F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

S. L ., by and throug h her Guardian Ad L item, Rita L o of,

Plaintiff-Appellant ,

v
. U P L A N D U N I F I E D S C H O O L D I S T R I C T ; W E S T E N D S E L P A , L ocal Education Ag encies, Defendants-Appellees

. N o. 12-55715
D.C. No. 2:11-cv-04187- GAF -PJ W

S. L ., by and throug h her Guardian Ad L item, Rita L o of,

Plaintiff-Appellant ,

v
. U P L A N D U N I F I E D S C H O O L D I S T R I C T ; W E S T E N D S E L P A , L ocal Education Ag encies, Defendants-Appellees

. N o. 12-56796
D.C. No. 2:11-cv-04187- GAF -PJ W

OPI NI ON

A ppeal from the United States District Court for the Central District of California G ary A. F eess, District J udg e, PresidingS.L

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. 2 Arg ued and Submitted December 5, 2013—Pasadena, California

F iled April 2, 2014

B efore: Harry

Preg erson, Marsha S. B erz on, and Morg an Christen, Circuit J udg es. Opinion by J udg e Christen

SUMMARY *

Individuals w ith Disabilities Education Act
The panel affirmed in part and reversed in part the district
c o u r t ’ s o r d e r u phol d i n g t h e C a l i f o r n i a Of

f i c e o f Administrative Hearing ’s partial denial o f reimbursement for
a s tudent’s educational costs under the I n dividuals with Disabilities E ducation Act, and di s m i ssed for lack o f jurisdiction the student’s appeal f rom the district court’s order reg arding attorney s’ fees. Reversing in part, the panel held that the student was entitled to rei m b u rs ement for the cost of tuition at a private school because (1) the d e f e ndant school districts d e nied her
a free appropriate public education when they f a i l ed to comply with a previous settl e m ent ag reement’s a ssessment requirements, and ( 2) the private placement was appropriate. Th e p a n e l held that the student a lso was e ntitled to

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.S.L

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reimbursement for transportation ex penses, but the district court did not err in partially rejecting reimbursement for the cost of private aides.
The panel d i s m i ssed the student’s appeal from the attorney s’ fees order as u ntimely because n o separate judg ment was r equired; according ly , the attorney s’ fees order trig g ered the thirty -day

period for filing an appeal.

COUNSEL
Tania L

. W hiteleath e r ( a r g u ed), L aw Offices of Tania L

. W h iteleather, L akewood, California, f o r Plaintiff-Appellant.

J ack B y ron Clarke, J r., Kira L

. Klatchko (arg ued), B e st B e st & Krieg er L L P, I n dian W ells, California, f or DefendantsAppellees.

OP INION
CHRI STEN, Circuit J udg e:
I n this consolidated appeal, S.L

. , a minor, by and throug h her g uardian, challeng es the d istrict court’s orders upholding the California Office of Administrative Hearing ’s ( “OAH”) p a r tial denial of reimbursement for educational costs pursu a n t to the I ndividuals with Disabilities Education Act (“I DEA”) (No. 12-55715), and g ranting in p art and de n y ing in part a related motion for attorney ’s fees (No. 12-56796). W e have jurisdiction u nder 28 U.S.C. § 1291 in appeal No. 1 2-55715 and reverse the district court’s decision, in part. W e dismiss appeal No. 12-56796 for lack of jurisdiction.S.L

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I. BACK G ROUND
A. F acts
S.L ., who has an intellectual disability under federal law, beg an a ttending kinderg arten in Upland Unif i e d School District, a member o f the W est End Special Education L ocal Plan Area (collectively “the districts”), d uring the 2002/2003
sc h o ol y ear. S.L .’s parents were unhappy with the districts’
e d u cational prog ram, withdrew S.L ., and p laced her i n a pr i v a t e, parochial school called Our L ady of Assumption (“OLA”). S.L

. remained at OL A at least through t h e end o f fifth g rade. W hile S.L

. was a t O L A , S.L .’s mother hired two private, one-on-one a ides to assist S.L

. w ith her schoolwork. I n J u ne 2005, S.L

. filed a due process hearing request ag ainst Upland, alleg ing her r ig ht t o a f ree appropriate public education (“F A PE”) was violated between 2002 and 2006.
On J une 21, 2007, S.L

. ’s mother a nd Upland sett led the due process dispute for the y ears 2002 to 2006. As part of the ag reeme n t , Upland a g reed to reimburse S.L

. $18,000 for educational e x penses, provide S.L

. with an intensive r eading prog r am throug h a private c o mpany , and provide speech a nd lang uag e services. S.L .’s mother ag reed to ma k e S .L

. available for assessments at reasonable times and to provide relea s e s so the districts c ould g ather information about S.L

. and develop a F A PE offer for the 2007/2008 school y ear. Meanwhile, in April 2007, the distric t s sent a proposed assessment plan to S.L .’s parents to p r epare for S.L .’s 2007S.L

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triennial I ndividual Education Plan (“I EP”) 1 and to meet the requirement that a special educati o n student be assessed at least every three y ears. The d i s t r i c ts estimated that they would need approx imately twelve to fifteen hours with S .L

. to complete the assessment. On J une 13, 2007, S.L .’s mother marked the b ox “I prefer to meet and discuss the assessment plan before I g ive approval,” requested several dates f or a meeting , and returned the proposed plan to the districts.

I n the four months following the settl e ment ag r eement, S.L .’s mother, the d istricts, a nd their attorney s had a series o f increasing ly contentious ex c han ge s reg arding : whether the assessment would take place and, i f s o , when and how long it would take; whether the districts would provide the mother with the manuals for the proposed assessments; and whether th e d i stricts could h ave an attorney present at an in-person meeting held to discuss substantive dispu t e s

. During this time, the districts notified S.L .’s mother that, because “it is clear that y ou do not intend” to adhere to section A(4) of the settlement ag reement reg arding the assessment, they considered S.L

. to have been voluntar i ly placed in a private school for the 2007/2008 school y ear.
B. P rocedural History

I n December 2007, S.L ., by a nd throu gh h e r g uardian, filed a second due p rocess c o mplaint a g ainst the districts, alleg ing that t h e y d enied S.L

. a F APE by failing to hold an I EP meeting a t the parents’ request to discuss the proposed assessment plan and the leng th of time needed to conduct the

1 A n IEP i s a w r i t t e n s t a t e m e n t f o r each ch ild w i th a d isab i l ity th at is d ev elo ped , rev iew ed , an d rev ised in acco rd an ce w ith 2 0 U.S.C. § 1 4 1 4 (d ). 2 0 U.S.C. § 1 4 0 1 (1 4 ).S.L

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a s s e s s ment (“I ssue One”). The complaint also alleg ed tha t the district s failed to conduct the a g reed-upon a ssessments, t h ereby deny ing S.L

. a F APE (“I ssue Two”). 2 F ollowin g a three-day h earing , the A dministrative L aw J udg e (“AL J ”) iss u ed a split decision, determining that the districts “fully prevailed” on I ssue One, and that S.L

. “sub s tantially prevailed” on I ssue Two. The AL J concluded that OL A was not an ap p r o p riate placement for S.L ., a nd “[ t] he totality o f the Mother’s conduct, attitu d e , a nd interaction with [ the districts] d

uring the time period cove r ed by this case indicated t h a t it was not her intent to resolve the issue with [ the districts] and ensure that [ S.L .] was assessed.”

W e ig h ing the districts’ failure to abide by the settlement ag reement and failure to assess S.L

. on the one hand, and the mother’s failure to place S.L

. at a n appropriate sc hool a

nd unreasonable attitude with reg ard t o the duration of the assessments on the other hand, the AL J r u l ed that S.L

. was entitled to “some reimbursement” for co s t s i ncurred during the 2007/2008 school y ear. The A L J concluded placement at OL A w as n ot appropriate for S.L ., and did not order t he districts to reimburse S.L

. for “any o f t h e tuition or r elated costs” of a ttending school at O L A

. B ut, b e c a u s e S.L

. h ad “proven that she was receiv i n g e ducational benefit from her two instructional aides,” and because the AL J found that S.L

. needed speech and lang u ag e therapy , the AL J ordered $6,999.25 in r eimbur s e m ent, which S.L

. had “proven b y means of cancel l e d checks.” The AL J ruled that S.L

. failed

2 O A H in itially d ism issed th e case in May 2 00 8 f o r lack o f j u risd ictio n , co n clu d i n g th at th e settlem en t ag reem en t, n o t th e IDEA , co n tro lled S.L .’ s claim s. S

. L. a p p ealed th e d ism issal to th e d istrict co u rt, w h ich rev ersed th e OA H’ s ru lin g an d rem an d ed th e case, ru l in g th at OA H h ad j u risd ictio n to rev iew an d en f o rce th e settlem en t ag reem en t.S.L

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t o prove the basis for any other request for reimbursemen t and denied all of her other costs.
S.L

. appeale d the AL J ’s decision reg arding partial reimbursement for the e ducational costs to the federal district court, which upheld the AL J ’s decision in its entirety

. Neither the AL J n or the di s t rict court ex pressly ruled on S.L .’s request for reimbursement for transportation ex penses.
F ollowing the district court’s decisio n , and while the appeal of that decision was pending in this court, S.L

. moved for attorney ’s fee s a nd costs, claiming $92,078.35. The d i s t r i ct court issued an order o n Aug ust 27, 2012, g ranting thirty -eig ht percent of the f ee request, o r $34,989.77. S.L

. subsequently p resented a proposed judg ment to the court on September 1 9, 2012, which the court sig ned o n September 24, 2012. S.L . filed her notice of appeal on October 2, 2012.

II. DISCUSSION

W e review the appropriateness of a s p e cial education placement de novo. C.B. v. Garden Grove Unified Sch. Dist. , 635 F .3d 1155, 1159 n.1 (9th Cir. 2011). I n so doing , we “g ive weig ht to the AL J ’s finding s.” Id. at 1160. W e r eview
a district c o u r t ’ s f

a ctual finding s for clear error. Id. a t 1159 n.1.
A. Appeal No. 12-55715 (Merits)
1. Appropriateness of Placement at OLA
The first issue we must address is the appropriateness of S.L .’s placement at OL

A. Applicable law provides that:S.L

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I f the parents of a c hild with a disabili t y
. . . enroll the child in a private

. . . school without the consent of or referral b y t h e public ag ency , a court or a h e a r ing officer may r e q uire the ag ency to reimburse the parent s for the cost of that enr o l lment if the court o r he ar i n g officer finds that the ag e ncy had not made F APE available to the child in a timely
manner prior to t h a t e nrollment and that the private placement is appropriate.
3 4 C

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. R

. § 3 0 0

. 1 4 8 ( c ) ; s e e a l s o 2 0 U

. S

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. § 1412(a)(10)(C)(ii). OAH found that the dis t ricts denied S.L

. a F APE for the 2007/2008 school y ear when they failed to c o mply with a previous settlement ag reement’s a ssessment requirements. T h e district court affirmed that decision, a nd it is not part of this appeal.
The “appropriateness” analy sis is more complicated. I n evaluating whether a placement is appropriate:
parents need not show that a pri v a t e placement furnishes every spe c i al service necessary to max imiz e their child’s potential. They need only demonstrate that the placement provides educa t ional instruction specially desig ned to meet the unique needs o f
a h andicapped child, sup p o rted by such services a s are n ecessary to permit the child to benefit from instruction.
C.B. , 6 35 F

. 3d at 1159 ( emphasis omitted) (quoting Frank G

. v. Bd. of Educ. , 459 F .3d 356, 365 (2d Cir. 2006)).S.L

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The districts argu e that, althoug h S.L

. received educational benefit from her private aides, OL A did not provide S.L

. with a sufficientl y individualiz ed educational benefit. B ut OL A did pro v i de S.L

. with instructional
m a t e r i a l s a n d c u r r i c u l u m , s t r u c t u r e , s u p p o r t , a n d
s ocializ ation. I t also g ave S.L

. an accommodations plan under section 504 of the Rehabilitation Act, which provided her with ex tra study time and testing accommodations, and it allowed h er to have a one-on-one aide in class, to be tardy to school and leave school early in order to receive special education services, and to be a bsent for medical appointments and other health reasons. 3 OL A followed the state-approved curriculum, and both private aides indicated that they followed tha t c urriculum as presented by the classroom teacher when working wi t h S.L

. The aides furnished
s i g n i f i c a n t additional one-on-one assistance to S.L ., but S.L

. ’ s classroom teacher provided the testing materials a nd g raded S.L .’s tests, w hich were the same tests g iven to the rest of the class. S.L .’s classroom teacher also testified that S.L

. became
more socially involved with other students as the school y e ar prog r es s ed , a

nd there w as e vidence that S.L ., with the assistance of aides, r eceived g ood gr a des and was p romoted to fifth g rade. So, while S

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. ’ s private aides play ed a major role in S.L .’s education, they did so in the broader contex t o f
a supportive school environment, using OL A’s educational mater i al s

. S.L

. benefitted from the instruction she received at OL A.

3 T h e acco m

m o d atio n o f S.L .’ s tw o p riv ate in stru ctio n al aid es w as p articu l arly im

po rtan t, g i v en th at th e districts h av e n ev er in d icated th at th ey w o u ld h av e a c c e p t ed t h e priv ately

- f

u n d ed aid es in a p u

b lic sch oo l settin g

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. 10 Additionally , while the placement a t OL A was less than perfect, we are mindful that the OAH found t h e d i s tricts denied S.L

. a F APE by failing to complete the ag reed-upon assessments that were intended to e nsure an appropriate placement f

or the 2007/2008 school y ear. The placement
c h osen by the mother, under these circumstances, was not unreasonable or inappropriate. A s su c h , S.L

. should be reimbursed for the cost of tuition, $4,010.00.

2. Reimbursement for Transportation Expenses

Be c a u se we find, under the circumstances o f this cas e, that OL A w as an appropriate placement, S.L

. is also entitled to transportation reimbursement in the amount of $2,693.21,
a sum b ased on “the total mileag e driven from [ S.L .’s] home to OL A and the I RS mileag e rate.” The “lang uag e and spirit of the I DEA encompass r eimbursement for reasonable transporta t i o n

. . . ex p enses

. . . as [ a ] related service[ ]

. ” Union Sch. Dist. v. Smith , 15 F .3d 1 519, 1528 (9th Cir. 1994). The best evidence available establishes that transportation to and from OL A was “required to assist” S.L

. “to b e nefit from special e ducation,” 20 U.S.C. § 1401(26)( A ), p a rticularly because there was no c lear indication that t h e privately

funded aides w o u l d have been a ccommodated in the public school.
3. Reimbursement for Private Aides
The d istrict court d id not err in part i ally rejecting reimbursement for the cost of the private aides. The court found that “there is insufficient evidence on t h e record” to prove S.L .’s c laim that $ 1 4,490 in fees “w ere incurred,” but ordered reimbursement for $ 6 , 9 9 9.25, an amount proven b y cancelled checks. S.L

. arg ues that the trier o f fact can weig hS.L

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. 11 testimony about pay r a tes and hours worked. T hat is what t h e district court did in finding that S.L .’s estimate f o r additional compensation was “insufficiently proven because it relies on the witness’ b are estima t i o n s without supporting documentation or even a statement t h a t the aides were actually present on every one of those d ay s of this school y e ar for the full six hours.” The AL J also found that the mother’s testimony “was not helpful in determining t h e amount o f reimbursement” because “there was contradictory testimony
as to e x ac t l y h ow long each of the aides was a t school e ach day ,” that S.L

. “had e x cessive absences from sc h o ol due to health-related issues,” and that S.L

. arrived late and left e arly
on many o ccasions. T h e AL J also f ound that there was “ no testimony provided a s to w hat p ortion of the 1 0 9 9” federal tax f orms the parents p r o v i d e d for the aides “should be apportioned” to the 2007/2008 school y ear.
The districts arg ue th a t an equitable reduction in reimbursement on the basis of the mother’s cond u c t was appropriate, but we need not consider this arg ument because the d istrict court did not reduce the reimbursement amount on that b asis. The district court d i d n o t mention the mother’s behavior or an equitable reduction o f reimbursement in its order.

B. Appeal No. 12-56796 (Attorney’s F ees)
S.L .’s app e al from the order awarding attorney ’s fees is dismissed as untimely

. “I n a civil case,

. . . t h e n otice o f appeal

. . . must be f

iled with the district clerk within 30 day s after the entry of judg ment or o rder appealed from.” F ed. R. App. P. 4(a)(1)(A). “ A judg ment or order is entered for purposes of this Rule 4(a) if F ederal Rule of Civil Procedure 58(a) does not requi re a separate document, when theS.L

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. 12 judg ment or order is entered in the civil d ocket under F ederal Rule o f C ivil Procedure 7 9(a).” 4 F ed. R. App. P. 4(a)(7)(A)(i). Pursuant to F ederal Rule of Civil Procedure 58(a)(3), “a separate docume n t i s not r equired for a n order disposing of a motion for attorney ’s fees under [ F ederal Rule of Civil Procedure] 54.”
The district c o urt issued a writt e n order reg arding plaintiff’s motion for attorney ’s f ees on Aug ust 27, 2012. S.L . filed her notice of appeal thirty

- six day s later.
S

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. arg ues that F ederal Rule of Civil Procedure 58( d ) permits a pa r t y t o s eek entry of judg ment in a separate document, an d S

. L .’s lodg ing of a p roposed judg ment on S ep t em b e r 1 9 , 2 0 1 2 c o n s t i t u t e d s u c h a r e q u e s t

. Consequently , S.L

. arg ues that the district court’s issuance o f the September 25, 2012 judg ment “ w a s the final judg ment that trig g ered the timeline” to file the notice of appeal. This arg ument fails for two reasons.

F irst, because “a separate document is not required for an order disposing of a motion for attorney ’s fees under [F ederal Rule o f Civil Procedure] 54,” F ed. R. Civ. P. 58(a)(3), the order entered on Aug ust 27, 2012 trig g ered t h e thirty -day period for filing an a

ppeal. See Menken v. Emm , 503 F .3d 1050, 1055–56 (9th Cir. 2007) (discussing entry of judg ments a n d orders); Perez v. AC Roosevelt Food Corp. , 20 1 3 W L 6439381, at *2 (2d Cir. D ec. 10, 2 013) (separat e document not required for order disposing of motion for attorney ’s fees under Rule 5 4); Feldman v. Olin Corp. , 673 F

. 3 d 515, 516–17 (7th Cir. 2012) (same). S.L ’s g uardian did not appeal during the 30-day

period.

4 T h e o rd er o n

ap p eal w as en t ered p u

rsu an t to Ru le 7 9 (a).S.L

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. 13 Second, “if, after filing

a final disposition, a court files a more formal judg ment, the latter does n ot constitute a second final disposition or ex tend the a p peal period.” In re Slimick , 92 8 F. 2 d 304, 307 (9th Cir. 1990). Slimick also noted, “[ a] disposition is final if it contain s a complete a ct o f
a d j udication, that is, a full adjudication of the issues at bar, and c learly evidences the judg e’s intention that it b e t he court’s f i n a l a c t in the matter.” I d. (emphasis a

nd internal quotation marks omitted). The district court’s A u gust 27, 2012 order fits that description.

F or these reasons, we lack jurisdi c tion to hear the untimely appeal of the district court’s order on fees.

III. CONCLUSION Appe al No. 12-55715 is AF F IRMED IN P ART a nd REVERSED IN P AR T

. Appeal No. 12-56796 is DISMISSED

. Each party shall bear its costs on appeal.