P. et al v. Department of Education, State of Hawaii
Filing
64
ORDER DENYING PLAINTIFFS' MOTION FOR RECONSIDERATION PURSUANT TO LR 60.1 OF ORDER FILED OCTOBER 31, 2011 54 . Signed by JUDGE LESLIE E. KOBAYASHI on 12/29/2011. ~ "Plaintiffs' Motion for Reconsideration Pursuant to LR 60 .1 of Order Filed October 31, 2011, which Plaintiffs filed on November 14, 2011, is HEREBY DENIED. Further, Plaintiffs' request for an order directing the entry of judgment pursuant to Fed. R. Civ. P. 54(b) is alsoDENIED." [October 31, 2011 Order: doc no. 53 ] (afc)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
AARON P., and PUAKIELENANI P.
in their capacity as Parents
and legal guardians of The
Student K.,
)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
DEPARTMENT OF EDUCATION,
)
STATE OF HAWAII,
)
)
Defendants.
)
_____________________________ )
CIVIL NO. 10-00574 LEK-KSC
ORDER DENYING PLAINTIFFS’ MOTION FOR RECONSIDERATION
PURSUANT TO LR 60.1 OF ORDER FILED OCTOBER 31, 2011
On October 31, 2011, this Court issued its Order
Affirming in Part and Remanding in Part the Hearings Officer’s
September 3, 2010 Decision (“10/31/11 Order”).1
On November 14,
2011, Plaintiffs Aaron P. and Puakielenani P.,2 in their capacity
as parents and legal guardians of Student K. (collectively
“Plaintiffs”) filed the instant motion for reconsideration of the
10/31/11 Order (“Motion”).
Defendant the Department of
Education, State of Hawai`i (“the DOE” or “Defendant”) filed its
memorandum in opposition on December 1, 2011, and Plaintiffs
filed their reply on December 19, 2011.
1
2
The Court finds this
The 10/31/11 Order is available at 2011 WL 5320994.
The Court will refer to Aaron P. and Puakielenani P.
collectively as “Parents”.
matter suitable for disposition without a hearing pursuant to
Rule LR7.2(d) of the Local Rules of Practice of the United States
District Court for the District of Hawai`i (“Local Rules”).
After careful consideration of the Motion, supporting and
opposing memoranda, and the relevant legal authority, Plaintiffs’
Motion is HEREBY DENIED for the reasons set forth below.
BACKGROUND
The parties and the Court are familiar with the factual
and procedural background of this case.
The Court therefore will
only address the background that is relevant to the instant
Motion.
In the administrative proceedings, Plaintiffs
challenged, inter alia, eleven of Student K.’s Individualized
Educational Programs (“IEPs”), and their accompanying Prior
Written Notices (“PWNs”), during the 2007-2008 and 2008-2009
school years.
The Hearings Officer, however, framed the issue
before her as: “Whether the April 8, 2008 [IEP], the September 8,
2008 IEP, the May 18, 2009 IEP, and the June 23, 2009 IEP offered
Student a Free Appropriate Public Education[.]”3
[Decision at
5.]
In the 10/31/11 Order, this Court stated:
while it is clear that the Hearings Officer
3
The Court will refer to the April 8, 2008 IEP, the
September 8, 2008 IEP, the May 18, 2009 IEP, and the June 23,
2009 IEP collectively as “the Contested IEPs”.
2
considered all of the IEPs at issue, see, e.g.
Decision at 22 (“The speech language therapy
services, occupational therapy services and
physical therapy consultation services offered to
Student during the 2007-2008 and 2008-2009 school
years, addressed her unique needs and provided her
with adequate support services to take advantage
of educational opportunities.”), it is equally
clear that the Hearings Officer ultimately only
ruled on the adequacy of four IEPs, id. at 27
(“[T]he Hearings Officer finds and concludes that
[Plaintiffs] failed to prove that the April 8,
2008 IEP, the September 8, 2008 IEP, the May 18,
2009 IEP, and the June 23, 2009 IEP did not offer
Student a FAPE.”). The Court therefore finds that
Hearings Officer failed to rule upon the
sufficiency of each of the IEPs that Plaintiffs
challenged in the [Request for Impartial Hearing
(“RIH”)] and in the administrative
proceedings. . . .
. . . .
Although all of the IEPs are part of the
administrative record and Plaintiffs have an
understandable desire to resolve this matter now
rather than spend additional time and resources
pursuing a remand, in this Court’s view, the
resolution of this issue would benefit from the
Hearings Officer’s specialized expertise. Cf.
C.B. v. Pittsford Cent. Sch. Dist., No. 08–CV–6462
CJS (P), 2010 WL 1533392, at *19 (W.D.N.Y.
Apr. 15, 2010) (“Remand to the [impartial hearings
officer (“IHO”)] for a hearing is appropriate,
since neither the IHO or [state review officer]
addressed the merits of Plaintiff’s ‘additional
services’ claim, and since resolution of the claim
would benefit from the administrative process.”
(citing Polera v. Board of Educ. of Newburgh
Enlarged City School Dist., 288 F.3d 478, 487 (2d
Cir. 2002) (“The IDEA’s exhaustion requirement was
intended to channel disputes related to the
education of disabled children into an
administrative process that could apply
administrators’ expertise in the area and promptly
resolve grievances. The exhaustion requirement
prevents courts from undermining the
administrative process and permits an agency to
bring its expertise to bear on a problem as well
as to correct its own mistakes. . . . [T]he
3
administrative system is uniquely well suited to
review the content and implementation of
IEPs.”))). This Court cannot determine whether
the Hearings Officer’s failure to rule on the
adequacy of the other IEPs was inadvertent or
whether it was deliberate. If the Hearings
Officer deliberately withheld a ruling, this Court
cannot determine her reasons for doing so.
Morever, the Hearings Officer’s specialized
expertise would be particularly useful because
Plaintiffs challenge the substantive adequacy of
Student K.’s IEPs, some of which are very close in
time and contain subtle changes. Cf. New York
City Dep’t of Educ. v. V.S., No. 10–CV–05120
(JG)(JO), 2011 WL 3273922, at *10 (E.D.N.Y.
July 29, 2011) (“[I]n IDEIA cases, “[b]ecause
administrative agencies have special expertise in
making judgments concerning student progress,
deference is particularly important when assessing
an IEP’s substantive adequacy.” (citing Cerra v.
Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d
Cir. 2005) (some alterations in V.S.))).
This Court therefore declines to address the
substantive adequacy of the other IEPs and PWNs
that Plaintiffs challenged in the RIH, but which
the Hearings Officer did not rule upon. The Court
REMANDS this case to the Hearings Officer to rule
on Plaintiffs’ claims based on the remaining IEPs
and PWNs.
Aaron P., 2011 WL 5320994, at *20-22 (emphases in original).
This Court also ruled, inter alia, that: the DOE
committed a procedural violation of the Individuals with
Disabilities Education Improvement Act of 2004 (“IDEA”), 20
U.S.C. § 1401 et seq., by failing to evaluate Student K. in all
areas of suspected disability prior to the time period in the
10/31/11 Order; the procedural violation did not result in a
denial of a free appropriate public education (“FAPE”) because
the DOE did address Student K.’s autism related needs; Plaintiffs
4
failed to carry their burden of proving that the DOE denied
Student K. a FAPE, either in the formulation or the
implementation of the Contested IEPs.
In the instant Motion, Plaintiffs contend that: this
Court’s ruling affirming the Hearings Officer’s Decision in part
and remanding it in part is irreconcilable and therefore
constitutes manifest error; and this Court’s “misperception of
the role of evaluations in IEP formation” constitutes manifest
error [Mem. in Supp. of Motion at 17].
DISCUSSION
“[A] successful motion for reconsideration must
accomplish two goals.
First, a motion for reconsideration must
demonstrate reasons why the court should reconsider its prior
decision.
Second, a motion for reconsideration must set forth
facts or law of a strongly convincing nature to induce the court
to reverse its prior decision.”
Donaldson v. Liberty Mut. Ins.
Co., 947 F. Supp. 429, 430 (D. Hawai`i 1996); accord Tom v. GMAC
Mortg., LLC, CIV. NO. 10–00653 SOM/BMK, 2011 WL 2712958, at *1
(D. Hawai`i July 12, 2011) (citations omitted).
This district
court recognizes three grounds for granting reconsideration of an
order: “(1) an intervening change in controlling law; (2) the
availability of new evidence; and (3) the need to correct clear
error or prevent manifest injustice.”
White v. Sabatino, 424 F.
Supp. 2d 1271, 1274 (D. Hawai`i 2006) (citing Mustafa v. Clark
5
County Sch. Dist., 157 F.3d 1169, 1178–79 (9th Cir. 1998)).
“Whether or not to grant reconsideration[,]” however, “is
committed to the sound discretion of the court.”
Navajo Nation
v. Confederated Tribes & Bands of the Yakama Indian Nation, 331
F.3d 1041, 1046 (9th Cir. 2003) (citing Kona Enter., Inc. v.
Estate of Bishop, 229 F.3d 877, 883 (9th Cir. 2000)).
I.
Partial Remand
Plaintiffs contend that this Court’s affirmance of the
Hearings Officer’s ruling that Plaintiffs failed to carry their
burden of proof as to their FAPE claims regarding the Contested
IEPs precludes the Hearings Officer on remand from “fully, fairly
and impartially” considering the remaining IEPs on remand.
in Supp. of Motion at 16.]
[Mem.
Plaintiffs argue that the 10/31/11
Order makes many findings of fact and conclusions of law
regarding the Contested IEPs which “overlap” with the issues
associated with the remaining IEPs and these overlapping findings
and conclusions will make it impossible for Plaintiffs to
establish on remand that the remaining IEPs denied Student K. a
FAPE.
This Court made no findings of fact or conclusions of
law regarding the remaining IEPs in the 10/31/11 Order.
In fact,
this Court recognized that there were subtle differences between
all of the IEPs and that some of the IEPs were very close in
time, and therefore the Hearings Officer’s specialized expertise
6
would be particularly useful in evaluating the subtle differences
in the IEPs that she did not address in the Decision.
2011 WL 5320994, at *21.
Aaron P.,
There is nothing in the 10/31/11 Order
that renders the remand a mere formality or deprives Plaintiffs
of the opportunity to show on remand that one or more of the
remaining IEPs denied Student K. a FAPE.
Plaintiffs have
therefore failed to prove that this Court’s partial remand was
manifest error.
II.
Role of Evaluations and Other Arguments
In the 10/31/11 Order, this Court stated:
Having considered the parties’ arguments and
the evidence in the [Administrative Record on
Appeal (“ROA”)], this Court finds that the DOE did
not evaluate Student K. in all areas of suspected
disability prior to the time period in question.
This failure was a procedural violation of the
IDEA. The FAPE inquiry does not end there because
this district court has recognized that “[a]
school district’s failure to assess in all areas
of suspected disability may constitute a
procedural denial of a FAPE.” J.S. v. Dep’t of
Educ., Hawai`i, Civ. No. 10–00022 DAE–LEK, 2010 WL
3384911, at *6 (D. Hawai`i Aug. 19, 2010) (citing
Park v. Anaheim Union High Sch. Dist., 464 F.3d
1025, 1031–33 (9th Cir. 2006)). This district
court, however, has also recognized that:
While the IDEA guarantees certain procedural
safeguards for children and parents, the
Ninth Circuit has recognized that not every
procedural violation results in denial of a
FAPE. See L.M. v. Capistrano Unified Sch.
Dist., 556 F.3d 900, 909 (9th Cir. 2009)
(“Procedural flaws in the IEP process do not
always amount to the denial of a FAPE.”).
Procedural flaws in the IEP process only deny
a child a FAPE when the flaws affect the
“substantive rights” of the parent or child.
Id. Such substantive rights include the loss
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of a child’s educational opportunity or an
infringement on the parents’ opportunity to
participate in the IEP process. Id.
B.T. ex rel. M.T. v. Dep’t of Educ., Hawaii, Civil
No. 10–00456 SOM/RLP, 2011 WL 1833206, at *3 (D.
Hawai`i May 11, 2011).
Aaron P., 2011 WL 5320994, at *27.
This Court also found that
there was no indication that Parents had been deprived of the
opportunity to participate in the IEP development process.
at *27 n.10.
Id.
Ultimately, this Court concluded that Plaintiffs
had not met their burden of proving that the Contested IEPs
denied Student K. a FAPE.
Id. at *36.
In the instant Motion, Plaintiffs argue that the Court
committed manifest error because of its “misperception of the
role of evaluations in IEP formation”.
at 17.]
[Mem. in Supp. of Motion
Plaintiffs assert that “a child must be evaluated in all
areas of suspected disability in order for the IEP team to have
the opportunity to develop an IEP reasonably calculated to confer
meaningful educational benefit and/or to allow parents the
opportunity to participate in the IEP development process.”
at 18.]
[Id.
Plaintiffs essentially contend that this Court should
have ruled that the DOE’s failure to evaluate Student K. in all
areas of suspected disability was a denial of FAPE because the
lack of a complete evaluation rendered it impossible for Student
K.’s IEP team to develop adequate IEPs and impossible for Parents
to have meaningful participation in the development of Student
K.’s IEPs.
As support for their position, Plaintiffs cite
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several pages of their Opening Brief and their Reply Brief.
[Id.]
The instant Motion merely reiterates arguments about
the lack of a comprehensive evaluation which this Court already
considered in connection with the parties’ original briefs and
oral argument.
“Mere disagreement with a previous order is an
insufficient basis for reconsideration.”
White v. Sabatino, 424
F. Supp. 2d 1271, 1274 (D. Hawai`i 2006) (citing Leong v. Hilton
Hotels Corp., 689 F. Supp. 1572 (D. Haw. 1988)).
Similarly, the instant Motion contends that the failure
to implement the pointing objective in Student K.’s Contested
IEPs constituted “a material failure clearly linked to Student
K.’s communication needs” and was therefore a denial of FAPE.
[Mem. in Supp. of Motion at 28.]
In the 10/31/11 Order, this
Court: “reject[ed] Plaintiffs’ arguments that the DOE’s failure
to teach Student K. pointing constituted a failure to implement
the IEPs currently before this Court[; and] . . . reject[ed]
Plaintiffs’ argument that the alleged failure to teach pointing
constituted a denial of a FAPE.”
*36.
Aaron P., 2011 WL 5320994, at
The instant Motion merely expresses disagreement with the
10/31/11 Order’s ruling on the pointing issue.
Plaintiffs have therefore failed to raise any grounds
warranting reconsideration of this Court’s rulings regarding the
failure to evaluate in all areas of suspected disability and the
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alleged failure to implement pointing.4
III. Appeal from the 10/31/11 Order
Finally, Plaintiffs ask this Court to clarify whether
the portion of the 10/31/11 Order is severable from the ruling on
remand and therefore appealable.
This Court has previously
addressed the issue of when IDEA remand orders are appealable.
Under [28 U.S.C. §] 1291, appellate
jurisdiction extends only to “final decisions
of the district courts.” Importantly, remand
orders are generally not “final” decisions
for purposes of section 1291. Chugach Alaska
Corp. v. Lujan, 915 F.2d 454, 457 (9th Cir.
1990). A district court’s remand order may
be considered final in certain circumstances,
however:
A remand order will be considered final
where (1) the district court
conclusively resolves a separable legal
issue, (2) the remand order forces the
agency to apply a potentially erroneous
rule which may result in a wasted
proceeding, and (3) review would, as a
practical matter, be foreclosed if an
immediate appeal were unavailable.
Alsea Valley Alliance v. Dep’t of Commerce,
358 F.3d 1181, 1184 (9th Cir. 2004) (internal
quotation marks and citation omitted).
Pit River Tribe v. U.S. Forest Service, 615 F.3d
1069, 1075 (9th Cir. 2010) (some citations
omitted). All of the factors must be present.
See Alsea Valley 358 F.3d at 1184 (“We need not
decide whether the Remand Order meets the first
two criteria because we conclude that the third
4
Plaintiffs apparently contemplate other motions
challenging the 10/31/11 Order. See, e.g., Mem. in Supp. of
Motion at 26 (“The foregoing by no mean exhausts all possible
examples of the overlapping FOFs and COLs between this Court’s
affirmation and remand. Others include ‘pointing.’”). This
Court expresses no opinion as to the timeliness or merit of
future motions that Plaintiffs may file.
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prerequisite is lacking.”).
The Court questions whether this finality
test should be applied to remands under the IDEA.
It appears that the test is designed for
administrative review of an agency decision
involving its rule-making capacity. See, e.g.,
id. (“[O]nly agencies compelled to refashion their
own rules face the unique prospect of being
deprived of review altogether. An agency, after
all, cannot appeal the result of its own
decision.” (citation omitted) (emphasis in
original)). This Court cannot conceive of any
circumstance under which a remand order in a
appeal of a hearings officer’s decision on a
student’s due process request would satisfy this
test. The Court notes that other circuits do not
apply a similar test to IDEA cases. See, e.g.,
Somoza v. New York City Dep’t of Educ., 538 F.3d
106, 113 n.5 (2d Cir. 2008) (examining whether
there was “evidence of the Court’s intent to
retain jurisdiction or any contemplation of
further proceedings” (citation and internal
quotation marks omitted)). In spite of this
Court’s concerns, the Court must apply the Chugach
test because there is Ninth Circuit precedent
applying the test in an IDEA case. See Shapiro ex
rel. Shapiro v. Paradise Valley Unified Sch. Dist.
No. 69, 152 F.3d 1159, 1161 (9th Cir. 1998)
(citing Chugach in holding that the district
court’s remand order was not final for purposes of
appeal).
Aliah K. ex rel. Loretta M. v. Hawaii, Dep’t of Educ., 788 F.
Supp. 2d 1176, 1190-91 (D. Hawai`i 2011) (alterations in Aliah
K.).
The 10/31/11 Order does resolve separable legal issues.
As noted above, the issue whether the Contested IEPs denied
Student K. a FAPE is separate from the issue whether the
remaining IEPs denied Student K. a FAPE.
The 10/31/11 Order,
however, does not meet the other two Chugach factors.
11
It does
not force the Hearings Officer to apply a potentially erroneous
rule that may result in a wasted proceeding.
Although the
Contested IEPs and the remaining IEPs to be considered on remand
address some overlapping time periods and services, the Hearings
Officer will undoubtedly conduct a careful and independent
examination of the remaining IEPs to determine whether the subtle
differences from one IEP to another resulted in a denial of FAPE.
This Court’s affirmance of the ruling that Plaintiffs failed to
prove that the Contested IEPs denied Student K. a FAPE does not
necessarily preclude the Hearings Officer from finding that one
or more of the remaining IEPs denied Student K. a FAPE.
Finally,
an immediate appeal is not required to preserve Plaintiffs’ right
to appellate review.
The instant case will be stayed until the
Hearings Officer issues a decision on the remand.
The Court will
thereafter schedule further briefing and/or oral argument
regarding any challenges to the decision on remand, and the Court
will issue an order addressing those issues.
Judgment will be
entered, and the parties may then appeal all aspects of the
instant case to the Ninth Circuit.
The 10/31/11 Order therefore is not an appealable order
pursuant to Chugach.
For the same reasons, to the extent that
Plaintiffs’ Motion seeks an order directing the entry of judgment
pursuant to the portion of the 10/31/11 Order affirming the
Decision as to the Contested IEPs, this Court cannot make the
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requisite finding that “there is no just reason for delay.”
Fed. R. Civ. P. 54(b).
See
Plaintiffs’ request for an order
directing entry of judgment pursuant to Rule 54(b) is therefore
DENIED.
CONCLUSION
On the basis of the foregoing, Plaintiffs’ Motion for
Reconsideration Pursuant to LR 60.1 of Order Filed October 31,
2011, which Plaintiffs filed on November 14, 2011, is HEREBY
DENIED.
Further, Plaintiffs’ request for an order directing the
entry of judgment pursuant to Fed. R. Civ. P. 54(b) is also
DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, December 29, 2011.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
AARON P., ET AL. V. DEPARTMENT OF EDUCATION, STATE OF HAWAII;
CIVIL NO. 10-00574 LEK-KSC; ORDER DENYING PLAINTIFFS’ MOTION FOR
RECONSIDERATION PURSUANT TO LR 60.1 OF ORDER FILED OCTOBER 31,
2011
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