California OAH special education order · February 4, 2013
Order Denying Request for Reconsideration
OAH Case No. 2012100025 · ALJ Bob N. Varma
OAH denied District's request to reconsider the denial of its peremptory challenge to ALJ Rebecca Freie because District offered no new material facts, circumstances, or law.
This case went to decision
Student v. Acalanes Union High School District: Acalanes Union High School District correctly found a student with ADHD ineligible for special education; Fusion Academy reimbursement denied. (2013)
Summary
The Presiding ALJ first granted District's peremptory challenge to ALJ Rebecca Freie. The same day, on his own motion, he vacated that order and denied the challenge. District asked for reconsideration and filed sworn declarations from its attorney and her legal secretary about their communications with OAH. Student did not respond. OAH denied the request because the declarations only added detail about those communications without new material facts or legal authority. OAH also found District's new claim, that OAH had not acknowledged giving notice of the ALJ reassignment that morning, was contradicted by the record.
Why it matters
A party seeking reconsideration must bring genuinely new facts, circumstances, or law. Restating or elaborating on what OAH already considered will not change the result, and OAH may revisit its own rulings on its own motion.
Key authority cited
- Gov. Code, § 11521
- Code Civ. Proc., § 1008
- Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192
People named in the order
- Rebecca Freie, Administrative Law Judge (subject of peremptory challenge)
- Elizabeth Rho-Ng, Attorney for District
- Cynthia Gibbons, Legal secretary to District's attorney
Topics
Full text of the order
Published text of the OAH order. Page headers and numbers from the original PDF have been dropped.
BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA
In the Matter of:
PARENT ON BEHALF OF STUDENT, OAH CASE NO. 2012100025
v. ORDER DENYING REQUEST FOR
RECONSIDERATION
ACALANES UNION HIGH SCHOOL
DISTRICT.
On February 1, 2013, the undersigned Administrative Law Judge (ALJ) issued an order granting the Acalanes Union High School District’s (District’s) peremptory challenge of ALJ Rebecca Freie. Shortly after the issuance of that order, on February 1, 2013, the undersigned reconsidered his order, sua sponte, and vacated the order granting the peremptory challenge, and issued a new order denying the peremptory challenge. On February 1, 2013, District filed a motion to reconsider the denial of its peremptory challenge.
On February 4, 2013, District filed sworn declarations of Elizabeth Rho-Ng, attorney for District, and Cynthia Gibbons, legal secretary to Ms. Rho-Ng, in support of its request for reconsideration. The Office of Administrative Hearings (OAH) did not receive a response from Student.
APPLICABLE LAW
OAH will generally reconsider a ruling upon a showing of new or different facts, circumstances, or law justifying reconsideration, when the party seeks reconsideration within a reasonable period of time. (See, e.g., Gov. Code, § 11521; Code Civ. Proc., § 1008.) The party seeking reconsideration may also be required to provide an explanation for its failure to previously provide the different facts, circumstances or law. (See Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1199-1200.)
DISCUSSION AND ORDER
District alleges no new facts, circumstances, or law in support of the request for reconsideration. The request for reconsideration and declarations provide further details as to the communications between OAH, Ms. Gibbons and Ms. Rho-Ng, but do not provide new material facts, not previously provided to OAH. 1 District provides no new legal authority. Furthermore, District provides no authority to support the undersigned’s right to re-examine applicable law and reconsider a prior ruling sua sponte. Accordingly, District’s request for reconsideration is denied.
IT IS SO ORDERED.
Dated: February 4, 2013 /s/
BOB N. VARMA
Presiding Administrative Law Judge Office of Administrative Hearings District alleges that OAH has refused to acknowledge that it gave notice to the parties of the change in assigned ALJ the morning of February 1, 2013. This is a new allegation, but is unsupported by the record. The February 1, 2013 order denying District’s peremptory challenge states that District was notified approximately at 9:20 that the due process hearing had been reassigned to ALJ Freie.