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.