IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

WILLIAM SCOTT BAUMHOFER,

Plaintiff,

v.

STATE OF OREGON DEPARTMENT OF

HUMAN SERVICES (DHS), SPD,

APD, OVRS, DAV+,

Defendants.

3:13-CV-00794-BR

 

OPINION AND ORDER 

WILLIAM SCOTT BAUMHOFER

7583 S.W. 74th Avenue, #F1

Portland, OR 97223

(503) 781-3488 

Plaintiff, Pro Se

ELLEN ROSENBLUM

Attorney General

ANDREW D. CAMPBELL 

Assistant Attorney General

1162 Court Street N.E.

Salem, OR 97301

(503) 947-4700 

Attorneys for Defendant State of Oregon Department of

Human Services (hereinafter referred to as DHS)

1 - OPINION AND ORDER

Case 3:13-cv-00794-BR Document 25 Filed 11/06/13 Page 1 of 9
BROWN, Judge.

This matter comes before the Court on Defendant DHS's Motion

(#19) to Strike Claims. For the reasons that follow, the Court

GRANTS Defendant's Motion as to Plaintiff's First and Third

Claims and part of Plaintiff's Fourth Claim. 

BACKGROUND

The following facts are taken from DHS's Memorandum in

Support of its Motion to Strike Claims and the Affidavit of

Kimberly Hector.

Since 2003 Plaintiff William Scott Baumhofer has been a

client of the Oregon Office of Vocational and Rehabilitation

Services (OVRS), which is a unit of DHS. Aff. of Kimberly

Hector, Ex. A at 2.

On August 28, 2012, the OVRS closed Plaintiff's case.

On October 3, 2012, Plaintiff filed a Request for Impartial

Fair Hearing requesting a due-process hearing on the August 28,

2012, closure of his case.

On January 29, 2013, a due-process hearing was held as to

"whether OVRS inappropriately closed [Plaintiff']s file, treated

unfairly, or otherwise failed in its mandate." Hector Aff., Ex.

A at 5.

On March 11, 2013, the hearing officer issued a decision in

which he addressed the following six issues:

2 - OPINION AND ORDER

Case 3:13-cv-00794-BR Document 25 Filed 11/06/13 Page 2 of 9
1. Did [OVRS] wrongly close [Plaintiff's] file

on August 28, 2013?

2. Has OVRS released a complete copy of

[Plaintiff's] case file to [him]? If not,

must OVRS do so?

3. Has OVRS made the “tape and transcript” from

the pre-hearing conference and the hearing

available to [Plaintiff]? If not, must OVRS

do so?

4. Has OVRS treated [Plaintiff] in an unfair or

unprofessional manner?

5. Must OVRS provide [Plaintiff] with

respiratory therapy or physical therapy

services?

6. Has OVRS informed [Plaintiff] of what

services OVRS will provide? If not, must

OVRS do so?

Hector Aff., Ex. A at 3. The hearing officer concluded: OVRS

properly closed Plaintiff's case file on August 28, 2012; OVRS

must provide Plaintiff with a complete copy of his case file;

OVRS made the audio recording of the hearing available to

Plaintiff and was not required to provide a written transcript of

the hearing; OVRS treated Plaintiff in a fair and professional

manner; OVRS is not required to provide Plaintiff with

respiratory therapy or physical therapy services "in the absence

of medical documentation of such impairments creating barriers to

[Plaintiff's] employment"; and OVRS has informed Plaintiff of

what services OVRS will provide. Hector Aff., Ex. A at 6.

On May 10, 2013, Plaintiff filed a pro se Complaint in this

Court asserting this Court has jurisdiction to review due-process

3 - OPINION AND ORDER

Case 3:13-cv-00794-BR Document 25 Filed 11/06/13 Page 3 of 9
hearing decisions pursuant to 29 U.S.C. § 722(c) and 34 C.F.R. 

§ 361.57. Although it is not entirely clear, it appears

Plaintiff seeks review of the order issued by DHS on March 11,

2013. In the Relief portion of his Complaint Plaintiff requests

the following:

(1) Have single case worker for all services &

benefits at Dept. of Human Service as to I'm

told to go away or get lose as they state I

or we have nothing to do with that issues,

instead of finding the correct Open Door,

staff or set record to give details why other

at Dept of Human Service have handle these

issues.

(2) Get an updated conditional certification from

the state workforce (SWA) or a participating

local agency for the work opportunity credit

as mention on IRS Form 8850 OMB #1545-1500.

(3) Correctly Advance L.I.S. to Medicare

Saving(s) Program(s) for reimbursement of

Part B or the likes of Qualifying Individual

(QI) Program p99 of Medicare & You 2013 - CMS Product No. 10050-57 September 2012.

(4) Correctly release of files & records.

Compl. at IV.

On August 2, 2013, DHS filed a Motion to Strike in which it

seeks an order striking Plaintiff's First, Third, and Fourth

requests for relief. The Court took DHS's Motion under

advisement on September 30, 2013.

STANDARDS

Federal Rule of Civil Procedure 12(f) provides: "The court

4 - OPINION AND ORDER

Case 3:13-cv-00794-BR Document 25 Filed 11/06/13 Page 4 of 9
may strike from a pleading an insufficient defense or any

redundant, immaterial, impertinent, or scandalous matter." 

"'The purpose of a Rule 12(f) motion is to avoid spending

time and money litigating spurious issues.'" Kirola v. City and

County of San Francisco, No. C 07–3685 SBA, 2011 WL 89722, at *1

(N.D. Cal. Jan. 11, 2011)(quoting Barnes v. AT&T Pension Ben.

Plan–Nonbargained Program, 718 F. Supp. 2d 1167, 1170 (N.D. Cal.

2010)). See also Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527

(9th Cir. 1993)(same), rev'd on other grounds, 510 U.S. 517

(1994). "'[M]otions to strike under Fed. R. Civ. P. 12(f) are

viewed with disfavor and are infrequently granted.'" Id.

(quoting Stanbury Law Firm v. I.R.S., 221 F.3d 1059, 1063 (8th

Cir. 2000)).

DISCUSSION

DHS moves to strike Plaintiff's First, Third, and Fourth

Claims on the grounds that they do not relate to the March 11,

2013, final order issued by DHS; Plaintiff did not raise the

issues set out in those claims and they were not addressed in the

March 11, 2013, order; and Plaintiff, therefore, may not raise

those issues in a civil action before this Court.

I. The Law

29 U.S.C. § 722(c) provides in pertinent part: 

Each State shall establish procedures for

5 - OPINION AND ORDER

Case 3:13-cv-00794-BR Document 25 Filed 11/06/13 Page 5 of 9
mediation of, and procedures for review through an

impartial due process hearing of, determinations

made by personnel of the designated State unit

that affect the provision of vocational

rehabilitation services to applicants or eligible

individuals.

* * *

The procedures shall provide that an applicant or

an eligible individual . . . shall be notified

of-- 

(I) the right to obtain review of

determinations described in paragraph (1) in

an impartial due process hearing.

* * *

A due process hearing . . . shall be conducted by

an impartial hearing officer who shall issue a

decision based on the provisions of the approved

State plan. . . . The officer shall provide the

decision in writing to the applicant or eligible

individual. 

* * *

A decision made after a [due process] hearing 

. . . shall be final, except that a party may 

. . . bring a civil action under subparagraph (J).

The provision related to review by this Court of the

decision of a hearing officer provides in pertinent part:

Any party aggrieved by a final decision [of an

impartial hearing officer], may bring a civil

action for review of such decision. The action may

be brought in . . . a district court of the United

States of competent jurisdiction without regard to

the amount in controversy. 

* * *

In any action brought under this subparagraph, the

court-- 

6 - OPINION AND ORDER

Case 3:13-cv-00794-BR Document 25 Filed 11/06/13 Page 6 of 9
* * *

(I) shall receive the records relating to the

hearing . . . if applicable; [and]

* * *

(III) basing the decision of the court on the

preponderance of the evidence, shall grant

such relief as the court determines to be

appropriate.

29 U.S.C. § 722(c)(J)(I).

In addition, 34 C.F.R. § 361.57(I) provides in pertinent

part: "Any party who disagrees with the findings and decision of

an impartial hearing officer . . . [has] a right to bring a civil

action with respect to the matter in dispute."

II. Analysis

DHS moves to strike Plaintiff's First and Third Claims

because they were not before the hearings officer and are not the

subject of the March 11, 2013, order. In addition, DHS asserts

Claim Four should be stricken to the extent that Plaintiff seeks

records beyond those requested and addressed in the March 11,

2013, order. According to DHS, these matters represent new

substantive issues rather than review of the hearing officer's

March 11, 2013, decision, and, therefore, the Court lacks

jurisdiction to hear these issues. The Court agrees. See, e.g.,

Haranzo v. Dep't of Rehab. Serv., No. Civ. A. 7:04-CV- 00326,

2005 WL 3019240, at *4 (W.D. Va. Nov. 10, 2005)("parties must

exhaust the administrative remedies available before they have a

7 - OPINION AND ORDER

Case 3:13-cv-00794-BR Document 25 Filed 11/06/13 Page 7 of 9
right to bring a civil action" pursuant to § 722(c)(J)(I) and 34

C.F.R. § 361.57(I)).

DHS also asserts Plaintiff's Third Claim should be stricken

on the ground that the benefits Plaintiff seeks are not under

OVRS's purview and the agency responsible for those benefits was

not a party to the due-process hearing. In his Third Claim

Plaintiff seeks "Correctly Advance L.I.S. to Medicare Saving(s)

Program(s) for reimbursement of Part B or the likes of Qualifying

Individual (QI) Program p99 of Medicare & You 2013 - CMS Product

No. 10050-57 September 2012." DHS, however, points out that OVRS

does not coordinate the benefits sought by Plaintiff, and, in

fact, those benefits are coordinated by Aging & People with

Disabilities (APD), which was not a party to the agency

proceedings. 

On this record the Court concludes it also lacks the

authority to address Plaintiff's Third Claim because APD was not

a party to the agency proceedings. 

Accordingly, the Court grants DHS's Motion to Strike

Plaintiff's First and Third Claims and part of Plaintiff's Fourth

Claim. This matter, therefore, will proceed only as to

Plaintiff's Second Claim and that portion of Plaintiff's Fourth

Claim in which Plaintiff seeks records ordered to be produced by

the hearings officer in his March 11, 2013, order.

8 - OPINION AND ORDER

Case 3:13-cv-00794-BR Document 25 Filed 11/06/13 Page 8 of 9
CONCLUSION

For these reasons, the Court GRANTS Defendant DHS's Motion

(#19) to Strike Claims and, accordingly, STRIKES Plaintiff's

First and Third Claims and part of Plaintiff's Fourth Claim. 

This matter, therefore, will proceed only as to Plaintiff's

Second Claim and that portion of Plaintiff's Fourth Claim in

which Plaintiff seeks records ordered to be produced by the

hearings officer in his March 11, 2013, order.

IT IS SO ORDERED.

DATED this 6th day of November, 2013.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

9 - OPINION AND ORDER

Case 3:13-cv-00794-BR Document 25 Filed 11/06/13 Page 9 of 9