Meridian Joint School District No. 2 v. D.A.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MERIDIAN JOINT SCHOOL DISTRICT No. 13-35329
NO. 2,
Plaintiff-Appellant, D.C. No.
1:11-cv-00320-
v. CWD

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

MERIDIAN JOINT SCHOOL DISTRICT No. 13-36200
NO. 2,
Plaintiff-Appellant, D.C. No.
1:11-cv-00320-
v. CWD

D. A., mother of minor, M.A. and J.
A., father of minor, M.A., OPINION
Defendants-Appellees.

Appeal from the United States District Court
for the District of Idaho
Candy W. Dale, Chief Magistrate Judge, Presiding

Argued and Submitted
April 8, 2015—Seattle, Washington
2 MERIDIAN JOINT SCH. DIST. NO. 2. V. D.A.

Filed July 6, 2015

Before: Ferdinand F. Fernandez, Michael Daly Hawkins,
and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Callahan

SUMMARY*

Individuals with Disabilities Education Act

The panel affirmed in part and reversed in part the district
court’s judgment and vacated an injunction in an action under
the Individuals with Disabilities Education Act.

The parties disagreed as to whether a student was entitled
to special education services under the IDEA. Affirming in
part, the panel held that the district court did not err in
affirming a hearings officer’s determination that the student
was entitled to an Independent Educational Evaluation at
public expense.

Reversing in part, the panel held that although the
student’s parents’ request for attorneys’ fees was timely and
they were prevailing parties, they were not eligible for an
award of fees under 20 U.S.C. § 1415(i)(3)(B) because
neither was a “parent of a child with a disability.” Agreeing
with the Eleventh Circuit, and disagreeing with the Sixth and
Seventh Circuits, the panel concluded that for purposes of

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 MERIDIAN JOINT SCH. DIST. NO. 2. V. D.A. 3

choosing the most relevant state statute of limitations, a
request for attorney’s fees is more analogous to an
independent claim than an ancillary proceeding. Agreeing
with the Fifth Circuit, the panel held that the parents were not
parents of a child with a disability for purposes of an award
of attorneys’ fees under § 1415(i)(3)(B) because their child
had not been determined to need special education services.

The panel vacated the district court’s “stay-put”
injunction against the student’s graduation from high school.

COUNSEL

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

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

OPINION

CALLAHAN, Circuit Judge:

M.A. or Matthew has Asperger’s Syndrome, a high
functioning form of autism.1 For many years, his parents and
the Meridian School District (MSD) have disagreed as to
whether Matthew was entitled to special education services
under the Individuals with Disabilities Education Act (IDEA),

1
Matthew is now an adult, but during most of the underlying legal
proceedings he was a minor and was referred to as M.A.
4 MERIDIAN JOINT SCH. DIST. NO. 2. V. D.A.

20 U.S.C. § 1400. The appeals before us were filed by MSD
and challenge the district court’s (1) determination that
Matthew was entitled to the preparation of an Independent
Educational Evaluation (IEE) at public expense; (2) award of
attorneys’ fees to Matthew’s parents; and (3) injunction
against Matthew’s graduation from high school. We affirm
in part and reverse in part. We find no error in the district
court’s affirmance of the hearing officer’s determination that
Matthew was entitled to an IEE at public expense. However,
we conclude that although the parents’ request for attorneys’
fees was timely, and that they are “prevailing parties,” they
are not eligible for an award of attorneys’ fees under
20 U.S.C. § 1415(i)(3)(B). Finally, we vacate the injunction
against Matthew’s graduation.

I

Matthew was born in 1994. In 2004, he moved from
California to Idaho. Matthew had received special education
in California, and his parents provided MSD “with
information related to M.A.’s previous diagnoses of
expressive-receptive language disorder, central auditory
processing disorder, possibility of dyslexia and dysgraphia,
and possibility of Asperger’s disorder.” Matthew received
special education under the IDEA from fifth grade through
eighth grade. In April 2008, while Matthew was in eighth
grade, Matthew’s Individualized Education Program (IEP)
team determined, following a three-year reevaluation of
Matthew, that he no longer needed special education services.
His parents (sometimes referred to as the Parents) disagreed
with this decision and, at their own expense, obtained an
evaluation from Dr. Timothy Leavell, who diagnosed
Matthew with Asperger’s disorder. The Parents asked MSD
to conduct an evaluation of Matthew and reassess his
 MERIDIAN JOINT SCH. DIST. NO. 2. V. D.A. 5

eligibility for special education. MSD, however, concluded
that, rather than an IEP under the IDEA, Matthew would
receive various accommodations starting in ninth grade under
Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.

Matthew’s freshman year was spent at Centennial High
School until April 2009 when Matthew set a fire in a room in
the family home, was arrested, and placed in the Ada County
Juvenile Detention Center (ACJDC). While Matthew was in
the ACJDC, his parents requested that the Boise School
District (BSD), which had responsibility for the ACJDC,
evaluate Matthew’s eligibility for special education services.
On February 18, 2010, BSD issued an eligibility report
finding strong indications of Asperger’s Syndrome, but
concluding that Matthew was not eligible for special
education services because “at this time, there is no evidence
of the adverse effect of [his] disabilities on his current
educational performance.” However, the report noted that the
evaluation was limited by the fact that the assessments were
conducted while Matthew was confined. The report stated:

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

Matthew was released from the ACJDC in September
2010, and returned to Centennial High School, several weeks
after the school year had started. Three days before he
6 MERIDIAN JOINT SCH. DIST. NO. 2. V. D.A.

returned to the high school, his parents delivered a letter to
MSD requesting a comprehensive IEP for Matthew. MSD
considered the request, drafted a new Section 504 plan for
Matthew, and on September 27, 2010, denied the Parents’
requests for additional assessments. MSD stated that it was
relying on the February 2010 report prepared by BSD and
that the IDEA provides that reevaluation may not occur more
than once a year.

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

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

MSD denied the request for an IEE and pro-actively filed
for a due process hearing pursuant to 20 U.S.C. § 1415 and
34 C. F. R. § 300.502(b)(2)(i), seeking confirmation of its
decision from a hearing officer. The matter was assigned to
Special Education Hearing Officer Guy Price (HO Price),
who conducted three weeks of hearings on two issues: (1)
“[i]s the Student entitled to an Independent Educational
Evaluation, as requested by his attorney on January 17,
2011”; and (2) “[d]oes the Student qualify for special
 MERIDIAN JOINT SCH. DIST. NO. 2. V. D.A. 7

education pursuant to the eligibility criteria set forth in the
IDEA and the Idaho Special Education Manual.”

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

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

Meanwhile, pursuant to HO Price’s directive, an IEE was
prepared for Matthew and submitted to MSD in September
2011. MSD proceeded to evaluate Matthew’s eligibility for
special education services under the IDEA. In January 2012,
the Parents filed a request for a due process hearing alleging

2
On June 15, 2010, HO Price issued an addendum to his June 6, 2011
decision.
8 MERIDIAN JOINT SCH. DIST. NO. 2. V. D.A.

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

In addition, the Parents filed another action arising from
the same background that is not before us. In February 2011,
the Parents initiated administrative proceedings under the
Rehabilitation Act and in March 2011, initiated an action
alleging that MSD and BSD had violated Matthew’s rights
under the Americans with Disabilities Act (ADA). D.A. v.
Meridian Joint Sch. Dist. No. 2, 289 F.R.D. 614, 620 (D.
Idaho 2013). That action was ultimately resolved in an eight-
day trial in the summer of 2013. The jury answered no to the
special verdict question “was Matthew denied a free and
appropriate public education by the Meridian School
District.” Chief Magistrate Judge Candy W. Dale, who
presided over all of the cases concerning Matthew, issued a

3
The Parents’ appeal from the district court’s January 6, 2014 order,
Appeal No. 14-35081, was argued in tandem with MSD’s appeals. We
affirm the district court’s January 6, 2014 decision in a memorandum
disposition filed concurrently with this opinion.
 MERIDIAN JOINT SCH. DIST. NO. 2. V. D.A. 9

final judgment on July 31, 2013. There was no appeal from
the judgment.

II

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

we give “due weight to judgments of
education policy when reviewing state
hearings and must take care to not substitute
[our] own notions of sound educational policy
for those of the school authorities [we]
review.” K.D., 665 F.3d at 1117 (internal
quotation marks omitted). Although “[t]he
extent of deference given to the state hearing
officer’s determination is within our
discretion,” “[w]e give deference to the state
hearing officer’s findings particularly when,
as here, they are thorough and careful.” Id.;
see also Union Sch. Dist. v. Smith, 15 F.3d
1519, 1524 (9th Cir. 1994).

E.M., 758 F.3d at 1170. See also K.D., 665 F.3d at 1117.
10 MERIDIAN JOINT SCH. DIST. NO. 2. V. D.A.

“We review the district court’s findings of fact for clear
error, even when they are based on the written record of
administrative proceedings.” Van Duyn v. Baker Sch. Dist.
5J, 502 F.3d 811, 817 (9th Cir. 2007) (citing Amanda J. v.
Clark Cnty. Sch. Dist., 267 F.3d 877, 887 (9th Cir. 2001)).
“A finding of fact is clearly erroneous when the evidence in
the record supports the finding but ‘the reviewing court is left
with a definite and firm conviction that a mistake has been
committed.’” K.D., 665 F.3d at 1117 (quoting Burlington N.,
Inc. v. Weyerhaeuser Co., 719 F.2d 304, 307 (9th Cir. 1983)).

In addition, we have held that “the party ‘challenging the
district court’s ruling bears the burden of proof on appeal.’”
E.M., 758 F.3d at 1170 (quoting K.D., 665 F.3d at 1117).

III

We initially turn our attention to MSD’s challenges to HO
Price’s determination that Matthew was entitled to the
preparation of an IEE at public expense. Because we affirm
that decision, we next address the district court’s award of
attorneys’ fees. We first hold that despite MSD’s arguments
to the contrary, the Parents’ request for attorneys’ fees was
timely. This brings us to 20 U.S.C. § 1415(i)(3)(B)(i), which
grants the district court discretion to award reasonable
attorneys’ fees as part of costs “to a prevailing party who is
the parent of a child with a disability.” We conclude that
while the Parents are “a prevailing party,” neither is a “parent
of a child with a disability” for purposes of the statute’s
attorneys’ fees provision. Last, we address and vacate the
district court’s injunction barring Matthew’s graduation from
high school.
 MERIDIAN JOINT SCH. DIST. NO. 2. V. D.A. 11

A. The hearing officer and the district court properly
determined the Parents were entitled to an IEE at
public expense.

In his 19-page memorandum decision, HO Price carefully
considered the evidence and arguments presented by MSD
and the Parents. He first rejected MSD’s argument that it
could rely on BSD’s evaluation, noting that “it appears to be
at least as probable as not that the BSD’s suggestion that the
setting might impact their findings was correct,” and that a
number of professionals had concern with evaluating a
student solely within the confines of ACJDC. Second, he
found that MSD’s desire to perform additional observations
was likely “nothing more than an effort to put off the decision
. . . .” Third, the hearing officer held that MSD had relied too
heavily on Matthew’s ability to obtain good grades, and that
MSD’s accommodations did not address the problems
Matthew had with fluency and processing speed. HO Price
expressed concern that MSD sought to use its acceptance of
Matthew’s diagnosis of Asperger’s Syndrome to allow it to
focus solely on academic achievement. He commented that
although numerous tests were given, “if one looks closely, it
is easy to see that the outcomes of those tests almost all show
deficits which are probably attributable to the student’s
disability” and that “it seems that the interpretation of those
tests was predetermined to be interpreted as indicating that
the student was not in need of special education.” HO Price
concluded “there are indicators that [Matthew] has high
intelligence and can do well in many academic arenas,” but
“it does not appear that he has overcome his disability to the
extent that it has no adverse effect on his performance.” HO
Price concluded that “[a]dditional evaluation and
interpretation is necessary before such a conclusion could be
reached,” and because he did “not have confidence in the
12 MERIDIAN JOINT SCH. DIST. NO. 2. V. D.A.

eligibility report relied upon and interpreted by the district,
the parent is entitled to an Independent Educational
Evaluation.”

The district court carefully addressed MSD’s objections
to the hearing officer’s decision in a 26-page memorandum
decision. The district court emphasized that it was not
deciding whether Matthew was entitled to special education
under the IDEA or even whether he suffered an adverse
impact on his educational performance as a result of his
disability. Rather:

The only issue before the Court is whether the
School District’s adoption of BSD’s eligibility
report and refusal to conduct an evaluation at
M.A.’s mother’s request was appropriate. HO
Price found that the School District’s adoption
of BSD’s report was not appropriate due to
the setting in which BSD’s evaluation took
place and because the School District
improperly overemphasized M.A.’s grades in
looking at whether M.A. suffered an adverse
affect from his disability. The Court finds no
error with those findings.

On appeal, MSD argues that it complied with the IDEA’s
statutory framework and regulatory criteria and the district
court failed to independently review the record. MSD argues
that the district court: (1) should have given more weight to
its employees’ observations of Matthew after he returned to
the high school; (2) failed to appreciate that there is no
relevant test that takes into account a more restrictive setting;
(3) relied on the same unreliable testimony as the hearing
officer; and (4) should not have accepted the hearing officer’s
 MERIDIAN JOINT SCH. DIST. NO. 2. V. D.A. 13

conclusion that MSD relied solely on Matthew’s academic
performance.

MSD’s challenges to the determination that Matthew was
entitled to an IEE at public expense do not meet its burden of
proof. One of the purposes of the IDEA is to free children
and parents from total reliance on a school district’s
assessment of a child. In Honig v. Doe, 484 U.S. 305, 311
(1988), the Supreme Court noted:

Envisioning the IEP as the centerpiece of the
statute’s education delivery system for
disabled children, and aware that schools had
all too often denied such children appropriate
educations without in any way consulting
their parents, Congress repeatedly emphasized
throughout the Act the importance and indeed
the necessity of parental participation in both
the development of the IEP and any
subsequent assessments of its effectiveness.

Here, MSD, in essence, argues that it was entitled to rely on
BSD’s evaluation, and that the district court and the hearing
officer should have given more weight to its witnesses.
Neither argument is persuasive. The BSD evaluation clearly
stated that a further evaluation might well be appropriate
when Matthew returned to the public high school. It is
common sense that a 1,700-student public high school is a
very different learning environment from a juvenile detention
center. Furthermore, here, Matthew’s personal history —
which MSD knew well — strongly suggested that he would
need assistance with the transition. Indeed, MSD does not
specifically contend otherwise as it arranged to provide
Matthew with services under Section 504.
14 MERIDIAN JOINT SCH. DIST. NO. 2. V. D.A.

The IDEA “establishes a basic floor of education” for
children with disabilities. Mr. I. v. Me. Sch. Admin. Dist. No.
55, 480 F.3d 1, 10–11 (1st Cir. 2007) (quoting 20 U.S.C.
§ 1412(a)(1)(A)). Title 20 U.S.C. § 1401(3)(A)(i), and the
implementing regulations, require that for a child with autism
to receive educational services, his disability must “adversely
affect[] [his] educational performance.” 30 C.F.R.
300.8(c)(1)(i). The regulations further provide that states
may develop standards for determining whether a disability
adversely affects a child’s educational performance. Idaho
has done so. See Idaho State Dep’t of Educ., Special
Education Manual, available at http://www.sde.idaho.gov/
site/special_edu/manual_page.htm, (hereafter Idaho Manual).
The district court noted that the Idaho Manual provides that
“[e]ducational performance includes both academic areas
(reading, math, communications, etc.) and nonacademic areas
(daily life activities, mobility, pre-vocational skills, social
adaption, self-help skills, etc.).” MSD does not deny that this
is the applicable standard.

We conclude that the hearing officer, as well as the
district court, carefully and thoroughly reviewed all the
evidence and we also find that the evidence supports the
conclusion that MSD’s refusal to prepare an IEE when
Matthew reentered high school was unreasonable. It was
proper for the district court to credit HO Price’s discussion of
witness testimony that highlighted deficiencies in the BSD
evaluation. Both the hearing officer and the district court
were careful to note that neither was determining whether
Matthew was entitled to special education services under the
IDEA. Rather, they concluded that the evidence presented
did not establish that he did not need such services. Their
 MERIDIAN JOINT SCH. DIST. NO. 2. V. D.A. 15

determinations are entitled to deference, but even on a de
novo review we would affirm.4

B. The Parents’ request for attorneys’ fees was
timely.

HO Price issued his decision on June 6, 2011. On July
15, 2011, MSD filed its complaint in the district court seeking
review of that decision. The Parents requested attorneys’ fees
for the proceedings before the hearing officer in their answer
to the complaint that was filed on July 28, 2011.

In the district court, MSD argued that the request was
untimely because the applicable limitations period was either
14 or 42 days, and both periods had expired. The Parents
asserted that the 90-day limitations period for appealing an
adverse decision from a due process hearing under the IDEA
applied to claims for attorneys’ fees. The district court
disagreed with both parties.

The Parents’ position was based on 20 U.S.C.
§ 1415(i)(2)(B), which provides that a party aggrieved by an
administrative officer’s decision may bring an action in a
district court within 90 days of that decision. The district
court reasoned that (1) this section applied only to parties that
are aggrieved by the hearing officer’s decision, not to those
who prevailed; and (2) the section was added in 2004 but did
not reference, or affect, the provision addressing attorneys’
fees. The district court noted that other courts had held that
the 90-day statute of limitations contained in § 1415(i)(2)(B)

4
We reject MSD’s challenges to the amount of expenses awarded by the
district court and affirm the court’s award of $6,854.00 as the reasonable
expenses incurred by the Parents in procuring the IEE.
16 MERIDIAN JOINT SCH. DIST. NO. 2. V. D.A.

does not apply to claims for attorneys’ fees under
§ 1415(i)(3)(B). See Brandon E. v. Dep’t of Educ., 621 F.
Supp. 2d 1013, 1016 (D. Haw. 2008).5 On appeal neither
party questions the district court’s determination that the
request for attorneys’ fees is not subject to the 90-day
limitations period.

MSD’s assertion that a 14-day or 42-day limitations
period applied was based on regulations promulgated
pursuant to the Idaho Administrative Procedures Act. The
14-day period applies to requests for attorneys’ fees from
agency decisions “when [the] agency has authority to award
costs and/or fees.” Idaho Admin. Code r. 4.11.01.741.01
(2015). The 42-day period comes from the regulatory
provision allowing appeals to a civil court from a hearing

5
In Brandon E. the court reasoned:

The IDEA does not authorize the recovery of attorney’s
fees by the prevailing party in administrative
proceedings. Rather, Congress provided independent
court action for such relief with no specific statute of
limitations for such actions. See 20 U.S.C.
§ 1415(i)(3)(B). The Senate Report accompanying the
amended IDEA supports this interpretation of the IDEA
by explaining that § 615(i)(2)(B), codified as 20 U.S.C.
§ 1415(i)(2)(B), “gives a party 90 days from the date of
the decision of the hearing officer for appealing a due
process hearing decision to State or federal district
courts [in the absence of an explicit state time
limitation].” See S. Rep. No. 108–185, at 37 (2003)
(emphasis added). This Senate Report implies that
Congress intended the IDEA’s limiting statute to apply
exclusively to due process appeals to federal court and
not to separate fee actions.

621 F. Supp. 2d at 1016.
 MERIDIAN JOINT SCH. DIST. NO. 2. V. D.A. 17

officer’s decision. Idaho Admin. Code r. 08.02.03.109.05.g
(2015). However, that section does not appear to be
applicable because it only applies to parties adversely
affected by the hearing officer’s decision.

Instead, the district court determined that the IDEA did
not contain a limitation period governing the Parents’ claim
for attorneys’ fees, and followed the approach set forth in
Ostby v. Oxnard Union High, 209 F. Supp. 2d 1035, 1042
(C.D. Cal. 2002). The district court in Ostby had reasoned:

The IDEA specifies no limitations period
governing a plaintiff’s suit for attorney’s fees.
See 20 U.S.C. § 1415(i)(3)(B); Zipperer v.
Sch. Bd. of Seminole County, 111 F.3d 847,
850 (11th Cir. 1997); Powers v. Indiana Dep’t
of Educ., 61 F.3d 552, 554 (7th Cir. 1995).
Therefore, we “must determine the most
closely analogous state statute of limitations”
and apply that statute “unless it would
undermine the policies underlying the IDEA.”
Livingston Sch. Dist. Nos. 4 & 1 v. Keenan,
82 F.3d 912, 915 (9th Cir. 1996). “In order to
assess which state statute of limitations is
most analogous, the court ‘must characterize
the essence of the claim in the pending case,
and decide which state statute provides the
most appropriate limiting principle.’” S.V. v.
Sherwood School Dist., 254 F.3d 877, 879
(9th Cir. 2001) (quoting Wilson v. Garcia,
471 U.S. 261, 268 (1985)).

209 F. Supp. 2d at 1042 (parallel citations omitted). See also
Brandon E., 621 F. Supp. 2d at 1016 (“As such, when
18 MERIDIAN JOINT SCH. DIST. NO. 2. V. D.A.

Congress fails to provide a statute of limitations in federal
statutes, the U.S. Supreme Court has indicated that the settled
practice is to adopt the most analogous state time limitation,
so long as it is consistent with federal policy to do so.”).

The inquiry as to the most analogous statute of limitations
reveals a circuit split on the issue. The Sixth and Seventh
Circuits have characterized attorneys’ fees requests as
ancillary to the dispute, and accordingly borrowed state
statutes of limitations for judicial review of administrative
agency decisions. King v. Floyd Cnty. Bd. of Educ., 228 F.3d
622, 623 (6th Cir. 2000) (agreeing with the Seventh Circuit
that the attorneys’ fee issue is ancillary to the administrative
proceeding); Powers v. Ind. Dep’t of Educ., Div. of Special
Educ., 61 F.3d 552, 556 (7th Cir. 1995) (viewing “Powers’
claim for attorneys’ fees not as an independent action but as
a claim ancillary to the underlying education dispute”).6
However, the Eleventh Circuit in Zipperer v. School Board of
Seminole County, Florida, 111 F.3d 847 (11th Cir. 1997),

6
The Seventh Circuit noted that:

an action for attorneys’ fees presents a unique problem
in that it may arguably be characterized as either an
independent cause of action under § 1415(e)(4)(B), or
as ancillary to the judicial review of the administrative
decision on educational placement. Reed v. Mokena
Sch. Dist., 41 F.3d 1153 (7th Cir.1994); Dell [v. Bd. of
Ed., Tp. High Sch. Dist.113], 32 F.3d [1053] at 1062
[7th Cir. 1994]. In other words, the attorneys’ fees
claim could simply be considered an independent claim
for money damages or it could be seen as just one part
of the underlying dispute over the child’s educational
placement or educational plan.

Powers, 61 F.3d at 555.
 MERIDIAN JOINT SCH. DIST. NO. 2. V. D.A. 19

characterized an attorneys’ fee claim under the IDEA as an
independent action and applied Florida’s four-year statute of
limitations.7

The district court in Ostby preferred the Eleventh
Circuit’s approach, noting that (a) “an action for attorney’s
fees is explicitly distinct from the administrative review
process, and therefore could not be considered ancillary to
that process”; (b) “the administrative agency has no
jurisdiction to award attorneys’ fees, and therefore [] there is
no such thing as an action for review of an agency decision
regarding fees”; (c) “the resolution of claims for attorneys’
fees is less urgent and, in reality, is more likely to be resolved
by the attorneys’ interest in prompt payment than by a short
period of limitations”; and (d) the longer period of time “is
likely to encourage the involvement of parents, as represented

7
The Eleventh Circuit reasoned:

We agree that the IDEA provides two distinguishable
causes of action under sections 1415(e)(2) and
1415(e)(4)(B). Most significantly, section 1415(e)(2)
provides for the appeal of a substantive administrative
decision, whereas section 1415(e)(4) provides for an
independent claim for attorneys’ fees. Because the
district court, rather than the administrative agency, has
jurisdiction to award fees, the prevailing party cannot
appeal an administrative decision under section
1415(e)(4). Accordingly, we reject the school system’s
argument that a claim under section 1415(e)(4)(B) is
analogous to the appeal of an administrative hearing.
Instead, we find that section 1415(e)(4) provides a
claim based on a statutory liability and is, thus, more
analogous to Fla. Stat. ch. 95.11(3)(f).

Zipperer, 111 F.3d at 851.
20 MERIDIAN JOINT SCH. DIST. NO. 2. V. D.A.

by attorneys, in securing appropriate public educations for
their children.” 209 F. Supp. 2d at 1043–44.

The district court in Ostby also found our opinion in
Dreher v. Amphitheater Unified School District, 22 F.3d 228
(9th Cir. 1994), instructive. In Dreher, one question was the
limitations period for filing a court action challenging a
school district’s refusal to grant parents a due process hearing
to determine financial responsibility for their child’s speech
therapy at a private school. Id. at 231. The IDEA did not
specify a limitations period, and we chose to apply Arizona’s
one-year limitations period for liabilities created by statute,
rather than the 35-day limitations period that applied to
judicial review of administrative decisions. Id. at 232. We
reasoned that: (1) because plaintiffs were not granted a due
process hearing, their action was not analogous to an appeal
from a final administrative decision; (2) a longer limitations
period was consistent with federal policies; and (3) the child’s
education was not threatened by the duration of the claim. Id.
The district court in Ostby found our reasoning in Dreher
persuasive, noting “if the Ninth Circuit found that the action
in Dreher — a challenge to a refusal to provide a due process
hearing — was not analogous to judicial review of an
administrative decision, then the Ninth Circuit probably
would also find that an action for attorney’s fees — over
which an administrative agency has no jurisdiction — is also
not analogous to review of an administrative decision.”
209 F. Supp. 2d at 1044. Other district courts have followed
Ostby.8

8
See J. H. v. Nevada City Sch. Dist., No. 14-0796, 2015 WL 1021424
at *5 (E.D. Cal. March 9, 2015); Teresa L. v. Dep’t of Educ., No. 09-348,
2009 WL 4017146 (D. Haw. Nov. 20, 2009) (unpublished); Brandon E.,
621 F. Supp. 2d at 1017.
 MERIDIAN JOINT SCH. DIST. NO. 2. V. D.A. 21

Faced with an existing circuit split, we agree with the
position taken by the district court. As set forth by the district
court in Ostby, and consistent with the spirit of our decision
in Dreher, we conclude that a request for attorneys’ fees
under the IDEA is more analogous to an independent claim
than an ancillary proceeding. The fact that the hearing officer
may not award attorneys’ fees weighs in favor of holding that
a request for attorneys’ fees filed in the district court is not
ancillary to the judicial review of the administrative decision.
Moreover, the longer time period promotes the purposes of
the IDEA. Indeed, the adoption of the state law limitations
period for judicial review of administrative agency decisions
might lead to the anomalous result that the party that
prevailed before the hearing officer would have to decide
whether to file an action seeking attorneys’ fees before the
party that lost before the hearing officer decided whether to
seek judicial review. Accordingly, we affirm the district
court’s determination that the Parents’ request for attorneys’
fees was timely filed under the most analogous state statute
of limitations.9

C. The Parents are prevailing parties.

The IDEA provides that reasonable attorneys’ fees may
be awarded to a “prevailing party who is the parent of a child
with a disability.” 20 U.S.C. § 1415(i)(3)(B)(i)(I) (emphasis
added). The district court, citing Weissburg v. Lancaster

9
This appears to be the three-year statute of limitations for statutory
liability actions. Idaho Code § 5-218(1). But see Henderson v. State,
715 P.2d 978, 981 (Idaho 1986) (holding “42 U.S.C. § 1983 actions in
Idaho must now meet the two-year Idaho statute of limitations for personal
injury actions”). We need not decide this issue of state law as the Parents’
request for attorneys’ fees was timely under either state statute.
22 MERIDIAN JOINT SCH. DIST. NO. 2. V. D.A.

School District, 591 F.3d 1255 (9th Cir. 2010), held that the
Parents had prevailed because the hearing officer’s award
materially altered the legal relationship between the parties.
It found that “[i]n obtaining the relief ordered by the hearing
officer — that the School District provide M.A. with an IEE
at public expense — M.A.’s Parents clearly secured a remedy
that fosters the purposes of the IDEA.”

The Ninth Circuit has determined that to be a “prevailing
party,” a party must “succeed[] on any significant issue in
litigation which achieves some of the benefit the parties
sought in bringing the suit.” Van Duyn, 502 F.3d at 825
(quoting Parents of Student W. v. Puyallup Sch. Dist. No. 3,
31 F.3d 1489, 1498 (9th Cir. 1994)). On appeal, MSD
contends that the Parents were not prevailing parties because
“no material change to the legal relationship of the student
and the school district resulted from the administrative
proceeding.” MSD asserts that there was no material change
in the legal relationship because Matthew was never
determined to be in need of special education services and
that simply being awarded an IEE “is inarguably nothing
more than a technical and de minimus result.”

MSD cites the controlling law but reaches an incorrect
conclusion. Here, the hearing officer’s decision that Matthew
was entitled to an IEE at public expense did result in the
requisite “alteration in the legal relationship of the parties.”
Buckhannon Bd. and Care Home, Inc. v. W. Va Dep’t. of
Health and Human Res., 532 U.S. 598, 605 (2001). As a
result of the hearing officer’s decision, MSD had to pay for
an IEE and was required to consider the IEE before it could
determine whether Matthew was entitled to special education
services under the IDEA. Indeed, MSD thought this
consequence of sufficient import that it filed an action in the
 MERIDIAN JOINT SCH. DIST. NO. 2. V. D.A. 23

district court seeking to reverse the hearing officer’s decision.
The Parents are prevailing parties as that term has been
defined by the Supreme Court in Hensley v. Eckerhart,
461 U.S. 424, 433 (1983), and the Ninth Circuit in Van Duyn,
502 F.3d at 825.

D. The Parents are not entitled to attorneys’ fees
pursuant to 20 U.S.C. § 1415(i)(3)(B)(i)(I).

Section 1415(i)(3)(B)(i)(I) provides that attorneys’ fees
may be awarded “to a prevailing party who is the parent of a
child with a disability.” (Emphasis added). Section 1401(3)
defines “child with a disability” as a child with an impairment
or disability “who, by reason thereof, needs special education
and related services.” MSD contends that this definition of
“child with a disability” limits the availability of attorneys’
fees under the IDEA to a parent whose child has been
determined to need special education services. MSD reasons
that because Matthew has not been determined to need
special education services, the Parents are not eligible for an
award of attorneys’ fees pursuant to § 1415(i)(3)(B)(i)(I).

The Fifth Circuit adopted this approach in T.B. v. Bryan
Independent School District, 628 F.3d 240 (5th Cir. 2010),
relying, in part, on an unpublished opinion by the Third
Circuit, D.S. v. Neptune Township Board of Education, 264
F. App’x. 186 (3rd Cir. 2008), which was factually similar to
Matthew’s case. The Fifth Circuit explained:

In Neptune Township, parents of a child with
various disorders filed a due process petition
to compel special-education testing and
services. The state administrative law judge
ordered the school to conduct a
24 MERIDIAN JOINT SCH. DIST. NO. 2. V. D.A.

special-education evaluation but denied the
other requested relief. The school evaluated
the child and concluded that he was not
eligible for special-education services. The
parents amended their petition for a due
process hearing to challenge the school’s
determination that the child was not eligible
for special-education services but
subsequently withdrew the appeal and filed
for attorneys’ fees under the IDEA. The
district court denied the parents’ motion for
attorneys’ fees because the child had not been
determined to be eligible for special-education
services.

On appeal, the Third Circuit concluded that
the text of the IDEA’s fee-shifting provision
was unambiguous and interpreted the statute
to bar recovery of attorneys’ fees because
“there was never a determination that the
child needed special education,” and
therefore, the parents did not meet the plain
language of the IDEA’s fee-shifting provision.
In so holding, the court acknowledged that the
school “likely would have not completed the
evaluations absent the ALJ’s orders” and that
“[b]ut for retaining counsel, the parents would
not have secured [the special-education
evaluation] for the child.” But, the court also
noted that its interpretation of the statute was
consistent with the purpose of the IDEA’s
fee-shifting provision—to allow parents of
disabled children to effectuate their right to a
free appropriate public education. The court
 MERIDIAN JOINT SCH. DIST. NO. 2. V. D.A. 25

rejected the suggestion that the fee-shifting
provision should apply to children “merely
suspected of having a disability.”

T.B., 628 F.3d at 244 (footnotes omitted).10

The Fifth Circuit acknowledged T.B.’s arguments that
(a) other provisions of the IDEA extended procedural rights
to children who had yet to be found to be disabled, and
(b) “holding he is not eligible for recovery of attorneys’ fees
will have a chilling effect on future IDEA cases, frustrate
parents’ ability to hire counsel, and undermine the interests of
the students and goals of the IDEA.” 628 F.3d at 244–45.
The Fifth Circuit, however, reasoned:

T.B.’s arguments cannot overcome the plain
language of the statute. The Supreme Court
has directed courts interpreting the IDEA to
start with the text of the statute and has
“stated time and again that courts must
presume that a legislature says in a statute
what it means and means in a statute what it
says there.” The Court has also stated that
“[w]hen the statutory ‘language is plain, the
sole function of the courts — at least where
the disposition required by the text is not
absurd — is to enforce it according to its

10
The Fifth Circuit also noted that the Sixth Circuit in “an unpublished
opinion interpreting an earlier version of the fee-shifting provision now
found in the IDEA,” had denied attorneys’ fees when it had yet to be
determined in the administrative proceedings whether the child had a
learning disability.” T.B., 628 F.3d at 244 (citing Edwards v. Cleveland
Heights-Univ. Heights Bd. of Educ., 951 F.2d 349 (6th Cir. 1991)
(unpublished)).
26 MERIDIAN JOINT SCH. DIST. NO. 2. V. D.A.

terms.’” Here, the plain language of the
IDEA’s fee-shifting provision limits recovery
of attorneys’ fees to the parent of a “child
with a disability.”

Id. at 245 (footnotes omitted). In further response to TB’s
arguments, the Fifth Circuit noted:

Congress has provided some protections for
children not yet determined to fit the
definition of “child with a disability.” Section
1415(k)(5) and its protections in disciplinary
proceedings might reflect a broader intent to
protect children not yet determined to fit the
definition of “child with a disability.” But
just because Congress has specifically
extended some protections to children not yet
determined to meet the definition of “child
with a disability” does not mean that it has
extended all protections. To the contrary, the
language of the attorneys’-fee provision in
§ 1415(i)(3)(B)(i)(I) specifically provides the
district court with discretion to award
attorneys’ fees to a “parent of a child with a
disability.” Unlike § 1415(k)(5),
§ 1415(i)(3)(B)(i)(I) makes no reference to
children not yet determined to be disabled.
The IDEA cannot be read to provide
attorneys’ fees to T.B., and any policies
reflected in § 1415(k)(5) cannot overcome the
express provisions in § 1415(i)(3)(B)(i)(I).

Id. at 245–46. The Fifth Circuit concluded that “regardless of
the policy considerations and even if an alternate version of
 MERIDIAN JOINT SCH. DIST. NO. 2. V. D.A. 27

the statute would better serve the goals of the IDEA, that is a
decision appropriately left to Congress, not to this court.” Id.
at 246.

In Matthew’s case, the district court declined to follow the
Fifth Circuit’s approach on the grounds that it could look
beyond the language of a statute to avoid “an absurd result or
a decision that would violate Congressional intent in enacting
the statute.” See Barajas v. United States, 258 F.3d 1004,
1012 (9th Cir. 2001). The district court reasoned that the fee-
shifting provision was not as clear and unambiguous as the
Fifth Circuit suggested, and that the term “parent of a child
with a disability” is used in other parts of the IDEA to cover
procedures that precede any determination of eligibility for
special education services. The district court also found
support for its approach in our opinion in Hacienda La
Puente Unified School District of Los Angeles v. Honig,
976 F.2d 487 (9th Cir. 1992), where we held that although the
IDEA referred to “children with disabilities,” a child “not
previously identified as disabled” could raise his or her
alleged disability in an IDEA administrative due process
hearing. Id. at 492.

Having determined that the IDEA was subject to differing
interpretations, the district court concluded that the restrictive
interpretation of the attorneys’ fees provision was contrary to
the Congressional intent to encourage, assist and make whole
parents and attorneys who work to vindicate the rights of
handicapped children. The district court worried that MSD’s
“interpretation would discourage parents from invoking their
rights under the IDEA and create an incentive for schools to
take an adversarial position early in the identification and
evaluation process without fear of being liable for attorneys’
fees.”
28 MERIDIAN JOINT SCH. DIST. NO. 2. V. D.A.

We appreciate the district court’s concerns, but agree with
the Fifth Circuit that we are bound by the clear language in
the IDEA limiting the award of attorneys’ fees to parents of
a “child with a disability,” defined as a child determined to
need special education services. Abiding by the plain
language of the statute will not “thwart the purpose of the
over-all statutory scheme or lead to an absurd result.” See
Barajas, 258 F.3d at 1012. The purpose of the IDEA is to
provide a free and appropriate public education to all disabled
children who need special education services. Limiting the
award of attorneys’ fees against school districts to instances
where the child has been determined to need special
education services is not inconsistent with this purpose.
Rather, it preserves public resources for those disabled
children most in need of services.

Moreover, limiting awards of attorneys’ fees to parents of
children who have been determined to need special education
services is not inconsistent with the IDEA’s emphasis on
providing procedural rights to parents and children prior to
final determinations of their need for services. See Honig,
484 U.S. at 311–12.11 The IDEA provides a parent who

11
Addressing the Education of the Handicapped Act, the predecessor to
the IDEA, the Supreme Court noted;

Envisioning the IEP as the centerpiece of the statute’s
education delivery system for disabled children, and
aware that schools had all too often denied such
children appropriate educations without in any way
consulting their parents, Congress repeatedly
emphasized throughout the Act the importance and
indeed the necessity of parental participation in both the
development of the IEP and any subsequent
assessments of its effectiveness. . . . Accordingly, the
Act establishes various procedural safeguards that
 MERIDIAN JOINT SCH. DIST. NO. 2. V. D.A. 29

believes that his or her child has a disability and is in need of
special services with certain procedural rights toward a fair
determination of the child’s needs. However, this primary
purpose is not necessarily furthered, and might well be
impeded, if parents of children who are determined not to
need special education services were eligible for an award of
attorneys’ fees based on having prevailed on some issue in
the process.

Indeed, the distinction between assuring that parents have
an opportunity to have their children evaluated and awarding
attorneys’ fees distinguishes this case from our opinion in
Hacienda. In Hacienda, the restrictive interpretation
proposed by the school district would have frustrated a
parent’s ability to have the child’s need for special services
determined. Here, although the process took an inordinate
amount of time, MSD considered Matthew’s IEE, and
determined that he did not need special services. Thus,
Matthew and his parents received all the process they were
entitled to under the IDEA.

Although Congress could have established a more
inclusive fee shifting provision, we agree with the Fifth
Circuit that Congress chose plain language that limits
eligibility for attorneys’ fees under the IDEA to parents
whose children have been determined to need special
services. Further, this interpretation is reasonable and — as

guarantee parents both an opportunity for meaningful
input into all decisions affecting their child’s education
and the right to seek review of any decisions they think
inappropriate.

484 U.S. at 311–12 (citations omitted).
30 MERIDIAN JOINT SCH. DIST. NO. 2. V. D.A.

courts are wont to say — “not inconsistent” with the overall
purpose of the Act. Accordingly, we vacate the district
court’s award of attorneys’ fees.

E. We vacate the injunction against Matthew’s
graduation.

The district court cited 20 U.S.C. § 1415(j), known as the
“stay-put” provision, as authorizing its injunction prohibiting
MSD from graduating Matthew.12 The district court reasoned
that it had jurisdiction even though the action concerned
Matthew’s entitlement to an IEE, not whether he needed
special education services, and that the stay-put provision
applied even though Matthew had not been found to need
special services. The district court found that MSD’s position
on this issue conflicted with the purpose of the IDEA, which
was “to strip schools of the unilateral authority they had
traditionally employed to exclude disabled students” (quoting
Honig, 484 U.S. at 323). The district court further held,
relying on Ninth Circuit precedent, that relief was not barred
by the Parents’ failure to request relief at the administrative
level, and that the Parents did not need to meet the traditional
criteria for injunctive relief. See N.D. v. Haw. Dep’t of Educ.,
600 F.3d 1104, 1110 (9th Cir. 2010) (adopting the Second

12
20 U.S.C. § 1415(j) provides that:

during the pendency of any proceedings conducted
pursuant to this section, unless the State or local
educational agency and the parents otherwise agree, the
child shall remain in the then-current educational
placement of the child, or, if applying for initial
admission to a public school, shall, with the consent of
the parents, be placed in the public school program
until all such proceedings have been completed.
 MERIDIAN JOINT SCH. DIST. NO. 2. V. D.A. 31

Circuit’s reasoning in Murphy v. Arlington Cent. Sch. Dist.
Bd. of Educ., 297 F.3d 195 (2d Cir. 2002)), “that exhaustion
of administrative remedies was not required because of the
time-sensitive nature of the right § 1415(j) was designed to
protect—i.e., the right to remain in the current educational
placement.”); Joshua A. v. Rocklin Unified Sch. Dist.,
559 F.3d 1036, 1037 (9th Cir. 2009) (“A motion for stay put
functions as an ‘automatic’ preliminary injunction, meaning
that the moving party need not show the traditionally required
factors (e.g., irreparable harm) in order to obtain preliminary
relief.”).

We agree that the district court had jurisdiction to
consider the request for an injunction,13 and that the Parents
did not have to show irreparable harm. In Rocklin Unified,
we noted:

The fact that the stay put provision requires no
specific showing on the part of the moving
party, and no balancing of equities by the
court, evidences Congress’s sense that there is
a heightened risk of irreparable harm inherent
in the premature removal of a disabled child
to a potentially inappropriate educational
setting. In light of this risk, the stay put
provision acts as a powerful protective
measure to prevent disruption of the child’s
education throughout the dispute process. It

13
See, e.g. M.P. v. Governing Bd. of the Grossmont Union High Sch.
Dist., 858 F. Supp. 1044 (S.D. Cal. 1994) (applying the stay-put provision
to a child in the general education program without an IEP to prevent his
expulsion during the second semester of his senior year for bringing a
pellet gun to school).
32 MERIDIAN JOINT SCH. DIST. NO. 2. V. D.A.

is unlikely that Congress intended this
protective measure to end suddenly and
arbitrarily before the dispute is fully resolved.

559 F.3d at 1040.

Nonetheless, we question whether the district court should
have issued the injunction in the first place, and we now
vacate the injunction. If a child’s need for special education
services (albeit contested) continued after he would otherwise
graduate, the general purposes behind the stay-put provision
and the IDEA might support an injunction requiring the
continuation of services. Here, however, Matthew was not
receiving special services, but was in the general education
program. As he had met the criteria for graduation, he had
presumably received all the benefits that the general
education program offered. Accordingly, it is doubtful that
the purposes of the stay-put provision were served by
enjoining Matthew from graduating. This seems particularly
true here as the Parents have consistently argued that the
general education program was not providing Matthew the
supportive services he needed. In any event, it has now been
three years since the entry of the injunction preventing
Matthew’s imminent graduation from high school and
Matthew has been determined not to need special services.14
Whatever benefit that might have flowed from the injunction
would appear to have been exhausted, and oral argument did
not reveal any salient grounds for maintaining the injunction.
Accordingly, we hereby vacate the injunction prohibiting
Matthew’s graduation from high school.

14
See our concurrently filed disposition in the Parents’ appeal, No. 14-
35081, affirming the determination that Matthew was not eligible for
special education services.
 MERIDIAN JOINT SCH. DIST. NO. 2. V. D.A. 33

IV

We appreciate the concerns that underlie the parties’
positions, and they have informed our disposition of these
appeals. Pursuant to the applicable standards of review we
conclude that: (1) the district court and the hearing officer
reasonably determined that Matthew was entitled to an IEE
at public expense; (2) the Parents’ request for attorneys’ fees
is more analogous to an independent claim than an ancillary
proceeding and thus was timely filed; (3) by procuring an IEE
at public expense, the Parents were “prevailing parties” as
that term has been defined in Hensley, 461 U.S. at 433, and
Van Duyn, 502 F.3d at 825; (4) because the plain language of
the IDEA limits awards of attorneys’ fees pursuant to
20 U.S.C. § 1415(i)(3)(B)(i)(I) to instances in which the child
has been determined to need special education services, and
Matthew had not been found to need such services, the
Parents are not eligible for an award of attorneys’ fees under
the IDEA; and (5) the injunction preventing Matthew’s
graduation from high school must be lifted. Accordingly, we
vacate the district court’s award of attorneys’ fees and its
injunction preventing Matthew from graduating.

AFFIRMED in part, REVERSED in part, and
VACATED in part. Each side shall bear its own costs.