R.V. ex rel. S.V-W. v. Rivera

• Citation: 220 F.Supp.3d 588
• Decision Date: 05 December 2016
• Docket Number: CIVIL ACTION NO. 16–2277
• Parties: R.V. Individually and On Behalf of S.V–W., a Minor, Plaintiff, v. Pedro A. RIVERA, Commonwealth of Pennsylvania, Commonwealth of Pennsylvania, Department of Education, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

220 F.Supp.3d 588

R.V. Individually and On Behalf of S.V–W., a Minor, Plaintiff,

v.Pedro A. RIVERA, Commonwealth of Pennsylvania, Commonwealth of Pennsylvania, Department of Education, Defendants.

CIVIL ACTION NO. 16–2277

United States District Court, E.D. Pennsylvania.

Signed December 5, 2016

Alan L. Yatvin, Popper & Yatvin, Philadelphia, PA, for Plaintiff.

Kevin R. Bradford, Office of the Attorney General, Philadelphia, PA, Elizabeth A. Anzalone, PA Dept of Education, M. Patricia Fullerton, Office of General Counsel, Harrisburg, PA, for Defendants.

OPINION

WENDY BEETLESTONE, District Judge.

I. INTRODUCTION

Plaintiff, R.V., is the mother of S.V–W., a child with a disability under the Individuals with Disabilities Education Act ("IDEA"), who brings this action individually and on her child's behalf challenging a Special Education Hearing Officer's decisions in two related IDEA due process matters and also seeking attorneys' fees. The child had attended the Walter D. Palmer Leadership Learning Partners Charter School ("Palmer") in Philadelphia, before it closed down operations. The issues before the court on Defendants' motion to dismiss, are whether the Pennsylvania Department of Education ("PDE") was a proper party to the due process hearing and whether, if the answer to that question is yes, PDE must pay Plaintiff attorneys' fees.

II. FACTUAL AND PROCEDURAL BACKGROUND

S.V–W. attended Palmer from 2007 until its closure in December 2014. More than a year after the school shut down, his mother filed two IDEA due process complaints pursuant to 20 U.S.C. § 1415(b)(6) with the Pennsylvania Office of Dispute Resolution ("ODR"), one naming Palmer as a Respondent, and the other naming PDE. She alleged that Palmer had failed to provide S.V–W. with a free appropriate public education ("FAPE") as required by IDEA and sought compensatory education. Both complaints were assigned to the same hearing officer, but there the paths diverge.

On the day that he filed the complaints, Plaintiff's counsel reached out to PDE to discuss resolving the complaints prior to a due process hearing. PDE responded that it was willing to provide compensatory education, but declined to discuss a resolution of the matter before a due process hearing. In the meantime, it argued to the hearing officer that PDE was not a proper party to the due process proceedings and reported that it had no evidence to contribute to, did not intend to participate in, and would not appear at the hearing. PDE acknowledged its general supervisory obligations under the IDEA and advised that it intended to provide compensatory services if ordered by the hearing officer. In light of these representations, the hearing officer dismissed the complaint against PDE as moot.

The due process complaint against Palmer proceeded quite differently. After a hearing, the hearing officer concluded that Palmer failed to comply with its Child Find¹ obligations under the IDEA, had denied S.V–W. a FAPE and that S.V–W. was "entitled to compensatory education in the amount of one full school day for every school day on which [Palmer] was open, from December 1, 2012 to the last day on which it was open to students in December 2014." He styled his ruling as "an advisory order for compensatory education" noting that Plaintiff had indicated in her complaint she would seek a remedy through PDE pursuant to its responsibilities as an SEA. Thereafter, Plaintiff's counsel reached out to PDE regarding the compensatory education for S.V–W. and to seek attorneys' fees. PDE responded that it would provide the compensatory education but not pay any attorneys' fees.

Plaintiff filed this action seeking to vacate the hearing officer's decision to moot the due process complaint against PDE, to have this Court enter the hearing officer's decision in the Palmer due process matter as a judgment against PDE in this action, and to order PDE to pay reasonable attorneys' fees and costs. Before the Court is Defendants' motion to dismiss.

III. RELEVANT LEGAL BACKGROUND

The IDEA requires states to "make available a free and appropriate public education to all children with disabilities residing within their borders." D.S. v. Bayonne Bd. of Educ. , 602 F.3d 553, 556 (3d Cir. 2010). It accomplishes this by making contingent certain federal funding to State Educational Agencies² ("SEAs") and Local Educational Agencies³ ("LEAs") upon the adoption of plans consistent with its provisions. See 20 U.S.C. §§ 1412, 1413. When a parent or guardian of a student with disabilities believes that their child has not been provided with a free appropriate public education, they have available to them certain procedural safeguards—statutory avenues of relief.

The applications of those procedural safeguards are central to this case. One mechanism is the due process hearing—the procedure that the Plaintiff in this case opted to use.⁴ 20 U.S.C. § 1415(a) ; 20 U.S.C. § 1415(b)(6)(A) ; 20 U.S.C. § 1415(f)(1)(A). In Pennsylvania, the Commonwealth's Office of Dispute Resolution ("ODR") is responsible for conducting IDEA due process hearings. See 22 Pa. Code § 14.162.

In addition to its due process hearing provision, the IDEA includes a separate method by which a parent may seek to vindicate his or her child's rights under the statute by filing a complaint with the state. Upon receipt of such a complaint, the SEA must evaluate the complaint and carry out, as necessary, an independent investigation before reaching a final decision containing findings of fact and conclusions. 34 C.F.R. §§ 300.151 –300.153. IDEA regulations contemplate that the state complaint process and IDEA due process are parallel procedures, either of which a parent may opt to pursue in the first instance, but that the due process complaint procedure takes priority over the state complaint procedure. See 34 C.F.R. § 300.152(c)(1) (where a state complaint is filed that is already the subject of a due process complaint, the SEA must stay the portion of its investigation that is subject to IDEA due process until the due process hearing concludes); 34 C.F.R. § 300.152(c)(2) (providing that a prior due process decision is binding in the event that a later state complaint is made on the same subject matter). Although representations were made by PDE at oral argument on the motion to dismiss that it had commenced an investigation into S.V–W.'s case, no state complaint had been filed, so this procedural safeguard is not at issue here.

A third procedural safeguard through which a child's IDEA rights may be protected is found in Section 1413(g) of the IDEA which provides that an SEA must directly provide special education and related services "if the [SEA] determines that the [LEA]...is unable to establish and maintain programs of free appropriate public education...." 20 U.S.C. § 1413(g). Defendants' arguments in their motion to dismiss rely heavily on this provision.

IV. DISCUSSION

Defendants' arguments are that the due process complaint against PDE was moot, that PDE was not a proper party to a due process hearing because the hearing officer lacked jurisdiction over it, and that, even if the due process complaint against it was not moot and the hearing officer had jurisdiction, PDE's obligations under the IDEA do not extend to attorneys' fees. Each argument challenges only the hearing officer's conclusions of law, and not his findings of fact. Such legal conclusions "are subject to plenary review." P.P. ex rel. Michael P. v. West Chester Area Sch. Dist. , 585 F.3d 727, 735 (3d Cir. 2009).

A. Due Process Jurisdiction over PDE

Defendants reason that it was Palmer, and not PDE, that was responsible for providing S.V–W. with an education and Palmer, not PDE, that failed to ensure that he received a FAPE. Given that it was not the direct service provider, PDE contends that it was not a proper party to the due process complaint. In support of that argument, PDE turns to Section 1413(g) for the proposition that only if a hearing officer has ordered an LEA to pay compensatory education and the LEA is unable or unwilling to provide those services must the SEA step in.

Section 1413(g), which addresses when an SEA may use federal funds to provide special education services directly to eligible students, provides that: "[a] State educational agency shall use the payments that would otherwise have been available to a local education agency...to provide special education and related services to children with disabilities...if the SEA determines that the local educational agency...is unable to establish and maintain programs of free appropriate public education...." 20 U.S.C. § 1413(g).

PDE acknowledges that Section 1413(g) obligates it to provide compensatory education services to an eligible student when the LEA is unable or unwilling to do so. Indeed, its representation to the hearing officer that it would provide any compensatory education that he determined S.V–W. was owed was the reason why he dismissed the due process complaint as moot. Laudable as PDE's representations may have been, IDEA protections cannot be subjugated to the good will of PDE, particularly as PDE's representation to the hearing officer was not that it would provide compensatory education to S.V–W., but that it would do so only "should th[e] hearing officer conclude that the Student is owed compensatory education."

As a preliminary observation, there is a question as to whether a hearing officer has the authority to dispose of an IDEA due process complaint on the procedural point that the matter is moot. The IDEA explicitly requires that a hearing officer's decision be on "substantive grounds." 20 U.S.C. § 1415(f)(3)(E)(i). And, at oral argument on the instant motion, PDE was unable to identify any authority that carves out an exception to that requirement. Regardless, the due process complaint against PDE was not moot. "A case will be considered moot, and therefore nonjusticiable as involving no case or controversy, if the issues...