A.V. v. Panama Buena Vista Union School District

Filing 135

ORDER signed by District Judge Morrison C. England, Jr on 10/30/2017 GRANTING 96 Motion to Supplement the Administrative Record; GRANTING 98 Motion toSupplement the Record on Appeal. (Washington, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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A.V., a minor, by parent and Guardian
ad Litem, CONCEPCION VARELA,
Plaintiff,

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PANAMA-BUENA VISTA UNION
SCHOOL DISTRICT, DOES 1-20,

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ORDER

Defendants.
PANAMA-BUENA VISTA UNION
SCHOOL DISTRICT,
Plaintiff,

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No. 1:15-cv-01375 MCE-JLT
(Related Case)

v.

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No. 1:15-cv-00246-MCE-JLT

v.
A.V., a minor, by and through his
parent CONCEPCION VARELA,
Defendant.

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Through the present lawsuit, Plaintiff Concepcion Varela (“Plaintiff”), as parent

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and guardian ad litem for her minor son, A.V., challenges various actions taken by

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Defendant Panama-Buena Vista School District (“District”) with respect to A.V.’s

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educational placement. Plaintiff has already pursued two special education “due

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process” proceedings in accordance with the provisions of the Individuals with
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Disabilities Education Act., 20 U.S.C. § 1400, et seq. (“IDEA”) to rectify what she alleges

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were unlawful steps taken by the District against her son. The parties participated in

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bifurcated proceedings held under the auspices of the Office of Administrative Hearings

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(“OAH”) in January and in April/May of 2015. In the first decision, the District prevailed

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on all issues. In the second decision, A.V. prevailed on one issue and the District

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prevailed on the remaining issues.

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On February 17, 2015, Plaintiff filed her complaint to appeal the first OAH

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decision. Thereafter, on August 28, 2015, Plaintiff filed a first amended complaint to

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include additional appellate issues stemming from the second decision.

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On September 8, 2015, the District filed a complaint with this Court to appeal

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issues it lost in the second OAH decision. That case was subsequently related to

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Plaintiff’s originally filed lawsuit by Order filed January 13, 2016.

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Presently before the Court are requests from both Plaintiff and from the District to

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Supplement the Administrative Record pursuant to 20 U.S.C. § 1415(i)(2)(C)(ii). That

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statute permits parties to an IDEA appeal to obtain leave of court to present additional

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relevant evidence not available at the time of the underlying administrative hearing. See

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also Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1472-73 (9th Cir. 2003) (interpreting

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statutory predecessor to § 1415(i)(2)(C)(ii)). The term “additional evidence” in this

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context has been defined as evidence that is non-cumulative, relevant, and otherwise

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admissible. E.M. v. Pajaro Valley, 652 F.3d 999, 1005 (9th Cir. 2011).

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Although introduction of additional evidence in an IDEA appeal is a matter within

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its sound discretion, the court must nonetheless be careful not to permit wholesale

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introduction of additional evidence that would change the character of the appeal

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hearing from one of review to a complete trial de novo. Jackson, 4 F.3d at 1473.

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Consequently, parties seeking to augment the administrative record on appeal must

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provide “some solid justification” for the introduction of additional evidence. Gill v.

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Columbia 93 Sch. Dist., 217 F.3d 1027, 1037 (8th Cir. 2000).

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The District seeks to introduce two additional documents from A.V.’s prior school.

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Those documents are 1) an April 2013 Psycho-Educational Report for A.V. by the

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Bakersfield City School District; and 2) April 24, 2013 Individualized Education Program

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Meeting Records for A.V., also from the Bakersfield City School District. The District

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argues it had not initially introduced those documents because it did not believe them to

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be relevant to the District’s own subsequent “Child Find” obligations under the IDEA,

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which they assert did not begin until the District began to work with the student and

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formed its own “observations of [his or] her performance.” E.J. ex rel. Tom J. v. San

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Carlos Elem. Sch. Dist., 803 F. Supp. 2d 1024, 1031 (N.D. Cal. 2011). Because the

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Administrative Law Judge (“ALJ”) allegedly referred to the documents in his decision,

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however, the District now contends that the documents should be before the Court.

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Plaintiff’s only opposition to this request is that she faces prejudice if she cannot

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challenge the qualifications of the individuals who performed the 2008 special education

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testing referred to in the documents.

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Whether the qualifications of the examiners can properly establish their

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credentials goes only to the weight of the evidence, not whether it is subject to

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admission in the first place. Under the Ninth Circuit’s analysis for determining the

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propriety of supplemental evidence in an IDEA appeal like this one, the evidence offered

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by the District appears to be both non-cumulative (it was not previously presented),

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relevant (according to the District, had it known the ALJ would consider evidence

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preceding its own involvement with A.V. it contends it would have presented the

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evidence in the OAH proceeding itself), and admissible (the supplemental items are

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student records pertaining to A.V., the subject of this lawsuit). See E.M. v. Pajaro Valley,

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652 F.3d at 1005. Consequently, the Court concludes that supplementation of the

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record to include those documents is appropriate.

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Plaintiff, for her part, seeks to introduce IDEA decisions in two subsequent cases

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(dated November 13, 2015 and March 3, 2016, respectively) that, while ostensibly

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involving A.V., involve different issues and, according to the District, consequently have
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little relevance to the decisions that are the subject of these particular appeals. Plaintiff

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also seeks to introduce a November 6, 2014 fax from the attorney for the District which

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contained special education records pertaining to A.V. from 2007 and 2008. Finally,

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Plaintiff seeks to supplement the record with the declaration and resume of a

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handwriting expert which she contends will show that A.V. was not lawfully exited from

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special education with the District because the parent’s signature on the February 2008

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Exit IEP was a forgery.

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Again, the objections posed to supplementing the record with these materials
goes primarily to the weight, if any, that they should be accorded. Otherwise, they

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appear to involve issues at least arguably pertinent to the subject matter of these

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appeals. As such, they too will be permitted.

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Accordingly, the Court GRANTS both the District’s Motion to Supplement the

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Administrative Record (ECF No. 96) as well as Plaintiff’s corresponding Motion to

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Supplement the Record on Appeal (ECF No. 98).1

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IT IS SO ORDERED.
Dated: October 30, 2017

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Having determined that oral argument would not be of material assistance, the Court ordered
both Motions submitted on the briefs in accordance with E.D. Local Rule 230(g).

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