Meridian Joint Sch. Dist. No. 2 v. D.A., s. 13–35329

• Decision Date: 06 July 2015
• Docket Number: Nos. 13–35329,13–36200.,s. 13–35329
• Parties: MERIDIAN JOINT SCHOOL DISTRICT NO. 2, Plaintiff–Appellant, v. D.A., mother of minor, M.A. and J.A., father of minor, M.A., Defendants–Appellees. Meridian Joint School District No. 2, Plaintiff–Appellant, v. D.A., mother of minor, M.A. and J.A., father of minor, M.A., Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

792 F.3d 1054

MERIDIAN JOINT SCHOOL DISTRICT NO. 2, Plaintiff–Appellant

v.D.A., mother of minor, M.A. and J.A., father of minor, M.A., Defendants–Appellees.

Meridian Joint School District No. 2, Plaintiff–Appellant

v.D.A., mother of minor, M.A. and J.A., father of minor, M.A., Defendants–Appellees.

Nos. 13–35329

13–36200.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 8, 2015.

Filed July 6, 2015.

Elaine F. Eberharter–Maki (argued) and Merritt L. Dublin, Eberharter–Maki & Tappen, P.A., Boise, ID, for Plaintiff–Appellant.

Frank Z. LaForge (argued), Holland & Hart LLP, Reno, NV, for Defendants–Appellees.

Appeal from the United States District Court for the District of Idaho, Candy W. Dale, Chief Magistrate Judge, Presiding. D.C. No. 1:11–cv–00320–CWD.

Before: FERDINAND F. FERNANDEZ, MICHAEL DALY HAWKINS, and CONSUELO M. CALLAHAN, Circuit Judges.

OPINION

CALLAHAN, Circuit Judge:

M.A. or Matthew has Asperger's Syndrome

, a high functioning form of autism.¹ For many years, his parents and the Meridian School District (MSD) have disagreed as to whether Matthew was entitled to special education services under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400. The appeals before us were filed by MSD and challenge the district court's (1) determination that Matthew was entitled to the preparation of an Independent Educational Evaluation (IEE) at public expense; (2) award of attorneys' fees to Matthew's parents; and (3) injunction against Matthew's graduation from high school. We affirm in part and reverse in part. We find no error in the district court's affirmance of the hearing officer's determination that Matthew was entitled to an IEE at public expense. However, we conclude that although the parents' request for attorneys' fees was timely, and that they are “prevailing parties,” they are not eligible for an award of attorneys' fees under 20 U.S.C. § 1415(i)(3)(B). Finally, we vacate the injunction against Matthew's graduation.

I

Matthew was born in 1994. In 2004, he moved from California to Idaho. Matthew had received special education in California, and his parents provided MSD “with information related to M.A.'s previous diagnoses of expressive-receptive language disorder, central auditory processing disorder

, possibility of dyslexia and dysgraphia, and possibility of Asperger's disorder.” Matthew received special education under the IDEA from fifth grade through eighth grade. In April 2008, while Matthew was in eighth grade, Matthew's Individualized Education Program (IEP) team determined, following a three-year reevaluation of Matthew, that he no longer needed special education services. His parents (sometimes referred to as the Parents) disagreed with this decision and, at their own expense, obtained an evaluation from Dr. Timothy Leavell, who diagnosed Matthew with Asperger's disorder. The Parents asked MSD to conduct an evaluation of Matthew and reassess his eligibility for special education. MSD, however, concluded that, rather than an IEP under the IDEA, Matthew would receive various accommodations starting in ninth grade under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.

Matthew's freshman year was spent at Centennial High School until April 2009 when Matthew set a fire in a room in the family home, was arrested, and placed in the Ada County Juvenile Detention Center (ACJDC). While Matthew was in the ACJDC, his parents requested that the Boise School District (BSD), which had responsibility for the ACJDC, evaluate Matthew's eligibility for special education services. On February 18, 2010, BSD issued an eligibility report finding strong indications of Asperger's Syndrome

, but concluding that Matthew was not eligible for special education services because “at this time, there is no evidence of the adverse effect of [his] disabilities on his current educational performance.” However, the report noted that the evaluation was limited by the fact that the assessments were conducted while Matthew was confined. The report stated:

In the event [Matthew] is released from the ACJDC and placed at another facility, or returns home to the Meridian School District, [Matthew's parents] may wish to request an evaluation to determine whether his disabilities adversely affect his educational performance, and whether he needs specially designed instruction in order to access and progress in the general education curriculum.

Matthew was released from the ACJDC in September 2010, and returned to Centennial High School, several weeks after the school year had started. Three days before he returned to the high school, his parents delivered a letter to MSD requesting a comprehensive IEP for Matthew. MSD considered the request, drafted a new Section 504 plan for Matthew, and on September 27, 2010, denied the Parents' requests for additional assessments. MSD stated that it was relying on the February 2010 report prepared by BSD and that the IDEA provides that reevaluation may not occur more than once a year.

Matthew's mother indicated that she disagreed with MSD and sought a team meeting. Meetings were held in October and November, and on November 22, 2010, but MSD declined to perform an additional assessment of Matthew. MSD's notice discussed Matthew's Section 504 plan and concluded that Matthew did “not need specially designed instruction at this time and therefore does not qualify for an IEP.”

In January 2011, Matthew's mother sent MSD a letter disagreeing with its conclusion and requesting an IEE. She asserted that the prior evaluations “were conducted in an extremely structured and regimented environment, the evaluations are not comprehensive, and do not adequately assess [Matthew's] unique needs.”

MSD denied the request for an IEE and pro-actively filed for a due process hearing pursuant to 20 U.S.C. § 1415 and 34 C.F.R. § 300.502(b)(2)(i), seeking confirmation of its decision from a hearing officer. The matter was assigned to Special Education Hearing Officer Guy Price (HO Price), who conducted three weeks of hearings on two issues: (1) “[i]s the Student entitled to an Independent Educational Evaluation, as requested by his attorney on January 17, 2011”; and (2) “[d]oes the Student qualify for special education pursuant to the eligibility criteria set forth in the IDEA and the Idaho Special Education Manual.”

In a June 6, 2011 decision, HO Price found that MSD had failed to conduct an appropriate evaluation, held that Matthew was entitled to an IEE at public expense, and declined to rule on whether he qualified for special education services, stating that such a determination would be premature prior to the completion of an appropriate evaluation.²

In July 2011, MSD filed an action in the District Court of Idaho seeking judicial review of HO Price's decision. On May 23, 2012, the district court issued an order granting the Parents' motion to enjoin Matthew's graduation from high school. In March 2013, the district court issued an order affirming HO Price's decision and dismissing MSD's appeal. On April 17, 2013, MSD filed a timely notice of appeal (Appeal No. 13–35329). Thereafter, the district court conducted further proceedings on the Parents' request for attorneys' fees. On October 16, 2013, the district court entered an order granting the Parents attorneys' fees. The final judgment was entered on November 25, 2013, and MSD filed a timely notice of appeal from the award of attorneys' fees on December 20, 2013 (Appeal No. 13–36200).

Meanwhile, pursuant to HO Price's directive, an IEE was prepared for Matthew and submitted to MSD in September 2011. MSD proceeded to evaluate Matthew's eligibility for special education services under the IDEA. In January 2012, the Parents filed a request for a due process hearing alleging that MSD had not timely evaluated Matthew. In February 2012, MSD determined that Matthew was not eligible for special education. The Parents then filed a second due process complaint challenging that ruling. The two due process complaints were consolidated into a single case and were heard by Hearing Officer Litteneker (HO Litteneker). HO Litteneker conducted ten days of hearings over two months before issuing a decision on July 5, 2012, holding that Matthew was not entitled to special education services under the IDEA. The Parents then filed a complaint with the district court seeking review of HO Litteneker's decision. On January 6, 2014, the district court issued a memorandum decision and order affirming HO Litteneker's decision that Matthew was not entitled to special education services. The Parents filed an appeal from that decision.³

In addition, the Parents filed another action arising from the same background that is not before us. In February 2011, the Parents initiated administrative proceedings under the Rehabilitation Act and in March 2011, initiated an action alleging that MSD and BSD had violated Matthew's rights under the Americans with Disabilities Act (ADA). D.A. v. Meridian Joint Sch. Dist. No. 2,

289 F.R.D. 614, 620 (D.Idaho 2013). That action was ultimately resolved in an eight-day trial in the summer of 2013. The jury answered no to the special verdict question “was Matthew denied a free and appropriate public education by the Meridian School District.” Chief Magistrate Judge Candy W. Dale, who presided over all of the cases concerning Matthew, issued a final judgment on July 31, 2013. There was no appeal from the judgment.

II

We review the district court's findings of fact for clear error and review its conclusions of law de novo. Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1310 (9th Cir.1987). We review de novo the district court's determination as to whether the school district complied with the IDEA. E.M. v. Pajaro Valley Unified Sch. Dist. Office of Admin. Hearings, 758 F.3d 1162, 1170 (9th Cir.2014) (citing K.D. v. Dep't of Educ., 665 F.3d 1110, 1117 (9th Cir.2011) ); N.B. v. Hellgate Elem. Sch. Dist., 541 F.3d 1202, 1207 (9th Cir.2008)....