United States District Court, C.D. California
A.A., a minor, by and through his Guardian Ad Litem, CATHERINE ABARCA, Plaintiff,
v.
GOLETA UNIFIED SCHOOL DISTRICT, a local Education Agency, Defendants.
ORDER DENYING PLAINTIFF'S MOTION TO SUPPLEMENT
THE ADMINISTRATIVE RECORD
Presently
before the court is Plaintiff A.A.'s (Plaintiff) Motion
to Supplement the Administrative Record. Plaintiff appeals
from a decision in an Individuals with Disabilities Education
Act (IDEA) due process hearing held in the California Office
of Administrative Hearings (OAH). Having considered the
parties’ submissions and heard oral argument, the court
denies the motion and adopts the following Order.
I.
Background
This
case stems from Defendant Goleta Unified School District
("the District")'s refusal to fund an
independent educational evaluation (IEE) of Plaintiff by an
evaluator of Plaintiff's choosing. (Mot. at 1). Although
the District agreed to fund an IEE, funding was conditioned
on Plaintiff's chosen IEE evaluator meeting the
District's Special Education Local Plan Area (SELPA)
"cost criteria." (Declaration of Catherine Abarca
at 2.) The District rejected Plaintiff's choice of IEE
evaluator, finding that the evaluator's rates were too
high. (Opp. at 2.) Plaintiff, through his guardian, then
proceeded to pay the IEE evaluator’s fee himself.
(Decl. Abarca at 2.) The District then filed a due process
complaint to determine whether Plaintiff was entitled to an
independent IEE evaluator who did not meet the
District’s cost criteria. In response, Plaintiff filed
a due process complaint against the District to determine
whether the District denied him a free and appropriate public
education (FAPE) by refusing to pay for the IEE. (Decl.
Abarca at 2.) These two complaints were then consolidated by
the OAH.
A.
Mediation and Settlement Discussions
On
January 6, 2015, the parties attempted mediation.
(Declaration of Tania Whiteleather at 1-2.) Mediation was not
successful, and the mediator indicated that “no
agreement was reached.” (Decl. Whiteleather, Ex. 1 at
1, 4.) On February 23, 2015, the District sent Plaintiff a
ten-day settlement offer.[1](Decl. Melissa Hatch at ¶ 2.)
Plaintiff responded to the settlement letter with proposed
changes and a counter to the District’s offer for
Plaintiff’s attorney fees. (Id. at ¶ 5;
Decl. Whiteleather at 2.) After several exchanges between the
parties, the District sent a revised proposed offer to
Plaintiff on March 2, 2016. (Decl. Whiteleather at 2.) The
parties could not reach an agreement, however, on the amount
of attorney’s fees. Defendant's counsel stated that
if Plaintiff would not accept Defendant's fee offer,
"then making changes to the agreement seems a waste of
our respective effort." (Decl. Whiteleather, Ex. 2 at
1.) Plaintiff's counsel responded, "I agree; I will
prepare for hearing. It is too bad." (Id.))
On
March 8, 2015, one day before the OAH Hearing, Plaintiff
contacted the District’s attorney and informed her that
the settlement was accepted. (Decl. Whiteleather Ex. 3 at 1.)
The District then informed Plaintiff that the offer had
expired when it was rejected on March 2, and that the
district intended on moving forward with the OAH Hearing the
next day. (Id.) During the OAH Hearing, Plaintiff
attempted to include the settlement negotiations into the
record. (AR at 894-98). The administrative law judge refused
to include references to the settlement negotiations or to
the March 8 exchange, finding that they were irrelevant to
the issues at hand. (AR at 896). Plaintiff now moves to
supplement the record to include the post-mediation
settlement discussions.
II.
Legal Standard
On
review of an administrative decision in an IDEA case, the
district court “shall hear additional evidence at the
request of a party.” E.M. v. Pajaro Valley Unified
Sch. Dist. Office of Admin. Hearings, 652 F.3d 999, 1004
(9th Cir. 2011); 20 U.S.C. § 1415(i)(2)(C)(ii). The
Ninth Circuit has held that “additional” in the
context of the statute means “supplemental.”
Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467,
1472-73 (9th Cir. 1993) (citing Perrin v. United
States, 444 U.S. 37, 42 (1993)). Reasons to supplement
the record may include “gaps in the administrative
transcript owing to mechanical failure, unavailability of a
witness, improper exclusion of evidence by the administrative
agency, and evidence concerning relevant events occurring
subsequent to the administrative hearing.” Id.
“The party seeking to supplement the administrative
record bears the ‘threshold burden of demonstrating, at
the time of the request, that the supplemental evidence
should be admitted.’” D.A. v.
Fairfield-Suisun Unified Sch. Dist., No.
2:11-CV-01174-GEB, 2012 WL 3885468, at *1 (E.D. Cal. Sept. 6,
2012) (citing Brandon H. ex rel. Richard H. v. Kennewich
Sch. Dist. No. 17, 82 F.Supp.2d 1174, 1179 (E.D. Wash.
2000).
A
district court is not, however, required to include all
evidence proffered by the parties. See Ojai Unified Sch.
Dist. v. Jackson, 4 F.3d at 1973. Rather, what
constitutes “additional evidence” is left to the
discretion of the trial court. Id. In considering
the question, courts “must be careful not to allow such
evidence to change the character of the hearing from one of
review to a trial de novo." Id. A district
court “must exercise particularized discretion in its
rulings so that it will consider [only] evidence [that is]
relevant, non-cumulative and useful.” E.M. v.
Pajaro Valley Unified Sch. Dist., 652 F.3d at 1005 (9th
Cir. 2011) (internal quotation and citation omitted).
III.
Discussion
In this
case, Plaintiff seeks to include evidence of settlement
negotiations that occurred after mediation and prior to the
OAH Hearing. (Mot. at 3, 8.) Plaintiff argues that the
evidence should be included in the record because much of the
District’s reason for denying the IEE evaluator hinges
on the evaluator’s high rates. (Id. at 3.)
Plaintiff further argues that if the District accepted the
settlement, both parties could have avoided costly and
time-consuming litigation. (Id.) Plaintiff takes the
District’s refusal to accept the settlement as being
inconsistent with the assertion that the IEE
evaluator’s rates are too high. (Id.) In
response, the District argues that its reasoning behind
choosing to proceed to the OAH Hearing is irrelevant to the
issues currently being litigated. (Def.’s Opp’n.
at 10.)
It
appears to the court that the proffered evidence is
potentially germane to a possible future dispute over
attorney's fees. Plaintiff is concerned that, should he
prevail and seek payment of his reasonable attorney's
fees, Defendant will seek to reduce those fees pursuant to 20
U.S.C. § 1415(i)(3)(F) by arguing that Plaintiff
"unreasonably protracted the final resolution of the
controversy" by refusing to accept Defendant's
settlement offer. 20 U.S.C. § 1415(i)(3)(F)(i); (Reply
at 2-3). Plaintiff seeks so supplement the record so as to
allow him to respond that he accepted, or attempted to
accept, Defendant's 10-day offer, and therefore did not
unreasonably draw out this proceeding.
Exercising,
as it must, particularized discretion to ensure that it only
hears relevant and useful evidence, the court finds that the
settlement negotiations should not be included in the record.
Plaintiff seeks to include the evidence to show that he
attempted to resolve this dispute on March 8. By any
objective reading, however, Plaintiff rejected the
District's offer on March 2. The court will assume, for
the sake of argument, that the District's message
indicating that it would accept Plaintiff's substantive
changes but not his attorney's fees demand constituted a
10-day offer. The District essentially said that Plaintiff
could take the offer or leave it when counsel stated that, if
Plaintiff would not accept the fee proposal, "then
making changes to the agreement seems a waste of our
respective effort." (Decl. Whiteleather, Ex. 2 at 1.)
Plaintiff's counsel's response, "I agree; I will
prepare for hearing. It is too bad, " was a rejection of
that offer. (Id.))
Plaintiff's
motion appears to acknowledge as much, stating, "[W]hile
Plaintiff at first rejected th[e] offer, he accepted it the
day before the hearing." (Mot. at 8:11-12.) At argument
and in his Reply, Plaintiff takes a different position,
contending that a 10-day offer must stay open until the
administrative hearing, and cannot, as a matter of law, be
rejected by a plaintiff.[2] The only authority or analogy Plaintiff
cites, and that the Court has located, for this proposition
is Garayalde-Rijos v. Municipality of Carolina, 799
F.3d 45 (1st Cir. 2015). There, the First Circuit held that a
Rule 68 offer of judgment cannot be revoked within the
fourteen day period established by the rule.
Garayalde-Rijos, 799 F.3d at 765. Because Rule 68
"does not even contemplate a counteroffer or an
affirmative rejection, " the court concluded that
"even an express rejection does not terminate a Rule 68
offeree's power to accept the offer within a fourteen-day
period." Id. at 47, 48. The court supported its
reasoning with citations to the District of Columbia
Circuit's decision in Richardson V. Nat'l R.R.
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