Neville and Sutton Public Schools – BSEA # 07-7534



<br /> Neville and Sutton Public Schools – BSEA # 07-7534<br />

COMMONWEALTH OF MASSACHUSETTS

Bureau of Special Education Appeals

In Re: Neville1 & Sutton Public Schools

BSEA #07-7534

Ruling on Sutton Public Schools’ Motion to Dismiss

This matter comes before the Bureau on the Motion of the Sutton Public Schools to Dismiss the Hearing Request filed by the Parents on June 13, 2007, and amended on June 20, 2007. The Parent opposes dismissal. Both parties submitted briefs in support of their respective positions. Oral arguments were heard on September 6, 2007. Both parties thereafter submitted additional arguments as well as evidence drawn from prior proceedings. The record closed on October 1, 2007.

Issues

The question presented here is whether the Parents’ current requests for relief through the BSEA are precluded because those same requests were addressed and disposed of in prior BSEA proceedings.

Procedural Background

On March 1, 2005, Sutton Public Schools filed a hearing request at the BSEA seeking a declaration that the IEP it had proposed for the Student in February 2005, provided a free, appropriate public education and that the Parents’ unilateral placement in the Lindamood Bell program did not. The Parents filed six counterclaims:

1. that Neville was not being provided with a free, appropriate public education at the Sutton Schools, and Sutton should reimburse them for the cost of enrolling Neville in the Lindamood-Bell Center in the spring of 2005 and for other associated expenditures;

2. that Sutton had not proposed an appropriate program for the 2005-2006 school year and “should propose one or fund an outside placement that will provide one;”

3. that Sutton’s proposed summer 2005 program would not prevent substantial regression and Sutton should, therefore, reimburse Parents for the cost of their chosen summer program;

4. that Sutton should provide “compensatory education” for its alleged failure to provide FAPE to Neville;

5. that Sutton improperly disclosed confidential information in violation of relevant statutes and should compensate Neville for such disclosure;

6. that Sutton discriminated against Neville on the basis of disability in violation of Section 504 of the Rehabilitation Act, the Americans with Disabilities Act, 24 USC § 1983, and Article CXIV of the Massachusetts Constitution, and therefore, should pay damages.

Another Team meeting was held on June 22, 2005, to consider the results of an expert evaluation. An amended IEP was issued thereafter which also covered the 2005-2006 school year. The June 2005 IEP did not differ substantively from that proposed to the Parents in February 2005.

The administrative hearing to consider the School’s request for a determination that it offered Neville a free, appropriate public education and the Parents’ related counterclaims took place over the course of 8 days. The evidentiary record includes 175 exhibits submitted by the Parents and 133 exhibits submitted by the School. Both parties were represented by competent, experienced counsel. The BSEA issued a Decision in Case #05-3840 on March 26, 20072 . The Decision was thorough, comprehensive and well reasoned. It addressed each of the issues raised by the School and the Parents. It concluded:

Sutton’s proposed IEPs from March and June 2005 for the 2005-2006 school year were appropriate. Sutton is not obligated to fund Parents’ unilateral placement and services, nor to place Student in Parents’ program prospectively on the basis of the evidence now on the record.

(BSEA Decision 05-3840 p. 32)

Current Request

On June 13, 2007, the Parent filed the instant Request for Hearing asserting:

1. The Team meeting held on June 22, 2005 was procedurally defective;

2. The IEP proposed by Sutton as a result of the June, 2005, Team meeting was procedurally defective and substantively inappropriate;

3. Sutton impermissibly denied the parents and their evaluators access to the program it had proposed for Neville for the 2005-2006 school year;

4. During the 2005-2006 and 2004-2005 school years Sutton impermissibly delegated educational decision making authority to its attorney;

5. The program in which Sutton proposed to place Neville during the 2005-2006 school year did not exist;

6. Sutton’s actions during the 2005-2006 school year constituted discrimination on the basis of disability and retaliation for the Parents’ protected advocacy efforts.

On June 20, 2007, the Parent filed an Amended Request for Hearing asserting:

7. Sutton failed to propose an IEP for Neville for the 2006-2007 school year, thereby depriving him of a free, appropriate public education.

The Parents point out that neither Sutton’s original request for hearing in March 2005, nor the Parents’ counterclaims, raised the issue of the June 2005 Team meeting and IEP. They argue since the hearing request was never formally amended, as required by the IDEA and BSEA Hearing Rules, the issues concerning the June 2005, Team meeting and subsequent IEP were not properly before the previous hearing officer, and were preserved for later presentation to the BSEA in another original action.

School Position

Sutton contends that the BSEA may not consider any of the Parents’ claims
concerning the June 2005, Team meeting and the 2005-2006 school year, as they are barred under the doctrines of res judicata and collateral estoppel. The School asserts that both parties and the hearing officer in BSEA #05-3840 discussed and considered evidence and issues relating to the June 2005, Team meeting and the subsequent IEP. Therefore the issues the Parents now seek to raise have been litigated and adjudicated.

Legal Framework

The doctrine of res j udicata bars relitigation of issues that were, or reasonably
could or should have been, litigated in prior actions between the same parties and were the subject of a final, conclusive decision. If the issue a party seeks to resolve in one formal adjudicatory process arises out of a “common nucleus of operative facts” considered and decided in a prior action, that issue is barred even if it were not formally presented in the prior action Apparel Art Int’l Inc. v. Amertex Enterprises, Ltd. , 48 F3d 576 (1 st Cir. 1995). Charlette v. Charlette Bros. Foundry, Inc. , 793 N. E. 2d 1268 (Mass. App. Ct. 2003) Where, as here, a party attempts to challenge an adversary’s action on different theories than those advanced in the original hearing, but based on the same set of facts, the action is barred by res judicata . Gloucester Marine Railways Corp. v. Charles Parisi, Inc. , 631 NE 2d 1021 (Mass. App. Ct., 1994). For the purpose of application of issue preclusion doctrines, consideration and resolution by an administrative adjudicatory agency is equivalent to a court judgment. “[A] final order of an administrative agency in an adjudicatory proceeding…precludes relitigation of the same issues between the same parties, just as would a final judgment of a court of competent jurisdiction.” Korbrin v. Bd. of Registration in Medicine , 444 Mass. 837, 844, 832 N. E. 2d 628, 645 (2005). It is the opportunity to present those claims, not necessarily the actual presentation, that triggers issue preclusion. To conclude otherwise would permit parties to “shop” for potentially more favorable venues or decision makers and would render the concept of “finality” of a judgment meaningless.

A Motion to Dismiss may be GRANTED for failure to state a claim upon which
relief can be obtained when the non-moving party can prove no set of facts that would entitle it to relief. BSEA R. 17 (B)(3); 801 CMR 1.01 (7)(g)(3). Here, if the Parents claims under the IDEA, M. G. L. c. 71B, Section 504, the ADA, Section 1983 and related statutory and constitutional provisions are disallowed due to res judicata , then they cannot present cognizable claims for relief at the BSEA and their hearing request should be dismissed.

Discussion

At the outset the Parents argue that the BSEA erred in Case #05-3840 when it considered issues in a hearing that had not been explicitly set out in a written hearing request or amended hearing request served upon the opposing party. The parties acknowledge that no formal, written hearing request was exchanged or submitted to the BSEA challenging the propriety of the June 2005 Team meeting and the appropriateness of the resulting IEP for Neville prior to the due process hearing in Case #05-3840. Both the IDEA and BSEA Hearing Rules require a party to articulate and to present to the opposing party in writing any issue it seeks to address in a due process hearing 20 U. S. C. 1415 (b)(7) and (c)(2); 34 CFR 308.508; BSEA Rule 1B. The Parents contend that the written hearing request requirement is jurisdictional; that is, absent a showing of formal advance written notice of a contested issue the BSEA may not consider or rule on that issue.

While the procedural protections embodied in the IDEA are important, and at times dispositive of the parties’ claims, I do not agree with the Parents’ sweeping generalization that the absence of a written hearing request bars consideration of an issue in all cases. The clear primary purpose of the written hearing request requirement, as evidenced by its contextual placement in the relevant regulations and rules as well as its regulatory history (see prior version at 34 CFR 300.507 (1999).), is to ensure adequate notice to the opposing party of the identity of the student at issue and the nature of the dispute. The notice requirement is also intended to encourage appropriate dialogue and potential informal resolution of disagreements, avoiding a due process hearing if possible. In this matter, at the time the June 2005 Team meeting occurred the parties were well engaged in the hearing process. Both parties and the Hearing Officer understood, were prepared to address, and did in fact address, the Parents’ concerns about the June, 2005 Team meeting and amended IEP. Advance notice of all contested issues, the practical reason for the amended hearing request provisions, was certainly achieved during the two year long hearing process for BSEA #05-3840. Therefore, I reject the parents’ jurisdictional challenge both because it unduly elevates the form of the regulation over its substance, and because, in the context of the prior administrative appeal, there was neither evidentiary limitation nor any substantive or procedural injury resulting from the absence of a written hearing request.

Turning to the School’s arguments in support of dismissal of the Parents’ instant appeal I find that the doctrines of claim and issue preclusion bar BSEA consideration of all the Parents’ claims concerning the February and June 2005, IEPs, and the determination of free, appropriate educational programs and placements during the 2004-2005 and 2005-2006 school years.

There is no dispute that the parties, parents and school district, are identical in this action, BSEA 07-7534, as they were in the original action, BSEA #05-3840. The substantive “transaction” at issue in the original action and in the Parents’ instant claim is identical: whether Sutton offered Neville a free, appropriate public education during the 2005-2006 school year. Procedural issues concerning the June 2005 Team meeting and subsequent IEP were raised by counsel for both parties and by the Hearing Officer on multiple occasions prior to and during the original BSEA hearing. (See Decision 05-3840 p. 2; School exhibits S-130, S-132; Transcript vol. I p. 17, 28, 50, 53, 65-66, 135-142) In addition witnesses examined by both parties testified to events surrounding the June 2005, Team meeting and subsequent IEP. (See e.g. Transcript vol. P. 37-39, 60, 88-92) No contemporaneous objections to the introduction of evidence concerning the June 2005 Team meeting and resulting IEP were raised. The Hearing Officer made specific factual findings concerning the June 2005, Team meeting, as well as the amended 2005-2006 IEP and the educational program that was developed as a result. See e.g. Decision 05-3840 p. 23, 29. The Hearing Officer’s Order finding that Sutton had offered Neville a free, appropriate public education during the 2005-2006 school year specifically referenced the IEP developed at the June, 2005 Team meeting. Decision 05-3840 p. 32. I note also that the evidence necessary to support the Parents’ claims concerning the June 2005, Team meeting and the amended IEP, would be identical to the documentary and testimonial evidence contained in the record of the original hearing. Furthermore the Hearing Officer supervised the original appeal throughout the course of the 2005-2006 school year and thus any evidentiary issues, including lack of access to the proposed program, could have and should have been resolved during prehearing conferences and addressed during the hearing. Finally, the relief currently requested by the Parents to redress injuries flowing from the alleged improper June 2005 Team meeting and IEP, is indistinguishable from the relief requested, and denied, in the prior action.

Therefore I find that the elements necessary to bar an action on the grounds of res judicata : 1) identity of parties; 2) identity of claims and 3) final judgment on the merits; have been satisfied in this matter. Ross v. Board of Education of Township High School District 211 , 486 F. 3d 279 (7 th Cir. 2007). See also: Integrated Design and Elec. Academy Pub. Charter School v. Belton , Slip op. July 19, 2007 WL 2071668; 48 IDELR 90 (D. D. C. 2007)

Finally, A BSEA Decision is a final agency action and is not subject to collateral review. See: BSEA R. XIII B. 20 U. S. C. § 1415; (1)(A). If the Parents are now claiming that their procedural and substantive objections to the June 2005 Team meeting, and to the proposed IEP resulting from it, were inadequately or incorrectly addressed by the Hearing Officer, they must look to a reviewing court for relief.3 As the Parents have not shown that any claim asserted in their June 13, 2007, request for hearing can survive dismissal on the grounds of res judicata , and therefore that no relief is possible even taking the most favorable and lenient view of the established facts, the School’s Motion to Dismiss those claims should be granted. The Parents’ June 20, 2007 Amended Request for Hearing, however, asserts claims concerning the 2006-2007 school year not addressed in the prior Decision. Those claims are not barred by res judicata , are cognizable by the BSEA, and therefore should not be dismissed.

Order

1. The School’s Motion to Dismiss the Parents’ Hearing Request of June 13, 2007, for Failure to State a Claim Upon Which Relief Could Be Granted, is GRANTED . Those claims are Dismissed with prejudice.

2. The Parents’ claims concerning the 2006-2007 school year, as outlined in their June 20, 2007 Amended Request for Hearing, may proceed to Hearing.

3. By November 21, 2007 the parties shall submit written status updates, to include:

1) current status of Student;

2) recitation of all issues to be resolved at the hearing;

3) identification of all witnesses necessary for the hearing;

4) number of hearing days sought for reasonable presentation of the evidence;

5) a minimum of five mutually agreeable dates for hearing.

By the Hearing Officer,

Lindsay Byrne

November 2, 2007


1

“Neville” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in documents available to the public.


2

This Decision also appears at 13 MDELR 95 (2007)


3

Indeed the Parents here have lodged an appeal of the original decision in the Superior Court.


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