T.B. v. San Diego Unified Sch. Dist.

• Citation: 795 F.3d 1067
• Decision Date: 31 July 2015
• Docket Number: No. 12–56060.,12–56060.
• Parties: T.B., a minor, by and through his Guardian ad Litem; Allison Brenneise; Robert Brenneise, Plaintiffs–Appellants, Steven Wyner; Wyner and Tiffany, Appellants, v. SAN DIEGO UNIFIED SCHOOL DISTRICT, Defendant–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

795 F.3d 1067

T.B., a minor, by and through his Guardian ad Litem; Allison Brenneise; Robert Brenneise, Plaintiffs–Appellants,Steven Wyner; Wyner and Tiffany, Appellants,

v.SAN DIEGO UNIFIED SCHOOL DISTRICT, Defendant–Appellee.

No. 12–56060.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 9, 2014.

Filed July 31, 2015.

Steven Wyner, Wyner Law Group, PC, Torrance, CA; Marcy J.K. Tiffany (argued), Tiffany Law Group, PC, Torrance, CA, for Plaintiffs–Appellants.

Amy R. Levine, Sarah L.W. Sutherland (argued), William B. Tunick, Dannis Woliver Kelley, San Francisco, CA, for Defendant–Appellee.

Maureen R. Graves, Daniel R. Shaw, Irvine, CA, as and for Amicus Curiae California Association for Parent–Child Advocacy.

Harvey Saferstein, Nada I. Shamonki, Abigail V. O'Brient, Mintz Levin Cohn Ferris Glovsky & Popeo, P.C., Los Angeles, CA; Paula D. Pearlman, Los Angeles, CA, for Amici Curiae Disability Rights Legal Center and Learning Rights Law Center.

Jonathan P. Read, Tiffany M. Santos, Susan B. Winkelman, Fagen Friedman & Fulfrost, LLP, San Marcos, CA, for Amicus Curiae California School Boards Association's Educational Legal Alliance.

Donald Davis, Damara Moore, San Francisco, CA, as and for Amicus Curiae San Francisco Unified School District.

Appeal from the United States District Court for the Southern District of California, Michael M. Anello, District Judge, Presiding. D.C. No. 3:08–cv–00028–MMA–WMC.

Before: RAYMOND C. FISHER and RICHARD R. CLIFTON, Circuit Judges, and LEE H. ROSENTHAL, District Judge.^*

OPINION

CLIFTON, Circuit Judge:

This is the latest round in an unfortunate dispute that has endured for almost a decade regarding the education of a child with disabilities. The child is now 21 years old and has since graduated from high school, but the litigation has continued. T.B. and his parents, the Brenneises, used to be residents of the San Diego Unified School District. T.B. has learning and motor disabilities and feeds himself in part through a gastrostomy tube (“g-tube”). In 2006, the Brenneises and the district began working on an individualized education plan (“IEP”) that would allow T.B., who was then being educated outside the public school system, to reenter school for the 2006–07 academic year. The two sides could not agree, however, and both filed for a due process hearing under the Individuals with Disabilities in Education Act (“IDEA”).

The administrative law judge (“ALJ”) who presided over that hearing ruled in favor of the school district on most issues but held that the district's proposed IEP was inadequate because it did not provide a legally adequate way for T.B. to receive g-tube feedings. That ruling was upheld on appeal to the district court. Neither side has further pursued that subject on appeal to this court.

The Brenneises also brought in district court a claim that the school district had violated T.B.'s civil rights under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. The district court granted summary judgment to the school district on those civil rights claims. We affirm that summary judgment as to two counts but reverse it as to a third count. We remand that claim for further proceedings.

In addition, the Brenneises and their attorneys sought attorneys' fees and costs for their partial victory before the ALJ. The district court awarded them approximately $50,000 for attorneys' fees, substantially less than the $1.4 million that was requested. The principal basis for denying most of the fee request was a determination by the district court that the Brenneises had unreasonably rejected a settlement offer made by the school district shortly before the start of the due process hearing. The IDEA provides that attorneys' fees should not be awarded if the parents do not accept a timely settlement offer, “the relief finally obtained by the parents is not more favorable to the parents than the offer of settlement,” and the parents' rejection of the settlement offer was not “substantially justified.” 20 U.S.C. § 1415(i)(3)(D)(i)(III), (E). We conclude, contrary to the district court, that the relief obtained through the ALJ's decision was more favorable to the parents than the offer of settlement and that the parents were substantially justified in rejecting the offer, so the district court's denial of fees on that basis must be set aside. For that and other reasons, we vacate the district court's determination of fees and costs and remand that matter for further consideration as well.

I. Background

T.B. was born in January 1994. He suffers from phenylketonuria, which prevents him from processing phenylalanine, an amino acid. Infants are screened for phenylketonuria at birth, but because of a lab error, T.B. was not correctly diagnosed until he was three. As a result, he suffered brain damage and physical problems. Children with phenylketonuria are given a phenylalanine-free drink based on formula; in 1997, T.B. was fitted with a g-tube through which the drink could be poured directly into his stomach.

A. T.B.'s home education

In 2003, a dispute arose between T.B.'s mother, Alison Brenneise, and the school district about his education, and she withdrew him from school. From 2003 to 2006, T.B. was educated by external service providers, funded by the school district, and by Mrs. Brenneise herself, who was not paid. This program sometimes took place in the Brenneises' garage and was informally called “garage school,” a term which we will also use. Under the terms of a settlement agreement, the school district funded 40 hours of services per week for T.B.

That settlement did not prevent further disputes. In May 2006, the Brenneises filed for a due process hearing, contending that the district had failed to provide T.B. with a free appropriate public education (“FAPE”) for the years 2003–06, as required under the IDEA.¹See generally Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) (discussing the requirements of a FAPE under the Education for All Handicapped Children Act of 1975, Pub.L. No. 94–142, 89 Stat. 773, the predecessor of the IDEA). This case eventually settled.

Under the IDEA, the school district was required to evaluate T.B.'s educational needs at least once every three years. 20 U.S.C. § 1414(a)(2)(B)(ii). In July 2006, the district produced an assessment report, and a few days later the parties agreed on an “extended school year” IEP that would cover the summer period. This IEP placed T.B. in Coronado Academy, a public school outside the district, for eleven half-days, which was all that remained of the school year. At that point, the IEP provided that T.B. would return to garage school. Garage school also represented the “stay-put” schooling arrangement—how T.B. would be educated if the parties were unable to agree on an IEP for the 2006–07 school year. See20 U.S.C. § 1415(j); Honig v. Doe, 484 U.S. 305, 312, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). After T.B. had attended Coronado for only five days, however, Coronado asked him to leave, so T.B. returned to garage school early.

B. The compliance complaint and due process filings

Mrs. Brenneise then filed a compliance complaint against the school district. The California Department of Education upheld the complaint and ordered compensatory education as a remedy. The amount of fees due to T.B.'s lawyers in connection with this compliance complaint is one of the issues in this appeal.

Immediately after T.B. returned to garage school, the school district attempted to create a new IEP for the 2006–07 school year. At the end of August, the district provided a new draft IEP and a transition plan to facilitate his return to school. The district proposed that T.B. would be placed at Sierra Academy, which served only disabled students. Mrs. Brenneise did not want T.B. to attend Sierra, in part because it did not have a nurse's office where he could lie down after g-tube feedings. She did not agree to the August 2006 IEP and objected to “all areas” of the assessments on which the IEP was based.

Between September and December, the district worked on revising the IEP. Because Mrs. Brenneise disagreed with assessments of T.B. that the district had made in June and July, she requested independent educational evaluations. The district denied some of those requests and, in November 2006, filed for a due process hearing to defend its assessments.

In December 2006, the district prepared a new IEP under which T.B. would be placed at Wangenheim Middle School. In accordance with Mrs. Brenneise's request, this was a comprehensive school within and operated by the school district. Unlike Sierra, Wangenheim had a nurse's office. The December IEP was otherwise largely similar to the August IEP. Mrs. Brenneise did not consent to the December IEP. In December 2006, the school district again filed for a due process hearing, arguing that the IEP “offer[ed] Student a FAPE designed to meet his unique needs and allow him to benefit from his education.” In January 2007, the Brenneises also filed for a due process hearing, contending that the school district had denied T.B. a FAPE. This case was consolidated with the previously pending cases.

C. Settlement proposals

From February to May 2007, the parties engaged in settlement discussions. The Brenneises were represented by Steven Wyner and his law firm, Wyner and Tiffany. Although some of the discussions were oral and the parties have not stipulated as to their content, it is undisputed that the two sides discussed the possibility of an arrangement under which the school district might pay the Brenneises an annual sum in return for the Brenneises' commitment to take over responsibility for T.B.'s education from the district and to have T.B. educated outside the public school system.

According to the district, the Brenneises requested $200,000 per...