California OAH special education order · November 26, 2013
Order Reconsidering and Vacating Dismissal and Restoring Matter to Calendar
OAH Case No. 2013090535 · ALJ Charles Marson
OAH vacated its dismissal with prejudice because Parent had timely sent proof of authority to represent his adult son, but it was mistakenly filed in a closed case.
Summary
OAH dismissed Parent's complaint with prejudice after finding no proof that Parent could represent his adult son, as an earlier order had required. Parent then showed that on the deadline he had faxed the authorization to OAH, attached to a transcript request in a closed case, so it was never filed in this case. On its own motion, OAH reconsidered and found the documentation adequate to show Parent could represent his son. It vacated the dismissal, kept the prehearing conference and hearing dates, and ordered Parent to serve his prehearing conference statement on the District.
Why it matters
When a student is an adult, a parent must file proof of authority to bring claims for that student, and the proof must be filed under the correct case number. A dismissal based on a filing mistake can be undone if the parent quickly shows the document was actually submitted on time.
People named in the order
- Judith Kopec, Division Presiding Administrative Law Judge
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. 2013090535
v. ORDER RECONSIDERING AND
VACATING DISMISSAL AND
LINCOLN UNIFIED SCHOOL DISTRICT. RESTORING MATTER TO
CALENDAR
On October 8, 2013, Parent filed an amended request for due process hearing (complaint) in this matter, naming the Lincoln Unified School District (District) and purporting to represent his adult son. On November 7, 2013, Division Presiding Administrative Law Judge Judith Kopec noted that Parent had previously been asked to provide documentation for his claim that he was entitled to assert the rights of his adult son and had failed to do so. Judge Kopec ordered Parent to produce that documentation by November 15, 2013, adding that “[i]f Parent fails to do so, then OAH [Office of Administrative Hearings] may dismiss this matter to the extent it raises claims on behalf of Student alone.” (Order Requiring Submission of Proof of Holding Educational Rights for Student or Authorization to File Request for Hearing on Behalf of Student, Nov. 7, 2013.)
The single issue now remaining in the matter is one that can be asserted only by Student or someone authorized to represent him. (Order Granting In Part District’s Motion to Dismiss, filed November 1, 2013.)
On November 25, 2013, a prehearing conference (PHC) was scheduled in this matter.
The undersigned reviewed all pleadings and papers on file herein, found no documentation from Parent that complied with Judge Kopec’s Order of November 7, 2013, and accordingly cancelled the PHC and dismissed the matter with prejudice.
Based on new information provided by Parent after the order dismissing the matter was filed and served, the order of dismissal is hereby reconsidered sua sponte. It now appears that on November 15, 2013, Parent faxed to OAH a request for a transcript in a closed case, Student v. Lincoln Unified School District (2013) OAH Case No. 2012080271, and appended to that transcript request the authorization to represent his son required by Judge Kopec’s November 7, 2013, order in this matter. The authorization was thus filed as part of the transcript request in the closed matter and was not filed in this matter, making it appear that Parent had not complied with Judge Kopec’s order.
Parent’s authorization to represent his son has been refiled in this matter. The factual basis upon which the undersigned ordered the matter dismissed now appears to be incorrect, as Parent has filed adequate documentation that he is entitled to represent his son in this matter. The order of dismissal will therefore be vacated and the matter restored to the calendar.
ORDER
1. The Order Dismissing Amended Complaint With Prejudice, filed November
25, 2013, is hereby reconsidered sua sponte and vacated.
2. This matter is restored to the calendar. The PHC will be held at 1:00 p.m. on
December 2, 2013. The due process hearing will proceed on December 3, 2013, as previously scheduled.
3. Parent shall promptly serve his PHC statement on the District, if he has not
already done so.
Dated: November 26, 2013 /s/
CHARLES MARSON
Administrative Law Judge Office of Administrative Hearings