ORDER DENYING PLAINTIFF'S MOTION TO SUPPLEMENT THE ADMINISTRATIVE RECORD
DEAN D. PREGERSON, District Judge.
Presently before the court is Plaintiff A.A.'s (Plaintiff) Motion to Supplement the Administrative Record. Plaintiff appeals from a decision in an Individuals with Disabilities Education Act (IDEA) due process hearing held in the California Office of Administrative Hearings (OAH). Having considered the parties' submissions and heard oral argument, the court denies the motion and adopts the following Order.
I. Background
This case stems from Defendant Goleta Unified School District ("the District")'s refusal to fund an independent educational evaluation (IEE) of Plaintiff by an evaluator of Plaintiff's choosing. (Mot. at 1). Although the District agreed to fund an IEE, funding was conditioned on Plaintiff's chosen IEE evaluator meeting the District's Special Education Local Plan Area (SELPA) "cost criteria." (Declaration of Catherine Abarca at 2.) The District rejected Plaintiff's choice of IEE evaluator, finding that the evaluator's rates were too high. (Opp. at 2.) Plaintiff, through his guardian, then proceeded to pay the IEE evaluator's fee himself. (Decl. Abarca at 2.) The District then filed a due process complaint to determine whether Plaintiff was entitled to an independent IEE evaluator who did not meet the District's cost criteria. In response, Plaintiff filed a due process complaint against the District to determine whether the District denied him a free and appropriate public education (FAPE) by refusing to pay for the IEE. (Decl. Abarca at 2.) These two complaints were then consolidated by the OAH.
A. Mediation and Settlement Discussions
On January 6, 2015, the parties attempted mediation. (Declaration of Tania Whiteleather at 1-2.) Mediation was not successful, and the mediator indicated that "no agreement was reached." (Decl. Whiteleather, Ex. 1 at 1, 4.) On February 23, 2015, the District sent Plaintiff a ten-day settlement offer.1 (Decl. Melissa Hatch at ¶ 2.) Plaintiff responded to the settlement letter with proposed changes and a counter to the District's offer for Plaintiff's attorney fees. (Id. at ¶ 5; Decl. Whiteleather at 2.) After several exchanges between the parties, the District sent a revised proposed offer to Plaintiff on March 2, 2016. (Decl. Whiteleather at 2.) The parties could not reach an agreement, however, on the amount of attorney's fees. Defendant's counsel stated that if Plaintiff would not accept Defendant's fee offer, "then making changes to the agreement seems a waste of our respective effort." (Decl. Whiteleather, Ex. 2 at 1.) Plaintiff's counsel responded, "I agree; I will prepare for hearing. It is too bad." (Id.))
On March 8, 2015, one day before the OAH Hearing, Plaintiff contacted the District's attorney and informed her that the settlement was accepted. (Decl. Whiteleather Ex. 3 at 1.) The District then informed Plaintiff that the offer had expired when it was rejected on March 2, and that the district intended on moving forward with the OAH Hearing the next day. (Id.) During the OAH Hearing, Plaintiff attempted to include the settlement negotiations into the record. (AR at 894-98). The administrative law judge refused to include references to the settlement negotiations or to the March 8 exchange, finding that they were irrelevant to the issues at hand. (AR at 896). Plaintiff now moves to supplement the record to include the post-mediation settlement discussions.
II. Legal Standard
On review of an administrative decision in an IDEA case, the district court "shall hear additional evidence at the request of a party." E.M. v. Pajaro Valley Unified Sch. Dist. Office of Admin. Hearings, 652 F.3d 999, 1004 (9th Cir. 2011); 20 U.S.C. § 1415(i)(2)(C)(ii). The Ninth Circuit has held that "additional" in the context of the statute means "supplemental." Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1472-73 (9th Cir. 1993) (citing Perrin v. United States, 444 U.S. 37, 42 (1993)). Reasons to supplement the record may include "gaps in the administrative transcript owing to mechanical failure, unavailability of a witness, improper exclusion of evidence by the administrative agency, and evidence concerning relevant events occurring subsequent to the administrative hearing." Id. "The party seeking to supplement the administrative record bears the `threshold burden of demonstrating, at the time of the request, that the supplemental evidence should be admitted.'" D.A. v. Fairfield-Suisun Unified Sch. Dist., No. 2:11-CV-01174-GEB, 2012 WL 3885468, at *1 (E.D. Cal. Sept. 6, 2012) (citing Brandon H. ex rel. Richard H. v. Kennewich Sch. Dist. No. 17, 82 F.Supp.2d 1174, 1179 (E.D. Wash. 2000).
A district court is not, however, required to include all evidence proffered by the parties. See Ojai Unified Sch. Dist. v. Jackson, 4 F.3d at 1973. Rather, what constitutes "additional evidence" is left to the discretion of the trial court. Id. In considering the question, courts "must be careful not to allow such evidence to change the character of the hearing from one of review to a trial de novo." Id. A district court "must exercise particularized discretion in its rulings so that it will consider [only] evidence [that is] relevant, non-cumulative and useful." E.M. v. Pajaro Valley Unified Sch. Dist., 652 F.3d at 1005 (9th Cir. 2011) (internal quotation and citation omitted).
III. Discussion
In this case, Plaintiff seeks to include evidence of settlement negotiations that occurred after mediation and prior to the OAH Hearing. (Mot. at 3, 8.) Plaintiff argues that the evidence should be included in the record because much of the District's reason for denying the IEE evaluator hinges on the evaluator's high rates. (Id. at 3.) Plaintiff further argues that if the District accepted the settlement, both parties could have avoided costly and time-consuming litigation. (Id.) Plaintiff takes the District's refusal to accept the settlement as being inconsistent with the assertion that the IEE evaluator's rates are too high. (Id.) In response, the District argues that its reasoning behind choosing to proceed to the OAH Hearing is irrelevant to the issues currently being litigated. (Def.'s Opp'n. at 10.)
It appears to the court that the proffered evidence is potentially germane to a possible future dispute over attorney's fees. Plaintiff is concerned that, should he prevail and seek payment of his reasonable attorney's fees, Defendant will seek to reduce those fees pursuant to 20 U.S.C. § 1415(i)(3)(F) by arguing that Plaintiff "unreasonably protracted the final resolution of the controversy" by refusing to accept Defendant's settlement offer. 20 U.S.C. § 1415(i)(3)(F)(i); (Reply at 2-3). Plaintiff seeks so supplement the record so as to allow him to respond that he accepted, or attempted to accept, Defendant's 10-day offer, and therefore did not unreasonably draw out this proceeding.
Exercising, as it must, particularized discretion to ensure that it only hears relevant and useful evidence, the court finds that the settlement negotiations should not be included in the record. Plaintiff seeks to include the evidence to show that he attempted to resolve this dispute on March 8. By any objective reading, however, Plaintiff rejected the District's offer on March 2. The court will assume, for the sake of argument, that the District's message indicating that it would accept Plaintiff's substantive changes but not his attorney's fees demand constituted a 10-day offer. The District essentially said that Plaintiff could take the offer or leave it when counsel stated that, if Plaintiff would not accept the fee proposal, "then making changes to the agreement seems a waste of our respective effort." (Decl. Whiteleather, Ex. 2 at 1.) Plaintiff's counsel's response, "I agree; I will prepare for hearing. It is too bad," was a rejection of that offer. (Id.))
Plaintiff's motion appears to acknowledge as much, stating, "[W]hile Plaintiff at first rejected th[e] offer, he accepted it the day before the hearing." (Mot. at 8:11-12.) At argument and in his Reply, Plaintiff takes a different position, contending that a 10-day offer must stay open until the administrative hearing, and cannot, as a matter of law, be rejected by a plaintiff.2 The only authority or analogy Plaintiff cites, and that the Court has located, for this proposition is Garayalde-Rijos v. Municipality of Carolina, 799 F.3d 45 (1st Cir. 2015). There, the First Circuit held that a Rule 68 offer of judgment cannot be revoked within the fourteen day period established by the rule. Garayalde-Rijos, 799 F.3d at 765. Because Rule 68 "does not even contemplate a counteroffer or an affirmative rejection," the court concluded that "even an express rejection does not terminate a Rule 68 offeree's power to accept the offer within a fourteen-day period." Id. at 47, 48. The court supported its reasoning with citations to the District of Columbia Circuit's decision in Richardson v. Nat'l R.R. Passenger Corp., 49 F.3d 760 (D.C. Cir. 1995) and the "few federal courts" and commentators that have discussed this issue, and which have "treated Rule 68 offers as at least irrevocable during the 14-day period." Id. at 47 (quoting Richardson, 49 F.3d at 764).
This court respectfully declines to follow the Garayalde-Rijos court's approach. As explained by that court, and the authorities upon which the court relied, allowing the revocation or withdrawal of a Rule 68 offer, or the ten-day offer at issue here, would tilt the balance of settlement power too far in an offeror's favor and frustrate the rule's purpose of encouraging the settlement of private disputes. See id. at 47. None of the authorities cited by the Garayalde-Rios court, however, appear to have extended that principle so far as to suggest that a Rule 68 offer cannot be rejected. In this Court's view, to allow an offeree to expressly, or even repeatedly, reject an offer, and thus induce the opposing party to continue to prepare for hearing or trial, but then accept that very same offer on the eve of trial would disturb Rule 68's balance as least as much as allowing an offeror to withdraw a proposal, and would similarly vitiate the rule.
Having so concluded, this Court finds that the evidence proffered by Plaintiff is not relevant. Plaintiff rejected the District's offer on March 2, and his subsequent efforts to revive the deal do nothing to alter that fact.
III. Conclusion
For the reasons stated above, Plaintiff's Motion to Supplement the Record is DENIED.3
IT IS SO ORDERED.
