D.S. vs. Department of Education

Filing 50

ORDER DENYING 44 MOTION for Reconsideration. Related doc: 43 . Signed by Judge BARRY M. KURREN on 9/28/2012. ~ the Court DENIES the DOE's motion for reconsideration, and awards D.S. $242,077.11 in stay put relief. The Court DIRECTS the Clerk of Court to close the case. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
D.S., by and through his parents,
Clarenore and Greg S.

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Plaintiffs,
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vs.
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DEPARTMENT OF EDUCATION, )
STATE OF HAWAII,
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Defendant.
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______________________________ )

Civ. No. 10-00053 BMK
ORDER DENYING MOTION FOR
RECONSIDERATION

ORDER DENYING MOTION FOR RECONSIDERATION
Before the Court is Defendant State of Hawaii Department of
Education’s (“DOE”) Motion for Reconsideration (Doc. # 44.) After careful
consideration of the motion, the supporting and opposing memoranda, and the
attached documentation, the Court DENIES the motion.1
The background of this case is summarized in the Court’s August 9,
2012 Amended Order Granting Plaintiff D.S.’s Motion For Stay Put (Doc. # 45.)
The DOE filed its motion for reconsideration challenging that order, asserting that:
1) D.S. was not entitled to stay put during the proceedings before this Court

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Pursuant to Rule LR7.2(d) of the Local Rules of Practice of the United States
District Court for the District of Hawaii (“Local Rules”), the Court elects to decide this matter
without a hearing.

because Loveland Academy was not the current educational placement; 2) the
Court applied the wrong test to determine whether the proceedings were final; 3)
Stay put is not a means to prolong public funding where placement is not at issue;
and 4) the Court should enter a final order now, rather than waiting until after the
remand is decided. (Doc. # 44.)
First, the DOE did not argue that Loveland was not D.S.’s educational
placement in the prior proceedings before this Court. (Doc. # 45 at 5; Doc. # 40.)
Rather, the DOE argued that stay put did not continue during the remand
proceedings. (Doc. # 40 at 4-6.) The Court declines to consider the DOE’s
argument regarding whether Loveland was D.S.’s stay put placement because
“reconsideration may not be based on evidence and legal arguments that could
have been presented at the time of the challenged decision.” Hawaii Stevedores,
Inc. v. HT & T Co., 363 F. Supp.2d 1253, 1269-70 (D. Haw. 2005).
Second, the DOE asserts that the Court applied the wrong test to
determine whether the case was closed. (Doc. # 44 at 5-10.) But other cases in
this district have applied the three-part test cited in this Court’s August 9, 2012
Amended Order to determine whether IDEA proceedings are final. See Aliah K.
ex rel. Loretta M. v. Hawaii Dept. of Educ., 788 F. Supp.2d 1176, 1190-91 (D.
Haw. 2011); Aaron P. v. Hawaii Dept. of Educ., Civ. No. 10-00574 LEK-KSC,
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2011 WL 6934560, at *5 (D. Haw. Dec. 30, 2011); Dept. of Educ. v. M.F., Civ.
No. 11-00047 JMS-BMK, Doc. # 83 at 6 (D. Haw. Apr. 17, 2012). Additionally,
in Shapiro v. Paradise Valley Unified School Dist. No. 69, the Ninth Circuit relied
on the three part test to determine whether a remand order in an IDEA case was
final for the purpose of an appeal. 152 F.3d 1159, 1160 (9th Cir. 1998). Because
the due process proceedings in this case were not final and the remand was still
pending, the DOE was required to continue stay put until those proceedings
concluded.
Third, the DOE’s argument that D.S. “dragged out” the remand
process in order to obtain additional stay put relief is not supported by the record.
(Doc. # 44 at 10-12.) Although the remand hearing was calendared over a year
after the Court’s April 1, 2011 order remanding the matter back to the Hearings
Officer, the DOE has not produced any evidence that D.S. deliberately delayed the
proceedings. The DOE also asserts that stay put is not a “means to prolong public
funding during the pendency of issues where placement was not at issue,” but it
has not produced binding authority indicating that stay put only applies when
placement is at issue on remand.
Finally, the DOE requests that the Court decide the amount of stay put
owed in this order, and enter a final judgment. (Doc. # 44 at 12-13.) The Court
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agrees. The parties have provided the Court with an exhibit calculating the amount
owed by the DOE as $242,077.11. After reviewing the materials provided by the
parties, the Court FINDS that the DOE owes $242,077.11 in stay put.
CONCLUSION
For the foregoing reasons, the Court DENIES the DOE’s motion for
reconsideration, and awards D.S. $242,077.11 in stay put relief. The Court
DIRECTS the Clerk of Court to close the case.
DATED: Honolulu, Hawaii, September 28, 2012.
IT IS SO ORDERED.

/S/ Barry M. Kurren
Barry M. Kurren
United States Magistrate Judge

D.S. v. Dept. of Educ., State of Hawaii, Civ. No. 10-00053 BMK, ORDER DENYING
MOTION FOR RECONSIDERATION
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