681 F.3d 1082 (9th Cir. 2012), 10-16903, M.M. v. Lafayette School Dist.

Docket Nº:10-16903.
Citation:681 F.3d 1082
Opinion Judge:CALLAHAN, Circuit Judge.
Party Name:M.M.; E.M., individually and on behalf of the minor son, C.M., Plaintiffs-Appellants, v. LAFAYETTE SCHOOL DISTRICT, a local educational agency; Lafayette Board of Education; California Department of Education (CDE); Jack O'Connell, as State Superintendent of Public Instruction for the State of California; California Department of General Services (
Attorney:Lina Foltz, Attorney-at-Law, Oakland, CA, for the plaintiffs-appellants. Lafayette School District and Lafayette Board of Education: Amy R. Levine (argued), Deborah Ungar Ettinger, Dannis Wolver Kelley, San Francisco, CA, for the defendants-appellees. California Department of Education and Jack O...
Judge Panel:Before: ARTHUR L. ALARC
Case Date:June 06, 2012
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1082

681 F.3d 1082 (9th Cir. 2012)

M.M.; E.M., individually and on behalf of the minor son, C.M., Plaintiffs-Appellants,

v.

LAFAYETTE SCHOOL DISTRICT, a local educational agency; Lafayette Board of Education; California Department of Education (CDE); Jack O'Connell, as State Superintendent of Public Instruction for the State of California; California Department of General Services (DGS), operating as the California Office of Administrative Hearings (OAH); Will Bush, as State Director of the California Department of General Services, Defendants-Appellees.

No. 10-16903.

United States Court of Appeals, Ninth Circuit.

June 6, 2012

Argued and Submitted Dec. 7, 2011.

Page 1083

Lina Foltz, Attorney-at-Law, Oakland, CA, for the plaintiffs-appellants.

Lafayette School District and Lafayette Board of Education: Amy R. Levine (argued), Deborah Ungar Ettinger, Dannis Wolver Kelley, San Francisco, CA, for the defendants-appellees.

California Department of Education and Jack O'Connell: Amy Bisson Holloway, Edmundo Aguilar (argued), Sacramento, CA, for the defendants-appellees.

Appeal from the United States District Court for the Northern District of California, Susan Illston, District Judge, Presiding. D.C. No. 3:09-cv-03668-SI.

Before: ARTHUR L. ALARCÓ N, CONSUELO M. CALLAHAN, and N. RANDY SMITH, Circuit Judges.

OPINION

CALLAHAN, Circuit Judge.

This case began as a dispute over the results of CM's special education evaluation under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (" IDEA" ), but now has a convoluted procedural history, including three separate district court lawsuits and two administrative complaints. Many of these issues are outside of the narrow scope of this appeal, however, and will not be addressed in this opinion.

This appeal is limited to two distinct issues. First, the Administrative Law Judge (" ALJ" ) dismissed several of CM's claims against Lafayette School District and the Lafayette Board of Education (collectively, " Lafayette" ) prior to holding a

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due process hearing because the claims alleged conduct outside the IDEA's two-year statute of limitations. CM's parents, MM and EM (collectively " MM" ), sought review in the district court, which held that MM was not an " aggrieved party" under the IDEA because the ALJ had not yet held a due process hearing or issued a final ruling on MM's complaint. Second, the district court dismissed MM's separate claims against the California Department of Education (" CDE" ), in which MM alleged that the CDE had failed to comply with its obligations under the IDEA when it closed its investigation of the allegations against Lafayette. MM claimed that the CDE had failed to properly supervise the hearing officers of the Office of Administrative Hearings. The district court held that MM's first claim was duplicative of his claim in another pending district court matter before the same judge, and that MM's second claim failed to state a claim. We affirm because MM prematurely filed his complaint against Lafayette in the district court and the CDE has no authority to supervise the independent hearing officers.

BACKGROUND 1

CM is a twelve-year-old boy who lives with his parents, MM and EM, within the boundaries of the Lafayette School District. CM began kindergarten in the Lafayette School District in 2005 when he was six years old. At the time, he displayed deficits in the areas of reading, articulation, vision, and fine motor skills. During kindergarten, the district provided special reading, speech, and language services to CM as a " guest" of the district's special education program. MM submitted a written request to the district to evaluate CM for learning disabilities on October 26, 2006, early in CM's first grade year. Lafayette did not provide an assessment plan for CM until February 20, 2007.

Lafayette conducted CM's initial evaluation in March and April, 2007. District Staff and MM held the first meeting of CM's individual education plan (" IEP" ) team on April 18, 2007, to discuss the results of CM's educational assessment. The IEP team determined CM was eligible for special education and related services and developed a program based on the assessment results. MM now complains that the initial evaluation was flawed because, among other things, the evaluation was conducted by individuals unqualified to select the appropriate tests or administer them. However, MM does not allege that he voiced any of these concerns at the time of the April 18, 2007 meeting, or at any time thereafter until he filed his due process complaint on April 16, 2009.

During the year after the initial evaluation, MM advised Lafayette's staff of his continued concerns that CM was falling further behind at school and that CM had yet-unidentified special educational needs. MM asked Lafayette if it would provide additional evaluations regarding CM's speech and language needs, and his auditory processing. Lafayette refused to provide additional evaluations, but recommended that MM obtain assessments of CM privately. Between November 2007 and March 2008, MM obtained private evaluations (at his own cost) that indicated CM had an auditory processing disorder that was related to his learning disability. There is no indication MM shared the results of the assessments with Lafayette when they were completed. Instead, MM

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apparently waited until September 17, 2008, to advise Lafayette that he disagreed with the initial evaluation and request an independent educational evaluation (" IEE" ).2

Once MM disagreed with the initial evaluation and requested an IEE, Lafayette had two choices. It could, " without unnecessary delay," provide the requested IEE or file a request for a due process hearing to defend the initial assessment with the California Department of General Services, Office of Administrative Hearings 3 (" OAH" ). 34 C.F.R. § 300.502(b)(2); Cal. Educ.Code § 56329(c). Lafayette declined to provide an IEE, but it did not immediately request a due process hearing regarding the disagreement.

On November 18, 2008, MM filed a compliance complaint with the CDE, alleging that Lafayette failed to comply with IDEA procedures after his request for an IEE. CDE began an investigation. On December 3, 2008, Lafayette filed a due process hearing request with the OAH to defend its initial evaluation of CM (the " 2008 OAH Case" ). On December 19, 2008, Lafayette requested that CDE stay its investigation of MM's complaint because the IEE issue was pending before the OAH in Lafayette's due process request. On January 30, 2009, CDE closed its investigation pursuant to Lafayette's request.

On April 16, 2009, MM filed a due process complaint with the OAH against Lafayette (the " 2009 OAH Case" ), alleging 16 separate issues. Several of the issues concern Lafayette's alleged failure to identify CM's disability before April 16, 2007. Lafayette filed a motion to dismiss the claims that arose before April 16, 2007, as being barred by the two-year statute of limitations in the IDEA, 20 U.S.C. § 1415(f)(3)(C). On May 13, 2009, the ALJ dismissed claims one through six because they arose before April 16, 2007. The rest of the issues remained live in the 2009 OAH Case, and were to be resolved at the due process hearing.

Rather than wait for the resolution of the 2009 OAH Case at the due process hearing, MM filed a lawsuit against Lafayette in the district court on August 11, 2009, challenging the ALJ's dismissal of the claims that the ALJ had determined were barred by the statute of limitations. Lafayette filed a motion to dismiss MM's complaint, but before the hearing on the motion, MM filed a First Amended Complaint (" FAC" ). The FAC added the Lafayette Board of Education as a defendant, and included new claims against the CDE and its Superintendent, who the FAC also added as defendants.4 After all defendants filed motions to dismiss for failure to state a claim, the district court dismissed the FAC on June 2, 2010.

A. Claims Against Lafayette

The first three claims in the FAC, all against Lafayette, (1) challenged the ALJ's dismissal of the six time-barred claims, (2) sought a determination that Lafayette's initial evaluation of CM's educational

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needs was inadequate, and (3) sought attorney's fees. The district court found that these claims were premature as MM was not an " aggrieved party" because the 2009 OAH Case was still pending. The court dismissed these claims without prejudice to re-filing once the ALJ issued his final ruling.

The fourth claim was based on CDE's closure of its investigation of MM's complaint and alleged violations of the Fifth Amendment, the IDEA, and 42 U.S.C. § 1983. The court dismissed the fourth claim for relief with prejudice, finding it was duplicative of another pending district court action before the same judge, Case No. 09-4624, and because it was based entirely on the administrative record in the 2008 OAH Case, the subject of Case No...

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