IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAIʻI

Transcription

1 Case 1:10-cv SOM-KSC Document 361 Filed 04/12/16 Page 1 of 24 PageID #: 6550 DOUGLAS S. CHIN 6465 Attorney General, State of Hawaiʻi CARTER K. SIU 7313 RYAN W. ROYLO 6329 HOLLY T. SHIKADA 4017 Deputy Attorneys General 235 S. Beretania Street, Room 304 Honolulu, Hawaiʻi Tel. (808) Fax (808) Carter.K.Siu@hawaii.gov Attorneys for Defendant DEPARTMENT OF EDUCATION, State of Hawaiʻi IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAIʻI E.R.K., by his legal guardian R.K., et. al, vs. Plaintiffs, DEPARTMENT OF EDUCATION, State of Hawaiʻi, Defendant. CIVIL NO SOM-KSC DEFENDANT S MEMORANDUM IN OPPOSITION TO [331] PLAINTIFFS MOTION FOR ORDER (1) HOLDING DEFENDANT DEPARTMENT OF EDUCATION IN CIVIL CONTEMPT FOR VIOLATION OF THE [187] ORDER FOR AWARD OF COMPENSATORY EDUCATION ENTERED ON AUGUST 22, 2014, (2) IMPOSING CIVIL SANCTIONS, INCLUDING APPOINTMENT OF SPECIAL MASTER; EXHIBITS A G; CERTIFICATE OF SERVICE _1.DOC

2 Case 1:10-cv SOM-KSC Document 361 Filed 04/12/16 Page 2 of 24 PageID #: 6551 Hearing: Date: May 3, 2016 Time: 10:30 a.m. Judge: Hon. Susan Oki Mollway DEFENDANT S MEMORANDUM IN OPPOSITION TO [331] PLAINTIFFS MOTION FOR ORDER (1) HOLDING DEFENDANT DEPARTMENT OF EDUCATION IN CIVIL CONTEMPT FOR VIOLATION OF THE [187] ORDER FOR AWARD OF COMPENSATORY EDUCATION ENTERED ON AUGUST 22, 2014, (2) IMPOSING CIVIL SANCTIONS, INCLUDING APPOINTMENT OF SPECIAL MASTER _1.DOC 2

3 Case 1:10-cv SOM-KSC Document 361 Filed 04/12/16 Page 3 of 24 PageID #: 6552 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAIʻI E.R.K., by his legal guardian R.K., et. al, Plaintiffs, CIVIL NO SOM-KSC TABLE OF CONTENTS vs. DEPARTMENT OF EDUCATION, State of Hawaiʻi, Defendant. TABLE OF CONTENTS TABLE OF AUTHORITIES iii I. INTRODUCTION 2 II. RELEVANT PROCEDURAL HISTORY 3 III. DISCUSSION 4 A. THERE IS NO CIVIL CONTEMPT 4 B. STANDING IS AT ISSUE FOR EACH AND EVERY POTENTIAL CLASS MEMBER 7 C. SHRINKING THE CLASS IS NOT THE OBJECTIVE, BUT THE RESULT OF FACTS APPLIED TO LAW _1.DOC i

4 Case 1:10-cv SOM-KSC Document 361 Filed 04/12/16 Page 4 of 24 PageID #: 6553 D. PLAINTIFFS ADMIT THAT THEY DO NOT WANT TO SHARE INFORMATION 10 E. THE DEPARTMENT COMPLIED WITH THE COURT S ORDER COSTS 13 F. ALLOCATED TO FUND LITIGATION 14 G. PLAINTIFFS HAVE VIOLATED THE SPIRIT OF THIS COURT S 8/22/14 ORDER 14 H. PLAINTIFFS REQUEST FOR THE APPOINTMENT OF A SPECIAL MASTER WAS DENIED AND THAT ORDER WAS NOT APPEALED 16 IV. CONCLUSION _1.DOC ii

5 Case 1:10-cv SOM-KSC Document 361 Filed 04/12/16 Page 5 of 24 PageID #: 6554 TABLE OF AUTHORITIES Federal Cases Page(s) Lujan v. Defenders of Wildlife, 504 U.S. 555, , 112 S. Ct. 2130, 2136 (1992)...8 McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482, (7th Cir. 2012) OneWest Bank, FSB v. Farrar, 2014 WL , at *3 (D. Haw. Feb. 18, 2014)... 4, 6 Parents of Student W. v. Puyallup School Dist. No. 3, 31 F.2d 1489 (9th Cir. 1994)...8 Phillips ex rel. T.P. v. District of Columbia, 932 F.Supp.2d 42, 50 (D.D.C. 2013)...9 Reid ex rel. Reid v. D.C., 401 F.3d 516, 524 (D.C. Cir. 2005)...8 T.B. ex rel. Brenneise v. San Diego Unified School Dist., 2011 WL at *3 (S.D. Cal. March 30, 2011) _1.DOC iii

6 Case 1:10-cv SOM-KSC Document 361 Filed 04/12/16 Page 6 of 24 PageID #: 6555 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAIʻI E.R.K., by his legal guardian R.K., et. al, vs. Plaintiffs, DEPARTMENT OF EDUCATION, State of Hawaiʻi, Defendant. CIVIL NO SOM-KSC DEFENDANT S MEMORANDUM IN OPPOSITION TO [331] PLAINTIFFS MOTION FOR ORDER (1) HOLDING DEFENDANT DEPARTMENT OF EDUCATION IN CIVIL CONTEMPT FOR VIOLATION OF THE [187] ORDER FOR AWARD OF COMPENSATORY EDUCATION ENTERED ON AUGUST 22, 2014, (2) IMPOSING CIVIL SANCTIONS, INCLUDING APPOINTMENT OF SPECIAL MASTER; EXHIBITS A G; CERTIFICATE OF SERVICE Hearing: Date: May 3, 2016 Time: 10:30 a.m. Judge: Hon. Susan Oki Mollway DEFENDANT S MEMORANDUM IN OPPOSITION TO [331] PLAINTIFFS MOTION FOR ORDER (1) HOLDING DEFENDANT DEPARTMENT OF EDUCATION IN CIVIL CONTEMPT FOR VIOLATION OF THE [187] ORDER FOR AWARD OF COMPENSATORY EDUCATION ENTERED ON AUGUST 22, 2014, (2) IMPOSING CIVIL SANCTIONS, INCLUDING APPOINTMENT OF SPECIAL MASTER _1.DOC

7 Case 1:10-cv SOM-KSC Document 361 Filed 04/12/16 Page 7 of 24 PageID #: 6556 Defendant DEPARTMENT OF EDUCATION, STATE OF HAWAIʻI, ( Department ), by and through its attorneys undersigned, hereby submits its memorandum in opposition to Plaintiffs Motion For Order (1) Holding Defendant Department Of Education In Civil Contempt For Violation Of The [187] Order For Award Of Compensatory Education Entered On August 22, 2014, (2) Imposing Civil Sanctions, Including Appointment Of Special Master for this Honorable Court s review and consideration. I. INTRODUCTION Plaintiffs motion is more about avoidance rather than substance as it was apparently filed with the intent of having this Court usurp Magistrate Judge Kevin Chang s decision making ability to identify class members. This Court s August 14, 2014 order did not provide for individual awards of compensatory education; nor did it provide for a specific mechanism for determining the process to employ in making such determinations. Rather, the clear intent of the Court was to have Magistrate Chang determine, among other things, the identity of class members prior to this Court making any decision on the procedures to follow to provide compensatory education to class members. The basis of this motion is clearly frivolous and has led to more unnecessary litigation. For the reasons discussed below, the motion must be denied and an award of the Department s attorney s fees is an appropriate sanction against Plaintiffs abusive litigation tactics _1.DOC 2

8 Case 1:10-cv SOM-KSC Document 361 Filed 04/12/16 Page 8 of 24 PageID #: 6557 II. RELEVANT PROCEDURAL HISTORY On August 22, 2014, this Court entered its Order Granting in Part and Denying in Part Plaintiff s Motion for Award of Compensatory Education and Appointment of Special Master; Order Denying Defendant s Motion for the Court to Determine the Appropriate Forum and Process for Evaluating Compensatory Education Claims of Class Members [187]. See Exhibit A. Specifically, this Court denied Plaintiff s request for an appointment of a special master. Instead, the Court ordered the parties to work with Magistrate Judge Kevin S.C. Chang on various matters related to the identification of class members. On February 2, 2016, Plaintiffs filed a [331] motion for Order (1) Holding Defendant Department of Education in Civil Contempt for Violation of the [187] Order for Award of Compensatory Education Entered on August 22, The hearing is set for May 3, On February 18, 2016, Magistrate Judge Kevin Chang entered an Order Granting in Part and Denying in Part 1) Defendant s Motion With Regard to Efforts in Identifying Class Members and 2) Plaintiffs Motion Re Identification of Class Members [342] (Class Identification Order). See Exhibit B. On March 1, 2016, this Court entered its Order Adopting in Part and Modifying in Part Magistrate Judge Order Denying Request for Interim Attorney s Fees. See Exhibit C _1.DOC 3

9 Case 1:10-cv SOM-KSC Document 361 Filed 04/12/16 Page 9 of 24 PageID #: 6558 On March 7, 2016, Plaintiff s filed their [346] Appeal of Magistrate Judge s Order Granting in Part and Denying in Part 1) Defendant s Motion with Regard to Efforts in Identifying Class Members and 2) Plaintiffs Motion Re Identification of Class Members [ECF NO. 342]; Or In the Alternative, Motion to Modify the Court s August 14, 2014, Order (Appeal). A hearing on the Appeal is scheduled for May 3, II. DISCUSSION A. There Is No Civil Contempt The crux of Plaintiffs civil contempt claim is that the Department violated the Court s August 22, 2014 Order because the Department failed to provide or even plan for compensatory services. At a very basic level, civil contempt occurs when a party disobeys a court order: Civil contempt occurs when a party disobeys a specific and definite court order by failing to take all reasonable steps within the party's power to comply. District courts have wide latitude in determining whether there has been contemptuous defiance of its order. Contempt need not be willful, and there is no good faith exception to the requirement of obedience to a court order. OneWest Bank, FSB v. Farrar, 2014 WL , at *3 (D. Haw. Feb. 18, 2014). Plaintiffs, as the party moving for sanctions, must demonstrate by clear and convincing evidence that the alleged contemnor violated the court's order. Id. Civil contempt is not appropriate if the Department s actions are based on a good faith and reasonable interpretation of the court's order. Id _1.DOC 4

10 Case 1:10-cv SOM-KSC Document 361 Filed 04/12/16 Page 10 of 24 PageID #: 6559 In this case, there is no clear and convincing evidence that the Department violated this Court s order, especially when there was no directive for the immediate provision of compensatory education. Instead, this Court ordered Magistrate Chang to work with the parties to address the (1) determination of class members, (2) consideration of the Department s ability to provide compensatory education to class members, (3) identification of private sector providers likely needed to provide compensatory education to class members; and (4) consideration of prompt class notification. Exhibit A. Once those matters have been addressed, this Court believed that there needed to be further decisions on what procedure to follow to provide compensatory education to class members and cited examples of how that process could potentially work out. In other words, this Court did not believe that the provision of compensatory education was proper without first having a defined class. In addition, the Department s interpretation of this Court s order was done in good faith and is reasonable, especially in light of Magistrate Chang s own interpretation of this Court s order: Plaintiffs repeatedly argue that Defendant is attempting to relitigate Judge Mollway s Compensatory Education Order and that it has violated the same. This Court disagrees. Judge Mollway indeed ordered that the class members are entitled to compensatory education. However, and perhaps more importantly, she ordered that initial determinations such as the scope of the class and availability of services be resolved first _1.DOC 5

11 Case 1:10-cv SOM-KSC Document 361 Filed 04/12/16 Page 11 of 24 PageID #: 6560 Exhibit B, at pg. 6. Magistrate Chang also understood that an award of compensatory education to class members and/or possible resolution cannot reasonably be addressed until the scope of the class is determined. Id. at pg. 7. Magistrate Chang reiterated his position in footnote 4 of the Class Identification Order: As evidenced by the arguments presented in their Motion for Order (1) Holding Defendant Department of Education in Civil Contempt for Violation of the Order [187] Order (sic) For Award of Compensatory Education Entered on August 22, 2014, (2) Imposing Civil Sanctions, Including Appointment of a Special Master, Plaintiffs misinterpret the Compensatory Education Order. Plaintiffs complain that Defendant has not provided services. However, the Compensatory Education Order did not require the provision of services at the outset. To the contrary, Judge Mollway ordered certain initial determinations to be made before a final course of action is selected. Doc. No. 187 at 3. It is not until resolution of the issues and tasks referred to this Court that compensatory education will be broached. Id. at 4. Id. at pgs , fn 4. Nor does Plaintiffs complaint that the Department has not contacted a single provider provide a basis for a finding of civil contempt. This Court s order did not require anyone to contact any provider and only required the identification of private sector providers. The other allegations of wrong doing cited by Plaintiffs on pages 7 and 8 also do not amount to a violation of this Court s order. Without clear and convincing evidence that the Department violated this Court s 8/22/14 Order, the Department submits that this motion must be denied _1.DOC 6

12 Case 1:10-cv SOM-KSC Document 361 Filed 04/12/16 Page 12 of 24 PageID #: 6561 B. Standing Is At Issue For Each and Every Potential Class Member It is uncertain how the issue of standing has worked its way into Plaintiffs motion for civil contempt, but it has nothing to do with this Court s 8/22/14 order and has everything to do with removing the issue from Magistrate Chang s jurisdiction and to convince this Court to compel a different outcome. Such legal maneuvering is improper, especially when this Court expressly delegated the authority to Magistrate Chang to address these class identification issues in the first instance. Regardless, the suggestion that the DOE has repudiated the Court s directive to provide services to the older Class Members and instead maintains that every Class Member must prove he or she was injured and is entitled to compensatory education is baseless. This Court has already stated that individual determinations will need to be made regarding whether a particular student was harmed by Act 163: So when someone drops out of school, that person could re-enroll and could be eligible for services to make up for lost time. The student would have to show some connection between Act 163 and, you know, what the student was claiming. But, you know, I don t know why I should automatically modify the definition without looking at these individualized circumstances. See ECF Doc. 222, Page 2 of 20. This comports with the requirement that a plaintiff establish Article III standing: _1.DOC 7

13 Case 1:10-cv SOM-KSC Document 361 Filed 04/12/16 Page 13 of 24 PageID #: 6562 injury in fact an invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical, Second, there must be a causal connection between the injury and the conduct complained of the injury has to be fairly... trace[able] to the challenged action of the defendant, and not... th[e] result [of] the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, , 112 S. Ct. 2130, 2136 (1992). Each individual class member must retain standing throughout the course of the proceeding and their claim of injury must be supported by more than mere allegations of injury. Lujan, 504 U.S. at 561, 112 S. Ct. at It also cannot be disputed that courts have discretion in determining whether to award compensatory education, and a court may, in particular circumstances determine that compensatory education is not an appropriate remedy. Parents of Student W. v. Puyallup School Dist. No. 3, 31 F.2d 1489 (9th Cir. 1994))(Ninth Circuit recognized the court s power to apply a fact-specific analysis [ ] and decide that a generalized award of compensatory education is not appropriate. see also T.B. ex rel. Brenneise v. San Diego Unified School Dist., 2011 WL at *3 (S.D. Cal. March 30, 2011)( It will be a rare case when compensatory education is not appropriate, but the fact-specific analysis of the equities may demonstrate that such relief is not appropriate. ); Reid ex rel. Reid v. D.C., 401 F.3d 516, 524 (D.C. Cir. 2005)( [T]he inquiry must be fact-specific and, to _1.DOC 8

14 Case 1:10-cv SOM-KSC Document 361 Filed 04/12/16 Page 14 of 24 PageID #: 6563 accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place ); Phillips ex rel. T.P. v. District of Columbia, 932 F.Supp.2d 42, 50 (D.D.C. 2013)( Even if entitlement to an award is shown through a denial of a free and appropriate public education, it may be conceivable that no compensatory education is required for the denial of a FAPE either because it would not help or because the student has flourished in his current placement. ). Plaintiffs refusal to acknowledge that they have the burden to prove each potential class member s claim for compensatory education coupled with its reluctance to engage in a fact-specific analysis of each potential class member s entitlement to a certain level of compensatory education has resulted in protracted litigation, including the filing of unnecessary motions. In the end, the Department stands ready to accept and review any and all documentation regarding each potential class member s claim for compensatory education and will in good faith work to resolve each individual claim in accordance with the standards discussed above _1.DOC 9

15 Case 1:10-cv SOM-KSC Document 361 Filed 04/12/16 Page 15 of 24 PageID #: 6564 C. Shrinking the Class is Not the Objective, But the Result of Facts Applied to Law Section D of the motion clarifies Plaintiffs intent in filing the present motion, which is to circumvent Magistrate Chang s authority to rule upon certain class related issues, including the identity of class members, and to place these issues directly before this Court. 1 Since the filing of the motion, Magistrate Chang issued his decision and Plaintiffs have appealed that decision. At this time, additional briefing on this issue is unnecessary other than to say that Magistrate Chang s decision is well reasoned and should be affirmed. Additionally, any notion by Plaintiffs to suggest that the Department s sole purpose is to reduce the number of potential class members once again ignores the fact that some potential class members simply do not have standing to move forward with their claims. That is a simple matter of the facts applied to the law. D. Plaintiffs Admit That They Do Not Want To Share Information As discussed above, the provision of compensatory education to potential class members, including undisputed class members is a discussion reserved for another proceeding. What is surprising, though, is Plaintiffs request for immediate services while also refusing to provide the Department with information relevant to the issue of compensatory education, claiming that the Department has 1 The motion was filed two months after both parties submitted their briefing on the issue and two weeks before Magistrate Chang s order [Doc. 342]was issued _1.DOC 10

16 Case 1:10-cv SOM-KSC Document 361 Filed 04/12/16 Page 16 of 24 PageID #: 6565 made intrusive demands on Plaintiffs. This, of course, begs the question how can the Department develop a compensatory education plan and provide services without knowledge of an individual s current situation, including the identity of current health care providers, schools or programs attended since leaving high school, and current/former employers? The answer is that the Department cannot. It is significant to point out that the Department asked Plaintiffs for signed consent forms to enable the Department to obtain those records, but once again Plaintiffs refused to cooperate. 2 Plaintiffs artificial reason for denying the Department access to relevant client information, conceals a deeper and more troubling truth that Plaintiffs have not put in the effort to gather this information and are unable to obtain signed consent forms from their clients. Time and time again, Plaintiffs have asked Magistrate Chang to order the Department to do Plaintiffs work. For example, Plaintiffs want the Department to make contact with each potential class member, arrange for a meeting, ask each potential class member about their current services, and obtain written consent to obtain their records. The Department, however, is under no obligation to directly contact Plaintiffs clients and obtain this 2 This is not a novel request as every case involving a remedy will require that certain relevant inquiries be made. Requests for information relevant to the nature and extent of damages are common place in civil litigation and are typically obtained through request for interrogatories. Utilization of consent forms to obtain private and sensitive information is also a common requirement before a third party releases that information _1.DOC 11

17 Case 1:10-cv SOM-KSC Document 361 Filed 04/12/16 Page 17 of 24 PageID #: 6566 information from them. Rather, Plaintiffs should be in regular contact with their clients and have easy access to this information/documentation at any time; that has proven not to be the case. This case simply cannot move forward as long as Plaintiffs refuse to familiarize themselves with their clients and share client information with the Department. The Court need not look further than the recent subpoenas for records of approximately 46 randomly selected potential class members from the Department of Human Services and Department of Health. 3 The Department of Health wrote to Plaintiffs counsel informing them that 29 of the 46 names provided by Plaintiffs counsel are not clients of the Developmental Disabilities Division (DDD) of the Department of Health. That means Plaintiffs did not know that 63% of their clients were not receiving services through DDD. See Exhibit F. Likewise, the Department of Human Services, Division of Vocational Rehabilitation (DVR) only has records of 12 of the 46 identified potential class members. See Exhibit G. That means that Plaintiffs did not know that 78% of their clients were not receiving services through DVR. These statistics prove that Plaintiffs are wasting government resources by asking the various State agencies to search for and produce records of potential class members because Plaintiffs have 3 Plaintiffs continue to try and evade financial responsibility for obtaining their client s records. As evidenced by Exhibit D, Plaintiffs have mischaracterized the subpoena as one that is from the Department and that any charges be waived. See also Exhibit G _1.DOC 12

18 Case 1:10-cv SOM-KSC Document 361 Filed 04/12/16 Page 18 of 24 PageID #: 6567 no idea whether those individuals actually received services from those agencies. 4 By engaging in this type of shotgun approach to discovery, Plaintiffs counsel are once again asking others to gather information about the potential class members (their own clients) and provide it to Plaintiffs counsel. E. The Department Complied With the Court s Order The question that needs to be answered is what have Plaintiffs done to advance this case after they received all of the potential class members contact information. The 8/22/14 order required the Department to provide Plaintiffs counsel with the name of every potential class member, accompanied by his or her last-known contact information. Doc. No. 187 at pg. 3 (emphasis added). This was accomplished on September 22, 2014 when a listing of potential class members was provided to Plaintiffs counsel, followed by an updated listing provided on November 12, Since that time, the Department has gone above and beyond what it was ordered to do and in fact paid for Ward Research to contact potential class members and Lexis Nexis to search for updated contact information. The Department has without question fulfilled its obligations 4 There appears to have been no effort made by Plaintiffs counsel to ask these 46 individuals and/or their guardians about what services, if any, each were receiving. It has been over a year since Plaintiffs counsel received the names of the potential class members and clearly they have not obtained this basic information from their clients. 5 Magistrate Chang recognized that [o]nce Defendant provided the contact information, it was Plaintiffs counsel s burden to contact the class members _1.DOC 13

19 Case 1:10-cv SOM-KSC Document 361 Filed 04/12/16 Page 19 of 24 PageID #: 6568 pursuant to this Court s 8/22/14 order, and its actions cannot be interpreted as attempts to delay the process. F. Costs Allocated to Fund Litigation The Department s statement of costs incurred in this litigation is irrelevant to any determination of civil contempt. It has nothing to do with this Court s 8/22/14 order. Sensationalizing this serves no legitimate purpose as Plaintiffs are aware that the amounts were requested by Magistrate Chang and reflects the substantial amount of work that the Department has invested in this case and in responding to Plaintiffs requests for information and documents. G. Plaintiffs Have Violated the Spirit of This Court s 8/22/14 Order Plaintiffs have shown impatience with the process established by this Court and its implementation and monitoring by Magistrate Chang. Plaintiffs paint a picture depicting the Department as the culpable party responsible for all that is wrong with this case. However, Magistrate Chang, who was front and center in this process, noted that there was overzealous and overreaching advocacy [that] has resulted in unnecessary delay, lack of cooperation, and undeniably interfered with the orderly progress and efficient resolution of this action. Magistrate Chang also noted that [i]t is surprising that Plaintiffs have incurred $700, in attorneys fees between August 22, 2014 through December 31, 2015, considering _1.DOC 14

20 Case 1:10-cv SOM-KSC Document 361 Filed 04/12/16 Page 20 of 24 PageID #: 6569 the limited progress that they have made and the current status of the case. See ECF Doc. 342 at pg. 10. This motion is yet another billable event that has no purpose. It will not lead to the furtherance of this case in any meaningful way as Plaintiffs continue to refuse to recognize their burden of proof and refuse to share information with the Department. Filing motions because the Department would not give in to Plaintiffs demands is not the solution, but highlights the need for this case to move on from the class identification phase and into discussions on how individual claims will be processed. 6 Plaintiffs counsel s litigation strategy is to have the Department track down each and every potential class member, obtain their signed consent, find out about their current health care and services, obtain the records, provide Plaintiffs counsel with the records (free of charge), and then start offering services that Plaintiffs counsel recommends. But that is not the reality of the adversarial nature of litigation, nor is it the Department s ethical obligation to perform tasks that Plaintiffs counsel were hired to do. 7 6 Plaintiffs failed to provide all of the Pilot Group records to the Department, and their demands for compensatory education services were based solely on parent demand and recommendations by an unidentified expert. 7 As noted by Magistrate Chang, Plaintiffs counsel sought to serve as class counsel and it was their responsibility, with the assistance (financial and otherwise) provided by Defendant, to communicate with prospective class members and ascertain which of those members wish to receive compensatory education _1.DOC 15

21 Case 1:10-cv SOM-KSC Document 361 Filed 04/12/16 Page 21 of 24 PageID #: 6570 H. Plaintiffs Request for the Appointment of a Special Master Was Denied and That Order Was Not Appealed This Court s 8/22/14 order denied Plaintiffs request for the appointment of a special master. Exhibit A at pg. 3. If Plaintiffs wish to appeal that decision, they must seek leave to do so and should not try to back door their appeal under the guise of a motion for civil contempt and sanctions. As stated above, the Department did not engage in contemptuous conduct in violation of this Court s order. If any party is in contempt, it is Plaintiffs who are attempting to circumvent the procedure set forth by this Court to first identify the class and then return to the Court to engage in further discussions on what procedure to follow to provide compensatory education to class members. While the Department believes that any discussion of what procedure to follow is premature, it notes that Plaintiffs request for a special master fails to take into consideration the requirement that individual claims be investigated and adjudicated. As the Department has previously argued, if injunctive/declaratory relief is insufficient to resolve all class member s individual claims, then individual lawsuits are required to be filed: Obviously a single proceeding, while it might result in an injunction, could not resolve class members' claims. Each class member would have to prove that his compensation had been adversely affected by the corporate policies, and by how much. So should the claim of Exhibit B at pg 12. Here, the Department has paid its fair share to have potential class members located and contacted _1.DOC 16

22 Case 1:10-cv SOM-KSC Document 361 Filed 04/12/16 Page 22 of 24 PageID #: 6571 disparate impact prevail in the class-wide proceeding, hundreds of separate trials may be necessary to determine which class members were actually adversely affected by one or both of the practices and if so what loss each class member sustained and remember that the class has 700 members. But at least it wouldn't be necessary in each of those trials to determine whether the challenged practices were unlawful. Rule 23(c)(4) provides that when appropriate, an action may be brought or maintained as a class action with respect to particular issues. The practices challenged in this case present a pair of issues that can most efficiently be determined on a class-wide basis, consistent with the rule just quoted. McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482, (7th Cir. 2012). Here, the class action lawsuit resolved the applicability of Act 163 on a class-wide basis; however, there can be no single ruling that could provide individualized compensatory education awards. Rather, each individual claim must be litigated and compensatory awards must be individualized depending on the class member s particular situation. A special master cannot timely process anywhere between 400 1,800 potential class members. When reviewing Plaintiffs request for a special master as a sanction for civil contempt, it appears that they are seeking someone to not only replace Magistrate Chang but to do Plaintiff s counsel s work to identify and locate all eligible class members. These matters have already been determined by Magistrate Chang and there is no need to duplicate what has already been done. And, of course, Plaintiffs counsel is seeking to have the Department pay for the special master, claiming that the class members have no ability to pay their fair _1.DOC 17

23 Case 1:10-cv SOM-KSC Document 361 Filed 04/12/16 Page 23 of 24 PageID #: 6572 share, and for the Department to pay for Plaintiffs counsel s attorney s fees. First, Plaintiffs counsel sought to represent the class and should bear the burden of paying whatever costs are associated with the litigation. They cannot hide behind their clients when Plaintiffs counsel are the ones who urged this court to enter into this remedial phase of litigation rather than allow the class members to seek individualized relief through other processes. Second, attorneys fees are not warranted when there has been no violation of this Court s order. Rather, the Department seeks an award of its own attorneys fees for opposing this motion. It is clear that there is no legitimate basis for the motion, and that it was filed solely to circumvent Magistrate Chang s decision making authority to decide class size and the process by which individual claims would be adjudicated and to have those matters decided by this Court. This type of conduct should not be condoned, and sanctions against Plaintiffs counsel is appropriate. III. CONCLUSION Based upon the foregoing, the Department respectfully requests that this Court deny Motion For Order (1) Holding Defendant Department Of Education In Civil Contempt For Violation Of The [187] Order For Award Of Compensatory Education Entered On August 22, 2014, (2) Imposing Civil Sanctions, Including _1.DOC 18

24 Case 1:10-cv SOM-KSC Document 361 Filed 04/12/16 Page 24 of 24 PageID #: 6573 Appointment Of Special Master and award the Department its attorney s fees incurred in responding to the motion. DATED: Honolulu, Hawaiʻi, April 12, /s/ Carter K. Siu CARTER K. SIU RYAN W. ROYLO HOLLY T. SHIKADA Deputy Attorneys General Attorneys for Defendant DEPARTMENT OF EDUCATION State of Hawai i _1.DOC 19

25 Case 1:10-cv SOM-KSC Document Filed 08/22/14 04/12/16 Page 11 of of 55 PageID #: #: IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII R.P.-K, through his parent, C.K., et al., vs. Plaintiffs, DEPARTMENT OF EDUCATION, State of Hawaii, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) CIVIL NO SOM/KSC ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF S MOTION FOR AWARD OF COMPENSATORY EDUCATION AND APPOINTMENT OF SPECIAL MASTER; ORDER DENYING DEFENDANT S MOTION FOR THE COURT TO DETERMINE THE APPROPRIATE FORUM AND PROCESS FOR EVALUATING COMPENSATORY EDUCATION CLAIMS OF CLASS MEMBERS ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR AWARD OF COMPENSATORY EDUCATION AND APPOINTMENT OF SPECIAL MASTER; ORDER DENYING DEFENDANT'S MOTION FOR THE COURT TO DETERMINE THE APPROPRIATE FORUM AND PROCESS FOR EVALUATING COMPENSATORY EDUCATION CLAIMS OF CLASS MEMBERS This case, originally assigned to the Honorable David Alan Ezra, concerns whether the State of Hawaii Department of Education ( DOE ) wrongfully denied services under the Individuals with Disabilities Education Act ( IDEA ) to individuals that the DOE viewed as having aged out of being eligible to receive services. On March 15, 2011, Judge Ezra granted a motion to certify a class in this case. See ECF No. 31. In the same order he dismissed some of the purported class representatives. Id. Judge Ezra subsequently ruled that the DOE was not required to provide services under the IDEA to class members. See ECF No Plaintiffs appealed that decision. See ECF No. 125.

26 Case 1:10-cv SOM-KSC Document Filed 08/22/14 04/12/16 Page 22 of of 55 PageID #: #: In an order filed on August 28, 2013, the Ninth Circuit reversed Judge Ezra s decision in part, ruling that the DOE s reliance on a Hawaii statute to deny services under the IDEA was improper, and that individuals covered by the IDEA had not aged out at the age calculated by the DOE. See ECF No On remand, the case was assigned to this judge because Judge Ezra was residing in another district. Before the court are what are essentially cross-motions concerning how the Ninth Circuit s decision should be implemented. In an IDEA case, a court has the power to grant such relief as the court determines is appropriate. 20 U.S.C. 1415(i)(2)(C). The Ninth Circuit has stated that, when a child is denied the Free Appropriate Public Education ( FAPE ) contemplated by the IDEA, a court may provide additional services to make up for lost time, as it may be a rare case when compensatory education is not appropriate to remedy an IDEA violation. R.P ex rel. C.P. v. Prescott Unified Sch. Dist., 631 th F.3d 1117, (9 Cir. 2011). Given the Ninth Circuit s determination that the DOE denied a FAPE to a class of individuals by determining that they had aged out when in actuality they remained eligible for services, this court now determines that the members of the class should receive compensatory services to make up for the services missed as a result of that improper determination of 2

27 Case 1:10-cv SOM-KSC Document Filed 08/22/14 04/12/16 Page 33 of of 55 PageID #: #: ineligibility. To the extent part of Plaintiff s motion seeks compensatory education, that portion is granted. Both Plaintiffs and Defendant propose ways to address the DOE s IDEA violation. While both sides raise the issue, both leave a great deal to the court in terms of logistics. For that reason, to the extent Plaintiffs motion seeks an order appointing a special master and the DOE s motion seeks an order leaving it to the DOE determine what services to provide to which individuals, both motions are denied. Instead, this court orders certain initial determinations to be made before a final course of action is selected. The parties are ordered to work with Magistrate Judge Kevin S.C. Chang concerning the following: 1) Determination of Class Members: as soon as practicable, but in no event later than September 22, 2014, the DOE must provide Plaintiffs counsel with the name of every potential class member, accompanied by his or her last-known contact information. The DOE must include the names and lastknown contact information of all individuals who might have been affected by the DOE s age out calculation, including individuals that the DOE concludes may have opted not to receive services, such as drop outs and those with employment. The DOE may provide names by grouping similarly situated individuals. 3

28 Case 1:10-cv SOM-KSC Document Filed 08/22/14 04/12/16 Page 44 of of 55 PageID #: #: Magistrate Judge Chang will settle all disputes concerning the identification of class members; 2) Consideration of the DOE s ability to provide compensatory education to class members; 3) Identification of private service providers likely to be needed to provide compensatory education to class members and likely to be agreed to by the parties; and 4) Consideration of prompt class notification and of further class certification issues, with any modification of the existing class certification to be sought by motion(s) filed no later than October 31, The parties are directed to file status reports on the above matters by September 30, Once these initial matters are addressed, there will, of course, need to be further decisions on what procedure to follow to provide compensatory education to class members. This may ultimately mean that the DOE must propose a compensatory education package for every class member who desires one, or that a special master should be appointed to oversee that process. At this time, the court rules only that it is appropriate to 4

29 Case 1:10-cv SOM-KSC Document Filed 08/22/14 04/12/16 Page 55 of of 55 PageID #: #: determine the scope of the class as well as the services that may be available to compensate class members for the DOE s violation of the IDEA. IT IS SO ORDERED. DATED: Honolulu, Hawaii, August 22, /s/ Susan Oki Mollway Susan Oki Mollway Chief United States District Judge R.P.-K, et al. v. Dep t of Educ., State of Hawaii, Civ. No SOM/KSC; ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR AWARD OF COMPENSATORY EDUCATION AND APPOINTMENT OF SPECIAL MASTER; ORDER DENYING DEFENDANT'S MOTION FOR THE COURT TO DETERMINE THE APPROPRIATE FORUM AND PROCESS FOR EVALUATING COMPENSATORY EDUCATION CLAIMS OF CLASS MEMBERS 5

30 Case 1:10-cv SOM-KSC Document Filed 02/18/16 04/12/16 Page 1 of of 25 PageID #: #: IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII R.P.-K., through his parents C.K.; R.T.D., through his parents R.D. and M.D.; and the HAWAII DISABILITY RIGHTS CENTER, in a representative capacity on behalf of its clients and all others similarly situated, Plaintiffs, vs. DEPARTMENT OF EDUCATION, State of Hawaii, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL NO SOM-KSC ORDER GRANTING IN PART AND DENYING IN PART 1) DEFENDANT S MOTION WITH REGARD TO EFFORTS IN IDENTIFYING CLASS MEMBERS AND 2) PLAINTIFFS MOTION RE IDENTIFICATION OF CLASS MEMBERS ORDER GRANTING IN PART AND DENYING IN PART 1) DEFENDANT S MOTION WITH REGARD TO EFFORTS IN IDENTIFYING CLASS MEMBERS AND 2) PLAINTIFFS MOTION RE IDENTIFICATION OF CLASS MEMBERS Before the Court are 1) Plaintiffs Motion Re Identification of Interested Class Members and 2) Defendant s Motion With Regard to Efforts in Identifying Class Members, both of which were filed on November 30, The parties filed their respective oppositions on January 6, 2016, and their respective replies on January 13, 2016.

31 Case 1:10-cv SOM-KSC Document Filed 02/18/16 04/12/16 Page 2 of of 25 PageID #: #: This matter came on for hearing on January 27, Kristin Holland, Esq., Michelle Comeau, Esq., and Jennifer Patricio, Esq., appeared on behalf of Plaintiffs. Deputy Attorneys General Carter Siu and Ryan Roylo appeared on behalf of Defendant. After careful consideration of the parties submissions, the applicable law, and the arguments of counsel, the Court HEREBY GRANTS IN PART AND DENIES IN PART the Motions for the reasons set forth below. BACKGROUND As the parties are familiar with the extensive history of this case, the Court includes only those facts relevant to the disposition of the parties motions. On March 15, 2011, then-u.s. District Judge David Alan Ezra defined the class as: All individuals residing in the State of Hawaii who are over the age of 20 on or before the first day of the school year (or who will imminently be over the age of 20 on that date) but under the age of 22 who are entitled to receive special education and related services from Defendant the Hawaii Department of Education under the Individuals With Disabilities Education Act. 2

32 Case 1:10-cv SOM-KSC Document Filed 02/18/16 04/12/16 Page 3 of of 25 PageID #: #: Doc. No. 31. On August 28, 2013, the Ninth Circuit determined that Act 163 violated the Individuals with Disabilities Education Act ( IDEA ). Doc. No On August 22, 2014, then-chief U.S. District Judge Susan Oki Mollway issued an Order Granting in Part and Denying in Part Plaintiff s Motion for Award of Compensatory Education and Appointment of Special Master; Order Denying Defendant s Motion for the Court to Determine the Appropriate Forum and Process for Evaluating Compensatory Education Claims of Class Members ( Compensatory Education Order ). In pertinent part, Judge Mollway ordered that the parties work with this Court concerning the following: 1) Determination of Class Members: as soon as practicable, but in no event later than September 22, 2014, the DOE must provide Plaintiffs counsel with the name of every potential class member, accompanied by his or her last-known contact information. The DOE must include the names and last-known contact information of all individuals who might have been affected by the DOE s age out calculation, including individuals that the DOE concludes may have opted not to receive services, such as drop outs and those with employment. The DOE may 3

33 Case 1:10-cv SOM-KSC Document Filed 02/18/16 04/12/16 Page 4 of of 25 PageID #: #: provide names by grouping similarly situated individuals. Magistrate Judge Chang will settle all disputes concerning the identification of class members; 2) Consideration of the DOE s ability to provide compensatory education to class members; 3) Identification of private service providers likely to be needed to provide compensatory education to class members and likely to be agreed to by the parties; and 4) Consideration of prompt class notification and of further class certification issues, with any modification of the existing class certification to be sought by motion(s) filed no later than October 31, Compensatory Education Order, Doc. No. 187 at 3-4. Since the issuance of the Compensatory Education Order, this Court has held 26 status conferences and more than one settlement conference to facilitate the identification of class members and/or resolution of this action. To comport with the Ninth Circuit s ruling, the parties later refined the definition to [a]ll IDEA eligible persons who turned age 20 after 7/1/10 and were made ineligible by Act 163 and all IDEA eligible 4

34 Case 1:10-cv SOM-KSC Document Filed 02/18/16 04/12/16 Page 5 of of 25 PageID #: #: persons who were over age 20, but under age 22, on 7/1/10 and made ineligible by Act 163. Doc. No. 213, Decl. of Paul Alston, Ex. A. On January 5, 2015, Judge Mollway orally denied Defendant s Motion for the Court to Modify the Class Definition. DISCUSSION As an initial matter, the Court addresses Plaintiffs request to strike certain of Defendant s exhibits. The Court declines to do so. First, the Court believes that all exhibits should remain part of the record for the sake of completeness. Second, with respect to these Motions, the Court directed the parties to include specific detailed information with regard to (1) costs and efforts made by all counsel and/or [the] DOE to identify class members, including but not limited to, provision of names and last-known contact information of all individuals who might have been affected by the DOE[ ]s age cut calculation, (2) the results of services provided by Ward Research and Lexis and (3) efforts made by all counsel to identify interested class members. Doc. No Given the Court s directive, the 5

35 Case 1:10-cv SOM-KSC Document Filed 02/18/16 04/12/16 Page 6 of of 25 PageID #: #: parties exhibits are properly before the Court. Finally, insofar as this is neither a trial nor an adjudication concerning the substantive merits of the case, admissibility is not at issue, and the strictures of the Federal Rules of Evidence do not apply. A. Closing of the Class Plaintiffs repeatedly argue that Defendant is attempting to relitigate Judge Mollway s Compensatory Education Order and that it has violated the same. This Court disagrees. Judge Mollway indeed ordered that the class members are entitled to compensatory education. However, and perhaps more importantly, she ordered that initial determinations such as the scope of the class and availability of services be resolved first. Sadly, the process that Judge Mollway referred to this Court has seen little progress due to the parties inability to reach agreements and resolve issues. At times, overzealous and overreaching advocacy has resulted in unnecessary delay, lack of cooperation, and undeniably interfered with the orderly progress and efficient 6

36 Case 1:10-cv SOM-KSC Document Filed 02/18/16 04/12/16 Page 7 of of 25 PageID #: #: resolution of this action. The award of compensatory education to class members and/or possible resolution cannot reasonably be addressed until the scope of the class is determined. The Court, having been entrenched in the identification and notification process for over a year and a half, finds that the identification process shall conclude, as well as efforts to contact identified potential class members, on this Order s issuance date. In addition, the Court orders the release of the interested class members educational records pursuant to 34 C.F.R (a)(9). This will facilitate the timely and orderly progression of this case by making accessible to Plaintiffs counsel the interested class members educational records, and address Defendant s Family Educational Rights and Privacy Acts ( FERPA ) concerns. No further delays will be permitted. The final identification of interested class members is long overdue and now is the time to proceed to the compensatory education phase of this process. 7

37 Case 1:10-cv SOM-KSC Document Filed 02/18/16 04/12/16 Page 8 of of 25 PageID #: #: B. Additional Searches and Efforts Plaintiffs request that Defendant be ordered to bear the cost of obtaining current contact information for class members who have yet to be contacted, providing that information to class counsel, and evaluating each class member s situation and offering a suitable array of compensatory services to every class member. This request is DENIED. The Court finds that Defendant has made substantial efforts to identify and locate potential class members. Defendant has: 1) sent letters to potential class members, advising them of their right to receive special education until age 22 and advising them of their FERPA rights; 2) placed advertisements in newspapers on all islands running on multiple dates informing all potential class members of their rights under the IDEA; 3) provided Plaintiffs with a spreadsheet containing the contact information of potential class members; 4) reached out by telephone to obtain current addresses for the 413 (out of 1,800) FERPA pre-disclosure letters that were returned as 8

38 Case 1:10-cv SOM-KSC Document Filed 02/18/16 04/12/16 Page 9 of of 25 PageID #: #: undeliverable; and 5) paid third-parties (e.g. Ward Research and LexisNexis) to aid in the search for and identification of interested class members. Notwithstanding these efforts, Plaintiffs maintain that Defendant should obtain contact information from other Hawaii State agencies because it may have access to the same. Defense counsel has reached out to other Hawaii State agencies and the Court in fact ordered the Developmental Disabilities Division of the State of Hawaii Department of Health to release records of services for specified individuals. Doc. No The Court believes that Plaintiffs underestimate the burden to and manpower required of Defendant to coordinate with multiple State agencies to ascertain whether more recent contact information for potential class members is available. It is noteworthy that Plaintiffs did not avail themselves of third-party discovery processes in the more than one-year period they were in possession of the potential class members last-known contact information. Once Defendant 9

39 Case 1:10-cv SOM-KSC Document Filed Filed 02/18/16 04/12/16 Page Page of of PageID #: #: provided the contact information, it was Plaintiffs counsel s burden to contact the class members. Plaintiffs could have taken any number of steps since then to obtain updated information for the class members whose contact information was discovered to be outdated, and to contact those individuals. It is surprising that Plaintiffs have incurred $700, in attorneys fees between August 22, 2014 through December 31, 2015, considering the limited progress that they have made and the current status of the case. Doc. No. 327, Decl. of Paul Alston at 7-8. Judge Mollway s Compensatory Education Order did not require Defendant to take extraordinary steps or exhaust all resources in providing contact information to Plaintiffs. She simply ordered that the DOE must provide Plaintiffs counsel with the name of every potential class member, accompanied by his or her lastknown contact information. The DOE must include the names and last-known contact information of all individuals who might have been affected by the DOE s age out calculation, including individuals that the DOE concludes may have opted not to receive services, such as drop outs and those with employment. 10

40 Case 1:10-cv SOM-KSC Document Filed Filed 02/18/16 04/12/16 Page Page of of PageID #: #: Compensatory Education Order, Doc. No. 187 at 3 (first emphasis added). Defendant has more than complied with the Compensatory Education Order. Indeed, Defendant reluctantly followed the Court s suggestions at status conferences and provided funding and resources beyond that required by the Compensatory Education Order to avoid litigation and advance possible resolution of this issue. At this late stage in the drawn-out process concerning the identification of interested class members, Defendant is under no obligation to take additional steps to obtain the current contact information for potential class members. 1 Interestingly, Plaintiffs are quick to 1 Plaintiffs also argue that the class members are entitled to appropriate notice. The Court finds it unnecessary to address the parties arguments concerning the class members right to notification pursuant to Federal Rule of Civil Procedure 23(b), but notes that it is unrealistic for class counsel to expect that current contact information be procured for each potential class member. Notification is an imperfect system and reasonable steps have been taken here to notify potential class members. Notices have not only been sent to last-known addresses, but also published in newspapers by Defendant and via articles and press releases by class counsel. The notification process desired by class counsel will be unduly 11

41 Case 1:10-cv SOM-KSC Document Filed Filed 02/18/16 04/12/16 Page Page of of PageID #: #: accuse Defendant of gross waste and/or mismanagement of funds, yet they seek an order for Defendant to incur additional expenses locating potential class members. 2 Plaintiffs counsel sought to serve as class counsel and it was their responsibility, with the assistance (financial and otherwise) provided by Defendant, to communicate with prospective class members and ascertain which of those members wish to receive compensatory education. Plaintiffs request for Defendant to evaluate each class member s situation and offer a suitable array of compensatory services to every class member is premature and unnecessary. Until the interested class members are identified, it would be a tremendous waste burdensome and costly, and will likely cause further delay in an already languishing process. 2 Plaintiffs question the information in Exhibit M to Defendant s Motion, which reflects approximately $3.4 million in costs incurred by Defendant to identify and locate potential class members. According to Plaintiffs, $23, in costs have been incurred in connection with the identification of interested class members. However, the Court s determination regarding the class members does not turn on Defendant s expenditures related to the identification and/or location of the same. 12

42 Case 1:10-cv SOM-KSC Document Filed Filed 02/18/16 04/12/16 Page Page of of PageID #: #: of resources to conduct the evaluation sought by Plaintiffs. To the extent Plaintiffs seek information concerning services, they do not require an individualized services package to present to each potential class member during the inquiry phase. The attorneys designated as class counsel who have extensive experience with IDEA cases can, at a minimum, provide information to potential class members with respect to the types of services that are typically offered by Defendant. Therefore, while Defendant will be required to conduct assessments and ultimately provide appropriate compensatory education services for the interested class members, 3 it is not required to do so in connection with the class identification process. 4 3 The Court has scheduled a status conference on February 26, 2016, to discuss the possible appointment of a special master, mechanisms, processes, and possible candidates. 4 As evidenced by the arguments presented in their Motion for Order (1) Holding Defendant Department of Education in Civil Contempt For Violation of The Order [187] Order For Award of Compensatory Education Entered on August 22, 2014, (2) Imposing Civil Sanctions, Including Appointment of a Special Master, Plaintiffs misinterpret the Compensatory Education Order. Plaintiffs complain that Defendant has not provided 13

43 Case 1:10-cv SOM-KSC Document Filed Filed 02/18/16 04/12/16 Page Page of of PageID #: #: C. Scope of the Class According to Plaintiffs, there are 437 interested class members. 5 Doc. No. 330 (updated Exhibit 23 to Plaintiffs Mot.). Defendant objects to 303 of these individuals, arguing that there are three categories of individuals who should be excluded from the class: 1) those who are too young to have suffered an injury due to Act 163, 2) those who turned 22 years of age at the time Act 163 was enacted and took effect on July 1, 2010, and 3) those who were 19 years or older when Act 163 took effect but who have not services. However, the Compensatory Education Order did not require the provision of services at the outset. To the contrary, Judge Mollway ordered certain initial determinations to be made before a final course of action is selected. Doc. No. 187 at 3. It is not until resolution of the issues and tasks referred to this Court that compensatory education will be broached. Id. at 4 ( Once these initial matters are addressed, there will, of course, need to be further decisions on what procedure to follow to provide compensatory education to class members. ). Even so, the Pilot Group evidences efforts made to identify and assess viable options for the compensatory education services process that will be eventually be undertaken. Unfortunately, counsel were able to reach an agreement. 5 This figure does not include incarcerated class members. 14

44 Case 1:10-cv SOM-KSC Document Filed Filed 02/18/16 04/12/16 Page Page of of PageID #: #: suffered an injury in fact Individuals Who Are Too Young Defendant objects to individuals who were 19 years old or younger at the start of the school year because those individuals were not precluded from continuing their education until age 22 by Act 163, given Act 163 s repeal prior to the commencement of the school year. Plaintiffs counter that Defendant never told many class members who left school prior to fall 2013 that they had a right to return at ages 20 and 21 or sent them a confusing, inaccurate notice 6 Additional categories were included in Defendant s Objections to Amended Exhibit 23: individuals who graduated; individuals who are IDEA ineligible/revoked eligibility; individuals who settled their claims; and individuals who are not interested. Many of these objections are asserted along with one or more of the aforementioned three categories of objections. In such instances, the Court has considered all of the objections but shall classify the individuals under one of the three main categories of objections. Where Defendant objects to an individual on the grounds that he/she is underage and exited before age 20, the individual shall be analyzed under the underage category. The Court believes this is appropriate because, as it will later discuss, exiting before age 20 does not alone disqualify an individual from the class. 15

45 Case 1:10-cv SOM-KSC Document Filed Filed 02/18/16 04/12/16 Page Page of of PageID #: #: regarding ability to receive services. Plaintiffs also submit that Defendant failed to demonstrate that the members who are too young actually received services at ages 20 or 21 or were aware that they had the right to do so. Defendant has provided educational records for the students they classify as too young or underage, which establish that those students declined FAPE (in some cases multiple times) and/or a re-evaluation. See, e.g., Ex. V to Def. s Objection. In any event, whether or not the individuals received services at 20 or 21 or were aware that they had the right to do so is not determinative. 7 The fact is that Act 163 could not have precluded these individuals from obtaining services because it was repealed before the individuals would have aged out. For these reasons, the Court finds, as a general matter, that the 7 Plaintiffs reference Defendant s Child Find obligation pursuant to 20 U.S.C. 1412(a)(3), which requires Defendant to identify, evaluate, and determine eligibility for disabled children. Child Find is not at issue in this litigation. Thus, it cannot serve as a basis for allowing individuals, who could not be impacted by Act 163 due to their age, to be included in the class. 16

46 Case 1:10-cv SOM-KSC Document Filed Filed 02/18/16 04/12/16 Page Page of of PageID #: #: individuals who were 19 years old or younger at the start of the school year do not fall within the class definition and they are therefore excluded from the class. 8 The Court makes an exception, however, with respect to certain individuals who submitted declarations attesting to the fact that they either did not receive notification that they were eligible for services at ages 20 and 21 and/or that they were told that they were not eligible for services from age 20. Specifically, the Court allows N.L., J.L., 9 B.C., L.M., D.M., K.C., M.M., E.O., D.P.-K., M.P., S.S., M.Z., I.P.-K., R.B., and S.B. to be a part of the class. 2. Individuals Who Are Too Old Defendant wishes to exclude individuals whose 8 G.J.-M., identified as no. 124 in Exhibit U to Defendant s Objection, shall not be excluded because her birthdate is January 20, J.L. is noted as both undisputed and objected to as underage in Defendant s Exhibit U to its Objection. Given J.L. s birthdate, he is not underage, so the Court accepts him as undisputed, notwithstanding Defendant s prior characterization of him as a dropout. 17

47 Case 1:10-cv SOM-KSC Document Filed Filed 02/18/16 04/12/16 Page Page of of PageID #: #: birthdates are prior to July 1, 1988, on the basis that they were 22 years of age at the time Act 163 took effect. Seven individuals are at issue: R.G., N.M., J.N., L.R., A.D., K.K. 10 and C.T. Plaintiffs agree to dismiss N.M., J.N., and L.R. so those individuals will not be part of the class. Exhibit P to Defendant s Motion establishes that C.T. s birth date is June 15, 1989, so he cannot be excluded as too old. In its Reply, Defendant clarified that A.D. attended Loveland through age 22 on stay put and C.T. remained in school until age 22. Reply at 13. Exhibit Q to Defendant s Motion sets forth what appears to be payments to Loveland on behalf of A.D. during the school year. 11 Accepting as true Defendant s representation that A.D. attended Loveland until he aged out, A.D. should be excluded from the class. 10 K.K. (No. 141) is objected to as too old in Exhibit U to Defendant s Objection. However, the parties did not discuss her in their briefing. Neither do the records include her birthdate. If she was 22 at the time Act 163 took effect, then she is excluded from the class. 11 This demonstrates that A.D. was receiving services while Act 163 was in effect. 18

48 Case 1:10-cv SOM-KSC Document Filed Filed 02/18/16 04/12/16 Page Page of of PageID #: #: With respect to C.T., Defendant claims that he remained in school until he aged out. Exhibit Q0009 indicates that C.T. withdrew in July 2011, which would have made him 22 at the time he exited. C.T. is therefore excluded from the class. Although R.G. s birth date is February 25, 1988, Plaintiffs argue that he should be part of the class because he was a member of the Pilot Group and Defendant has waived any objection to his inclusion. The Court disagrees. It is unclear why R.G. was ever included in the Pilot Group in view of his birth date. 12 Adhering to the class definition, he does not qualify. There is no question that he was 22 at the time Act 163 took effect, so he could not have been impacted by, or suffered an injury as a result of, Act 163. Whether or not Defendant timely objected to his inclusion is 12 R.G. submitted a declaration explaining that he has been actively participating in this lawsuit as a member in the Pilot Group and that he has invested a great deal of time in this lawsuit. Although the Court sympathizes with R.G., he cannot be a class member merely because he was erroneously included in the Pilot Group. 19

49 Case 1:10-cv SOM-KSC Document Filed Filed 02/18/16 04/12/16 Page Page of of PageID #: #: irrelevant, as Defendant s alleged failure does not confer standing upon R.G. A person who does not fall within a class definition, or suffer an injury caused by the claims in a lawsuit, simply cannot obtain relief. In sum, A.D., R.G., N.M., J.N., L.R, and C.T. are excluded from the class. K.K. is also excluded if her birthdate is prior to July 1, Individuals Who Exited School A number of questions remain with respect to the individuals who Defendant wishes to exclude from the class due to their decision to voluntarily exit school prior to turning age 20. It is unclear whether they were misinformed about their rights or not informed about their rights, and whether the information provided or withheld affected their decision to seek services from Defendant. Because these individuals fall within the range of individuals who could have been affected by Act 163, i.e., individuals over the age of 20 on or before the first day of the school year (or who will imminently be over 20

50 Case 1:10-cv SOM-KSC Document Filed Filed 02/18/16 04/12/16 Page Page of of PageID #: #: the age of 20 on that date) but under the age of 22, the Court finds that they shall remain part of the class. The fact that they were eligible to receive services, regardless of whether they availed themselves of that opportunity, warrants their inclusion in the class. This determination is consistent with Judge Mollway s ruling denying Defendant s motion to modify the class definition. In its motion, Defendant requested a rebuttable presumption that any class member who voluntarily left six months or longer before his or her 20th birthday to be deemed ineligible for compensatory education. Had Judge Mollway believed that these individuals should be excluded from the class, she could have granted the motion. See also Compensatory Education Order, Doc. No. 187 at 3 (including drop outs as those who might have been affected by Defendant s age out calculation). 4. Additional Categories of Objections Exhibit U includes additional objections to the identified interested class members. 21

51 Case 1:10-cv SOM-KSC Document Filed Filed 02/18/16 04/12/16 Page Page of of PageID #: #: a. Individuals Who Have Graduated or Settled Their Claims Individuals who have graduated or settled their claims should be excluded from the class. b. Individuals Who Are Not Interested Individuals to whom Defendant objects as not interested will not be excluded, unless they were also objected to as underage, like J.M. (No. 199). This is because such individuals may have changed their minds since they were initially contacted. c. Individuals Who Are Ineligible or Revoked Eligibility Defendant has identified 17 individuals as IDEA ineligible or having revoked eligibility. It is unclear why these individuals are ineligible. Therefore, the Court shall not exclude these individuals at this time. If it turns out that they are in fact ineligible, they will be excluded from the class. 5. Individuals Who Are Incarcerated Defendant has not challenged the inclusion of incarcerated individuals, and these individuals are a 22

52 Case 1:10-cv SOM-KSC Document Filed Filed 02/18/16 04/12/16 Page Page of of PageID #: #: subgroup that cannot be ignored. Due to the complications with notifying potential class members who are presently incarcerated, the Court finds that the class should include those incarcerated individuals who would not otherwise be excluded from the class on one of the bases identified above. For the reasons articulated in this Order, the class shall include: 1) all undisputed individuals identified in Exhibit U to Defendant s Objection; 2) N.L., J.L., B.C., L.M., D.M., K.C., M.M., E.O., D.P.-K., M.P., S.S., M.Z., I.P.-K., R.B., and S.B. (individuals who are underage but who submitted declarations representing that they did not receive notice that they could receive services until age 22); 3) individuals identified in Exhibit U to Defendant s Objection who were not underage and who voluntarily exited school before age 20; and 4) incarcerated individuals who would not otherwise be excluded from the class on one of the grounds identified in this Order. 23

53 Case 1:10-cv SOM-KSC Document Filed Filed 02/18/16 04/12/16 Page Page of of PageID #: #: CONCLUSION In accordance with the foregoing, the Court HEREBY GRANTS IN PART AND DENIES IN PART the parties Motions. The class is hereby closed. No further efforts shall be undertaken to identify or contact potential class members. The Court orders the release of the class members educational records to Plaintiffs counsel. Additionally, the Court reminds counsel of the following provisions: Rule 1 of the Federal Rules of Civil Procedure, which emphasizes a shared responsibility to cooperate and secure the just, speedy, and inexpensive determination of every action, and Section 11 of the Guidelines of Professional Courtesy and Civility for Hawaii Lawyers regarding settlement and alternative dispute resolutions. 24

54 Case 1:10-cv SOM-KSC Document Filed Filed 02/18/16 04/12/16 Page Page of of PageID #: #: IT IS SO ORDERED. DATED: Honolulu, Hawaii, February 18, Kevin S.C. Chang United States Magistrate Judge CV SOM-KSC; R.P.-K., et al. v. DEPARTMENT OF EDUCATION; ORDER GRANTING IN PART AND DENYING IN PART 1) DEFENDANT S MOTION WITH REGARD TO EFFORTS IN IDENTIFYING CLASS MEMBERS AND 2) PLAINTIFFS MOTION RE IDENTIFICATION OF CLASS MEMBERS 25