FILED
NOT FOR PUBLICATION JUL 15 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
T.G., by and through his Guardian Ad No. 10-56154
Litem, Stella GUTIERREZ,
D.C. No. 2:09-CV-6555-R-RC
Plaintiff - Appellant,
MEMORANDUM *
v.
BALDWIN PARK UNIFIED SCHOOL
DISTRICT, et al.
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted June 7, 2011
Pasadena, California
Before: B. FLETCHER and N.R. SMITH, Circuit Judges, and GWIN, District
Judge.**
Appellant T.G. appeals the district court’s decision dismissing his
Individuals with Disabilities Act (IDEA) claims on grounds of res judicata,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
collateral estoppel, and failure to exhaust administrative remedies. We have
jurisdiction under 28 U.S.C. § 1291, and we reverse and remand with instructions.
T.G. is an autistic eighteen-year-old male who receives special education
services from the Baldwin Park Unified School District. He weighs 250 pounds, is
unpredictably violent, and was diagnosed in 2009 as emotionally disturbed.
During the 2006-2007 and 2007-2008 school years, T.G. was educated at
home due to his disabilities. On July 21, 2008, the School District offered T.G. an
immediate placement for the 2008-2009 school year at Canyon View, a special-
education school for autistic and emotionally disturbed children. When T.G.’s
mother refused the placement, the School District filed an administrative complaint
requesting a declaration that its proposal constituted a Free Appropriate Public
Education (“FAPE”).
In January 2009 an Administrative Law Judge (“ALJ”) ruled that Canyon
View was a FAPE. But the ALJ refrained from declaring that immediate
placement was appropriate because the testimony of T.G.’s doctor indicated it
would take until June 2009 to gauge the result of a recent medication change. The
ALJ instead instructed that the School District may implement its Canyon View
offer after June 2009, which coincided with the start of the 2009-2010 school year.
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On May 7, 2009—four months after the ALJ’s decision—T.G.’s doctor
diagnosed T.G. with an emotional disturbance for the first time. When T.G.’s
Individualized Education Program (“IEP”) team met the following week to discuss
the 2009-2010 school year, T.G.’s mother asked that the IEP team be expanded to
include a community health representative and that the team consider a residential
treatment facility instead of Canyon View. See Cal. Code Regs. tit. 2, § 60100
(When IEP team member recommends residential placement for emotionally
disturbed student, IEP team must meet with community health services.). The
School District refused, and T.G. filed an administrative complaint.
A second ALJ dismissed the complaint, finding that res judicata and
collateral estoppel barred the second case and also that it lacked authority to
contravene the first ALJ’s decision. The second ALJ did not consider an amended
complaint that T.G. filed three days before the ALJ issued his opinion.
T.G. appealed the second ALJ’s dismissal to the district court, which
dismissed part of the complaint based on its application of res judicata and
collateral estoppel, and dismissed the rest for failure to exhaust administrative
remedies on the claims stemming from the untimely amended complaint. We
review de novo a district court’s dismissal based on res judicata and collateral
estoppel. Clark v. Bear Stearns & Co., 966 F.2d 1318, 1320 (9th Cir. 1992). We
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also review de novo a district court’s application of the IDEA’s exhaustion
requirements, keeping in mind that this exhaustion requirement “is not a rigid one,
and is subject to certain exceptions.” Hoeft v. Tucson Unified Sch. Dist., 967 F.2d
1298, 1302–03 (9th Cir. 1992).
The district court held that because T.G. could have claimed, but did not,
that he was emotionally disturbed in the first administrative case, res judicata
precluded him from introducing evidence of emotional disturbance in the second
case. Res judicata bars the litigation of claims that were or could have been raised
in a previous suit between the parties that reached a final judgment on the merits.
Villacres v. ABM Indus., Inc., 117 Cal. Rptr. 3d 398, 408–09 (Cal. Ct. App. 2010).
In May 2009—four months after the first ALJ’s decision—T.G.’s doctor
concluded that, “despite very intense interventions and multiple medication trials,
T.G.’s behavior [ ] continued to decline,” and only then diagnosed him as
emotionally disturbed. See 34 C.F.R. § 300.8(c)(4) (child must exhibit
characteristics over long period of time to degree that markedly adversely affects
child’s educational performance). It was only upon this diagnosis that T.G.
obtained the right to request residential placement and to have an expanded IEP
team consider the request, pursuant to § 60100. T.G. thus could not have asserted
this claim in the first case. Res judicata therefore does not bar this claim.
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The district court also relied on collateral estoppel, finding that the first ALJ
already decided the issue of T.G.’s placement for the 2009-2010 school year.
Collateral estoppel precludes the litigation of issues that were part of a prior suit
between the parties and that were actually litigated and necessarily decided.
Lucido v. Superior Court, 51 Cal. 3d 335, 341 (1990).
Only the School District’s July 21, 2008 offer for the 2008-2009 school year
was before the first ALJ. Neither the School District nor T.G. attempted to prove
that Canyon View was an appropriate placement for the 2009-2010 school year,
nor did either party seek an order relating to that year. That the ALJ’s remedy
touched on the 2009-2010 school year does not change the fact that the issue of
T.G.’s placement for the 2009-2010 school year was never “actually litigated.”
Each school year is a separate issue under the IDEA; whatever is deemed
appropriate for one year cannot preclude dispute about the next. See Dept. of
Educ., Hawaii v. Karen I., Nos. 09-15988, 09-17608, 2011 WL 2173994, at *2 n.1
(9th Cir. June 3, 2011); see also 20 U.S.C. § 1414(d)(1)(A) (describing that an IEP
is based on “annual” goals), 1414(d)(2) (an updated IEP must be in place prior to
the beginning of each academic year); 34 C.F.R. § 300.323(a) (same); Cal. Educ.
Code § 56321 (listing other requirements to be met prior to beginning of each
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academic year). Collateral estoppel therefore does not preclude T.G. from
litigating his placement going forward.
The district court dismissed the rest of T.G.’s claims because T.G. failed to
properly amend his complaint in the second administrative case. See Cal. Educ.
Code § 56502(e). However, when it is “improbable that adequate relief can be
obtained by pursuing administrative remedies (e.g., the hearing officer lacks the
authority to grant the relief sought),” an exception to the exhaustion requirement
applies. Hoeft, 967 F.2d at 1304. Here, the second ALJ mistakenly believed that
he lacked the authority to consider residential treatment for the 2009-2010 school
year; thus the district court should have excused T.G. from exhausting his claims at
the administrative level.
Accordingly, we reverse the district court order dismissing T.G.’s claims.
Upon remand, the district court is instructed to receive the entire administrative
record. 20 U.S.C. § 1415(i)(2)(C).
REVERSED AND REMANDED WITH INSTRUCTIONS.
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