COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
BSEA #08-16701
MARSHALL2 v HARWICH PUBLIC SCHOOLS
CORRECTED3 RULING ON HARWICH’S MOTION TO DISMISS WITH PREJUDICE
This ruling is issued pursuant to Harwich’s March 4, 2008 Motion to Dismiss the above matter with prejudice. As grounds for the motion, Harwich asserts that a hearing had been scheduled for March 3, 2008 and March 4, 2008 at 10:00 a.m. and that Mother’s withdrawal of the matter on March 3, 2008 at 9:30 a.m. was not conducted in good faith. Harwich further asserts that Mother’s withdrawal has resulted in prejudice to Harwich staff who were present at the BSEA at the time Mother’s withdrawal was filed and were ready to proceed with the defense of the matter.
On March 4, 2008 this Hearing Officer issued an Order for the Parent to show cause as to why this matter should not be dismissed with prejudice for lack of prosecution; ( see BSEA Hearing Rule X.F., Order to Show Cause, March 4, 2008).
On March 5, 2008 Mother filed a rebuttal to Harwich’s Opposition to Parent’s Motion to Withdraw the Hearing scheduled for March 3, 2008 and March 4, 2008. As grounds for Mother’s opposition, Mother asserts that because she did not receive the BSEA ruling of February 28, 2008 regarding Harwich’s Motion to Quash subpoenas until the afternoon of February 29, 2008, it was impossible for her to alert Harwich that it need not show up for hearing; that there is no need for Harwich to defend its actions because she had withdrawn her hearing request; and that Harwich’s assertion that Marshall had been denied FAPE were new claims that she did not have prior notice to defend.4
After consideration of the Parties ’ pleadings, Harwich’s motion to dismiss with prejudice is ALLOWED.
The record shows that prior to the March 3, 200 85 withdrawal, Mother had actively prosecuted this matter. On November 26, 2007,6 Mother filed this hearing request because she was seeking a variety of relief against Harwich including but not limited to, (1) a determination that Marshall had not been found either eligible for special education services or entitled to protections under Section 504, (2) a new determination of her son’s right to be protected from discrimination under Section 504, and (3) an order requiring reimbursement for out-of-pocket expenses associated with Parents’ private unilateral placement of their son at the “Independent out of district school”7 since September 2007; ( see Parent’s Hearing request, Marshall v Harwich Public Schools, Ruling on Parties’ Motions, February 1, 2008, Crane).
The record also shows that on December 6, 2007 Mother filed an Opposition to Harwich’s Motion to Postpone the original January 3, 2008 hearing date; filed an objection to Harwich’s Motion to Dismiss on December 10, 2007, filed Responses to Harwich’s Motion to Dismiss on December 13, 2007; filed a Motion to Compel8 on December 17, 2007 and a Response to Harwich’s Supplemental Motion to Dismiss on January 2, 2008; participated in a motion session on January 7, 2008 before Hearing Officer Crane9 ; filed Motions to Retract Relief10 on January 11, 2008; Objections to Harwich’s Motion to Strike11 and a Motion to Compel an Admission on January 14, 2008, filed summary arguments in support of her Motions to Compel on January 15, 2008, and participated in a conference call with Hearing Officer Crane on January 28, 2008; ( see Record, Marshall v Harwich Public Schools, Ruling on Parties’ Motions, February 1, 2008, Crane p. 2) (hereinafter Crane ruling).
On February 1, 2008 Hearing Officer Crane issued a ruling on the Motions. In that ruling Hearing Officer Crane dismissed Mother’s claims that concerned issues of eligibility as that issue had been determined by decision on May 22, 2008; ( see Crane Ruling p.10-11).12 Parent’s claims regarding compliance with the May 22, 2008 decision, issues regarding the August 28, 2007 IEP and claims for reimbursement for the independent out of district school were allowed to proceed at a hearing previously set for March 3, 2008 and March 4, 2008; ( see Crane ruling at 11-15, 19).
On February 7, 2008, this matter was reassigned to this Hearing Officer and given a docket number to reflect compliance issues; (see Notice of Reassignment of Hearing Officer, February 7, 2008, Erlichman).13
On February 20, 2008, Mother requested that Hearing Officer Crane issue subpoenas in connection with the hearing scheduled to begin on March 3, 2008; ( see Record).
Both Parties sent their documents and witness lists to this Hearing Officer on February 25, 2008.
On February 26, 2008 Harwich filed a Motion to Quash the subpoena of the guidance counselor and some of the subpoenaed documents Mother requested. ( see Record).
This Hearing Officer conducted a telephonic pre-hearing and motion session on February 27, 2008. At that time this Hearing Officer allowed Mother to amend her document and witness lists,14 granted Mother’s motion to use a pseudonym for Parents’ unilateral placement, granted Mother’s motion to refer to the matter by its former docket number, and reserved Mother’s right to argue her opposition to Harwich’s motion to quash documents at the hearing on March 3, 2008; ( see Rulings on Motions, February 28, 2008, Beron). The Parties presented oral argument regarding Harwich’s motion to quash the subpoena of the guidance counselor. The Parties presented no other issues. This Hearing Officer issued a ruling the following day granting Harwich’s motion to quash the guidance counselor’s subpoena testimony because he had not been involved in any issue regarding the IEP that resulted from the May 22, 200 715 decision or any new issues that may have developed after the issuance of that decision, and the eligibility and IEP issues that the guidance counselor was involved in had already been decided through the May 22, 2007 decision.16
Mother received the ruling on the afternoon of Friday, February 29, 2008. However despite an opportunity to do so,17 Mother did not withdraw her hearing request until thirty minutes before the scheduled start date of the hearing on March 3, 2008 because she felt that the Hearing Officer’s ruling on the motions and the identification of the issues reflected bias against the parent. At the time of the withdrawal, Harwich’s witness and Counsel were already present at the Bureau of Special Education Appeals ’ office in Malden, MA. The stenographer that Mother had requested for the hearing was also present,18 and Harwich was prepared to go forward with defending its actions in regard to compliance with the May 22, 200 7 decision and the appropriateness of the August 27, 200 7 IEP.19 Mother’s actions severely prejudiced Harwich’s and the student’s right to have the matter resolved.
Parties can and often do withdraw their hearing requests prior to hearing when matters are resolved or when one or both of the parties are not ready to proceed to hearing. A party may, by motion, apply to withdraw a claim, a defense or a request for action, which the Presiding Officer may allow in fairness to all parties; ( see 801 C.M.R. 1.01 (6)(g)). However, allowing a party to withdraw a hearing request immediately prior to a hearing without timely notice, and when no agreement exists and a matter remains unresolved, may lead to a prolongation of litigation because a party may refile the matter to obtain a different Hearing Officer. Therefore Mother’s motion to withdraw is denied.
If a party feels that a Hearing Officer is biased or cannot otherwise be impartial, that party has an obligation to request that the Hearing Officer recuse herself. Mother never filed a motion for recusal with this Hearing Officer and nothing in her actions during the February 27, 2008 conference call indicated that Mother had concerns regarding the impartiality of the Hearing Officer.20 Both parties are entitled to a hearing in a timely manner by a fair and impartial Hearing Officer who can make a decision based upon the relevant law and regulations. This hearing was scheduled to begin on March 3, 2008. Mother’s March 3, 2008 decision to withdraw thirty minutes prior to a hearing constitutes a failure to appear at a regularly scheduled hearing, and an intention not to continue with the prosecution of her claims pursuant to Administrative Procedure Act and the BSEA Hearing Rules and is subject to dismissal for failure to prosecute; ( see 801 C.M.R. 1.01 (7) (g) 2.; BSEA Hearing Rule X.F. If a party’s response fails to establish good cause, a Hearing Officer may dismiss the claim with or without prejudice. Mother has failed to establish cause as to why this matter should not be dismissed for lack of prosecution and because this lack of prosecution denies the student and the school their right to timely resolution to the matter this matter will be dismissed with prejudice.
ORDER
This matter is hereby dismissed with prejudice.
By the Hearing Officer,
_______________________________
Joan Beron
Dated: March 24, 2008
Dismissal by the Bureau of Special Education Appeals (BSEA) is a final action and is not subject to further review by the BSEA. Because 20 U.S.C. s.1415(i)(1)(A) requires the BSEA decision to be final and subject to no further agency review, the BSEA cannot permit motions to reconsider or to re-open a BSEA decision once it is issued. Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2). An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).
1
This matter was formally docketed as BSEA#06-4721C. Mother had requested that the BSEA use only the 08-1670 docket number in referring to this matter. On February 28, 2008 this Hearing Officer granted Mother’s motion and ruled that the issues that would be addressed at hearing included compliance with the decision issued in BSEA #06-4721 and also issues that occurred after that decision was issued.
2
On May 22, 2007 this Hearing Officer issued a decision on this matter and used the name Marshall a pseudonym used for confidentiality and classification purposes in publicly available documents. This name is continued to provide continuity. At Mother’s request the school that Marshall is currently attending will be known as the “Independent out of district school”; ( see Ruling on Motions, February 28, 2008, Beron, Ruling on Parties’ Motions, February 1, 2008, Crane). Parents did not move to use a pseudonym in prior matters.
3
This ruling corrects typographical and grammatical errors contained in the original ruling issued on March 13, 2008. The corrected ruling also adds the order contained in the ruling for clarity. Changes to the original decision will be identified in italics . Footnote numbering is also amended to reflect the addition of this footnote. The original footnote number 4 has been eliminated as it duplicates the previous footnote in the decision. There are no substantive changes to the decision however, Parent’s right to appeal the ruling will be within ninety days from the date of the corrected ruling.
4
Harwich also filed a Motion on March 3, 2008 opposing Parent’s Motion to withdraw the hearing and asked that it proceed with the Hearing as scheduled. This Hearing Officer denied Harwich’s Motion because Harwich had not filed a counterclaim and as such Mother did not have prior notice of Harwich’s claims.
5
The original ruling mistakenly listed the date of the withdrawal as March 3, 2007.
6
The hearing request was received by the BSEA on November 29, 2007.
7
Hearing Officer Crane used the pseudonym the Auburndale School in his February 1, 2008 ruling. The pseudonym was changed because the pseudonym was inadvertently becoming confused with schools in the Auburndale section of Newton, MA.
8
On December 17, 2007, Mother moved for an order compelling both of the school counsel in the matter to sign all documents. On January 14, 2008, Mother moved that the Hearing Officer compel one of Harwich’s attorneys to make an admission.
9
The matter was originally assigned to Hearing Officer Oliver. On January 3, 2008 the matter was reassigned to Hearing Officer Crane because Hearing Officer Oliver was unavailable on January 7, 2008.
10
In the Motion to Retract Relief, Parent withdrew her request that Marshall be found eligible pursuant to Section 504.
11
Harwich moved to strike correspondence from Parent regarding an October 8, 2008 Board of Bar Overseers (BBO) Complaint against one of Harwich’s attorneys. The BBO dismissed the complaint in January 2008.
12
In that decision this Hearing Officer determined that Parents had requested that Marshall be found eligible for special education because of PDD/NOS and that Harwich had agreed to find him eligible; therefore eligibility was determined; ( see Marshall v Harwich Public Schools, 107 LRP 30521).
13
The issues left for hearing were identified as compliance with this Hearing Officer’s May 22, 2007 decision as well as a determination regarding the appropriateness of the August 28, 2007 IEP which is best made within the context of a compliance hearing regarding the May 2007 decision; ( see Crane ruling at 12).
14
Mother’s documents began with Number 16 and her witness list did not include herself as a witness.
15
The original ruling mistakenly listed the date of the decision as March 22, 2008.
16
See Crane ruling p 11, 19.
17
The record shows that Mother had received Harwich’s pleadings that contain Harwich’s Counsel’s phone number, fax and/or email address.
18
Harwich is approximately 90 miles away from Malden. It would take much more than thirty minutes to travel between Harwich and Malden.
19
Harwich had also copied and brought numerous documents to the hearing in response to Mother’s subpoena request.
20
It appears from the record that Mother at the motion session objected to the assignment of this Hearing Officer because Parents had appealed the May 22,
2008
2007 decision. If Mother had brought this matter to the Hearing Officer as a current concern she would have learned that the Hearing Officer does not take offense at Parents’ right to appeal, has not reviewed Parents’ appeal complaint and could rule on a compliance matter and a subsequent IEP because she can render an opinion based solely on the evidence presented in this matter. It also appears from Harwich’s motion to dismiss that Mother objected to having this Hearing Officer hear the matter and that the Director informed Mother that if he felt that this Hearing Officer could not render a fair and unbiased opinion the proper course for her to pursue would be to file a motion for recusal with the Hearing Officer. However this private correspondence addressed to the Director was not part of the administrative record and was not read by the Hearing Officer. It also appears from Mother’s withdrawal letter that Mother was withdrawing her request because she believed that this Hearing Officer redefined the issues and that she did not agree with the Hearing Officer’s ruling regarding the decision to quash the subpoena of the guidance counselor. However the issues included all of Mother’s remaining claims; ( compare Crane ruling February 1, 2008, Beron ruling February 28, 2008). Therefore based on the record presented the motion to recuse would have been denied.