United States District Court, D. Alaska
ORDER RE MOTION TO REMAND
SHARON
L. GLEASON UNITED STATES DISTRICT JUDGE
Before
the Court is Appellant's Motion to Remand at Docket 6.
The motion is fully briefed.[1] Oral argument was not requested
on the motion and was not necessary to the Court's
determination. For the reasons set forth below, the motion
will be denied.
BACKGROUND
M.G.
experiences multiple disabilities, including autism,
gastrointestinal disorders, cognitive impairments, and
impending blindness.[2] Pursuant to the Individuals with
Disabilities Education Act (“IDEA”), in order for
school districts to provide free appropriate public education
(“FAPE”) to disabled students, school districts
are required to provide an Individualized Education Plan
(“IEP”) for each individual disabled
student.[3] M.G.'s IEP established he needed to
attend a school for the blind in order to address his
impending blindness. When the parties were unable to agree on
how to implement the IEP, M.G.'s parents
(“Parents”) unilaterally enrolled M.G. at the
Perkins School for the Blind in Watertown,
Massachusetts.[4]
On
January 7, 2017, Parents requested a due process hearing
before a State of Alaska Department of Education and Early
Development (“DEED”) hearing officer, alleging
that ASD failed to provide M.G. with education at a school
for the blind, violating M.G.'s FAPE in violation of the
IDEA. The hearing officer identified the issues before her as
follows:
1) Did the District fail to timely implement student's
IEP by failing to select an appropriate residential placement
for him[;]
2) Did the District fail to provide FAPE to MG in a timely
manner prior to his parents seeking enrollment at Perkins
School for the Blind[; and]
3) Is Perkins an appropriate placement?[5]
The
hearing officer held that “ASD failed to implement
student's IEP in a timely manner by not selecting a safe
and appropriate residential placement.”[6] The hearing
officer ordered ASD to pay for M.G. to attend Perkins from
May 1, 2017 through February 17, 2018 and to reimburse
Parents $1, 388 per day for residential private school
tuition, deposits, and travel expenses.[7]
On June
30, 2017, ASD initiated this administrative appeal in
Anchorage Superior Court seeking reversal of the DEED hearing
officer's decision.[8] The case was assigned to Judge Jack
Smith. On July 7, 2017, Parents timely exercised their right
to peremptorily challenge Judge Smith pursuant to Civil Rule
42(c). The state court promptly reassigned the case to
another superior court judge.[9] Two days later, on July 12, 2017,
Parents removed the case to this Court, asserting federal
question jurisdiction under 28 U.S.C. §
1331.[10] Parents' Notice of Removal states
that the “civil action in which the causes of action
alleged in the State Court action Complaint arise under the
laws of the United States, primarily the
IDEA.”[11] ASD now moves to remand the case back to
the state court. It maintains that no federal question
jurisdiction exists; and if there is such jurisdiction,
Parents waived their right to assert it by exercising the
peremptory disqualification in state court.
DISCUSSION
I.
Federal Question Jurisdiction
ASD
alleges that federal question jurisdiction does not exist
because the case involves “a state hearing
officer's decision interpreting state law and a local
school district's efforts to provide a FAPE under state
law” and therefore, does not present a federal
question.[12] ASD also argues its appeal presents a
question of Alaska law that “is best left to Alaska
courts.”[13] Parents respond that the appeal is
removable because it is an IDEA case and “federal
courts share original jurisdiction over IDEA cases with state
courts.”[14]
Federal
question jurisdiction that will support removal “is
governed by the ‘well-pleaded complaint rule, '
which provides that federal jurisdiction exists only when a
federal question is presented on the face of the
plaintiff's properly pleaded
complaint.”[15] “[T]he mere reference of a federal
statute in a pleading will not convert a state law claim into
a federal cause of action if the federal statute is not a
necessary element of the state law claim and no preemption
exists.”[16] “[T]he federal law must be a
direct and essential element of the plaintiff's cause of
action”[17] and must be a substantial one,
"indicating a serious federal interest in claiming the
advantages thought to be inherent in a federal
forum.”[18]
Here,
ASD's Statement of Points on Appeal asserts two
violations of the IDEA.
ASD's
second point on appeal is as follows:
Whether the Hearing Officer failed to consider the legal
effect of, or properly weigh, the parents removal of the
student from his placement in Anchorage during the pendency
of the due process hearing, in violation of the “stay
put” provision of the Individuals with Disabilities
Education Act. 20 U.S.C. § 1415(j); see also
Madeline P. v. Anchorage Sch. Dist., 265 P.3d 308, 311
(Alaska 2011) (“Unless the educational agency and the
parents agree otherwise, the child ‘remain[s] in the
then-current educational placement' (a ‘stay
put') during the pendency of the
challenge.”).[19]
ASD's
ninth point on appeal is as follows:
Whether the Hearing Officer erred or violated ASD's due
process rights in not undertaking an equitable analysis of
the reasonableness of the parents' total reimbursement
request to Perkins School for the Blind, and/or not
undertaking the necessary two-part analysis announced in
Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S.
7, 15 (1993) (holding that reimbursement for private
placement expenses is appropriate only if (1) the
school district's placement violated the IDEA, and (2)
the alternative placement was proper under the statute
(emphasis in original)).[20]
When
addressing the two points listed above, a court will be
required to consider the IDEA. Clearly, federal law is a
direct and essential element to these claims on appeal.
Indeed, ASD specifically argued in its Motion for Expedited
Consideration that Parents violated the IDEA's
“stay put” provision and cited only to federal
law as it relates to the IDEA.[21]
ASD
asserts that this Court should follow the reasoning in
Bay Shore Union Free School District v.
Kain.[22] In that case, the Second Circuit held
that the district court did not have jurisdiction to hear a
case alleging a school district did not provide FAPE to a
disabled student. The Second Circuit observed that the IDEA
establishes a “basic floor” that states must
comply with, but that states have the ability to “enact
their own laws and regulations to guarantee a higher level of
entitlement to disabled students.”[23] In Bay
Shore, the parties agreed that the services in dispute
were not required by the IDEA. The dispute focused on whether
state law required the student receive the disputed services.
The Second Circuit held that the district court did not have
jurisdiction to hear the case because the case
“turn[ed] entirely on a state-law
issue.”[24]
In this
case, ASD argues that Alaska regulations “specifically
address[] this type of dispute . . . .”[25] However, ASD
cites to regulations that are procedural in nature and do not
provide a “higher level of entitlement” to
disabled students than the IDEA.[26] Moreover, Alaska's
regulations specifically state that the state's
requirements must conform to statutes found within the
IDEA.[27] Unlike the issue in Bay Shore,
this case does ...