California OAH special education decision · October 25, 2005
Student v. Berkeley Unified School District
OAH Case No. 2005070294 · ALJ Michael C. Cohn
Student's due process case against Berkeley Unified dismissed without prejudice by agreement after the ALJ denied a continuance.
Noted in the decision
None noted.
Summary
A student filed a request for a due process hearing against Berkeley Unified School District with the Special Education Hearing Office on June 30, 2005. The decision does not describe the student's eligibility or the specific claims. At a prehearing conference on October 20, 2005, the student's attorney asked to postpone both the prehearing conference and the hearing. Administrative Law Judge (ALJ) Michael C. Cohn found there was no good cause and denied the request. The conference went ahead. The ALJ clarified the issues and dismissed some of them, and he gave the student another chance to show good cause for postponing the hearing. On the hearing date, October 24, 2005, the student filed more documents in support of the request. The ALJ again found no good cause and kept his earlier denial in place. The parties then reached an agreement. Under it, the student's hearing request was dismissed without prejudice, which means the student could file again. The district, however, would not waive the statute of limitations for any new filing. That meant a re-filed case could be limited by the time already passed. The ALJ ordered the June 30, 2005 request dismissed without prejudice. No claims were decided on the merits, and the ALJ ordered no relief.
Why it matters
The ALJ refused to postpone the hearing without good cause, and the student's side agreed to dismiss the case. A dismissal without prejudice lets a family file again. Here, though, the district would not waive the statute of limitations. So older claims in a new filing could be time-barred.
Issues and holdings
- Dismissed / withdrawnThreshold and jurisdiction
Issue 1. Petitioner's request for due process hearing (issues not described in the decision); continuance request denied for lack of good cause, and parties agreed to dismissal without prejudice
By the parties' agreement, the hearing request was dismissed without prejudice; the student may re-file, and the district will not waive the statute of limitations.
What the ALJ ordered
- Due process hearing request filed June 30, 2005 dismissed without prejudice by agreement; Student may re-file; District will not waive the statute of limitations for any re-filed request.
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Published text of the OAH decision. Student and family details have been removed and marked in brackets, and page headers and numbers from the original PDF have been dropped.
BEFORE THE
SPECIAL EDUCATION DIVISION
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA
In the Matter of:
STUDENT,
OAH No. N 2005070294 Petitioner (formerly SEHO No. SN05-01905)
v.
BERKELEY UNIFIED SCHOOL
DISTRICT,
Respondent.
DECISION
This matter was heard before Michael C. Cohn, Administrative Law Judge, State of California, Office of Administrative Hearings, in Oakland, California, on October 24, 2005. Petitioner Student was represented by Maryann Dresner, Attorney at Law. Respondent Berkeley Unified School District was represented by Christine D. Lovely, Attorney at Law.
On June 30, 2005, petitioner filed with the Special Education Hearing Office a request for due process hearing.
A prehearing conference was held on October 20, 2005. Petitioner’s request for a continuance of both the prehearing conference and the hearing was found to lack good cause and was denied. The prehearing conference proceeded. The issues raised in petitioner’s hearing request were clarified and rulings dismissing some of the issues were made. Petitioner was afforded the opportunity to present further evidence of good cause to justify a continuance of the hearing.
On October 24, 2005, petitioner submitted additional documents in support of the
Accessibility modified document continuance request. It was once again found that petitioner had not established good cause for continuance of the hearing. The prior ruling denying that request was left unchanged.
Following this ruling, the parties entered into an agreement, the terms of which are as follows: Petitioner’s request for due process hearing is dismissed without prejudice. Petitioner may re-file her request. The district will not waive the statute of limitations in relation to any re-filed request.
ORDER
The due process hearing request filed by petitioner on June 30, 2005, is dismissed without prejudice.
DATED: October 25, 2005
MICHAEL C. COHN
Administrative Law Judge Office of Administrative Hearings
Accessibility modified document