1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ELK GROVE UNIFIED SCHOOL No. 2:15-cv-02312-TLN-KJN

DISTRICT,

12 Plaintiff, 13 ORDER RE SUMMARY JUDGMENT v. 14 E.G., a minor, by and through his Parent, 15 IDA GARRETT, 16 Defendant. 17 18 This matter is before the Court on the motion for summary judgment filed by Plaintiff Elk 19 Grove Unified School District (“District”) (ECF No. 20), and on the motion for summary 20 judgment filed by Defendant E.G. (“E.G.” or “Student”) (ECF No. 23). For the following 21 reasons, the Court GRANTS District’s motion and DENIES E.G.’s motion. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 A. Underlying Complaint 3 The dispute in this case arises from District’s desire to conduct assessments of E.G. 4 pursuant to the provisions of the Individuals with Disabilities Education Act (“IDEA”). (ECF 5 No. 1 ¶¶ 1, 13–14.)1 E.G. is a student within District’s jurisdictional boundaries who is eligible 6 for special education services. (ECF No. 1 ¶ 8.) In 2015, District filed due process complaint 7 number 2015010203 before the State of California’s Office of Administrative Hearings (“OAH”), 8 requesting that it be allowed to vindicate its “right to assess” E.G. for the purpose of determining 9 what special education services he required. (ECF No. 19 at 78.) In March 2015, following 10 discussions between District and E.G.’s representatives and before the OAH rendered a decision 11 regarding District’s right to assess E.G., the parties entered into a settlement agreement. (ECF 12 No. 1 ¶¶ 10–14; ECF No. 19 at 78.) As far as the record reflects, no order ever issued from the 13 OAH adjudicating this due process complaint number 2015010203. (See ECF No. 19 at 78 14 (“Judge Redmon first ruled she would render a decision despite the settlement. The Student was 15 in favor of a decision however the order was changed and no decision was released.”).) 16 One component of the parties’ settlement agreement was that District would have the right 17 to assess E.G. for the purpose of determining what special education services E.G. would be 18 entitled to receive. (ECF No. 1 ¶¶ 13–14; ECF No. 19 at 97.) Another component of the 19 settlement agreement was that District would retain its right to initiate a subsequent due process 20 complaint in front of the OAH in the event that E.G.’s parent refused to make E.G. available for 21 assessment. (ECF No. 19 at 99 (“In the event Parent does not make Student available for the 22 assessments contemplated above, the District reserves the right to file a new due process filing 23 relating to the Assessment Plan set forth herein.”).) 24 District alleges that it was unable to complete the assessment contemplated in the March 25 2015 settlement agreement because E.G.’s parent refused to make him available for observation. 26 (ECF No. 1 ¶¶ 17–18.) Accordingly, District filed another due process complaint, numbered 27 1 Unless otherwise indicated, all ECF citations in this Order refer to the case numbered 2:15-cv-02312-TLN- 28 KJN. 1 2015080481, before the OAH “seeking an order from OAH that it is permitted to complete the 2 assessments and that Parent make Student available for the assessments.” (ECF No. 1 ¶ 18.) The 3 OAH administrative law judge who adjudicated District’s complaint dismissed it on jurisdictional 4 grounds. (ECF No. 1 ¶ 21; ECF No. 1-1.) Specifically, the OAH reasoned that due process 5 complaint number 2015080481 was essentially a request by District to enforce the terms of the 6 March 2015 settlement agreement requiring that E.G. be made available for District to assess him. 7 (ECF No. 1-1 at 2 (“Elk Grove’s complaint is a request to enforce the settlement agreement.”).) 8 Relying on the holding of Wyner ex rel. Wyner v. Manhattan Beach Unified School District, 223 9 F.3d 1026, 1028–29 (9th Cir. 2000), the OAH held that it did not have “jurisdiction over claims 10 alleging a failure to comply with a settlement agreement” and dismissed District’s due process 11 complaint on that basis. (ECF No. 1-1 at 1.) Plaintiff filed a motion for reconsideration, but that 12 motion was denied. (ECF No. 1 ¶¶ 22–23; ECF No. 1-2.) 13 District’s Complaint appeals the order of dismissal rendered by the OAH in due process 14 complaint 2015080481. (ECF No. 1 at 2.) The Complaint alleges that “[u]nless the OAH 15 decision is invalidated by this Court, and the decision of the OAH is corrected, the District will 16 not be able to conduct assessments of minor E.G., which, by law, it is allowed to do.” (ECF No. 17 1 at 2.) 18 B. Motions for Summary Judgment 19 Both parties filed motions for summary judgment. (ECF No. 20; ECF No. 23.) District’s 20 motion argues that the OAH order incorrectly concluded that the OAH was without jurisdiction to 21 adjudicate District’s request to assess E.G. (See ECF No. 20 at 6 (“The Order issued by OAH 22 should be reversed because the District specifically and contractually provided for the right to file 23 a request for due process hearing regarding the right to assess.”).) District accepts the principle 24 that the OAH “does not have the power to enforce a settlement agreement.” (ECF No. 20 at 9– 25 10.) Nonetheless, District asserts that the OAH order should be overturned because District was 26 not asking the OAH to enforce the March 2015 settlement agreement; instead, “District was 27 acting outside of the Agreement to attempt to secure a ruling from OAH regarding the right to 28 assess a student pursuant to the IDEA.” (ECF No. 20 at 10.) 1 E.G.’s motion argues that the Court should grant summary judgment in his favor by 2 upholding the OAH order as consistent with well-established law that “due process hearings are 3 not the appropriate venue to address an alleged noncompliance with a settlement agreement.” 4 (ECF No. 23 at 5–6.) E.G. asserts that “E.G. and the District had a global Settlement Agreement” 5 which contemplated further assessments, meaning that District’s request for the OAH to compel 6 E.G. to proceed with such assessments is, at bottom, an effort to have the OAH enforce the 7 settlement agreement. (ECF No. 23 at 5.) Echoing the OAH administrative law judge’s reliance 8 on Wyner, E.G. argues that the OAH only has jurisdiction to hear a request to enforce a settlement 9 agreement where the due process complaint alleges that a school district is denying an eligible 10 student a free appropriate public education, which District’s complaint in OAH case number 11 2015080481 did not allege. (ECF No. 23 at 5–6.) 12 C. Related 2016 Case 13 While the parties’ summary judgment motions in the instant case were pending before the 14 Court, District filed a new administrative action before the OAH seeking to enforce the terms of a 15 new assessment plan that was dated January 12, 2016. (See ECF No. 34 at 3, Case No. 2:16-cv- 16 02412-TLN-KJN.) For reasons not relevant to the instant motions, the OAH ruled in District’s 17 favor in that 2016 OAH action numbered 2016020899. (See ECF No. 34 at 3–5, Case No. 2:16- 18 cv-02412-TLN-KJN.) The OAH in case number 2016020899 ruled that District was entitled to 19 conduct an assessment of E.G. pursuant to the new assessment plan dated January 2016. (ECF 20 No. 34 at 5, Case No. 2:16-cv-02412-TLN-KJN.) 21 E.G. appealed the OAH’s decision in the 2016 action to this Court. (See ECF No. 1, Case 22 No. 2:16-cv-02412-TLN-KJN.) The Court entered an order relating the instant 2015 case (in 23 which District appealed an OAH decision adverse to it) to the 2016 case (in which E.G. appealed 24 an OAH decision adverse to him). (ECF No. 33, Case No. 2:16-cv-02412-TLN-KJN.) The Court 25 granted summary judgment in District’s favor in the 2016 case, upholding the OAH’s 2016 26 decision that District has the right to conduct an assessment of E.G. pursuant to the IDEA. (ECF 27 No. 34 at 13, Case No. 2:16-cv-02412-TLN-KJN.) 28 /// 1 D. Supplemental Briefing 2 In the instant case, the Court requested supplemental briefing from the parties to address 3 whether the Court’s entry of judgment in favor of District in the 2016 case rendered the 2015 case 4 moot. (ECF No. 31.) District filed a responsive brief arguing that the instant case is not moot 5 “because of the fee shifting provisions of the IDEA.” (ECF No. 32 at 3.) According to District, 6 “prevailing party status needs to be determined for this case in order to determine whether the 7 District is potentially required to pay attorney fees in this case.” (ECF No. 32 at 3.) E.G. also 8 filed a responsive brief that appears to take the position that the Court’s order dismissing yet 9 another related case from 2017 confirms that District’s summary judgment motion in the instant 10 case is meritless (ECF No. 33 at 4 (“This Court specifically addressed this issue in related case 11 2:17-cv-0729-TLN-KJN when it determined it did not have jurisdiction to proceed on E.G.’s 12 appeal . . . .”)). 13 II. STANDARD OF LAW 14 A. Relevant Provisions of the IDEA 15 i. Complaint Procedures of the IDEA 16 In relevant part, the IDEA provides that state and local educational agencies establish 17 procedural safeguards to ensure that children with disabilities and their parents receive a free 18 appropriate public education. 20 U.S.C. § 1415(a). Such procedural safeguards must include the 19 opportunity for any party to present a complaint “with respect to any matter relating to the 20 identification, evaluation, or educational placement of the child.” Id. § 1415(b)(6)(A). Upon the 21 presentation of such a complaint, “the parents or the local educational agency involved in such 22 complaint shall have an opportunity for an impartial due process hearing, which shall be 23 conducted by the State educational agency or by the local educational agency, as determined by 24 State law or by the State educational agency.” Id. § 1415(f)(1)(A). 25 In California, due process hearings envisioned by the foregoing sections of the IDEA are 26 conducted by the OAH, which is an independent state agency. Fairfield-Suisun Unified Sch. Dist. 27 v. Cal. Dep’t of Educ., 780 F.3d 968, 969 (9th Cir. 2015) (citing M.M. v. Lafayette Sch. Dist., 681 28 F.3d 1082, 1085, 1092 (9th Cir. 2012)). The OAH has jurisdiction over due process complaints 1 brought by a student’s parent or by the public agency involved where, inter alia, “[t]he parent or 2 guardian refuses to consent to an assessment of the child.” Cal. Educ. Code § 56501(a)(3). The 3 OAH, however, “lacks jurisdiction to enforce its own orders” issued after a due process hearing. 4 Porter v. Bd. of Trustees of Manhattan Beach Unified Sch. Dist., 307 F.3d 1064, 1069–70 (9th 5 Cir. 2002); see also Wyner, 223 F.3d at 1029 (“Failure to comply with an order emanating from a 6 prior due process hearing is not within the [OAH’s] specified jurisdiction.”). 7 ii. District Court Review of Administrative Decisions Rendered 8 Pursuant to the IDEA 9 “A party dissatisfied with the outcome of a due process hearing may obtain further review 10 by filing a civil action in state or federal court.” Fairfield-Suisun, 780 F.3d at 969 (citing 20 11 U.S.C. § 1415(i)(2)(A)). When this occurs, the party challenging the administrative decision 12 bears the burden of persuasion on each claim challenged. Pointe Educ. Servs. v. A.T. ex rel. A.T., 13 610 F. App’x 702, 703 (9th Cir. 2015) (citing L.M. v. Capistrano Unified Sch. Dist., 556 F.3d 14 900, 910 (9th Cir. 2009)). The reviewing district court “(i) shall receive the records of the 15 administrative proceedings; (ii) shall hear additional evidence at the request of a party; and 16 (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court 17 determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C). On the one hand, “‘complete de novo 18 review’ of the administrative proceeding ‘is inappropriate.’” Van Duyn ex rel. Van Duyn v. 19 Baker Sch. Dist. 5J, 502 F.3d 811, 817 (9th Cir. 2007) (quoting Amanda J. ex rel. Annette J. v. 20 Clark Cty. Sch. Dist., 267 F.3d 877, 887 (9th Cir. 2001)). But on the other hand, “blind deference 21 is not appropriate” and “the district judge must actually examine the record to determine whether 22 it supports the [OAH’s] opinion.” M.C. ex rel. M.N. v. Antelope Valley Union High Sch. Dist., 23 858 F.3d 1189, 1194 n.1 (9th Cir. 2017). 24 As should be clear from the foregoing, “[t]hough the parties may call the procedure a 25 ‘motion for summary judgment’ in order to obtain a calendar date from the district court’s case 26 management clerk, the procedure is in substance an appeal from an administrative determination, 27 not a summary judgment.” Capistrano Unified Sch. Dist. v. Wartenberg ex rel. Wartenberg, 59 28 F.3d 884, 892 (9th Cir. 1995); see also J.L. v. Manteca Unified Sch. Dist., No. 2:14-cv-01842- 1 WBS-EFB, 2016 WL 3277260, at *5–6 (E.D. Cal. June 14, 2016) (“The Ninth Circuit has 2 recognized that the procedure under the IDEA is ‘not a true summary judgment procedure,’ but is 3 ‘essentially . . . a bench trial based on a stipulated record.’” (quoting Ojai Unified Sch. Dist. v. 4 Jackson, 4 F.3d 1467, 1472 (9th Cir. 1993))). 5 B. Mootness 6 “The jurisdiction of federal courts depends on the existence of a ‘case or controversy’ 7 under Article III of the Constitution.” Pub. Utils. Comm’n v. Fed. Energy Regulatory Comm’n, 8 100 F.3d 1451, 1458 (9th Cir. 1996) (quoting GTE Cal., Inc. v. FCC, 39 F.3d 940, 945 (9th Cir. 9 1994)). An actual case or controversy must be live at all times during a particular litigation, not 10 simply on the date the action is initiated. Id. (citing Roe v. Wade, 410 U.S. 113, 125 (1973)). 11 Accordingly, under the jurisdictional doctrine of mootness, “[i]f an action or a claim loses its 12 character as a live controversy, then the action or claim becomes ‘moot,’ and [a reviewing court] 13 lack[s] jurisdiction to resolve the underlying dispute.” Doe v. Madison Sch. Dist. No. 321, 177 14 F.3d 789, 797–98 (9th Cir. 1999) (en banc). 15 There are, however, exceptions to the application of the mootness doctrine that apply in 16 the IDEA context. One such exception encompasses “issues regarding appropriate placement” of 17 a student because this question is “capable of repetition, yet evading review.” Marcus I. ex rel. 18 Karen I. v. Dep’t of Educ., 434 F. App’x 600, 601 (9th Cir. 2011) (quoting Sacramento City 19 Unified Sch. Dist., Bd. of Educ. v. Rachel H. ex rel. Holland, 14 F.3d 1398, 1403 (9th Cir. 1994)). 20 “This rule is premised on the fact that Individual Education Plans (IEPs) are reviewed annually, 21 providing insufficient time for judicial review, yet often a conflict between a disabled student’s 22 parents and a school district regarding proper placement ‘is a continuing one and will arise 23 frequently.’” Id. 24 i. Attorneys’ Fees 25 District courts have discretion to award reasonable attorneys’ fees to a party that prevails 26 in litigating an appeal from an administrative determination made pursuant to provisions of the 27 IDEA. See 20 U.S.C. § 1415(i)(3)(B)(i). Depending on the outcome of the appeal brought before 28 the district court, a prevailing party may be (i) the parent of a child with a disability, (ii) “a State 1 educational agency or local educational agency against the attorney of a parent who files a 2 complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation,” 3 or (iii) a “State educational agency or local educational agency against the attorney of a parent, or 4 against the parent, if the parent’s complaint or subsequent cause of action was presented for any 5 improper purpose.” Id. 6 Where the only remaining issue in a given case is the question of a prevailing party’s 7 entitlement to attorneys’ fees, “a claim for attorney’s fees does not preserve a case which 8 otherwise has become moot on appeal.” United States v. Ford, 650 F.2d 1141, 1143 (9th Cir. 9 1981). Instead, a district court may retain ancillary jurisdiction over the question of attorneys’ 10 fees even after the substantive issues in a case become moot. See K.C. ex rel. Erica C. v. 11 Torlakson, 762 F.3d 963, 968 (9th Cir. 2014) (noting that courts can exercise ancillary 12 jurisdiction over attorneys’ fee disputes as being collateral to the underlying litigation and that 13 such ancillary jurisdiction “exists even after the underlying litigation has concluded”); Zucker v. 14 Occidental Petroleum Corp., 192 F.3d 1323, 1329 (9th Cir. 1999) (“No Article III case or 15 controversy is needed with regard to attorneys’ fees as such, because they are but an ancillary 16 matter over which the district court retains equitable jurisdiction even when the underlying case is 17 moot.”). 18 III. ANALYSIS 19 A. The Instant Case Is Not Moot 20 The Court notes with some measure of frustration that in their responses to the Court’s 21 request for supplemental briefing on the issue of mootness, neither party provided a single piece 22 of legal authority on the topic. (See ECF No. 31; ECF No. 32; ECF No. 33.) This forced the 23 Court to undertake its own research sua sponte, research which demonstrated that neither party’s 24 position on the mootness issue is convincing. 25 District’s cursory argument that the question of legal fees saves this case from being moot 26 appears to conflict with long-standing Ninth Circuit authority that “a claim for attorney’s fees 27 does not preserve a case which otherwise has become moot on appeal.” Ford, 650 F.2d at 1143. 28 At the same time, E.G.’s argument that the Court’s order on a motion to dismiss in a related 2017 1 matter moots the instant case misrepresents the Court’s holding in the 2017 matter, which simply 2 found that E.G.’s complaint in the 2017 case was time-barred without addressing the 3 jurisdictional issues presented in the instant matter. (See ECF No. 24 at 3, Case No. 2:17-cv- 4 00729-TLN-KJN (“Accordingly, Plaintiff’s complaint is dismissed for failure to timely file in 5 accordance with the statute of limitations.”).) 6 Despite the parties’ failure to properly brief the issue of mootness, however, the Court 7 finds that the instant case is not moot because the dispute at its heart is capable of repetition, yet 8 evading review. The Ninth Circuit in Rachel H., 14 F.3d at 1402–03, reasoned that because the 9 IDEA mandates annual renewal of IEPs for disabled students, because the school district and 10 Rachel H.’s parents had conflicting perceptions of the district’s obligations to provide Rachel H. 11 with services under the IDEA, and because the nine-month school year did not provide enough 12 time for judicial review, the parties’ disagreement over Rachel H.’s appropriate placement was 13 not moot. Here, the dispute between District and E.G. is similar because it boils down to whether 14 District has the right to conduct an assessment of E.G. (See ECF No. 1 at 2 (“Unless the OAH 15 decision is invalidated by this Court, and the decision of the OAH is corrected, the District will 16 not be able to conduct assessments of minor E.G., which, by law, it is allowed to do.”).) It is this 17 assessment which forms the basis for District’s determination of the appropriate services to 18 provide to E.G. each school year. (See ECF No. 19 at 94 (“The district proposes to assess your 19 child to determine his/her eligibility for special education services . . . .”).) Just because District 20 was granted the right to assess E.G. in a related 2016 matter does not mean that this same dispute 21 about assessing E.G. will not recur in subsequent school years, particularly if E.G.’s parent or if 22 District exercise their right under the IDEA to initiate reevaluation of E.G. on an annual basis. 23 See 20 U.S.C. § 1414(a)(2). As a result, District and E.G.’s inability to agree on the scope of his 24 evaluation is capable of repetition each school year, and due to the relatively short length of that 25 school year, will continue to evade judicial review. See Marcus I., 434 F. App’x at 601 26 (“Individual Education Plans (IEPs) are reviewed annually, providing insufficient time for 27 judicial review, yet often a conflict between a disabled student’s parents and a school district 28 /// 1 regarding proper placement ‘is a continuing one and will arise frequently.’” (quoting Rachel H., 2 14 F.3d at 1403)). 3 Accordingly, the Court finds that the question presented in this case is not rendered moot 4 by the fact that District won the right to conduct an assessment of E.G. in a related case that arose 5 the year after the instant case was filed. 6 B. The OAH Had Jurisdiction to Hear District’s Due Process Complaint 7 After carefully examining the administrative record and the relevant statutory and case 8 law, the Court finds that the OAH relied on an erroneous reading of the Ninth Circuit’s Wyner 9 decision in dismissing District’s due process complaint number 2015080481 prior to an 10 evidentiary hearing. 11 i. The Wyner Decision 12 In Wyner, 223 F.3d at 1027, the Ninth Circuit faced the limited task of determining “the 13 jurisdiction of the California Special Education Hearing Office (SEHO) to hear issues concerning 14 compliance with a final order it had entered.” A student with the surname of Wyner had initiated 15 a due process complaint against his school district before the SEHO, which was a predecessor 16 agency that performed much the same function as the OAH, but the parties entered into a 17 settlement agreement during the due process hearing. Id. The settlement agreement specifically 18 required the district to provide Wyner with five hours per week of specialized tutoring services. 19 Id. Rather than terminating Wyner’s due process complaint on grounds that a settlement 20 agreement had been reached, “[t]he hearing officer ordered the parties to abide by the terms of the 21 settlement.” See id. 22 Wyner initiated a new due process complaint two years later that claimed his school 23 district was failing “to comply with the April 1995 Settlement Agreement as directed by the 24 SEHO order.” Id. at 1028. The Ninth Circuit held that an administrative agency hearing due 25 process complaints brought pursuant to the IDEA only has jurisdiction to hear such complaints 26 when those complaints concern the “enumerated circumstances” set forth in section 56501(a) of 27 the California Education Code, and “[f]ailure to comply with an order emanating from a prior due 28 process hearing is not within the specified jurisdiction.” Id. at 1028–29. Accordingly, the Ninth 1 Circuit upheld the hearing officer’s dismissal of Wyner’s second due process complaint because it 2 was an effort to enforce compliance with a prior final administrative order. Id. at 1029–30. 3 ii. The OAH’s Reliance on Wyner 4 Wyner is the only binding authority cited in the OAH’s written decision dismissing 5 District’s complaint in OAH case number 2015080481. (See ECF No. 19 at 141–42 (discussing 6 Wyner’s holding and applicability to District’s due process complaint).) As the OAH correctly 7 wrote in that dismissal order, “[t]he Wyner court held that ‘the proper avenue to enforce SEHO 8 orders’ was the California Department of Education’s compliance complaint procedure.” (ECF 9 No. 19 at 141–42.) The OAH then reasoned that because District’s due process complaint was 10 essentially a request to enforce the terms of the 2015 settlement agreement, “[p]ursuant to the 11 authority discussed above, OAH does not have jurisdiction to entertain Elk Grove’s claim.” (ECF 12 No. 19 at 142.) This analysis overlooked the fact that the most salient element in the Ninth 13 Circuit’s Wyner analysis was the existence of a prior SEHO order — not the existence of a 14 settlement agreement itself — mandating the parties to comply with their settlement agreement. 15 See Wyner, 223 F.3d at 1030 (endorsing the hearing officer’s reasoning that the prior SEHO order 16 mandating compliance with the parties’ settlement agreement “may not be revisited” before the 17 SEHO because it “was the final administrative determination of that matter by the Hearing 18 Office”); Porter, 307 F.3d at 1074 (“In Wyner we held that California’s SEHO does not have 19 jurisdiction to hear a complaint alleging failure to comply with an order from a prior due process 20 hearing.” (emphasis added)). 21 Here, unlike in Wyner, the record contains no evidence that the OAH ever issued an order 22 directing District and E.G. to comply with the settlement agreement that resolved OAH case 23 number 2015010203. (See ECF No. 19 at 78 (“The Student was in favor of a decision however 24 the order was changed and no decision was released.”).) This fact significantly limits Wyner’s 25 persuasive force in the instant matter. Indeed, other district courts in the Ninth Circuit have 26 emphasized Wyner’s limited applicability in cases like this where no prior administrative order 27 exists. See, e.g., C.T. ex rel. D.T. v. Vacaville Unified Sch. Dist., No. CIV. S-06-197 FCD JFM, 28 2006 WL 2092613, at *6 n.8 (E.D. Cal. July 27, 2006) (“In Wyner, a hearing officer actually 1 issued an order requiring both parties to comply with the settlement agreement. Accordingly, the 2 decision constituted an unappealable ‘final administrative determination.’ Here, however, there is 3 no indication that after defendant VUSD and plaintiff initially entered the Agreement, the hearing 4 judge issued an actual order requiring compliance.”); R.K. ex rel. T.K. v. Hayward Unified Sch. 5 Dist., No. C 06-07836 JSW, 2007 WL 2778702, at *8 (N.D. Cal. Sept. 21, 2007) (“In the absence 6 of a final OAH order regarding enforcement of the settlement, Wymer [sic] is not a jurisdictional 7 bar to the OAH hearing such claims [relating to a settlement agreement].”). Accordingly, since 8 no prior administrative order exists that would bring the instant dispute within Wyner’s ambit, the 9 OAH should not have relied solely on Wyner to dismiss District’s due process complaint number 10 2015080481. 11 iii. California’s Education Code 12 The foregoing is particularly true when viewed in the context of California’s statutory 13 scheme governing IDEA due process disputes. 14 The text of California’s Education Code affords the OAH jurisdiction to hear due process 15 complaints brought by an involved public agency, such as District, where “[t]he parent or 16 guardian refuses to consent to an assessment of the child.” Cal. Educ. Code § 56501(a)(3). E.G. 17 does not identify — nor has the Court found — anything in the statutory text to suggest that 18 section 56501(a)(3) is inapplicable in cases involving settlement agreements. See id. One 19 arguably relevant statutory imperative is contained in section 56501.5(f), which states that parties 20 to an IDEA dispute may execute a legally binding agreement prior to a due process hearing that is 21 enforceable in state and federal court. Id. § 56501.5(f). Another arguably relevant statute is 22 section 56503, which states that parties to an IDEA dispute may still engage in an informal 23 dispute resolution process even if a request for a due process hearing has been filed or has already 24 begun. Id. § 56503.2 25 ///

26 2 A third arguably relevant provision is section 56505(h), which states that a due process hearing is “the final administrative determination and binding on all parties.” Id. § 56505(h). But this section is inapplicable to the 27 instant case because no due process hearing in case number 2015080481 occurred; instead, the OAH dismissed District’s due process complaint prior to the hearing. (ECF No. 20 at 6 (recounting procedural history of due process 28 case number 2015080481).) 1 Each of these arguably relevant statutory provisions encourages settlement of educational 2 disputes. See Cal. Educ. Code § 56508 (expressing the California State Legislature’s intent that 3 parents, public agencies, and others take steps aimed at “resolving differences in a nonadversarial 4 atmosphere with the mutual goal of providing a free appropriate public education for children and 5 youth with disabilities”). But the interpretation of the law proposed by E.G. and adopted by the 6 OAH in its order dismissing case number 2015080481 would actually discourage public agencies 7 and parents alike from settling their disputes. This is because that interpretation would mean that 8 a party entering into a settlement agreement would foreclose the option of pursuing a due process 9 hearing at a later date on any of the topics over which the OAH has jurisdiction, see Cal. Educ. 10 Code § 56501(a), so long as any of those topics were also encompassed by a settlement 11 agreement (see ECF No. 23 at 6 (“OAH does not have jurisdiction to hear due process claims 12 regarding breach of a settlement agreement unless it is alleged that the breach resulted in a denial 13 of a FAPE to Student.”)). It is unlikely that California’s system of adjudicating IDEA disputes 14 would encourage informal dispute resolution, but at the same time contain an implied limitation 15 on procedural safeguards for parties who do settle their disputes. See Cal. Educ. Code § 56508. 16 The OAH decision, however, effectively imported such a limitation into section 17 56501(a)(3) because that order focused almost entirely on the terms of the settlement agreement, 18 without exploring whether or why that settlement agreement rendered inapplicable the plain terms 19 of the California Education Code. (See, e.g., ECF No. 1-1 at 2 (discussing the “terms of the 20 settlement agreement [that] call for Elk Grove to conduct assessments pursuant to an assessment 21 plan” and stating that “[t]hese terms form the basis for Elk Grove’s claims against Student in their 22 complaint”).)3 Under those plain terms, the OAH has jurisdiction to hear due process complaints 23

24 3 The Court acknowledges that District, at best, only obliquely called the OAH’s attention to the interplay between the OAH’s statutory jurisdiction and the terms of the 2015 settlement agreement. (See ECF No. 19 at 119 25 (arguing that District’s requested assessments of E.G. “are required to provide District with information that is necessary to develop an appropriate educational offer for Student”), 133 (arguing that E.G.’s motion to dismiss was “not seeking to dismiss issues that are facially outside of OAH’s jurisdiction” and that the main factual dispute 26 centered around whether “District has had the ability to complete the assessment/observations which require Student’s presence at school”).) Nonetheless, because Wyner was so heavily relied on by the OAH and because 27 Student’s motion to dismiss OAH case number 2015080481 directed the OAH’s attention to section 56501(a) of the California Education Code, the Court’s holding is based on issues that were raised and should have been more fully 28 considered below. (See ECF No. 19 at 87 (citing “Ed. Code, § 56501, subd. (a)”).) 1 brought by an involved public agency where a parent refuses to make its child available for an 2 assessment, without reference to whether there is a settlement agreement that contemplates an 3 assessment plan. Cal. Educ. Code § 56501(a)(3) (“[T]he public agency involved may initiate the 4 due process hearing procedures prescribed by this chapter under any of the following 5 circumstances: . . . (3) The parent or guardian refuses to consent to an assessment of the child.”); 6 see also Fresno Unified Sch. Dist. v. K.U., No. 1:12-CV-01699-MJS, 2014 WL 3839796, at *14 7 (E.D. Cal. July 30, 2014) (noting that “a parent’s refusal to consent to an assessment is grounds 8 for seeking a due process hearing under California law”). The OAH decision’s primary focus on 9 the fact that a settlement agreement existed was erroneous because it failed to address a statute 10 which, on its face, is silent about the effect of such a settlement agreement on its otherwise 11 unequivocal grant of jurisdiction to the OAH to hear due process disputes predicated on a parent’s 12 refusal to consent to a child’s assessment. 13 Accordingly, the Court must conclude that the OAH’s determination that it did not have 14 jurisdiction over a dispute involving parental refusal to consent to assessment is not supported by 15 the record. See M.C., 858 F.3d at 1194 n.1 (noting that on appeal from a decision issued by the 16 OAH, “the district judge must actually examine the record to determine whether it supports the 17 [OAH’s] opinion”). 18 IV. CONCLUSION 19 The OAH has jurisdiction to hear due process complaints arising from circumstances 20 where a “parent or guardian refuses to consent to an assessment of the child.” Cal. Educ. Code § 21 56501(a)(3). This is the nature of the dispute in the instant case. (See ECF No. 23 at 5 (“The 22 dispute that led to the OAH case was whether the District could conduct the assessments without 23 parental consent because it alleged E.G.’s mother was not making the child available for the 24 assessment as provided in the Agreement.”).) 25 For the foregoing reasons, District’s motion for summary judgment (ECF No. 20) is 26 GRANTED and E.G.’s motion for summary judgment (ECF No. 23) is DENIED. 27 /// 28 /// 1 IT IS SO ORDERED. 2 Dated: September 11, 2019 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28