FAPE-from at least August 13, 2014 through October
16, 2014. Relevantly, on page 10 of the ALJ's October 3,
2016 decision, the ALJ stated:
concludes that Respondent did not provide FAPE to R.C.V.S.
between August 13, 2014 and October 16, 2014. Accordingly,
the ALJ ORDERS as follows:
Respondent shall re-test R.C.V.S.'s early literacy skills
through the DIBELS test, or a test of Respondent's
choosing that assesses the same or
similar early literacy skills as the DIBELS test if
Respondent believes the DIBELS test
is no longer appropriate due to the passage of time. If
R.C.V.S.'s scores are below benchmark levels, Respondent,
in coordination with the IEP team, shall decide
what compensatory services are necessary in
order to improve R.C.V.S.'s scores up to benchmark levels
and will implement those services accordingly. If
R.C.V.S.'sscores are at benchmark levels, then
nothing more is required of the District.
(See Schedule A at 10) (emphasis added). Defendant then
filed a Motion for Clarification on October 7, 2016, noting
that R.S. had taken several DIBELS tests since the fall of
2014 and that after the initial DIBELS assessments that were
administered upon his return to school in October 2014, he
received scores above benchmark levels on his next three
DIBELS assessments. (AR at 666-676.)
reviewing the Motion for Clarification, ALJ Light issued an
Order on October 27, 2016, finding that Defendant had
purportedly complied with the October 3, 2016 decision and
that nothing further was required. (AR at 516.)
exhausted all administrative remedies, Plaintiff now appeals
the October 3, 2016 decision and the subsequent October 27,
2016 order that flowed from it.