United States District Court, D. Maine
MR. and MRS. DOE, individually and as parents and next friends of JANE DOE, a minor, Plaintiffs
CAPE ELIZABETH SCHOOL DEPARTMENT, Defendant
MEMORANDUM DECISION ON MOTION TO PERMIT SUBMISSION OF ADDITIONAL EVIDENCE
JOHN H. RICH, III, Magistrate Judge.
The plaintiffs in this case seeking review of a hearing officer's decision under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. 1415(i)(2), ask for leave to add two affidavits to the administrative record. Plaintiffs['] Motion to Permit Presentation of Additional Evidence ("Motion") (ECF No. 11). The defendant opposes the motion in part. For the reasons herein, I grant the motion as to the first affidavit, excepting paragraphs 7-15, and deny is as to the second.
I. Applicable Legal Standard
The action is brought pursuant to 20 U.S.C. § 1415, which provides, in relevant part, that a party aggrieved by the decision of a hearing officer with respect to the free public education provided to a disabled child may bring an action in federal court in which the court "shall hear additional evidence at the request of a party." 20 U.S.C. § 1415(i)(2)(C). The First Circuit has interpreted this statutory language to require a reviewing court to grant a party leave to present additional evidence only when that party presents "solid justification" for such supplementation of the record. Roland M. v. Concord Sch. Comm., 910 F.2d 983, 996 (1st Cir. 1990). The plaintiffs rely on language from an early First Circuit construction of the statute, Town of Burlington v. Department of Educ., 736 F.2d 773 (1st Cir. 1984), in which one of four listed possible reasons for allowing supplementation of the administrative record is "evidence concerning relevant events occurring subsequent to the administrative hearing, " id. at 790.
As the First Circuit has clarified, a party has no absolute right to adduce additional evidence upon request:
As a means of assuring that the administrative process is accorded its due weight and that judicial review does not become a trial de novo, thereby rendering the administrative hearing nugatory, a party seeking to introduce additional evidence at the district court level must provide some solid justification for doing so. To determine whether this burden has been satisfied, judicial inquiry begins with the administrative record. A district court should weigh heavily the important concerns of not allowing a party to undercut the statutory role of administrative expertise, the unfairness involved in one party's reserving its best evidence for trial, the reason the witness did not testify at the administrative hearing, and the conservation of judicial resources.
Roland M., 910 F.2d at 996 (citation and internal punctuation omitted).
To the extent that "[t]he evidence the [plaintiffs] now propose to adduce sheds light on the manner in which specialized services actually have been provided to [the minor plaintiff], including the IEP [Individualized Education Program] developed for [her], " it "would be relevant, non-cumulative and helpful were the court to reach the question whether the [minor plaintiff's] placement... was appropriate." C.G. and B.S. v. Five Town Community Sch. Dist., 436 F.Supp.2d 181, 186 (D. Me. 2006). Similarly, proposed evidence that sheds light on the appropriateness of the IEP properly at issue in light of the severity of the minor plaintiff's disabilities may also be added to the record. Id. It must also be borne in mind that "an administrative hearing witness is rebuttably presumed to be foreclosed from testifying" before this court. Town of Burlington, 736 F.2d at 791. Such witnesses should be allowed to testify only about post-hearing events and only if their testimony is both relevant and not cumulative. See Mr. and Mrs. I. v. MSAD No. 55, No. Civ.04-165-P-H, 2004 WL 2397402 (D. Me. Oct. 27, 2004), at *2.
The plaintiffs seek to add to the record the affidavits of Mrs. Doe, one of the plaintiffs, and Victoria Papageorge. Mrs. Doe's sworn declaration has 27 numbered paragraphs. Declaration of Mrs. Doe ("Doe Decl.") (ECF No. 12). Ms. Papageorge's sworn declaration has seven numbered paragraphs. Declaration of Victoria Papageorge ("Papageorge Decl.") (ECF No. 13).
A. The Doe Declaration
The defendant does not object to the addition to the record of paragraphs 16-17, 20, 22-23, and 26 of Mrs. Doe's declaration. Defendant Cape Elizabeth's Partial Opposition to Plaintiff's Motion to Permit Presentation of Additional Evidence ("Opposition") (ECF No. 14) at 6-7. The motion to add information to the record is accordingly granted as to those paragraphs.
1. Paragraphs 1-6
The defendant objects to paragraphs 1-6 of Mrs. Doe's declaration as duplicative of "information that was addressed by Mrs. Doe at the due process hearing and is simply a duplication or embellishment of what she has already ...