California OAH special education order · September 8, 2020
Order Determining Due Process Complaint Insufficient
OAH Case No. 2020090023 · ALJ Tara Doss
OAH found Student's form complaint insufficient because it did not identify the IEP or services in dispute, and ruled the filing attorneys were not authorized to practice law in California.
Summary
Capistrano challenged the sufficiency of Student's complaint. The complaint alleged failure to implement the IEP since March 2020, lack of notice to Parent, and material changes to the IEP. OAH found it was a generic form complaint, identical to ones the same attorneys filed for other students, that could apply to any child in any district. OAH also found that attorneys Albert and Donohue did not appear authorized to practice law in California, so Student may amend within 14 days only through a California-licensed attorney or with Parent representing Student.
Why it matters
A due process complaint must describe the specific student's IEP, services, and facts. Cookie-cutter complaints will be rejected. Families should also make sure their attorney is licensed in California, because OAH will not accept filings from out-of-state lawyers.
Key authority cited
- 20 U.S.C. § 1415(b)(7)(A)
- 20 U.S.C. § 1415(c)(2)(D)
- 20 U.S.C. § 1415(c)(2)(E)(i)(II)
- 100 Ops. Cal. Atty. Gen. 19 (2017)
- Student v. Poway Unified School District, OAH Case No. 2020080526
- Student v. Saddleback Valley Unified School District, OAH Case No. 2020080561
People named in the order
- Peter G. Albert, Student's attorney (not authorized in California)
- Patrick Donohue, Student's attorney (not authorized in California)
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,
v.
CAPISTRANO UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2020090023
ORDER DETERMINING DUE PROCESS COMPLAINT
INSUFFICIENT
SEPTEMBER 8, 2020
On August 28, 2020, Student filed a Due Process Hearing Request, called a complaint, with the Office of Administrative Hearings, called OAH, naming Capistrano Unified School District. On September 4, 2020, Capistrano timely filed a Notice of Insufficiency as to the complaint.
APPLICABLE LAW
The named parties have the right to challenge the complaint’s sufficiency.
(20 U.S.C. § 1415(b) & (c).) The party filing the complaint is not entitled to a hearing unless the complaint meets the requirements of title 20 United States Code section 1415(b)(7)(A).
A complaint is sufficient if it includes: (1) a description of the problem relating to the proposed change regarding the Student’s identification, evaluation, or educational placement, or providing the Student with a free appropriate public education; (2) facts about the problem; and (3) proposed resolutions to the extent known and available to the party at the time. (20 U.S.C. § 1415(b)(7)(A)(ii)(III) & (IV).) These requirements prevent vague and confusing complaints and promote fairness by providing the named parties with sufficient information to know how to prepare for the hearing and how to participate in a resolution session and mediation. (See H.R.Rep. No. 108-77, 1st Sess.
(2003), p. 115; Sen. Rep. No. 108-185, 1st Sess. (2003), pp. 34-35.)
The complaint provides enough information when it provides “an awareness and understanding of the issues forming the basis of the complaint.” (Sen. Rep. No. 108- 185, supra, at p. 34.) The pleading requirements should be liberally construed in light of the broad remedial purposes of the IDEA and the relative informality of the due process hearings it authorizes. (Alexandra R. ex rel. Burke v. Brookline School Dist. (D.N.H., Sept.
10, 2009, CIV. 06-CV-0215-JL) 2009 WL 2957991[nonpub. Opn.]; Escambia County Bd. Of Educ. V. Benton (S.D. Ala. 2005) 406 F.Supp.2d 1248, 1259-1260; Sammons v. Polk County School Bd. (M.D. Fla., Oct. 28, 2005, 8:04CV2657T24EAJ) 2005 WL 2850076 [nonpub. Opn.]; but cf. M.S.-G v. Lenape Regional High School Dist. Bd. Of Educ. (3d Cir.
2009) 306 Fed.Appx. 772, 775 [nonpub. Opn.].) Whether the complaint is sufficient is a matter within the sound discretion of the Administrative Law Judge. (Assistance to States for the Educ. Of Children with Disabilities & Preschool Grants for Children with Disabilities (Aug. 14, 2006) 71 FR 46,540-46541, 46699.)
On September 28, 2017, the California attorney general issued an opinion letter which considered whether the Individuals with Disabilities Education Act, the implementing regulations, and/or the California Education Code authorized a party to special education due process proceedings to be represented by a person that was not an active member of the California State Bar. The attorney general’s opinion concluded these laws did not authorize parties to a special education due process case to be represented by a person that is not an active member of the California State Bar. (100 Ops. Cal. Atty. Gen. 19 (2017).)
DISCUSSION
Student’s complaint is an improper form pleading that insufficiently pled claims.
Student primarily alleges that Capistrano failed to implement Student’s individualized education program, called an IEP, since March 2020; failed to provide Parent with notice of a change in Student’s IEP; and materially changed the IEP. The issues are general and not specific to Student, as the complaint fails to identify the IEP or services that are in dispute. Student’s allegations are overly vague and fail to provide enough information for Capistrano to understand the issues forming the basis of the complaint.
The complaint is identical to complaints for other students filed by attorneys Peter G. Albert and Patrick Donohue, which OAH deemed insufficient. (See Student v.
Poway Unified School District (August 25, 2020) OAH Case No. 2020080526 [Order Finding Student’s Due Process Complaint Insufficient]; Student v. Saddleback Valley Unified School District (August 27, 2020) OAH Case No. 2020080561 [Order Finding Student’s Due Process Complaint Insufficient].) Student’s attorneys overlook that each child’s educational program is unique and a complaint alleging a denial of a free appropriate public education must be specific to the student. Here, the complaint could be for any child in any school district, thereby making it impossible for Capistrano to prepare for a resolution session or mediation for this matter. For these reasons, Student’s complaint is insufficient.
Attorneys Peter G. Albert and Patrick Donohue filed the complaint on behalf of Student. Neither attorney appears to be authorized to practice law in the State of California, in violation of the attorney general’s opinion. Consequently, attorneys Albert and Donohue were not authorized to file the complaint on behalf of Student.
Accordingly, Student may file an amended complaint as a self-represented litigant, or through an attorney licensed to practice law in California.
ORDER
1. Student’s complaint is insufficiently pled under section title 20 United States
Code section 1415(c)(2)(D).
2. Student may file an amended complaint under title 20 United States Code
section 1415(c)(2)(E)(i)(II).
3. The amended complaint must comply with the requirements of title 20 United
States Code section 1415(b)(7)(A)(ii) and must be filed not later than 14 days from the date of this Order.
4. If Student fails to file a timely amended complaint by an attorney licensed to
practice law in California, or by Parent as a self-represented litigant, the case will be dismissed.
5. All dates previously set in this matter, except the September 11, 2020 Order to
Show Cause Hearing, are vacated.
IT IS SO ORDERED.
Tara Doss Administrative Law Judge Office of Administrative Hearings