Brandon A. v. NHDOE CV-00-25-B 08/08/01 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Brandon A . , by and through his parent and next best friend, David A . , on behalf of himself and all others similarly situated
v. Civil No. 00-025-B Opinion No. 2001 DNH 147 Nicholas Donahue, in his Official Capacity as Commissioner of The New Hampshire Department of Education
MEMORANDUM AND ORDER
Brandon A. is a student with learning disabilities who is
entitled to a free and appropriate public education pursuant to
the Individuals with Disabilities Education Act ("IDEA" ) , 20
U.S.C. § 1400, et seq. Brandon has brought a class action
complaint for declaratory and injunctive relief against the
Commissioner of the New Hampshire Department of Education
("NHDOE"), alleging that Brandon and his fellow class members
have been denied their right under the IDEA to a due process
hearing and a decision within 45 days after a request for a
hearing is filed with the NHDOE. The Commissioner has moved to
dismiss the complaint alleging that Brandon did not have standing when he filed suit and that his claim is moot because he received
the hearing he requested.
I. BACKGROUND1
A. Brandon A.
Brandon is a fourteen year-old educationally disabled
student in the Epsom School District (the "School District"). He
is currently attending the Wreath School, a residential
educational facility in Pike, New Hampshire.
On July 1, 1999, Brandon's father requested a due process
hearing challenging the School District's refusal to provide
Brandon with an extended school-year program in a therapeutic
setting. He also alleged that the School District failed to
identify Brandon as "seriously emotionally disturbed" and to
create an individualized education program ("IEP") that addressed
his emotional disability.
In response to the request, the NHDOE assigned Attorney Siff
to conduct a mediation session with the parties on July 22, 1999,
and to preside at their hearing on August 16, 1999. The parties
1 Except where noted, I take the facts from the Second Amended Complaint, Doc. No. 44, and the parties' briefs.
- 2 - unsuccessfully attempted mediation on two occasions. Because
Attorney Siff conducted the mediation sessions, he recused
himself from sitting as the hearing officer.
On July 30, 1999, Attorney John Lebrun notified the parties
that he would preside as the hearing officer. At that time,
Lebrun scheduled a prehearing conference for August 20, 1999,
thereby canceling the August 16, 1999 hearing.
In a letter dated July 30, 1999, the School District
requested that Brandon's father sign a release covering any and
all records and oral information in the possession of various
psychiatric hospitals, counseling services, and other
organizations that provided services to Brandon. Brandon's
father objected to the School District's request.
At the prehearing conference on August 20, 1999, the School
District filed a motion to compel Brandon's father to sign the
release. Brandon's father countered with a motion for a
protective order arguing that the records were not essential
because the issues he had raised could be resolved based on the
records in Brandon's existing educational file. He further
objected to signing the release on the grounds that such broad
- 3 - discovery would frustrate the IDEA's requirement that a hearing
be concluded and a final decision rendered within 45 days of the
receipt of a request for a hearing.
At the August 20, 1999 prehearing conference, the hearing
officer recused himself because he had previously represented
Brandon in an involuntary emergency admission proceeding. The
NHDOE reassigned the case to Hearing Officer Jeanne Kincaid
("Officer Kincaid"). On August 26, 1999, the parties resubmitted
their motions regarding discovery.
At the second prehearing conference held on September 2,
1999, Officer Kincaid informed the parties that if Brandon's
father did not sign the release, she would consider issuing an
order compelling him to do so. Over Brandon's father's
objection. Officer Kincaid also granted an extension of the 45-
day requirement for issuing a decision because of the change in
hearing officers and the need to secure documentation from
outside agencies.
On September 10, 1999, Officer Kincaid issued a "Discovery
Order" requiring Brandon's father to sign the release. When he
did not comply with the discovery request. Officer Kincaid
dismissed the case without prejudice.
- 4 - Brandon's father then filed suit in this Court, pursuant to
the IDEA, 20 U.S.C. § 14 1 5 (i)(2), appealing Officer Kincaid's
decision requiring that he sign a release and dismissing
Brandon's case. He also brought a claim on behalf of his son and
all others similarly situated, pursuant to 42 U.S.C. § 1983, to
enforce their right to a timely impartial due process hearing and
decision under the IDEA, 20 U.S.C. § 1415(f).
After a hearing in this court on October 26, 2000, the
parties agreed that the court should remand Brandon's individual
claims to Officer Kincaid. Officer Kincaid held a two-day
hearing on December 19 and 22, 2000, and issued a decision on
January 2, 2001. She awarded Brandon three months of
compensatory education and ordered the School District to revise
its evaluation and meeting procedures to comply with recent
amendments to the IDEA.
Brandon filed a second amended complaint on November 22,
2000, alleging that the NHDOE's system of hearings denies
students their right to a timely impartial due process hearing
and corresponding decision under the IDEA, 20 U.S.C. § 1415(f).
B. Class Allegations
From 1989 to 1999, the NHDOE received about 80 requests per
- 5 - year for due process hearings.2 Of the 80 requests, a decision
was issued in an average of 15.82 cases per year. The remaining
cases settled, were resolved through mediation, or were
withdrawn. Since 1989, only 11 out of the 171 hearings conducted
were decided within 45 days. Furthermore, in 96 out of the 171
hearings held since 1989, the hearing officers took over 100 days
to conclude the hearing and reach a decision.
In addition, in 1994, the Office of Special Education
Programs determined that the NHDOE was not complying with the 45-
day requirement. See Tr. of Oral Argument, Oct. 26, 2000, Doc.
No. 41, at 44. A due process hearing is considered to be in
compliance when the hearing and decision is rendered within the
45-day limit or when the hearing officer provides a written order
specifically granting a party's request for an extension to the
45-day limit. I d . at 42.
The NHDOE allegedly causes delays in the hearing process by
assigning hearing officers to cases in a way that increases the
possibility of conflicts and scheduling difficulties. The NHDOE
2 To put the number of requests in context, there are approximately 30,000 students receiving special education services in New Hampshire.
- 6 - also allows hearing officers to schedule hearings according to
openings in their private practice schedules. The hearing
officers also allegedly perpetuate these delays by not limiting
the number of witnesses or the scope of the evidence at a
hearing, by granting continuances without requiring a party to
show good cause, and by permitting school districts to engage in
broad discovery that often requires the extension of a hearing
beyond 45 days. The NHDOE has not promulgated rules addressing
discovery in due process hearings. Thus, discovery is governed
by the New Hampshire Department of Justice Model Rules, which
allow parties to seek any information that is "necessary for a
full and fair presentation of the evidence at the hearing."
Epsom Sch. Dist.'s Decision Mem., Doc. No. 21, A p p . I at 12.
II. STANDARD OF REVIEW
A motion to dismiss for lack of subject matter jurisdiction
pursuant to Fed. R. Civ. P. 12(b) (1) challenges the statutory or
constitutional power of the court to adjudicate a particular
case. 2 James Wm. Moore et al., Moore's Federal Practice §
12.30[1] (3d ed. 1997). The party seeking to invoke the court's
- 7 - jurisdiction bears the burden of establishing by competent proof
that jurisdiction exists. See Coventry Sewage Assocs. v. Dworkin
Realty C o ., 71 F.3d 1, 4 (1st Cir. 1995). The court must
construe the complaint liberally, treating all well-pleaded facts
as true and indulging all reasonable inferences in favor of the
plaintiff. See Murphy v. United States, 45 F.3d 520, 522 (1st
Cir. 1995). "[The] plaintiff, however, may not rest merely on
unsupported conclusions or interpretations of law." Id.
(internal quotation marks omitted). When ruling on a Rule
12(b)(1) motion, the court may consider whatever evidence has
been submitted in the case, including affidavits and exhibits.
See Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir. 1996).
I apply this standard in resolving the Commissioner's motion to
dismiss.
Before considering the parties' arguments, however, I first
provide an overview of the IDEA'S requirements.
Ill. THE IDEA
The purpose of the IDEA is "to ensure that all children with
disabilities have available to them a free appropriate public
education that emphasizes special education and related services designed to meet their unique needs and prepare them for
employment and independent living." 20 U.S.C. § 1400(d)(1)(A).
A disabled child's right to a free and appropriate public
education is assured by the development and implementation of an
individualized education program ("IEP"). See Honiq v. Doe, 484
U.S. 305, 311-12 (1988). An IEP must contain both a statement of
the child's "present levels of educational performance" and "a
statement of the special education and related services and
supplementary aids and services to be provided to the child." 20
U.S.C. § 1414(d)(1)(A)(i), (ill). l E P ' s m u s t b e revised not less
than annually. See i d . § 1 4 1 4 (d)(4)(A)(i).
The IDEA also provides children with disabilities and their
parents with a number of important procedural safeguards. See
i d . § 1415(a). A disabled child's parents must be included as
part of the team that develops and reviews a child's IEP. See
i d . § 1414(d)(1)(B)(i). Parents are also entitled to examine all
records relating to the child; to participate in meetings
concerning the child's educational placement; to obtain an
independent educational evaluation of the child; to receive
written notice of any proposal to alter or to refuse to alter the
child's educational placement; and to present complaints with
- 9 - respect to any matter relating to the identification, evaluation
or educational placement of the child. See i d . § 1415(b).
Children with disabilities and their parents also have the
right to an impartial due process hearing before a state
educational agency. See i d . § 1415(f). In addition, the agency
"shall ensure that not later than 45 days after the receipt of a
request for a hearing-- (1) A final decision is reached in the
hearing; and (2) A copy of the decision is mailed to each of the
parties." 34 C.F.R. § 300.511(a) (2000). Although this
requirement is not absolute, adherence to the requirement is
intended to be the rule rather than the exception. "The
legislative history, statutory terms, and regulatory framework of
the IDEA all emphasize promptness as an indispensable element of
the statutory scheme ... because children develop quickly and
their needs often change substantially from year to year." Amann
v. Town of Stow, 991 F.2d 929, 932 (1st Cir. 1993) (internal
quotation marks and citations omitted). Therefore, the prompt
disposition of disputes concerning a disabled child's educational
placement or IEP is necessary for the resolution to "serve any
substantively useful purpose." I d . (quoting Bow Sch. Dist. v.
Quentin W ., 750 F. Supp. 546, 550 (D.N.H. 1990)). The New
- 10 - Hampshire regulations, therefore, allow a hearing officer to
grant specific extensions of time beyond the 45 days for specific
periods of time only at the request of either party and for good
cause shown. See N.H. Code Admin. R. Ed. 1128.10(b) (1998); 34
C.F.R. § 300.511(c).
IV. DISCUSSION
The Commissioner argues that Brandon did not have standing
when he filed suit, and, in the alternative, that his claims are
now moot because he received a decision from Officer Kincaid.3 I
begin by discussing whether Brandon had standing when he filed
suit. I then consider the merits of the Commissioner's argument
that Brandon's claims are now moot.
3 The Commissioner also argues that this case is not justiciable because Brandon failed to exhaust certain state administrative remedies. This argument lacks merit for two reasons. First, the Supreme Court held in Patsy v. Board of Regents of Florida, 457 U.S. 496 (1982), that exhaustion of state administrative remedies is not a prerequisite to bringing an action pursuant to 42 U.S.C. § 1983. I d . at 516. Second, Brandon exhausted the only administrative procedure required under the IDEA, the due process hearing. See 20 U.S.C. § 1415(1); Weber v. Cranston Sch. Comm.. 212 F.3d 41, 49-50, 53 (1st Cir. 2000).
- 11 - A. Standing
Both constitutional and prudential considerations
potentially constrain a plaintiff's standing to sue in federal
court. Bennett v. Spear, 520 U.S. 154, 162 (1997) . The
constitutional aspect derives from the requirement that federal
courts can hear only a justiciable case or controversy. U.S.
Const, art. III. The "irreducible constitutional minimum of
standing" consists of three requirements: (i) the plaintiff must
have suffered an "injury in fact;" (ii) the cause of the alleged
injury must be "fairly . . . traceable" to the defendant; and
(iii) the injury must be "redress[able] by a favorable decision."
Bennett, 520 U.S. at 167 (quoting Luian v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992)).
To satisfy the Constitution's injury-in-fact requirement, a
plaintiff must demonstrate the deprivation of a: (i) "legally
protected interest," (ii) that is "concrete" and "particularized"
in the sense that the alleged injury must affect the plaintiff in
a "personal and individual way," and that is (iii) either
"actual" or "imminent." Defenders of Wildlife, 504 U.S. at 560-
61 & n.l. Where, as here, a plaintiff seeks prospective relief,
past exposure to illegal conduct will not suffice to show
- 12 - imminent harm. City of Los Angeles v. Lyons, 461 U.S. 95, 102
(1983) (quoting O'Shea v. Littleton, 414 U.S. 488, 495-96
(1974)). Rather, in order to establish imminence, a plaintiff
must allege facts showing that the "injury is certainly
impending," Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211
(1995) (quoting Defenders of Wildlife, 504 U.S. at 565 n.2)
(internal quotation marks omitted), such that there is "a
sufficient likelihood that he will again be wronged," Lyons, 461
U.S. at 111; see Berner v. Delahantv, 129 F.3d 20, 24 (1st Cir.
1997) .
The plaintiff bears the burden of satisfying these
requirements. See Berner, 129 F.3d at 24. He must provide
factual allegations, either direct or inferential, concerning
each of the standing requirements. See DuBois v. United States
Dep't of Aqric., 102 F.3d 1273, 1281 (1st Cir. 1996). "At the
pleading stage, [however,] general factual allegations of injury
resulting from the defendant's conduct may suffice, for on a
motion to dismiss we presume that general allegations embrace
those specific facts that are necessary to support the claim."
I d . at 1281-82 (internal quotation marks and citations omitted).
- 13 - Brandon's complaint satisfies the constitutional
requirements of standing. He has alleged a sufficient injury in
fact because he claims that he was denied his alleged right under
the IDEA to a hearing and a decision from the NHDOE within 45
days. His alleged injury is fairly traceable to the Commissioner
because Brandon claims that he was denied a timely hearing
pursuant to NHDOE policy rather than the whim of a single hearing
officer. Finally, his claimed injury was redressable when he
filed suit because I could have ordered the Commissioner to give
Brandon the hearing he sought.
To the extent that the Commissioner also argues that Brandon
lacks standing because he asserts only a generalized grievance, I
also reject this argument. Brandon sued because he was denied
his right to a prompt resolution of his dispute with the school
district. His particularized injury does not become a
generalized grievance merely because other disabled students also
were denied a prompt resolution of their IDEA disputes.
Accordingly, I reject the Commissioner's standing claims.
B. Mootness
The fact that a plaintiff may have standing to sue when suit
is commenced does not end the inquiry. "Under Article III of the
- 14 - Constitution, federal courts may adjudicate only actual, ongoing
cases or controversies." Lewis v. Continental Bank Corp., 494
U.S. 472, 477 (1990) (citing Deakins v. Monaghan, 484 U.S. 193,
199 (1988)). Furthermore, Article Ill's "case-or-controversy
requirement subsists through all stages" of litigation. Id.
Thus, "an actual controversy must be extant at all stages of
review, not merely at the time the complaint is filed."
Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997)
(quoting Preiser v. Newkirk, 422 U.S. 395, 401 (1975)).
In Arizonans for Official English, the Supreme Court
described the mootness doctrine as "the doctrine of standing set
in a time frame: The requisite personal interest that must exist
at the commencement of litigation (standing) must continue
throughout its existence (mootness)." 520 U.S. at 68 n.22
(internal quotation marks and citations omitted). Consequently,
"throughout [the course of] the litigation, [a] plaintiff 'must
have suffered, or be threatened with, an actual injury traceable
to the defendant and likely to be redressed by a favorable
judicial decision.'" Spencer v. Kemna, 523 U.S. 1, 7 (1998)
(quoting Lewis, 494 U.S. at 477). When "the party invoking
federal court jurisdiction no longer has a personal stake in the
- 15 - outcome of the controversy," a once justiciable controversy
becomes moot and the court loses subject matter jurisdiction to
consider the matter further. Thomas R.W. v. Mass. Dep't of
Ed u c ., 130 F.3d 477, 479 (1st Cir. 1997) (quoting Boston and
Maine Corp. v. Bhd. of Maint. of Wav Employees, 94 F.3d 15, 20
(1st Cir. 1996)). The party arguing that a claim is moot,
however, bears the heavy burden of establishing mootness. See 15
Moore et a l ., supra, § 101.101.
In this case. Officer Kincaid resolved Brandon's claims
concerning the educational services he is entitled to under the
IDEA. She held a due process hearing and issued an order on
January 2, 2001, awarding Brandon three months of compensatory
education and ordering the School District to revise its
evaluation and meeting procedures to comply with recent
amendments to the IDEA. See Def.'s Mot. to Dismiss, Doc. No. 45,
at Exh. A. Brandon has not appealed Officer Kincaid's decision.
Accordingly, the Commissioner argues that Brandon's claims are
moot because he received the hearing he sought.
Brandon, in turn, argues that his claim is saved by an
exception to the mootness doctrine that applies when a defendant
voluntarily ceases its illegal conduct before a court can rule on
- 16 - the merits of the case. See Northeastern Fla. Chapter of Assoc.
Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656,
661 (1993); City of Mesquite v. Aladdin's Castle, Inc., 455 U.S.
283, 289 (1982). In a case such as this, where a defendant
voluntarily accords the plaintiff the relief he seeks after suit
has been commenced, the defendant's cessation of its allegedly
illegal activity will not moot the case unless "it is absolutely
clear that the allegedly wrongful behavior could not reasonably
be expected to recur." Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs., Inc., 528 U.S. 167, 190 (2000) .
I agree that this case fits comfortably within the voluntary
cessation of illegal activity exception to the mootness doctrine.
If the Commissioner had not voluntarily agreed to give Brandon a
hearing on his challenge after suit was brought, he would still
be waiting for relief from this Court. Further, I cannot say on
the present record that it is absolutely clear that Brandon and
other disabled students could not face a wait of more than 45
days before receiving a future decision from the NHDOE if I were
to dismiss this case as moot. Accordingly, I reject the
Commissioner's mootness argument.
- 17 - V. CONCLUSION
I deny the Commissioner's motion to dismiss, (Doc. No. 45)
because I find that Brandon's claims remain justiciable.
SO ORDERED.
Paul Barbadoro Chief Judge August 8, 2001
cc: Nancy J. Smith, Esq. Ronald K. Lospennato, Esq. Diane M. McCormack, Esq. John F. Teague, Esq.
- 18 -