NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 8 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
L.C., a minor, by and through his Guardian No. 19-55968
Ad Litem Ausencia Cruz,
D.C. No.
Plaintiff-Appellee, 5:18-cv-01535-SVW-SHK
v.
MEMORANDUM*
ALTA LOMA SCHOOL DISTRICT, A
Local Educational Agency,
Defendant-Appellant.
L.C., a minor, by and through his Guardian No. 20-55059
Ad Litem Ausencia Cruz,
D.C. No.
Plaintiff-Appellant, 5:18-cv-01535-SVW-SHK
v.
ALTA LOMA SCHOOL DISTRICT, A
Local Educational Agency,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted November 20, 2020
*
This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
Pasadena, California
Before: LINN,** RAWLINSON, and FORREST,*** Circuit Judges.
In these companion cases, Alta Loma School District (the District) appeals
the district court’s decision concluding that the District failed to comply with the
Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., and
L.C. (Student) appeals the district court’s attorney fees award. We have jurisdiction
under 28 U.S.C § 1291, and we reverse on the merits and vacate the fees award.
“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.’” C.W.
v. Capistrano Unified Sch. Dist., 784 F.3d 1237, 1240 (9th Cir. 2015), as amended
(quoting 20 U.S.C. §§ 1400(d)(1)(A)–(B)). “A school district must comply both
procedurally and substantively with the IDEA.” M.M. v. Lafayette Sch. Dist., 767
F.3d 842, 852 (9th Cir. 2014), as amended (Oct. 1, 2014) (internal quotations and
citation omitted). Under 34 C.F.R. § 300.502(b)(1), “[a] parent has the right to an
independent educational evaluation at public expense if the parent disagrees with an
evaluation obtained by the public agency.”1 When a Parent has the right to an
**
The Honorable Richard Linn, United States Circuit Judge for the U.S. Court
of Appeals for the Federal Circuit, sitting by designation.
***
Formerly known as Danielle J. Hunsaker.
1
Based on our disposition of this appeal, we need not and do not address
whether or to what extent an evaluation was performed in this case.
2
Independent Educational Evaluation (IEE) at public expense and requests an IEE,
the school district must—without unnecessary delay—either file a due process
complaint or fund the requested IEE. Id.
Here, the district court erred in concluding that the District unnecessarily
delayed providing an IEE or filing a due process complaint. The district court
reasoned that the District caused unnecessary delay by withholding pertinent cost
information “necessary for the parents to defend their position.” See Anchorage Sch.
Dist. v. M.P., 689 F.3d 1047, 1053 (9th Cir. 2012) (noting we review questions of
law, and mixed questions of law and fact, de novo). Yet, as the district court noted,
there is no “authority for the proposition that the District was required to identify
any particular information for [Student] upon request.”2 Unnecessary delay is a
“fact-specific inquiry,” Capistrano Unified Sch. Dist., 784 F.3d at 1247, focused on
the circumstances surrounding the delay, see, e.g., J.P. ex rel. E.P. v. Ripon Unified
Sch. Dist., No. 2:07-CV-02084-MCE-DAD, 2009 WL 1034993, at *7 (E.D. Cal.
Apr. 15, 2009).
For example, when parties “continued to discuss provision of an IEE,” there
was no unnecessary delay in the school district waiting to file for a due process
hearing until the parties reached “a final impasse.” Id. When a school district’s delay
2
Further, the record is clear that Student’s parents had access to the same
information as the District regarding Dr. Stephey’s evaluation rates and the relevant
cost cap.
3
is “unexplained,” however, that weighs in favor of finding unnecessary delay. See
Pajaro Valley Unified Sch. Dist. v. J.S., No. C 06-0380 PVT, 2006 WL 3734289, at
*3 (N.D. Cal. Dec. 15, 2006). Finally, a school break that occurs during an IEE
request “must also be considered in determining the timeliness of the District’s due
process request.” Ripon Unified Sch. Dist., 2009 WL 1034993 at *7.
In this case, the District exchanged numerous emails and letters with Student’s
parents from August 10, 2017, until it filed for a due process hearing on December
5, 2017. These communications reflect the parties’ attempts to reach agreement on
Dr. Stephey’s IEE and other issues. Indeed, the parties reached agreement on a
contested issue as late as December 1. Further, the longest delay in communications,
November 17–30, was largely due to the District’s Thanksgiving break. The parties
reached final impasse on the IEE issue on Thursday, November 30, and the District
filed for a due process hearing the following Tuesday, December 5. Thus, we
conclude there was no unnecessary delay.
Whereas we conclude the District did not violate the IDEA and Student is not
the prevailing party, see 20 U.S.C. § 1415(i)(3)(B)(i)(I); see also Beauchamp v.
Anaheim Union High Sch. Dist., 816 F.3d 1216, 1220 (9th Cir. 2016), he is not
entitled to attorney fees.
We REVERSE the district court’s decision on the merits and VACATE the
4
attorney fees award.3 Each party shall bear its own costs.
3
The District’s motions to take judicial notice are denied as moot.
5