JB et al v. WELLS-OGUNQUIT COMMUNITY SCHOOL DISTRICT
Filing
15
MEMORANDUM DECISION ON MOTION FOR LEAVE TO PRESENT ADDITIONAL EVIDENCE - denying 12 Motion to Permit Presentation of Additional Evidence. By MAGISTRATE JUDGE JOHN H. RICH III. (mnw)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JB and AB, individually and as parents
and next friends of GB, a minor,
Plaintiffs
v.
WELLS-OGUNQUIT COMMUNITY
SCHOOL DISTRICT,
Defendant
)
)
)
)
)
)
)
)
)
)
)
No. 2:13-cv-11-DBH
MEMORANDUM DECISION ON MOTION FOR LEAVE TO PRESENT ADDITIONAL
EVIDENCE
The plaintiffs in this action brought under the Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. § 1415, seek to add to the record additional testimony from Victoria
Papageorge, either in the form of an affidavit submitted with the motion (ECF No. 12-1), or
through deposition. Plaintiffs’ Motion to Permit Presentation of Additional Evidence (“Motion”)
(ECF No. 12). I deny the motion.
The action is brought pursuant to 20 U.S.C. § 1415, which provides, in relevant part, that
a party aggrieved by the decision of a hearing officer with respect to the free public education
provided to a disabled child may bring an action in federal court in which the court “shall hear
additional evidence at the request of a party.” 20 U.S.C. § 1415(i)(2)(C). The First Circuit has
interpreted this statutory language to require a reviewing court to grant a party leave to present
additional evidence only when that party presents “solid justification” for such supplementation
of the record. Roland M. v. Concord Sch. Comm., 910 F.2d 983, 996 (1st Cir. 1990). The
1
plaintiffs rely on language from an early First Circuit construction of the statute, Town of
Burlington v. Department of Educ., 736 F.2d 773 (1st Cir. 1984), in which one of four listed
possible reasons for allowing supplementation of the administrative record is “evidence
concerning relevant events occurring subsequent to the administrative hearing,” id. at 790.
As the First Circuit has clarified, a party has no absolute right to adduce additional
evidence upon request:
As a means of assuring that the administrative process is accorded its due
weight and that judicial review does not become a trial de novo, thereby
rendering the administrative hearing nugatory, a party seeking to
introduce additional evidence at the district court level must provide
some solid justification for doing so. To determine whether this burden
has been satisfied, judicial inquiry begins with the administrative record.
A district court should weigh heavily the important concerns of not
allowing a party to undercut the statutory role of administrative
expertise, the unfairness involved in one party’s reserving its best
evidence for trial, the reason the witness did not testify at the
administrative hearing, and the conservation of judicial resources.
Roland M., 910 F.2d at 996 (citation and internal punctuation omitted).
To the extent that “[t]he evidence the [defendant] now propose[s] to adduce sheds light
on the manner in which specialized services actually have been provided to [the minor plaintiff],
including the IEP [Individualized Education Program] developed for [him],” it “would be
relevant, non-cumulative and helpful were the court to reach the question whether the [minor
plaintiff’s] placement . . . was appropriate.” C.G. and B.S. v. Five Town Community Sch. Dist.,
436 F.Supp.2d 181, 186 (D. Me. 2006). Similarly, proposed evidence that sheds light on the
appropriateness of the IEP properly at issue in light of the severity of the minor plaintiff’s
disabilities may also be added to the record. Id. It must also be borne in mind that “an
administrative hearing witness is rebuttably presumed to be foreclosed from testifying” before
this court. Town of Burlington, 736 F.2d at 791. Such witnesses should be allowed to testify
2
only about post-hearing events and only if their testimony is both relevant and not cumulative.
See Mr. and Mrs. I. v. MSAD No. 55, No. Civ.04-165-P-H, 2004 WL 2397402 (D. Me. Oct. 27,
2004), at *2.
The witness at issue here did testify at the administrative hearing. Administrative Record
at 674-712. As the defendant points out, Defendant Wells’ Opposition to Plaintiffs’ Motion to
Permit Presentation of Additional Evidence (“Opposition”) (ECF No. 13) at 5-7, much of the
testimony that the plaintiffs seek to present via Ms. Papageorge’s affidavit addresses test results
and opinions about which Ms. Papageorge testified at the hearing. Compare Declaration of
Victoria Papageorge (ECF No. 12-1) ¶¶ 5-13 with Administrative Record at 675-79, 682-84,
687-89, 693-96.
Of course, the testing described in the affidavit took place after the
administrative proceedings in this case, but it appears to have involved the same or similar tests
and the same or similar results.
The plaintiffs’ reply actually enforces this impression. They assert that Ms. Papageorge’s
affidavit testimony “is plainly relevant to the central issue in this case and will provide a useful
update to the Court on [the minor student’s] progress and continued need for special education
services.”
Reply Memorandum in Support of Plaintiffs’ Motion to Permit Presentation of
Additional Evidence (ECF No. 14) at 1. If the evidence of the minor student’s “need for special
education services” was the same at the time the affidavit was executed as it was at the time of
the hearing, I do not see how the proposed testimony adds anything to the court’s consideration
of “the central issue in this case,” which is whether the hearing officer’s conclusion was
erroneous.
Technically, the proposed additional testimony would be “only about post-hearing
events,” as Mr. and Mrs. I requires, but, substantively, it would add little to the evidence that the
3
court will consider in addressing this appeal. Under these circumstances, it is well within this
court’s discretion to decline to add the proffered testimony to the case record, See, e.g., Mr. &
Mrs. V. v. York Sch. Dist., 434 F.Supp.2d 5, 13-14 (D. Me. 2006), and I will do so.
For the foregoing reasons, the plaintiffs’ motion is DENIED.
NOTICE
In accordance with Federal Rule of Civil Procedure 72(a), a party may serve and file
an objection to this order within fourteen (14) days after being served with a copy thereof.
Failure to file a timely objection shall constitute a waiver of the right to review by the
district court and to any further appeal of this order.
Dated this 22nd day of July, 2013.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?