E.M. v. Pajaro Valley Unified School District Office of Administrative Hearings

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

E. M., a minor, by and through 

his parents, E.M. and E.M.,

Plaintiff-Appellant, No. 09-17084

v.

 D.C. No.

5:06-cv-04694-JF

PAJARO VALLEY UNIFIED SCHOOL

DISTRICT OFFICE OF ADMINISTRATIVE OPINION

HEARINGS,

Defendant-Appellee.



Appeal from the United States District Court

for the Northern District of California

Jeremy D. Fogel, District Judge, Presiding

Argued and Submitted

November 5, 2010—San Francisco, California

Filed July 14, 2011

Before: John T. Noonan, Richard A. Paez, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Noonan;

Dissent by Judge Bea

9577

9580 E. M. v. PAJARO VALLEY UNIFIED SCHOOL

COUNSEL

Mandy G. Leigh, Jay T. Jambeck (of counsel), Sarah J. Fair-

child, Leigh Law Group, San Francisco, California, for

plaintiff-appellant E.M.

Laurie E. Reynolds, Kimberly A. Smith, Fagen, Friedman &

Fulfrost, Oakland, California, for defendant-appellee Pajaro

Valley Unified School District.

OPINION

NOONAN, Circuit Judge:

E.M. is a bilingual student in Pajaro Valley Unified School

District (“PVUSD”), California. He has performed poorly in

school, although by most measures, he is of average to above-

average intellectual ability. E.M.’s parents brought this action

to challenge PVUSD’s determination that E.M. did not qual-

ify for special education under the Individuals with Disabili-

ties Education Act (“IDEA”). The Special Education Division

of the California Office of Administrative Hearings (“OAH”)

upheld PVUSD’s assessment. The district court, in turn,

upheld the OAH’s decision.

E. M. v. PAJARO VALLEY UNIFIED SCHOOL 9581

This appeal comes to us after careful consideration by an

able district judge. We disagree with his assessment only to

the extent that we find one claim not addressed and one report

not measured for its relevance. We affirm the judgment of the

district court in part, reverse in part, and remand for further

proceedings.

FACTS

At all relevant times, E.M. was a student in PVUSD. In the

third and fourth grades, he struggled in school. His teachers

identified attention and homework completion as problem

areas. They used interventions designed to help him succeed

in a regular educational program. They had limited success.

E.M. was designated as “at risk for retention.” However, his

teachers did not perceive him as a candidate for special educa-

tion.

The summer before E.M. entered fifth grade, his parents

brought him to a psychologist, Roslyn Wright, to have him

evaluated for a learning disability. Dr. Wright assessed E.M.

using a test of intellectual ability, the Wechsler Intelligence

Scale for Children, Third Edition (“WISC-III”), and a battery

of achievement tests, the Woodcock-Johnson Tests of

Achievement-III (“WJ-III”). Based on the test results, Dr.

Wright diagnosed E.M. with a learning disability.

E.M.’s parents then requested PVUSD to assess their son

for eligibility for special education and related services under

IDEA. PVUSD’s psychologist administered to E.M. the Kauf-

man Assessment Battery for Children (“K-ABC”), a compre-

hensive intelligence test, and the WJ-III achievement tests.

Based on this assessment, PVUSD determined that E.M. was

not eligible for special education.

At the request of E.M.’s parents, PVUSD reassessed E.M.

in May of his fifth-grade year and reached essentially the

same result as it did in its first assessment. PVUSD performed

9582 E. M. v. PAJARO VALLEY UNIFIED SCHOOL

a third assessment in June, resulting in recommendations for

additional interventions in the general education classroom.

At the end of fifth grade, PVUSD again designated E.M. as

at risk for retention.

In November 2005, in the first half of E.M.’s sixth-grade

year, E.M.’s parents obtained an auditory evaluation by Dr.

Ruth Kaspar. She concluded that E.M. had an auditory pro-

cessing disorder.

PROCEEDINGS

E.M.’s parents disagreed with PVUSD’s assessments and,

on December 5, 2005, E.M. filed a complaint with the Special

Education Division of the OAH. The OAH held a six-day due

process hearing and issued a decision in favor of PVUSD on

all issues. E.M. appealed the decision to the district court,

where the parties filed cross-motions for summary judgment.

In the district court, E.M. moved to supplement the record

with evidence obtained after the conclusion of the OAH hear-

ing. This evidence included a report by Cheryl Jacques, a clin-

ical psychologist, who reviewed E.M.’s records and

conducted a battery of tests. Dr. Jacques tested E.M.’s intelli-

gence using the WISC-IV, an updated version of the WISC-

III test that Dr. Wright used. Based on her assessment and

review of the records relating to E.M., Dr. Jacques concluded

that E.M. had a “specific learning disability” as defined under

IDEA. See 20 U.S.C. § 1401(30). She also reviewed the data

from prior assessments and concluded that it was “puzzling”

that PVUSD did not find that E.M. qualified for special edu-

cation in 2004. The district court denied E.M.’s request to

supplement the record with Dr. Jacques’s report.

The district court initially denied PVUSD’s motion for

summary judgment and remanded E.M.’s case to the OAH for

further written analysis as to some of the prior conclusions of

the administrative law judge (“ALJ”). In the meantime,

E. M. v. PAJARO VALLEY UNIFIED SCHOOL 9583

PVUSD re-assessed E.M. and, on February 22, 2008, found

him eligible for special education as of that date. PVUSD did

not admit that it had previously failed to locate, evaluate, and

identify E.M. as a student with a disability.

The OAH returned E.M.’s case to the district court, where

E.M. argued that he was entitled to compensatory educational

services, among other forms of relief, based on PVUSD’s fail-

ure to meet its obligations to him under IDEA prior to its Feb-

ruary 22, 2008 reassessment. The district court found that the

ALJ’s amended opinion provided a sufficient basis for decid-

ing the parties’ cross-motions for summary judgment. It

granted PVUSD’s motion.

This appeal followed.

ANALYSIS

We have jurisdiction to review the district court’s grant of

summary judgment under 28 U.S.C. § 1291. We review de

novo an award of summary judgment. Parents of Student W.

v. Puyallup Sch. Dist., 31 F.3d 1489, 1494 (9th Cir. 1994).

Evidentiary rulings are reviewed for abuse of discretion.

United States v. Higuera-Llamos, 574 F.3d 1206, 1209 (9th

Cir. 2009).

E.M. claims that the district court erred in concluding that

PVUSD met its affirmative obligation to locate, evaluate, and

identify him as a student with a disability (its “child find”

obligation). See 20 U.S.C. § 1412(a)(3)(A); 34 C.F.R.

§ 300.111(a)(1)(ii); Cal. Educ. Code §§ 56300, 56301. In par-

ticular, E.M. argues that PVUSD did not properly evaluate

him and identify him as a student eligible for special educa-

tion and related services based on his specific learning dis-

ability and on his “other health impairments” of Attention

Deficit Disorder/Attention Deficit Hyperactivity Disorder

(“ADD/ADHD”) and auditory processing disorder. See 20

U.S.C. § 1401(3)(A)(i); 20 U.S.C. § 1401(30). E.M. claims

9584 E. M. v. PAJARO VALLEY UNIFIED SCHOOL

entitlement to additional educational services to compensate

him for PVUSD’s failure to meet its obligations to him under

IDEA. See Puyallup, 31 F.3d at 1496.

I.

We first address E.M.’s eligibility for special education as

a child with a specific learning disability. Under California

law in effect during the relevant period, a child is found to

have a specific learning disability when it is determined that

(1) a “severe discrepancy” exists between the child’s intellec-

tual ability and achievement in one or more of seven desig-

nated academic areas; (2) “[t]he discrepancy is due to a

disorder in one or more of the basic psychological processes

and is not the result of environmental, cultural, or economic

disadvantages”; and (3) “[t]he discrepancy cannot be cor-

rected through other regular or categorical services offered

within the regular instructional program.” Cal. Educ. Code

§ 56337 (2005). The parties dispute whether E.M. met the

first and second criteria.

E.M. argues that the district court improperly concluded

that he failed to establish that he suffered from a “disorder in

a basic psychological process.” We agree. The only person

who formally assessed E.M. for an auditory processing disor-

der was Dr. Ruth Kaspar. Dr. Kaspar, an audiologist, diag-

nosed E.M. with an auditory processing disorder. The school

district hired Dr. Jody Winzelberg, also an audiologist, as an

expert witness. Based on a review of Dr. Kaspar’s report, Dr.

Winzelberg testified that she would characterize E.M.’s test

results as showing “some weakness in the auditory system,”

and that she could not rule out an auditory processing disorder

diagnosis.

E.M. also argues that the district court erred in concluding

that he failed to show that there was a “severe discrepancy”

between his intellectual ability and achievement scores. In

determining whether a severe discrepancy existed, PVUSD

E. M. v. PAJARO VALLEY UNIFIED SCHOOL 9585

used E.M.’s performance score of 104 on the WISC-III test

administered by Dr. Wright rather than E.M’s mental process-

ing composite score of 111 on the K-ABC test that PVUSD

itself administered. PVUSD does not dispute that had it used

the K-ABC score, it would have found a severe discrepancy.

Instead, PVUSD argues that it made a reasonable determina-

tion that E.M. did not show a severe discrepancy based on all

available material on E.M. E.M. contends that PVUSD imper-

missibly considered the fact that he is bilingual and “cherry

picked” among his test scores to reach a predetermined result.

[1] This court has held that school districts have discretion

in selecting the diagnostic tests they use to determine special

education eligibility. See Ford v. Long Beach Unified Sch.

Dist., 291 F.3d 1086, 1088-89 (9th Cir. 2002) (holding that a

school district need not use any traditional IQ test to assess

for specific learning disability). E.M.’s case presents a related,

but different, question: does IDEA permit a school district to

exclude the valid results of a test the district itself selected

and administered? This question touches on a fundamental

tension in special education law — that between ensuring that

all disabled children have access to educational opportunity

and ensuring that non-disabled children are not improperly

identified as disabled. This tension is particularly salient for

minority students, who historically have been over-identified

as disabled and disproportionally placed in segregated educa-

tional settings, due in part to biased IQ tests. See, e.g., Larry

P. by Lucille P. v. Riles, 793 F.2d 969 (9th Cir. 1984); Diana

v. Cal. Bd. of Educ., No. C-70-37 RFP (N.D. Cal. 1970, 1973)

(resolved through a stipulated settlement). IDEA mandates

that states implement safeguards aimed at ensuring that test-

ing procedures are not racially or culturally discriminatory,

and that “no single procedure shall be the sole criterion for

determining an appropriate educational program for a child.”

20 U.S.C. § 1412(a)(6)(B). In line with this requirement, Cali-

fornia Code of Regulations, title 5, § 3030(j) mandates that

school districts consider “all relevant material which is avail-

able on the pupil” and not use any “single score or product of

9586 E. M. v. PAJARO VALLEY UNIFIED SCHOOL

scores, test or procedure” in determining eligibility based on

a specific learning disability. Where a comparison of IQ

scores and achievement scores yields an ambiguous result, the

application of a blanket rule barring a school district from

considering other factors in determining whether a child has

a specific learning disability would upset the balance IDEA

attempts to achieve. Accordingly, we hold that a school dis-

trict, considering all relevant material available on a pupil,

must make a reasonable choice between valid but conflicting

test results in determining whether a “severe discrepancy”

exists. See Cal. Code Regs., tit. 5, § 3030(j).

[2] Before determining whether PVUSD’s choice among

test scores was reasonable, it is necessary to address the par-

ties’ dispute over whether the district court properly excluded

the assessment of E.M. conducted by Dr. Jacques. IDEA man-

dates that, on review of an administrative decision, the district

court “shall hear additional evidence at the request of a

party.” 20 U.S.C. § 1415(i)(2)(C)(ii). But not all evidence is

“additional evidence.” In Ojai Unified Sch. Dist. v. Jackson,

we held that a district court need not consider evidence that

simply repeats or embellishes evidence taken at the adminis-

trative hearing, nor should it admit evidence that changes

“ ‘the character of the hearing from one of review to a trial de

novo.’ ” 4 F.3d 1467, 1473 (9th Cir. 1993), cert. denied, 513

U.S. 825 (1994) (quoting Town of Burlington v. Dep’t of

Educ., 736 F.2d 773, 791 (1st Cir. 1984), aff’d sub nom. Sch.

Comm. v. Dep’t of Educ., 471 U.S. 359 (1985)). Adopting the

First Circuit’s rule in Town of Burlington, we held that “addi-

tional evidence” includes, inter alia, “evidence concerning rel-

evant events occurring subsequent to the administrative

hearing.” Ojai, 4 F.3d at 1473. Applying this rule, we deter-

mined that the district court properly admitted evidence

related to an alternative educational placement for a disabled

child. Id. The placement first became available after the

child’s administrative hearing. Id. Similarly, in Adams v. Ore-

gon, we observed that after-acquired evidence “may shed

light” on the objective reasonableness of a school district’s

E. M. v. PAJARO VALLEY UNIFIED SCHOOL 9587

actions at the time the school district rendered its decision.

195 F.3d 1141, 1149 (9th Cir. 1999). In summary, under our

precedent, evidence that is non-cumulative, relevant, and oth-

erwise admissible constitutes “additional evidence” that the

district court “shall” consider pursuant to 20 U.S.C.

§ 1415(i)(2)(C)(ii).

IDEA’s requirement that courts consider additional evi-

dence is grounded in the somewhat unusual nature of judicial

review under the Act. In Ojai, we observed that “judicial

review in IDEA cases differs substantially from judicial

review of other agency actions, in which courts generally are

confined to the administrative record and are held to a highly

deferential standard of review.” 4 F.3d at 1471. Under IDEA,

“the federal court has a continuing obligation to ensure that

the state standards themselves and as applied are not below

the federal minimums . . . . [which] persists despite any state

administrative rulings on federal law or state recodifications

of federal law.” Town of Burlington, 736 F.2d at 792. The

requirement that federal courts consider additional evidence

when evaluating state administrative rulings implements the

intent that federal courts enforce the minimum federal stan-

dards IDEA sets out.

It is argued that our reading of 20 U.S.C.

§ 1415(i)(2)(C)(ii) conflicts with the Fourth Circuit’s holding

in Schaffer v. Weast, 554 F.3d 470, 476 (4th Cir. 2009). But

in Schaffer, the contention that the district court violated

IDEA’s mandate that it hear additional evidence failed for the

“straightforward reason” that the district court in fact had

admitted the evidence. Id. at 475. It simply concluded that the

evidence should not “determine the merits of the case.” Id.

Here, the district court did not admit Dr. Jacques’s report and

did not consider it in deciding the merits of E.M.’s case.

It is also argued that our opinion is inconsistent with the

Eighth Circuit’s holding in West Platte R-II School District v.

Wilson, 439 F.3d 782 (8th Cir. 2006). In West Platte, the court

9588 E. M. v. PAJARO VALLEY UNIFIED SCHOOL

upheld the district court’s exclusion of evidence of a child’s

progress subsequent to the administrative hearing because the

proponent of the evidence — the school district — failed to

“provide a solid justification for supplementing the record.”

Id. at 785. The court in West Platte did not cite 20 U.S.C.

§ 1415(i)(2)(C)(ii), and the court appears not to have

accounted for the unusual nature of judicial review in IDEA

cases. See Ojai, 4 F.3d at 1471. Moreover, West Platte’s

unelaborated requirement that the school district offer a “solid

justification” for the admission of after-acquired evidence

does not appear to conflict with our reading of 20 U.S.C.

§ 1415(i)(2)(C)(ii). The determinations of a state agency are

entitled to greater deference where, as in West Platte, the

agency finds that one of its school systems has not complied

with the state’s implementation of the IDEA. See Town of

Burlington, 736 F.2d at 792.

Our reading of 20 U.S.C. § 1415(i)(2)(C)(ii) finds support

in Susan N. v. Wilson School District, 70 F.3d 751, 760 (3d

Cir. 1995), in which the Third Circuit ruled that a district

court “must exercise particularized discretion in its rulings so

that it will consider evidence relevant, non-cumulative and

useful in determining whether Congress’ goal has been

reached for the child involved.” The court concluded that the

district court lacked discretion to summarily exclude evidence

that was not available at the time of the administrative hearing

and was relevant to the district court’s assessment of the rea-

sonableness of the school district’s decision at the time the

decision was made. Id. at 758.

Similarly, in Town of Burlington, the First Circuit declined

to adopt a rule disallowing testimony by “all who did, or

could have, testified [at] the administrative hearing.” 736 F.2d

at 790. The court commented on the particular usefulness of

expert testimony to the district court in “illuminating the

nature of the controversy” and “bringing the court up to date

on the child’s progress from the time of the hearing to the

trial.” Id. at 791.

E. M. v. PAJARO VALLEY UNIFIED SCHOOL 9589

[3] We hold that the district court applied an incorrect

standard for admission of after-acquired evidence in exclud-

ing Dr. Jacques’s report. The district court excluded Dr.

Jacques’s report as not “necessary to evaluate the ALJ’s

determination.” The proper inquiry was whether the report

was relevant, non-cumulative, and otherwise admissible.

[4] Dr. Jacques’s report shows that E.M. had a legally sig-

nificant discrepancy between ability and achievement in 2007.

This showing may make it more likely that a legally signifi-

cant discrepancy was present in 2004. Moreover, Dr. Jacques

observed that PVUSD would have found that a severe dis-

crepancy existed in 2004 had it used either the K-ABC non-

verbal score of 113 or the K-ABC mental processing

composite score of 111. Her report concluded that “it is puz-

zling that the district did not find [E.M.] eligible for special

education in 2004.”

It is true that we have said that “actions of the school sys-

tems . . . cannot be judged exclusively in hindsight.” Adams,

195 F.3d at 1149-50 (quoting Fuhrmann v. E. Hannover Bd.

of Educ., 993 F.2d 1031, 1041 (3d Cir. 1993)). But that exclu-

sive use of hindsight is forbidden does not preclude consider-

ation of subsequent events. Id. The clear implication of

permitting some hindsight is that additional data, discovered

late in the evaluation process, may provide significant insight

into the child’s condition, and the reasonableness of the

school district’s action, at the earlier date.

[5] It might be thought that the more exacting test, devel-

oped in 2007, is not relevant to 2004: the 2007 test could not

have been used in 2004. The school district cannot be faulted

for failing to use a test that was not available in 2004. The

intent of 20 U.S.C. § 1415(i)(2)(C)(ii), however, is that the

school district’s 2004 actions be reviewed with the help avail-

able in 2007.

On remand, the district court should consider whether Dr.

Jacques’s report is relevant to the determination whether

9590 E. M. v. PAJARO VALLEY UNIFIED SCHOOL

PVUSD met its obligations to E.M. under the IDEA and is

otherwise admissible.

E.M. also argues that the district court should have consid-

ered PVUSD’s 2008 assessment finding him eligible for spe-

cial education and related services on the basis of his specific

learning disability. IDEA provides that the district court “shall

receive the records of the administrative proceedings.” 20

U.S.C. § 1415(i)(2)(C)(i). E.M. asserts that the 2008 assess-

ment was submitted to the OAH after the district court

remanded his case. PVUSD does not dispute this assertion. It

is unclear to us why the assessment does not appear in the dis-

trict court’s record. The district court should consider the

assessment on remand. See M.L. v. Fed. Way Sch. Dist., 394

F.3d 634, 641 n.8 (9th Cir. 2005).

II.

[6] E.M. asserts that the district court should have consid-

ered whether his auditory processing disorder diagnosis quali-

fied him for special education as a child with an “other health

impairment[ ].” See 20 U.S.C. § 1401(3)(A)(i). It is argued

that E.M. failed to raise this claim. The argument overlooks

the record. In E.M.’s complaint to the OAH, he requested

“[t]o be found eligible for special education and related ser-

vices under the IDEA . . . as a child having an other health

impairment due to his auditory processing deficits.” E.M.’s

complaint to the district court alleged that “testimonial and

documentary evidence established a strong basis for suspect-

ing that E.M. can qualify for special education under other

[than specific learning disability] eligibility categories.” This

evidence included Dr. Kaspar’s evaluation diagnosing E.M.

with an auditory processing disorder. The OAH apparently

ignored E.M.’s other health impairment claim and the district

court did not consider it. In a brief E.M. submitted to the dis-

trict court after the OAH amended its first decision, E.M.

asserted that the OAH erred in concluding that PVUSD prop-

erly assessed him in “the suspected area of disability of audi-

E. M. v. PAJARO VALLEY UNIFIED SCHOOL 9591

tory processing.” In his opening brief to this court, E.M.

argued that he qualified for special education based on his

auditory processing disorder. In short, E.M. had asserted his

auditory processing disorder claim no less than four times —

to the OAH; twice to the district court; and in his opening

brief to us. Both parties addressed the issue at oral argument.

See United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992).

E.M. did not waive his other health impairment claim.

[7] The regulations define “other health impairment” as

“having limited strength, vitality, or alertness, including a

heightened alertness to environmental stimuli, that results in

limited alertness with respect to the educational environ-

ment.” 34 C.F.R. § 300.8(c)(9). The impairment must be

attributable to “chronic or acute health problems” and must

have an adverse effect on the child’s educational perfor-

mance. Id. The regulations contain a non-exhaustive list of

chronic and acute health problems, which does not include

auditory processing disorder. See id. On remand, the district

court should address whether an auditory processing disorder

may qualify as an other health impairment, and if so whether

PVUSD met its obligation to assess E.M. and identify him as

a child with an other health impairment.

III.

[8] E.M. contends that the district court erred in holding

that the ALJ properly struck E.M.’s allegations that PVUSD

failed to assess him for ADD/ADHD. The party requesting a

due process hearing before the ALJ in an IDEA case may not

raise issues at the hearing that were not included in its com-

plaint unless the other party consents. Cal. Educ. Code

§ 56502(i) (2005). The district court correctly concluded that

E.M. did not include an ADD/ADHD claim in his complaint

to the ALJ. Accordingly, the district court did not err in

upholding the ALJ’s decision to strike E.M.’s ADD/ADHD

allegations.

9592 E. M. v. PAJARO VALLEY UNIFIED SCHOOL

CONCLUSION

For the reasons stated, the district court’s decision is

AFFIRMED with respect to E.M.’s claim that he qualified for

special education and related services as a child with

ADD/ADHD and REVERSED and REMANDED for a deter-

mination whether, during all relevant times, PVUSD met its

affirmative obligation to locate, evaluate, and identify E.M. as

a child with an other health impairment or a specific learning

disability related to his auditory processing disorder.

Each party shall bear its own costs on appeal.

BEA, Circuit Judge, dissenting:

I respectfully dissent. The district court did not err when it

failed to admit the 2007 Jacques report, which could not pos-

sibly have had any relevance to the school district’s 2004

evaluation of E.M. Nor did the district court err by “failing”

to consider a claim with which neither we nor the district

court were presented: that E.M.’s auditory processing disorder

qualified him for special education under the “other health

impairment” provision of the IDEA. See 20 U.S.C.

§ 1401(3)(A). In my view, the majority reverses the district

court for its failure to admit—or “adequately” to consider—

evidence and claims which were either irrelevant, waived, or

improperly presented.

The majority reverses and remands based on two perceived

“failings” by the district court. First, the majority faults the

district court’s discretionary determination that a 2007 report

by Cheryl Jacques did not qualify as relevant “additional evi-

dence.” 20 U.S.C. § 1415(e)(2). Second, the majority holds

that the district court was required to consider (apparently sua

sponte) E.M.’s contention—raised for the first time at oral

argument before this court—that his auditory processing dis-

E. M. v. PAJARO VALLEY UNIFIED SCHOOL 9593

order qualified him for special education as a child with an

“other health impairment.” 20 U.S.C. § 1401(3)(A).

As to the Jacques report, the relevant statutory requirement

provides that the district court “shall receive the records of the

administrative proceedings, shall hear additional evidence at

the request of a party, and . . . shall grant such relief as the

court determines is appropriate.” 20 U.S.C. § 1415(e)(2).

Despite the seemingly mandatory language of the statute, “the

district court has discretion to determine what qualifies as

‘additional evidence.’ ” Ojai Unified School Dist. v. Jackson,

4 F.3d 1467, 1473 (9th Cir. 1993). In the district court’s dis-

cretion, additional evidence “might include . . . evidence con-

cerning relevant events occurring subsequent to the

administrative hearing.” Id. at 1473 (emphasis added). How-

ever, “actions of the school systems . . . cannot be judged

exclusively in hindsight,” and a school district’s actions must

be judged as “a snapshot, not a retrospective.” Adams by &

Through Adams v. Oregon, 195 F.3d 1141, 1149 (9th Cir.

1993).

In light of these standards, the district court correctly deter-

mined that the Jacques report was not “relevant” additional

evidence. Throughout this litigation, E.M. has contended that

the school district erred in October 2004 when it determined

E.M. was ineligible for special education. E.M. seeks mone-

tary compensation for that claimed 2004 error.1 But Dr.

1

E.M. contends that this court may award monetary “remedies” under

the IDEA. However,”money damages are not available under the IDEA,”

Robb v. Bethel Sch. Dist. #403, 308 F.3d 1047, 1049 (9th Cir. 2002), and

E.M. does not seek reimbursement of private schooling costs under 20

U.S.C. § 1412(a)(10)(C), because E.M. never enrolled at a private institu-

tion. Thus, the only monetary remedies E.M. can obtain are attorneys’ fees

and costs, which may only be awarded to a “prevailing party.” 20 U.S.C.

§ 1415(i)(3)(B)(i)(I). E.M. can prevail only if the school district erred in

its 2004 evaluation. As explained above, I do not think the district court

erred in ruling in favor of the school district; E.M. did not prevail. He

should take nothing.

9594 E. M. v. PAJARO VALLEY UNIFIED SCHOOL

Jacques’s report relied upon a test performed in 2007, and one

of the key assessment tools she used in performing the 2007

evaluation—the Woodcock-Johnson III 2005 Normative

Update—had not even been published in 2004. E.M.’s 2007

scores on a test which the school district could not possibly

have administered in 2004 is irrelevant to the question

whether the school district erred in its 2004 determination.

The majority nevertheless contends that Dr. Jacques’s

report—which showed a “legally significant discrepancy

between ability and achievement in 2007”—is potentially rel-

evant because it “may make it more likely that a legally sig-

nificant discrepancy was present in 2004.” As an initial

matter, the Jacques report itself undermines that conclusion.

Dr. Jacques stated that discrepancies between her evaluation

of E.M. and his previous assessments were likely attributable

to the fact that the “updated tests are harder” and the “in-

creased academic load in middle school . . . contributed to a

widening gap in his intelligence and his achievement levels.”

(emphasis added). In 2004, E.M. was not yet in middle

school. He was in the fourth grade. Dr. Jacques’s report thus

makes it clear that E.M.’s disability was not as clearly notice-

able in 2004 as it was in 2007.

Yet even if the majority is correct and the 2007 Jacques

report made it more likely that E.M. in fact had a learning dis-

ability in 2004, the issue in this case is not the apodictic truth

of E.M.’s condition when the school district first assessed

him. Rather, as the majority itself holds, the issue is “whether

[the school district’s] choice among test scores was reason-

able.” Maj. Op. at 9586. The reasonableness of the school dis-

trict’s choice of test scores in 2004 could not have been

affected by a test administered in 2007 using assessment tools

which were unknown in 2004. Thus, in light of our previous

admonitions that a school district’s actions cannot be judged

E. M. v. PAJARO VALLEY UNIFIED SCHOOL 9595

in “hindsight,” the district court was well within its discretion

when it declined to consider the Jacques report.2

I am therefore puzzled by the majority’s conclusion that the

district court did not weigh the Jacques report’s relevance,

and the majority’s decision to remand to the district court so

the district court may determine such relevance anew. The

district court’s order on E.M.’s motion to supplement the

record reads:

E.M. also argues his recent assessment . . . should be

admitted because this evidence will shed light on the

correctness of the ALJ’s determination. Defendants

argue that this evidence is not relevant to the

Court’s analysis of the diagnosis during the relevant

time period. . . . The Ninth Circuit has held that edu-

cational programs are reviewed not in hindsight but

in light of the information available at the time the

program was developed. Adams v. Oregon, 195 F.3d

1141, 1149 (9th Cir. 1993 (“Actions of the school

system cannot . . . be judged exclusively in hind-

sight.”). Because the Court concludes that the after-

acquired evidence E.M. seeks to introduce is not

necessary to evaluate the ALJ’s determination, it will

not be admitted.

Emphasis added.

It is clear from this order that the district court did weigh

the relevance of the Jacques report. The district court credited

the defendants’ contention that the Jacques report—written

2

It is worth noting that E.M. is not challenging a continued failure by

the school district to diagnose him for special education in light of the

Jacques report. Indeed, only two months after Dr. Jacques completed her

assessment, the school district reassessed E.M. and found that he was eli-

gible for such services. E.M. seeks monetary compensation based on the

school district’s alleged error in its 2004 evaluation.

9596 E. M. v. PAJARO VALLEY UNIFIED SCHOOL

three years after the school district’s purportedly erroneous

diagnosis—was not “relevant to the Court’s analysis” of that

error during the “relevant time period.” In so doing, the dis-

trict court cited our decision in Adams, which holds that as a

matter of law, a school district’s actions cannot be judged

exclusively in hindsight. In determining that the district court

failed to consider the Jacques report’s relevance, the majority

plucks out of context the district court’s determination that the

Jacques report was “not necessary to evaluate the ALJ’s

determination,” and remands because it apparently finds fault

in this language. But it is clear from the order that the district

court so found because the Jacques report is irrelevant to the

issue whether the school district erred in 2004.3 I would not

remand to the district court—wasting time and resources—so

that the district court can again make a determination it has

already made.

The majority further holds that the district court erred when

it failed to consider whether a purported auditory processing

disorder qualified E.M. for special education as a child with

an “other health impairment.” See 20 U.S.C. § 1401(3)(A).

But we may not address the question whether E.M.’s auditory

processing disorder qualified him for special education as a

standalone “other health impairment,” because E.M. did not

raise this argument before the district court, nor in his opening

brief before this court. This court reviews only issues which

“are argued specifically and distinctly in a party’s opening

brief.” Brownfield v. City of Takima, 612 F.3d 1140, 1149 n.4

(9th Cir. 2010). Here—contrary to the majority’s misleading

contention that E.M. argued this issue in his opening brief,

E.M. did not submit his auditory-processing-disorder-as-an-

other-health-impairment claim in his opening brief at all.4

3

Moreover, the phrase “necessary to evaluate” is synonymous with “rel-

evant.” Evidence is relevant if it “moves the needle” towards one determi-

nation or another; if it “moves the needle,” it must be evaluated. It follows

that, if irrelevant, it need not be evaluated.

4

The majority further notes that “[B]oth parties addressed the issue at

oral argument.” Maj. Op. at 9591. This is true, but only because E.M.’s

E. M. v. PAJARO VALLEY UNIFIED SCHOOL 9597

Thus, as an initial matter, I would not reach the question

whether the district court failed to consider E.M.’s other

health impairment claim.

Yet even were we to disregard Ninth Circuit precedent and

consider such a claim, E.M. also did not raise an auditory-

processing-disorder-as-an-other-health-impairment claim in

the district court. The majority misleadingly contends that

because 1) E.M.’s complaint to the district court alleged that

“testimonial and documentary evidence established a strong

basis for suspecting that E.M. can qualify for special educa-

tion under other [than specific learning disability] eligibility

categories,” and 2) there was evidence that Dr. Kaspar diag-

nosed E.M. with an auditory processing disorder, the district

court should have pieced these two fragments together to

create an auditory-processing-disorder-as-an-other-health-

impairment claim on E.M.’s behalf. But throughout this litiga-

tion, E.M. contended that Dr. Kaspar’s diagnosis was relevant

only for his specific learning disability claim.5 E.M. never

contended before the district court—nor before this court—

that Dr. Kaspar’s diagnosis should have qualified him for spe-

counsel raised the issue for the first time at oral argument, and devoted the

bulk of her oral argument to this claim. Indeed, during oral argument,

counsel for the school district noted that she would address the arguments

raised by E.M.’s counsel at opening argument, but further noted that this

was one of many “issues . . . which we consider new.” I am aware of no

authority which holds that a waived issue somehow ceases to be waived

if an attorney ambushes a party-opponent by raising the issue for the first

time at oral argument, and the party-opponent is thus forced to respond.

5

A specific learning disability requires that 1) a child has a “severe sta-

tistical discrepancy” between “ability” and “achievement” test scores, and

2) that discrepancy be caused by a disorder in a “basic psychological pro-

cess.” See 20 U.S.C. § 1401(30); Cal. Educ. Code § 56337. A child has an

other health impairment when he has “limited strength, vitality, or alert-

ness . . . [that] is due to chronic or acute health problems.” 20 U.S.C.

§ 1401(30); 34 C.F.R. § 300.8(c)(9). Throughout this litigation, E.M. has

contended that his alleged auditory processing disorder qualifies as a “dis-

order in a basic psychological process” for the purposes of a specific

learning disability.

9598 E. M. v. PAJARO VALLEY UNIFIED SCHOOL

cial education as an other health impairment. Nor was the dis-

trict court required to piece together vague and isolated

phrases from E.M.’s complaint to create an auditory-

processing-disorder-as-an-other-health-impairment claim on

E.M.’s behalf. “Judges are not like pigs, hunting for truffles

buried in briefs.” Greenwood v. FAA, 28 F.3d 971, 977 (9th

Cir. 1994). I am puzzled as to how this court can reverse the

district court for its failure to consider a claim with which it

was never presented.

I would affirm the district court’s decision in its entirety.