UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DAVID G., an adult with a disability, CIVIL ACTION Plaintiff No. 06-1523
THE- COUNCIL ROCK SCHOOL FI! ” E D DISTRICT, SFP 24 7009 Defendant MICHAELE .U.z, Clerk By Dep. Clerk
MEMORANDUM
United States Magistrate Judgc M. Faith Angeli has filed a Report and Recommendation (“R&R”) on cross-motions for judgment on the administrative record in
this case seeking review of a decision by the Special Education Appeals Review Panel
following a duc process hearing before a hearing officer. This court has considered the
record of the proceedings before the hearing officer, the decisions of the hearing officer
and the Appeals Panel, the R&R, plaintiff David G.’s objections to the R&R, and
defendant Council Rock School District’s responses. The court approves and adopts
Magistrate Judge Angell’s recommendations to: grant in part and deny in part plaintill’s
motion; grant in part and deny in part defendant’s motion; affirm the Appcals Panel’s
decision that defendant provided a free and appropriate public education (*FAPE”) for
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7th, 8th, 11th, and 12th grades; affirm the decision that FAPE was not provided for part
of 9th and 10th grades; and remand for further proceedings with regard to whether FAPE
was provided in the 2nd through 6th grade years.
The facts and lengthy procedural history of this case are set out in Magistrate
Judge Angell’s R&R as well as in the decision of the hearing officer. This court refers to
those discussions and focuses on plaintiff David G.’s objections to the R&R. David urges
rejection of the Magistrate Judge’s recommendations that the court find that plaintilf he
graduated in June 2004; that he was provided with appropriate transitional services; and
that he was provided with FAPE from 7th to 12th grade, with the exception of 9th and
10th grades. Plaintiff also argues that the hearing officer’s grant of compensatory
education was “overly and unnecessarily restrictive in its use and in its temporal
limitation and therefore docs not provide appropriate relief.” Plaintiff asks for, instead,
monetary damages or the establishment of a fund on his behalf. Finally, though plaintiff
asks the court to adopt the Judge Angell’s recommendation that the question of FAPE for
2nd through 6th grade be addressed (rather than considered waived, as the hearing
examiner found), he asks the court to enter judgment rather than remand the question to
the hearing examiner. Plaintiff argues that the record clearly establishes the lack of FAPE
and so remand on this issuc is unnecessary.
The defendant schoo! district argues that plaintiff's objections are without merit;
defendant does not have any objections of its own other than to refer to the arguments it
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made before the hearing examiner and the Magistrate Judge.’
The court adopts Judge Angell’s recommendation that the hearing officer erred in
finding that plaintiff was barred from claiming a denial FAPE between the 2nd and 6th
grades. The court also adopts Judge Angell’s recommendation that this issuc be
remanded to the hearing officer and rejects plaintiff's suggestion thal the court decide the
issue. The hearing examiner heard the testimony of the witnesses on this issue and is in a
better position than this court to evaluate that testimony, as well as the documentary
evidence she already received on this issue, in the first instance. Morever, because the
hearing officer wisely heard from the parties on all the years of plaintiff's schooling so as
not to have to reopen the record later (though the court concludes that she improperly
limited the years she reviewed), a remand should not occasion too great a further delay.
The recommendation to adopt the hearing officcr’s conclusions regarding the
provision of FAPE in 7th, 8th, 11th, and 12th grades is adopted, and plaintiffs objections
to the contrary are rejected. The hearing officer found that though David’s IEPs “could
not stand alone as an indication of the delivery of FAPE,” the “the overwhelming
appropriateness of [plaintiff’s] program was amply illustrated through the lestimony of
[plaintiffs] teachers and other support personnel.” Problems with IEPs such as
vagueness or failure to set measurable goals may constitute a denial of FAPE if they
'Defendant seeks leave to file a sur-reply to plaintiffs’ reply brief regarding its objections. Docket No. 51. That motion is granted; the court has read and considered all the filings of counsel in this case.
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result in “the loss of educational opportunity, seriously infringe upon the parents’
opportunity to participate in the IEP formulation process, or cause a deprivation of
educational benefits.” Souderton Area School Dist. v. J.H., 2009 WL 349733, *6 (E.D.
Pa., Feb. 11, 2009) (citations omitted). The record does not contain evidence that any
such consequences resulted here. The hearing cxaminer found that plaintiff received
educationa! benefits and made meaningful educational progress as a result of the
instruction provided to him. Her conclusion that defendant provided an appropriate
education in 7th, 8th, 1 {th, and 12th grades will be affirmed.
Plaintiff's objection Lo the recommendation that the court adopt the hearing
afficer’s finding that plaintiff graduated in 2004 is rejected. There is no non-testimonial
extrinsic evidence in the record to contradict this factual finding. Additionally, plaintiffs
contention that defendant failed to provide adequate transitional services before plaintiff
graduated is not correct--the record is replete with evidence of the transitional services
provided to David at his original high school, through the Middle Bucks Institute of
Technology program, and at the Sloan School.
Judge Angell’s recommendation that the hearing officer’s conclusion that FAPE
was not provided in 9th and 10th grades will be adopted. The hearing officer noted that
David had a specific and identified reading disability and found the reading instruction he
was provided for those years to have been inadequate, Plaintiff does not object to this
conclusion, but rather objects to the specifics of the hearing officer’s award of
compensatory education. The court agrees with Judge Angell that this objection is
without merit. This court also “commend[s] the Hearing Officer for fashioning an
individually-tailored remedy designed to meet David’s specific needs.”
Finally, plaintiff, in his reply brief, asserts his entitlement to an award of money
damages under the Americans with Disabilities Act and § 504 of the Rehabilitation Act.’
Plaintiff requests a hearing for the purpose of establishing the amount of any damages
award. Defendant contends that this claim was not part of the motion for judgment on the
administrative record and, even if it may be considered, is barred by the statutory
requirement that claims for harms allegedly occurring prior to the age of majority be
brought within two years of a plaintiff's eightcenth birthday. Should such damages be
available, defendant also contends that any recovery would be limited by the statute of
limitations to damages for harms occurring two years before the complaint was filed on
April 11, 2006.
Because the case will be remanded to the hearing officer to determine whether
plaintiff was denicd FAPE for his elementary school years, the exact scope of defendant’s
liability to plaintiff is not yet known. The court will therefore not rule on plaintiff's
eligibility for monetary damages at this time.
"In his initial objections to the R&R, plaintiff had requested “monetary damages or that the District be required to establish a specified fund for his benefit” but had not mentioned any statute creating an entitlement to such damages other than the IDEA.
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