California OAH special education order · July 22, 2015
Order Denying Request to Reopen Case
OAH Case No. 2013060620 · ALJ Bob N. Varma
OAH denied Student's request to reopen a decided case and pay to re-record an expert's lost testimony, because OAH loses jurisdiction under the IDEA once it issues a final decision.
This case went to decision
Student v. Newport-Mesa Unified School District: Newport-Mesa Unified violated Child Find for a senior with a brain injury; must fund $2,600 in tutoring and two assessments. (2014)
Summary
Student appealed OAH's February 2014 final decision and ordered hearing transcripts. Student then found that the audio recording of Dr. Nancy Markel's testimony was missing, and OAH confirmed the gap. Student's attorney asked OAH to pay for Dr. Markel to come back and recreate her testimony, and OAH treated the letter as a request to reopen the case. OAH denied it because it no longer has jurisdiction under the IDEA after a final decision, and Student cited no authority to the contrary or details of the other case she said supported her request.
Why it matters
Once OAH issues a final decision, it cannot reopen the hearing to fix gaps in the record, even gaps caused by its own recording failure. Parties appealing should look to the reviewing court to deal with missing testimony, and should support any request to OAH with specific authority.
Key authority cited
- Individuals with Disabilities Education Act
People named in the order
- Judith Pasewark, Administrative Law Judge who issued the final decision
- Nancy Markel, Witness (expert) whose testimony recording was missing
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:
STUDENT, OAH Case No. 2013060620 v. ORDER DENYING REQUEST TO
REOPEN CASE
NEWPORT-MESA UNIFIED SCHOOL
DISTRICT.
On February 5, 2014, Administrative Law Judge Judith Pasewark issued a final Decision in this matter. On July 21, 2015, Tania L. Whiteleather, attorney for Student, filed a letter with the Office of Administrative Hearings requesting that OAH pay for a “re-do” of the testimony of Dr. Nancy Markel, a witness in the hearing in this matter. Ms.
Whiteleather’s letter also references OAH Case No. 2012070601, another matter for the same Student. However, OAH Case No. 2012070601 resolved prior to a hearing, therefore OAH is treating the letter as a motion in the above captioned case only. Based upon the assertions in Ms. Whiteleather’s letter, OAH is treating the request as a request to reopen this matter.
After the issuance of the Decision in this matter, Student filed an appeal of the Decision and requested transcripts of the hearing from OAH. In reviewing the transcript it was discovered that a portion of the audio recording of the hearing, Dr. Markel’s testimony, was missing. When Student informed OAH of this, OAH reviewed the recordings, confirmed the missing recording, and provided a declaration to that effect. Student now moves to reopen the hearing and requests OAH pay for the attendance of Dr. Markel to recreate the missing portion of her testimony.
Upon the issuance of a final decision in a matter, OAH no longer has jurisdiction over that matter under the Individuals with Disabilities Education Act; and, Student has provided no contradictory authority to support continued jurisdiction by OAH. 1 Therefore, Student’s request to reopen the matter for further testimony is denied.
IT IS SO ORDERED.
DATE: July 22, 2015
/S/
BOB N. VARMA
Division Presiding Administrative Law Judge Office of Administrative Hearings Ms. Whiteleather contends that in another matter OAH recalled an expert and paid for that expert’s time when the testimony was not properly recorded. However, Ms.
Whiteleather provides no case name or number. Furthermore, she provides no information as to whether a final decision had been issued in that matter prior to OAH recalling a witness for further testimony at OAH’s expense.