FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
R.P., husband on behalf of his
minor son, C.P.; J.P., wife, on
behalf of her minor son, C.P.,
Plaintiffs-Appellants,
v. No. 09-15651
PRESCOTT UNIFIED SCHOOL DISTRICT,
an Arizona School District; KEVIN D.C. No.
3:07-cv-08072-
J. KAPP, Superintendent, Prescott NVW
Unified School District; JOHN
DOES, I-V; JANE DOES, I-V;
BLACK AND WHITE CORPORATIONS,
I-X,
Defendants-Appellees.
R.P., husband on behalf of his
minor son, C.P.; J.P., wife, on
behalf of her minor son, C.P.,
Plaintiffs-Appellants,
v. No. 09-16786
D.C. No.
PRESCOTT UNIFIED SCHOOL DISTRICT,
an Arizona School District; KEVIN 3:07-cv-08072-
J. KAPP, Superintendent, Prescott NVW
Unified School District; JOHN OPINION
DOES, I-V; JANE DOES, I-V;
BLACK AND WHITE CORPORATIONS,
I-X,
Defendants-Appellees.
2235
2236 R.P. v. PRESCOTT UNIFIED SCHOOL DISTRICT
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued April 14, 2010
Submitted April 16, 2010
San Francisco, California
Filed February 4, 2011
Before: Alex Kozinski, Chief Judge, Consuelo M. Callahan,
Circuit Judge and Ricardo S. Martinez, District Judge.*
Opinion by Chief Judge Kozinski
*The Honorable Ricardo S. Martinez, United States District Judge for
the Western District of Washington, sitting by designation.
2240 R.P. v. PRESCOTT UNIFIED SCHOOL DISTRICT
COUNSEL
Gregory S. Fisher (argued), Birch Horton Bittner and Cherot,
Anchorage, Alaska, and Gary L. Lassen, The Law Office of
Gary L. Lassen, PLC, Phoenix, Arizona, for the plaintiffs-
appellants.
Rachel Love (argued), Eileen Dennis GilBride and Georgia A.
Staton, Jones, Skelton & Hochuli, P.L.C., Phoenix, Arizona,
for the defendants-appellees.
R.P. v. PRESCOTT UNIFIED SCHOOL DISTRICT 2241
OPINION
KOZINSKI, Chief Judge:
We review the award of attorney’s fees to a prevailing
school district under the Individuals with Disabilities Educa-
tion Act (IDEA), 20 U.S.C. § 1400 et seq.
Facts
C.P. has autism. When he enrolled in elementary school,
the school district created an individualized education pro-
gram (IEP) for him. C.P. was placed in a special education
class where he regularly met with speech and occupational
therapists; he was also assigned a paraprofessional aide for
one-on-one instruction. When he started school at age five, in
2003, C.P. didn’t respond to his name, could barely speak, ran
away from adults, showed no fear in unsafe situations, had a
short attention span, and hit, pinched and spat. By 2006, at
age seven, C.P. responded to his name, could say short
phrases, had gotten fairly good at solving puzzles and was
better able to communicate with adults, among other favor-
able developments. But he still was not toilet-trained, lacked
the motor skills to draw a picture and remained at the pre-
school level academically. Unhappy with C.P.’s progress, his
parents filed an administrative complaint alleging that the
school district violated the IDEA during the 2003-04, 2004-05
and 2005-06 school years by failing to provide him a free
appropriate public education (FAPE).
The Administrative Law Judge ruled in favor of the school
district, holding that C.P. wasn’t denied a FAPE, and also that
the parents’ claims for the 2003-04 school year were
untimely. See 20 U.S.C. 1415(f)(3)(c). The parents appealed
to district court under the IDEA, and added claims under the
Americans with Disabilities Act (ADA), 42 U.S.C. § 12132,
section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and
the Due Process Clause.
2242 R.P. v. PRESCOTT UNIFIED SCHOOL DISTRICT
The district court addressed the IDEA claim first. It
adopted all of the ALJ’s findings and concluded that the
school district hadn’t failed to provide C.P. with a FAPE. The
court then ordered the parents to show cause why their non-
IDEA claims shouldn’t also be dismissed, since “the Com-
plaint does not allege facts beyond the bare minimum to sup-
port the IDEA claim.” The parents sought leave to amend in
order to allege new theories of relief, but the district court
refused and dismissed the complaint. The court also found
that the parents’ action was without foundation and brought
for an improper purpose, and so awarded the school district
about $140,000 in attorney’s fees and costs against the parents
and their lawyer. The parents appeal.
Discussion
[1] 1. IDEA Claim. “The IDEA provides federal funds to
assist state and local agencies in educating children with dis-
abilities, but conditions such funding on compliance with cer-
tain goals and procedures.” N.B. v. Hellgate Elementary Sch.
Dist., 541 F.3d 1202, 1207 (9th Cir. 2008) (internal quotation
marks omitted). Its primary goal is “to ensure that all children
with disabilities have available to them a [FAPE] that empha-
sizes special education and related services.” Id. (quoting 20
U.S.C. § 1400(d)(1)(A)). A state must comply with the proce-
dures set forth in the IDEA, among which is the development
of an IEP that is “reasonably calculated to enable the child to
receive educational benefits.” Id. (internal quotation marks
omitted); see also Bd. of Educ. of the Hendrick Hudson Cent.
Sch. Dist. v. Rowley, 458 U.S. 176, 200-04 (1982). We review
de novo the district court’s decision that the school district
complied with the IDEA, see N.B., 541 F.3d at 1207, and
review its factual determinations for clear error, see J.L. v.
Mercer Island Sch. Dist., 592 F.3d 938, 949 (9th Cir. 2010).
We address the 2004-05 and 2005-06 school years only, as
the parents waived their 2003-04 school year claims at oral
argument.
R.P. v. PRESCOTT UNIFIED SCHOOL DISTRICT 2243
The parents complain that the school district failed to
include an autism expert on C.P.’s IEP team, which consisted
of C.P.’s parents, a special education teacher, a school district
representative, an occupational therapist, a speech/language
therapist and a regular education teacher. But the IDEA
doesn’t require that the team include an expert. See 20 U.S.C.
§ 1414(d)(1)(B). The case the parents cite to support their
claim that the IEP team must include “at least one teacher or
other specialist with knowledge in the area of suspected dis-
ability” relies on a regulation that was in effect only until
1999, see 34 C.F.R. § 300.532(e), and thus predated C.P.’s
time in the school district. See Seattle Sch. Dist., No.1 v. B.S.,
82 F.3d 1493, 1499 (9th Cir. 1996). C.P.’s IEP team was
properly constituted under the regulations that governed the
2004-05 and 2005-06 school years. See 34 C.F.R.
§ 300.344(a); see also J.W. ex rel. J.E.W. v. Fresno Unified
Sch. Dist., No. 09-16123, 2010 WL 4117665, at *26-27 (9th
Cir. Oct. 19, 2010).
[2] The parents also argue that the IEP didn’t take C.P.’s
individual needs into account, as the IDEA requires. See 20
U.S.C. § 1414(d)(3)(A)-(B). Rather, they allege, the school
district “implemented the same program and same form of
IEP year after year,” and C.P.’s “goals and objectives were
simply increased and cut and pasted from prior IEPs.” It is
true that school districts must develop IEPs tailored to each
child’s unique needs and reasonably calculated to provide
educational benefit. J.L., 592 F.3d at 951 n.10. When C.P.
started school, the district retained a licensed pediatric psy-
chologist to evaluate C.P.’s individual needs. The district
reassessed those needs annually to reflect areas in which C.P.
had made progress, and revised his IEP accordingly. The IEPs
for the years at issue, both of which were signed by C.P.’s
parents, reflect meaningful changes in goals and objectives.
The record doesn’t support the parents’ objections. See J.W.
ex rel. J.E.W., 2010 WL 4117665, at *14-15, *22.
[3] The parents further complain that the school district
failed to base its IEP on peer-reviewed research, as they argue
2244 R.P. v. PRESCOTT UNIFIED SCHOOL DISTRICT
20 U.S.C. § 1414(d)(1)(A)(i)(IV) requires. The teachers
would “pick and choose the techniques [they] liked,” rather
than utilize “best practices” that have been demonstrated to be
effective. The IDEA accords educators discretion to select
from various methods for meeting the individualized needs of
a student, provided those practices are reasonably calculated
to provide him with educational benefit. See, e.g., Adams v.
Oregon, 195 F.3d 1141, 1149-50 (9th Cir. 1999); Deal v.
Hamilton Cnty. Bd. of Educ., 392 F.3d 840, 861-62 (6th Cir.
2004). The parents have introduced no evidence that the
methods selected for C.P., including the Discrete Trial Train-
ing (DTT), Applied Behavior Analysis (ABA) and TEACCH
methods, were inappropriate under the IDEA. In fact, the par-
ents’ own expert testified that the ABA and DTT methods
“have been scientifically ruled as evidence based for children
with autism,” and that it would be appropriate for teachers to
pick and choose among methodologies, if the ones they
“chose were proven effective.”
[4] The parents allege that C.P. was denied a FAPE
because “there was no objectively measured data collection,”
since measurement of his IEP goals was based on teachers’
subjective observations. But the district court correctly found
that the IEPs contained “measurable annual goals, including
academic and functional goals,” as the IDEA requires. See 20
U.S.C. § 1414(d)(1)(A)(i)(II). C.P.’s IEPs list goals such as
“improve communication skills” and “increase self help
skills,” with concrete descriptions of how C.P.’s progress
would be measured. For example, the goal of “improved fine-
motor skills” could be met by performing “8/10 benchmarks
as [m]easured by [t]herapists observations and records.”
These benchmarks included: 1/4 times, C.P. “will copy a ver-
tical line and a horizontal line”; 2/4 times, C.P. “will cut along
a curved line to within 3/4 inch of the black line”; and when
coloring, 2/4 times, C.P. will “stay with-in the lines of a small
design, 30 then 40 percent.” The school district recorded the
objectively measurable progress C.P. made, and updated his
R.P. v. PRESCOTT UNIFIED SCHOOL DISTRICT 2245
parents through the annual IEP meetings and quarterly prog-
ress reports.
[5] Finally, the parents argue that the district court clearly
erred in finding that “[C.P.] made meaningful progress toward
each of his annual goals and objectives” and that “[t]here
were no IEP goals in which [C.P.] made no progress or made
less than expected progress.” The record supports the district
court’s findings. C.P. didn’t progress at a constant, linear rate
in all areas. But he did progress. When he began school, he
could name some objects and a few pictures, had a short
attention span and ran from adults. By the end of the 2005-06
school year, he could say many words and form phrases to
express a complete thought. He had learned to respond to the
word “no” and to listen to adults. He was able to drink from
a cup without assistance and to put things away. He was
becoming skilled at figuring out puzzles and his coloring
skills had improved. He could wash his hands independently
and assist in pulling up his pants. On the lone test where C.P.
showed no improvement, the district court was entitled to
credit the testimony of a licensed school psychologist who
explained that the results didn’t represent C.P.’s actual prog-
ress. See Anderson v. City of Bessemer City, N.C., 470 U.S.
564, 574 (1985). The district court’s finding that C.P. made
slow but significant educational progress doesn’t leave us
with a “definite and firm conviction that a mistake has been
committed.” J.L., 592 F.3d at 949. We affirm its decision that
the school district conferred educational benefit on C.P. and
therefore complied with the IDEA. See id. at 951 n.10.
[6] 2. Non-IDEA claims. Because the parents based their
ADA, Rehabilitation Act and Due Process claims entirely on
the facts they alleged would establish an IDEA violation, the
district court bifurcated the proceedings in order to first
resolve the IDEA claim. At that time, the court inquired:
“[A]nd no one contemplates any amended pleadings, cor-
rect?” The parents’ lawyer responded: “That’s correct.” The
district court nevertheless set a deadline for amended plead-
2246 R.P. v. PRESCOTT UNIFIED SCHOOL DISTRICT
ings. But only after the court had ruled against the parents on
their IDEA claim did they seek to amend so as to allege facts
supporting new claims that differed in nature from the claims
asserted in their original complaint.
[7] The parents complain about the denial of their motion
seeking leave to amend by adding claims that were substan-
tially different from their original claims. Given that these
new claims could have been alleged in the original complaint
or before the cutoff date set by the district court for amended
pleadings, the court didn’t abuse its discretion in denying the
parents leave to amend after it had ruled on the IDEA claim.
The only explanation the parents offer for failing to amend
within the time allotted is that they believed it would be inap-
propriate to add new claims once the district court sought to
focus on their IDEA claim. But the court expedited the IDEA
claim on the assumption that the underlying facts were the
same across all the parents’ claims. The parents didn’t say
anything to the contrary, and didn’t object to the accelerated
schedule. And, after the district court ruled against them on
the IDEA claim, the parents didn’t seek to revise the original
claims in light of the district court’s ruling. Instead, they tried
to pursue a new theory of relief—one they could easily have
presented before the amendment cut-off. “[P]leading is not
like playing darts: a plaintiff can’t keep throwing claims at the
board until she gets one that hits the mark.” Doe v. Howe Mil-
itary Sch., 227 F.3d 981, 990 (7th Cir. 2000). The district
court didn’t abuse its “especially broad” discretion in denying
leave to amend. See Ascon Props., Inc., v. Mobil Oil Co., 866
F.2d 1149, 1161 (9th Cir. 1989).
[8] 3. Attorney’s Fees. The IDEA allows a prevailing state
educational agency or school district to collect fees in certain
rare circumstances. It can recover attorney’s fees from an
attorney who filed a complaint that’s “frivolous, unreason-
able, or without foundation” or “continued to litigate after the
litigation clearly became frivolous, unreasonable, or without
R.P. v. PRESCOTT UNIFIED SCHOOL DISTRICT 2247
foundation.” 20 U.S.C. § 1415(i)(3)(B)(i)(II). It can also
recover fees from the parents, or from their attorney, if the
suit was presented for “any improper purpose, such as to
harass, to cause unnecessary delay, or to needlessly increase
the cost of litigation.” Id. § 1415(i)(3)(B)(i)(III). The school
district sought fees on both grounds.
The district court awarded $129,951.50 in attorney’s fees
and $11,260.21 in non-taxable costs against the parents and
their counsel. The court found that the parents “lacked a fac-
tual and legal basis for their IDEA claim” because even if
they could “prove an IDEA violation, they were not entitled
to any remedy under the IDEA.” First, damages aren’t avail-
able under the IDEA, Witte v. Clark Cnty. Sch. Dist., 197 F.3d
1271, 1275 (9th Cir. 1999), so the parents couldn’t be
awarded the monetary “compensation for past failures to edu-
cate” that they requested. Second, the parents didn’t incur any
out-of-pocket expenses, and thus weren’t entitled to reim-
bursement of money they had spent on education-related ser-
vices. Finally, the parents “had obtained all of the educational
services they wanted,” because by the time they filed suit in
district court, the school district had already taken steps to
provide C.P. with the programs and staffing they had sought
from the ALJ. Although the parents requested additional ser-
vices to make up for past failures to educate, the district court
believed that they didn’t specify, in sufficient detail, the com-
pensatory education they were seeking. The court therefore
concluded that the parents initiated a lawsuit without founda-
tion and awarded fees against their counsel under section
1415(i)(3)(B)(i)(II).
The court further found that the complaint was presented
for an improper purpose—the parents’ anger at the school dis-
trict. The court reasoned that “[a]nger coupled with a proper
purpose is not improper, but anger alone is not a proper pur-
pose for pursuing litigation.” Thus, the court also awarded
attorney’s fees against the parents under section
2248 R.P. v. PRESCOTT UNIFIED SCHOOL DISTRICT
1415(i)(3)(B)(i)(III). Finally, the district court held that the
parents’ non-IDEA claims were also “without foundation.”
[9] There is little case law governing the IDEA’s provi-
sions allowing school districts to recover attorney’s fees.
We’ve previously noted that the language of the IDEA’s fee-
shifting statute is “nearly identical” to 42 U.S.C. § 1988, the
general fee-shifting provision for federal civil rights cases.
See Aguirre v. L.A. Unified Sch. Dist., 461 F.3d 1114, 1117
(9th Cir. 2006). And the IDEA’s language granting fees to
prevailing defendants is nearly identical to the standard the
Supreme Court developed in Christiansburg Garment Co. v.
EEOC, 434 U.S. 412, 421-22 (1978), which is now the stan-
dard for awarding fees to prevailing defendants in civil rights
cases. See Hughes v. Rowe, 449 U.S. 5, 14 (1980) (per
curiam). Compare 20 U.S.C. § 1415(i)(3)(B)(i)(II) (permitting
award of fees if suit was “frivolous, unreasonable, or without
foundation”), with Christiansburg, 434 U.S. at 421 (permit-
ting award of fees if suit was “frivolous, unreasonable, or
without foundation, even though not brought in subjective bad
faith”).
[10] The IDEA’s legislative history confirms that Congress
fashioned section 1415(i)(3)(B)(i)(II) after the Christiansburg
standard. See 150 Cong. Rec. S5250, S5349 (daily ed. May
12, 2004) (statement of Sen. Gregg) (“The first part of the
amendment comes from the U.S. Supreme Court case of
[Christiansburg] . . . .”). The legislative history further reveals
that section 1415(i)(3)(B)(i)(III) “comes from another well-
established Federal law: Federal Rule of Civil Procedure 11.”
Id.; see Fed. R. Civ. P. 11(b) (subjecting parties to sanction
for filing pleadings with an “improper purpose, such as to
harass, cause unnecessary delay, or needlessly increase the
cost of litigation”). Thus, we rely on Christiansburg and Rule
11 cases to determine whether the district court abused its dis-
cretion in awarding attorney’s fees to the school district
against the parents and their lawyer.
R.P. v. PRESCOTT UNIFIED SCHOOL DISTRICT 2249
[11] Section 1415(i)(3)(B)(i)(II). The district court erred in
holding that the parents couldn’t have obtained any relief and
therefore brought a lawsuit without foundation. The parents
did ask for relief that was available, because the IDEA offers
compensatory education as a remedy for the harm a student
suffers while denied a FAPE. See Parents of Student W v.
Puyallup Sch. Dist. No. 3, 31 F.3d 1489, 1496-97 (9th Cir.
1994). Compensatory education is an equitable remedy that
seeks to make up for “educational services the child should
have received in the first place,” and “aim[s] to place disabled
children in the same position they would have occupied but
for the school district’s violations of IDEA.” Reid ex rel. Reid
v. Dist. of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005); see
20 U.S.C. § 1415(i)(2)(C)(iii). Indeed, the order rejecting
their claims acknowledged that’s exactly what the parents did
seek: “The [parents] seek compensatory education for the Dis-
trict’s alleged failure to provide [C.P.] a free appropriate pub-
lic education.”
[12] Nevertheless, the district court concluded that the suit
was unfounded because the parents “did not identify or offer
evidence of any compensatory education services that would
benefit [C.P.]” In this, the district court was mistaken. C.P.’s
father testified at trial that he “would like compensatory edu-
cation in the form of additional education for my son . . .
whether that entails additional support in schooling in the
summer, whether it entails additional schooling or program-
ming over breaks, whether it includes new computer pro-
grams that have become available or some technology that
has come available or has yet to become available. . . . Some-
thing has to be able to make up for three years of not being
educated if that is in fact determined to be the case.” Had the
district court determined that C.P. was denied a FAPE, it
could well have provided for additional services to help C.P.
make up for lost time, as “it may be a rare case when compen-
satory education is not appropriate” to remedy an IDEA viola-
tion. Parents of Student W, 31 F.3d at 1497. Courts have been
creative in fashioning the amount and type of compensatory
2250 R.P. v. PRESCOTT UNIFIED SCHOOL DISTRICT
education services to award. See, e.g., Ferren C. v. Sch. Dist.
of Phila., 612 F.3d 712, 718-19 (3d Cir. 2010) (court can
order school to provide annual IEPs to student who had aged
out of a statutory right to a FAPE); M.S. ex rel. Simchick v.
Fairfax Cnty. Sch. Bd., 553 F.3d 315, 324-26 (4th Cir. 2009)
(court can order that private school tuition be reimbursed);
Park, ex rel. Park v. Anaheim Union High Sch. Dist., 464
F.3d 1025, 1034 (9th Cir. 2006) (court can order additional
training for a child’s teachers). Thus, even if the parents were
happy with the current IEP, they could reasonably have
expected the district court to use its equitable powers to help
bring C.P. to the point he would have been, had he received
a FAPE all along.
[13] That the judge ruled against the parents because he
found they had not proved that “additional compensatory edu-
cation would serve [a] useful purpose,” does not render the
suit without foundation. We’ve cautioned that “a district court
[should] resist . . . engag[ing] in post hoc reasoning by con-
cluding that, because a plaintiff did not ultimately prevail, his
action must have been unreasonable or without foundation.”
EEOC v. Bruno’s Restaurant, 13 F.3d 285, 287 (9th Cir.
1993) (quoting Christiansburg, 434 U.S. at 421-22). Here, the
parents had a statutory remedy available that would arguably
have provided additional educational benefit to C.P., had they
prevailed. They made plausible arguments as to why they
should prevail; the fact that the arguments were not successful
doesn’t make them frivolous.
[14] Lawyers would be improperly discouraged from tak-
ing on potentially meritorious IDEA cases if they risked being
saddled with a six-figure judgment for bringing a suit where
they have a plausible, though ultimately unsuccessful, argu-
ment, as here. But cf. Dist. of Columbia v. Ijeabuonwu, 631
F. Supp. 2d 101, 105 (D.D.C. 2009) (finding it unreasonable
for defendants to continue litigating after case was declared
moot, no substantive disputes remained and the school district
had offered all important relief sought). Such a procrustean
R.P. v. PRESCOTT UNIFIED SCHOOL DISTRICT 2251
interpretation of section 1415(i)(3)(B)(i)(II) is inconsistent
with the IDEA’s objective of “ensur[ing] that the rights of
children with disabilities and parents of such children are pro-
tected.” 20 U.S.C. § 1400(d)(1)(B); see also Christiansburg,
434 U.S. at 422 (“[H]indsight logic could discourage all but
the most airtight claims, for seldom can a prospective plaintiff
be sure of ultimate success.”). Rather, as we held in Bruno’s
Restaurant, so long as the plaintiffs present evidence that, if
believed by the fact-finder, would entitle them to relief, the
case is per se not frivolous and will not support an award of
attorney’s fees. 13 F.3d at 290.
[15] Section 1415(i)(3)(B)(i)(III). The district court also
erred in holding the parents liable for bringing a suit for an
improper purpose. As a matter of law, a non-frivolous claim
is never filed for an improper purpose. Townsend v. Holman
Consulting Corp., 929 F.2d 1358, 1362 (9th Cir. 1991) (en
banc). It’s therefore harder for a school district to collect
attorney’s fees against parents than against their lawyers: Col-
lecting against parents requires a showing of both frivolous-
ness and an improper purpose, while collecting against their
attorneys requires only a showing of frivolousness. This
makes sense, since parents are not usually in the position to
assess whether a claim is frivolous. Because the parents’
action wasn’t frivolous, it could not be filed for an improper
purpose. See id. They shouldn’t have to face financial ruin for
attempting to vindicate the rights of their disabled child.
[16] In any event, the district court erred in holding that
anger is an improper purpose that could justify an award of
attorney’s fees. Anger is an altogether different motive from
those listed in section 1415(i)(3)(B)(i)(III) as improper: “to
harass, to cause unnecessary delay, or to needlessly increase
the cost of litigation.” In fact, anger is a legitimate reaction by
parties who believe that their rights have been violated or
ignored. One of the roles of the adversarial system is to peace-
ably resolve disputes that give rise to personal animosity by
channeling that indignation into a lawful resolution in lieu of
2252 R.P. v. PRESCOTT UNIFIED SCHOOL DISTRICT
feuding or personal violence. So long as the claim raised is
not frivolous, and the litigation is not being pursued in order
to achieve an illegitimate objective (such as harassment, delay
or imposing unnecessary costs on the opposing party), an
award of fees under section 1415(i)(3)(B)(i)(III) is not justi-
fied.
[17] Non-IDEA claims. As “the vast majority” of the
school district’s expenses came from litigating the IDEA
claim, the non-IDEA claims accounted for only about $14,000
of the fee award. The district court awarded this amount under
a variety of fee-shifting statutes. It found that the non-IDEA
claims in both the original complaint and in the untimely first
amended complaint were without foundation because the par-
ents made insufficient factual allegations, didn’t properly
exhaust and weren’t entitled to a remedy.
[18] As we noted in our discussion of section
1415(i)(3)(B)(i)(II), that the parents couldn’t prevail on these
claims doesn’t render them frivolous. “Even when the law or
the facts appear questionable or unfavorable at the outset, a
party may have an entirely reasonable ground for bringing
suit.” Christiansburg, 434 U.S. at 422. Here, the parents had
a reasonable basis for bringing their non-IDEA claims: Those
claims could have gained them remedies in addition to the
ones to which they would have been entitled, had they pre-
vailed only on their IDEA claim. See, e.g., Mark H. v. Lema-
hieu, 513 F.3d 922, 930 (9th Cir. 2008). While they did not
prevail, we’ve already held that bringing the IDEA claim was
not frivolous. It follows that bringing claims under related
statutes that could have provided additional remedies was also
not frivolous.
[19] Moreover, plaintiffs would have had plausible claims
under the ADA and the Rehabilitation Act, had they been able
to amend their complaint after the district court dismissed the
IDEA claim. We know this because we have examined the
complaint they provided with their motion to amend. The pro-
R.P. v. PRESCOTT UNIFIED SCHOOL DISTRICT 2253
posed amended complaint alleges that the school district
never told plaintiffs that it “paid for other autistic children to
be educated at private schools,” and that on one occasion,
C.P. “was not permitted to attend school with other children.”
While the district court was well within its discretion in deny-
ing the parents leave to amend and dismissing their case, the
parents’ argument for leave to amend wasn’t frivolous. See
Gibson v. Office of Att’y Gen., Cal., 561 F.3d 920, 929 (9th
Cir. 2009). The parents therefore had a reasonable basis for
including their non-IDEA claims in the complaint. The dis-
trict court abused its discretion by finding these claims
groundless and awarding fees to the school district. That deci-
sion was based on the type of “post hoc reasoning” that the
Supreme Court forbids, and undercuts Congress’s effort to
promote vigorous enforcement of civil rights. Christiansburg,
434 U.S. at 421-22.
[20] Fees on Appeal. Because the parents aren’t entitled to
relief on the merits of their IDEA claim, they aren’t entitled
to fees on appeal. See 20 U.S.C. § 1415(i)(3)(B)(i)(I) (permit-
ting an award of fees to a “prevailing party”). We decline
their invitation to impose a sanction under 28 U.S.C. § 1927,
since there’s no evidence that the school district’s lawyers
acted recklessly or in bad faith. See Cline v. Indus. Maint.
Eng’g & Contracting Co., 200 F.3d 1223, 1236 (9th Cir.
2000).
AFFIRMED in part and REVERSED in part. No costs.