FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

S. L., by and through her Guardian

Ad Litem, Rita Loof,

Plaintiff-Appellant,

v.

UPLAND UNIFIED SCHOOL DISTRICT;

WEST END SELPA, Local Education

Agencies,

Defendants-Appellees.

No. 12-55715

D.C. No.

2:11-cv-04187-

GAF-PJW

S. L., by and through her Guardian

Ad Litem, Rita Loof,

Plaintiff-Appellant,

v.

UPLAND UNIFIED SCHOOL DISTRICT;

WEST END SELPA, Local Education

Agencies,

Defendants-Appellees.

No. 12-56796

D.C. No.

2:11-cv-04187-

GAF-PJW

OPINION

Appeal from the United States District Court

for the Central District of California

Gary A. Feess, District Judge, Presiding
2 S.L. V. UPLAND UNIFIED SCH. DIST.

Argued and Submitted

December 5, 2013—Pasadena, California

Filed April 2, 2014

Before: Harry Pregerson, Marsha S. Berzon,

and Morgan Christen, Circuit Judges.

Opinion by Judge Christen

SUMMARY*

Individuals with Disabilities Education Act

The panel affirmed in part and reversed in part the district

court’s order upholding the California Office of

Administrative Hearing’s partial denial of reimbursement for

a student’s educational costs under the Individuals with

Disabilities Education Act, and dismissed for lack of

jurisdiction the student’s appeal from the district court’s order

regarding attorneys’ fees.

Reversing in part, the panel held that the student was

entitled to reimbursement for the cost of tuition at a private

school because (1) the defendant school districts denied her

a free appropriate public education when they failed to

comply with a previous settlement agreement’s assessment

requirements, and (2) the private placement was appropriate. 

The panel held that the student also was entitled to

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
S.L. V. UPLAND UNIFIED SCH. DIST. 3

reimbursement for transportation expenses, but the district

court did not err in partially rejecting reimbursement for the

cost of private aides.

The panel dismissed the student’s appeal from the

attorneys’ fees order as untimely because no separate

judgment was required; accordingly, the attorneys’ fees order

triggered the thirty-day period for filing an appeal.

COUNSEL

Tania L. Whiteleather (argued), Law Offices of Tania L.

Whiteleather, Lakewood, California, for Plaintiff-Appellant.

Jack Byron Clarke, Jr., Kira L. Klatchko (argued), Best Best

& Krieger LLP, Indian Wells, California, for DefendantsAppellees.

OPINION

CHRISTEN, Circuit Judge:

In this consolidated appeal, S.L., a minor, by and through

her guardian, challenges the district court’s orders upholding

the California Office of Administrative Hearing’s (“OAH”)

partial denial of reimbursement for educational costs pursuant

to the Individuals with Disabilities Education Act (“IDEA”)

(No. 12-55715), and granting in part and denying in part a

related motion for attorney’s fees (No. 12-56796). We have

jurisdiction under 28 U.S.C. § 1291 in appeal No. 12-55715

and reverse the district court’s decision, in part. We dismiss

appeal No. 12-56796 for lack of jurisdiction.
4 S.L. V. UPLAND UNIFIED SCH. DIST.

I. BACKGROUND

A. Facts

S.L., who has an intellectual disability under federal law,

began attending kindergarten in Upland Unified School

District, a member of the West End Special Education Local

Plan Area (collectively “the districts”), during the 2002/2003

school year. S.L.’s parents were unhappy with the districts’

educational program, withdrew S.L., and placed her in a

private, parochial school called Our Lady of Assumption

(“OLA”). S.L. remained at OLA at least through the end of

fifth grade. While S.L. was at OLA, S.L.’s mother hired two

private, one-on-one aides to assist S.L. with her schoolwork. 

In June 2005, S.L. filed a due process hearing request against

Upland, alleging her right to a free appropriate public

education (“FAPE”) was violated between 2002 and 2006.

On June 21, 2007, S.L.’s mother and Upland settled the

due process dispute for the years 2002 to 2006. As part of the

agreement, Upland agreed to reimburse S.L. $18,000 for

educational expenses, provide S.L. with an intensive reading

program through a private company, and provide speech and

language services. S.L.’s mother agreed to make S.L.

available for assessments at reasonable times and to provide

releases so the districts could gather information about S.L.

and develop a FAPE offer for the 2007/2008 school year.

Meanwhile, in April 2007, the districts sent a proposed

assessment plan to S.L.’s parents to prepare for S.L.’s 2007
S.L. V. UPLAND UNIFIED SCH. DIST. 5

triennial Individual Education Plan (“IEP”)1and to meet the

requirement that a special education student be assessed at

least every three years. The districts estimated that they

would need approximately twelve to fifteen hours with S.L.

to complete the assessment. On June 13, 2007, S.L.’s mother

marked the box “I prefer to meet and discuss the assessment

plan before I give approval,” requested several dates for a

meeting, and returned the proposed plan to the districts.

In the four months following the settlement agreement,

S.L.’s mother, the districts, and their attorneys had a series of

increasingly contentious exchanges regarding: whether the

assessment would take place and, if so, when and how long

it would take; whether the districts would provide the mother

with the manuals for the proposed assessments; and whether

the districts could have an attorney present at an in-person

meeting held to discuss substantive disputes. During this

time, the districts notified S.L.’s mother that, because “it is

clear that you do not intend” to adhere to section A(4) of the

settlement agreement regarding the assessment, they

considered S.L. to have been voluntarily placed in a private

school for the 2007/2008 school year.

B. Procedural History

In December 2007, S.L., by and through her guardian,

filed a second due process complaint against the districts,

alleging that they denied S.L. a FAPE by failing to hold an

IEP meeting at the parents’ request to discuss the proposed

assessment plan and the length of time needed to conduct the

1 An IEP is a written statement for each child with a disability that is

developed, reviewed, and revised in accordance with 20 U.S.C. § 1414(d). 

20 U.S.C. § 1401(14).
6 S.L. V. UPLAND UNIFIED SCH. DIST.

assessment (“Issue One”). The complaint also alleged that

the districts failed to conduct the agreed-upon assessments,

thereby denying S.L. a FAPE (“Issue Two”).2 Following a

three-day hearing, the Administrative Law Judge (“ALJ”)

issued a split decision, determining that the districts “fully

prevailed” on Issue One, and that S.L. “substantially

prevailed” on Issue Two. The ALJ concluded that OLA was

not an appropriate placement for S.L., and “[t]he totality of

the Mother’s conduct, attitude, and interaction with [the

districts] during the time period covered by this case

indicated that it was not her intent to resolve the issue with

[the districts] and ensure that [S.L.] was assessed.”

Weighing the districts’ failure to abide by the settlement

agreement and failure to assess S.L. on the one hand, and the

mother’s failure to place S.L. at an appropriate school and

unreasonable attitude with regard to the duration of the

assessments on the other hand, the ALJ ruled that S.L. was

entitled to “some reimbursement” for costs incurred during

the 2007/2008 school year. The ALJ concluded placement at

OLA was not appropriate for S.L., and did not order the

districts to reimburse S.L. for “any of the tuition or related

costs” of attending school at OLA. But, because S.L. had

“proven that she was receiving educational benefit from her

two instructional aides,” and because the ALJ found that S.L.

needed speech and language therapy, the ALJ ordered

$6,999.25 in reimbursement, which S.L. had “proven by

means of cancelled checks.” The ALJ ruled that S.L. failed

2 OAH initially dismissed the case in May 2008 for lack of jurisdiction,

concluding that the settlement agreement, not the IDEA, controlled S.L.’s

claims. S.L. appealed the dismissal to the district court, which reversed

the OAH’s ruling and remanded the case, ruling that OAH had jurisdiction

to review and enforce the settlement agreement.
S.L. V. UPLAND UNIFIED SCH. DIST. 7

to prove the basis for any other request for reimbursement

and denied all of her other costs.

S.L. appealed the ALJ’s decision regarding partial

reimbursement for the educational costs to the federal district

court, which upheld the ALJ’s decision in its entirety. 

Neither the ALJ nor the district court expressly ruled on

S.L.’s request for reimbursement for transportation expenses.

Following the district court’s decision, and while the

appeal of that decision was pending in this court, S.L. moved

for attorney’s fees and costs, claiming $92,078.35. The

district court issued an order on August 27, 2012, granting

thirty-eight percent of the fee request, or $34,989.77. S.L.

subsequently presented a proposed judgment to the court on

September 19, 2012, which the court signed on September 24,

2012. S.L. filed her notice of appeal on October 2, 2012.

II. DISCUSSION

We review the appropriateness of a special education

placement de novo. C.B. v. Garden Grove Unified Sch. Dist.,

635 F.3d 1155, 1159 n.1 (9th Cir. 2011). In so doing, we

“give weight to the ALJ’s findings.” Id. at 1160. We review

a district court’s factual findings for clear error. Id. at 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 OLA. Applicable law provides that:
8 S.L. V. UPLAND UNIFIED SCH. DIST.

If the parents of a child with a disability . . .

enroll the child in a private . . . school without

the consent of or referral by the public

agency, a court or a hearing officer may

require the agency to reimburse the parents

for the cost of that enrollment if the court or

hearing officer finds that the agency had not

made FAPE available to the child in a timely

manner prior to that enrollment and that the

private placement is appropriate.

34 C.F.R. § 300.148(c); see also 20 U.S.C.

§ 1412(a)(10)(C)(ii). OAH found that the districts denied

S.L. a FAPE for the 2007/2008 school year when they failed

to complywith a previous settlement agreement’s assessment

requirements. The district court affirmed that decision, and

it is not part of this appeal.

The “appropriateness” analysis is more complicated. In

evaluating whether a placement is appropriate:

parents need not show that a private

placement furnishes every special service

necessary to maximize their child’s potential. 

They need only demonstrate that the

placement provides educational instruction

specially designed to meet the unique needs of

a handicapped child, supported by such

services as are necessary to permit the child to

benefit from instruction.

C.B., 635 F.3d at 1159 (emphasis omitted) (quoting Frank G.

v. Bd. of Educ., 459 F.3d 356, 365 (2d Cir. 2006)).
S.L. V. UPLAND UNIFIED SCH. DIST. 9

The districts argue that, although S.L. received

educational benefit from her private aides, OLA did not

provide S.L. with a sufficiently individualized educational

benefit. But OLA did provide S.L. with instructional

materials and curriculum, structure, support, and

socialization. It also gave S.L. an accommodations plan

under section 504 of the Rehabilitation Act, which provided

her with extra study time and testing accommodations, and it

allowed her 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 absent for medical appointments

and other health reasons.3 OLA followed the state-approved

curriculum, and both private aides indicated that they

followed that curriculum as presented by the classroom

teacher when working with S.L. The aides furnished

significant additional one-on-one assistance to S.L., but S.L.’s

classroom teacher provided the testing materials and graded

S.L.’s tests, which were the same tests given 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 year

progressed, and there was evidence that S.L., with the

assistance of aides, received good grades and was promoted

to fifth grade. So, while S.L.’s private aides played a major

role in S.L.’s education, they did so in the broader context of

a supportive school environment, using OLA’s educational

materials. S.L. benefitted from the instruction she received

at OLA.

3 The accommodation of S.L.’s two private instructional aides was

particularly important, given that the districts have never indicated that

they would have accepted the privately-funded aides in a public school

setting.
10 S.L. V. UPLAND UNIFIED SCH. DIST.

Additionally, while the placement at OLA was less than

perfect, we are mindful that the OAH found the districts

denied S.L. a FAPE by failing to complete the agreed-upon

assessments that were intended to ensure an appropriate

placement for the 2007/2008 school year. The placement

chosen by the mother, under these circumstances, was not

unreasonable or inappropriate. As such, S.L. should be

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

2. Reimbursement for Transportation Expenses

Because we find, under the circumstances of this case,

that OLA was an appropriate placement, S.L. is also entitled

to transportation reimbursement in the amount of $2,693.21,

a sum based on “the total mileage driven from [S.L.’s] home

to OLA and the IRS mileage rate.” The “language and spirit

of the IDEA encompass reimbursement for reasonable

transportation . . . expenses . . . as [a] related service[].” 

Union Sch. Dist. v. Smith, 15 F.3d 1519, 1528 (9th Cir. 1994). 

The best evidence available establishes that transportation to

and from OLA was “required to assist” S.L. “to benefit from

special education,” 20 U.S.C. § 1401(26)(A), particularly

because there was no clear indication that the privatelyfunded aides would have been accommodated in the public

school.

3. Reimbursement for Private Aides

The district court did not err in partially rejecting

reimbursement for the cost of the private aides. The court

found that “there is insufficient evidence on the record” to

prove S.L.’s claim that $14,490 in fees “were incurred,” but

ordered reimbursement for $6,999.25, an amount proven by

cancelled checks. S.L. argues that the trier of fact can weigh
S.L. V. UPLAND UNIFIED SCH. DIST. 11

testimony about pay rates and hours worked. That is what

the district court did in finding that S.L.’s estimate for

additional compensation was “insufficiently proven because

it relies on the witness’ bare estimations without supporting

documentation or even a statement that the aides were

actually present on every one of those days of this school year

for the full six hours.” The ALJ also found that the mother’s

testimony “was not helpful in determining the amount of

reimbursement” because “there was contradictory testimony

as to exactly how long each of the aides was at school each

day,” that S.L. “had excessive absences from school due to

health-related issues,” and that S.L. arrived late and left early

on many occasions. The ALJ also found that there was “no

testimony provided as to what portion of the 1099” federal

tax forms the parents provided for the aides “should be

apportioned” to the 2007/2008 school year.

The districts argue that an equitable reduction in

reimbursement on the basis of the mother’s conduct was

appropriate, but we need not consider this argument because

the district court did not reduce the reimbursement amount on

that basis. The district court did not mention the mother’s

behavior or an equitable reduction of reimbursement in its

order.

B. Appeal No. 12-56796 (Attorney’s Fees)

S.L.’s appeal from the order awarding attorney’s fees is

dismissed as untimely. “In a civil case, . . . the notice of

appeal . . . must be filed with the district clerk within 30 days

after the entry of judgment or order appealed from.” Fed. R.

App. P. 4(a)(1)(A). “A judgment or order is entered for

purposes of this Rule 4(a) if Federal Rule of Civil Procedure

58(a) does not require a separate document, when the
12 S.L. V. UPLAND UNIFIED SCH. DIST.

judgment or order is entered in the civil docket under Federal

Rule of Civil Procedure 79(a).”4 Fed. R. App. P.

4(a)(7)(A)(i). Pursuant to Federal Rule of Civil Procedure

58(a)(3), “a separate document is not required for an order

disposing of a motion for attorney’s fees under [Federal Rule

of Civil Procedure] 54.”

The district court issued a written order regarding

plaintiff’s motion for attorney’s fees on August 27, 2012. 

S.L. filed her notice of appeal thirty-six days later.

S.L. argues that Federal Rule of Civil Procedure 58(d)

permits a party to seek entry of judgment in a separate

document, and S.L.’s lodging of a proposed judgment on

September 19, 2012 constituted such a request. 

Consequently, S.L. argues that the district court’s issuance of

the September 25, 2012 judgment “was the final judgment

that triggered the timeline” to file the notice of appeal. This

argument fails for two reasons.

First, because “a separate document is not required for an

order disposing of a motion for attorney’s fees under [Federal

Rule of Civil Procedure] 54,” Fed. R. Civ. P. 58(a)(3), the

order entered on August 27, 2012 triggered the thirty-day

period for filing an appeal. See Menken v. Emm, 503 F.3d

1050, 1055–56 (9th Cir. 2007) (discussing entry of judgments

and orders); Perez v. AC Roosevelt Food Corp., 2013 WL

6439381, at *2 (2d Cir. Dec. 10, 2013) (separate document

not required for order disposing of motion for attorney’s fees

under Rule 54); Feldman v. Olin Corp., 673 F.3d 515, 516–17

(7th Cir. 2012) (same). S.L’s guardian did not appeal during

the 30-day period.

 

4

 The order on appeal was entered pursuant to Rule 79(a).
S.L. V. UPLAND UNIFIED SCH. DIST. 13

Second, “if, after filing a final disposition, a court files a

more formal judgment, the latter does not constitute a second

final disposition or extend the appeal period.” In re Slimick,

928 F.2d 304, 307 (9th Cir. 1990). Slimick also noted, “[a]

disposition is final if it contains a complete act of

adjudication, that is, a full adjudication of the issues at bar,

and clearly evidences the judge’s intention that it be the

court’s final act in the matter.” Id. (emphasis and internal

quotation marks omitted). The district court’s August 27,

2012 order fits that description.

For these reasons, we lack jurisdiction to hear the

untimely appeal of the district court’s order on fees.

III. CONCLUSION

Appeal No. 12-55715 is AFFIRMED IN PART and

REVERSED IN PART. Appeal No. 12-56796 is

DISMISSED. Each party shall bear its costs on appeal.