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

• Decision Date: 31 July 2015
• Docket Number: No. 12–56060.,12–56060.
• Citation: 806 F.3d 451
• 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: U.S. Court of Appeals — Ninth Circuit

806 F.3d 451

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.

Amended Nov. 19, 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.

ORDER

The opinion filed on July 31, 2015, appearing at 795 F.3d 1067, is hereby amended as follows:

1. On page 33 of the slip opinion, in the first paragraph (795 F.3d at 1086, first paragraph), the citation to “Cal. Educ.Code § 49423.5(C)” should be changed to “Cal. Educ.Code § 49423.5(c)”.

2. On pages 35–36 of the slip opinion, in the second full paragraph beginning on page 35 (795 F.3d at 1087, second full paragraph), the final two sentences (beginning with “Furthermore, a jury might consider ...”) should be removed. These sentences should be replaced with

The ALJ's opinion also suggests that the District might rely on the BSAs to carry out the feedings, but only if the evidence showed that they met the California-law requirements. Although the ALJ's ruling put the District on notice that the proposed accommodation of using BSAs was insufficient without this evidence, the District's evidence shows only that the BSAs received training, not that the training complied, or was adjusted to comply, with California law. A reasonable jury might find deliberate indifference on this ground as well.

3. On page 36 of the slip opinion, in the first full paragraph (795 F.3d at 1087, third full paragraph), the sentence “Alternatively, it may have had a good-faith belief that the ALJ was wrong in her construction of California law and sincerely believed that it was not violating T.B.'s rights by failing to provide a nurse, SEHT, or SET to provide g-tube

feedings.” should be removed.

4. On page 38 of the slip opinion, in the first paragraph (795 F.3d at 1088, second full paragraph), the following sentence should be added after the sentence ending with “Gallagher v. San Diego Unified Port Dist.,14 F.Supp.3d 1380, 1390–91 (S.D.Cal.2014).”

Although each of these cases involved retaliation relating to employment discrimination under Title I rather than discrimination in public services under Title II, the ADA's retaliation provision applies to both titles. See42 U.S.C. § 12203. The but-for causation standard therefore applies equally to retaliation under Titles I and II.

5. On page 43 of the slip opinion, in the second full paragraph (795 F.3d at 1090, final paragraph), the second sentence (beginning with “We have not yet clearly established ...”) should be changed to

We have not yet clearly established the standard that a reviewing court should apply when determining whether the relief obtained in a due process hearing under the IDEA is more favorable than that offered under a settlement or whether a parent was substantially justified in rejecting a settlement offer.

6. On page 45 of the slip opinion, in the first paragraph (795 F.3d at 1091, second full paragraph), the final sentence (beginning with “In this case, then ... ) should be changed to

In this case, then, we will review the questions of relative favorability and substantial justification de novo, while reviewing the factual findings supporting the district court's decision for clear error. See Anchorage Sch. Dist. v. M.P.,689 F.3d 1047, 1053 (9th Cir.2012)(holding that mixed questions of law and fact are reviewed de novo unless the mixed question is primarily factual); Gregory K. v. Longview Sch. Dist.,811 F.2d 1307, 1310 (9th Cir.1987)(same).

With these amendments, the panel has voted to deny the petitions for panel rehearing.

The petitions for panel rehearing are DENIED. No further petition for panel rehearing may be filed.

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 504of 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 phenylketonuriaat 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 phenylketonuriaare given a phenylalanine-free drink based on formula; in 1997, T.B. was fitted with a g-tubethrough 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...