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Smith v. Cheyenne Mountain School District 12

United States District Court, D. Colorado

August 7, 2018




         This matter is before the Court on the Recommendation of United States Magistrate Judge Kathleen M. Tafoya (Doc. # 45), wherein she recommends that this Court reverse and remand the administrative decision of Administrative Law Judge (ALJ) Tanya Light, which was appealed by Plaintiff Michael Scott Smith on behalf of his minor son, R.S. Defendant Cheyenne Mountain School District 12 timely filed objections to the Recommendation, essentially challenging it in its entirety. (Doc. # 46.) The Court must therefore review the issues de novo and, in so doing, “may accept, reject, or modify the recommended disposition[.]” Fed.R.Civ.P. 72(b)(3). The Court need not consider, however, any arguments raised for the first time in objections, as they are deemed waived. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996). Having conducted the required de novo review, the Court rejects the Recommendation and affirms the decision of the ALJ.

         I. BACKGROUND

         Magistrate Judge Tafoya's Recommendation provides an extensive recitation of the complex factual and procedural background in this case. The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). Accordingly, the factual background of this dispute will be reiterated only to the extent necessary to address Defendant's Objections.

         This cases arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, et seq. Specifically, in March 2016, Plaintiff and R.S.'s mother, Ramona Smith, lodged a due process complaint alleging that Defendant violated 20 U.S.C. §§ 1400-82 and the Colorado Exceptional Children's Educational Act (“ECEA”), 1 CCR 301-8, by failing to provide R.S. with a free and appropriate public education (“FAPE”) when it denied him enrollment Cheyenne Mountain Charter Academy (“CMCA”)[1]. After a hearing on the issue, the ALJ agreed, and on October 3, 2016, she issued a final agency decision, finding that R.S. was denied a FAPE, from at least August 13, 2014 through October 16, 2014. With respect to the relief that should flow from that liability, the ALJ ordered:

Respondent shall re-test [R.S.]'s early literacy skills through the [Dynamic Indicator of Basic Early Literacy Skills] DIBELS test, or a test of Respondent's choosing that assesses the same or similar early literacy skills as the DIBELS test if Respondent believes the DIBELS test is no longer appropriate due to the passage of time. If [R.S.]'s scores are below benchmark levels, Respondent, in coordination with the IEP team, shall decide what compensatory services are necessary in order to improve [R.S.]'s scores up to benchmark levels and will implement those services accordingly. If [R.S.]'s scores are at benchmark levels, then nothing more is required of the District.

(Doc. # 45-1 at 10.) Defendant filed a Motion for Clarification of the October 3, 2016 Order, noting that R.S. had already taken several DIBELS tests since October 2014 and had received scores above benchmark levels on those assessments. (Doc. # 27 at 666-76.) In light of that Motion for Clarification and R.S.'s DIBELS scores, ALJ Light issued a subsequent Order wherein she concluded that Defendant had “complied with the October 3, 2016 Final Agency Decision with respect to any additional testing” and, thus, “[n]othing further is required of [Defendant].” (Doc. # 45-1 at 12.)

         Plaintiff then initiated this case, challenging the ALJ's October 3, 2016 decision and the subsequent October 27, 2016 order that flowed from it. As astutely phrased by Magistrate Judge Tafoya, the main issues before the Court are:

1. Whether the ALJ erred when she allowed Defendant to determine the extent of the harm it caused when it violated R.S.'s right to a FAPE, and to then determine the remedy for its own violation.
2. Whether the ALJ erred when she held that compensatory education was unavailable as a remedy in the absence of educational regression.
3. Whether the ALJ erred when she peremptorily eliminated private school placement as a potential remedy.

         Wedded to the third issue is Defendant's affirmative defense-whether res judicata bars this Court from adjudicating the issue of private school placement based on a preliminary injunction issued by Judge Brimmer in an earlier case and affirmed by the Tenth Circuit.

         Defendant objects to the ALJ's recommended conclusion on each issue; the Court therefore addresses them in turn.


         By statute, Congress has set out rather unique rules governing the review of liability in IDEA claims. Unlike the deferential review typically afforded to administrative adjudication of statutory claims, Congress requires district courts to apply a modified de novo standard when reviewing agency disposition in the IDEA context. See 20 U.S.C. § 1415(i)(2)(C); Murray v. Montrose County Sch. Dist., 51 F.3d 921, 927 (10th Cir.1995). Specifically, the district court must (1) receive the record of the administrative proceedings, (2) hear additional evidence at the request of a party[2], and (3) base its decision on the preponderance of evidence. 20 U.S.C. § 1415(i)(2)(C). At the same time, although the statute specifies that review is de novo, the Supreme Court has interpreted the requirement that the district court receive the administrative record to mean that “due weight” must be given to the administrative proceedings, Bd. of Educ. v. Rowley, 458 U.S. 176, 206 (1982), and the fact findings of which are “considered prima facie correct, ” L.B. ex rel. K.B. v. Nebo Sch. Dist., 379 F.3d 966, 974 (10th Cir. 2004).


         As mentioned, the crux of the first issue before the Court is whether the ALJ wrongly delegated to Defendant her authority to fashion the R.S.'s relief for Defendant's FAPE denial. Magistrate Judge Tafoya concluded that she did so err. Considering the specific circumstances of this case, the Court disagrees, finding no error and thereby sustaining Defendant's Objection to Magistrate Judge Tafoya's Recommendation.

         Case law is clear: the ALJ “may not delegate his authority to a group that includes an individual specifically barred from performing [her] functions.” Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 526 (D.C. Cir. 2005); M.S. ex rel. J.S. v. Utah Schools for Deaf and Blind, 822 F.3d 1128 (10th Cir. 2016) (adopting Reid “as our own.”). Defendant school district and its employees plainly constitute individuals “barred from performing the [ALJ's] functions.” See Reid, 401 F.3d at 526. Indeed, barred individuals include any “employee of the State educational agency or the local educational agency involved in the education or care of the child; or a person having a personal or professional interest that conflicts with the person's objectivity in the hearing.” 20 U.S.C. § 1415(3)(A).

         In this case however, the ALJ did not “delegate” her authority to Defendant to fashion R.S.'s relief. Having found R.S. to be performing at high levels in all areas but literacy, the ALJ determined that R.S.'s relief would be based on his performance on literacy tests-if he performed well, no further action would be required; if not, services would be necessary to remedy his educational regression. (Doc. # 45-1 at 10.) The ALJ therefore specifically ordered Defendant to “re-test [R.S.'s] early literacy skills through the DIBELS test. . . .” (Id.) The Defendant then provided the ALJ with R.S.'s DIBELS test results showing that R.S. had reached benchmark levels, and the ALJ consequently determined that R.S. was not entitled to further relief.

         Magistrate Judge Tafoya nonetheless concluded that the ALJ improperly delegated her authority because she (1) allowed Defendant to use a different literacy test if Defendant found the DIBELS test outdated, and (2) ordered that the Defendant and IEP team could fashion further relief for R.S. if he performed poorly on the literacy test. The Court agrees that these two portions of the ALJ's October 3 Order, had they materialized, would constitute an erroneous delegation of power under M.S., 822 F.3d 1128 and Reid, 401 F.3d 516. But they did not materialize. Instead, in the ALJ's October 27 Order clarifying the October 3 Order, the ALJ approved the Defendant's use of the DIBELS test (as the ALJ had previously ordered), reviewed those test results, impliedly found R.S. to be performing at benchmark levels, and ordered that nothing further was required of Defendant. Neither Defendant nor the IEP team exercised any discretion over that relief. Neither “perform[ed] the [ALJ's] functions, ” nor did they exert “undue influence on the . . . decision.” M.S., 822 F.3d at 1135.

         Accordingly, the Court concludes that there was no wrongful delegation in this case, thereby rejecting the Recommendation of Magistrate Judge Tafoya on this issue. To conclude otherwise-that portions in the ALJ's October 3 decision, which were rendered obsolete by the ALJ's October 27 Order, support a reversal and remand- would nullify the October 27 Order and waste valuable time and resources.


         Issue two deals with the relief ultimately fashioned by the ALJ, which, as mentioned, resulted in no compensatory services being provided to R.S. because his DIBELS test scores demonstrated no educational regression. Magistrate Judge Tafoya did not address this issue-finding it “so entwined with the first that they travel together” on remand. Because this Court, however, has found no error on the first issue, the Court addresses the merits of the second, ultimately finding that, again, the ALJ did not err.


         Under the theory of “compensatory education, ” courts and hearing officers may award “educational services . . . to be provided prospectively to compensate for a past deficient program, ” including a denial of FAPE. Meza v. Bd. of Educ. of the Portales Mun. ...

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