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R.P.-K., Through His Parent C.K., et al v. Department of Education

September 19, 2011


The opinion of the court was delivered by: David Alan Ezra United States District Judge


On September 12, 2011, the Court heard Plaintiffs' Motion for Summary Judgment, Defendant's Motion to Dismiss, or in the alternative, for Summary Judgment ("Defendant's Motion"), and Plaintiffs' Renewed Motion for a Preliminary Injunction ("Plaintiffs' Injunction Motion"). Jason H. Kim, Esq., Matthew C. Basset, Esq., and Lou Erteschik, Esq., appeared at the hearing on behalf of Plaintiffs; Deputy Attorney General Carter K. Siu appeared at the hearing on behalf of Defendant Department of Education ("Defendant" or "DOE"). After reviewing the motions as well as the supporting and opposing memoranda, the Court: DENIES WITHOUT PREJUDICE Plaintiffs' Motion for Summary Judgment (Doc. # 57); GRANTS IN PART AND DENIES IN PART WITHOUT PREJUDICE Defendant's Motion to Dismiss, or in the alternative, for Summary Judgment (Doc. # 60); and DENIES WITHOUT PREJUDICE Plaintiffs' Motion for a Preliminary Injunction (Doc. # 59).


The named Plaintiffs in this case-excluding Plaintiff Hawaii Disability Rights Center ("HDRC")-are disabled individuals who are or had been eligible for special education under the Individuals with Disabilities Education Act ("IDEA"). In this litigation Plaintiffs are challenging the validity of Act 163 of the Session Laws of Hawaii for 2010 ("Act 163"), arguing it is an invalid attempt at circumventing this Court's holdings in B.T. v. Dep't of Educ., 637 F. Supp. 2d 856 (D. Haw. 2009), B.T. v. Dep't of Educ., 2009 WL 4884447 (D. Haw. Dec. 17, 2009) (hereinafter "B.T. II"), and B.T. v. Dep't of Educ., 2008 WL 3891867 (D. Haw. Aug. 21, 2008) (hereinafter "B.T. III") and therefore violates the IDEA. Plaintiffs also allege violations of Title II of the Americans with Disabilities Act ("ADA") as well as Section 504 of the Rehabilitation Act ("Rehab Act"). Finally, Plaintiffs contend that principles of judicial estoppel should preclude Defendant from denying Plaintiffs a special education per the IDEA.

I. B.T. and Act 163

The IDEA requires each state to provide a free appropriate public education ("FAPE") to "all children with disabilities . . . between the ages of 3 and 21, inclusive . . . ." 20 U.S.C. § 1412(a). This Court determined that federal eligibility for special education and related services therefore ends on a student's twenty-second birthday. B.T. I, 637 F. Supp. 2d at 863--64 n.9. States, however, may impose different age restrictions provided those same limitations are applied broadly to general education students as well. 20 U.S.C. § 1412(a)(1)(B) ("The obligation to make [FAPE] available to all children with disabilities does not apply with respect to children . . . aged 3 through 5 and 18 through 21 in a State to the extent that its application to those children would be inconsistent with State law or practice . . . ."); see also B.T. I, 637 F. Supp. 2d at 863 ("The State is only allowed to deviate from the requirements of the IDEA if there is a clear State law that says otherwise.").

In B.T., Plaintiff B.T. was a severely autistic twenty-year-old. B.T. I, 637 F. Supp. 2d at 859. He argued that extending a FAPE to the age of twenty-two was consistent with Hawaii law and that the DOE's policy of terminating special education services at the age of twenty was invalid given the practice of the state of Hawaii. See id. at 862--65. The Court agreed. Specifically, the Court focused on the "nature of the practice of Hawaii's schools toward students 20 years or older" and found that "Defendant has approved every single overage general education student and barred almost every single overage special education student." Id. at 865. Accordingly, "Hawaii [had denied] these students a meaningful education" and violated the IDEA and Rehab Act. Id. at 865--66. Hawaii therefore was "enjoined from implementing a per se rule denying special education services based solely on [the students] attaining the age of 20." Id. at 866. The Court subsequently granted summary judgment, in part, for Plaintiff B.T. B.T. II, 2009 WL 4884447, at *9. The state of Hawaii did not appeal this Court's ruling.

Since then, however, Hawaii has passed Act 163 which amended Haw. Rev. Stat § 302A-1134(c) to impose a twenty year age limit on all admissions to public high school. See Haw. Rev. Stat. § 302A-1134(c). Specifically, the statute states:

No person who is twenty years of age or over on the first instructional day of the school year shall be eligible to attend a public school. If a person reaches twenty years of age after the first instructional day of the school year, the person shall be eligible to attend public school for the full school year.

Id. Plaintiffs assert that while Act 163 imposes an age limit of twenty for attendance at a public school, the DOE continues to provide a public education to students over the age of twenty through the CB (competency-based) and GED (General Education Development) high school equivalency programs (collectively "adult education programs"). A special education student, according to Plaintiffs, cannot therefore be denied a FAPE on the grounds that he or she has "aged-out" of IDEA eligibility per Act 163 because general education students may continue their studies in these adult education programs.

II. Procedural History

On July 17, 2010, Plaintiffs filed their Class Action Complaint for Declaratory and Injunctive Relief. ("Compl.," Doc. # 1.) On September 24, 2010, Plaintiffs filed a Motion to Certify Class. (Doc. # 15.) On March 15, 2011, the Court issued an Order Granting in Part and Denying in Part Plaintiffs' Motion for Class Certification.*fn1 (Doc. # 31.) On June 23, 2011, the Plaintiffs filed a Motion for Preliminary Injunction. (Doc. # 44.) On July 12, 2011, the Court denied Plaintiffs' Motion for a Preliminary Injunction without prejudice ("July Order"). ("July Order," Doc. # 53.) In its July Order the Court held that in order to prevail:

Plaintiffs must demonstrate that the DOE uses Act 163 as a means of denying special education students a FAPE beyond the age of twenty while simultaneously ushering general education students of the same age into adult education programs to complete their secondary education. (Id. at 7.) The Court went on to deny the Motion for Preliminary Injunction finding that

While Plaintiffs have demonstrated that Act 163 is used to deny special education students a FAPE beyond the age of twenty, there is no evidence yet on the record to suggest that the DOE has adopted a practice whereby general education students of the same age are allowed to continue their secondary education in adult education programs with regularity. See B.T., 637 F. Supp. 2d at 865--66 (focusing on the "nature of the practice of Hawaii's schools towards students 20 years or older" and finding that "Defendant has approved every single overage general education student and barred almost every single overage special education student"). Without this evidence, the Court cannot conclude that Plaintiffs have satisfied their heavy burden with respect to their Motion for a Preliminary Injunction. Specifically, Plaintiffs have not demonstrated a likelihood of success on the merits. (Id. at 8--9.) The Court, however, invited Plaintiffs to refile the Motion for Preliminary Injunction once further discovery had taken place. (Id. at 9.)

On August 1, 2011, Plaintiffs filed their Motion for Summary Judgment. ("Ps' Mot.," Doc. # 57.) Plaintiffs also filed a Renewed Motion for Preliminary Injunction. ("Ps' Injunction Mot.," Doc. # 59.) Also on August 1, 2011, Defendant filed its Motion. ("D's Mot.," Doc. # 60.)

On August 22, 2011, Plaintiffs filed their Opposition to Defendant's Motion. ("Ps' Opp'n," Doc. # 63.) The same day, Defendant filed its Opposition to Plaintiffs' Motion for Summary Judgment. ("D's Opp'n," Doc. # 65.) Defendant also filed an Opposition to Plaintiffs' Injunction Motion. ("D's Injunction Opp'n," Doc. # 67.) On August 29, 2011, Defendant filed its Reply in support of its Motion. ("D's Reply," Doc. # 69.) The same day, Plaintiffs filed a consolidated Reply in support of both their Motion for Summary Judgment as well as their Injunction Motion. ("Ps' Reply," Doc. # 71.)


I. Motion for Summary Judgment

Federal Rule of Civil Procedure ("Rule") 56 requires summary judgment to be granted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Porter v. Cal. Dep't of Corr., 419 F.3d 885, 891 (9th Cir. 2005); Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). A main purpose of summary judgment is to dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323--24 (1986).

Summary judgment must be granted against a party that fails to demonstrate facts to establish what will be an essential element at trial. See id. at 323. Before granting summary judgment, however, a non-moving party must have a "'full and fair opportunity to ventilate the issues [related to] the . . . claims.'" Norse v. City of Santa Cruz, 629 F.3d 966, 972--73 (9th Cir. 2010) (quoting Greene v. Solano Cnty. Jail, 513 F.3d 982, 990 (9th Cir. 2008)).

A moving party without the ultimate burden of persuasion at trial-usually, but not always, the defendant-has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). The burden initially falls upon the moving party to identify for the court those "portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp., 477 U.S. at 323). This assertion must be supported by citations "to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, . . . admissions, interrogatory answers, or other materials," or by demonstrating "that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c).

Once the moving party has carried its burden under Rule 56, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial" and may not rely on the mere allegations in the pleadings. Porter, 419 F.3d at 891 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)). In setting forth "specific facts," the nonmoving party may not meet its burden on a summary judgment motion by making general references to evidence without page or line numbers. S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003); Local Rule 56.1(f) ("When resolving motions for summary judgment, the court shall have no independent duty to search and consider any part of the court record not otherwise referenced in the separate concise statements of the parties."). "[A]t least some 'significant probative evidence'" must be produced. T.W. Elec. Serv., 809 F.2d at 630 (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290 (1968)). "A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact." Addisu, 198 F.3d at 1134. Further, the Ninth Circuit has "refused to find a 'genuine issue' where the only evidence presented is 'uncorroborated and self-serving' testimony." Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (citing Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996)). "Conclusory allegations unsupported by factual data cannot defeat summary judgment." Rivera v. Nat'l R.R. Passenger Corp., 331 F.3d 1074, 1078 (9th Cir. 2003). If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact, a court may either give the party an opportunity to support or address the fact, consider the fact undisputed for purposes of the motion and grant or deny summary judgment accordingly, or issue any other appropriate order. Fed. R. Civ. P. 56(e).

When "direct evidence" produced by the moving party conflicts with "direct evidence" produced by the party opposing summary judgment, "the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact." T.W. Elec. Serv., 809 F.2d at 631. In other words, evidence and inferences must be construed in the light most favorable to the nonmoving party. Porter, 419 F.3d at 891. The court does not make credibility determinations or weigh conflicting evidence at the summary judgment stage. Id.; see also Nelson v. City of Davis, 571 F.3d 924 (9th Cir. 2009) ("[C]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.") (citations omitted). However, inferences may be drawn from underlying facts not in dispute, as well as from disputed facts that the judge is required to resolve in favor of the nonmoving party. T.W. Elec. Serv., 809 F.2d at 631.

II. Motion to Dismiss

A motion to dismiss under Rule 12(b)(6) "tests the legal sufficiency of a claim." Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A complaint may be dismissed as a matter of law for two reasons: (1) lack of a cognizable legal theory or (2) insufficient facts alleged to support a cognizable theory. Id. (citing Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). Because a Rule 12(b)(6) motion to dismiss focuses on the sufficiency of a claim statement, review is generally limited to the face of the complaint. Lee v. City of Los Angeles, 250 F .3d 668, 688 (9th Cir. 2001) (citation omitted); Clegg v. Cult Awareness Network, 18 F.3d 752, 754 (9th Cir. 1994) (citations omitted). The Court must accept all allegations of material fact as true and construe them in a light most favorable to the nonmoving party. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). The Court, however, need not accept as true conclusory allegations of law, unwarranted deductions of fact, and unreasonable inferences. Id.

As to a plaintiff's pleading burden, the Supreme Court has held that while a complaint "does not require 'detailed factual allegations,' . . . it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Thus, to survive a Rule 12(b)(6) motion to dismiss, a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Id. at 570. A claim is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556). If a court dismisses the complaint or portions thereof, it must consider whether to grant leave to amend. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (finding that leave to amend should be granted "if it appears at all possible that the plaintiff can correct the defect" (quotations and citations omitted)).

III. Preliminary Injunction

"[I]njunctive relief is an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 376 (2008). To obtain a preliminary injunction, the moving party must demonstrate "that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Id. at 365 (citing Munaf v. Geren, 128 S. Ct. 2207, 2218--19 (2008); Amoco Prod. Co. v. Gambell, 480 U.S. 531, 542 (1987); Weinberger v. Romero-Barcelo, 456 U.S. 305, 311--12 (1982)); see also Stormans, Inc. v. Selecky, 586 F.3d. 1109, 1126--27 (9th Cir. 2009) (applying heightened standard mandated by Winter). "'[S]erious questions going to the merits' and a hardship balance that tips sharply towards the plaintiff can [also] support issuance of an injunction, so long as the plaintiff also shows a likelihood of irreparable injury and that the injunction is in the public interest." Alliance for Wild Rockies v. Cottrell, 622 F.3d 1045, 1053 (9th Cir. 2010). A district court has great discretion in determining whether to grant or to deny a temporary restraining order or a preliminary injunction. See Wildwest Inst. v. Bull, 472 F.3d 587, 589--90 (9th Cir. 2006); see also Lopez v. Heckler, 713 F.2d 1432, 1435 (9th Cir. 1983) ("At one end of the continuum, the moving party is required to show both a probability of success on the merits and the possibility of irreparable injury. At the other end of the continuum, the moving party must demonstrate that serious legal questions are raised and that the balance of hardships tips sharply in its favor.") (internal citations omitted).


Plaintiffs' Motion for Summary Judgment addresses only the first count of the Complaint. (Ps' Mot. at 1.) Similarly, Plaintiffs' Injunction Motion "addresses only Plaintiffs' likelihood of success on their IDEA claims" and does not address the other counts of the Complaint. (Ps' Injunction Mot. at 13 ...

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