Brandon A. v. NHDOE

Brandon A. v. NHDOE                    CV-00-25-B            08/08/01
                   UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF NEW HAMPSHIRE


Brandon A . , by and through
his parent and next best friend,
David A . , on behalf of himself and
all others similarly situated

     v.                                          Civil No. 00-025-B
                                                 Opinion No. 

Nicholas Donahue, in his Official
Capacity as Commissioner of The New
Hampshire Department of Education



                               O R D E R


     Justin C. seeks to intervene as a named plaintiff in this

class action pursuant to Fed. R. Civ. P. 24(b) (2), which provides

in relevant part as follows:

     "Permissive Intervention: Upon timely application
     anyone may be permitted to intervene in an action ...
     when an applicant's claim or defense and the main
     action have a question of law or fact in common."

Once an applicant has satisfied this threshold requirement,               the

district court enjoys broad discretion in determining whether the

applicant may intervene.    See Daggett v. Comm'n on Gov'tal Ethics

& Election Practices, 

   (1st Cir. 1999) .   In

making its determination,   the court may consider any factor that
is rationally relevant.     See i d .

     I reject Justin's motion because his claim does not have a

question of law or fact in common with Brandon's claims.

Although Justin,     like Brandon, asserts that he was initially

denied his right to a 45-day due process hearing, his real

challenge is to his school district's failure to implement the

hearing officer's decision.      He alleges that his school district

failed to implement the hearing officer's decision in his case

within the requisite 30 days.      See P i .'s Reply to Def.'s

Objection to Mot. to Intervene,     Doc. No. 56, at 2.    In addition,

he alleges that he requested that the hearing officer hold an

expedited hearing and find the school district in contempt of his

order, and that the hearing officer has failed to hold a timely

hearing.     See i d .

      The hearing that Justin requested appears to be a contempt

hearing and not an impartial due process hearing, as he requested

the hearing in conjunction with his motion to hold the school

district in contempt.     See i d . at Exh. A.   In addition,    the

Education Board regulations state that the hearing officer

"retain[s]    jurisdiction until a decision is fully implemented."
N.H. Code Admin. R. Ed. 1128.13(c)    (1998).   The fact that the

hearing officer retains jurisdiction supports the idea that the

requested hearing concerned implementation of the decision and

was not a new due process hearing request.      Therefore,   the 45-day

time line does not apply to this request.       Thus, Justin's

allegations focus on the school district's failure to implement

the hearing officer's order, an issue that is not factually or

legally similar to Brandon's claims that the NHDOE fails to

provide timely due process hearings.     Because I find that Justin

does not meet the threshold requirement of Rule 2 4 ( b ) (2) as his

claim does not have a question of law or fact in common with

Brandon's action,   I deny his motion to intervene,    (Doc. No. 49).1

      SO ORDERED.




                                     Paul Barbadoro
                                     Chief Judge

August 8, 2001

cc:   Nancy J. Smith, Esq.
      Ronald K. Lospennato, Esq.
      Diane M. McCormack, Esq.
      John F. Teague, Esq.


     1 I also reject Brandon's motion to amend his complaint
pursuant to Fed. R. Civ. P. 15(a) to add factual allegations
concerning Justin C., (Doc. No. 48).