JOHN HEYBURN, Chief Judge, District
This case involves multiple appeals from decisions of the Exceptional Children Appeals Board ("ECAB") in connection with a hearing officer's decision issued January 20, 2004. The hearing officer awarded Rachel Jessie ("Jessie") two years of compensatory education. Both Jessie and Bullitt County appealed. Ultimately, the ECAB dismissed Jessie's appeal of the hearing officer's decision and affirmed a hearing officer's decision to award two years compensatory education. Both Jessie and Bullitt County have appealed to this Court.
The Court now considers four preliminary issues raised on appeal. Bullitt County has moved to dismiss the individual members of the ECAB and have also moved to dismiss Jessie's appeal as barred by the appellate limitations deadline. Jessie has also moved to strike Defendant's brief for the right to file additional evidence.
I.
Defendants, Steven E. Gilmore, Anthony Bracke and Beverly Henderson are members of the ECAB who issued the decision dismissing Jessie's appeal. In that role they acted in a quasijudicial capacity and are entitled to absolute immunity from civil actions challenging their decision. See Willis v. McGinnis, 192 F.Supp. 2d 757, 759 (E.D. Mich. 2002). The Court can find no other grounds for allowing these individuals to remain party defendants. Jessie can achieve all necessary relief against the remaining Defendants.
II.
Bullitt County has moved to dismiss Jessie's appeal on the grounds that her appeals hearing officer's final decision and order was untimely. The Kentucky Administrative Regulations specifically require that an appeal from a decision of a Kentucky Department of Education hearing officer "shall be perfected by sending, by certified mail, to the Kentucky Department of Education a request for appeal, within thirty (30) calender days of the date of the hearing officer's decision." 707 KAR 1:340 § 8(1). The basic facts appear to be undisputed.
The hearing officer issued his opinion on January 20, 2004. It was mailed to all parties on that day. The thirty (30) day period began to run on that date, not from the date of service or some other date. The order specifically reminded the parties that a written notice of appeal by certified mail was required within thirty days of entry of the decision. The thirty-day period for appeal expired February 19, 2004. The Kentucky Department of Education received Jessie's notice of appeal on February 23, 2004. Counsel for Jessie has admitted that the notice of appeal was placed in the mail on February 20, 2004, which is after the deadline imposed by the state regulation and as set forth in the final decision and order of the hearing officer. Counsel for Jessie has not made a case of excusable neglect, even assuming such a claim is available. The Court finds no basis to ignore appellate deadline in these particular circumstances. For all the reasons set forth in the order of the ECAB dated April 23, 2004, the Court concludes that dismissal of Jessie's appeal was appropriate and Bullitt County's motion to dismiss should be sustained.
III.
Jessie has moved to introduce new evidence in the form of a speech therapist's evaluation conducted in June 2004. The Court has broad discretion whether to accept new evidence. This evidence was produced long after the appeal and even subsequent to the filing of briefs. Because neither the hearing officer nor the ECAB had an opportunity to evaluate the report, the Court doubts that it could add to the Court's understanding. Moreover, without the opportunity to cross-examine its maker, its use could create unfairness.
IV.
Jessie has moved to strike Defendant's brief and dismiss its appeal on the grounds the brief contains many unsubstantiated and misleading statements. The Court will consider these arguments, along with others, as part of its substantive review of Defendant's appeal.
Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Defendants' motion to dismiss the individual Defendants is SUSTAINED and those Defendants are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Defendants' motion to dismiss Jessie's appeal from the decision of the ECAB is SUSTAINED and Jessie's appeal is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Jessie's motion to file additional evidence is DENIED.
IT IS FURTHER ORDERED that Jessie's motion to strike Defendant's brief and dismiss its appeal is DENIED.