Leslie B. v. Winnacunnet Sch. Dist.

• Court: District Court, D. New Hampshire
• Decided: May 14, 1997
• Docket: CV-94-530-SD
• Status: Published

Opinion

Leslie B. v. Winnacunnet Sch. Dist. CV-94-530-SD 05/14/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Leslie B., by her parents, John C. and Nancy M.I.

v. Civil No. 94-530-SD

Winnacunnet Cooperative School District

O R D E R

In this civil action, plaintiff Leslie B., by and through

her parents, has filed an appeal pursuant to 20 U.S.C. §

1415(e)(2) of the Individuals with Disabilities Education Act

(IDEA) challenging a hearing officer's approval of an

individualized education program (IEP) proposed by defendant

Winnacunnet Cooperative School District.

Presently before the court is defendant's motion for summary

judgment, to which plaintiff objects. Also before the court is

defendant's motion to strike a psychiatric report attached to

plaintiff's objection, to which plaintiff objects.

Ordinarily, a motion for summary judgment filed in the

context of a judicial review proceeding "is simply the procedural

vehicle for asking the judge to decide the case on the basis of

the administrative record." Hunger v. Leininger, 15 F.3d 664,

669 (7th Cir. 1994) (citing Sabine River Auth. v. United States Pep't of Interior, 951 F.2d 669, 678-79 (5th Cir. 1992)). A

judge may thereby decide the issue of "law"--the validity of the

administrative decision--by relying on the administrative record,

and need not hold an actual trial. However, under the IDEA, the

district court is empowered to "hear additional evidence at the

reguest of a party." 20 U.S.C. § 1415(e) (2). Although even

under the IDEA, "the source of the evidence generally will be the

administrative hearing record," Town of Burlington v. Department

of Educ., 736 F.2d 773, 790 (1st Cir. 1984), some supplementation

of that record is permitted. The reasons for supplementation may

include the unavailability of a witness at the administrative

hearing, an improper exclusion of evidence by the administrative

agency, or the need to entertain evidence concerning relevant

events that occurred subseguent to the hearing. Id.

In this case, neither party has moved to present

supplemental witness testimony. However, plaintiff has hinted at

same by attaching to her objection an unnotarized "Psychiatric

Report" written by Maria C. Gaticales, M.D., who appears to not

have testified at the administrative hearing. Defendant has

moved to strike said report, inter alia, because it is not in

affidavit form. The court grants defendant's motion to strike.

The court finds it cannot rule on defendant's motion for

summary judgment until it learns whether either party wishes to

2 supplement the administrative record with further testimony or

other evidence. Accordingly, the court will give both parties

until 4:30 p.m. on Monday, June 2, 1997, to file motions to

supplement the record. The parties may supplement the record by

moving for the court to hear witness testimony; they may also

seek to submit evidence in affidavit form. In either case, the

parties must also submit evidence, in affidavit form or other, to

support the need for supplementation in accordance with the

reasons described in Burlington, supra, 736 F.2d at 790. If no

motion for additional witness testimony is received by June 2,

the court will assume the parties agree that this matter can be

decided based on the record of the administrative proceedings.

Conclusion

The court grants defendant's motion to strike (document 44).

The parties have until 4:30 p.m. on Monday, June 2, 1997, to file

motions to supplement the record. If no motion is received by

said date, the court will treat defendant's motion for summary

judgment as a motion for the court to forego trial and review the

3 administrative proceedings based solely on the record as it

presently stands.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

May 14, 1997

cc: Leslie B., pro se Barbara F. Loughman, Esg.