A.M. ex rel. Marshall v. Monrovia Unified School District

BENNETT, District Judge,

concurring in part and dissenting in part:

Although I find that the majority’s decision is generally well reasoned, and I ultimately concur, albeit reluctantly, in the disposition of the Plaintiffs’ IDEA and Section 504 claims, I write separately to address my concern that the construction of the “transfer” statutes, California Education Code § 56325(a)(1) and 20 U.S.C. § 1414 (d)(2)(C)(i), relied upon by the majority to determine which IEP the receiving district was required to implement, is contrary to both plain meaning and the purposes of these statutes. See Satterfield *783 v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir.2009) (“[O]ur inquiry begins with the statutory text, and ends there as well if the text is unambiguous.”); The Wilderness Soc’y v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1060 (9th Cir.2003) (en banc) (“[T]he structure and purpose of a statute may also provide guidance in determining the plain meaning of its provisions.”).

The majority agrees with the OAH’s conclusion that California Education Code § 56325(a)(1), which refers to a “previously approved” IEP, refers to “the last IEP that was actually implemented.” The majority finds persuasive the OAH’s reasoning that providing services in accordance with the previously implemented IEP effectuates the statute’s purpose of minimizing disruption to the student while the parents and the receiving district resolve disagreements about proper placement.

In contrast, I find that construing a “previously approved” IEP to mean “the last IEP that was actually implemented” is not consistent with the plain meaning of either Section 56325(a)(1) or Section 1414(d)(2)(C)®, the IDEA provision that Section 56325(a)(1) is intended to satisfy. See Cal. Educ. Code § 56325 (a)(1) (“As required by subclause (I) of clause (i) of subparagraph (C) of paragraph (2) of subsection (d) of Section 1414 of Title 20 of the United States Code, the following shall apply....”). Section 56325(a)(1) refers to “an individual with exceptional needs who has an [IEP]” and to “the previously approved [IEP],” while Section 1414(d)(2)(C)® refers to a child with a disability “who had an IEP that was in effect” and to “the previously held IEP.” None of this language requires an interpretation of these references to mean “the last IEP actually implemented.”

To the contrary, the plain meaning of “the previously approved [IEP]” is exactly that, the IEP last approved by the IEP team, and an individual “had” such an IEP from the time it was approved, whether or not that IEP was ever implemented by the transferring district. Similarly, the plain meaning of an IEP that was “in effect” or “held” is an IEP that had been approved by the IEP team, even if it had not been actually implemented by the transferring district. Reading the statutory language in question to mean “the IEP last approved by the IEP team” properly distinguishes between an IEP that has been either superseded or only proposed, and thus is not appropriate for implementation by the receiving district, and one that should have current force and effect and, thus, should be implemented by the receiving district.

Moreover, to construe “previously approved IEP,” “the IEP in effect,” or the IEP “held” to mean “the IEP actually implemented” would effectively preclude an IEP team from ever approving an IEP that required services that the student’s current district could not provide and that, consequently, required transfer of the student to a new district, because that IEP would never have to be recognized or implemented by the receiving district. Such an effect is plainly contrary to the purpose of the IDEA, which is to provide all individuals with a free appropriate public education (FAPE). Forest Grove Sch. Dist. v. T.A., 523 F.3d 1078, 1087 (9th Cir.2008) (“We emphasize in particular that the express purpose of the IDEA is ‘to ensure that all children with disabilities have available to them a free appropriate public education.’ ” (quoting 20 U.S.C. § 1400 (d)(1)(A), with emphasis added)). Even assuming that a purpose of the “transfer” statutes is to minimize disruption to the student while the parents and the receiving district resolve disagreements about proper placement, as the majority states, making the transferring district’s last approved IEP a nullity, if it has *784 not actually been “implemented,” does not serve the purpose of avoiding disruption to the student. Also, the “transfer” statutes already provide the receiving district with a period (thirty days under the California statute) to evaluate the transferring district’s last approved IEP and to develop, adopt, and implement a new IEP, if the receiving district deems that course to be appropriate. Thus, the purposes of providing transferring individuals with a FAPE and allowing the receiving district the opportunity to reevaluate the last approved IEP from the transferring district are satisfied by applying the plain meaning of the terms in question.

The receiving district’s failure to implement A.M.’s last approved IEP, the December 2005 IEP, upon A.M.’s transfer, as it was required to do under my construction of the “transfer” statutes, however, does not necessarily undermine the validity of the 2006 IEP ultimately developed by the receiving district. Were I writing on a clean slate, I would likely find that the 2006 IEP was invalid. Nevertheless, in light of the deference due the agency’s determination that the 2006 IEP was valid, I must, reluctantly, concur in the majority’s conclusion that the Plaintiffs were allowed meaningful participation in the development of the 2006 IEP and that the 2006 IEP was not substantively deficient. Thus, I also, reluctantly, concur in the majority’s conclusion that the district court properly granted summary judgment on the Plaintiffs’ IDEA and Section 504 claims.

I also concur in the majority’s conclusion that neither the IDEA claim nor the Section 504 claim was mooted by A.M.’s death, because the parents sought reimbursement and damages, so that the district court’s award of attorney fees on the ground that the parents’ separate claims were mooted was improper. In reaching this conclusion, I am particularly persuaded by the reasoning presented in the brief of amicus curiae Council of Parent Attorney Advocates, Inc.

However, I dissent from the majority’s conclusion that the issue of attorney fees should be remanded to the district court to determine whether attorney fees should be granted because the Plaintiffs waived reimbursement and damages and, therefore, had no claim that survived A.M. I would hold that the Plaintiffs did not waive their reimbursement and damages claims as a matter of law, because the Plaintiffs sought reimbursement for privately provided services in both the administrative and the judicial review proceedings. Thus, I would simply reverse the district court’s award of attorney fees.

Therefore, while I concur in affirming the denial of the Plaintiffs’ IDEA and Section 504 claims and reversing the district court’s award of attorney fees to the Defendants, I respectfully dissent from remanding the issue of attorney fees to the district court for the determination of whether or not the Plaintiffs waived reimbursement and damages.