Rodriguez et al v. Independent School District of Boise City, No.1

Filing 19

MEMORANDUM DECISION AND ORDER Granting Plaintiff's Motion Regarding Right to Discovery (Dkt. 14 ). Signed by Judge Candy W Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

GUADALUPE RODRIGUEZ and
JOSE LOPEZ, on behalf of
themselves and as legal guardians and
parents of C.L., a minor individual
with disabilities,
Plaintiffs,

Case No. 1:12-cv-00390-CWD
MEMORANDUM DECISION AND
ORDER

v.
INDEPENDENT SCHOOL
DISTRICT OF BOISE CITY, NO. 1,
Defendant.

INTRODUCTION
Before the Court is Plaintiffs’ Motion Regarding Right to Discovery, (Dkt. 14),
which seeks an answer to the question of whether discovery is available in an
administrative appeal from a Special Education Hearing Officer’s decision under the
Individuals with Disabilities Education Act (“IDEA”). 20 U.S.C. § 1400 et seq. The short
answer to the question is yes, but the scope of discovery available is more limited than
Plaintiffs suggest in their motion. The party seeking discovery must identify for the

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district court the particular discovery sought, how the discovery is directly relevant to the
specific issue or issues raised in the complaint challenging the Hearing Officer’s decision,
and how the discovery is neither cumulative nor duplicative of the evidence introduced in
the administrative proceedings.
BACKGROUND
C.L. is a 14-year-old student with multiple disabilities, including Autism. During
the 2010-2011 school year, C.L. attended sixth grade at Garfield Elementary School
within the Independent School District of Boise City, No. 1 (the “District”). C.L. received
special education throughout elementary school, subject to an Individualized Education
Program (“IEP”) under the IDEA from kindergarten through the sixth grade, with the
most recent IEP dated December 15, 2010. (Pl.s’ Compl. ¶ 16, Dkt. 1.)
Following the completion of sixth grade, C.L. was transferred to Hillside Junior
High School within the District. C.L.’s attendance at Hillside required a one-hour bus ride
to school. (Id. ¶ 17.) Plaintiffs’ allege that, shortly after beginning junior high at Hillside,
C.L. began arriving home noticeably stressed, including an incident in September 2011 in
which C.L. arrived home with blood on his arm and reported that a teacher had pushed
him and caused him to fall. (Id. ¶¶ 16, 17.) In October of 2011, C.L.’s parents informed
the District in writing that C.L. was experiencing an extreme amount of anxiety related to
incidents that occurred at school and that he was refusing to attend school due to his
anxiety. (Id. ¶ 19.) C.L.’s parents then requested an IEP meeting to address their
concerns. (Id.)
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C.L. did not attend school from October 14, 2011, until June of 2012. (Id. ¶ 20.) In
November of 2011, C.L.’s parents requested that the District provide C.L. with
homebound services. (Id. ¶ 21.) The request was rejected. (Id.) In December 2011, C.L.’s
parents submitted a letter to the District from Dr. Joseph Kiehl, who recommended C.L.
receive homebound services until the District developed a plan for C.L. to reintegrate into
school. (Id. ¶ 22.) The District again rejected C.L.’s parents’ request in February of 2012.
(Id.)
In December of 2011, C.L.’s parents received and rejected an IEP proposed by the
District, which Plaintiffs allege significantly reduced C.L.’s individual development
therapy services. C.L.’s parents filed a Due Process Complaint under the IDEA on
February 21, 2012, requesting the Hearing Officer to find that C.L. was entitled to
homebound services. (Id. ¶ 23.) The issues before HO Uranga were: (1) whether the
District failed to provide C.L. with an appropriate IEP, addressing his anxiety about
returning to the school; (2) whether C.L. was entitled to homebound services pending
transition back to the school environment; and (3) whether C.L. was entitled to
compensatory education to “make up for lost time” during the District’s failure over six
months to provide C.L. with any educational services. (See Pet’rs’ Pre-Hearing Br.,
dated April 23, 2012, at pp. 4-5.)
A due process hearing was held before Hearing Officer Jean Uranga (“HO
Uranga”) from May 1, 2012, through May 4, 2012. (Pl.s’ Compl. ¶ 24.) HO Uranga
issued her Findings of Fact, Conclusions of Law and Order denying Plaintiffs’ requested
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relief on June 21, 2012. (Id. ¶ 25.)
Following HO Uranga’s decision, C.L. and his parents filed their complaint in this
case pursuant to 20 U.S.C. § 1415(i)(2), which provides that “[a]ny party aggrieved by
the findings and decision made [by a hearing officer] . . .shall have the right to bring a
civil action . . . in a district court of the United States.”
Throughout the administrative process, Plaintiffs requested C.L.’s educational
records from the District under the Family Educational Rights and Privacy Act
(“FERPA”). Believing the District filed to provide all the materials to which C.L.’s
parents were entitled, C.L.’s parents filed a motion to compel. That motion was denied by
HO Uranga.
On November 26, 2012, in connection with the current appeal, counsel for
Plaintiffs informed the District that they intended to conduct discovery in this matter.
Counsel for the District responded by stating that there is no right to discovery in this
matter because it is an appeal from an administrative proceeding. Given the parties’
disagreement on this issue, Plaintiffs filed the present motion seeking guidance on the
discovery issue before expending the time and resources involved with propounding their
discovery requests.
In their motion, Plaintiffs contend that the District “has consistently refused to
provide relevant information to Plaintiffs, including the identities of personnel who had
contact with C.L. and including observations, evaluations, and interviews conducted
regarding C.L.” (Dkt. 14-1 at 2.) Plaintiffs argue that, “[w]ithout this information, [the
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District] has unilateral discretion to control what is or is not provided to Plaintiffs and this
Court regarding C.L., effectively giving [the District] the power to protect significant
information that might otherwise be contrary to [the District’s] position in this litigation.”
(Id.) Plaintiffs now seek clarification from the Court on whether discovery is available
under the IDEA.
DISCUSSION
The IDEA guarantees every disabled child a Free Appropriate Public Education
(“FAPE”) and provides a procedural framework under which a student’s parents can
assert that right. Among those procedural safeguards is the right to an impartial due
process hearing under Section 1415(f), and the right to appeal the decision from such a
hearing in a civil action commenced in state or federal court under Section 1415(i)(2). In
granting federal courts subject matter jurisdiction over IDEA administrative appeals,
Congress mandated that the district courts “(i) shall receive the records of the
administrative proceedings; (ii) shall hear additional evidence at the request of a party;
and (iii) basing its decision on the preponderance of the evidence, shall grant such relief
as the court determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C) (emphasis added).
Plaintiffs argue that, “because [they] have the right to augment the record, [they]
also have the right to conduct discovery within the scope of Rule 26(b) [of the Federal
Rules of Civil Procedure].” (Dkt. 14-1 at 4.) In its original Response to Plaintiffs’ motion,
the District challenged the proposition that discovery is available in this case, stating that
“Plaintiffs do not cite to–and Defendant was unable to find–any case law in which a
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federal court authorized discovery for judicial review of an IDEA administrative
decision.” (Dkt. 15 at 4.) At the hearing on the motion, the District changed course and
conceded that the case law indicates limited discovery is indeed available.
Having reviewed the applicable authorities, the Court finds that limited discovery
is available and, because Plaintiffs filed the present motion before beginning the
discovery process, the Court will take the time here to discuss the scope of permissible
discovery in this case. In seeking discovery in this case, the parties should be guided by
the discussion below.
As a starting point, the Court recognizes (and Plaintiffs concede) that discovery
generally is not permitted in administrative appeals. This rule is premised on the notion
that the court’s decision must be based solely on the administrative record. The IDEA,
however, is different. Congress expressly directed the district courts to receive “additional
evidence at the request of a party.” 20 U.S.C. § 1415(i)(2)(C). As the United States Court
of Appeals for the Ninth Circuit has recognized, “judicial review in IDEA cases differs
substantially from judicial review of other agency actions, in which courts generally are
confined to the administrative record and are held to a highly deferential standard of
review.” Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1471 (9th Cir. 1993) (citing
Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1988) (“the district court’s authority
under § 1415(e) to supplement the record below with new evidence, as well as Congress’s
call for a decision based on the ‘preponderance of the evidence,’ plainly suggests less
deference than is conventional [in the review of agency actions]”)).
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Not all evidence, however, is “additional evidence” within the meaning of the
statute. The Ninth Circuit has interpreted “additional evidence” as including “evidence
that is non-cumulative, relevant, and otherwise admissible.” E.M. v. Pajaro Valley Unif.
Sch. Dist., 652 F.3d 999, 1005 (9th Cir. 2011). The Court is required to give “due weight”
to the hearing officer’s decision, and the Ninth Circuit has held that “particular deference”
is given “where the hearing officer’s administrative findings are ‘thorough and careful.’”
R.B., ex rel. F.B. v. Napa Valley Unified Sch. Dist., 496 F.3d 932, 937 (9th Cir. 2007)
(quoting Union Sch. Dist. v. Smith, 15 F.3d 1519, 1524 (9th Cir. 1994)). Given this
standard of review, the Ninth Circuit has instructed the district courts to “be careful not to
allow such evidence to change the character of the hearing from one of review to a trial
de novo.” Ojai Unif. Sch. Dist., 4 F.3d at 1473.
Additional evidence means supplemental evidence. “Thus construed, this clause
does not authorize witnesses at trial to repeat or embellish their prior administrative
hearing testimony.” Id. at 1472-73. “The determination of what is “additional” evidence
must be left to the discretion of the trial court” and 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.” Id. at 1473.1

1

If either party files a motion to compel discovery in this case, the Court expects
that the party will explain why supplementation is necessary. The potential reasons given
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In its initial Response, the District did not take issue with the Ninth Circuit’s
interpretation of “additional evidence.” Instead, the District argued that the Court of
Appeals’ interpretation does not answer the question posed by the Plaintiffs: whether the
statutory language requiring that the Court receive additional evidence gives rise to a
right to discovery. The District originally argued that it does not. For the reasons below,
the Court disagrees.
One treatise states the following concerning the right to discovery in appeals from
a hearing officer’s decision under the IDEA:
To prepare for presenting supplemental evidence, discovery
may be undertaken as in any other civil case. Its scope is
limited to the type of evidence which a court has no discretion
to admit at trial. Discovery must relate to matters that are
relevant to the review.
James A. Rapp, Education Law, 4-10C § 10C.12 (2012) (citing Johnson v. Olathe Dist.
Schools, 212 F.R.D. 582 (D. Kan. 2003); Patricia P. v. Bd. of Educ. Of Oak Park, 203
F.3d 462 (7th Cir. 2000)). The proposition that discovery is available in appeals under the
IDEA is also supported by the case law.
In N.P. v. East Orange Board of Education, 2008 U.S. Dist. LEXIS 97507 (D. N.J.
2008), the plaintiff filed a motion to compel discovery and, like the District in this case,
the defendant school board argued that discovery was not permitted under the IDEA. The
district court disagreed with the school board, stating that, “[i]f a Court requires

by the Ninth Circuit in Ojai Unified School District are a good starting point.
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additional evidence in order to form the independent judgment that Congress directed and
Defendant is in the possession of the discovery, it follows that the Court should compel
discovery.” Id. at * 5.
Reaching this conclusion, the district court relied upon the Third Circuit’s holding
in Susan N. v. Wilson School District, 70 F.3d 751 (3d Cir. 1995), which held that a
“rigid” reading of “additional evidence” would “unduly limit a court’s discretion and
constrict its ability to form the independent judgment Congress expressly directed.” Id. at
758. The district court also rejected the school board’s argument that the plaintiff was
barred from discovery because the student attempted to compel discovery during the
administrative proceedings. The district court stated that “the Board is not relieved of its
obligations during this stage of the litigation simply because it managed to escape them
during the administrative proceeding.” 2008 U.S. Dist. LEXIS 97507 at *6.
In Jordan S. v. Hewlett Woodmere Union Free School District, the United States
District Court for the Eastern District of New York reached a similar conclusion. 2009
U.S. Dist. LEXIS 27460 (E.D.N.Y. 2009). In that case, the district court first recognized
that “[t]here is no specific restriction, such as in ERISA cases, that prevents a party from
discovering information beyond the administrative record.” Id. at *11 (quoting H.H. v.
Indiana Bd. Of Special Educ., 2007 U.S. Dist. LEXIS 74382 (N.D. Ind. 2007). Weighing
the concern that the hearing officer’s decision should be afforded due weight against the
student’s right to fair review of that decision, the district court found that both parties
would be allowed to conduct a limited amount of discovery. Id. at * 12.
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CONCLUSION
Based on the above discussion, the Court finds that discovery is available in
administrative appeals from a special education hearing officer’s decision under the
IDEA. Plaintiffs’ motion for clarification will therefore be granted. This Memorandum
Decision and Order, however, does not authorize any specific discovery.
Both parties will be afforded the opportunity to request discovery and file motions
seeking discovery if the parties cannot agree as to what is discoverable. The scope of
discovery, however, will be limited. The parties must demonstrate that the discovery
sought is relevant. And relevance under these circumstances is not an abstract concept:
the party seeking discovery must demonstrate that the discovery sought is “relevant to the
issue properly before the district court.” S.M. v. Bd. of Educ. Of Albuquerque Public
Schools, 565 F.3d 1232, 1241 (10th Cir. 2009). That is, the discovery must relate to the
assignments of error raised in the administrative appeal. The party seeking discovery must
also demonstrate that the discovery is not cumulative of the materials received during the
administrative proceedings. Ultimately, when seeking discovery in this case, the parties
should be aware that the Court will not allow discovery of such evidence that would
change the character of this proceeding from one of review to a trial de novo.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1)

Plaintiff’s Motion Regarding Right to Discovery (Dkt. 14) is GRANTED

to the extent that the above memorandum addressed the question posed in the motion.
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2)

The parties shall propound their discovery requests, if any, on or before

March 22, 2013. Responses to the discovery requests, including objections, shall be
served within 30 days of the request. The parties shall meet and confer within two weeks
following the discovery request and response period. Motions to compel, if necessary,
may be filed within seven days after the parties meet and confer. The non-moving party
should be prepared for an expedited response deadline to such motion. Motions that do
not address the relevancy of the material sought to the particular issue(s) raised in the
Complaint will be denied. Motions that do not explain how the materials sought fall
within the Ninth Circuit’s definition of “additional material” will similarly be denied. In
the meantime, the parties should proceed with discovery to the extent not objected to,
with a goal of completing all discovery requested or compelled by the Court no later than
July 31, 2013.
DATED: March 11, 2013

Honorable Candy W. Dale
Chief United States Magistrate Judge

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