Education, Department of, State of Hawaii v. L. et al

Filing 40

ORDER VACATING IN PART THE ADMINISTRATIVE HEARINGS OFFICER'S DECEMBER 27, 2013 DECISION AND REMANDING FOR FURTHER PROCEEDINGS BEFORE A NEW HEARINGS OFFICER. Signed by JUDGE DERRICK K. WATSON on 1/27/2015. ~ The Court vacates th e AHO's December 27, 2013 decision, with the exception of the two issues identified above that were previously affirmed. The Court remands to the Office of Administrative Hearings for further proceedings consistent with this order to be presided over by a new hearings officer, in light of the retirement and unavailability of the original AHO in this 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 HAWAI`I

In the Matter of

CIVIL NO. 14-00034 DKW-RLP

DEPARTMENT OF EDUCATION,
STATE OF HAWAII,

ORDER VACATING IN PART THE
ADMINISTRATIVE HEARINGS
OFFICER’S DECEMBER 27, 2013
DECISION AND REMANDING
FOR FURTHER PROCEEDINGS
BEFORE A NEW HEARINGS
OFFICER

Plaintiff,
vs.
RIA L., by and through her Parent,
RITA L.,
Defendants.

ORDER VACATING IN PART THE ADMINISTRATIVE HEARINGS
OFFICER’S DECEMBER 27, 2013 DECISION AND REMANDING FOR
FURTHER PROCEEDINGS BEFORE A NEW HEARINGS OFFICER
On December 15, 2014, the Court affirmed (1) the AHO’s decision to hold
an additional evidentiary hearing on remand, and (2) the AHO’s decision to deny
the DOE’s motion to recuse the AHO from the remand proceedings. Dkt. No. 30.
In that same order, the Court also remanded in part to the AHO for further
explanation of the AHO’s December 27, 2013 credibility findings and conclusions
with respect to abuse witnesses, including, but not limited to, Balinben,
Izumigawa, and Boteilho. Id.

Following the Court’s order, David H. Karlen, Senior Hearings Officer for
the Office of Administrative Hearings, communicated via letter to the parties that
the AHO who previously presided over this matter, and who issued the December
27, 2013 decision, was now retired and unavailable to provide any additional
services in this matter on remand. Senior Hearings Officer Karlen requested that
the parties communicate this information to the Court in order to determine how to
proceed in light of the AHO’s unavailability. The Court confirmed these
circumstances via status conference with the parties and with Senior Hearings
Officer Karlen on January 15, 2015.
As the Court expressed in its prior order (Dkt. No. 30), the AHO’s
December 27, 2013 decision does not allow the Court the ability to conduct
meaningful judicial review of the AHO’s findings of abuse. That is, because the
findings are based on the credibility determinations of several witnesses with
vastly divergent views of what transpired in Student’s classroom, and although the
AHO identified a number of factors that relate to the assessment of witness
credibility, the AHO did not offer any application of those, or any other, factors to
the witnesses in question. More specifically, the absence of such an application is
what leaves this Court unable to review on appeal the AHO’s determination that
there was abuse that resulted in the denial of FAPE.

2

In light of the unavailability of the AHO who issued the December 27, 2013
decision, the Court is unable to obtain any further explanation of the critical
credibility findings underlying the AHO’s determination that Student was abused
and that this abuse resulted in the denial of FAPE. Indeed, even with an
independent review of the administrative record, neither this Court nor any other
hearings officer would be in an appropriate position to shed any light into what
drove the now-retired AHO’s credibility findings.1 Accordingly, in light of the
communication from Senior Hearings Officer Karlen, the only available course is
to now vacate the portion of the December 27, 2013 decision that found abuse
resulting in the denial of FAPE, and to remand for further proceedings before a
new hearings officer.2
In light of this order, the question presented to a new hearings officer on
remand is essentially the same as it was when Judge Ezra previously remanded to
1

Parent urges this Court to conduct its own de novo review of the administrative record.
However, this Court is sitting as an appellate court for purposes of this matter, and, thus, the
Court would be circumventing the function of the Office of Administrative Hearings by making
a determination on the issue of abuse in the first instance. This is the very question that Judge
Ezra previously remanded to the AHO for determination. The Court declines to upend the
established structure of IDEA proceedings in the way that Parent suggests. Moreover, a de novo
review of the administrative record by this Court would not enable the Court to substitute its own
judgment for that of the AHO in terms of the credibility of the witnesses. Those witnesses
testified only before the AHO, and this Court has had no opportunity to view or hear any of them
firsthand.
2

In the Court’s previous order, the Court affirmed (1) the AHO’s decision to hold an additional
evidentiary hearing on remand and (2) the AHO’s decision to deny the DOE’s motion to recuse
the AHO from the remand proceedings. Through the present order, the Court does not disturb
those portions of its previous order, and the AHO’s decision remains affirmed as to those issues
only.

3

the AHO. See DOE v. Ria L., CV 12-00007 DAE-KSC, Dkt. No. 27, at 45
(July 21, 2012). That is, a new hearings officer should determine (1) whether the
allegations of abuse in the due process hearing request resulted in the denial of
FAPE, and (2) if so, the appropriate remedy for such denial. It is within the new
hearings officer’s discretion to take additional evidence to decide the issues on
remand, or to reach a decision based on the existing record.
CONCLUSION
The Court vacates the AHO’s December 27, 2013 decision, with the
exception of the two issues identified above that were previously affirmed. The
Court remands to the Office of Administrative Hearings for further proceedings
consistent with this order to be presided over by a new hearings officer, in light of
the retirement and unavailability of the original AHO in this case.
IT IS SO ORDERED.
DATED: January 27, 2015 at Honolulu, Hawai‘i.

DOE v. RIA L., et al.; CV 14-00034 DKW-RLP; ORDER VACATING IN PART
THE ADMINISTRATIVE HEARINGS OFFICER’S DECEMBER 27, 2013
DECISION AND REMANDING FOR FURTHER PROCEEDINGS BEFORE A
NEW HEARINGS OFFICER
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