Annette PEARSON, Mother and Next Friend of J.P., a minor, Defendant. v. DISTRICT OF COLUMBIA, Plaintiff,
Civil Action No. 11-2043 (RC).
United States District Court, District of Columbia.
Feb. 8, 2013.
RUDOLPH CONTRERAS, District Judge.
Proof of threats have been considered in tolling the statute of limitations only where “the threats themselves continue up to the point that the plaintiff brings her action.” Bage v. Diocese of Rapid City, 630 F.3d 757, 762 (8th Cir.2011); see also Rakes v. United States, 442 F.3d 7, 26 (1st Cir.2006) (plaintiff must demonstrate that threats leading to duress were сontinuous before equitably tolling the statute of limitations); Overall, 52 F.3d at 404 (same).
Id. at 358; see also Zein v. United States, 52 Fed.Cl. 101, 104 (Fed.Cl.2002) (after conducting inquiry into timing of threats, court ultimately dismissed case as untimely because plaintiff‘s explanation for filing so late was insufficient as a matter of law); Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1075 (2d Cir.1993) (rejecting equitable tolling and affirming summary judgment for defendants where “aside from rather vague and general references to [ ] alleged misdeeds, [the appellant] has failed to advanсe any credible proof of wrongful actions on the part of this appellee or its insurance company“).
Indeed, Plaintiff‘s own actions belie his claims that fear caused the delay here, as he sent a letter directly to the Antiguan government seeking payment on the notes in 2005 (within the six-year window for filing suit). See id., 11 58-60. His reasons for failing to follow up or to bring suit are insufficient as a matter of law. Plaintiff simply has nоt filed this action “within a reasonable time after the facts giving rise to the estoppel have ceased to be operational.” Overall, 52 F.3d at 404 (citation and internal quotation marks omitted).
“[D]ue diligence on the part of the plaintiff in bringing his action is an essential element for the applicability of the doctrine of equitable estoppel, to be demonstrated by the plaintiff when he seeks the shelter of the doctrine.” Simcuski, 406 N.Y.S.2d 259, 377 N.E.2d at 717. Where, as here, Plaintiff fails to demonstrate that he filed suit within a reasonable time after the threats had subsided, he cannot invoke the doctrine. The Court, furthermore, finds the record sufficiently developed such that additional supplementation would not aid it in determining whether tolling should apply here. Cf. id., 406 N.Y.S.2d 259, 377 N.E.2d at 717 (finding it premature to determine whether action was timely, given “skeletal record” before court).
IV. Conclusion
For the foregoing reasons, the Court will grant judgment in favor of Defendants. A separate Order consistent with this Opinion will be issued this day.
Robert W. Jones, James E. Brown & Associates, PLLC, Washington, DC, for Defendant.
MEMORANDUM OPINION
GRANTING THE PLAINTIFF‘S MOTION FOR SUMMARY JUDGMENT; DENYING THE DEFENDANT‘S CROSS-MOTION FOR SUMMARY JUDGMENT
RUDOLPH CONTRERAS, District Judge.
I. INTRODUCTION
J.P. is a minor child who is eligible to receive special education services. Pursuant to administrative proceedings below, J.P. was initially placed in a non-public schoоl in Springfield, Virginia. After one year, however, the District of Columbia Public Schools (“the District“) elected to place him in one of its public schools. J.P.‘s mother subsequently filed a due process complaint against the District. During the ensuing due process hearing, a hearing officer held that the District had not denied J.P. a free and appropriate public education (“FAPE“) under the Individuals with Disabilities Education Act (“IDEA“),
II. FACTUAL & PROCEDURAL BACKGROUND
J.P. is a 16-year-old student in need of special education services. Pl.‘s Statement of Material Facts (“Pl.‘s Stmt.“) ¶ 2. In 2010, he was given a comprehensive psychological evaluation, which indicated that he was deficient in all academic areas, and that he had attention-deficit hyperactivity disorder and depression. Id. Pursuant to a hearing officer‘s determination (“HOD“) on November 12, 2010, the District placed and funded J.P. at Accotink Academy, a non-public school in Springfield, Virginia. Id. ¶ 3. On December 10, 2010, a Multi-Disciplinary Team (“MDT“) met to review and revise J.P.‘s Individualized Education Program (“IEP“), which had been developed on December 7, 2010. Id. ¶ 4. The IEP indicated that J.P. was to receive 26 hours per week of Specialized Instruction, and 240 hours per week of Behavioral Support services оutside of the general education setting. Id. ¶ 6. During the 2010-11 school year, J.P. was disciplined for various offenses, including being disruptive, using foul language, not following directions, and being disrespectful. Id. ¶ 9. His grades worsened in all subjects except for one, and he was absent a total of 77 days. Id. ¶¶ 10-11.
An MDT met on June 7, 2011, and proposed to change his placement to Woodson High School, a public school in the District. Pl.‘s Stmt. 19. J.P.‘s mother, the dеfendant in this matter, opposed that placement, stating that she wanted him to remain at Accotink. Id. ¶ 14. On June 9, 2011, the defendant filed an administrative due process complaint against the District, alleging that it had denied J.P. a FAPE. Id. ¶ 15; Administrative Record (“A.R.“), Due Process Compl. Notice [Dekt. # 5-5] at 190. A pre-hearing conference was held on July 11 and 20, 2011, to clarify the defendant‘s claims. Pl.‘s Stmt. ¶ 17;
After the conference, a Pre-Hearing Cоnference Summary and Order was issued on July 21, 2011. Pl.‘s Stmt. ¶ 17. The pre-hearing order stated that the issues to be presented at the upcoming due process hearing were limited to those raised in the complaint, as modified by the order. A.R., Pre-Hearing Conference Summary and Order [Dekt. # 5-6] at 226. The order certified that the issues for adjudication at the due process hearing were whether the District had denied J.P. a FAPE by 1) failing to offеr a placement that could meet his needs for the 2010-11 school year; and by 2) failing to develop an appropriate IEP that included a full description of his Least Restrictive Environment (“LRE“), which was an explanation of the Specialized Instruction that he required, and by failing to develop a transition plan to an alternate setting that reflected his interests and needs, including addressing his need for independent living skills. Id. at 226-27.
The due process hearing was held on August 3 and 10, 2011. Pl.‘s Stmt. ¶ 17. During the hearing, the defendant withdrew the transition claim, where she had asserted that the District had failed to revise J.P.‘s IEP to include a finalized transition plan to an alternate setting. Id. ¶ 19. On August 23, 2011, the hearing officer issued an HOD. Id. ¶ 20. The HOD addressed two issues: 1) whether the District had denied J.P. a FAPE by failing to offer an appropriate placement for the 2011-12 school year; and 2) whethеr the District had denied J.P. a FAPE by failing to develop an IEP that included a full description of his LRE. HOD at 3. After making several findings of fact, the hearing officer held that J.P.‘s mother failed to prove that the District had denied him a FAPE with regard to both issues. Id. at 19, 22.
The HOD also stated, however, that J.P. has significant emotional problems that interfere with his attendance and participation in school, and that the IEP failed to address his truancy and school avoidance, even as these things have impeded his ability to progress to the next grade. Id. at 18. The HOD further noted that J.P.‘s mother had not addressed this issue in her complaint and in the evidence that she had presented. Id. at 22. The HOD also stated that it was evident that J.P. required “additional assistance outside of school,” or, “[i]n other words . . . community services designed to ensure” that he would get sufficient sleep, be properly nourished, get to school on time, complete his homework, have social and recreational opportunities, and follow a regular routine. Id.
The HOD thus ordered that the District revise J.P.‘s IEP to include weekly family counseling and that it provide him with a “trained mentor, social worker, or similar service provider.” Id. at 18. The service provider was required to arrive at J.P.‘s home every morning before school, and ensure that he would get out of bed, dress for school, eat a healthy breakfast, and arrive at school on time, homework in hand (where the provider would walk J.P. to class, if necessary). Id. In addition, the service provider would have to meet J.P. at school at the end of the day, accompany him home, ensure that he ate a healthy snack, assist him with completing his homework, and mаke sure that he had a healthy dinner (where the service provider would give J.P.‘s mother nutritional counseling, if necessary). Id. at 18-19. The service provider would have to ensure that J.P. followed an appropriate personal hygiene routine and went to bed at a reasonable hour, and he or she was required to make all reasonable efforts to guarantee that J.P. received at least eight hours of sleep. Id. at 19. If necessary, the service
The District has now filed this action to appeal part of the hearing officer‘s decision. The parties have filed cross-motions for summary judgment. The Court now turns to the parties’ arguments and the applicable legal standards.
III. ANALYSIS
A. Standard of Review for Administrative Decisions Under the IDEA
The IDEA was enacted “to 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 nеeds and prepare them for further education, employment, and independent living. . . .”
Although seeking judicial review of an administrative agency‘s decision by way of a summary judgment motion “is permissible under the IDEA, it is not a true summary judgment procedure. Instead, the district court essentially conduct[s] a bench trial based on a stipulated record.” L.R.L. ex rel. Lomax v. District of Columbia, 896 F.Supp.2d 69, 73 (D.D.C. 2012) (quoting Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1472 (9th Cir.1993)). As no new evidence has been submitted here, the Court will treat the parties’ cross-motions for summary judgment as motions for judgment based on the administrative record. See S.B. v. District of Columbia, 783 F.Supp.2d 44, 50 (D.D.C. 2011). In other words, rather than applying the typical standard applicable to a summary judgment motion, which may be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law,”
In evaluating a hearing officer‘s decision under the IDEA, the court reviews the administrative record and bases its decision on the preponderance of the evidence, where it grants relief as deemed
B. The Hearing on Decision‘s Order Revising the IEP to Include a Service Provider Should be Vacated
The District contends that this Court should vacate the HOD‘s requirement that the District revise J.P.‘s IEP to include a service provider who would oversee his daily rоutine. Def.‘s Mot. at 14. According to the District, the issue of J.P.‘s truancy and “school avoidance” was not raised in the administrative complaint, certified as an issue to be adjudicated at the due process hearing, or agreed to by the defendant or by the District. Id. Instead, the District argues, this issue was raised sua sponte by the hearing officer, and the accompanying remedy to provide a service provider was not supported by the evidence presented at the hearing. Id. Thus, the District contends, this remedy should be vacated. Id.
In her cross-motion, the defendant asserts that J.P.‘s behavior and emotional problems were discussed in the due process complaint, and that these problems gave rise to his truancy. Pl.‘s Mot. at 9. The defendant also argues that there is no basis to limit the hearing officer‘s authority to provide the relief that she ordered, and that thе HOD should be upheld. Id.
Under the IDEA, the subject matter of a due process hearing is limited to those issues that were raised in the due process complaint by the party requesting the hearing.
In this case, the issue of J.P.‘s truancy was not raised in the due process complaint. See generally Due Process Compl. Notice [Dekt. # 5-5]. In addition, it was not identified as an issue during the pre-hearing conference, which was intended to clarify J.P.‘s mother‘s claims, nor was it mentioned in the pre-hearing order, which explicitly stated that the issues to be presented at the upcoming due process hearing were limited to those raised in the complaint, as modified by the order. A.R., Pre-Hearing Conference Summary and Order [Dekt. # 5-6] at 226.
Instead, the only two issues that the hearing officer certified for adjudication during the due process hearing, itself, were whether the District had denied J.P. a FAPE by 1) failing to offer him an appropriate plaсement; and by 2) failing to develop an IEP that included a full description of his LRE. HOD at 3. Neither of these issues involved addressing J.P.‘s truancy; instead, both questions (and indeed,
The defendant contends that the due process сomplaint did mention J.P.‘s emotional difficulties, which gave rise to his absenteeism from school. Def.‘s Opp‘n and Cross-Mot. at 9. Yet mentioning this general, foundational basis of J.P.‘s problems was not sufficient to give the District notice that the hearing would address J.P.‘s truancy, or whether it was advisable to appoint a service provider to supervise him closely on a daily basis, particularly because these issues had not been explored before. Rather, these issues should have been raised explicitly in the complaint. See Corpus Christi Indep. Sch. Dist. v. C.C., 2012 WL 2064848, at *5 (S.D.Tex. June 7, 2012) (“Courts have also applied Section 1415(f)(3)(B) to limit petitioners from delving into previously unexplored subject areas not addressed in the due process notice or at the pre-hearing conference . . . .“) (citing Sherry M. v. Hawaii, 803 F.Supp.2d 1150, 1165 (D.Haw.2011); Bd. of Educ. of the Green Local Sch. Dist. v. Redovian, 19 IDELR 1092, 1098 (E.D. Ohio 1992)). The complaint provided detailed analysis as to why Extended School Year services should be provided, and why J.P.‘s IEP should be revised to include a more explicit description of his LRE, as well as a transition plan. See generally Due Process Compl. Notice [Dekt. # 5-5]. The defendant arguing these issues in the complaint with such specificity demonstrates that other issues involving truancy and a service provider could have been introduced with the same level of detail; the fact that they were not indicates that they were not “implicitly” included in the complaint, as the defendant attempts to posit. See Def.‘s Mot. at 9.
Indeed, the hearing on decision, itself, noted that the defendant “failed to address this issue in her request for relief and in the evidence she presented at the due process hearing.” HOD at 18. Thus, the hearing officer “injecting” an issue that was not raised in the complаint was “clearly inappropriate,” as she “should [have instead] limited the issues [she] considered in reaching [her] determination to those that were raised prior to the hearing.” Hawaii Dep‘t of Educ., 2006 WL 1646093, at *4 (internal citation omitted); Redovian, 18 IDELR at 1098 (determining that the hearing officer raising issues that were not brought by the parties was inappropriate because it did not give the school district notice of such issues).
In addition, the IDEA requires that “a decision made by a hearing officer shall be made on substantive grounds based on a determination of whether the child received a free appropriate public education.”
Accordingly, because the HOD lacked both procedural and substantive grounds to order that the District appoint a service provider to supervise J.P., that portion of her decision below is vacated. The remaining aspects of the hearing officer‘s decision will not be disturbed, including her determination that J.P. was not denied a FAPE, as they were not challenged and are not on appeal before this Court.1
IV. CONCLUSION
For the foregoing reasons, the Court grants the plaintiff‘s motion for summary judgment and denies the defendant‘s cross-motion for summary judgment. An Order consistent with this Memorandum Opinion is separately and contemporaneously issued this 8th day of February, 2013.
Donald WILLIS, Plaintiff, v. CHASE HOME FINANCE, Defendant.
Civil Action No. 12-01314 (CKK).
United States District Court, District of Columbia.
Feb. 8, 2013.