C.W. v. Capistrano Unified Sch. Dist.

• Decision Date: 02 March 2015
• Docket Number: No. 12–57315.,12–57315.
• Citation: 784 F.3d 1237
• Parties: C.W., a minor, by her Mother, K.S., Guardian Ad Litem; K.S., Guardian Ad Litem, Plaintiffs–Appellants, v. CAPISTRANO UNIFIED SCHOOL DISTRICT, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

784 F.3d 1237

C.W., a minor, by her Mother, K.S., Guardian Ad Litem; K.S., Guardian Ad Litem, Plaintiffs–Appellants

v.CAPISTRANO UNIFIED SCHOOL DISTRICT, Defendant–Appellee.

No. 12–57315.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 5, 2014.

Filed March 2, 2015.

Amended April 9, 2015.

Gregory S. Fisher (argued), Davis Wright Tremaine LLP, Anchorage, AL; Jennifer Guze Campbell and Vanessa Jarvis, Special Education Law Firm, APC, Lakewood, CA, for Plaintiffs–Appellants.

Amy R. Levine (argued), Ernest Bell, and Matthew J. Tamel, Dannis Woliver Kelley, San Francisco, CA, for Defendant–Appellee.

William S. Koski and Carly J. Munson, Youth & Education Law Project, Mills Legal Clinic, Stanford Law School, Stanford, CA; Paula D. Pearlman, Michelle Uzeta, and Anna Rivera, Disability Rights Legal Center, Los Angeles, CA, for Amici Curiae Disability Rights Legal Center, Disability Rights California, Public Counsel Law Center, Children's Rights Clinic at Southwestern Law School, Pepperdine University School of Law Special Education Advocacy Clinic, and University of San Diego Legal Clinics.

Jonathan J. Mott and Cynthia A. Yount, Parker & Covert LLP, Tustin, CA, for Amicus Curiae California School Boards Association Education Legal Alliance.

Appeal from the United States District Court for the Central District of California, David O. Carter, District Judge, Presiding. D.C. No. 8:11–cv–01157–DOC–RNB.

Before: STEPHEN REINHARDT, KIM MCLANE WARDLAW, and CONSUELO M. CALLAHAN, Circuit Judges.

Opinion by Judge WARDLAW

; Partial Concurrence and Partial Dissent by Judge REINHARDT.

ORDER

The opinion filed on March 2, 2015 is hereby amended, and an amended opinion is filed concurrently with this order.

With that amendment, Judges Wardlaw and Callahan have voted to deny, and Judge Reinhardt has voted to grant, appellants' petition for rehearing. The panel has voted to reject the suggestion for rehearing en banc.

The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

Thus, the petition for rehearing is denied and the suggestion for rehearing en banc is rejected. No further petitions for rehearing or for rehearing en banc will be entertained. The mandate shall issue forthwith.

IT IS SO ORDERED.

OPINION

WARDLAW, Circuit Judge:

C.W. appeals the district court's award of attorney's fees and costs to Capistrano Unified School District, (“the District”), as the prevailing defendant in an action alleging violations of the Individuals with Disabilities Education Act (“IDEA”). In addition to the IDEA claims, attorneys for C.W. also claimed violations of the Americans with Disabilities Act (“ADA”), Section 504 of the Rehabilitation Act, and 42 U.S.C. § 1983, based on a claim of retaliation arising from a letter threatening sanctions sent by the District's counsel should C.W.'s parent (“K.S.”) continue to pursue this appeal. Because we agree with the district court that the ADA and § 1983 claims are frivolous, we affirm the district court to the extent it awarded attorney's fees and costs for representation relating to those claims. We disagree with the district court, however, that plaintiff's IDEA and Rehabilitation Act claims were frivolous and/or brought for an improper purpose, and we therefore reverse the district court to the extent it awarded attorney's fees and costs related to the litigation of those claims.

I.

A.

Congress enacted the IDEA “to ensure that all children with disabilities have available to them a free and appropriate public education” and “to ensure that the rights of children with disabilities and parents of such children are protected.” 20 U.S.C. §§ 1400(d)(1)(A)–(B). “The statute sets forth procedures for resolving disputes in a manner that, in the Act's express terms, contemplates parents will be the parties bringing the administrative complaints.” Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 527, 127 S.Ct. 1994, 167 L.Ed.2d 904 (2007). The IDEA relies in numerous ways on the involvement of parents in the process of developing Individualized Education Programs for students with special needs, and provides a detailed scheme for parents to pursue remedies when they believe that their child has been deprived of a free and appropriate education. Since its inception, the IDEA, like most civil rights statutes, has allowed a prevailing plaintiff to seek attorney's fees and costs.

See 20 U.S.C. § 1415(i)(3)(B)(i)(I) ; see also Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 301–02, 126 S.Ct. 2455, 165 L.Ed.2d 526 (2006) (noting the “virtually identical [ ] wording” of § 1415(i)(3)(B) and 42 U.S.C. § 1988 ). In 2004, Congress amended 20 U.S.C. § 1415(i)(3)(B), to allow a prevailing defendant in an IDEA case to seek fees against the attorneys of a parent or against the parent himself if the claims alleged were frivolous or brought for an improper purpose. See P.L. No. 108–446, December 3, 2004, 118 Stat. 2647.

B.

At the time of the disputed occupational therapy assessment in this case, C.W. was 11–years old. C.W. was and continues to be eligible for special education services under the eligibility category of “Other Health Impairment” because she has cerebral palsy

, a ventriculoperitoneal shunt, and a heart murmur. C.W. also has low cognitive ability. C.W. was in a special day class at Crown Valley Elementary School within the District.

The District performed its legally required triennial assessment of C.W. in 2010. The multidisciplinary team recommended that C.W. remain eligible for special education and related services because “she exhibits a severe health disorder which adversely affects educational performance.” Following an initial Individualized Education Program¹ meeting in October 2010, K.S. consented to an occupational therapy assessment for C.W. This assessment of C.W. in areas of gross and fine motor development, was conducted by Rebecca Hirchag, a licensed occupational therapist (“OT”). The OT assessment included a review of medical and educational records, a teacher interview, a parent interview, naturalistic observations of performance in an educational setting, and clinical observations, as well as five different standardized assessment tools. The OT report concluded:

Assessment revealed fine motor precision and bilateral integration skills in the average range when compared to typically developing peers her same age. Scores for fine motor integration and upper limb coordination were slightly below average however in alignment with her academic ability. Manual dexterity scores were impacted by time. Please see accommodations in the chart below to assist [C.W.] in the classroom.... In the classroom she is focused and attentive, she is processing sensory information with regards to her access of educational environment.

Hirchag made several recommendations for goals, modifications, or accommodations based on C.W.'s weaknesses in manual dexterity, registration and sensitivity, remembering content during written language assignments, spelling, and desk organization, but she did not recommend whether any direct OT services were needed. The IEP, informed by the OT assessment, recommended a one hour-monthly collaboration between an OT therapist and C.W.'s teacher to evaluate strategies for going forward, as well as two 30–minute individual OT consults per year.

Hirchag presented the OT assessment at a January 12, 2011 IEP meeting, and K.S. responded that it was “stupid.” K.S. also expressed shock that the OT assessment concluded that C.W. was able to appropriately cut a shape from paper, and said that at home, C.W. holds scissors incorrectly.

On January 25, 2011, K.S., pursuant to California law, requested an independent educational evaluation for occupational therapy based on her disagreement with the occupational therapy portion of the January 2011 IEP. See Cal. Educ.Code § 56329(b) (granting parents the “right to obtain, at public expense, an independent educational assessment of the pupil from qualified specialists ... if the parent or guardian disagrees with an assessment obtained by the public education agency”); 34 C.F.R. § 300.502(a) (same). K.S. refused to consent to the OT portion of the IEP because the District failed to include in C.W.'s January 2011 IEP all of the OT report's recommended accommodations. The letter was signed by attorney Jennifer Guze Campbell of the Special Education Law Firm.

On February 23, 2011, the District denied the request for an independent educational evaluation at public expense. The District filed its complaint initiating a due process hearing before an Administrative Law Judge (“ALJ”) on March 4, 2011.²

C.

The Due Process hearing concerned two issues: (1) whether the OT assessment was appropriate; and whether the District committed a procedural IDEA violation by delaying unnecessarily in filing its due process complaint. The ALJ reviewed the records and took testimony, principally from Hirchag. The ALJ concluded that the OT assessment was administered properly pursuant to the correct test manual and in compliance with the statutory requirements. The ALJ also concluded that the forty days between the IEE request and the filing of the Due Process complaint was not unnecessary delay.

Because the ALJ concluded that the District's OT assessment was appropriate, C.W. remained able to obtain an independent assessment, but not at a public expense. K.S.'s remedy was to appeal the ALJ decision in federal district court. On July 1, 2011, K.S.'s attorney wrote to the District indicating that K.S. would forego an appeal if the District agreed to fund the IEE for occupational therapy and pay $12,500 in attorney's fees and costs to her attorneys, The Special Education Law Firm. Counsel noted that: “legal fees will continue to increase as this matter proceeds to Federal litigation if the parties do not achieve a settlement agreement.”...