United States District Court, E.D. Washington
AMENDED FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
F. SHEA, SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on remand from the Court of
Appeals for the Ninth Circuit. On November 13, 2014, this
Court issued its Findings of Fact, Conclusions of Law, and
Order and directed the Clerk's Office to enter judgment
for Defendant Spokane School District. ECF No. 116. On
appeal, the Court of Appeals affirmed in part, reversed in
part, and remanded to the Court for additional proceedings on
two of the Avilas' substantive claims. See ECF
Nos. 130 & 131. Specifically, the Ninth Circuit
instructed the Court to make findings as to when the Avilas
“knew or should have known about the alleged action[s]
that form the basis” of their complaint and to apply
its articulation of the relevant statute of limitations.
See ECF No. 131 at 19 (quoting 20 U.S.C. §
Court has fully considered the issues and legal authority
presented by the parties, the testimony of the witnesses, the
admitted exhibits, the arguments of both parties, the
parties' briefs, the parties' proposed findings of
fact and conclusion of law, the Administrative Record in
Special Education Cause No. 2010-SE-0040, the Administrative
Record in Special Education Cause No. 2010-SE-0044, and the
Administrative Record on remand Cause Nos. 2010-SE-0040R and
out below, the Court amends its prior Order, ECF No. 116, but
nonetheless holds that the Avilas' remaining claims are
barred by the IDEA's statute of
limitations. See 20 U.S.C. §
1415(f)(3)(C). Accordingly, the claims are dismissed with
prejudice, and the Clerk's Office is directed to enter
judgment for the Spokane School District.
Miguel and Barbara Avila (the Avilas) are the parents of
G.A., a special-education student at an elementary school
within the Spokane School District. On January 28, 2010, the
District informed the Avilas that the District proposed to
initiate a reevaluation of G.A.'s continued need for
special-education services. During February and March 2010,
the District conducted its reevaluation of G.A., completing
it in April 2010. The Avilas were unhappy with the
District's evaluation of G.A., and on April 19, 2010,
they requested an independent educational evaluation (IEE) of
G.A. at the District's expense. On May 3, 2010, pursuant
to WAC 392-172A-05005(2)(c)(i), the District refused the
Avilas' request and initiated a due process hearing with
the Washington State Office of the Superintendent of Public
Instruction (OSPI) to show that its evaluation was
sufficient. The state Office of Administrative Hearings (OAH)
assigned Cause No. 2010-SE-0044 to the District's due
process request, and the matter was promptly assigned to
Administrative Law Judge (ALJ) David G. Hansen. Separately,
on April 26, 2010, the Avilas also filed a request for a due
process hearing with the OSPI, the OAH assigned Cause No.
2010-SE-0040 to the due process request, and the matter was
assigned to ALJ Hansen.
2, 2010, by agreement of the parties, ALJ Hansen consolidated
both due process hearings. On July 19, 2010, the first day of
the consolidated hearing, the Avilas began asserting what
they perceived to be procedural violations of the Individuals
with Disabilities Education Act (IDEA), primarily in the form
of the District failing to provide Prior Written Notice
(PWN). However, the Avilas had not specifically raised PWN as
an issue at the prehearing conference, mistakenly believing
that generally asserting the District violated the IDEA was
sufficient to put the District on notice of alleged PWN
violations. The ALJ found that the Avilas had not
sufficiently advised the Court or the District of the alleged
PWN violations and accordingly severed the Avilas' due
process claims for a separate hearing.
20 and 21, 2010, the due process hearing resumed solely
regarding the 2010 evaluation of G.A. and whether an IEE was
required at the District's expense. On August 25, 2010,
in Cause No. 2010-SE-0044, ALJ Hansen issued his Findings of
Fact, Conclusions of Law, and Order, holding that the
District's “reevaluation of [G.A.] was appropriate
and that [the Avilas] are not entitled to an [IEE] at the
District's expense.” AR44 at 27.
subsequent due process hearing in Cause No. 2010-SE-0040 took
place from October 25, 2010, through October 29, 2010, and
from November 16, 2010, through November 18, 2010. On
February 1, 2011, ALJ Hansen issued his Findings of Fact,
Conclusions of Law, and Order, in which he made the following
conclusions: (1) the Avilas' claims lacked merit; (2) the
statute of limitations barred any allegation arising before
April 26, 2008; (3) the District had not violated the IDEA;
and (4) G.A. had not been denied a free appropriate public
education (FAPE). See AR40 at 46-79.
November 19, 2010, the Avilas appealed the decision in OAH
Cause No. 2010-SE-0044. The appeal was assigned to Cause No.
CV-10-00408-EFS. Separately, on April 27, 2011, they appealed
the decision in OAH Cause No. 2010-SE-0040, which was
assigned Cause No. CV-11-00165-EFS. On June 7, 2011, this
Court consolidated both cases under Cause No. CV-10-0408-EFS.
On December 5, 2011, the Avilas filed an Amended Complaint
addressing both appeals.
March 14, 2013, the Court issued a limited remand of the case
to ALJ Hansen to consider the Avilas' new evaluation of
G.A. and their post-hearing brief, which had not been
included in the administrative record. On May 24, 2014, ALJ
Hansen issues a new Findings of Facts, Conclusion of Law, and
Order addressing the remand. In OAH Cause No.
2010-SE-0040R ALJ Hansen found that the post-hearing
brief would have been submitted to him and therefore he must
have reviewed the brief in reaching his findings.
Accordingly, he did not hold a new hearing on that matter.
However, in OAH Cause No. 2010-SE-0044R, ALJ Hansen conducted
an in-person hearing on May 17, 2013, to consider new
evidence and take additional testimony. Still, the ALJ found
the March 7, 2012 assessment had no bearing on, nor affected
the appropriateness of, the District's April 28, 2010
19, 2014, the consolidated cases came back to this Court for
an evidentiary hearing and final arguments. ECF No. 115. The
following witnesses testified in open court: Barbara Avila,
Cori Valley, Barbara Tomkins, Paul Fawcett, and Nicole
Herzog. On November 13, 2014, the Court issued its Findings
of Fact, Conclusions of Law, and Order, dismissing the
Avilas' claims. ECF No. 116.
Avilas appealed, and the Court of Appeals for the Ninth
Circuit affirmed this Court's decision in part and
reversed it in part. See ECF Nos. 130 & 131.
Specifically, it affirmed this Court's conclusion that
the District's 2010 reevaluation of G.A. was appropriate
and did not merit an independent educational evaluation at
the District's expense. See ECF No. 130 at 2. It
reversed this Court's application of the IDEA's
statute of limitations and subsequent conclusion that the
Avilas' pre-April 2008 claims were time-barred. ECF No.
131 at 5. The Court of Appeals further clarified that the
two-year statute of limitations is governed by the
“discovery rule.” See ECF No. 131 at 18.
On remand, it instructed the Court to make findings as to
when the Avilas “knew or should have known” about
the alleged actions underlying their claim and apply the
statute of limitations accordingly. See ECF No. 131
at 19; 20 U.S.C. § 1415(f)(3)(C).
the Avilas seemingly wish to reassert many of their prior
claims, the Court of Appeals expressly characterized the
Avilas' surviving claims as follows: (1) that the
District allegedly denied G.A. a FAPE by failing to identify
him as a child with a disability in 2006; and (2) that the
District allegedly denied him a FAPE by failing to assess his
suspected disability in 2006 and 2007. ECF No. 131 at
Findings of Fact
Court makes the following findings of fact:
1. Plaintiffs Miguel and Barbara Avila are
the parents of G.A., a special-education student at an
elementary school within the Spokane School District.
2. On October 10, 2006, the District
received a referral for special-education evaluation from the
Avilas, in which the reason for referral was marked
“Behavior.” AR40 at 671. As the document shows,
this initial evaluation was initiated by the Avilas, not the
3. In response, on October 12, 2006, the
District mailed the Avilas a “Permission for Evaluation
(Preschool)” form. AR40 at 669. This form stated that
G.A. may be eligible for special-education services and
requested the Avilas' permission to conduct an evaluation
of G.A., which they signed in November of 2006, consenting to
4. The initial evaluation was completed by
Nicole Herzog, School Psychologist, on December 12, 2006,
finding G.A. was not eligible for special-education services.
AR40 at 674-80. This evaluation was provided to the Avilas on
January 3, 2007. AR40 at 673. On the same day, Barbara Avila
signed the “Special Education Eligibility
Determination” noting she was in agreement with the
findings. AR40 at 672.
5. As of October 24, 2007, G.A. was not
receiving special-education services under the IDEA but was
instead receiving education services under Section 504 of the
Americans with Disabilities Act.
6. As of October 2007, Dr. Kristi Rice
diagnosed G.A. with Asperger's Syndrome. AR40 at 706. On
December 12, 2007, the Avilas completed a “Child Find
Referral, ” requesting the District conduct a
special-education evaluation of G.A. AR40 at 701. On December
17, 2007, the Avilas again signed a “Permission For
Evaluation” consenting to the District conducting
another evaluation to determine G.A.'s eligibility for
educational assistance. AR40 at 705. On April 14, 2008, Elisa
Ferraro, School Psychologist, issued an initial evaluation of
G.A., finding he qualified for special-education under the
eligibility category of Autism. AR40 at 681-91. On April 25,
2008, an Individualized Education Program (IEP) Team meeting
was held and Barbara Avila signed a “Special Education
Eligibility Determination” agreeing to the
evaluation's recommendation of providing special
designated instruction to improve written language skills and
to improve social and behavior skills. AR40 at 693, 2052.
7. In advance of the April 25, 2008 meeting,
the District provided a document labeled “Prior Written
Notice, ” which informed the Avilas that the District
was proposing to initiate an educational placement for
special-education services and would replace the 504 Plan.
AR40 at 1941. This notice included a description of the
action proposed; an explanation of why the District proposed
the action; a description of each evaluation procedure, test,
record, and report used as the basis for the action; a
description of the options considered and rejected; and why
that option was rejected. AR40 at 1941.
8. Also starting in October 2007, G.A. was
on a Behavior Intervention Plan. AR40 at 832. During December
2007, the Avilas participated in the preparation of a Section
504 Student Accommodation Plan and agreed to the Student
Accommodation Plan, which aimed to accommodate G.A.'s
Asperger's Syndrome and was later amended to include
G.A.'s Anxiety Disorder. AR40 at 829-30. The Avilas were
then informed of their and G.A.'s rights under the 504
Plan. AR40 at 831.
9. During May 2008, part of the 504 Plan
included aversive therapy, which was removed at the
Avilas' request and replaced by a time-out procedure.
AR40 at 834.
10. After the April 25, 2008 IEP team
meeting, five subsequent meetings between the Avilas and the
IEP team occurred on the following dates: May 22, 2008;
October 7, 2008; October 9, 2008; November 17, 2008; and
December 2, 2008. After the May 22, 2008 meeting, the Avilas
elected to review the IEP before deciding whether to sign it.
AR40 at 1943. After the subsequent meetings between October
7, 2008, and November 17, 2008, the Avilas did not sign the
IEP. AR40 at 1950-70. As of December 4, 2008, they still had
not approved the IEP. AR40 at 1971.
11. By December 2008, the District
determined G.A. was eligible for special-education services
under the IDEA and an appropriate IEP was developed, placing
G.A. in the District's ADAPT program. Accordingly, G.A.
was no longer eligible for the 504 Plan. The District's
December 9, 2008 letter to the Avilas advised them that the
504 Plan was being terminated and replaced with the IEP. AR40
12. Between December 2008 and February 2009,
the Avilas and the District met and corresponded, continuing
to discuss possible mediation of their disagreements on the
IEP as well as the available options for providing an
education to G.A. AR40 at 1077-82.
13. On January 20, 2009, the District
provided a “Prior Written Notice, ” advising the
Avilas of the District's refusal to initiate an IEE
because it believed the earlier April 2008 evaluation was
sufficient. AR40 at 1982.
14. In February 2009, the Avilas requested
that G.A. be provided an Instructional Assistant (IA) on a
one-on-one basis. On February 3, 2009, the IEP team met,
discussing the ADAPT program and the Avilas' request for
a one-on-one IA. On February 5, 2009, the District provided
both a letter, AR40 at 1984, and a Prior Written Notice, AR40
at 1985, advising the Avilas that the District was refusing
to provide a one-on-one IA, explaining an IA was already
provided as part of the ADAPT program and would meet
G.A.'s educational needs.
15. The record shows that in early February
2009, the Avilas agreed to the IEP, and G.A. began attending
the ADAPT program. AR40 at 788-92; 1151.
16. The ADAPT program was specifically
designed by the District for students with Asperger's
17. As of September 29, 2009, the record
shows G.A. “had a very successful year in the program
last year by all accounts from staff and school
reports.” AR40 at 1090.
18. From 2007 through 2009, G.A. had
numerous behavior problems, some of which resulted in removal
or suspension. At no time did the suspensions amount to ten
or more days. AR40 at 850; 1987-91.
19. In the fall of 2009, G.A. was suspended
on at least two occasions, over the Avilas' appeals. AR40
20. On November 20, 2009, the Avilas made a
request for a Manifestation Determination meeting. On
November 25, 2009, the District sent them a document titled
“Prior Written Notice, ” indicating that the
District was refusing to initiate a Manifestation
Determination meeting, and explaining that one was not
required because G.A. had not been suspended over ten days.
AR40 at 2004.
21. On January 28, 2010, the District
informed the Avilas in another document titled “Prior
Written Notice” that the District was proposing to
initiate a reevaluation of G.A. AR44 at 415. The notice
described the District's proposed action, the reason for
proposing the action, a description of other options
considered and rejected, the reasons for rejecting those
options, and a description of each evaluation procedure,
test, record, or report the District used or planned to use.
AR44 at 415.
22. On January 28, 2010, the IEP Team,
including the Avilas, completed a “Review for
Reevaluation, ” giving permission for the District to
conduct a reevaluation of G.A. to determine if he would
continue to need special-education and related services in
the goal areas of writing skills, behavior, and social
skills. AR44 at 414.
23. During February and March 2010, the
District conducted a reevaluation of G.A. When changes in the
proposed evaluation were suggested by the District, the
District provided the Avilas a “Prior Written
Notice.” AR40 at 2008.
24. In early February 2010, the Avilas
requested G.A. be tested in areas of executive functioning,
dyslexia, dysgraphia, visual processing, auditory processing,
sequential processing, processing speed, and conceptual
processing. On April 12, 2010, the District advised the
Avilas in a “Prior Written Notice” that the
District was refusing to initiate their requested testing
because the District's April 2010 evaluation results