ORDER ON PLAINTIFF'S MOTION TO BIFURCATE PROCEEDINGS AND MOTIONS TO PERMIT PRESENTATION OF ADDITIONAL EVIDENCE AND FOR LIMITED DISCOVERY AND DEFENDANTS' MOTION TO MODIFY SCHEDULING ORDER AND MOTION FOR LEAVE TO PRESENT ADDITIONAL EVIDENCE
The issue here is the standard for disqualifying anadjudicator for lack of impartiality. I conclude that groundsfor disqualification do not exist and that requested discoveryon the subject is unjustified.
Under the Individuals with Disabilities Education Act("IDEA"), parents are entitled to "an impartial due processhearing," 20 U.S.C.A. § 1415(f)(1) (West 2000), on theappropriateness of the individualized education programdeveloped for their child.1 According to United StatesDepartment of Education regulations, the hearing officer mustnot have a "personal or professional interest that wouldconflict with his or her objectivity in the hearing."34 C.F.R. § 300.508 (2000). Maine repeats this requirement in its stateregulations implementing the federal law. Me. Spec. Ed. Reg. ch.101, § 13.6(A) (1999).
In this lawsuit, the Falmouth School Committee ("SchoolCommittee") has requested judicial review of a state hearingofficer's unfavorable administrative decision requiring it toreimburse the defendants Mr. and Mrs. B. for the costs ofplacing their son, P.B., in private school. The School Committeefirst asks me to bifurcate the trial and hold an initialproceeding to evaluate its allegation that the hearing officerhad a disqualifying personal interest and to allow additionaldiscovery to obtain more information regarding that allegedbias. I conclude that the School Committee has insufficientevidence to support either request and DENY the motions.
The Commissioner of the Maine Department of Education appointshearing officers for due process hearings. In this case, thehearing occurred in the fall of 1999 and the hearing officerissued her decision on November 16, 1999. It wasadverse to the School Committee, requiring it to pay the costsof private school for P.B. even though his parents had placedhim in private school unilaterally. The School Committee hadpreviously made no objection to the hearing officer hearing thecase.
According to the Affidavit of Falmouth's Special EducationDirector, she first learned on March 8, 2000, that the hearingofficer "is in fact a parent of a child with a disability whohas placed her son in a private school due to her apparentdissatisfaction with the services her son had been receiving ina public school." Aff. of Elaine Tomaszewski ¶ 12. According tothe Special Education Director, the hearing officer neverdisclosed any potential conflicts of interest. As furtherevidence of partiality, the Special Education Director reports:
8. Throughout the course of the hearing during a number of breaks in the testimony, I overheard [the hearing officer] making frequent references to her son, what he was doing that day, daily child care issues with respect to him, and his education, to anyone who happened to be in the hearing room at the time.
9. On the first day of the hearing before the hearing began, [the hearing officer] commented to me that she had left her 11-year-old son alone at home that day and had instructed him to check in by phone regularly throughout the course of the day. As the day went on, [the hearing officer] seemed to be distracted by her own child care issues, as evidenced by her openly sharing with those in the room (which at times included the parents in this case, Defendants Mr. and Mrs. B) her own reports of her son's compliance with her instructions to him during breaks in the hearing.
10. At one point during a break in the testimony at the hearing, I walked into the hearing room and overheard [the hearing officer] discussing her own decision to place her son in a private school with the parents in this case, Mr. and Mrs. B. Specifically, I heard [the hearing officer] tell Mr. and Mrs. B that she had talked to the boy's father about placing her son in a private school, that she felt her son really needed the private school because of the "academics," that he would probably attend "through the ninth grade," and that "it gets complicated . . . the whole middle school thing."
11. On several occasions at the hearing I observed [the hearing officer] well up with tears during the testimony of both Mr. and Mrs. B regarding their son's and family's emotional difficulties. On one of those occasions during an emotional moment in the testimony of Mrs. B, [the hearing officer] appeared to have tears in her eyes and had to call for a break.
Aff. of Elaine Tomaszewski ¶¶ 8-11.
Affidavits also reveal that the School Committee Chair wroteto the hearing officer on December 10, 1999, requesting detailsabout the hearing officer's child's schooling and about exparte communications with Mr. and Mrs. B. about the hearingofficer's child's or their child's educational placement. Theletter was not answered. On February 7, 2000, the SchoolCommittee Chair wrote to the Commissioner of the MaineDepartment of Education to request answers. This letter, too,went unanswered. The School Committee's lawyer followed up witha letter of March 7, 2000. In the meantime, the School Committeehad requested another hearing on the subject of the family'sfailure to cooperate fully with the further evaluations of P.B.needed to develop a transition plan for his re-entry into publicschool. Following its custom, the Department of Educationappointed the same hearing officer, but in the writtenappointment of February 23, 2000, explicitly recognized theconflict of interest challenge. The Department directed thehearing officer to make a determination of the conflict ofinterest charge (if the School Committeepursued it) on the record with a court reporter. A pre-hearingoccurred on March 8, 2000; the School Committee pursued itschallenge, and the hearing officer rejected it. On March 13,2000, the Due Process Coordinator of the Maine Department ofEducation wrote the School Committee's lawyer that what happenedat the March 8 pre-hearing "adequately addressed theconcerns."2
At the March 8 pre-hearing, after listening to the SchoolCommittee's challenge, the hearing officer responded:
I will disclose personal information about my family situation. I am the parent of an 11 year old son. My son has moderate hearing loss. He attended public schools both in California and in Maine through the third grade. Last summer we moved to the mid-coast area and I enrolled him in a private school based purely on the fact that he is quite artistic and musical and so on. And through no fault of their own, but rather through a decade of financial constraints, I felt that the public schools were unable to provide the sort of arts education I thought that he would enjoy. I have had always perfectly wonderful relationships with various school districts. In this state it was Augusta and in California there were two school districts. I've never had a contested PET meeting.3 I've never filed for mediation or due process hearings. My son continues to receive speech and language services once a week. I transport him and that is out of SAD 50 in Thomaston. I also am not — do not recall ever having any ex parte communications with Mr. and Mrs. [B.] regarding anything that would impact — first of all, any communication I have had with Mr. and Mrs. [B.] have been in the hearing officer — in the hearing room, always in the presence of [Mr. and Mrs. B's lawyer], and typically in the presence of either yourself, [the School Committee lawyer], or [the Falmouth Special Education Director] or one of your witnesses as well as the court reporter. So I am here saying I have no recollection whatsoever of having ex parte communications with [Mr./Mrs. B.] on any topic that would impact on my ability to be neutral in this hearing. Therefore I am — and I must state, that I gave this a lot of thought and had extensive conversations with the department, and have decided not to recuse myself in this matter.
March 8, 2000 Tr. p. 8, line 13 to p. 10, line 2.
Cases like this are difficult for all concerned. Probablynothing is worse for a lawyer and client than to lose a case andthen come to believe that the deck was stacked against them fromthe start because the adjudicator had a conflict of interest orbias. The situation is compounded by the difficulty of obtaininginformation. No lawyer wants to "cross examine" an adjudicatoron what may turn out to be a losing argument, and then have thatadjudicator proceed to resolve the case. The client's suspicionwill be that any hostility is only increased.
At the same time, there are powerful institutional interestsin making post-decision challenges to an adjudicator theexception and not the rule. Each losing party searches for everypossible reason to attack a negative decision, and issues thatwere insignificant or evanescent before the decision suddenlyand unfairly (to the other party and the adjudicator) becomemonumental. An "appellate" tribunal is seldom in a good positionto make the necessary factual determination. Discovery presentsits own dangers. Unless a very high standard is set for anydisgruntled litigant to be able to question an adjudicator abouthis/her personal affairs, fishing expeditions on the subjectwill be inevitable.
There is little precedent for how a federal district courtshould resolve a challenge like this to an administrativehearing officer. I therefore turn to the practice of appellatecourts in reviewing recusal issues involving federal districtjudges under 28 U.S.C.A. § 455 (West 1993) for an analogy.There, the responsibility is on the party seeking recusal todevelop the factual record before the trial judge. See, e.g.,Pontarelli v. Stone, 978 F.2d 773, 775 (1st Cir. 1992); In reUnited States, 666 F.2d 690, 695 (1st Cir. 1981). Analogously,the proper forum to develop facts relating to disqualificationof a hearing officer in an IDEA case is on the record before thehearing officer. Indeed, that is what the Maine regulationsrequire:
The appointment of the hearing officer may only be challenged on the grounds of conflict of interest or bias. Upon the filing in good faith by a party of a timely charge of conflict of interest or bias, requesting that the hearing officer disqualify himself/herself, the hearing officer shall determine the matter as part of the record.
Me. Spec. Ed. Reg. ch. 101, § 13.6(B) (1999). I do not believethat the statutory authority of the district court to "hearadditional evidence at the request of a party," 20 U.S.C.A. §1415(i)(2)(B)(ii), contradicts this regulation or the policy onwhich it is based. Compare Grant v. Shalala, 989 F.2d 1332 (3dCir. 1993) (in Social Security Disability cases, remand to theSocial Security Administration for determination ofAdministrative Law Judge bias is required); Hummel v. Heckler,736 F.2d 91 (3d Cir. 1984). Here, therefore, assuming that thechallenge to the hearing officer was timely,4 the ordinarycourse would be to send the case back to the hearing officer todevelop the record on the disqualification issue. In this case,however, the opportunity to develop the record occurred at theMarch 8, 2000 pre-hearing and I have the record of thatproceeding. Nothing is to be gained by a remand.
What, then, is the evidence for disqualification? First,unlike the standard for federal judges under 28 U.S.C.A. §455(a) (West 1993), "appearance" of impartiality isinsufficient. A conflict of interest or actual bias, hostilityor prejudgment is required. Roland M. v. Concord School Comm.,910 F.2d 983, 997-98 (1st Cir. 1990). Accord Dell v. Board ofEduc., 32 F.3d 1053, 1064-66 (7th Cir. 1994).Here, the record reveals that the hearing officer has a childwith moderate hearing loss in private school and that she has nopast or pending disagreements with her public school districtsover placement or reimbursement. The School Committeehypothesizes that at some point in the future she may have adisagreement and that her decision in this case would be auseful precedent. That is too attenuated to amount to a conflictof interest or actual bias, hostility or prejudgment. The otherfactors are even less persuasive. Having a child with adisability is not alone disqualifying, as the School Committeeappropriately concedes. See Pl.'s Mot. to Permit Presentationof Additional Evidence and for Limited Disc. at 11 n. 7;Independent School Dist. No. 283 v. S.D., 948 F. Supp. 860, 877n. 26 (Minn. 1995) ("We find no basis to believe that such aparental responsibility would impact, favorably or unfavorably,upon the capacity of [a hearing officer] to responsibly andimpartially rule upon the propriety of an educational programfor a handicapped child"). The hearing officer's tears duringsome of the testimony reveals only that she is a human beingwith emotions. Every judge has had the same experience, and areading of the sealed record here about this child makesabundantly clear why such a reaction might occur. The allegedex parte conversation was only about the hearing officer's ownchild (indeed, it is unclear that anyone at the time knew thatthe child had any special education issues) and, although inretrospect it has created an issue, appears at the time to havebeen only passing social conversation.5
I recognize that the School Committee has assiduously stayedwith the facts available to it and has attempted to observe allthe proprieties in this difficult task of challenging theadjudicator. I also realize that its lawyer believes that herand her client's fears can only be put to rest by testimonyunder oath from the hearing officer and compelled recordproduction concerning her son. But there is simply not enoughhere to justify that kind of discovery intrusion into theindependence of the adjudicator. See El Fenix de Puerto Rico v.The M/Y JOHANNY, 36 F.3d 136, 141 n. 5 (1st Cir. 1994)(conflicting authority on appropriateness of discovery under28 U.S.C. § 455); Ricci v. Key Bancshares of Maine,111 F.R.D. 369, 373 n. 4 (Me. 1986) (discovery not appropriate in section455(a) case).6 The time to develop the record further (ifindeed there was any more to develop) was at the hearing onMarch 8, 2000. That was the time for further factual assertions(if they could be supported) or for further questions posed tothehearing officer following her own statement. (I do not mean tominimize how difficult a task that is for a lawyer.)
On this record, there is not enough to support discovery onthe disqualification issue or to find that disqualificationshould have occurred. The School Committee's motions tobifurcate the proceedings and for additional discovery areDENIED.
On the merits of the appeal, the parties have both filedmotions to supplement the record with evidence about eventsoccurring after the hearing officer's decision. Although theparents at first resisted the School Committee's motions, theynow appear to agree with part of it.
I am terminating the motions without action. First, I can nolonger tell what is disputed — the parents' most recent filingleaves me in doubt as to the parties' respective positions onadditional evidence. Second, I believe that a face-to-faceconference between the lawyers over what should be added, ifanything, to the record, reserving argument over relevance,would be a better use of their time. From the legal arguments itis hard for me to tell why any of it would be particularlyhelpful given the issue posed in this lawsuit, but then again Ido not really know the contents of this new evidence. Therefore,the lawyers shall meet and confer and report to the court byJuly 25, what they agree on and what they disagree on concerningsupplementation.
The Clerk's Office shall then schedule a conference of counsel(by telephone or in person) with the Magistrate Judge or with meto set final scheduling orders on the merits of the case.
1. Although the statute speaks in terms of the parents'right, the regulations and caselaw extend the right to allparties. In this case, it is the Falmouth School Committee thatasserts the right.
2. Earlier communication might have allayed some of theSchool Committee's concern that it was simply being ignored. Thehearing officer apparently consulted the Maine AttorneyGeneral's office and was told that she should not respond to theSchool Committee's "interrogatories." Mot. for Recusal Hr'g Tr.at 7, line 5, Falmouth School Committee v. B., Case No. 00.051(Mar. 8, 2000) (hereafter "March 8, 2000 Tr."). A letter soinforming the School Committee would have helped. Likewise, aresponse to the Chair's letter to the Commissioner — if only tosay that legal advice was being sought — would have been a step.Finally, according to the March 8 transcript, the hearingofficer was given to understand from the Department that it hadanswered the School Committee's letter. In fact, it had not, anddid not, until after the hearing.
3. "PET" stands for the Pupil Evaluation Team, which isresponsible for determining a student's eligibility for specialeducation and supportive services. Me. Spec. Ed. Reg. ch. 101, §8.1 (1999).
4. The timeliness issue is a close one. See Marcus v.Director, Office of Workers' Compensation Programs, U.S. Dep'tof Labor, 548 F.2d 1044, 1051 (D.C.Cir. 1976) ("general rulegoverning disqualification, normally applicable to the federaljudiciary and administrative agencies alike, . . . requires thatsuch a claim be raised as soon as practicable after a party hasreasonable cause to believe that grounds for disqualificationexist"); Delesdernier v. Porterie, 666 F.2d 116, 122-23 & nn.3-4 (5th Cir. 1982) (same). The affidavits are unclear onwhether the School Committee knew earlier that the hearingofficer had a child with special education needs. They are clearthat information about the child's placement was not gaineduntil March 8, 2000, presumably at the pre-hearing. But theSchool Committee bases its charge of partiality partly on thehearing officer's conduct at the November hearings. Because bothstate regulations and sound public policy require that a personchallenge the appointment of a hearing officer only in goodfaith, Me. Spec. Educ. Reg. ch. 101, § 13.6(B) (1999), Iconclude that the School Committee was justified in delaying itschallenge until it had more concrete information and thereforefind the challenge timely.
5. I must correct any intimation by the hearing officer thatit was not ex parte if the parents' lawyer was present. "Exparte " means meeting separately with only one side of thecontroversy. This was, therefore, an ex parte conversation asdescribed by the Special Education Director. Ex parteconversations are forbidden, however, only on the subject of thecontroversy. Adjudicators are not required to be mute when oneside enters the hearing room before the other. Clearly, however,even social conversation must be chosen with care because of theopportunity for misunderstanding.
6. The Third Circuit has allowed discovery in Social SecurityDisability appeals, see Hummel v. Heckler, 736 F.2d 91 (3dCir. 1984), but only in the narrow context "where informationrelating to a contention bearing on the fundamental fairness ofthe agency hearing is in the possession of the government." 736F.2d at 95. The issue in Hummel was whether the AdministrativeLaw Judge had been subjected to a so-called "Bellmon Review,"allegedly a statistical review to ensure that the AdministrativeLaw Judge was denying benefits in a sufficiently high percentageof cases. In a later case, the Third Circuit disapproved morewide ranging discovery:
Our decision in Hummel did not approve discovery of the type permitted here. In Hummel, we held that a claimant was entitled to discovery as to whether the ALJ had undergone a "Bellmon Review" and, if so, the nature of the review. 736 F.2d at 95. We did not sanction depositions of the ALJ's coworkers and staff.
Grant v. Shalala, 989 F.2d 1332, 1345 n. 17 (3d Cir. 1993).The court went on to describe how this broader discovery "wouldpose a substantial threat to the administrative process." Id.at 1345.