FOR EDUCATIONAL USE ONLY
Page 1
326 Fed.Appx. 423, 2009 WL 1181812 (C.A.9 (Wash.)), 247 Ed. Law Rep. 38
(Not Selected for publication in the Federal Reporter)
(Cite as: 326 Fed.Appx. 423, 2009 WL 1181812 (C.A.9 (Wash.)))
This case was not selected for publication in the
Federal Reporter.
Not for Publication in West's Federal Reporter See
Fed. Rule of Appellate Procedure 32.1 generally
governing citation of judicial decisions issued on or
after Jan. 1, 2007. See also Ninth Circuit Rule 36-3.
(Find CTA9 Rule 36-3)
United States Court of Appeals,
Ninth Circuit.
S.J., a minor child by and through his parents S.H.J.
and J.J., Plaintiff-Appellant,
v.
ISSAQUAH SCHOOL DISTRICT NO. 411; et al.,
Defendants-Appellees.
S.J., a minor child by and through his parents S.H.J.
and J.J., Plaintiff-Appellant,
v.
Issaquah School District No. 411; et al., Defendants-Appellees.
Nos. 07-35856, 08-35096.
Argued and Submitted Dec. 10, 2008.
Filed May 1, 2009.
Background: Child with learning disabilities and his
parents brought action against school district challenging education programs child was offered by the
district. The United States District Court for the
Western District of Washington, Robert S. Lasnik, J.,
affirmed an ALJ's ruling concerning the child's right
to a free and appropriate public education (FAPE)
under the Individuals with Disabilities Education Act
( IDEA), awarded plaintiffs partial attorney fees,
2008 WL 111342, and denied plaintiffs' motion for
reconsideration of award of partial fees, 2008 WL
191277. Plaintiffs appealed.
Holdings: The Court of Appeals held that:
(1) individualized education program (IEP) provided
FAPE to child;
(2) child was not entitled to reimbursement under
IDEA for private placement;
(3) provision of behavior plan which allowed school
to administer medication to child did not violate
child's rights under the United States Constitution,
the Washington Constitution, or IDEA;
(4) IEPs which were defective because they were
developed without input from private school child
had attended were cured by participation of personnel
from the private school in an IEP meeting; and
(5) District Court did not abuse its discretion in
awarding only partial attorney fees.
Affirmed.
West Headnotes
[1] Schools 345
155.5(2.1)
345 Schools
345II Public Schools
345II(L) Pupils
345k155.5 Handicapped Children, Proceedings to Enforce Rights
345k155.5(2) Judicial Review or Intervention
345k155.5(2.1) k. In General. Most
Cited Cases
Court of Appeals would not consider argument of
parents of disabled child that adoption of the 1997
IDEA changed the basic floor of opportunity standard
for individualized education programs (IEPs), where
parents did not raise argument before ALJ or district
court. Individuals with Disabilities Education Act, §
601 et seq., 20 U.S.C.A. § 1400 et seq.
[2] Schools 345
148(3)
345 Schools
345II Public Schools
345II(L) Pupils
345k148 Nature of Right to Instruction in
General
345k148(2) Handicapped Children and
Special Services Therefor
345k148(3) k. Mental or Emotional
Handicap; Learning Disabilities. Most Cited Cases
Individualized education program (IEP) provided free
© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
FOR EDUCATIONAL USE ONLY
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326 Fed.Appx. 423, 2009 WL 1181812 (C.A.9 (Wash.)), 247 Ed. Law Rep. 38
(Not Selected for publication in the Federal Reporter)
(Cite as: 326 Fed.Appx. 423, 2009 WL 1181812 (C.A.9 (Wash.)))
and appropriate public education (FAPE) to child
with learning disabilities, as required by IDEA, even
though pages that should have included a statement
of supplementary aids and services and statement of
program modifications or supports for school personnel were left blank; there was no prejudice from
blank pages, as child's prior IEPs included requisite
statements, child's teachers could refer to those
statements, and there was no suggestion of what accommodations might have been included or any
showing that the lack of specified accommodations or
modifications had any adverse effect on child. Individuals with Disabilities Education Act, §
601(d)(1)(A), 20 U.S.C.A. § 1400(d)(1)(A).
ties did not violate child's rights under the United
States Constitution, the Washington Constitution, or
the IDEA, where child's parents admitted they were
having difficulty getting child to take medication,
opined that his failure to take his medication contributed to his explosive behavior, agreed that the school
district should administer the medication, obtained
child's doctor's permission for school to administer
medication, and facilitated school's continued administration of medication after doctor adjusted the dosage. Individuals with Disabilities Education Act, §
601 et seq., 20 U.S.C.A. § 1400 et seq.; West's
RCWA 28A.210.260, 28A.210.270.
[5] Schools 345
[3] Schools 345
345 Schools
345II Public Schools
345II(L) Pupils
345k149 Eligibility
345k154 Assignment or Admission to
Particular Schools
345k154(2) Handicapped Children
345k154(4) k. Private School and
Out-Of-State Placement. Most Cited Cases
Disabled child was not entitled to reimbursement
under the IDEA for private placement, where he did
not give school district the requisite notice of his intended private placement, did not provide the school
district with an opportunity to address his objections
to his individualized education program (IEP) prior to
his private placement, and delayed IEP meeting. Individuals with Disabilities Education Act, § 601 et
seq., 20 U.S.C.A. § 1400 et seq.
[4] Schools 345
148(2.1)
154(4)
148(4)
345 Schools
345II Public Schools
345II(L) Pupils
345k148 Nature of Right to Instruction in
General
345k148(2) Handicapped Children and
Special Services Therefor
345k148(4) k. Medical Services.
Most Cited Cases
Provision of behavior plan which allowed school to
administer medication to child with learning disabili-
345 Schools
345II Public Schools
345II(L) Pupils
345k148 Nature of Right to Instruction in
General
345k148(2) Handicapped Children and
Special Services Therefor
345k148(2.1) k. In General. Most
Cited Cases
Individualized education programs (IEPs) which
were defective because they were developed without
input from private school child had attended were
cured by participation of personnel from the private
school in an IEP meeting and, thus, provided child
with a free and appropriate public education (FAPE)
as required by IDEA, even though participation of the
personnel did not result in any changes to school district's proposed IEP, since there was no indication of
any substantive deficit in the IEP. Individuals with
Disabilities Education Act, § 601 et seq., 20 U.S.C.A.
§ 1400 et seq.
[6] Schools 345
155.5(5)
345 Schools
345II Public Schools
345II(L) Pupils
345k155.5 Handicapped Children, Proceedings to Enforce Rights
345k155.5(5) k. Judgment and Relief;
Damages, Injunction, and Costs. Most Cited Cases
District court did not abuse its discretion in awarding
only partial attorney fees to disabled child in action
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326 Fed.Appx. 423, 2009 WL 1181812 (C.A.9 (Wash.)), 247 Ed. Law Rep. 38
(Not Selected for publication in the Federal Reporter)
(Cite as: 326 Fed.Appx. 423, 2009 WL 1181812 (C.A.9 (Wash.)))
challenging education programs child was offered by
school district, even though he had succeeded in obtaining award of attorney fees for proceedings before
ALJ prior to district's settlement offer and had prevailed on his prior appeal in having district court's
dismissal of his action vacated; district offered settlement that was in accord with a free and appropriate
public education (FAPE) as required by IDEA, and
child did not prevail on any of his substantive claims.
Individuals with Disabilities Education Act, § 601 et
seq., 20 U.S.C.A. § 1400 et seq.
*424 Jeannette Cohen, Jeannette A. Cohen M.Ed.
J.D., Attorney at Law, Shoreline, WA, for PlaintiffAppellant.
Laura K. Clinton, Esquire, Karen H. Simmonds, Esquire, K & L Gates, LLP, Seattle, WA, for Defendants-Appellees.
Appeal from the United States District Court for the
Western District of Washington, Robert S. Lasnik,
District Judge, Presiding. D.C. Nos. CV-04-05320RBL, CV-04-01926-RSL.
Before: BEEZER, GOULD and CALLAHAN, Circuit Judges.
*425 MEMORANDUM FN*
FN* This disposition is not appropriate for
publication and is not precedent except as
provided by Ninth circuit Rule 36-3.
**1 S.J., a minor with learning disabilities, and his
parents (sometimes referred to collectively as “ S.J.”)
filed this action challenging the education programs
S.J. was offered by the Issaquah School District
(“District”). The district court found that the order by
the Administrative Law Judge (“ALJ”) was thorough
and careful, and affirmed the ALJ's decision. On appeal, S.J. challenges the ALJ's determinations that (a)
the 2002 Individualized Education Program (“IEP”)
was adequate, (b) S.J. was not entitled to reimbursement for the 2002-2003 school year, (c) S.J. had
failed to show that the provision allowing the District
to administer his medication violated any of his
rights, and (d) the March 2004 IEP meeting cured
the procedural defect in the prior IEPs and provided
S.J. a Free and Appropriate Public Education
(“FAPE”). S.J. also challenges the district court's
order awarding him only partial attorney's fees for the
administrative proceedings. Because S.J. has not
demonstrated that the ALJ or the district court erred
in their findings of fact or their interpretations of the
law, we affirm.FN1
FN1. Because the parties are familiar with
the facts and procedural history, we do not
restate them except as necessary to explain
our disposition.
I
[1] The Individuals with Disabilities Act (“ IDEA”),
20 U.S.C. §§ 1400-1482, assures that all disabled
children receive a FAPE through IEPs. 20 U.S.C. §
1400(d)(1)(A). Under the IDEA, a FAPE is guaranteed, in part, by certain procedural safeguards for
the disabled child and his or her parents. 20 U.S.C. §
1415(a); L.M. v. Capistrano Unified Sch. Dist., 556
F.3d 900, 909 (9th Cir.2009). However, “[
p]rocedural flaws in the IEP process do not always
amount to the denial of a FAPE.” Id. (citing W.G. v.
Bd. of Trs. of Target Range Sch. Dist., No. 23, 960
F.2d 1479, 1484 (9th Cir.1992)). Rather, once a court
finds a procedural violation of the IDEA, it “must
determine whether that violation affected the substantive rights of the parent or child.” FN2 Id.
FN2. In his reply brief, S.J. urges us to consider whether the underlying “basic floor of
opportunity” standard set forth by the Supreme Court in Board of Education v. Rowley, 458 U.S. 176, 200, 102 S.Ct. 3034, 73
L.Ed.2d 690 (1982), was changed by Congress when it adopted the 1997 IDEA. We
decline to consider this legal argument as it
was not raised before the ALJ or the district
court. See Gieg v. DDR, Inc., 407 F.3d 1038,
1046 n. 10 (9th Cir.2005). (“An appellate
court will not consider arguments not first
raised before the district court unless there
are exceptional circumstances.”); see also
Singleton v. Wulff, 428 U.S. 106, 120, 96
S.Ct. 2868, 49 L.Ed.2d 826 (1976) (“It is the
general rule, of course, that a federal appellate court does not consider an issue not
passed upon below.”). Furthermore, we do
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(Not Selected for publication in the Federal Reporter)
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not think that the proposed higher standard
would change our determinations on the issues raised in this appeal.
The appropriateness of a special education placement
under the IDEA is reviewed de novo, and the student
“bear[s] the burden of proving that the state educational agency did not comply with the IDEA.”
Poolaw v. Bishop, 67 F.3d 830, 833 (9th Cir.1995).
We review findings of fact for clear error, and mixed
questions of fact and law de novo, unless the question
is primarily factual. R.B. ex rel. F.B. v. Napa Valley
Unified Sch. Dist., 496 F.3d 932, 937 (9th Cir.2007).
We have noted, however, that “the fact-intensive nature of a special education eligibility determination
coupled with considerations of judicial economy render a more deferential approach*426 appropriate.” Id.
at 937 n. 1 (quoting Hood v. Encinitas Union Sch.
Dist., 486 F.3d 1099, 1104 n. 4 (9th Cir.2007)). In
L.M., we reiterated that a court “shall accord more
deference to an administrative agency findings that it
considers ‘thorough and careful.’ ” L.M., 556 F.3d at
908 (quoting Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 892 (9th Cir.1995)).
II
**2 [2] S.J.'s first substantive argument on appeal is
that the January 2002 IEP did not provide him a
FAPE because the pages that should have included “a
statement of supplementary aids and services and a
statement of program modifications or supports for
school personnel” were left blank. Even assuming
that the District may be held responsible for the blank
pages in the January 2002 IEP despite the failure of
S.J.'s mother to provide input or to object, here there
was no prejudice. S.J.'s prior IEPs prepared by the
District included the requisite statements and S.J.'s
teachers could refer to those statements. Furthermore,
S.J. has not suggested what accommodations or modifications might have been included and the record
fails to show that the lack of specified accommodations or modifications in the January 2002 IEP had
any adverse effect on S.J. Accordingly, we concur in
the ALJ's determination that the January 2002 IEP
provided S.J. a FAPE.
[3] S.J.'s second argument on appeal is that he should
have been reimbursed for his private placement for
the 2002-2003 school year because the District failed
to prepare a timely IEP. S.J. recognizes that he did
not give the District the required ten days notice, but
argues that this does not relieve the District of its
responsibility to prepare an IEP. Accepting that the
parents' failure to give notice may not excuse a
school district's failure to prepare an IEP, we nonetheless find that the record does not support S.J.'s
request for relief. S.J. did not give the District the
requisite notice of his intended private placement, he
did not provide the District with an opportunity to
address his objections to his IEP prior to his private
placement, and he delayed the IEP meeting. For these
reasons, we concur in the ALJ's determination that
S.J. is not entitled to reimbursement for the 20022003 school year.
[4] S.J.'s third assertion is that the provision of the
January 2002 Behavior Plan that allowed the school
to administer his medication violated his rights under
the United States Constitution, the Washington Constitution, and the IDEA. S.J.'s position is not persuasive. There is no evidence that S.J. or his parents
opposed having the District administer his medications. S.J.'s prescription pre-dated the January 2002
Behavior Plan. S.J.'s parents admitted that they were
having difficulty getting him to take the medication,
opined that his failure to take his medication contributed to his explosive behavior, and agreed that the
District should administer the medication. Further,
S.J.'s parents obtained S.J.'s doctor's permission for
the school to administer the medication, and they
facilitated the school's continued administration of
the medication after the doctor adjusted the dosage.
S.J. has not directed us to any then existent applicable federal statute,FN3 nor to any case law that *427
supports his claim of a constitutional violation.FN4
Moreover, the applicable Washington statutes, Washington Revised Codes §§ 28A.210.260 and
28A.210.270, appear to authorize the challenged provision of the 2002 Behavior Plan and grant the District immunity from liability for its good faith enforcement of the provision.
FN3. The federal statute and regulation cited
by S.J., 20 U.S.C. § 1412(a)(25)(A) and 34
C.F.R. § 300.174, did not exist in 2002, thus
giving rise to an inference that there was no
applicable federal restriction. Moreover, the
statute and regulation concern a “prescrip-
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(Not Selected for publication in the Federal Reporter)
(Cite as: 326 Fed.Appx. 423, 2009 WL 1181812 (C.A.9 (Wash.)))
tion for a substance covered by the Controlled Substances Act (21 U.S.C. § 801 et
seq.),” and S.J. has not shown that his prescription was covered by that act.
FN4. The one case cited by S.J., Valerie J.
v. Derry Co-op. Sch. Dist., 771 F.Supp. 483,
490 (D.N.H.1991), is inapposite because,
there, the parents objected to the school administration of medication whereas, here,
the parents agreed that the school should
administer the medication and, in fact, facilitated its administration.
**3 [5] S.J.'s final substantive argument is that the
March IEP meeting did not cure the defect in the prior IEPs. The ALJ found that the prior IEPs were defective because they were developed without input
from the private school S.J. attended, but that participation of personnel from the private school in the
March 2004 IEP meeting cured this defect. S.J. disagrees with the ALJ, arguing that the participation of
personnel from the private school was meaningless
because their participation did not result in any
changes to the District's proposed IEP.
S.J.'s argument is not persuasive because he has not
demonstrated any harm to his or his parents' substantive rights. See L.M., 556 F.3d at 909. First, there is
no indication that the S.J.'s parents did not have as
much input into the IEP as they wanted. Second, the
District was not required to accede to the S.J.'s parents' demands. See Ms. S. ex rel. G. v. Vashon Island
Sch. Dist., 337 F.3d 1115, 1131-32 (9th Cir.2003)
(holding that while a school district must allow for
“meaningful parental participation,” the parent does
not have a veto power over any provision of the IEP).
Third, S.J. has not identified any substantive deficit
in the IEP. S.J. wanted the District to pay for his enrollment in a private school with no non-disabled
peers, but the ALJ determined that this would be contrary to the provision of Washington law requiring
that S.J. be placed in the least restrictive environment. S.J. does not challenge the ALJ's interpretation
of the law or the fact that the private school was a
restrictive educational setting. For these reasons, we
agree with the ALJ that the March 2004 IEP provided
S.J. with a FAPE.
III
[6] S.J. also objects to the district court only awarding him limited attorney's fees. The district court's
attorney's fee award is reviewed for abuse of discretion. Tutor-Saliba Corp. v. City of Hailey, 452 F.3d
1055, 1059 (9th Cir.2006) (citing Richard S. v. Dep't
of Developmental Servs., 317 F.3d 1080, 1085 (9th
Cir.2003)). “Elements of legal analysis and statutory
interpretation that figure into the district court's attorney's fees decision are reviewed de novo,” and
“[f]actual findings supporting the decision are reviewed for clear error.” Id. at 1059-60.
S.J. first argues that the district court erred in concluding that the District's settlement offer was better
than the result of the litigation because the offer was
contingent upon him transitioning to the District's
program. This argument fails because the March
2004 IEP has been found to constitute a FAPE. S.J.
was free to decline his FAPE, but the District cannot
be faulted for offering a settlement that is in accord
with an adequate FAPE.
S.J.'s second argument is that he is a “prevailing party” and entitled to attorney's fees because he did succeed in obtaining*428 an award of attorney's fees for
some of the proceedings before the ALJ. S.J. also
asserts that he is entitled to attorney's fees because he
prevailed on his first appeal to this court in having
the district court's dismissal of his action vacated. It
is true that S.J. prevailed on his prior appeal and succeeded in obtaining an award of attorney's fees for
the proceedings before the ALJ prior to the District's
settlement offer. However, the record also supports
the district court's determination that S.J. did not prevail on any of his substantive claims in this action.
Thus, although the district court might have awarded
additional attorney's fees to S.J., we do not find the
failure to do so to be an abuse of discretion.FN5
FN5. Indeed, S.J.'s failure to prevail on any
of the substantive claims in his action raises
questions as to whether he is really a prevailing party. In Barrios v. California Interscholastic Federation, 277 F.3d 1128, 1134
(9th Cir.2002), we explained:
“[A] plaintiff ‘prevails' when actual relief
© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
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326 Fed.Appx. 423, 2009 WL 1181812 (C.A.9 (Wash.)), 247 Ed. Law Rep. 38
(Not Selected for publication in the Federal Reporter)
(Cite as: 326 Fed.Appx. 423, 2009 WL 1181812 (C.A.9 (Wash.)))
on the merits of his claim materially alters
the legal relationship between the parties
by modifying the defendant's behavior in
a way that directly benefits the plaintiff.”
The [Supreme] Court explained that “a
material alteration of the legal relationship
occurs [when] the plaintiff becomes entitled to enforce a judgment, consent decree, or settlement against the defendant.”
[ Farrar v. Hobby, 506 U.S. 103, 112-13,
113 S.Ct. 566, 121 L.Ed.2d 494 (1992).]
In these situations, the legal relationship is
altered because the plaintiff can force the
defendant to do something he otherwise
would not have to do.
Here, S.J.'s judicial action arguably did
not result in S.J. being able to force the
District to do something it otherwise
would not have done.
**4 The district court's orders denying S.J. relief on
his challenges to the District's IEPs and granting S.J.
only partial attorney's fees are AFFIRMED.
C.A.9 (Wash.),2009.
S.J. ex rel. S.H.J. v. Issaquah School Dist. No. 411
326 Fed.Appx. 423, 2009 WL 1181812 (C.A.9
(Wash.)), 247 Ed. Law Rep. 38
END OF DOCUMENT
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