United States District Court, D. Arizona
Honorable John J. Tuchi United States District Judge
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).
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.
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.
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.)
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
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
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).
District Regulation JK-RB and ...