C. W. v. Capistrano Usd

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

C. W., a minor, by her Mother, K.S., No. 12-57315
Guardian Ad Litem; K.S., Guardian
Ad Litem, D.C. No.
Plaintiffs-Appellants, 8:11-cv-01157-
DOC-RNB
v.

CAPISTRANO UNIFIED SCHOOL ORDER AND
DISTRICT, AMENDED
Defendant-Appellee. OPINION

Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding

Argued and Submitted
August 5, 2014—Pasadena, California

Filed March 2, 2015
Amended April 9, 2015

Before: Stephen Reinhardt, Kim McLane Wardlaw,
and Consuelo M. Callahan, Circuit Judges.

Order;
Opinion by Judge Wardlaw;
Partial Concurrence and Partial Dissent by Judge Reinhardt
2 C.W. V. CAPISTRANO UNIFIED SCH. DIST.

SUMMARY*

Attorney’s Fees

The panel filed (1) an amended opinion and (2) an order
amending the opinion, denying a petition for rehearing and a
suggestion for rehearing en banc, and directing the mandate
to issue forthwith.

In the amended opinion, the panel affirmed in part and
reversed in part the district court’s award of attorney’s fees
and costs to Capistrano Unified School District as the
prevailing defendant in an action alleging violations of the
Individuals with Disabilities Education Act, the Americans
with Disabilities Act, Section 504 of the Rehabilitation Act,
and 42 U.S.C. § 1983.

The panel agreed with the district court that the ADA and
§ 1983 claims were frivolous, and affirmed the district court
to the extent it awarded attorney’s fees and costs for
representation relating to those claims. The panel concluded
that the claims lacked any legal foundation, and the result was
obvious. The panel also concluded that the claims were not
brought for an improper purpose, which would have allowed
the school district to recover fees from the plaintiff parent as
well as from her attorneys.

The panel disagreed with the district court that the IDEA
and Rehabilitation Act claims were frivolous and/or brought
for an improper purpose, and reversed the district court to the

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 C.W. V. CAPISTRANO UNIFIED SCH. DIST. 3

extent it awarded attorney’s fees and costs related to the
litigation of those claims under 20 U.S.C. § 1415(i)(3)(B).

The panel remanded the case to the district court with
specific instructions to determine which fees were attributable
solely to litigating the frivolous ADA and § 1983 claims.

Judge Reinhardt concurred in part and dissented in part.
He agreed with the majority that the claims under the IDEA
and the Rehabilitation Act were not frivolous and that none
of the claims was brought for an improper purpose.
Disagreeing with the majority, Judge Reinhardt wrote that the
ADA and § 1983 claims, which were based on the same facts
as the Rehabilitation Act claim, were not frivolous.

COUNSEL

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

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

William S. Koski and Carly J. Munson, Youth & Education
Law Project, Mills Legal Clinic, Stanford Law School,
Stanford, California; Paula D. Pearlman, Michelle Uzeta, and
Anna Rivera, Disability Rights Legal Center, Los Angeles,
California, for Amici Curiae Disability Rights Legal Center,
Disability Rights California, Public Counsel Law Center,
Children’s Rights Clinic at Southwestern Law School,
4 C.W. V. CAPISTRANO UNIFIED SCH. DIST.

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, California, for Amicus Curiae California School
Boards Association Education Legal Alliance.

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.
 C.W. V. CAPISTRANO UNIFIED SCH. DIST. 5

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
6 C.W. V. CAPISTRANO UNIFIED SCH. DIST.

bringing the administrative complaints.” Winkelman ex rel.
Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 527
(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 (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
 C.W. V. CAPISTRANO UNIFIED SCH. DIST. 7

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

1
An IEP is a written statement for each child with a disability that
includes (i) “a statement of the child’s present levels of academic
achievement and functional performance”; (ii) “a statement of measurable
annual goals, including academic and functional goals”; (iii) “a description
of how the child’s progress toward meeting the annual goals . . . will be
measured”; (iv) “a statement of the special education and related services
and supplementary aids and services . . . to be provided to the child”;
(v) “an explanation of the extent, if any, to which the child will not
participate with nondisabled children in the regular class”; (vi) “a
statement of any individual appropriate accommodations that are
necessary to measure the academic achievement and functional
performance of the child on State and districtwide assessments”; (vii) “the
projected date” for the beginning of the services” in (iv); and
(viii) beginning when the child is 16, “measurable postsecondary goals”
along with the “transition services . . . needed to assist the child” in
reaching those goals. 20 U.S.C. § 1414(d)(1)(A)(i).
8 C.W. V. CAPISTRANO UNIFIED SCH. DIST.

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.
 C.W. V. CAPISTRANO UNIFIED SCH. DIST. 9

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
(2) 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.

2
Once a parent requests an IEE at public expense, “the public agency
must, without unnecessary delay, either– (i) File a due process complaint
to request a hearing to show that its evaluation is appropriate; or
(ii) Ensure that an independent educational evaluation is provided at
public expense . . . .” 34 C.F.R. § 300.502 (b)(2). “[If] the final decision
is that the agency’s evaluation is appropriate, the parent still has the right
to an independent educational evaluation, but not at public expense.” Id.
at (b)(3); see Cal. Educ. Code § 56329(c) (“If the final decision resulting
from the due process hearing is that the assessment is appropriate, the
parent or guardian maintains the right for an independent educational
assessment, but not at public expense.”).
10 C.W. V. CAPISTRANO UNIFIED SCH. DIST.

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.” The District’s attorney responded in a letter
dated July 14, 2011:

Your July 1, 2011 correspondence cements
your office’s pattern of litigating, and
threatening to litigate, nonexistent
violations . . . As you are aware, continued
litigation as to the appropriateness of the
District’s 2011 occupational therapy
assessment is frivolous . . . . Accordingly, the
District reserves the right to seeks [sic]
sanctions against you and your client if the
most recent administrative decision is
appealed.

D.

On August 3, 2011, K.S. filed an appeal of the ALJ’s
decision in federal district court, adding claims for violations
of the intimidation clause of the Americans with Disabilities
Act, 42 U.S.C. § 12203(b); 42 U.S.C. § 1983 for retaliation
in violation of K.S.’s First Amendment rights; and § 504 of
the Rehabilitation Act of 1973. Each of these additional
claims was based on the theory that the District’s July 14,
 C.W. V. CAPISTRANO UNIFIED SCH. DIST. 11

2001 letter was an attempt to intimidate K.S. from pursuing
her legal right to appeal the ALJ decision.

The District moved under Federal Rule of Civil Procedure
12(b)(6) for dismissal of the ADA, § 1983, and § 504 claims.
The district court dismissed the ADA claim with prejudice;
dismissed the § 1983 claim with prejudice, except to the
extent injunctive relief was sought; and dismissed the § 504
claim because, as pled, it failed to meet the standards
articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009), but
granted K.S. leave to amend the § 504 claim because an
amendment might not be futile.

On January 13, 2012, K.S. filed an amended complaint
alleging the § 1983 and ADA claims once more and pleading
the § 504 claim with more particularity. In response, the
District filed a second motion to dismiss on January 27, 2012,
and on January 31, the parties stipulated to dismiss the § 1983
and ADA claims with prejudice. The district court dismissed
the § 504 claim with prejudice on March 23, 2012.

On July 2, 2012, K.S. moved for summary judgment,
arguing the ALJ incorrectly ruled on the adequacy of the OT
assessment because it failed to recommend that C.W. may
need special education and related services and that the
District had not unnecessarily delayed in filing the due
process complaint.

On August 3, 2012, the district court affirmed the ALJ’s
decision, finding that it “contain[ed] no factual errors and was
thorough and careful,” and concluding that the disputed
occupational therapy report did not violate the IDEA and the
District did not unnecessarily delay its due process complaint.
The court further denied K.S.’s request for attorney’s fees and
12 C.W. V. CAPISTRANO UNIFIED SCH. DIST.

invited the District to file a request for attorney’s fees
because the “bases for appeal [were] frivolous.”

The District accepted the court’s invitation and was
awarded $94,602.34 in attorney’s fees and $2,058.21 in costs.
The district court found that each of the claims was
“frivolous, unreasonable, and without foundation.” Further,
the court concluded that these claims were brought by K.S.
for the improper purpose of “harassment, unnecessary delay,
and needlessly increasing litigation costs,” exposing K.S. to
potential personal liability for the fees.

II.

We review for abuse of discretion a district court’s
award of attorney’s fees to a prevailing defendant
under the fee provisions of the IDEA, 20 U.S.C.
§ 1415(i)(3)(B)(i)(II)–(III). R.P. v. Prescott Unified Sch.
Dist., 631 F.3d 1117, 1125 (9th Cir. 2011). “A district court
abuses its discretion when it awards fees based on an
inaccurate view of the law or a clearly erroneous finding of
fact.” Benton v. Or. Student Assistance Comm’n, 421 F.3d
901, 904 (9th Cir. 2005) (internal quotation marks and
citation omitted). In reviewing attorney’s fees awards in
other contexts, we “employ a two-step inquiry to determine
whether a district court abused its discretion in applying law
to facts in a manner that is ‘essentially factual.’” United
States v. Capener, 608 F.3d 392, 400 (9th Cir. 2010) (internal
citation omitted).

First, we determine de novo whether the trial
court identified the correct legal rule to apply
to the relief requested. If it did, we then
evaluate the trial court’s application of this
legal standard to the facts of the case and may
 C.W. V. CAPISTRANO UNIFIED SCH. DIST. 13

reverse only if its application was
(1) illogical, (2) implausible, or (3) without
support in inferences that may be drawn from
the facts in the record.

Id. (internal citations and quotation marks omitted).
Moreover, “[a]ny elements of legal analysis which figure in
the district court’s decision are . . . subject to de novo
review.” Benton, 421 F.3d at 904.

A.

Section 1415 allows prevailing defendants in IDEA cases
to recover fees from the attorney of a parent and from a
parent in certain rare circumstances. A prevailing school
district may recover attorney’s fees against the parent’s
attorney where the complaint is “frivolous, unreasonable, or
without foundation” (the “frivolous prong”). 20 U.S.C.
§ 1415(i)(3)(B)(i)(II). Additionally, attorney’s fees may be
awarded against a parent or her attorney, “if the parent’s
complaint or subsequent cause of action was presented for
any improper purpose” (the “improper purpose prong”).
20 U.S.C. § 1415(i)(3)(B)(i)(III). The statute gives examples
of improper purposes, including “to harass, to cause
unnecessary delay, or to needlessly increase the cost of
litigation.” Id.

We have previously noted that there is little case law
governing fee awards to prevailing defendants under the
IDEA. R.P., 631 F.3d at 1124. In R.P., though we rejected
the autistic child’s claim that he was denied a fair and
appropriate education in violation of the IDEA, we reversed
the district court’s award of attorney’s fees to the school
district because it applied an improper and unsupported legal
standard. There, we concluded:
14 C.W. V. CAPISTRANO UNIFIED SCH. DIST.

[T]he 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. 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, . . . (1978),
which is now the standard for awarding fees
to prevailing defendants in civil rights cases.

Id. at 1124–25 (internal quotation marks and citations
omitted). We explained that the legislative history of § 1415
demonstrates that Congress fashioned the first part of the law,
which allows defendants to recover if a claim is frivolous,
after the Christiansburg standard. The second part of the law,
§ 1415(i)(3)(B)(i)(III), which allows a prevailing party to
recover against the parents or the parents’ attorneys in the
event that a claim is brought for an improper purpose, “comes
from another well-established Federal law: Federal Rule of
Civil Procedure 11.” R.P., 631 F.3d at 1125 (quoting 150
Cong. Rec. S5250, S5349 (daily ed. May 12, 2004)
(statement of Sen. Gregg)). We therefore “rely on
Christiansburg and Rule 11 cases to determine whether the
district court abused its discretion in awarding attorney’s fees
to the school district against the parents and their lawyer.” Id.

B. Frivolousness

1. IDEA Claims

In assessing the frivolousness of the IDEA claims, the
district court abused its discretion by failing to properly apply
the Christiansburg standard. R.P., 631 F.3d at 1124–25.
 C.W. V. CAPISTRANO UNIFIED SCH. DIST. 15

When the correct legal standard is applied, it is clear that the
claims were not frivolous within the meaning of the statute.

Under Christiansburg, a prevailing defendant is entitled
to attorney’s fees only if plaintiff’s “claim was frivolous,
unreasonable, or groundless, or . . . the plaintiff continued to
litigate after it clearly became so.” 434 U.S. at 422. In
considering what constitutes a claim that is frivolous,
unreasonable or groundless, “it is important that a district
court resist the understandable temptation to engage in post
hoc reasoning by concluding that, because a plaintiff did not
ultimately prevail, his action must have been unreasonable or
without foundation.” Id. at 421–22. And, “if a plaintiff is
found to have brought or continued such a claim in bad faith,
there will be an even stronger basis for charging him with the
attorney’s fees incurred by the defense.” Id. at 422.

Applying the Christiansburg frivolousness standard, we
have held that “[a] case may be deemed frivolous only when
the result is obvious or the . . . arguments of error are wholly
without merit.” Karam v. City of Burbank, 352 F.3d 1188,
1195 (9th Cir. 2003) (internal citation and quotation marks
omitted). Moreover, when there is very little case law on
point and a claim raises a novel question, the claim is much
less likely to be considered frivolous. Id.

To the extent that the district court implied that the IDEA
claims were frivolous at the administrative hearing stage, it
erred.3 First, the District, not K.S., filed the due process

3
The district court failed to analyze whether the claim was frivolous at
the administrative hearing stage, despite suggesting it could award
attorney’s fees for fees incurred at the due process stage. In theory,
however, fees are available for the time spent litigating before the ALJ.
See Lucht v. Molalla River Sch. Dist., 225 F.3d 1023, 1028 (9th Cir. 2000)
16 C.W. V. CAPISTRANO UNIFIED SCH. DIST.

complaint after it decided not to address K.S.’s two concerns
regarding the OT assessment that was provided. Second, the
ALJ’s inquiry focused narrowly on “[w]hether the District’s
January 5, 2011 occupational therapy (OT) assessment was
appropriate.” K.S. contended that the OT assessment was not
appropriate because: (1) The testing used and the scoring of
at least one of the OT tests underlying the OT assessment was
inappropriate; and (2) the report failed to comply with
statutory requirements because the report omits the
assessor’s conclusion about whether C.W. actually required
special education services. The ALJ conducted a thorough
review of these claims, taking testimony from the OT
assessor, and ultimately rejected K.S.’s arguments. Nothing
in the ALJ’s decision hints that these claims were
frivolous—indeed, the ALJ’s careful analysis, findings of
fact, and conclusions of law indicate the seriousness of K.S.’s
claims.

Nor were the IDEA claims frivolous as the litigation
continued. In the motion for summary judgment before the
district court, K.S. argued that the requirement of California
Education Code § 56327—that a written assessment of a
student include a statement of whether the pupil may need
special education and related services—was not met in this
case. K.S. disagreed with the report because it did not
adequately address C.W.’s then-current situation.
Specifically, it was undisputed that the OT report did not
include any specific recommendation and evinced concern
that the subsequently recommended collaborative OT would
merely take the form of ad hoc informal conversations

(“[T]he text of § 1415(i)(3)(B) suggests that Congress intended that
attorney fee awards be available in actions and proceedings under § 1415
as well as in impartial due process hearings.”).
 C.W. V. CAPISTRANO UNIFIED SCH. DIST. 17

between the OT therapist and C.W.’s teacher rather than any
actual occupational therapy.

K.S.’s claims relating to the OT assessment were poorly
plead and argued and she ultimately lost; however, this does
not mean they were frivolous. As we said in R.P. 631 F.3d at
1126, “[l]awyers would be improperly discouraged from
taking 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,
argument, as here.” There was some basis for K.S.’s belief
that the OT assessment was inappropriate, some basis for
concluding that the report failed to meet the procedural
requirements of California Education Code § 56327 (a–b),
and some basis for believing that the IEP failed to provide
C.W. with a free and public education (“FAPE”). In its
decision on the merits, the district court concluded that
because the District did not “dispute [C.W.’s] eligibility at the
time the Disputed Report was written,” the procedural
violation alleged is “especially frivolous.” This conclusion
misapprehended the fact that the OT assessment itself could
be read to violate California Education Code § 56327, which
requires anyone who assesses the pupil to prepare a written
report which includes “[w]hether the pupil may need special
education and related services,” and “[t]he basis for making
the determination.” In reviewing the OT assessment, Hirchag
never states whether C.W. is or is not eligible for OT services
and on what basis. While the district court appropriately
notes that the OT assessment mentions that C.W. was eligible
for special education services, § 56327 by its own terms also
states that the report should note whether the pupil may need
“related services.” Given the dearth of cases citing or
18 C.W. V. CAPISTRANO UNIFIED SCH. DIST.

interpreting § 56327’s requirements,4 it was hardly a foregone
conclusion that a challenge to the OT assessment on the basis
of its failure to include a section recommending what OT
services should be provided to C.W. or seeking an
independent evaluation to ascertain which services should be
provided, could not prevail. See Karam, 352 F.3d at 1195
(“A case is less likely to be considered frivolous when there
is very little case law directly apposite.”) (citation and
internal quotation marks omitted). As in Karam, “[t]hese
circumstances furnish some basis, albeit somewhat tenuous,”
352 F.3d at 1196, for the conclusion that there was some
factual basis for C.W.’s claim. The factual basis for the claim
in concert with the lack of apposite case-law demonstrates
that this claim is not frivolous.

In its analysis of the frivolousness of the 41-day
“unnecessary delay” claim, the district court also failed to cite
any case law setting forth the standard for frivolousness.
Under Christiansburg, K.S.’s claim that the 41-day delay
between parent’s request for an IEE and the District filing for
a due process hearing was “unnecessary” in violation of 34
C.F.R. § 300.502 (b)(2) was not frivolous. Although other
courts have held that periods of time longer than 41-days do
not constitute an “unnecessary delay,” those same courts have
highlighted the fact-specific inquiry necessary to determine
whether the delay violated the Regulation. See, e.g., J.P. v.
Ripon Unified Sch. Dist., No. 2:07-cv-02084-MCE-DAD,
2009 WL 1034993, at *7–8 (E.D. Cal. Apr. 15, 2009).

4
A search of WestlawNext reveals only five cases citing this provision,
two of which are the two decisions by the district court in this case.
 C.W. V. CAPISTRANO UNIFIED SCH. DIST. 19

2. Retaliation-Based Claims

The district court did not discuss Christiansburg in
concluding that the three retaliation-based claims were
frivolous. Nonetheless, our review of these claims under the
proper legal framework demonstrates that two of the three
retaliation-based claims were frivolous, and we affirm the
district court’s finding as to these claims.5

The ADA intimidation claim and the § 1983 claim lack
any legal foundation and “the result is obvious.” Karam,
352 F.3d at 1195. The ADA intimidation claim filed under
42 U.S.C. § 12203(b) had an outcome that was clear at the
time it was filed. Section 12203(b) states: “It shall be
unlawful to coerce, intimidate, threaten, or interfere with any
individual in the exercise or enjoyment of, or on account of
his or her having exercised or enjoyed, or on account of his
or her having aided or encouraged any other individual in the
exercise or enjoyment of, any right granted or protected by
this chapter.” (emphasis added). By its own terms,
protection under the ADA against intimidation does not
extend to a plaintiff’s attempts to exercise rights granted or
protected by the IDEA—the basis of K.S.’s claim in this case.
See Morse v. N. Coast Opportunities, Inc., 118 F.3d 1338,
1343 (9th Cir. 1997) (“Because [Plaintiff’s] § 1983 complaint

5
“We may affirm a district court’s judgment on any ground supported
by the record, whether or not the decision of the district court relied on the
same grounds or reasoning we adopt.” Atel Fin. Corp. v. Quaker Coal Co.,
321 F.3d 924, 926 (9th Cir. 2003) (per curiam); see also, Patton v. Cnty.
of Kings, 857 F.2d 1379, 1381 (9th Cir. 1988) (“Ordinarily, a district
court’s failure to provide any explanation regarding its conclusion that
plaintiff’s suit is frivolous necessitates remand. However, when a court
does not enter a specific finding of fact or conclusion of law, we will
uphold the result if there is a reasonable view of the record to support it.”).
20 C.W. V. CAPISTRANO UNIFIED SCH. DIST.

against [Defendant] is completely barred by the terms of the
statute, we find that her claim is ‘unreasonable’ and
‘meritless.’”). The district court concluded as much in
dismissing the claim with prejudice. Despite this dismissal,
K.S.’s attorneys pled the same claim in their First Amended
Complaint requiring the District to respond once again to this
frivolous claim.6

The § 1983 claim seeking monetary damages and
injunctive relief is likewise frivolous, its outcome
predetermined by a review of relevant law. It is well-
established that a school district cannot be sued for damages
under § 1983. Belanger v. Madera Unified Sch. Dist.,
963 F.2d 248, 254 (9th Cir. 1992) (holding that in California,
school districts are state agencies for purposes of Eleventh
Amendment immunity, and concluding that school districts
cannot be liable for damages under § 1983). The district
court dismissed this claim with prejudice, except insofar as
K.S. sought some sort of injunctive relief against the district.
The request for injunctive relief, however, also is frivolous
because K.S. failed to indicate what she sought to enjoin or
what injunctive relief would be possible in this case. See
Hudson v. Moore Bus. Forms, Inc., 836 F.2d 1156, 1163 (9th
Cir. 1987) (“[F]ailure to justify the basis for the [damages
sought] only serve[s] to support the district court’s conclusion

6
The dissent argues that K.S. dismissed her ADA intimidation and
§ 1983 claims by stipulation “almost immediately after opposing counsel
objected to their inclusion in the amended complaint,” and that, therefore,
the claims should not be deemed sanction-worthy. This statement is
neither true nor relevant. Our conclusion rests on a finding that the ADA
and § 1983 claims were frivolous from the outset. Although K.S. did file
them again after they were dismissed with prejudice, she did not stipulate
to dismiss them until after the District filed a second motion to dismiss
them. But that fact is irrelevant to our conclusion that the claims were
always frivolous.
 C.W. V. CAPISTRANO UNIFIED SCH. DIST. 21

that the damage claims were frivolous and brought to
harass.”). Finally, despite the district court’s dismissal with
prejudice of this claim, K.S. reasserted the § 1983 claim in
her amended complaint, including a request for damages.7

The final retaliation-related claim based on § 504 of the
Rehabilitation Act of 1973, in contrast, is not frivolous.
Although the district court ultimately granted the District’s
Rule 12(b)(6) motion to dismiss, it did so after careful
consideration, ultimately concluding that “the specific facts
of this case would not dissuade a reasonable person from
engaging in a protected activity.” As the district court’s own
reasoning made clear, “[K.S.] present[ed] evidence that, if
believed by the fact-finder, would [have] entitle[d] [her] to
relief.” R.P., 631 F.3d at 1126. Under such circumstances,
“the case is per se not frivolous and will not support an award
of attorney’s fees.” Id. Moreover, although K.S. did not
ultimately prevail on this case, dismissal under Rule 12(b)(6)
is not the same as the standard for frivolousness. See, e.g.,
Neitzke v. Williams, 490 U.S. 319 (1989) (discussing at length
the difference between failure to state a claim under Rule
12(b)(6) and a finding of frivolousness).

C. Improper Purpose

The district court also concluded that K.S.’s claims were
brought for an improper purpose, thus exposing K.S. to
liability for attorney’s fees—an extreme result that not even
the District sought.8 A finding of frivolousness, without a

7
Indeed, counsel for C.W. conceded at oral argument that the § 1983
claim was frivolous to the extent C.W. sought monetary damages.
8
The District confirmed during oral argument that it did not seek
attorney’s fees from K.S., but from K.S.’s counsel only.
22 C.W. V. CAPISTRANO UNIFIED SCH. DIST.

finding of improper purpose, allows a school district to
recover fees from the attorneys, not the parents. See
20 U.S.C. § 1415(i)(3)(B)(i)(III). “It’s therefore harder for a
school district to collect attorney’s fees against parents than
against their lawyers: Collecting against parents requires a
showing of both frivolousness 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.” R.P., 631 F.3d at 1126.

We have held, as a matter of law, that “a non-frivolous
claim is never filed for an improper purpose.” Id. Therefore,
we consider only whether the § 1983 and ADA claims were
brought for an improper purpose. Federal Rule of Civil
Procedure 11(b) governs our analysis. See id. at 1125. We
have recognized that under Rule 11(b)(1), “[a]n improper
purpose is a purpose to ‘harass or to cause unnecessary delay
or needless increase in the cost of litigation.’” G.C. & K.B.
Invs., Inc. v. Wilson, 326 F.3d 1096, 1110 (9th Cir. 2003)
(quoting Rule 11(b)(1)). An improper purpose “is ‘tested by
objective standards,’” id. (quoting Zaldivar v. City of Los
Angeles, 780 F.2d 823, 831 n.9 (9th Cir. 1986)), and may be
found where “a motion or paper, other than a complaint, is
filed in the context of a persistent pattern of clearly abusive
litigation activity.” Aetna Life Ins. Co. v. Alla Med. Servs.
Inc., 855 F.2d 1470, 1476 (9th Cir. 1988).

The district court concluded that K.S. demonstrated her
improper purpose by her “attempt to extort fees from District
to which Mother was not legally entitled in exchange for
Mother foregoing an appeal.” The district court stated: “In
short, Mother’s offer to ransom her child’s IDEA appeal in
exchange for money to which her non-attorney advocate was
not entitled shows that the purpose of this appeal was not to
 C.W. V. CAPISTRANO UNIFIED SCH. DIST. 23

vindicate the rights of her disabled child.” There is no basis
in the record for this finding.

First, a reading of the terms of the settlement offer reveals
no attempt by K.S. to “ransom” the appeal in exchange for
any improper gain. In that settlement offer, K.S. sought both
the District’s funding of an IEE and the attorney’s fees and
costs incurred by the Special Education Law Firm. Her
settlement offer— clearly contingent upon her child receiving
the IEE that K.S. believed C.W. deserved— cannot be
characterized as an effort to improperly extort funds.

Second, from the start, all K.S. sought was a proper OT
recommendation for her child. When the District refused to
provide the requested recommendation, she defended against
the District’s due process complaint, and then, prior to
appealing the adverse decision, provided, through the
settlement offer, an option to avoid further litigation should
the District agree to fund the IEE that she sought for C.W.
When the District refused to settle the dispute, K.S. appealed.
The record fails to reflect the one-sided effort to
“unnecessarily increase the litigation costs incurred by
District until it acquiesced to lining the pockets of her non-
attorney advocate” described by the district court. Nor do the
July 2011 letters counsel exchanged reflect “clearly abusive
litigation activity”; they were, rather, a sideshow by
overzealous advocates. Aetna Life Ins., 855 F.2d at 1476.

Furthermore, the district court’s order shows a degree of
frustration with K.S. and her counsel. (“Finally, Mother’s
latest salvo against this Court is entirely consistent with her
strategy throughout this appeal of casting unfounded
aspersions on the expertise or reasoning of others to deflect
from her own shortcomings.”) District Court’s Order, p. 14.
To the extent that the district court’s frustration with K.S. and
24 C.W. V. CAPISTRANO UNIFIED SCH. DIST.

counsel colored its legal conclusions that these claims were
brought for an improper purpose, this was error. As already
discussed, no evidence supports an alleged improper purpose.
Instead, the record compels the conclusion that K.S. was
simply attempting to “vindicate the rights of [her] disabled
child.”9 R.P., 631, F.3d at 1127. K.S.’s steadfast
determination to ensure that her child received the
appropriate OT is not an improper purpose justifying an
award of attorney’s fees. Indeed, we have made clear that
“anger is a legitimate reaction by parties who believe that
their rights have been violated or ignored.” Id. at 1127.

III.

Where a plaintiff has asserted both frivolous and non-
frivolous claims, a prevailing defendant may recover
attorney’s fees under § 1988 for the time attributable to
defending against solely the frivolous claims. Fox v. Vice,
131 S. Ct. 2205, 2214 (2011). We have held that, “[f]ees may
be awarded only for frivolous claims, and a defendant bears
the burden of establishing that the fees for which it is asking
are in fact incurred solely by virtue of the need to defend
against those frivolous claims.” Harris v. Maricopa Cnty.
Super. Ct., 631 F.3d 963, 971 (9th Cir. 2011); see also Tutor-
Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1063–64 (9th
Cir. 2006) (following other circuits in permitting defendants
to recover fees under § 1988 for those claims that were
frivolous, even when related to the non-frivolous claims, so
long as the claims were “distinctive”). Because Congress
modeled the fee-shifting provisions of § 1415 on § 1988, we

9
Whether K.S.’s counsel brought the § 1983 and ADA claims for an
improper purpose is unnecessary to decide because a finding of
frivolousness alone is sufficient to allow the District to recover attorney’s
fees against counsel under § 1415.
 C.W. V. CAPISTRANO UNIFIED SCH. DIST. 25

conclude that this principle is equally applicable in the § 1415
context. See R.P., 631 F.3d at 1125. Therefore, we reverse
in part and affirm in part the award of attorney’s fees.
Accordingly, we remand this case to the district court with
specific instructions to determine which fees are attributable
solely to litigating the frivolous § 1983 and ADA claims in
this case and to award attorney’s fees against K.S.’s attorneys
in an amount limited to fees generated for work litigating
those claims only.

This panel, as presently constituted, will entertain any
further appeals in this case.

IV.

For the foregoing reasons, the district court’s order
awarding attorney’s fees and costs is reversed in part and
affirmed in part.

Each party shall bear its own costs on appeal.

AFFIRMED in part; REVERSED in part;
REMANDED.

REINHARDT, Circuit Judge, concurring in part and
dissenting in part:

This case is about a mother who engaged in IDEA
litigation principally to secure an independent educational
evaluation for occupational therapy for her child, who
indisputably has special education needs. In the course of
litigating her IDEA claim, the mother alleged that her child’s
26 C.W. V. CAPISTRANO UNIFIED SCH. DIST.

school district violated not only the Individuals with
Disabilities Education Act (IDEA), but also the Rehabilitation
Act, the Americans with Disabilities Act (ADA), and § 1983
by improperly threatening to seek sanctions against her and
her counsel if they appealed the administrative denial of the
child’s IDEA claims.

At the conclusion of the mother’s unsuccessful attempt to
obtain an independent educational evaluation in the district
court, the district judge of his own accord invited the school
district to file a motion for attorney’s fees. The district judge
— expressing a “degree of frustration” with the child’s
mother and her counsel, Maj. Op. at 23 — then awarded the
school district nearly $100,000 in fees and costs, finding
not only that each of the mother’s claims was frivolous, but
that they were brought for improper purposes — “namely,
to ‘harass,’ ‘cause unnecessary delay,’ and ‘needlessly
increase the costs of litigation’” (citing 20 U.S.C.
§ 1415(i)(3)(B)(i)(III)). Under the IDEA, the latter finding
exposed the mother herself to potential liability.

In almost all respects, the majority correctly finds that the
district court was wrong. Specifically, the majority holds that
the claims under the IDEA and the Rehabilitation Act were
not frivolous, and it holds that none of the claims was brought
for any improper purpose. To that extent, I agree completely
with the majority. My colleagues, however, perhaps out of a
desire to give something to both sides, partially affirm the
district court’s decision by holding that the claims under the
ADA and § 1983 were frivolous, although those claims were
based entirely on the very same facts that underlay the non-
frivolous claim under the Rehabilitation Act. This holding
represents more than what some might call legalistic argle-
bargle. To hold that when a litigant has a non-frivolous claim
and pleads it under the wrong legal label as well as under the
 C.W. V. CAPISTRANO UNIFIED SCH. DIST. 27

right one, the pleadings under the wrong statutes are frivolous
and warrant the imposition of sanctions runs contrary to the
spirit and purpose of the IDEA. Such sanctions, if upheld,
would not only penalize both civil rights litigants and lawyers
for good faith efforts to correct perceived violations of
statutes designed to help some of those most in need of help
from our judiciary, but would chill the filing of civil rights —
here, disability — claims in the first instance. Although the
majority opinion should ultimately result in a very small
award for the additional legal work necessary to obtain the
dismissal of the ADA and § 1983 claims, the majority’s
decision to impose sanctions on a small special education law
firm for mere overpleading is important, as it creates
extremely bad law. I strongly disagree that the plaintiff’s
filing of her ADA and § 1983 claims justifies any sanctions
at all, and I dissent from that portion of the majority opinion.

Under the IDEA, a prevailing defendant agency or district
can recover fees only in “rare circumstances.” R.P. v.
Prescott Unified Sch. Dist., 631 F.3d 1117, 1124 (9th Cir.
2011). Such circumstances generally involve conduct so
offensive to the fair and honorable practice of law that it
merits sanctioning of the offending attorneys. An attorney
who files a legitimate action for a client does not exceed the
bounds of honorable lawyering when he adds to the
complaint an allegation that the same conduct violates related
statutes as well, whether doing so results from a disagreement
with prior case law, the offering of a novel though erroneous
legal theory, or an inability to thoroughly research every
possible legal theory before filing the complaint. Although
law firms with thousands of attorneys may be able to fully
research every legal claim they assert, a small, under-staffed,
and under-paid law firm seeking to protect the rights of
children with disabilities should not be held to so rigorous a
standard. As a lawyer with obligations to his client, counsel
28 C.W. V. CAPISTRANO UNIFIED SCH. DIST.

from such a firm is following his professional duties far better
by possibly overpleading the number of statutes the
defendant’s unlawful actions may violate than by
underpleading them. The former does far less harm to the
defendant who may readily have the extraneous counts
stricken than the latter does to the plaintiff who may lose a
legitimate claim should the lawyer fail to include all
potentially applicable statutes. Counsel’s action of referring
to too many statutes, rather than too few, is not the type of
“rare circumstance” that warrants the sanctioning of a lawyer
asserting a legitimate IDEA claim.

That is particularly true in this case, as counsel “may have
[had] an entirely reasonable ground for bringing” claims
under § 1983 and the ADA, despite the fact that “the law . . .
appear[ed] questionable or unfavorable at the outset.”
Christianburg Garment Co. v. EEOC, 434 U.S. 412, 422
(1978). The damages claim under § 1983, for example, failed
because we had held almost a quarter of a century ago in
Belanger v. Madera Unified Sch. Dist, 963 F.2d 248, 254 (9th
Cir. 1992), that a school district in California is an arm of the
state for purposes of Eleventh Amendment immunity.
Although the rule of Belanger is undoubtedly presently good
law in our court as to the immunity of California school
districts, “the Supreme Court and the vast majority of
appellate courts that have considered the issue [as it relates to
school districts in other states] have found that school
districts and school boards are not entitled to Eleventh
Amendment immunity.” Lightfoot v. Henry Cty. Sch. Dist.,
771 F.3d 764, 768–69 (11th Cir. 2014). It would not be
improper or surprising for a plaintiff to question whether
Belanger should remain good law by raising that argument
for purposes of asserting it before an en banc court or even in
order to preserve the possibility of seeking Supreme Court
review. See Davis v. Electronic Arts Inc., No. 12-15737,
 C.W. V. CAPISTRANO UNIFIED SCH. DIST. 29

2015 WL 66510, at *6 n.7 (9th Cir. Jan. 6, 2015). However,
by sanctioning the attorney in this case because the plaintiff’s
§ 1983 claim was barred by Belanger, the majority severely
punishes the exercise of that legitimate right and violates the
“rare circumstances” rule.

The plaintiff's ADA claim, moreover, was rejected by the
district court only because, in its view, the statutory text
under which counsel asserted that claim was not expansive
enough to support the plaintiff’s argument. As an initial
matter, I disagree with the majority’s failure to treat this
claim in the same manner as it did the Rehabilitation Act
claim, which the majority correctly determined was not
frivolous. We have held that “[t]here is no significant
difference in analysis of the rights and obligations created by
the ADA and the Rehabilitation Act,” Zukle v. Regents of
Univ. of Cal., 166 F.3d 1041, 1045 n.11 (9th Cir. 1999), and
the majority provides no reason not to follow that rule in this
case. Even if the majority were correct, however, that the
statutory text under which counsel brought the ADA claim
was not expansive enough to support it, that would not be a
sufficient reason to find the claim frivolous. I need not
recount the number of times that a federal court has read
statutory text as holding a meaning that its ordinary language
would not appear to bear. See, e.g., Chevron U.S.A. Inc. v.
Echazabal, 536 U.S. 73, 76 (2002) (holding that the ADA’s
direct-threat defense may apply not only to “other individuals
in the workplace,” as the statute states, but to the disabled
individual himself). The fact that the plaintiff’s arguments
were not successful in this case “doesn’t make them
frivolous.” R.P., 631 F.3d at 1126. More fundamentally,
however, it is entirely reasonable for practitioners in a small
law firm (or even counsel in a large firm) to think that the
Americans with Disabilities Act might apply in a case
concerning a child with disabilities and to set forth that
30 C.W. V. CAPISTRANO UNIFIED SCH. DIST.

contention in a complaint. Thinking so, right or wrong, is not
a ground for sanctions.

The arguments against sanctioning plaintiff’s counsel for
bringing the mother’s legitimate intimidation claim under
what the majority believes to be the wrong statutes — § 1983
and the ADA — as well as under what it holds to be the right
one — the Rehabilitation Act — are especially strong
considering the minimal costs that the defendant incurred
“solely by virtue of the need to defend against” these claims.
Harris v. Maricopa Cnty., 631 F.3d 963, 971 (9th Cir. 2011).
As the majority opinion correctly states, a court may grant
attorney’s fees to the defendant “only for costs that the
defendant would not have incurred but for the frivolous
claims.” Fox v. Vice, 131 S. Ct. 2205, 2211 (2011). In this
case, it is impossible for those costs to be more than a
minimal amount, if any. All of the time and effort that the
defendant expended defending against the substance of the
plaintiff’s § 1983 and ADA claims would have been
expended even if the plaintiff had not brought those claims
because the § 1983 and ADA claims were based on the very
same facts as the non-frivolous Rehabilitation Act claim. The
only costs the defendant theoretically incurred that it would
not have but for the § 1983 and ADA claims are costs relating
to asserting that Belanger barred the § 1983 claim and costs
relating to asserting that the ADA did not apply in this case.
The former required making an argument that California
school districts surely are prepared to make in any § 1983
case, and the latter basically required reproducing the
statutory text.

Although the award in this case should, therefore, be
extremely low, the majority nevertheless should have heeded
the warning that we offered in R.P.:
 C.W. V. CAPISTRANO UNIFIED SCH. DIST. 31

Lawyers would be improperly discouraged
from taking 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 argument, as here. Such a
procrustean 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 protected.”

R.P., 631 F.3d at 1126 (quoting 20 U.S.C. § 1400(d)(1)(B))
(citation omitted). By punishing a small firm for arguing a
non-frivolous claim under the wrong sections of the United
States Code, the precedent established by the majority
opinion will discourage disability lawyers from taking on the
very cases that the IDEA sought to encourage. In light of the
majority’s opinion, small firms will have to weigh the risk
that they will incur a costly sanction for a minor legal error
intended to benefit a disabled child. This despite the fact that
IDEA practitioners — indeed, nearly all civil rights
practitioners — rarely have the time or the staff to handle the
volume of cases for which they are responsible with the same
attention or devotion of resources as their counterparts who
represent the defense.

We must be sensitive to imposing sanctions in IDEA
cases, as it is critical that we keep the federal courts open to
IDEA claims, counsel, and parties. Indeed, it is the clients
with IDEA complaints who in the end will suffer if lawyers
become reluctant to bring such cases before us. To further
the purpose of the IDEA, we must allow counsel for IDEA
plaintiffs the leeway to handle their cases in a practical
manner. The majority, unintentionally, fails to abide by this
32 C.W. V. CAPISTRANO UNIFIED SCH. DIST.

rule. In doing so, it sets a precedent that is at odds with the
core purpose of the IDEA.

There is an additional issue in this case, which is
governed by the same principles we have discussed above:
should we affirm the sanctioning of plaintiff’s counsel for
reasserting the ADA and § 1983 claims in an amended
complaint after those claims had previously been dismissed
with prejudice? Here, the circumstances provide the answer.
The facts show that counsel agreed to dismiss those claims by
stipulation almost immediately after opposing counsel
objected to their inclusion in the amended complaint. In the
Rule 11 context, this fact would end our inquiry; we would
not sanction plaintiff’s counsel. See Fed. R. Civ. P. 11
advisory committee’s notes to 1993 amends. (explaining that
Rule 11 “generally provid[es] protection against sanctions if
[attorneys] withdraw or correct contentions after a potential
violation is called to their attention”); Barber v. Miller,
146 F.3d 707, 710 (9th Cir. 1998) (explaining that the
purpose of Rule 11’s “safe harbor” provision is to allow
counsel to withdraw claims in order to “protect[] himself
totally from sanctions”). Although the IDEA does not
contain the “safe harbor” provided in Federal Rule of Civil
Procedure 11(c)(2), we have held that — in light of the
legislative history of the IDEA — we must in the IDEA
context rely on “Rule 11 cases to determine whether the
district court abused its discretion in awarding attorney’s fees
to the school district.” R.P., 631 F.3d at 1125. Our inquiry
here, therefore, must similarly end with the fact that the ADA
and § 1983 claims were dismissed by stipulation of the
parties. Otherwise, in the IDEA context we would encounter
the very issue that motivated the adoption of a “safe harbor”
in Rule 11 — counsel would be “reluctant to abandon a
questionable contention lest that be viewed as evidence” that
his contention was frivolous. Fed. R. Civ. P. 11 advisory
 C.W. V. CAPISTRANO UNIFIED SCH. DIST. 33

committee’s notes to 1993 amends. The majority’s holding
to the contrary creates an unnecessary incongruity between
the IDEA and Rule 11 without any basis for doing so.

Moreover, whether or not plaintiff’s counsel’s actions
constituted a technical violation of our pleading rules, I would
hold that they do not warrant sanctions. We should sanction
plaintiff’s counsel in an IDEA case for continuing to litigate
a claim that was dismissed with prejudice only when the
continued litigation was deliberate. In this case, the school
district bore “the burden of establishing entitlement to an
award.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). It
made no showing, however, that plaintiff’s counsel’s renewed
litigation of the dismissed claims was intentional. In fact, the
evidence is to the contrary. Although the plaintiff reasserted
her ADA and § 1983 claims after they were dismissed with
prejudice, the parties dismissed them by stipulation almost
immediately after the defendant filed its motion to dismiss.
Moreover, the plaintiff’s reassertion of these dismissed
claims did not create any significant additional work for
defense counsel, who needed only to state that the claims had
already been dismissed with prejudice. Given that the
reassertion of the failed claims did little or no harm to the
defendant and could have caused little or no expenditure of
defendant’s counsel’s time and energy, I would not sanction
disability rights attorneys for what was, in all likelihood, a
simple mistake by counsel or another employee of an under-
staffed law firm — a mistake that it corrected almost
immediately by stipulation.

Due to the minimal costs that the defendant incurred
“solely by virtue of the need to defend against” the claims
that the majority erroneously finds to be frivolous, Harris,
631 F.3d at 971, I fully expect the award in this case to be
nominal at most. The majority opinion nevertheless creates
34 C.W. V. CAPISTRANO UNIFIED SCH. DIST.

an unfortunate precedent. I would hope that on rehearing the
majority, which has otherwise issued an excellent opinion
that is fully consistent with the letter and spirit of the IDEA,
will reconsider and delete the few offending paragraphs
affirming sanctions — paragraphs that sound so jarring and
contrary a note to the rest of its disposition.