Nack v. Orange City School ( 2006 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0262p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellant, -
DAVID NACK ex rel. ALICE NACK,
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No. 05-3256
v.
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ORANGE CITY SCHOOL DISTRICT, -
Defendant-Appellee. -
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Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 03-01691—Ann Aldrich, District Judge.
Submitted: June 8, 2006
Decided and Filed: July 26, 2006
Before: SILER, DAUGHTREY, and ROGERS, Circuit Judges.
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COUNSEL
ON BRIEF: Stephen Walker, Beachwood, Ohio, for Appellant. Susan C. Hastings, Chandra S.
Bowling, SQUIRE, SANDERS & DEMPSEY, Cleveland, Ohio, Scott C. Peters, Krista K. Keim,
Lori A. Kosakowski, BRITTON, SMITH, PETERS & KALAIL, Cleveland, Ohio, for Appellee.
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OPINION
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SILER, Circuit Judge. In this action for relief under the Individuals with Disabilities
Education Act (“IDEA”), plaintiff David Nack (“Nack”)1 appeals the district court’s grant of
summary judgment to the Orange City School District (“Orange”). Nack sued Orange for denying
him a free and appropriate public education (“FAPE”) because of various deficiencies with the
Individualized Education Programs (“IEP”) it had crafted and implemented for David. The district
court concluded that none of the challenged IEPs denied David a FAPE and granted summary
judgment to Orange. We affirm.
1
As the district court did, the court will employ “Nack” generically to refer to the plaintiff, i.e., David Nack,
suing through his parent and legal guardian, Alice Nack. When discussing specific actions taken by either David or his
mother, the court will describe these individuals as “David” and “Mrs. Nack” respectively.
1
No. 05-3256 Nack v. Orange City School District Page 2
BACKGROUND
David began attending Orange as a fifth-grader at the beginning of the 2000-01 school year.
Prior to attending Orange, David had been diagnosed with a speech-language deficit and a learning
disability, and was found eligible for special education services. Because of this, his education had
been governed by a succession of IEPs based upon multi-factored evaluations (“MFE”) of his
learning ability and behavior. Mrs. Nack, a special education teacher with a master’s degree in the
field and extensive experience, was always very involved in David’s education and the development
of his IEPs. Accordingly, when David was enrolled in Orange, Mrs. Nack met shortly thereafter
with April Siegel-Green, Coordinator of Special Education, to discuss various IEP issues and
concerns and to provide a copy of David’s fifth-grade IEP (which had already been developed at his
previous school) to Siegel-Green. Orange educated David in accordance with the dictates of this
fifth-grade IEP.
At the end of the fifth-grade year, David was performing at grade level and received passing
grades in each of his subjects. In April 2001, David’s IEP team, which included Mrs. Nack, two
teachers, a speech language therapist, and Siegel-Green, met to develop an IEP for the 2001-02
school year – David’s sixth-grade year. The sixth-grade IEP contained various changes to David’s
schooling, and Mrs. Nack signed off on the document. Staff meetings were held on a weekly basis
to discuss David’s progress, and David was educated pursuant to the IEP. However, beginning in
October 2001 and continuing throughout the school year, David began experiencing disciplinary
problems at school. In an attempt to rein in David’s behavior, Mrs. Nack met with David’s IEP team
and the team amended his IEP to address these new concerns. Mrs. Nack initialed the changes to
the IEP occurring at this meeting. Among these changes was to have David attend a social skills
group in the Middle School Positive Alternative Success Strategies (“MPASS”) classroom at Orange
– a special education classroom. Later, Mrs. Nack repeatedly expressed her unhappiness with
David’s placement in the MPASS classroom.
Due to both absence and suspension from school, David was attending school infrequently
by the end of February. Numerous meetings between Mrs. Nack and school officials sought to
address this problem and David’s IEP was changed accordingly; however, his attendance remained
sparse. In April, David was hospitalized for almost a week after making “suicidal threats at home”
that he attributed to “his problems at school.” Also, Mrs. Nack explored the option of home
schooling her son during this time, with assistance from Orange. Ultimately, David scored
proficient for all of the subjects on the Ohio Sixth-grade Proficiency Tests, even scoring advanced
proficient in writing.
In May 2002, David’s IEP team met for the first of three meetings concerning his IEP for
his seventh-grade year in 2002-03. Ultimately, the team developed an IEP that identified the
MPASS classroom as the least restrictive environment for David and recommended he spend a
portion of his day in that classroom. Mrs. Nack disagreed with this assessment and placement and
refused to consent to the seventh-grade IEP. She filed a due process complaint against the school
in June 2002 and Orange filed its own due process complaint the same month, seeking to impose
a more restrictive environment on David. The Impartial Hearing Officer (“IHO”) found that “the
implementation of the 2000-01 IEP and the creation and implementation of the 2001-02 IEP”
provided David “with a FAPE and were designed to impart meaningful educational benefit.” The
IHO also found that the placement of David in a more restrictive environment (the MPASS
classroom) was appropriate. The seventh-grade IEP was found to provide David a FAPE, except
to the extent that it failed “to address the need for individual psychotherapy on a weekly basis.” The
IHO found that flaw denied David a FAPE. On appeal, the State Level Review Officer (“SLRO”)
agreed with the IHO’s conclusions, except that the SLRO found the seventh-grade IEP was adequate
as drafted with regard to psychotherapy. Thus, the SLRO found completely in Orange’s favor.
No. 05-3256 Nack v. Orange City School District Page 3
After Nack appealed, the district court granted summary judgment to Orange, affirming the SLRO’s
decision “that none of the challenged IEPs denied David a FAPE.”
DISCUSSION
I. IDEA Issues
“The IDEA was designed to give children with disabilities a free appropriate public
education designed to meet their unique needs.” Burilovich v. Bd. of Educ. of Lincoln Consol. Sch.,
208 F.3d 560, 566 (6th Cir. 2000) (citations omitted). A FAPE “consists of educational instruction
specially designed to meet the unique needs of the handicapped child, supported by such services
as are necessary to permit the child ‘to benefit’ from the instruction.” Bd. of Educ. of the Hendrick
Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 188-89 (1982); see also 20 U.S.C. § 1401(9).
As part of providing a FAPE, school districts receiving funds under the IDEA are
required to establish an IEP for each child with a disability. The IEP must contain
a specific statement of the child’s current performance levels, the child’s short-term
and long-term goals, the educational and other services to be provided, and criteria
for evaluating the child’s progress.
Deal v. Hamilton County Bd. of Educ., 392 F.3d 840, 853 (6th Cir. 2004).
There are two parts – procedural and substantive – to a court’s inquiry in IDEA suits. Deal,
392 F.3d at 853. “First, the court must determine whether the school system has complied with the
procedures set forth in the IDEA. Second, the court must assess whether the IEP developed through
those procedures was reasonably calculated to enable the child to receive educational benefits.” Id.
at 853-54 (citations omitted). “If these requirements are met, the State has complied with the
obligations imposed by Congress and the courts can require no more.” Rowley, 458 U.S. at 207.
Furthermore, it is clear that “parents have the burden of proving by a preponderance of the evidence
that the IEP was inadequate.” Renner v. Bd. of Educ. of Pub. Sch. of City of Ann Arbor, 185 F.3d
635, 642 (6th Cir. 1999) (internal quotations and citations omitted).
District courts are required to conduct a “modified de novo review” of the administrative
proceedings in IDEA cases. N.L. ex rel. Mrs. C. v. Knox County Sch., 315 F.3d 688, 692 (6th Cir.
2003).
Under a modified de novo standard of review, a district court is required to make
findings of fact based upon a preponderance of the evidence contained in the
complete record, while giving some deference to the fact findings of the
administrative proceedings, particularly when educational expertise is essential to
the findings.
Id. (citations omitted).
We “must ensure that there are no genuine issues regarding the facts essential to the hearing
officer’s decision.” Burilovich, 208 F.3d at 567 (citation omitted). It is appropriate to “rely upon
the hearing officer’s presumed educational expertise, as long as the material facts underlying the
officer’s determination are not in dispute.” Id. Nack makes three specific procedural challenges to
the IEPs before us and also substantively alleges that David’s sixth- and seventh-grade IEPs were
not reasonably calculated to enable him to receive educational benefits. Each charge will be dealt
with in turn.
No. 05-3256 Nack v. Orange City School District Page 4
A. Procedural Violations
With regard to procedural matters, a court should “strictly review an IEP for
procedural compliance,” although technical deviations will not render an IEP invalid.
Dong, 197 F.3d at 800; see Cleveland-Heights-Univ. Heights City Sch. Dist. v. Boss
ex rel. Boss, 144 F.3d 391, 398 (6th Cir. 1998) (noting that “minor technical
violations may be excused”). A finding of procedural violations does not necessarily
entitle appellants to relief. Knable [ex rel. Knable], 238 F.3d [755,] 764 [(6th Cir.
2001)]. Only if a procedural violation has resulted in substantive harm, and thus
constitutes a denial of a FAPE, may relief be granted. Id. The Supreme Court has
emphasized the importance Congress attached to the IDEA’s procedural safeguards:
[T]he congressional emphasis upon full participation of concerned
parties throughout the development of the IEP, as well as the
requirements that state and local plans be submitted to the Secretary
for approval, demonstrates the legislative conviction that adequate
compliance with the procedures prescribed would in most cases
assure much if not all of what Congress wished in the way of
substantive content in an IEP.
Rowley, 458 U.S. at 206. “If the procedural requirements of the IDEA are met,
greater deference is to be afforded to the district’s placement decision.” Dong, 197
F.3d at 800.
Deal, 392 F.3d at 854.
Nack argues that Orange procedurally violated the IDEA in the following ways: (1) it
predetermined a particular program for David without regard for his individual needs; (2) all of
David’s IEPs at Orange failed to procedurally comply with the IDEA; and (3) Mrs. Nack was given
inadequate notice with regard to David’s seventh-grade IEP.
1. Predetermination
Nack first argues that Orange violated the IDEA with David’s seventh-grade IEP by deciding
to place David out of the mainstream of the regular education environment without first considering
an “array of inclusion settings with supplemental aids and support services.” In effect, Nack alleges
predetermination – that Orange had “pre-selected” a particular program for David “regardless of
[his] demonstrated individual needs.” Deal, 392 F.3d at 855. Predetermination amounts “to a
procedural violation of the IDEA.” Id. at 857. It can cause substantive harm, and therefore deprive
a child of a FAPE, where parents are “effectively deprived” of “meaningful participation in the IEP
process.” Id. However, predetermination is not synonymous with preparation. Federal law
“prohibits a completed IEP from being presented at the IEP Team meeting or being otherwise forced
on the parents, but states that school evaluators may prepare reports and come with pre-formed
opinions regarding the best course of action for the child as long as they are willing to listen to the
parents and parents have the opportunity to make objections and suggestions.” Knox County Sch.,
315 F.3d at 694; see also 34 C.F.R. § 300, App. A, No. 32. We have emphasized that this
“[p]articipation must be more than mere form; it must be meaningful.” Deal, 392 F.3d at 858(citations omitted; emphasis in original). We review a predetermination decision de novo, “since
it is a mixed question of law and fact.” Id. at 857 (citation omitted).
Nack points to a variety of evidence that he claims proves predetermination, including the
school’s written notice, Laurie Barron’s testimony, Linda Cusick’s testimony, and certain
conclusions by the IHO. However, this evidence, while signaling Mrs. Nack’s disagreement with
Orange’s ultimate decision, does little to prove Nack’s claim that Orange had predetermined David’s
No. 05-3256 Nack v. Orange City School District Page 5
educational path. In fact, three separate IEP meetings were held concerning David’s seventh-grade
IEP and Mrs. Nack actively participated in each of these meetings. Prior to and during these
meetings, Mrs. Nack repeatedly made school officials aware of her “disapproval of David’s
participation” in the MPASS program and her desire for him to remain in “regular education”
setting. Mrs. Nack was always able to be a significant part of the discussions concerning the 2002-
03 IEP.
[T]his is a far cry from the situation in Deal where the Sixth Circuit found (1)
numerous procedural and substantive errors, (2) that the school district had an
unofficial policy of refusing to consider certain programs regardless of the child’s
needs, and (3) that the district’s main concern was financial. Indeed, in Deal, the
parents were not even allowed to ask questions during the IEP meetings.
Winkelman v. Parma City Sch. Dist., 411 F.Supp.2d 722, 728-29 (N.D. Ohio 2005) (citing Deal, 392
F.3d at 855-59). Likewise, in Spielberg ex rel. Spielberg v. Henrico County Public Sch., 853 F.2d
256, 259 (4th Cir. 1988), the Fourth Circuit found predetermination in a situation where the school
“resolved to educate [the child] at [one school], and then developed an IEP to carry out their
decision.” There is simply no evidence here that Orange had pre-decided David’s fate prior to the
IEP meeting. While there clearly had been ongoing discussions concerning David and certain
portions of the IEP had been drafted in advance, “school evaluators may prepare reports and come
with pre-formed opinions regarding the best course of action for the child as long as they are willing
to listen to the parents and parents have the opportunity to make objections and suggestions.” Knox
County Sch., 315 F.3d at 694. Here, Mrs. Nack was given many opportunities to comment on the
IEP and, by every indication, Orange took her suggestions seriously. In the end, there is insufficient
evidence in the record to prove a procedural violation of the IDEA through predetermination.
2. Validity of David’s IEPs
Next, Nack claims that Orange procedurally violated the IDEA since the various IEPs
created for David did not conform to the requirements of 20 U.S.C. § 1414(d)(1)(A). The SLRO
found that there were no procedural violations in the fifth-grade or seventh-grade IEPs. As for the
sixth-grade IEP, the SLRO, like the IHO, ruled that procedural errors were committed, including
“that either sufficient present levels of educational performance were not provided or were not
provided to the extent necessary to implement goals and objectives,” and that Orange had “fail[ed]
to provide weekly assignment sheets.” However, the SLRO ruled that there was no substantive
violation in that “these errors in the IEP [neither] resulted in a loss of educational opportunity for
the Student or infringed upon Parent’s opportunity to participate in the IEP process.” On review,
the district court noted that Orange did not dispute that the IEPs were incomplete, but the court
ultimately found that “there [was] no evidence that David or Mrs. Nack suffered any substantive
harm as a result of the omission of such data, and thus nothing to connect the procedural
shortcomings to actual denial of educational opportunities for David.”
Looking first to the fifth- and seventh-grade IEPs, Nack asserts that these IEPs failed to
conform to the requirements of § 1414(d)(1)(A), but points to no particular portions of the IEPs that
are flawed and instead chooses to simply state that the IEPs failed to conform to many of the IDEA’s
requirements. Nevertheless, a review of the fifth-grade IEP shows that it fully complies with the
requirements of § 1414(d)(1)(A)(I) and 34 C.F.R. § 300.347 in that it contains all of the required
information and there are no allegations that Orange erred in its implementation. Similarly, the
seventh-grade IEP contains the required information and Nack again fails to point to any specific
No. 05-3256 Nack v. Orange City School District Page 6
problems.2 Given both the apparent completeness of each IEP and that Nack points to no particular
deficiencies with the creation or implementation of the IEPs, the fifth- and seventh-grade IEPs
satisfy the procedural requirements of the IDEA. See 20 U.S.C. § 1414(d)(1)(A)(I); 34 C.F.R.
§ 300.347(a).
As for the sixth-grade IEP, Orange concedes that it failed to appeal to the SLRO the IHO’s
decision that David’s sixth-grade IEP did not conform with the requirements of 20 U.S.C.
§ 1414(d)(1)(A). Therefore, we assume that David’s sixth-grade IEP was procedurally flawed.
Nonetheless, “[a] procedural violation of the IDEA is not a per se denial of a FAPE; rather, a school
district’s failure to comply with the procedural requirements of the Act will constitute a denial of
a FAPE only if such violation causes substantive harm to the child or his parents.” Knable ex rel.
Knable v. Bexley City Sch. Dist., 238 F.3d 755, 765 (6th Cir. 2001) (citations omitted). Substantive
harm occurs when the procedural violations in question either “seriously infringe upon the parents’
opportunity to participate in the IEP process” or “deprive an eligible student of an individualized
education program or result in the loss of educational opportunity.” Id. at 765-66 (citations omitted).
Mrs. Nack does not allege that her opportunity to participate in the IEP process was seriously
infringed upon by these procedural violations. Instead, relying heavily upon the Sixth Circuit
decision in Boss, 144 F.3d 391, Nack argues that David was substantively harmed by the failure of
the IEP to provide a baseline to measure David’s future progress.
In Boss, the IEP did not include “appropriate objective criteria for measuring [the child’s]
progress,” 144 F.3d at 398, and instead contained only “vague and general statements,” id. at 394
n.1. Since the required components of an IEP are how “the adequacy of an IEP is to be judged,” we
held that this violation was “far from technical” and not harmless since the “omission went to the
heart of the substance of the plan.” Id. at 398-99. We distinguished a prior case, Doe ex rel. Doe
v. Defendant I, 898 F.2d 1186 (6th Cir. 1990), by noting that the ruling in that case “relied upon the
undisputed fact that ‘the information absent from the IEP was known to all parties.’” Id. at 399.
Defendant I held that invalidating an IEP for minor technical violations would “exalt form over
substance” given the Supreme Court’s concern with “[a]dequate parental involvement and
participation in formulating an IEP, not adherence to the laundry list of items” now in
§ 1414(d)(1)(A)(i). 898 F.2d at 1191.
This case appears closer to Defendant I than Boss. The primary shortcoming of the sixth-
grade IEP was its failure to provide a baseline by which to measure David’s future progress.
However, as the IHO noted, David’s test results, which he scored at or above proficiency standard
in all categories, along with Maxine Rosenbaum’s probes showing David’s progress, demonstrated
that he derived educational benefits from the sixth-grade IEP as implemented. Moreover, as the IHO
noted, the short-term objectives in the IEP are capable of measurement and are not as vague and
2
Mrs. Nack does claim that Orange “did not assess David in all areas related to all his disabilities” in his
seventh-grade IEP and that this also constituted a procedural violation of the IDEA under 20 U.S.C. § 1414(b)(3). She
argues that Dr. Anders’s uncontradicted testimony proves this, but the IHO unreasonably refused to consider it. Despite
these claims, there is ample evidence in the record to support Orange’s assertion that it was unaware of Anders’s
assessment of David at the time it completed the seventh-grade IEP. As the IHO noted, “it was not appropriate for the
parent to expressly withhold this information from team participants at these meetings and now to raise the need for an
occupational therapy evaluation as an issue in due process.” Due to Orange’s lack of knowledge of Anders’s
occupational evaluation and the fact that Mrs. Nack had previously forbade the school system from proceeding with
“general intelligence, achievement, or communicative status direct assessments of David,” Mrs. Nack cannot claim that
the school system erred by not having information that she withheld from them. See Cleveland Heights-Univ. Heights
City Sch. Dist. v. Boss ex rel. Boss, 144 F.3d 391, 398 (6th Cir. 1998).
No. 05-3256 Nack v. Orange City School District Page 7
generalized as in Boss. In the end, the minor procedural violations of the sixth-grade IEP cannot be
said to have caused David any substantive harm.3
3. Notice
Nack also argues that Orange’s written notice to Mrs. Nack concerning David’s seventh-
grade IEP falls short of the notice required under the IDEA because it fails to adequately discuss the
various placement options considered. Nack is correct that 20 U.S.C. § 1415(c)(1)(E) requires a
school system’s notice to parents to contain “a description of other options considered by the IEP
Team and the reason why those options were rejected.” Even so, Orange’s notice to Mrs. Nack
fulfills this requirement. The notice provided by Orange clearly states the other options considered
by the IEP team (inclusion classrooms and small group instruction via a tutor) and goes on to state
why those options were rejected (David’s past behavior in school and his lack of success in less
restrictive environments).
B. Substantive Violations
The second prong of Rowley requires us to determine whether David’s IEPs were
reasonably calculated to enable David to receive educational benefits. See 458 U.S. at 206-07. “The
party challenging the terms of an IEP bears the burden of proving that it is inappropriate.” Knable,
238 F.3d at 768 (citation omitted). Moreover,
administrative findings in an IDEA case may be set aside only if the evidence before
the court is more likely than not to preclude the administrative decision from being
justified based on the agency’s presumed educational expertise, a fair estimate of the
worth of the testimony, or both. A court should defer to the administrative findings
only when educational expertise is relevant to those findings and the decision is
reasonable . . . . We also reiterate that, when there is a conflict between the holdings
of the local and state hearing officers, the court must defer to the state hearing
officer’s decision in reviewing the record on appeal.
Burilovich, 208 F.3d at 567.
Nack claims that David’s lack of progress during his sixth-grade year, Martin’s testimony
that the seventh-grade IEP did not “adequately address” David’s behaviors, and David’s increasingly
problematic behavior prove that his IEPs for his sixth- and seventh-grade years were not reasonably
calculated. The “IDEA does not require that a school either maximize a student’s potential or
provide the best possible education at public expense. The statute only requires that a public school
provide sufficient specialized services so that the student benefits from his education.” Fort
Zumwalt Sch. Dist. v. Clynes, 119 F.3d 607, 612 (8th Cir. 1997) (citing Rowley, 458 U.S. at 195,
203). Orange diligently worked with Mrs. Nack to give David an education that was highly focused
on his individual needs. The IHO’s findings of facts reveal no less than a dozen email
communications and sixteen face-to-face meetings between Mrs. Nack and school officials over the
period of August 2000 to June 2002. Moreover, daily communications regarding David’s homework
were sent home to Mrs. Nack beginning in the sixth-grade school year, weekly assignment sheets
were implemented as well later that year, and weekly staff meetings were held for David’s teaching
team to discuss his progress.
3
The SLRO also determined that Orange had failed “to provide weekly assignment sheets” for a period of
roughly three months. But the IHO determined that this technical violation did not affect Nack’s educational opportunity
because his teacher provided daily communications in a student agenda book. It does not appear that Nack has
challenged the IHO’s conclusion. See Nack’s Br. at 42 (listing other deficiencies with the IEPs).
No. 05-3256 Nack v. Orange City School District Page 8
Apart from the effort expended by Orange, the instruction was also highly focused upon
ensuring progress in David’s troubled areas. The record shows an extraordinary effort by Orange
to tailor its educational offerings to David’s needs. All of David’s IEPs contain detailed plans for
his education in a variety of settings and include numerous accommodations and various instances
of individualized instruction. Moreover, as David encountered problems during his sixth-grade year,
Orange revised David’s IEP and added additional services in order to better reflect David’s changing
needs and behaviors and Mrs. Nack’s concerns about her son. The individualized tailoring was
further evidenced during the development of the seventh-grade IEP.
To the extent that Nack relies upon David’s lack of progress during his sixth-grade year as
proof of the fallibility of Orange’s IEP, the argument misses the mark. As stated above, the IDEA
does not guarantee success – it only requires a school to “provide sufficient specialized services so
that the student benefits from his education.” Fort Zumwalt Sch. Dist., 119 F.3d at 612 (citing
Rowley, 458 U.S. at 195). As for Martin’s report and recommendations, which Nack claims were
ignored by the IEP team, David’s seventh-grade IEP incorporated the vast majority of these
recommendations. In any event, the fact that the IEP team chose not to adopt all of Martin’s
recommendations hardly compels the conclusion that the IEP itself was lacking.
II. Independent Review of the Evidence
Nack also alleges that she recently learned that the district court failed to make an
independent review of the evidence as required under controlling precedent. See Burilovich, 208
F.3d at 566. Although the district court docket sheet indicates that the administrative record was
not filed in the district court at the time that the district court issued its decision, we need not remand
this case. First, Nack offers no reason why she could not have discovered and addressed this error
in the court below. Second, she fails to describe how the district court’s failure to have the record
filed affected the outcome of this case. Indeed, our own independent examination of the record
convinces us that the district court’s determinations were correct.
III. Motion for Costs and Attorney’s Fees
Finally, Orange has filed a motion with this court requesting attorney’s fees and costs
relating to Nack’s failure to include in the joint appendix portions of the record that Orange
designated in its proof brief. Federal Rule of Appellate Procedure 30(a)(1) states, “The appellant
must prepare and file an appendix to the briefs containing . . . other parts of the record to which the
parties direct the court’s attention.” Moreover,
In the absence of an agreement, the appellant must, within 10 days after the record
is filed, serve on the appellee a designation of the parts of the record the appellant
intends to include in the appendix and a statement of the issues the appellant intends
to present for review. The appellee may, within 10 days after receiving the
designation, serve on the appellant a designation of additional parts to which it
wishes to direct the court’s attention. The appellant must include the designated
parts in the appendix.
FED. R. APP. P. 30(b)(1). The Sixth Circuit Rules add:
(b) Designation of Contents. The appellant shall file and serve as an addendum to
the appellant’s brief a designation of those parts of the record to be included in the
joint appendix. The appellee shall file and serve as an addendum to the appellee’s
brief a cross-designation setting forth any parts of the record the appellee wants to
have included in the joint appendix that do not appear in the appellant’s designation
....
No. 05-3256 Nack v. Orange City School District Page 9
(d) Time for Filing. The appellant has the responsibility to prepare the joint
appendix and shall serve and file it not later than 21 days after the filing of the
appellee’s “proof” brief.
(m) Sanctions. . . . [A]ny counsel who so complicates the proceedings in the case by
unreasonably and vexatiously failing to comply with the requirements of this local
rule may be required by this Court to satisfy personally any excess costs, pursuant
to 28 U.S.C. § 1927, and may be subject to disciplinary sanctions.
6 Cir. R. 30.
Here, the facts are undisputed. On August 24, 2005, counsel for Nack sent Orange a letter
requesting “a list of that which you would like included in the Joint Appendix.” Orange did not
respond to this letter and instead simply attached a designation of appendix contents to its proof brief
when it submitted the brief on November 1, 2005. Nack’s counsel sent another letter to Orange on
November 9, 2005, indicating that Orange had an “obligation” to inform him of its designation of
appendix contents earlier and that it was his understanding that the Appendix had already been
prepared. Orange responded by letter on November 11 highlighting that it had complied with Sixth
Circuit Rules and it “had no obligation to inform you regarding what it wanted to include in the
Appendix” prior to the filing of its proof brief. Nack’s attorney responded with a letter on
November 14, stating that he believed Orange’s “obligations go beyond 6 Cir. R. 30(b) and (d)” to
include “an obligation to timely advise Appellant what you desired be included in the Appendix”
and that it was now “physically impossible for us to include” Orange’s designation for the appendix.
Orange replied on November 16 reaffirming its view that it was Nack’s responsibility to include its
designation in the appendix. Orange received a copy of Nack’s appendix on November 28 and it
did not include Orange’s designations. Orange now seeks a total of $1,196.76 in costs ($135 for one
hour of attorney’s fees and $1,061.79 in copying costs).
Rule 30(b) clearly states that appellee should “file and serve as an addendum to the
appellee’s brief a cross-designation setting forth any parts of the record the appellee wants to have
included in the joint appendix that do not appear in the appellant’s designation.” 6 Cir. R. 30(b).
Orange did exactly this. However, Orange was, at the very least, inconsiderate in failing to respond
to Nack’s first inquiry on August 24. If nothing else, a letter stating that its designation of appendix
contents were to be included in its proof brief would have been in order. Based upon a lack of
civility of both parties, Orange’s motion for costs and attorney’s fees is granted in part and denied
in part. The reimbursement request for the $135 in attorney’s fees is denied. As for the costs of
preparation of the supplemental appendix, the parties should jointly bear this expense and,
accordingly, Orange shall be limited in the award of costs for appendix preparation to $367.13, or
half of the costs incurred by Orange in producing the portions of its supplemental appendix not
included in Nack’s joint appendix. Other costs shall be determined according to F.R.A.P. 39.
AFFIRMED.