Anchorage School District v. M.G. et al
Filing
69
ORDER: re the following pending motions: 40 , 41 , 43 , 61 , and 63 (see order for full details). Signed by Judge Sharon L. Gleason on 12/14/2017. (AEM, CHAMBERS STAFF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ANCHORAGE SCHOOL DISTRICT,
Appellant-Respondent,
v.
M.G., and his parents,
Appellees-Petitioners.
Case No. 3:17-cv-00157-SLG
ORDER
This order is intended to address all pending motions, except for Appellant’s
Motion for Summary Judgment (Docket 57), which is not yet fully briefed.
At Docket 40, the Parents filed a *Sealed* Motion to Seal; the School District did
not file a response to that motion. Good cause being shown, IT IS ORDERED that the
motion to seal at Docket 40 is GRANTED. Exhibit 1 and Exhibit 2 to the Appellees’ Motion
to Supplement the Record, filed at Docket 40-1 and Docket 40-2, shall remain under seal.
At Docket 43, ASD filed a Motion for Leave to Further Supplement the Appellate
Record in Light of Delay in Discovery Production. However, in its Reply on the motion,
ASD indicated that it would not be seeking further supplementation on that basis. (See
Docket 60). Accordingly, the motion at Docket 43 is DENIED as moot.
At Docket 61, the Parents filed a Motion for Expedited Consideration, seeking
prompt rulings on all of the pending motions. ASD non-opposed the motion at Docket 66.
The motion is DENIED as moot. Other commitments on the Court’s calendar regrettably
precluded the Court from addressing these pending motions on a more expedited basis.
At Docket 63, Appellees filed a Motion for Extension of Time to File Opening Brief.
That motion is DENIED as moot, in that Appellees have subsequently filed their opening
brief at Docket 68. However, this ruling is not intended to preclude either side from
seeking supplemental briefing or other relief based on the Court’s ruling on ASD’s motion
to supplement at Docket 41, which is discussed in the balance of this order.
At Docket 41, ASD filed a Motion to Supplement the Appellate Record. ASD seeks
to add over 4,000 pages to the record in this case. For the reasons discussed below, the
motion will be granted in part and denied in part.
Under the Individuals with Disabilities Education Act (“IDEA”), and the amended
version of IDEA, the Individuals with Disabilities Improvement Act, or IDEIA, numerous
procedural safeguards are established to insure that public schools meet the unique
needs of disabled children. See Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1469
(9th Cir. 1993). Parents may pursue an administrative hearing if they are dissatisfied with
the services provided to their child under an Individualized Education Program (IEP). And
if either the school district or the parents are dissatisfied with the results of that
administrative hearing, they may appeal the results to a state or federal court.
When a party appeals the administrative hearing result, the IDEIA provides, in
pertinent part, that “the court shall receive the records of the administrative proceedings;”
and “shall hear additional evidence at the request of a party.” 20 U.S.C. § 1415 (i)(2)(C).
The statute also provides that the district court is to “bas[e] its decision on a
preponderance of the evidence.” Id. As a result, judicial review in IDEA cases differs
substantially from judicial review of other agency actions, “as the court may give less than
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the usual deference to the administrative hearing officer’s findings of fact.” K.S. v.
Fremont Unified Sch. Dist., 2007 WL 2554658 (Sept. 4, 2007 N.D. Cal.) (citing Ms. S. v.
Vashon Island Sch. Dist., 337 F.3d 1115, 1126 (9th Cir. 2003), superseded by statute in
non-relevant part, M.l. v. Fed. Way Sch. Dist., 394 F. 3d 634 (9th Cir. 2005). But complete
de novo review is inappropriate, as that would negate the administrative hearing process.
Id.
In Ojia United Sch. Dist. v. Jackson, the Ninth Circuit adopted the First Circuit’s
approach toward the supplementation of the record in IDEA cases:
We construe “additional” in the ordinary sense of the word, *1473 Perrin v.
United States, 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62 L.Ed.2d 199 (1980), to
mean supplemental. Thus construed, this clause does not authorize witnesses
at trial to repeat or embellish their prior administrative hearing testimony; this
would be entirely inconsistent with the usual meaning of “additional.” We are
fortified in this interpretation because it structurally assists in giving due weight
to the administrative proceeding, as Rowley requires. Rowley, 458 U.S. at 206,
102 S.Ct. at 3051.
******
The reasons for supplementation will vary; they might include gaps in the
administrative transcript owing to mechanical failure, unavailability of a
witness, an improper exclusion of evidence by the administrative agency, and
evidence concerning relevant events occurring subsequent to the
administrative hearing. The starting point for determining what additional
evidence should be received, however, is the record of the administrative
proceeding.
******
The determination of what is “additional” evidence must be left to the
discretion of the trial court which must be careful not to allow such evidence
to change the character of the hearing from one of review to a trial de novo.
A practicable approach, we believe, is that an administrative hearing witness
is rebuttably presumed to be foreclosed from testifying at trial.... In ruling on
motions for witnesses to testify, a court should weigh heavily the important
concerns of not allowing a party to undercut the statutory role of
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administrative expertise, the unfairness involved in one party's reserving its
best evidence for trial, the reason the witness did not testify at the
administrative hearing, and the conservation of judicial resources.
Ojai, 4 F.3d 1467, 1472–73 (9th Cir. 1993) (quoting Town of Burlington v. Dept. of
Education for Commr. of Mass., 736 F.2d 773, 790-91 (1st Cir. 1984)).
Turning to the supplemental evidence that ASD seeks to add, the Court finds as
follows:
1.
Missing portions of DEED record.
Parents are not opposed to this
supplementation, and this portion of the motion will be granted. The record will be
supplemented to include the following (included as attachments to Docket 46):
a.
March 2017 Pre-Hearing Transcripts [AR 6246-6358];
b.
Court Reporter Master List of Exhibits from Due Process Hearing
[AR 6359-6363];
c.
Parties’ Due Process Hearing Closing Briefs [AR 6949-7084, Docket
46-9 at 101 through 46-10 at 75] (also filed at Docket 40-1 and 40-2;
see order at Docket 64); and
d.
Exhibits filed with ASD’s Motion for Reconsideration [AR 67366794].
2.
ASD’s Pleading File. ASD’s pleading file, marked at proposed AR 6364-
7150, appears to be largely redundant to the administrative record, apart from the
documents identified above in Part 1 of this order. (Docket 46-4 through 46-10, except
as indicated in paragraph 1(c) above). The Court will not supplement the record with
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these duplicates. Accordingly, the motion to supplement with the balance of ASD’s
pleading file will be denied.
3.
Jennifer White Affidavit.
ASD seeks to supplement the record with an
Affidavit signed by Jennifer White. [Proposed AR 7151-7158, Docket 46-11].
The Hearing Officer granted the Parents’ motion in limine and excluded portions
of Ms. White’s testimony and reports from the due process hearing. ASD challenges this
ruling on appeal. (See Docket 1-1, ¶ 8). It now seeks to supplement the record with an
affidavit by Ms. White dated October 16, 2017 that provides testimony that ASD asserts
was improperly excluded by the Hearing Officer.
ASD also indicates that it would
“welcome an evidentiary hearing with Ms. White called as a witness, should parents seek
to cross-examine her.” 1 The Parents respond that Ms. White’s affidavit “is not necessary
to evaluate Officer Gallagher’s evidentiary ruling.” 2 The Parents also assert that portions
of the affidavit that ASD seeks to introduce are duplicative with the testimony that Ms.
White was permitted to give at the administrative hearing, and should be precluded on
that basis. 3
The Court will grant the supplementation as to Ms. White’s affidavit. Although
there does appear to be some redundancy between the affidavit and Ms. White’s
testimony at the administrative hearing, the Court finds that the affidavit as a whole could
1
Docket 41 at 8.
2
Docket 54 at 6-7.
3
Id. at 7-8.
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help to inform this Court’s decision as to whether the Hearing Officer’s exclusion of certain
of Ms. White’s evidence was improper. 4
4.
August 2017 Due Process Hearing File. ASD seeks to supplement the
record with the entire administrative record from a separate due process hearing that was
held in August 2017. [Proposed AR 7159-7466; Dockets 46-12, -13, and -14). Some of
the documents in that record appear to be duplicative to the administrative record under
review in this proceeding. (See, e.g., Docket 46-12 at 13-30 (ALJ Gallagher’s Decision)).
Other aspects appear to be evidence concerning relevant events occurring subsequent
to the administrative hearing. (See, e.g., Docket 46-12 at 31-36 (Record of ASD-Parent
Communication since May 1, 2017)).
The May 30, 2017 order directed that ASD would work with Perkins to develop a
new IEP for M.G. It also directed an evaluation at Perkins beginning October 1, 2017. 5
In the August 2017 proceedings, ASD sought an evaluation of M.G. in August 2017,
because M.G. was at home in Anchorage at that time. Hearing Officer Tim Seaver denied
that request, reasoning that Hearing Officer Gallagher had ordered the evaluation to begin
at Perkins on October 1, 2017.
ASD acknowledges that the August 2017 ruling is not on appeal to this Court. But
ASD argues that the record of the August 2017 proceedings is relevant to ASD’s points
on appeal here as to the challenges it has faced in obtaining the necessary data and
evaluations to allow it to provide a FAPE to M.G. It also asserts the August 2017 record
4
See Ojia, 4 F.3d. at 1472.
5
R. 6179.
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is further evidence as to its disagreement with the suitability of Perkins as the appropriate
placement for M.G. 6
The Parents respond that “[w]hat data collection or evaluations Officer Gallagher’s
decision requires has nothing to do with her conclusion that Perkins was the best and
only choice available to meet M.G.’s needs.” The Parents assert that “[i]ntroducing
evidence of the parties’ disputes on these points thus improperly ‘inject[s] a new issue
into the appeal.’” 7
The Court will supplement the record with the record from the August 2017
proceedings. The Court does so not to review the propriety of the decisions made at
those proceedings, but because that record appears to contain “evidence concerning
relevant events occurring subsequent to the administrative hearing” that relate to the
points on appeal to this Court, which the Ninth Circuit indicates may be appropriately
supplemented to the record of the administrative proceeding. 8
5.
Chris Sturm Affidavit. ASD next seeks to supplement the record with a
14-page affidavit from John Christian Sturm dated October 19, 2017. [Proposed AR 7467
to 7480; Docket 46-15]. ASD acknowledges that Mr. Sturm testified at the underlying due
process hearing, and thus, under Ojia, is “rebuttably presumed to be foreclosed from
6
Docket 41 at 12-13.
7
Docket 54 at 10-11 (quoting Summer H. v. Hawai’i, Dep’t of Educ., NO. CIV.06000554 SPKLEK, 2007 WL 1153807, at *6 (D. Haw. Apr. 18, 2007) (admitting additional evidence because it
does not inject new issues into appeal)).
8
Ojia, 4 F.3d at 1472.
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testifying at trial.” 9 But ASD maintains that Mr. Sturm’s proposed affidavit does not repeat
his testimony; rather, his affidavit addresses data collection by Perkins to date, “and his
concerns with Perkins as a placement for M.G. going forward.” 10 The Parents respond
that the data collection dispute “does not justify adding new evidence,” and Mr. Strum has
indicated that he has concerns with Perkins “going forward,” as opposed to concerns at
the time of Officer Gallagher’s decision.
Based on the Court’s review of Mr. Sturm’s affidavit, it will not be permitted as a
supplement to the record. A review of his affidavit indicates it contains not only a
discussion of Perkins’ data collection practices since June 2017 but also discussion of
ASD’s practices and Mr. Sturm’s interactions with M.G. beginning in 2015 forward. ASD
has failed to overcome the rebuttable presumption that precludes a witness who testified
at the administrative hearing from submitting additional testimony after the close of that
hearing. Although some of the affidavit does relate to information subsequent to the
hearing, much of it appears to be embellishment of testimony that could have been
provided to Hearing Officer Gallagher.
6. Affidavit of Laura Allen. Ms. Allen did not testify at the underlying due process
hearing.
She is the Director of State and Federal Compliance for ASD’s Special
Education Department. Her affidavit is dated October 20, 2017. [Proposed AR 74817503; Docket 46-16 at 1-23]. Since June 2017 she has been ASD’s administrative contact
for M.G.’s parents and Perkins. Her affidavit contains citations to some of the documents
9
Ojia, 4 F.3d at 1472.
10
Docket 41 at 14.
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that ASD has included in its motion to supplement. In addition, two exhibits are attached
to the exhibit. The Parents respond that the parties’ dispute regarding the evaluation that
Officer Gallagher ordered to be conducted at Perkins beginning in October 1, 2017 “is not
relevant to Officer Gallagher’s decision that Perkins was an appropriate placement.” 11
The Court does see some potential relevance to this appeal in Ms. Adams’
perspective regarding the evaluation process at Perkins that has occurred subsequent to
the Hearing Officer’s May 2017 decision. Therefore, the Court will allow supplementation
as to Ms. Adams’s affidavit, Exhibits A and B, and those pages of the proposed AR that
are specifically referenced in Ms. Adams’s affidavit in bold. (See infra pp. 10-11).
7.
Communication Log and Emails Since June 15, 2017 Among Parents,
Perkins, and ASD
ASD indicates that this voluminous set of documents (approximately 2,500 pages)
consists of all of the communications between the Parents, Perkins, and ASD since June
2017. Apart from the specific documents referenced by Ms. Adams that this Court has
permitted as supplementation in the preceding paragraph of this order, the Court agrees
with the Parents’ observation that ASD “failed to identify with any specificity which
communications it claims are relevant to this appeal.” 12
Moreover, many of the
documents contain attachments that predate June 2017 and could have been (and may
well have been) introduced at the administrative hearing. To the extent that ASD
maintains the documentation is relevant because it “provides a complete picture of M.G.’s
11
Docket 54 at 13.
12
Docket 54 at 13.
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curriculum at Perkins,” the Court finds insufficient justification for the wholesale
supplementation sought. However, the Court will allow supplementation of the record
with proposed AR 9313-14, which was specifically referenced in ASD’s reply on this
issue. 13
IT IS THEREFORE ORDERED that the motion at Docket 40 is GRANTED; the
motions at Docket 43, Docket 61, and Docket 63 are each DENIED as moot.
IT IS FURTHER ORDERED that Appellant’s Motion to Supplement the Appellate
Record at Docket 41 is GRANTED in part, and the following portions of the proposed
supplemental record filed as attachments at Dockets 46-49 are added to the record on
appeal (the references correspond to the parts of this order):
Part 1:
AR 6246-6358, AR 6359-6363, AR 6949-7084, AR 6736-6794
Part 3:
AR 7151-7158
Part 4:
AR 7159-7466,
Part 6:
AR 7481-7503, 7504-7513
The following corresponds to the paragraphs and citations in Ms. Allen’s
Affidavit:
Paragraph 2:
Paragraph 3:
AR 7614-7615
Paragraph 5:
AR 8661-8665
Paragraph 6:
AR 8871-8876 and AR 8936-8938
Paragraph 7:
13
AR 7599-7600 and AR 7609-7610
AR 8923-8924
See Docket 59 at 14.
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Paragraph 8:
Paragraph 9
AR 9381-9382
Paragraph 10:
AR 9459, AR 9476-9486 and AR 9502
Paragraph 12:
AR 10020
Paragraph 13:
AR 10053-10054
Paragraph 14:
AR 10109-10111
Paragraph 15:
AR 10132-10133
Paragraph 16:
AR 10281-10289
Paragraph 17:
AR 10290-10307
Paragraph 23:
AR 10087-10108
Paragraph 25:
Part 7:
AR 9374-9378
AR 10134-10136, AR 9860, AR 10132- 10133
and AR 10120-10124
AR 9313-9314
The motion to supplement at Docket 41 is otherwise DENIED.
IT IS FURTHER ORDERED that within 7 days of the date of this order, the
parties shall meet and confer as to whether, and to what extent, additional and/or
amended briefing on the appeal is warranted in light of this order.
DATED this 14th day of December, 2017 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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