FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
A. M., a minor, by and through
his parents David Marshall and
Karla Marshall; DAVID MARSHALL,
on his own behalf; KARLA
MARSHALL, on her own behalf,
Plaintiffs-Appellants,
No. 09-55169
v.
MONROVIA UNIFIED SCHOOL D.C. No.
2:07-cv-00243-
DISTRICT; WEST SAN GABRIEL RSWL-JTL
SPECIAL EDUCATION LOCAL
PLANNING AREA, Erroneously Sued
As West San Gabriel Valley
Special Education Local Plan
Area,
Defendants-Appellees.
20093
20094 A. M. v. MONROVIA UNIFIED SCHOOL DISTRICT
A. M., a minor, by and through
his parents David Marshall and
Karla Marshall; DAVID MARSHALL,
on his own behalf; KARLA
MARSHALL, on her own behalf,
Plaintiffs-Appellants, No. 09-55478
v. D.C. No.
MONROVIA UNIFIED SCHOOL 2:07-cv-00243-
DISTRICT; WEST SAN GABRIEL RSWL-JTL
SPECIAL EDUCATION LOCAL OPINION
PLANNING AREA, Erroneously Sued
As West San Gabriel Valley
Special Education Local Plan
Area,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Ronald S.W. Lew, Senior District Judge, Presiding
Argued and Submitted
June 11, 2010—Pasadena, California
Filed December 15, 2010
Before: Alfred T. Goodwin and Johnnie B. Rawlinson,
Circuit Judges, and Mark W. Bennett, District Judge.*
Opinion by Judge Goodwin;
Partial Concurrence and Partial Dissent by Judge Bennett
*The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa, sitting by designation.
20098 A. M. v. MONROVIA UNIFIED SCHOOL DISTRICT
COUNSEL
N. Jane DuBovy and Mandy L. Favaloro, A2Z Educational
Advocates, Pacific Palisades, California, for the plaintiffs-
appellants.
Jonathan J. Mott, Parker & Covert, Tustin, California, for the
defendants-appellees.
Keith L. Wurster, Baker & McKenzie, Palo Alto, California,
for amicus Council of Parent Attorneys and Advocates.
OPINION
GOODWIN, Circuit Judge:
A.M. and his parents (collectively, “Plaintiffs”) appeal a
summary judgment for Monrovia Unified School District and
West San Gabriel Special Education Local Planning Area
(collectively, “Defendant”) on Plaintiffs’ action for violation
of the Individuals with Disabilities Education Act (“IDEA”),
20 U.S.C. § 1415, and violation of Section 504 of the Reha-
bilitation Act, 29 U.S.C. § 794. Plaintiffs also appeal an
award of attorneys’ fees to Defendant under the IDEA. We
have jurisdiction under 28 U.S.C. § 1291. We affirm in part
and reverse in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
A.M. was a young boy, approximately eleven years old at
all relevant times, with cerebral palsy, seizure disorder, and
global developmental delays. He was non-ambulatory and
required assistance changing body positions. He had cortical
blindness, meaning his eyes could see but his brain did not
acknowledge what his eyes saw. Thus, A.M. did not always
understand, retain, or make associations with what he saw. He
A. M. v. MONROVIA UNIFIED SCHOOL DISTRICT 20099
could communicate only by responding to yes-or-no questions
—a smile, a sound, or lifting his hand was a “yes”; a flat
affect was a “no.” However, A.M. was not consistent with
these responses, so his service providers had difficulty deter-
mining whether a “yes” signal was actually an involuntary
movement caused by the cerebral palsy.
In December 2002, A.M. enrolled in the California Virtual
Academy (“CAVA”), a network of charter schools offering
independent study at its students’ homes. Although Plaintiffs
live in Los Angeles County, A.M. enrolled in CAVA Kern
County, which services students in any county that abuts Kern
County. CAVA provided materials to A.M.’s father, who
instructed A.M. and reported the results on CAVA’s website.
A general education teacher visited Plaintiffs’ home three
days per week for one and one-half hours per session. The
teacher modified the curriculum by converting materials to
yes-or-no questions and enlarging materials.
CAVA created a valid individualized educational program
(“IEP”) for A.M. in 2002. CAVA and Plaintiffs agreed on an
independent study/home schooling placement with support
from a resource specialist five times a week for one-hour ses-
sions, occupational therapy once a week for a one-hour ses-
sion, adapted physical education once a week for a one-hour
session, and speech and language once a week for a one-hour
session. CAVA and Plaintiffs held IEP meetings again in
2003 and 2004, but they were unable to agree on goals and
objectives and A.M.’s parents refused to sign the IEP docu-
ments. A.M.’s placement continued as independent study/
home schooling.
On December 9, 2005, CAVA and Plaintiffs agreed on a
new IEP that changed A.M.’s placement to a third-grade
general-education classroom with appropriate supports. The
IEP team found that A.M. had “marked improvement academ-
ically, socially, and physically,” though his academic
improvement was due to his service providers’ increased abil-
20100 A. M. v. MONROVIA UNIFIED SCHOOL DISTRICT
ity over time to gauge A.M.’s yes/no response. His social
improvement was based on observations of his interactions
and communication through his smiles with other people,
which indicated awareness of his surroundings. His physical
improvement was based on observations that he could sit in
his chair and focus. The IEP described A.M.’s language profi-
ciency as “age appropriate,” which means that if a person
spoke to A.M. like any other nine or ten-year-old, A.M.
would have understood it completely, though he was non-
verbal. The IEP was not based on any formal assessment of
A.M.’s academic or cognitive abilities.
A.M. enrolled in Defendant school district because CAVA
has no general-education classrooms and therefore could not
implement the 2005 IEP. Plaintiffs submitted proof of resi-
dence and a copy of the 2005 IEP to Defendant on December
12, 2005. Gail Crotty reviewed A.M.’s IEP to determine his
interim placement. Crotty has a master’s degree in educa-
tional administration, credentials in adaptive physical educa-
tion and learning handicaps, and certificates in resource
special programs and crosscultural language and academic
development. She has held numerous special-education-
related positions and has worked with at least twenty students
with disabilities comparable to A.M.’s.
Crotty was concerned that Defendant was being asked to
implement an IEP that was never previously implemented and
required a change in placement. She also was concerned that
the placement was determined at the beginning of the IEP
meeting, rather than after A.M.’s present levels of perfor-
mance were discussed, and that the present levels of perfor-
mance in the IEP document were unclear and referred to
reports that were not attached. Some goals were not measur-
able, and other goals were on different levels. For example,
one goal was to give a big smile when prompted by “give a
big smile now,” while another goal was to write a three para-
graph report using the third grade curriculum. Crotty was con-
cerned about whether A.M. could succeed if he went straight
A. M. v. MONROVIA UNIFIED SCHOOL DISTRICT 20101
from home schooling to a general education classroom, since
he was not used to being around other students.
Crotty scheduled an intake meeting for December 20, 2005,
which was two days before the winter vacation. Plaintiffs and
Defendant disagreed about an appropriate placement—
Plaintiffs wanted a general-education classroom as provided
in the 2005 IEP, whereas Defendant wanted to continue inde-
pendent study/home schooling for a thirty-day period to
assess A.M. Though Plaintiffs did not agree to Defendant’s
offer, A.M. continued in the independent study/home school-
ing placement with services beginning on January 9, 2006,
which was the first day of the new semester.
Defendant scheduled an IEP meeting on February 9, 2006.
Plaintiffs agreed to the February 9, 2006 meeting date, but
cancelled three days before the meeting because A.M.’s father
could not arrange child care for A.M. Plaintiffs requested an
IEP meeting date in mid-March or April, but Defendant could
not agree because of the thirty-day requirement. Defendant
offered to allow A.M.’s mother or father to participate by tele-
phone, or to allow Plaintiff’s father to bring A.M. to the meet-
ing as he had done in the past, but Plaintiffs refused these
suggestions. Defendant held the meeting without Plaintiffs.
Defendant’s IEP team determined that A.M. should be clas-
sified as a fourth-grader and placed in a special day class on
a general-education campus. Because Defendant does not
have an appropriate special day class, the IEP team recom-
mended a referral to the Los Angeles County Office of Educa-
tion for placement. Defendant offered an IEP consisting of a
comprehensive assessment of A.M., physical therapy for two
hours per week, occupational therapy for one-half hour per
week, speech and language for one and one-half hours per
week, adaptive physical education twice a week in half-hour
sessions, placement in a special day class with a teacher cre-
dentialed in moderate-to-severe special education, a referral to
California Children’s Services, a referral to Los Angeles
20102 A. M. v. MONROVIA UNIFIED SCHOOL DISTRICT
County Office of Education for placement in a special day
class, and a one-to-one aide at the school site. This offer was
sent to Plaintiffs, but they did not consent to it.
Defendant held a second IEP meeting on May 1, 2006.
Plaintiffs’ lawyer attended, though Plaintiffs did not attend. A
Los Angeles County Office of Education representative
attended, and the IEP team agreed to offer Plaintiffs a place-
ment in a special day class at Encinitas School.
Plaintiffs and Defendant each requested a due-process hear-
ing with the Office of Administrative Hearings (“OAH”).
OAH consolidated the requests and ruled for Defendant.
Plaintiffs filed a complaint in district court alleging a viola-
tion of the IDEA and a violation of Section 504. A.M. died
while the action was pending. Defendants moved for sum-
mary judgment on both claims, and the district court granted
the motion. The district court also awarded attorneys’ fees to
Defendant on the ground that A.M.’s death mooted the case
and Plaintiffs should not have continued it after it became
moot.
II. DISCUSSION
Plaintiffs argue that the district court erred by (A) failing to
reverse the OAH ruling for Defendant on Plaintiffs’ IDEA
claim, (B) granting summary judgment to Defendant on Plain-
tiffs’ Section 504 claim, and (C) awarding attorneys’ fees to
Defendant.
A. Whether the District Court Erred by Failing to Reverse
the OAH Ruling for Defendant on Plaintiff’s IDEA
claim
We give “due weight” to OAH decisions. Bd. of Educ. v.
Rowley, 458 U.S. 176, 206 (1982). We give more deference
to OAH decisions if the findings are thorough and careful. See
Capistrano Unified Sch. Dist. v. Wartenberg by & Through
A. M. v. MONROVIA UNIFIED SCHOOL DISTRICT 20103
Wartenberg, 59 F.3d 884, 891 (9th Cir. 1995). However, the
ultimate determination of whether an IEP was appropriate is
reviewed de novo. Id.
Plaintiffs argue that Defendant denied A.M. a free appro-
priate public education (“FAPE”) by not developing a proce-
durally and substantively valid IEP. See 20 U.S.C.
§ 1414(a)(5); Rowley, 458 U.S. at 188 (stating that a FAPE
includes an IEP).
1. Procedure
Plaintiffs argue that Defendant denied A.M. a procedurally
valid IEP by (a) failing to implement the 2005 IEP or develop
and implement a new valid IEP within thirty days of A.M.
transferring into the district; (b) failing to develop an adequate
IEP; and (c) not allowing Plaintiffs to meaningfully partici-
pate in the IEP process.
a. Whether Defendant failed to implement the 2005
IEP or develop and implement a new valid IEP
within thirty days of A.M. transferring into the dis-
trict
[1] When an exceptional-needs student transfers from one
California school district to another during the school year,
the local school district shall provide “services comparable to
those described in the previously approved [IEP] . . . for a
period not to exceed 30 days, by which time the local educa-
tional agency shall adopt the previously approved [IEP] or
shall develop, adopt, and implement a new [IEP].” Cal. Educ.
Code § 56325(a)(1).
Plaintiffs argue that Section 56325(a)(1) required Defen-
dant to provide services comparable to the 2005 IEP during
the initial thirty days because the 2005 IEP was the “previ-
ously approved IEP” since Plaintiffs and CAVA agreed to it,
20104 A. M. v. MONROVIA UNIFIED SCHOOL DISTRICT
though it was never implemented.1 Defendant argues that it
was required only to provide services in accordance with the
last implemented IEP because California’s Section
56325(a)(1) is modeled after the IDEA, which states that
when an exceptional needs student who “had an IEP that was
in effect in the same State” transfers to a new school, the
school shall provide services comparable to the “previously
held IEP.” 20 U.S.C. § 1414(d)(2)(C)(i)(I). Defendant argues
that only the independent study/home schooling IEP was ever
“in effect.”
[2] OAH concluded that Section 56325(a)(1) refers to the
last IEP that was actually implemented. OAH’s reasoning is
persuasive: providing services in accordance with the previ-
ously implemented IEP effectuates the statute’s purpose of
minimizing disruption to the student while the parents and the
receiving school resolve disagreements about proper place-
ment. We agree with OAH.
Plaintiffs also argue that Defendant violated Section
56325(a)(1) by not developing a new valid IEP within thirty
days. A.M.’s father filled out the paperwork to enroll A.M. in
Defendant District on December 12, 2005; Defendant held an
intake meeting with Plaintiffs on December 20, 2005; school
closed for the winter break from December 22, 2005 to Janu-
ary 9, 2006; Defendant began providing services to A.M. on
January 9, 2006; and Defendant held an IEP meeting on Feb-
ruary 9, 2006. Thus, Defendant did not hold an IEP within
thirty days of A.M.’s enrollment.
OAH concluded, and the district court affirmed, that Defen-
1
Plaintiffs claim that Defendant followed an outdated 2002 IEP in plac-
ing A.M. in independent study/home schooling. This argument is specious
and takes advantage of the fact that Plaintiffs refused to sign any IEP doc-
uments after 2002. Plaintiffs accepted the independent study/home school-
ing placement until December 2005, and it is the only placement A.M.
ever had through CAVA.
A. M. v. MONROVIA UNIFIED SCHOOL DISTRICT 20105
dant’s actions were appropriate because Defendant would
have had insufficient time to evaluate A.M. if Defendant were
required to hold an IEP meeting within thirty days of A.M.’s
enrollment on December 20, 2005.2 However, neither OAH
nor the district court cited authority for the proposition that
school holidays toll Section 56325(a)(1)’s thirty-day require-
ment.
[3] Whether or not Defendant exceeded the thirty-day
limit, A.M. suffered no deprivation of educational benefit and
therefore has no claim. See Amanda J. v. Clark County Sch.
Dist., 267 F.3d 877, 892 (9th Cir. 2001). OAH is correct that
A.M.’s service providers could not have adequately assessed
A.M.’s needs within thirty days of December 12 or 20, 2005.
Indeed, even though Defendant had thirty days to evaluate
A.M., Plaintiffs and Defendant were unable to agree upon an
appropriate IEP and had to schedule a further meeting in May.
That the brief delay during winter vacation caused no educa-
tional deprivation to A.M. is further evidenced by the fact that
A.M.’s placement continued as independent study/home
schooling in May.
[4] Therefore, Defendant did not commit a procedural vio-
lation by failing to implement the 2005 IEP or by failing to
develop and implement a new valid IEP within thirty days of
A.M. transferring into the district.
b. Whether Defendant failed to hold an adequate IEP
meeting on December 20, 2005
[5] Plaintiffs argue that the December 20, 2005 intake
meeting should be construed as an IEP meeting because the
resulting intake document substantially differed from the
2005 IEP, essentially changing it. On this basis, plaintiffs con-
tend that the meeting was procedurally deficient since all per-
2
OAH did not explain why it considered A.M. enrolled as of December
20, 2005 rather than December 12, 2005.
20106 A. M. v. MONROVIA UNIFIED SCHOOL DISTRICT
sonnel necessary for an IEP evaluation were not present. As
OAH correctly noted, however, “[Defendant] did not commit
procedural violations when it did not have a full IEP team at
the December 20, 2005 intake meeting. The December 20,
2005 meeting was not an IEP meeting.”
c. Whether Defendant allowed Plaintiffs to
meaningfully participate in the IEP process
[6] A receiving school must take steps to ensure that one
or both parents of a disabled child are present at the IEP meet-
ing by “(1) Notifying parents of the meeting early enough to
ensure that they will have an opportunity to attend; and (2)
Scheduling the meeting at a mutually agreed on time and
place.” 34 C.F.R. § 300.322(a). “If neither parent can attend
an IEP Team meeting, the public agency must use other meth-
ods to ensure parent participation, including individual or
conference telephone calls . . . .” Id. at § 300.322(c). “A meet-
ing may be conducted without a parent in attendance if the
public agency is unable to convince the parents that they
should attend. In this case, the public agency must keep a
record of its attempts to arrange a mutually agreed on time
and place . . . .” Id. at § 300.322(d).
[7] Plaintiffs argue that the district court erred by not mak-
ing findings on whether Defendant allowed them to partici-
pate in A.M.’s IEP meetings. The district court indicated,
through its finding that Defendant did not commit a proce-
dural violation, that Defendant took steps to obtain Plaintiffs’
presence at the IEP meetings. Moreover, OAH carefully con-
sidered the issue and concluded that Defendant took steps to
ensure Plaintiffs’ participation, and there is no reason to over-
turn that reasoned decision. Defendant scheduled an IEP
meeting for a date agreeable to Plaintiffs, and Plaintiffs can-
celled three days before the meeting. Defendant offered to
reschedule, but Plaintiffs would only agree to a meeting in
mid-March or April, which was too far beyond the thirty-day
limit. Defendant offered to allow Plaintiffs to participate by
A. M. v. MONROVIA UNIFIED SCHOOL DISTRICT 20107
telephone, but Plaintiffs refused. Thus, Defendant took steps
to obtain Plaintiffs’ presence at the IEP meeting.
Plaintiffs also argue that A.M.’s parents could not meaning-
fully participate in the IEP process because the IEP docu-
ments failed to include pertinent information. OAH rejected
these arguments after careful consideration. OAH found that
the IEP documents did not specify a method for measuring
A.M.’s progress in physical therapy, but this did not affect
Plaintiffs’ ability to assess the IEP offer because the physical
therapy goals were similar to those in the CAVA IEP that
Plaintiffs accepted. OAH rejected Plaintiffs’ argument that the
IEP documents failed to specify the supports and modifica-
tions necessary for A.M. to participate in the general-
education setting because the IEP specified that A.M. would
have the support of a one-to-one aide during school hours.
OAH also found that the IEP sufficiently documented the
rationale for placing A.M. in a special-education classroom
and identified the duration and location of the special day
classes and speech and language services.
[8] Therefore, the district court properly affirmed OAH’s
carefully considered decision that Defendant did not commit
a procedural violation.
2. Substance
Plaintiffs argue that A.M.’s IEP was substantively deficient
because it was not based on A.M.’s unique needs and was not
reasonably calculated to provide A.M. an educational benefit.
See Rowley, 458 U.S. at 207, 215. Plaintiffs also argue that
Defendant did not offer A.M. an educational program that
comported with his IEP, and did not offer A.M. a program in
the least restrictive environment. See id. at 203; Poolaw v.
Bishop, 67 F.3d 830, 834 (9th Cir. 1995).
[9] The IEP team considered A.M.’s unique needs and
developed an IEP calculated to provide him an educational
20108 A. M. v. MONROVIA UNIFIED SCHOOL DISTRICT
benefit. The IEP team considered A.M.’s levels of perfor-
mance and his needs based on the observations of A.M.’s ser-
vice providers during the thirty-day period. They concluded a
fourth-grade placement was appropriate. Defendant created an
IEP that included individual services and placement in a spe-
cial day class. Thus, the IEP was based on A.M.’s needs and
was calculated to provide him a benefit.
Plaintiffs argue that Defendant did not offer A.M. an edu-
cational program that comported with his IEP. However,
Plaintiffs claim only that the educational program did not
comport with the 2005 CAVA IEP; Plaintiffs do not claim
that Defendant did not offer a program that comported with
the IEP created by Defendant in 2006. Thus, this argument
fails.
Defendant offered A.M. an education in the least restrictive
environment appropriate. As OAH correctly noted, Defen-
dant’s argument that A.M. could not have received a mean-
ingful education in a full-inclusion general-education setting
is persuasive. A.M. was non-verbal and could respond only to
yes-or-no questions. The general education teacher assigned
to A.M. through CAVA testified that a general-education
classroom would have overwhelmed A.M. A.M.’s service
providers testified that their attempts to have A.M. interact
with other children were fruitless.
[10] The evidence, however, indicated that A.M. would
have benefitted from the special-education classroom place-
ment offered by Defendant. Witnesses testified that the
offered setting had the equipment and staffing appropriate for
A.M. The program also offered A.M. opportunities for main-
streaming at lunch and recess, and the opportunity for main-
stream classes if A.M. performed above the special-education
curriculum.
[11] Therefore, Defendant placed A.M. in the least restric-
tive environment appropriate.
A. M. v. MONROVIA UNIFIED SCHOOL DISTRICT 20109
B. Whether the District Court Erred by Granting
Summary Judgment to Defendant on Plaintiffs’
Section 504 claim
[12] Section 504 prohibits discrimination against disabled
persons by any program receiving federal financial assistance.
29 U.S.C. § 794; see also Mark H. v. Lemahieu, 513 F.3d 922,
933 (9th Cir. 2008). Plaintiffs argue that Defendant discrimi-
nated against A.M. by failing to implement the 2005 IEP and
by not placing A.M. in a general education classroom. Plain-
tiffs argue that summary judgment must be reversed because
Defendant’s motion for summary judgment did not address
Plaintiffs’ claim of intentional discrimination and because the
district court did not analyze Plaintiffs’ allegations regarding
the Section 504 claim.
[13] As discussed above, Defendant did not commit proce-
dural or substantive error with respect to A.M.’s placement,
and Defendant therefore did not discriminate against A.M.
Moreover, a school may establish compliance with Section
504 by implementing a valid IEP. 34 C.F.R. § 104.33(b)(2).
Accordingly, Plaintiffs have no viable Section 504 claim
against Defendant.
C. Whether the District Court Erred by Awarding
Attorneys’ Fees to Defendant under the IDEA on the
Basis that the Action Became Moot upon A.M.’s Death
[14] Attorneys’ fees may be awarded under the IDEA to “a
State educational agency or local educational agency against
. . . the attorney of a parent who continued to litigate after the
litigation clearly became frivolous, unreasonable, or without
foundation . . . .” 20 U.S.C. § 1415(i)(3)(B)(i)(II). The district
court concluded that the case became moot upon A.M.’s death
and should not have been continued after February 13, 2008.
Therefore, the district court awarded Defendant attorneys’
fees incurred after that date, totaling $49,245, to be paid by
Plaintiffs’ counsel.
20110 A. M. v. MONROVIA UNIFIED SCHOOL DISTRICT
[15] Plaintiffs sought reimbursement for expenses caused
by caring for A.M. at home during the times when they
alleged that A.M. should have been in a school classroom and
also damages for emotional distress. Neither the IDEA claim
nor the Section 504 claim was mooted by A.M.’s death
because the parents sought reimbursement and damages. See
Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 5 n.3
(1993); Mark H., 513 F.3d at 935.
Defendant argues that the attorneys’ fees award is proper
because Plaintiffs’ Section 504 claim is frivolous in light of
Ninth Circuit law holding that a valid IEP is sufficient to sat-
isfy Section 504. This argument fails because the validity of
the challenged IEP had not been established prior to this law-
suit.
Defendant also argues that the district court properly
awarded attorneys’ fees because Plaintiffs could not seek
reimbursement and damages because they waived those issues
by not raising them to OAH. However, the district court did
not address waiver in its order, but instead relied only on
mootness.
[16] Accordingly, we remand this issue to the district court
to determine whether attorneys’ fees should be granted
because Plaintiffs waived reimbursement and damages, and
therefore had no claim that survived A.M.
III. CONCLUSION
The district court order granting summary judgment to
Defendant on Plaintiffs’ IDEA and Section 504 claims is
AFFIRMED. The order awarding attorney’s fees is
REMANDED to the district court.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED. Each party shall be responsible for its own
costs on appeal.
A. M. v. MONROVIA UNIFIED SCHOOL DISTRICT 20111
BENNETT, District Judge, concurring in part and dissenting
in part:
Although I find that the majority’s decision is generally
well reasoned, and I ultimately concur, albeit reluctantly, in
the disposition of the Plaintiffs’ IDEA and Section 504
claims, I write separately to address my concern that the con-
struction of the “transfer” statutes, California Education Code
§ 56325(a)(1) and 20 U.S.C. § 1414(d)(2)(C)(i), relied upon
by the majority to determine which IEP the receiving district
was required to implement, is contrary to both plain meaning
and the purposes of these statutes. See Satterfield v. Simon &
Schuster, Inc., 569 F.3d 946, 951 (9th Cir. 2009) (“[O]ur
inquiry begins with the statutory text, and ends there as well
if the text is unambiguous.”); The Wilderness Soc’y v. U.S.
Fish & Wildlife Serv., 353 F.3d 1051, 1060 (9th Cir.2003) (en
banc) (“[T]he structure and purpose of a statute may also pro-
vide guidance in determining the plain meaning of its provi-
sions.”).
The majority agrees with the OAH’s conclusion that Cali-
fornia Education Code § 56325(a)(1), which refers to a “pre-
viously approved” IEP, refers to “the last IEP that was
actually implemented.” The majority finds persuasive the
OAH’s reasoning that providing services in accordance with
the previously implemented IEP effectuates the statute’s pur-
pose of minimizing disruption to the student while the parents
and the receiving district resolve disagreements about proper
placement.
In contrast, I find that construing a “previously approved”
IEP to mean “the last IEP that was actually implemented” is
not consistent with the plain meaning of either Section
56325(a)(1) or Section 1414(d)(2)(C)(i), the IDEA provision
that Section 56325(a)(1) is intended to satisfy. See CAL. EDUC.
CODE § 56325(a)(1) (“As required by subclause (I) of clause
(i) of subparagraph (C) of paragraph (2) of subsection (d) of
Section 1414 of Title 20 of the United States Code, the fol-
20112 A. M. v. MONROVIA UNIFIED SCHOOL DISTRICT
lowing shall apply. . . .”). Section 56325(a)(1) refers to “an
individual with exceptional needs who has an [IEP]” and to
“the previously approved [IEP],” while Section
1414(d)(2)(C)(i) refers to a child with a disability “who had
an IEP that was in effect” and to “the previously held IEP.”
None of this language requires an interpretation of these refer-
ences to mean “the last IEP actually implemented.”
To the contrary, the plain meaning of “the previously
approved [IEP]” is exactly that, the IEP last approved by the
IEP team, and an individual “had” such an IEP from the time
it was approved, whether or not that IEP was ever imple-
mented by the transferring district. Similarly, the plain mean-
ing of an IEP that was “in effect” or “held” is an IEP that had
been approved by the IEP team, even if it had not been actu-
ally implemented by the transferring district. Reading the stat-
utory language in question to mean “the IEP last approved by
the IEP team” properly distinguishes between an IEP that has
been either superseded or only proposed, and thus is not
appropriate for implementation by the receiving district, and
one that should have current force and effect and, thus, should
be implemented by the receiving district.
Moreover, to construe “previously approved IEP,” “the IEP
in effect,” or the IEP “held” to mean “the IEP actually imple-
mented” would effectively preclude an IEP team from ever
approving an IEP that required services that the student’s cur-
rent district could not provide and that, consequently, required
transfer of the student to a new district, because that IEP
would never have to be recognized or implemented by the
receiving district. Such an effect is plainly contrary to the pur-
pose of the IDEA, which is to provide all individuals with a
free appropriate public education (FAPE). Forest Grove Sch.
Dist. v. T.A., 523 F.3d 1078, 1087 (9th Cir. 2008) (“We
emphasize in particular that the express purpose of the IDEA
is “to ensure that all children with disabilities have available
to them a free appropriate public education.” (quoting 20
U.S.C. § 1400(d)(1)(A), with emphasis added)). Even assum-
A. M. v. MONROVIA UNIFIED SCHOOL DISTRICT 20113
ing that a purpose of the “transfer” statutes is to minimize dis-
ruption to the student while the parents and the receiving
district resolve disagreements about proper placement, as the
majority states, making the transferring district’s last
approved IEP a nullity, if it has not actually been “implement-
ed,” does not serve the purpose of avoiding disruption to the
student. Also, the “transfer” statutes already provide the
receiving district with a period (thirty days under the Califor-
nia statute) to evaluate the transferring district’s last approved
IEP and to develop, adopt, and implement a new IEP, if the
receiving district deems that course to be appropriate. Thus,
the purposes of providing transferring individuals with a
FAPE and allowing the receiving district the opportunity to
reevaluate the last approved IEP from the transferring district
are satisfied by applying the plain meaning of the terms in
question.
The receiving district’s failure to implement A.M.’s last
approved IEP, the December 2005 IEP, upon A.M.’s transfer,
as it was required to do under my construction of the “trans-
fer” statutes, however, does not necessarily undermine the
validity of the 2006 IEP ultimately developed by the receiving
district. Were I writing on a clean slate, I would likely find
that the 2006 IEP was invalid. Nevertheless, in light of the
deference due the agency’s determination that the 2006 IEP
was valid, I must, reluctantly, concur in the majority’s conclu-
sion that the Plaintiffs were allowed meaningful participation
in the development of the 2006 IEP and that the 2006 IEP was
not substantively deficient. Thus, I also, reluctantly, concur in
the majority’s conclusion that the district court properly
granted summary judgment on the Plaintiffs’ IDEA and Sec-
tion 504 claims.
I also concur in the majority’s conclusion that neither the
IDEA claim nor the Section 504 claim was mooted by A.M.’s
death, because the parents sought reimbursement and dam-
ages, so that the district court’s award of attorney fees on the
ground that the parents’ separate claims were mooted was
20114 A. M. v. MONROVIA UNIFIED SCHOOL DISTRICT
improper. In reaching this conclusion, I am particularly per-
suaded by the reasoning presented in the brief of amicus
curiae Council of Parent Attorney Advocates, Inc.
However, I dissent from the majority’s conclusion that the
issue of attorney fees should be remanded to the district court
to determine whether attorney fees should be granted because
the Plaintiffs waived reimbursement and damages and, there-
fore, had no claim that survived A.M. I would hold that the
Plaintiffs did not waive their reimbursement and damages
claims as a matter of law, because the Plaintiffs sought reim-
bursement for privately provided services in both the adminis-
trative and the judicial review proceedings. Thus, I would
simply reverse the district court’s award of attorney fees.
Therefore, while I concur in affirming the denial of the
Plaintiffs’ IDEA and Section 504 claims and reversing the
district court’s award of attorney fees to the Defendants, I
respectfully dissent from remanding the issue of attorney fees
to the district court for the determination of whether or not the
Plaintiffs waived reimbursement and damages.