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L.B. v. Kyrene Elementary District No. 28

United States District Court, D. Arizona

July 19, 2018

L.B., Plaintiff,
v.
Kyrene Elementary District No. 28, Defendant.

          ORDER

          Honorable John J. Tuchi United States District Judge

         At issue is Plaintiff L.B.'s Motion to Supplement the Administrative Record (Doc. 18, Mot.), to which Defendant Kyrene Elementary School District filed a Response in opposition (Doc. 19, Resp.), and Plaintiff filed a Reply (Doc. 21, Reply).

         I. BACKGROUND

         On September 25, 2017, Plaintiff L.B. filed a Complaint against Defendant Kyrene Elementary District No. 28, on behalf of herself and her minor child, J.B., to appeal an administrative decision of the Arizona Office of Administrative Hearings (“OAH”) under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et. seq. (“IDEA”). Plaintiff alleges that J.B. is a student with behavioral disabilities and the District failed to provide him with a Free Appropriate Public Education (“FAPE”) under IDEA. On February 6, 2015, Plaintiff filed an Amended Due Process Complaint with the Arizona Department of Education. The Administrative Law Judge (“ALJ”) held a hearing on Plaintiff's Due Process Complaint between November 4, 2015 and January 11, 2016, and issued a Decision on August 22, 2017, denying Plaintiff relief.

         Plaintiff subsequently filed this action on September 25, 2017, alleging that the ALJ erred in deciding Plaintiff's Amended Due Process Complaint should be dismissed in its entirety and by not finding that the District denied J.B. a FAPE. (Doc. 1, Compl.) Additionally, Plaintiff alleges the ALJ erred by not rendering a decision within forty-five days from the end of the resolution period, which in Arizona is construed as the date the parties file the final brief to the ALJ. (Compl. ¶¶ 71-72.) Plaintiff requests that the Court reverse and vacate the ALJ's August 22, 2017, Decision based on the administrative record and additional evidence, enter judgment in favor of Plaintiff, award Plaintiff reimbursement for tuition and education related expenses, award compensatory education to J.B., and award Plaintiff her expenses, attorneys' fees and costs in enforcing J.B.'s special education rights. (Compl. at 25-26.) Plaintiff now moves to supplement the Administrative Record before this Court.

         II. LEGAL STANDARD

         In her Motion to Supplement, Plaintiff asks the Court for leave to provide six sets of additional evidence beyond the Administrative Record for the Court's consideration in determining whether the District provided J.B. with a FAPE. (Mot. at 2.)

         Judicial review in IDEA cases differs from that in other agency actions, in which courts are generally confined to the administrative record. See 20 U.S.C. § 1415(i)(2). For the Court to determine whether to supplement the administrative record with additional evidence in an IDEA case, the Court evaluates whether the proposed additional evidence is relevant, non-cumulative and otherwise admissible. E.M. ex rel. E.M. v. Pajaro Valley Unified Sch. Dist. Office of Admin. Hearings, 652 F.3d 999, 1004-1005 (9th Cir. 2011); see also 20 U.S.C. § 1415(i)(2)(C)(ii). In reviewing an ALJ's decision under IDEA, additional evidence may be excluded in this Court's discretion where the proposed evidence repeats or embellishes evidence from the administrative hearings or changes the character of the proceeding from one of review to a trial de novo. Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1473 (9th Cir. 1993). “A practicable approach . . . is that an administrative hearing witness is rebuttably presumed to be foreclosed from testifying” for the purpose of the appeal in the district court. Id. (quoting Town of Burlington v. Dep't of Educ., 736 F.2d 773, 791 (1st Cir. 1984)). “In ruling on motions for witnesses to testify, a 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.” Id. (quoting Town of Burlington, 736 F.2d at 790-91).

         In addition to showing that proposed additional evidence is relevant, non-cumulative and otherwise admissible, the party proffering the additional evidence must demonstrate good cause for the absence of the evidence from the administrative record by, for example, showing the evidence was not available at the time of the ALJ's decision. Id.

The reasons for supplementation will vary; they may 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. The starting point for determining what additional evidence should be received, however, is the record of the administrative proceeding.

Id. (quoting Town of Burlington, 736 F.2d at 790-91).

         With regard to Arizona administrative hearings such as that the ALJ held, while the Federal Rules of Evidence do not apply, all relevant evidence is admissible at the hearings. See A.R.S. § 41-1092.07(D). Evidence is relevant if it tends to make a fact more or less probable than it was without the evidence and the fact is of consequence in resolving the issue. See Ariz. R. Evid. 401; Fed.R.Evid. 401. The Court applies the “harmless error” test to the ALJ's evidentiary rulings because, under IDEA, Plaintiff cannot bring an action in this Court for judicial review of the administrative proceedings conducted unless Plaintiff is “aggrieved” by the results of those proceedings. See 20 U.S.C. § 1415(i)(2)(A). In this context, harm is the loss of an educational opportunity for the child. See id.; R.B. ex rel. F.B. v. Napa Valley Unified Sch. Dist., 469 F.3d 932, 942 (9th Cir. 2007).

         III. ANALYSIS

         A. District Regulation JK-RB and ...


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