United States District Court, D. Colorado
L.S., by and through his parents and next friends, E.S. & J.S., Plaintiff,
CALHAN SCHOOL DISTRICT RJ-1 and PIKES PEAK BOARD OF COOPERATIVE EDUCATIONAL SERVICES BOCES, Defendants.
LEWIS T. BABCOCK, JUDGE
This matter is before me on Defendant’s Motion to Submit Additional Evidence and Brief in Support filed by the Calhan School District RJ-1 and Pikes Peak Board of Cooperative Educational Services in this civil action brought pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1400, et seq. [Doc #30] Plaintiff L.S. opposes this request. Upon consideration of the parties’ briefing, I GRANT IN PART and DENY IN PART the motion as follows.
L.S. is a high school student with autism living in Calhan School District RJ-1. Calhan School District is a member of the Pikes Peak Board of Cooperative Educational Services (“Pikes Peak BOCES”) which is a local educational agency as provided for by 20 U.S.C. §1401(19). Pikes Peak BOCES provides oversight and services under the IDEA to students with disabilities in small and rural school districts located east of Colorado Springs, Colorado, including Calhan School District. I refer to both Calhan School District and Pikes Peak BOCES collectively as “the School District.”
In August of 2014, L.S.’s parents filed a due process complaint challenging the School District’s plan to change L.S.’s educational placement for the 2014/2015 school year - from Calhan High School to the Communication and Language Acquisition Program (the “CoLA” program) at the School of Excellence in Colorado Springs - as set forth in his April 2014 Individualized Education Program (“IEP”). After a three-day due process hearing in December of 2014, an Administrative Law Judge (“ALJ”) issued an Agency Decision on January 8, 2015, ruling in favor of L.S. and against the School District. Specifically, the ALJ ruled that L.S.’s placement at Calhan High School provided him with the least restrictive environment (“LRE”) to obtain a free appropriate public education (“FAPE”) as required by the IDEA. As such, the ALJ ruled that the proposed placement with the CoLA program was prohibited by the IDEA. [Doc #4] L.S. then initiated this action by filing a complaint seeking his attorney fees as the prevailing party, as provided for by the IDEA under 20 U.S.C. §1415(1)(3)(B). [Doc #1] The School District filed a counterclaim seeking review and reversal of the Agency Decision pursuant to 20 U.S.C. §1415(i)(2)(A). [Doc #10]
At issue in this motion is the School District’s request that I admit and consider additional evidence not presented to the ALJ in my review of the Agency Decision. Specifically, it seeks the admission of the following evidence that has become available following the ALJ’s January 2015 Agency Decision: (1) an Incident Report and testimony from the Principal of Calhan High School (David Slothower) regarding a physical attack on a staff member by L.S. on February 3, 2015; (2) an Evaluation of L.S. performed in March/April of 2015 by Dr. Betty Jo Freeman, and her expert testimony explaining her report; and (3) the subsequent May 2015 IEP developed for L.S. The School District also requests that I consider expert testimony from Dr. David Rostetter an Independent Educational Consultant who will testify regarding the IDEA’s procedural and substantive requirements, “with particular focus on IDEA’s requirement that a student be educated in the least restrictive environment, ” and the application of those requirements to this case. [Doc # 42] The School District contends Dr. Rostetter was not retained in the underlying due process hearing “because of the short administrative timelines” and “in order to conserve the resources” of both Pikes Peak BOCES and the judiciary. [Doc #30]
The School District seeks review of the ALJ’s decision pursuant to 20 U.S.C. §1415(i)(2)(A). That section provides that, as relevant here, any party aggrieved by the findings and decision “shall have the right to bring a civil action with respect to the complaint presented pursuant to this section, which action may be brought . . . in a district court of the United States . . .”. In such action, the court “(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); Murray By & Through Murray v. Montrose Cty. Sch. Dist. RE-1J, 51 F.3d 921, 927 (10th Cir. 1995). The court’s review of an ALJ’s decision is a modified de novo review in that the court must “independently review the evidence contained in the administrative record, accept and review additional evidence, if necessary, and make a decision based on the preponderance of the evidence, while giving ‘due weight’ to the administrative proceedings below.” Id. At issue here is whether the new evidence requested by the School District should be admitted and considered in its appeal of the Agency Decision under 20 U.S.C. §1415(i)(2)(C)(ii) which requires that the court “shall hear additional evidence at the request of a party.”
In Murray v. Montrose County School District, supra, the Tenth Circuit noted a split in the Circuits in interpreting the IDEA’s requirement that this court “shall hear additional evidence.” 51 F.3d at 930-31 FN15. Specifically, the Court found that the First and Ninth Circuits construed “additional” to mean “supplemental.” Id. (citing Town of Burlington v. Department of Educ., 736 F.2d 773, 790 (1st Cir. 1984), aff’d on other grounds, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985); and Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1472-73 (9th Cir. 1993)). The Sixth Circuit, in contrast, adopted a broader view that “[t]o ‘add’ means to join or unite; the limitation on what can be joined inherent in the term ‘supplement’ is not present in the term ‘add.’” Metropolitan Gov’t v. Cook, 915 F.2d 232, 234 (6th Cir. 1990). Although the Tenth Circuit has not explicitly ruled, in 2004 it cited the supplemental interpretation when it stated that “although the district court may accept additional evidence [under the IDEA] such evidence is merely supplemental to the administrative record” as “[t]he district court’s proceedings must maintain the character of review and not rise to the level of a de novo trial.” L.B. ex rel. K.B. v. Nebo Sch. Dist., 379 F.3d 966, 974 (10th Cir. 2004)(citing Ojai Unified Sch. Dist. v. Jackson, supra, 4 F.3d at 1472-73); see also Garcia ex rel. Garcia v. Bd. of Educ. of Albuquerque Pub. Sch., 2007WL5023652 (D.N.M. 2007)(unpublished) aff’d in part sub nom. Garcia v. Bd. of Educ. of Albuquerque Pub. Sch., 520 F.3d 1116 (10th Cir. 2008).
In determining whether additional evidence offered by a party should be considered by a district court as “supplemental” to the record in IDEA cases, district courts have employed the rulings of Burlington v. Department of Education. See e.g. Tyler V. ex rel. Desiree V. v. St. Vrain Valley Sch. Dist. No. RE 1J, 2008WL2064758 (D. Colo. 2008)(citing Johnson ex rel. Johnson v. Olathe Dist. Sch., 212 F.R.D. 582, 585 (D. Kan. 2003)(indicating that “[a]lthough the Tenth Circuit has not decided the issue, this Court remains persuaded that the First Circuit’s standard for the admission of additional evidence in IDEA cases is appropriate [as set forth in Burlington v. Department of Education], and thus the Court will apply the standard to the facts presented here”). In Burlington v. Department of Education, the First Circuit set forth the following factors to be considered when ruling on motions to present additional evidence in IDEA cases: “the important concerns of not allowing a party to undercut the statutory rule 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.” 736 F.2d at 791; see also Tyler V. v. St. Vrain Valley Sch. Dist., supra (citing Miller ex rel S.M. v. Bd. of Educ. of Albuquerque Pub. Sch., 455 F.Supp.2d 1286, 1302 (D.N.Mex. 2006)). In so doing, the Court provided four exemplary reasons sufficient to allow the admission of such evidence: “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.” Town of Burlington v. Dep’t of Educ., supra, 736 F.2d at 790.
Finally, it is clear that I have the discretion to determine if such additional evidence is necessary. Murray v. Montrose Cty. Sch. Dist., supra, 51 F.3d at 927; see also O’Toole By & Through O’Toole v. Olathe Dist. Sch. Unified Sch. Dist. No. 233, 144 F.3d 692, 708 (10th Cir. 1998); P.R. v. Shawnee Mission Unified Sch. Dist. No. 512, 2012WL1534793 (D.Kan. 2012) (unpublished)(noting that “courts have largely agreed that the taking of additional evidence as that term is used in [IDEA] is a matter left to the discretion of the trial court”)(quoting Johnson v. Olathe Sch. Dist., supra, 212 F.R.D. at 585).
III. TIMELINESS OF MOTION
As an initial matter, I first address L.S.’s contention that this motion should be denied as it is untimely and the admission of the evidence sought would be extremely prejudicial. L.S. claims that the School District knew it intended to seek the admission of this additional evidence, but that it waited to the day before the close of discovery to reveal it and, in turn, that this unfair litigation strategy effectively forecloses L.S.’s opportunity to conduct discovery.
Although it may be true that this motion was filed on the last day of discovery, the School District asserts that it declared its intent to seek admission of additional evidence from the commencement of the action. For example, it indicated in its initial Answer/Counterclaim that it intended to seek admission of: evidence of L.S.’s assault on the paraprofessional; the updated March/April Evaluation; and evidence related to “any other issue that will assist in the equitable resolution of the matter.” [Doc #10 pp. 11-12] The Scheduling Order in this case, signed by Magistrate Judge Michael J. Watanabe on May 5, 2015, indicates that the School District would be seeking to admit additional evidence and, as such, it provides for discovery in the form of limited depositions, interrogatories and requests for production. [Doc #14 pp. 2, 4-5] The School District also notes that it mentioned both the Incident Report and the March/April Evaluation in its response to L.S.’s motion for summary judgment on July 7, 2015. [Doc #21 pp. 4-5] Finally, the School District notes that L.S. received all the documents at issue - the Incident Report, the March/April Evaluation, and the May 2015 IEP - outside of the discovery process at the time they were created. As to the proposed expert testimony, the School District contends that it timely disclosed its intended expert witnesses (both Dr. Betty Jo Freeman and Dr. David Rostetter) pursuant to Fed.R.Civ.P. 26(a)(2) and the Scheduling Order. As a result, the School District argues that its request for the admission of additional evidence here is timely. L.S. asserts, in response, that the additional discovery done by the parties in this case did not relate to the evidence now sought by the School ...