Opinion
6:21-cv-01430-MK
04-11-2022
J.S., by and through their next friends S.S. and E.S., Plaintiff-Appellant, v. EUGENE SCHOOL DISTRICT 4J, Defendant-Appellee.
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI (HE / HIM) UNITED STATES MAGISTRATE JUDGE
Plaintiff-Appellant (“Student”) brings this appeal of an administrative law judge's (“ALJ”) decision issued pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. (“IDEA”); Section 504 of the Rehabilitation Act of 1973 (“504 claim”), 29 U.S.C. §§ 701 et seq.; and Or. Rev. Stat. (“ORS”) § 343.175 against Defendant-Appellee (“Defendant” or the “District”). Defendant moves for partial dismissal of several of Student's claims pursuant to Federal Rule of Civil Procedure 12(b)(6). Def.'s Mot. Dismiss, ECF No. 6 (“Def.'s Mot.”). The Court heard oral argument in February 2022. ECF No. 15. For the reasons that follow, Defendant's motion for partial dismissal should be GRANTED.
Paragraph 1 of Student's Complaint references a host of additional federal and state statutes, regulations, and administrative rules, as well as the federal Constitution as sources for this appeal that are not referenced elsewhere in the body of the Complaint. Accordingly, this Findings and Recommendation (“F&R”) limits its discussion to only those sources of law specifically alleged to have been violated in the Complaint.
BACKGROUND
In September 2020, Student initiated an administrative due process hearing against Defendant school district before the Oregon Department of Education pursuant to the IDEA. In July 2021, an ALJ issued a Final Order ruling in favor of the District on all of Student's claims. Compl., Ex. 1, In the Matter of JS AND EUGENE SCHOOL DISTRICT 4J - OAH Case No. 2020-ABC-04021 at 31, ECF No. 1-1 (“ALJ Decision”). Student filed a timely appeal of that Final Order in September 2021. See Compl., ECF No. 1. The Complaint challenges the ALJ's characterization of the evidence as well as the ALJ's findings of fact and conclusions of law. Id. However, because Defendant's partial motion to dismiss is limited to Plaintiff's “new procedural claims” the Court need not delve into the substantive allegations in the Complaint beyond what is necessary to provide context at this stage of the proceedings.
This F&R's references to portions of the ALJ's decision should not be construed as the Court indicating the level of deference it will ultimately give the ALJ's decision upon consideration of the merits of Student's claims. See, e.g., Forest Grove Sch. Dist. v. Student, No. 3:14-cv-00444-AC, 2018 WL 6198281, at *9 (D. Or. Nov. 27, 2018) (discussing the relevant considerations a district court must weigh when evaluating the level of deference due an ALJ's decision in an IEDA appeal).
Student is enrolled in the seventh grade at a school within the Eugene 4J School District. Compl. ¶ 8. Student was diagnosed with Fetal Alcohol Syndrome and Developmental Delay in May 2012, and attention deficit hyperactivity disorder in November 2013. Id. ¶ 12.
Student first began receiving special education services based on emotional disturbances and other health impairments and has had an individual education program (“IEP”) through the District since April 2016. ALJ Decision at 4. The crux of Student's appeal centers on actions taken by the District during the 2018-19 school year-i.e., whether the District properly modified and implemented Student's IEP during that school year. See ALJ Decision at 20-30.
“An IEP is an education plan tailored to a child's unique needs that is designed by the school district in consultation with the child's parents after the child is identified as eligible for specialeducation services.” Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 n.1 (2009) (“T.A.”) (citing 20 U.S.C. §§ 1412(a)(4), 1414(d)).
Relevant to Defendant's pending motion, Student brings two “new procedural” claims in the Complaint:
56. In addition, Student raises the following new procedural claims based upon testimony presented at hearing:
a. District failed to provide parents with a Prior Written Notice of special education change when the placement was changed in September 2018 and the components of embedded mental health and behavior services were removed from Student's special education placement.
b. District failed to amend the IEP between September 2018 and April 2019 so that the service summary page reflected the change from the ESD as the service provider to 4J as the service provider.Compl. ¶ 56.
At oral argument, Student's counsel conceded that Student was not bringing a claim pursuant to Division 22. Defendant's request to dismiss those claims is therefore DENIED as moot.
STANDARD OF REVIEW
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the claims. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party.” Am.Family Ass'n, Inc. v. City & Cty. of S.F., 277 F.3d 1114, 1120 (9th Cir. 2002). To survive a motion to dismiss, a complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face[, ]” meaning “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). In other words, a complaint must contain “well-pleaded facts” that “permit the court to infer more than the mere possibility of misconduct[.]” Id. at 679.
However, the court need not accept conclusory allegations as truthful. See Warren v. FoxFamily Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (“[W]e are not required to accept as true conclusory allegations which are contradicted by documents referred to in the complaint, and we do not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations.”) (internal quotation marks, citation, and alterations omitted). A motion to dismiss under Rule 12(b)(6) will be granted if a plaintiff alleges the “grounds” of his “entitlement to relief” with nothing “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)[.]” Id.(citations and footnote omitted).
DISCUSSION
I. Legal Framework
A. IDEA
Congress enacted the Individuals with Disabilities Act (“IDEA”) in 1970 to, among other things, “ensure that all children with disabilities have available to them a free appropriate public education [(“FAPE”)] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living[.]” 20 U.S.C. § 1400(1)(A); see also T.A., 557 U.S. 230, 239 (2009). In exchange for a commitment to furnish a FAPE to all children with certain physical or intellectual disabilities, the IDEA offers states federal educational funding. 20 U.S.C. § 1412(a)(1)(A). A FAPE comprises “special education and related services, ” including both “instruction” tailored to meet a child's “unique needs” and sufficient “supportive services” to permit the child to benefit from that instruction. 20 U.S.C. §§ 1401(9), (26), (29). See Fry v. Napoleon Cmty. Sch., 137 S.Ct. 743, 748-49 (2017); see also A.F. by & through Fournier v. Portland Pub. Sch. Dist., No. 3:19-cv-01827-BR, 2020 WL 1693674, at *2-3 (D. Or. Apr. 7, 2020).
Under the IDEA, an IEP is the primary vehicle used by schools to provide each child with a FAPE and is “tailored to a child's unique needs that is designed by the school district in consultation with the child's parents after the child is identified as eligible for special-education services.” T.A., 557 U.S. at 234 n.2 (citing 20 U.S.C. §§ 1412(a)(4), 1414(d)). Among other things, the IEP lists the “special education and related services” a school will provide a student so that the child can “advance appropriately toward attaining [educational] goals.” 20 U.S.C. § 1414(d)(1)(A)(i)(IV)(aa).
When parents and school representatives disagree on the adequacy of a child's IEP, the IDEA establishes formal procedures for resolving disputes. A parent may file a complaint with the local or state educational agency that triggers a preliminary hearing between the parties, 20 U.S.C. § 1415(b)(6), or the parent may proceed with mediation, 20 U.S.C. § 1415(e).
If a resolution cannot be achieved, the matter proceeds to a “due-process hearing” before an impartial hearing officer. 20 U.S.C. § 1415(f)(1)(A), (3)(A)(i). Any decision by the hearing officer that grants substantive relief must be “based on a determination of whether the child received a [FAPE].” 20 U.S.C. § 1415(f)(3)(E)(i). A parent who is unhappy with the outcome of the administrative process may then seek judicial review by filing a civil action in state or federal court. 20 U.S.C. § 1415(i)(2)(A).
Judicial review of an ALJ's decision brought under the IDEA differs substantially from judicial review of other agency actions. M.C. ex rel. M.N. v. Antelope Valley Union High Sch.Dist., 858 F.3d 1189, 1194 (9th Cir. 2017) (“Antelope Valley”); see also Forest Grove, 2018 WL 6198281, at *9-10. The court is required to review the full administrative record as well as any additional evidence introduced by either party and must base its decision on a preponderance of the evidence, and “grant such relief as the court determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C). The preponderance of the evidence standard empowers courts to conduct a more detailed and independent analysis, but is “by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review.” Hendrick Hudson Cent. School Dist. Bd. Educ. v. Rowley, 458 U.S. 176, 206 (1982) (“Rowley”).
Importantly, courts are not to conduct de novo review. Amanda J. ex rel. Annette J. v.Clark County Sch. Dist., 267 F.3d 877, 887 (9th Cir. 2001). Rather, an ALJ's decision is entitled to “due weight” and the reviewing court is required to “consider the findings carefully[.]” R.B. exrel. F.B. v. Napa Valley Unified Sch. Dist., 496 F.3d 932, 937 (9th Cir. 2007) (internal quotation marks omitted) (“Napa Valley”). To receive deference, an ALJ's findings must be “thorough and careful.” Antelope Valley, 858 F.3d at 1194 & n.1. A court “treat[s] a hearing officer's findings as ‘thorough and careful' when the officer participates in the questioning of witnesses and writes a decision contain[ing] a complete factual background as well as a discrete analysis supporting the ultimate conclusions.” Napa Valley, 496 F.3d at 942. On appeal, the court “must actually examine the record to determine whether it supports the ALJ's opinion.” Id. Ultimately, the degree of deference due to the ALJ is left to the “the discretion of the courts.” Gregory K. v.Longview Sch. Dist., 811 F.2d 1307, 1311 (9th Cir. 1987).
B. Americans with Disabilities and Rehabilitation Acts
The Americans with Disabilities Act and the Rehabilitation Act also protect students in public schools. A student who seeks relief that is also available under the IDEA, however, must exhaust the IDEA's administrative procedures. 20 U.S.C. § 1415(1). The IDEA's exhaustion requirement “hinges on whether a lawsuit seeks relief for the denial of a [FAPE].” Fry, 137 S.Ct. at 754. If the remedy sought is not for the denial of a FAPE, then exhaustion of IDEA's procedures is not required. Id. The court determines whether a student's claim is because of denial of a FAPE by looking to the “substance” of the student's complaint rather than the labels used in the complaint. “What matters is the crux-or, in legal-speak, the gravamen-of the plaintiff's complaint, setting aside any attempts at artful pleading.” Id. at 755. “A court deciding whether § 1415(1) applies must therefore examine whether a plaintiff's complaint-the principal instrument by which [they] describes [their] case-seeks relief for the denial of an appropriate education.” Id.
II. New Claims
Defendant moves to dismiss Student's “new procedural” claims arguing that a plaintiff in a case brought pursuant to the IDEA may not raise new claims for the first time on appeal. Def.'s Mot. 5-8. Student responds that “courts, including the Ninth Circuit, have held that ‘the rule against considering arguments raised for the first time on appeal ‘is prudential, not jurisdictional.'” Pl.'s Opp'n 5 (citing United States v. Brunner, 726 F.3d 299, 304 (2d Cir. 2013)). Student's briefing cites several non-binding cases standing for related propositions from the Second, Third, and Tenth Circuit Courts of Appeal. Id. at 5-6.
Generally, students bringing claims under the IDEA are required to raise all claims in their Due Process complaint or risk waiving any claims not specifically enumerated-i.e., students must exhaust their administrative remedies before bringing suit. As one district court has carefully explained:
As a general rule, arguments not raised at an administrative hearing cannot be raised for the first time on appeal to the district court. The Ninth Circuit applied this rule to IDEA appeals in Robb v. Bethel School District No. 403, where it held that, “when a plaintiff has alleged injuries that could be redressed to any degree by the IDEA's administrative procedures and remedies, exhaustion of those remedies is required.” 308 F.3d 1047, 1048 (9th Cir. 2002). Exhaustion may be avoided, however, if “it would be
futile or offer inadequate relief, or if the agency has adopted a policy or pursued a practice of general applicability that is contrary to the law.” N.D. v. Hawaii Dep't of Educ., 600 F.3d 1104, 1110 (9th Cir. 2010) (citations and internal quotation marks omitted).
The Ninth Circuit has also held that review in IDEA cases is specifically limited to the issues raised in the administrative complaint. Cnty. of San Diego v. Cal. Special Educ. HearingOffice, 93 F.3d 1458, 1465 (9th Cir. 1996) (“The scope of the administrative hearing mandated by [former] section 1415(b)(2) is limited to the ‘complaint' raised to obtain the hearing.”). 20 U.S.C. § 1415 codified this holding, providing that “[t]he party requesting the due process hearing shall not be allowed to raise issues at the due process hearing that were not raised in the notice filed under subsection (b)(7), unless the other party agrees otherwise.” § 1415(f)(3)(B).Dep't of Educ. of Hawaii v. Leo W. by & through Veronica W., 226 F.Supp.3d 1081, 1096 (D. Haw. 2016) (citation omitted; footnote renumbered). See also Marc. M. v. Dep't of Ed., 762 F.Supp.2d 1235, 1241 (D.Haw. 2011) (“[A]rguments not raised in front of a hearings officer cannot be raised for the first time on appeal to the district court. Indeed, ‘when a plaintiff has alleged injuries that could be redressed to any degree by the IDEA's administrative procedures and remedies, exhaustion of those remedies is required.'”) (quoting Robb, 308 F.3d at 1048); Hailey M. ex rel. Melinda B. v. Matayoshi, 2011 WL 3957206, at *25 (D.Haw. Sept. 7, 2011) (declining plaintiffs' request to review IDEA issues that were not raised or considered in underlying administrative proceeding).
“Robb was overruled by Payne v. Peninsula School District, 653 F.3d 863 (9th Cir. 2011), which was overruled on other grounds by Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014). However, in Payne the Ninth Circuit merely ‘clarified that the IDEA's exhaustion provision applies only in cases where the relief sought is available under the IDEA.' M.M. v. Lafayette Sch. Dist., 767 F.3d 842, 861 (9th Cir. 2014) (quoting Payne, 653 F.3d at 871).” Dep't of Educ. of Hawaii, 226 F.Supp.3d at 1096.
Here, Student has not identified why the Court should depart from the general rule that disfavors consideration of new arguments raised for the first time on appeal. There is no evidence that raising the “new procedural” claims during the administrative process would have proven futile. Nor is there evidence the District had adopted a policy or practice that was contrary to the law. Further, at oral argument, counsel for Student conceded that Parents were aware that the district failed to provide prior written notice. Hearing (February 3, 2022), ECF No. 15. As such, the Court should find that Student's “new procedural” claims are barred because Student has failed to supply an adequate justification for departing from the general rule that new arguments may not be raised for the first time on appeal.
Neither of the two Ninth Circuit cases identified by Student at oral argument compel a different result. Planned Parenthood of Greater Washington & N. Idaho v. U.S. Dep't of Health& Hum. Servs., 946 F.3d 1100, 1108 (9th Cir. 2020), permits a court to exercise its “equitable discretion to reach the merits of a case when the court below did not, ” but in no way mandates consideration. And Consumer Fin. Prot. Bureau v. Gordon, 819 F.3d 1179, 1191 (9th Cir. 2016) is distinguishable because the party in that case did “properly raise” an issue to the trial court below and therefore the issue was preserved on appeal. See id. (“Here, Gordon undoubtedly raised the argument that Cordray was invalidly appointed under the Appointments Clause and, as a result, the enforcement action against Cordray was invalid. As this is an issue of law that does not depend on any further development of the facts, we may exercise our discretion to address it.”). There is no indication that Student similarly attempted to raise the issues below. Those cases are therefore inapposite.
In sum, the District's motion for partial dismissal should be granted as to Student's “new procedural” claims.
RECOMMENDATION
For the reasons above, the District's partial motion to dismiss (ECF No. 6) should be GRANTED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order.
The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed.R.Civ.P. 72. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).