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

M E R I D I A N J O I N T S C H O O L D I S T R

I C T N O

. 2
, Plaintiff-Appellant
,

v

. D. A., mother of minor, M.A. and J

. A., father of minor, M.A.,

Defendants-Appellees

. N o. 13-35329

D.C. No. 1:11-cv-00320- CW D

M E R I D I A N J O I N T S C H O O L D I S T R

I C T N O

. 2
, Plaintiff-Appellant
,

v

. D. A., mother of minor, M.A. and J

. A., father of minor, M.A.,

Defendants-Appellees

. N o. 13-36200

D.C. No. 1:11-cv-00320- CW D

OPI NI ON

A ppeal from the United States District Court

f or the District of I daho Candy W . Dale, Chief Mag istrate J udg e, Presiding

Arg ued and Submitted April 8, 2015—Seattle, W ashing tonM E R I D I A N J O I N T S C H

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. D.A. 2

F iled J uly 6, 2015

B efore: F erdinand F . F ernandez , Michael Daly Hawkins, and Consuelo M. Callahan, Circuit J udg es.
Opinion by

J udg e Callahan

SUMMARY *

Individuals w ith Disabilities Education Act

The panel affirmed in part and reversed in part the district court’s judg ment and vacated an injunction in an action under the I ndividuals with Disabilities Education Act.

The parties disag r eed as to whether a student was entitled
to special education services under the I DEA. Affirming in part, the panel held that the district court did not e r r i n affirming a hearing s officer’s determination that the s tudent

was ent i t l ed to an I ndependent E ducational Evaluation at public ex pense.
Reversing in p art, the panel held that althoug h the student’s parents’ request f or attorney s’ fees was timely a nd they were prevailing parties, the y were not elig ible 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 .” Ag reeing with the Eleventh Circuit, and disag reeing with the Six th a nd Seventh Circuits, the panel concluded that f o r purposes o f

* 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.M E R I D I A N J O I N T S C H

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. D.A. 3

choosing the most relevant state statute of limitations, a request for attorney ’s fees is more analog ous to an independent c laim than a n ancillary p roceeding

. A g reeing with the F ifth Circuit, the panel held that the parents were not parents of a child with a disa b i l i ty for purposes of an award of attorney s’ fees under § 1415(i)(3)(B ) because the i r child had not been determined to need special education services.

The panel vacated the d istrict c o u rt’s “ stay -put” injunction ag ainst the student’s g raduation from hig h school.

COUNSEL

Elaine F

. Eberharter-Maki (arg ued) and Me r r i t t L

. Dublin, Ebertharter-Maki & Tappen, P.A., B o ise, I daho, for PlaintiffAppellant.

F rank Z

. L a F org e ( a

rg u ed), H olland & Hart L L P, Reno, Nevada, for Defendants-Appellees.

OP INION

CAL L A HAN, Circuit J udg e:

M.A. or Matthew has Asperg er’s Sy ndrome, a hig h functioning form of autism. 1 F or many y ears, his parents a nd the Meridian School District (MSD) have disag reed as to whether Matthew w as entitled to special edu cation services under the I ndividuals with Disabilities Educat i o n A c t ( I D E A ),

1 Matth ew is n o w an ad

u lt, b u t d u rin g m o st o f th e u n d erly in g leg al
p ro ceed in g s h e w as a m in o r an d w as ref erred to as M.A

.M E R I D I A N J O I N T S C H

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. D.A. 4

20 U.S.C. § 1 400. The appeals b efore us were filed b y MSD and challeng e the dis t r i c t court’s (1) determination that Matthew was entitled t o t he preparation of an I ndependent Educational Evaluation (I EE) at p ublic ex pense; ( 2) a ward o f attorney s’ f

ees to Matthew’s parents; and (3) injunction
ag ainst Matthew’s g raduat i o n from hig h school. W e affirm in part and r everse in part. W e find n o error i n the district court’s a ffirmance of the hearing officer’s determination that Matthew was entitled to an I EE at p ublic ex p e nse. However,

we c onclude that althoug h the parents’ request for attorney s’ fees was timely
, and that they are “prevailing pa rties,” they

are not e lig ible for an a ward of attorney s’ f

ees und e r 20 U.S.C. § 1415(i)(3)(B ). F inally
, w e vacate the injunction
ag ainst Matthew’s g raduation.

I

Matthew was born in 1994. I n 2004, h e m o v e d from California to I daho. Matthew had r eceived special education in California, and hi s parents provided MSD “with information r elated to M.A.’s previous d iag noses o f

ex p ressive-receptive lang u ag e disorder, central auditory processing disorder, p ossib i l i ty o f dy slex ia and dy sg raphia, and possibility of Asperg er’s diso r d er.” Matthew received special education u nder the I DEA from fifth gr ad e throug h eig hth g rade. I n April 2008, whi l e M a t thew was in eig hth
g rade, Matthew’s I ndividualiz ed Education Prog r am (I EP)
team determined, following a three-y ear reevaluation o f Matthew, that he no long er needed special education services. His parents (sometimes referred to as the Parents) disag reed with this decision and, at their own ex pense, obta i n ed an evaluation from Dr. Timothy L e a vell, w ho diag n osed Matthew with Asperg er’s disorder. The Parents asked MSD
to conduct an evalua t i o n of Matthew and reassess hisM E R I D I A N J O I N T S C H

. D I S T

. N O

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. D.A. 5

elig ibility for special education. M S D
, h owever, concluded that, rather than an I EP under the I DE A
, Matthew would receive various accommodations starting in ninth g rade under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.

Matthew’s freshman y ear w a s spent at Centennial Hig h School until April 2009 w hen Matthew set a fire in a room in the family home, was arrested, and placed in the Ada County J uvenile Detention Center (ACJ DC). W hile Matthew was in the ACJ DC, h is parents requested that t h e B oise School Di s t r ict (B SD), which had responsibility for the ACJ DC, evaluate Matthew’s e lig ibility for special education services. On F e b ruary 18, 2 010, B SD issued an elig ibility report finding stro n g indications of Asperg e r’s Sy ndrome, but concluding that Mat thew was not elig ible for special education services b ecause “at this time, there is no evidence of the adverse effect of [ h is] disabiliti e s o n his current educational performance.” However, the report noted that the evaluation was limited by the f act that the assessments were conducted while Matthew was confined. The report stated:

I n the event [ Matthe w ] is released from the ACJ DC a nd placed a t another facility
, o r returns home to the Meridian School District, [ Matthew’s parents] may w ish to req uest an

e v a l u a t i o n t o d e t e r m i n e w h e t h e r h i s disabilities adversely affect h is educational performance, and whet h e r he needs specially desig ne d instruction in order to access a nd
prog r ess in the g eneral education curriculum.

Matthew was released from the A CJ DC in September 2010, and r eturned to Centennial Hig h School, several weeks after the school y e ar had st a rted. Three day s before heM E R I D I A N J O I N T S C H

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returned to the hig h school, his parent s delivered a letter to MSD requesting a comprehensive I EP for Matthew. MSD

c o n sidered the request, d rafted a new Section 504 plan f o r Matthew, and on Septem b e r 27, 2010, denied the Parents’

r equests for additional assessments. MSD stated that it w a s relying on the F ebruary 2010 rep o r t p r epared by B SD a nd that the I DEA provides that r eevaluation may not occur more than once a y

ear.

Matthew’s mother indicated that she disag reed w ith MSD and soug ht a team meeting

. Me e ting s were held in October and November, and on N ovember 22, 2010
, but MSD declined to perform a n additional a ssessment of Matthew. MSD’s not i ce discussed Matthew’s Section 504 plan a nd concluded that Matthew d i d “not need specially desig n ed instruction at this time and t h erefore does not qualify f or an I EP.”

I n J anuary 2011, Matthe w ’ s mother sent MSD a letter disag reeing with its conclusion a nd req u e sting an I EE. She asserted that the prior evaluations “wer e conducted in an

ex tremely structured a

nd reg imented environment, the evaluations are n ot comprehensive, and do n ot adequately assess [ Matthew’s] unique needs.”

MSD denied the request for a n I E E a nd pro-actively filed for a d ue process h e a

ring pursu an t to 20 U.S.C. § 1415 a nd 34 C. F

. R. § 3 0 0

. 5 0 2 ( b)(2)(i), seeking confirmation of its decision from a hearing

officer. The matter was assig ned to Special Education Hearing Officer Guy Price (HO Price), who conducted three weeks of h earing s on two issues: (1) “[ i] s the Student enti t l ed to an I ndependent Educational Ev a l u a t ion, as requested by his attorney on J anuary 17, 2011”; and (2) “ [d] oes the Student qualify for specialM E R I D I A N J O I N T S C H

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education p u rsuant t o t h e elig ibility criteria set forth in the I DEA and the I daho Special Education Manual.”

I n a J une 6
, 2011 decision, H O Price found that MSD h ad fai l e d t o conduct an appropriate evaluation, held that Matthew was entitled to an I EE at p ublic ex p ense, a nd declined to rule on w hether he qualified for special education services, stating that such a determination wo u ld be premature prior to the completion of an a pprop r i ate evaluation. 2

I n J u ly 2011, MSD filed a n action in the District Court o f I daho seeking judicial review o f HO Price’s decision. On May 23, 2012, the district court issued an order g ranting the Parents’ motion to enjoin M a t t h ew’s g raduation from hig h school. I n March 2013, the district court i s s u e d an order affirming HO Price’s decision and dismissing MSD’s appeal. On April 17, 2013, MSD filed a timely no t i ce of appeal (Appeal No. 13-35329). Thereafter, the distric t c o u rt conducted further proceeding s on the Pa r e n t s’ r e quest for attorney s’ f

ees. On October 16, 2013, t h e d i s trict court entered an order g r anting the Par e n t s a ttorney s’ fees. The final judg ment was entered on N ovember 25, 2013, and MSD filed a timely notice o f a ppeal from the award o f attorney s’ fees on December 20, 2013 (Appeal No. 13-36200).

Meanwhile, pursuant to HO Price’s directive, an I EE was pr e pared for Matthew and submitted to MSD in September 2011. MSD proceeded to evalu ate Matthew’s elig ibility for special e ducation services under the I DEA. I n J anuary 2012, the Parents filed a request for a due p rocess hearing alleg ing

2 On J u n e 1 5, 2 0 1 0
, HO P rice issu ed an ad d en d u m to h is J u n e 6 , 2 0 1 1 d ecisio n

.M E R I D I A N J O I N T S C H

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. D.A. 8

that MS D had not timely e v aluated Matthew. I n F ebruary 2012, MSD determined that Matthew wa s not elig ible for special e ducation. The Parents then filed a second d ue process c omplaint chal l e n gi n g that ruling

. The two d ue process complaints w ere c o n solidated into a sing le case a nd

were heard by Hearing Officer L itteneker (HO L itteneker). H O L itteneker c onducted ten day s o f hearing s over tw o months before issuing a decision on J uly 5, 2012, holding that Matthew was not entitled to special education services under the I D EA. The Parents then f iled a complaint with the district
court seeking review of HO L ittenek er’s decision. On J anuary 6, 2014, the district court issued a memorandum decision and order affirming HO L itteneker’s d e c i s ion that Matthew was not entitled to special education services. The Parents filed an appeal from that decision. 3

I n a ddition, the Parents filed another ac tion arising from the same backg round that is not before u s. I n F ebruary 2011, the Parents initiated administrative p r o ceeding s under the Rehabilitation Act and in March 2011, i n i t iated an action

a l l e g ing that MSD and B SD h ad violated Matthew’s righ t s under the Americans with Disabilities Act ( ADA). D.A. v

. M eridian Joint Sch. Dist. No. 2
, 289 F .R.D. 614, 6 2 0 ( D

. I daho 2013). That action was ultimately resolved in a n eig h tday trial in the summer of 2 013. The jury answered no to the special v erdict q

uesti on “was Matthew denied a free a nd appropriate public educat ion b y the Meridian School District.” Chief Mag istrate J u dg e Candy W

. Dale, w ho presided o ve r all of the cases concerning Matthew, issued a

3 T h e P aren ts’ ap p eal f

ro m th e d istrict co u rt’ s J a n u a r y 6
, 2 0 1 4 o rd er, A p peal N o

. 1 4

- 35 0 8 1
, w as arg u ed in tan d em w ith MSD’ s ap p eals. W e af f irm th e d istrict co u

rt’ s J an u ary 6
, 2 01 4 d ecisio n in a m em oran d u m d isp ositio n

f i led co n cu rren tly

w ith th is o pin io n

.M E R I D I A N J O I N T S C H

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final judg ment on J uly 31, 2013. There was no appeal from the judg ment.

II

W e review the district co u r t ’ s finding s of fact for clear

error a nd review its conclusions of law d e novo. Gregory K.

v. Longview Sch. Dist.
, 811 F .2d 1307, 1 310 (9th Cir. 1987). W e review d e novo the district court’s determinat i o n as to whether the school district complied w ith the I DEA. 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, 1 207 (9th C i r

. 2 0 0 8 )

. W e have ex plained that:

we g ive “due w eig h t to judg ments o f education policy w hen reviewing state hearing s and must take care to n ot substitute [ our] own notions of sound educational policy for those of the s c h o ol a uthorities [ we] review.” K.D.
, 665 F .3d at 1117 (internal quotation marks o mitted). Althoug h “[ t] he

ex tent of deference g i v en to the state hearing

o f f i c e r ’ s d e t e r m i n a t i o n i s w i t h i n o u r discretion,” “[ w] e g iv e deference to the state hearing officer’s finding s particularly when,

as here, they are thoroug h and careful.” Id. ;

see als o U

n ion S ch. 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.M E R I D I A N J O I N T S C H

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“ W e r e v iew the d istrict c ourt’s finding s of fact for clea r error, even w hen they are based on the writt e n re c o r d o f administrative proceeding s.” Van Duyn v. B aker Sch. Di st. 5 J
, 502 F .3d 8 11, 8 17 (9th Cir. 2007) (citing Amanda J

. v. Clark Cnty. Sch. Dist.
, 2 6 7 F .3d 8 77, 8 87 (9th Cir. 2001)). “A f inding of fact is c learly erroneous when the evi d e n c e in the record supports the finding but ‘the r eviewing court is left with a definite a n d f

i r m conviction that a mistake has been committed.’” K.D.
, 665 F .3d at 1117 (quoting Burlington N., Inc. v. W e yerhaeuser Co.
, 719 F

. 2d 304, 307 (9th Cir. 1983)).

I n addition, we have held that “the party ‘challeng ing the district c ourt’s ruling bears the burden of proof on ap p eal.’” E.M. , 758 F .3d at 1170 (quoting K.D.
, 665 F .3d at 1117).

III

W e initially turn our a ttention to MSD’s challeng es to H O Price’s determination that Matthew w as entitled to the preparation of an I EE at public ex pense. B ecause we affirm that decision, we nex t address the di s t rict court’s a ward o f attorney s’ fees. W e first hold that despite MSD’s arg uments to the contrary , the Paren t s ’ request for attorney s’ f ees was timely

. This b ring s us to 20 U.S.C. § 1415(i)(3)(B )(i), which
gr a n t s the district court discretion to award reasonable

a t t orney s’ fees as part of costs “to a prevailing party who is the parent o f a ch i l d w i th a disability .” W e conclude that while the Parents are “a prevailing party ,” neither is a “parent of a child w i t h a d isability ” for purposes of the statute’s attorney s ’ f

e es provision. L ast, we address and vacate the district court’s injunction barring Matthew’s g raduation from hig h school.M E R I D I A N J O I N T S C H

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. D.A. 11

A. The hearing of

ficer and the district court properly determ ined t he P arents w ere entitled to a n IEE a t public expense.

I n his 19-pag e memorandum decision, HO Price carefully considered t h e evidence and arg uments presented by MSD and the Parents. He first rejected MSD’s arg ument t hat it could rely on B SD’s evaluation, noting that “it appears to be at least as probable as not that the B SD’s sug g estion that the setting mig ht impact their findi n g s was correct,” and that a number of professionals had concern w i th evaluating a student solely wit h i n the confines o f ACJ D C. Second, he found that MSD’s desire to perform a dditional o b servations

was likely “nothing more than an effort to put o f f the decision

. . . .” Third, the hearing officer h eld that MSD had relied too heavily on Matthew’s ability to obtain g ood g rades, and that MSD’s accommodation s did not address the problems Matthew had with fluency and p rocess i n g speed. HO Price

ex p ressed concern that MSD soug ht to use its acceptance o f Matthew’s diag nosis of Asperg er’s Sy ndr o m e to allow it to focus solely on academic a chievement. He com m e nted that althoug h numerous tests were g iven, “if one looks closely
, it is easy to see that the outcomes of those tests almost a ll show deficits which are probably attributable to the student’s disabili ty ” a

nd that “ it seems that the interpretation of those
tests was p r e d e t e r mined to be interpreted as indicating that the student was not in n eed of special education.” HO Price concluded “there a

re indicators t h a t [Matthew] h as hig h intellig ence and can do w ell i n m any academic arenas,” but “it does not appear that he has overcome his disability to the

ex tent that it has no adverse e ffect on his performance.” H O P ri c e c o n c l u d ed t h a t “ [ a ] d d i t i o n a l e v a l u a t i o n a n d interpretation is necessary before such a conclusion could be reached,” and because he did “not have confidence in theM E R I D I A N J O I N T S C H

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elig ibility report r e l ied upon and interpreted by the district, the parent is entitled to an I nd e p e ndent Educational Evaluation.”

The district court carefully addressed MSD’s o bjections
to the hearing officer’s d e cision in a 2 6-pag e memorandum dec i sion. The district court emphasiz ed that it w as not deciding whether Matthew was e ntitled to special e ducation under the I D EA or even whether he suffered an adverse impact on hi s educational p erformance as a result of his disability . Rather:

The only issue before the Court is whether the Scho o l D i s t

r i c t’s adoption of B SD’s elig ibility report and refusal to conduct an evaluation at M.A.’s mother’s request was appropriate. H O Price found that the School District’s adoption of B SD’s r eport was not appr o priate due to the setting in wh i c h B SD’s evaluation took pl a ce and because the School District improperly overemphasiz ed M.A.’s g rades in looking at whether M

. A. suffered an adverse affect from his disability

. The Court finds no error with those finding s.

On a ppeal, MSD arg ues that it complied with the I DEA’s
statuto r y framework and r e g ulatory criteria and the district
court failed to independently review the record. MSD arg ues that the d istrict court: (1) should have g ive n more weig ht to its emplo y e es’ observations of Matthew after he returned to the hig h school; (2) failed t o appreciate that there is no relevant test that takes into account a more restrictive setting ; (3) relied on the same un r eliable testimony as the h earing officer; and (4) should not have accepted the hearing officer’sM E R I D I A N J O I N T S C H

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conclus i o n that MSD relied solely on Matthew’s academic performance.

MSD’s challeng es to the determination that Matthew was entitled to a

n I EE a t p ublic ex pense do not meet its burden o f proof. One of the pur

p o s e s of the I DEA is to free children and parents from t o t a l reliance on a school district’s
assessment of a child. I n Honig v. Doe
, 484 U.S. 305, 311 (1988), the Supreme Court noted:

Envisioning the I EP as the c enterpiece of the statute’s education d elivery sy stem for disabled children, and aware that schools h ad all too often d enied such children appropriate educati o n s without in any way consulting th e i r p a r e n t s , Cong ress r epeatedly emphasiz ed throug hout the Act the importance and indeed the necessity

of parental participation in both the development o f the I EP and any subsequent assessments of its effectiveness.

Here, MSD, in essence, arg ues that it was entitled to rely on B SD’s evaluation, and that the district court and the hearing officer shou l d h ave g iven more weig ht to its witnesses. Neither arg u ment is persuasive. The B SD e valuation clearly stated that a further evaluation m i ght well be appropriate when Matthew returned to th e p u b l i c hig h school. I t is

common sense that a 1,700-student public hig h s c h o o l is a very different learning e nvironment from a juvenile detention
center. F u rthermore, h ere, Matthew’s personal history

— which MSD knew well — s t r o n gl y sug g ested that h e would need assistance with the transition. I ndeed, MSD does not specifically contend o the r w i s e as it arrang ed to provide Matthew with services under Section 504.M E R I D I A N J O I N T S C H

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T h e I DEA “establishes a basic floor of education” f o r children with d isabilities. M r. I. v. Me. Sch. Admin. Dist. No. 55
, 480 F .3d 1, 10–11 (1st Cir. 2007) (quoting 2 0 U

. S.C. § 1412(a)(1)(A)). T itle 20 U.S.C. § 1401(3)(A)(i), and the implementing reg ulations, require that for a child with autism
to r eceive educational services, his disability must “adversely affect[ ] [ h i s ] e d u c a t i o n a l p e r formance.” 30 C.F .R. 300.8(c)(1)(i). The reg u lations further p r o v ide that states may develop standards for determining whether a d i sability adversely a f

fects a child’s educational p erformance. I daho has done so. S

ee I daho State Dep’t o f E d uc., Special Education Manual, available at http://www.sde.idaho.g ov/

s i t e / s p e c i a l

_ e d

u / m a n u a l_pag e.htm, (hereafter I daho Manual). The d istrict c ourt noted that the I daho Manual provides that “[ e] ducational perform an c e includes both academic areas (reading
, math, communications, etc.) a nd nonacadem i c a

r eas (daily life activities, mobility
, p re-vocational skills, social adaption, self-help skills, etc.).” MSD does not deny that this is the applicable standard.

W e conclude that the h earing offi c e r , a s well as the district court, carefully and thoroug hly r e v iewed all the

e v i dence and we also find that the evidence support s t h e conclusion tha t MSD’s refusal to prepare an I EE when Matthew reentered h i gh school was unreasonable. I t was proper for the district court to credit HO Price’s d iscussion o f witness testimony that hig hlig h t e d deficiencies in the B SD

ev al u a t i on. B oth the h earing officer and the district court

were careful to note that neither was determining whether Matthew was entitled to special education services under the I DEA. Rather, they concluded that the evidence p r e s e n ted did not e stablish that h e did not need suc h s e r v i c es. TheirM E R I D I A N J O I N T S C H

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. D.A. 15

determinations are entitled to deference, but even on a de novo review we would affirm. 4

B. The P arents’ request f o r attorneys’ f

ees was tim ely.

HO Price issued his decision on J une 6
, 2011. On J uly 15, 2 011, MSD filed its complaint in the district court seeking review of that decision. The Parents r equested attorney s’ fees for the proceeding s before the hearing officer in their answer to the complaint that was filed on J uly 28, 2011.

I n th e d istrict court, MSD arg ued that the request was untimely b ecause the applicable limitations period was either 14 or 4 2 day s, and b oth periods ha d e x pired. The Parents

as s e r ted that the 90-day limitations period for appealing an adverse d ecision from a due process hearing under the I DEA applied to claims for attorney s’ fees. The district court disag reed with both parties.

T h e Parents’ p osition was based on 2 0 U.S

. C

. § 1415(i)(2)(B ), which provides that a party ag g rieved by an administrative officer’s decision m a y b r i ng an a ction in a district court with i n 9 0 day s o f that decision. The district
court r easoned that (1) this section a p plied only to p arties that

are a ggr i e v ed 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 p rovision addressing a t t o rney s’ fees. The district court n o t e d that other courts had held that the 90-day statute o f limitations contained in § 1415(i)(2)(B )

4 W e rej ect MSD’ s ch allen g es to th e am o u n t o f ex p en ses aw ard ed b y th e d istrict co u rt an d af

f irm th e co u rt’ s aw ard o f $ 6 ,8 5 4 .0 0 as th e reaso n ab le

ex p en ses in cu rred b y

th e P aren ts in

p ro cu rin g th e IEE.M E R I D I A N J O I N T S C H

. D I S T

. N O

. 2. V

. D.A. 16

does not apply to claims f or attorney s’ fees under § 1 4 1 5 ( i)(3)(B ). See Brandon E. v. D ep’t o f Educ.
, 621 F. Supp. 2d 1 013, 1016 ( D

. H aw. 2008). 5 On appeal neither party questions the district court’s determination that the request for attorney s’ fees is not subject to the 90- d ay limitations period.

MSD’s a ssertion that a 14-day or 4 2-day limitations period applied was based on reg ulations promul gated pursuant to the I daho A dministrative Procedures Act. The 14-day period applies to r equests for attorney s ’ f e es from
ag ency d ecisions “when [ the] ag ency h as author i ty to award
costs and/or fees.” I d a h o Admin. Code r. 4.11.01.741.01 (2015). The 42-day period comes from the reg ulatory provision allowing appeals to a civil court from a h earing

5 In Bra n do n E. th e co u

rt reaso n ed :

T h e IDEA d o es n o t au th o rize th e reco v ery o f atto rn ey ’ s f ees b y th e p rev ailin g p arty in a d m in istrativ e p ro ceed in g s. Rath er, Co n g ress p r o v id ed in d ep en d en t

co u rt actio n f

or su ch relief w i t h n o sp ecif ic statu te of lim itatio n s f

o r su ch actio n s. S

ee 2 0 U.S. C. § 1 4 1 5(i)(3 )(B ). T h e Sen ate Rep o rt acco m p an y in g th e

am en d ed IDEA su

p p o rts th is in terp retatio n o f th e IDEA b y ex p l ain in g th at § 6 1 5 (i)(2 )(B ), co d if ied as 2 0 U.S.C. § 1 4 15 (i)(2 )(B ), “ g iv es a p arty 9 0 d ay s f ro m th e d ate of th e d ecisio n

o f th e h earin g o f

f icer fo r a p p ea lin g a d u e p ro cess h ea rin g d

ecisio n to S ta te or fed

era l d istrict

co urts [in th e ab sen ce o f an ex p licit state tim e lim itatio n ].” S

ee S. Rep

. N o

. 1 0 8

– 1 8 5
, at 3 7 (2 0 0 3) (em p hasis ad ded ). T h is S en ate Rep o rt im p lies th at Co n g ress in ten d ed th e IDEA ’ s lim itin g statu te to ap p ly

ex clu siv ely to d u e p ro cess ap p eals to f ed eral co u rt an d

n o t to sep arate f

ee actio n s.

6 2 1 F. Su p p . 2 d at 1 0 1 6

.M E R I D I A N J O I N T S C H

. D I S T

. N O

. 2. V

. D.A. 17

officer’s decision. I daho Admin. Cod e r. 08.02.03.109.05.g (2015). However, that section d o e s n o t appear to be applicable becaus e i t o nly a p plies to p arties adversely affected by the hearing

officer’s decision.

I nstead, the district court determined that the I DEA did
not c ontain a limitation period g o verning the P a r e n t s ’ claim for attorney s’ f

ees, a nd f ollowed 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:

Th e I DEA specifies no limitations period
g overning a plaintiff’s suit f or attorney ’s fees. See 20 U.S.C. § 1415(i)(3)(B ); Zipperer v

. Sch. Bd. of Seminol e County
, 111 F .3d 847, 850 (11th Cir. 1997); Powers v. Indiana Dep’t of E duc.
, 61 F .3d 552, 554 (7th Cir. 1995). Therefore, we “ must determine the most closely analog ous state statute of limitations” and apply that statute “ u nless it would undermine the p olicies underly ing the I DEA.” Livingston Sch. Dist. Nos. 4 & 1 v. Keenan
, 82 F

. 3d 912, 915 (9th Cir. 1996). “I n order to

assess which state statute of limitations is
most a nalog ous, the court ‘must characteriz e the essence of the claim in t h e pending c ase, and decide which state statute prov i d es the
most appropriate limit i ng principle.’” S.V. v

. Sherwood School D i s t

. , 254 F .3d 877, 879 (9th Cir. 2001) ( quoti n g W ilson v. Garcia
, 471 U.S. 261, 268 (1985)).

209 F

. Supp. 2 d at 1 042 (parallel citations omitted). See also Brandon E.
, 62 1 F. Supp. 2d at 1016 (“As such, whenM E R I D I A N J O I N T S C H

. D I S T

. N O

. 2. V

. D.A. 18

C o n g ress f

ails to provide a statute of limitations in fede ra l statutes, the U .S. Supreme Court has indicated that the settled practice is to adopt the most analo g ous state time limitation, so long as it is consistent with federal policy to do so.”).

The inquiry as to the most analog ous statute of limitations reveals a circuit split on the issue. T he Six t h and Seventh Circuits have characteriz ed attorney s’ fee s requests a s ancillary to the dispute, and a ccording ly borrowed state statutes of limitations for judicial review of administr ative
ag ency d ecisions. King v. Floyd Cnty. Bd. of Educ.
, 228 F .3d 622, 623 (6th Cir. 2 000) (ag r eeing with the Seventh Circuit that the attorney s’ fee issue is ancillary to the administrative
p r o c e e ding ) ; Powers v. Ind. Dep’t of E d uc., Div. of Speci a l Educ.
, 61 F .3d 552, 5 56 (7th Cir. 1 9 9 5 ) (viewing “Powers’ claim for attorney s’ fees not as an independent action but as

a claim a

ncillary to the underly ing education d ispute”). 6 However, the Eleventh Circuit in Zipperer v. School B oard of Seminole County, Florida
, 111 F .3d 847 ( 1 1 t h Cir. 1997),

6 T h e Sev en th

Circu it n o ted th at:

an actio n f

o r atto rn ey s’ f

ees p resen ts a u n iq u e p ro b lem i n t h at it m ay arg u ab ly b e ch aracterized as eith er a n in d ep en den t cau se o f

actio n u n d er § 1 4 1 5 (e)(4 )(B ), or

as an cillary to th e j u d icial rev iew o f th e ad m in istrativ e d ecisio n o n ed u catio n al p l a c em en t. Reed v. M o ken a S ch

. Dist.
, 4 1 F.3 d 1 1 5 3 (7 th Cir.1 9 9 4 ); Dell [ v. Bd

. o f Ed

., Tp

. Hig h S

ch

. Dist.1 1 3 ], 3 2 F.3 d [1 0 5 3 ] at 1 0 6 2 [7 th Cir. 1 9 94 ]. In o th er w o rd s, t h e at t o r n e y s’ f

ees claim co u ld sim

p ly b e co n sid ered an in d ep en d en t claim f o r m o n ey d am ag es o r it co u ld b e seen as j u st o n e p art

o f th e u n d erly in g d i sp u te o v er th e ch ild ’ s ed u catio n al
p lacem en t o r ed u catio n al p lan

.

Po wers , 6 1 F.3 d at 5 5 5

.M E R I D I A N J O I N T S C H

. D I S T

. N O

. 2. V

. D.A. 19

c h a racteriz ed a

n attorney s’ f

ee claim under the I DEA as a n independent action and applied F lorida’s four-y ear statute o f limitations. 7

The district court in O stby p re ferred the Eleventh Circuit’s approach, n ot i n g that (a) “an action for attorney ’s fees is ex p licitly distinct from the a dministrative r eview
process, and the r efore could not be considered ancillary to that p r ocess”; (b) “the administrative ag ency has no jurisdiction to award attorney s’ fees, and therefore [ ] there is

no such t h i n g as an action for review of an ag ency decision
reg arding fees”; (c) “the resolution of claims for attorney s’ fees is less urg ent and, in reality
, is more likely to be resolved by the attorney s’ interest in prompt pay ment than by a short period of limitations ”; a n d ( d ) the long er period of time “ is likely to encourag e the involvement o f parents, as represented

7 T h e Elev en th

Circu it reaso n ed :

W e ag ree th at th e IDEA p ro v id es tw o d istin g u ish ab le

cau ses o f actio n u n d er sectio n s 1 4 1 5 (e)( 2 ) a n d 1 4 1 5 (e)(4 )(B ). Mo s t sig n if ican tly
, sectio n 1 4 1 5 (e )(2 )
p ro v id es f

o r th e ap p eal o f

a su b stan t iv e ad m in istrativ e d ecisio n , w

h ereas sectio n 1 4 15 (e)(4 ) p ro v id es f o r an in d ep en den t claim f

o r atto rn ey s ’ f

ees. B ecau se th e d istrict co u rt, rath er th an th e ad m in istrativ e ag en cy , h as j u risd ictio n t o aw ard f

ees, th e p rev ailin g p arty can n o t ap peal an ad m in istrativ e d ecisio n u n d er sectio n 1 4 1 5 (e)(4 ). A cco rd in g ly
, w e rej ect th e sch o o l sy stem ’ s arg u m en t th at a claim u n d e r s e c tio n 1 4 1 5 (e)(4 )(B ) is

an alo g o u s to th e ap p eal of an ad m in istrativ e h earin g

. In s t e ad
, w e f

in d th at sectio n 1 4 1 5 (e)(4 ) p ro v id es a claim b ased o n a statu t o ry liab ility a n d is, th u s, m ore

an alo g o u s to Fla. Stat. ch . 9 5 .1 1 (3 )(f ).

Zip p erer , 1 1 1 F.3 d at 8 5 1

.M E R I D I A N J O I N T S C H

. D I S T

. N O

. 2. V

. D.A. 20

by attorney s, in securing a ppropriate public educations for their children.” 209 F

. Supp. 2d at 1043–44.

The district court in Ost b y also found our opinion in Dreher v. Amphitheater U nified School District
, 22 F .3d 228 (9th Cir. 1994), instructive. I n Dreher
, o ne question was the limitations p eriod for filing a court action challe n gi n g a school district’s refusal to g rant parents a due process h earing
to determine financial respon sibility f or their child’s speech therapy at a p ri vate school. Id

. at 231. The I DEA did not specify a limitations period, and w e chose to apply Ariz ona’s
one-y ear limitations peri o d f or liabilities created by statute, rather than the 35-day limitatio n s period that a pplied to judicial review of administr a t ive decisions. Id

. at 2 32. W e

reasone d t h a t : (1) because plaintiffs w ere not g ranted a d ue process hearing
, their action was n ot analog ous to an appeal from a final administrative decision; (2) a long er limitations period was c onsistent with f ederal policies; and (3) the child’s education was not threatened by the duration of the claim. Id. The district court in Ostby found our r e a s o n i n g in Dreher persuasive, n oting “if the Ninth Circuit found that the action in Dreher

— a challeng e to a refusal to provide a due process hea ri ng — was not analog o u s to judicial review of an administrative decision, then the Ninth Circuit probably would also f

ind that an action for attorney ’ s fees — over which an administrative a g ency h as no jurisdiction — is also
not analog ous to review of a n administrative decision.” 209 F

. Supp. 2 d a t 1044. Other district c ourts have followed Ostby

. 8

8 S ee J. H. v. Neva d

a City S ch . Dist.
, No

. 1 4- 0 7 9 6
, 2 0 1 5 W L 1 0 2 1 4 2 4
at * 5 (E.D. C al. March 9
, 2 01 5); Teresa L. v. Dep ’t o f Ed u c. , N o

. 0 9

- 3 4 8
, 2 0 0 9 W L 4 0 1 7 1 46 (D. Haw

. N o v

. 2 0, 2 0 0 9 ) (u n p u b lish ed ); Bra n d

on E.
, 6 2 1 F. Su p p . 2 d at 1 0 1 7

.M E R I D I A N J O I N T S C H

. D I S T

. N O

. 2. V

. D.A. 21

F aced w i t h a n ex isting circuit split, we ag ree with the position taken by the district c ourt. As set forth by the district
court in Ostby
, and consistent w ith the spirit of our decision in Dreher
, we conclude that a request for attorney s’ fees

u n der the I DEA is more analog o us to an independent cl a i m than an ancillary proceeding

. The fact that the hearing officer
may n ot award attorney s’ fees w eig hs in favor of holding that

a request for attorney s’ f

ees filed in t h e district court is not ancillary to the judicial review o f the administrative decision. Moreover, the long er time per iod promotes the purposes o f the I D EA. I ndeed, the adoption of the state law limitations period for judicial review of administrative ag ency decisions mig ht lead to the anomalous result that the party that prevailed before the hearing o ffi cer would have to decide whether t o f

ile a n action seeking attorney s’ fees before the party that los t before the hearing officer decided whether to seek judicial review. According ly
, w e af f i r m the district court’s determination that the Parents’ request for attorney s’ fees w as timely f

iled under the most analog o us s t at e statute of limitations. 9

C. The P arents are prevailing parties.

The I D EA provides that reasonable attorney s’ f e es 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 c ourt, ci t i n g W eissburg v. Lancaster

9 T h i s ap p ears to b e th e th r e e

- y ear statu t e o f lim i tatio n s f o r statu to ry liab ility actio ns

. I d ah o Co de § 5- 2 18 (1 ). Bu t see Hen d erso n v. S ta te , 7 1 5 P .2 d 9 7 8
, 9 8 1 (Id ah o 19 86 ) (h old in g “ 4 2 U.S.C. § 1 9 8 3 actio n s in Id ah o m u st n o w m eet th e t

w o

- y ear Id ah o statu te o f lim itatio n s f o r p erso n al in j u ry actio n s”). W e n eed n o t d ecid e th is i ssu e o f state law as th e P aren ts’
req u est f o r atto rn ey s’ f

ees w as tim ely

u n der eith er state statu te.M E R I D I A N J O I N T S C H

. D I S T

. N O

. 2. V

. D.A. 22

School District , 591 F .3d 1255 (9th Cir. 2010), held that the Parents had p revailed b ecause the hearing officer’s award materially altered th e l egal r elationship between the parties. I t found that “[ i] n obtaining the relief ordered by the h earing officer — that the School District provide M.A. with a n I EE
at public ex pense — M.A.’s Parents clearly secured a remedy that fosters the purposes of the IDEA.”

The Ninth Circuit h as determined that to be a “ prevailing party ,” a p arty must “succeed[ ] o n any sig nificant issue in litig ation w hich achieves some o f the benefit the parties
soug h t in bring ing the suit.” Van Duyn
, 502 F .3d a t 825 (quoting Parents of Student W

. v. Puyallup Sch. Dist. No. 3
, 31 F .3d 1 4 8 9
, 1498 (9th Cir. 1994)). On appeal, MSD contends that the Parents were not prevailing parties because “n o material chang e to the leg al relationship of the student and the school district resulted f r o m the administrative proceeding

. ” MSD asserts that there was no material chang e in the leg al relationsh i p b ecause Matthew w a s never determined to be in need of special ed u c ation services a nd that simply being awarded an I EE “ is inarg uably nothing more than a technical and de minimus result.”

MSD c ites the controlling law but reaches a n incorrect conclusion. Here, the hearing officer’s decision that Matthew

was entitled to an I EE at public e x p e n s e did result in the requisite “ alteration in the leg al relationship o f t h e parties.” Buckhannon Bd. and Care Home, In c. v. W

. Va Dep’t. of Health a nd Human Res.
, 532 U .S. 598, 6 0 5 ( 2001). As a result of the hearing officer’s decision, MSD had to p a y for

an I EE and was required to consider the I EE before it could determine whether Matthew was entitled to special education

s ervices under the I DEA. I n deed, MSD thoug ht t h i s consequence of sufficient import that it f iled an action in theM E R I D I A N J O I N T S C H

. D I S T

. N O

. 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 S u p r e m e Court in Hensley v. Eckerhart
, 461 U.S. 424, 4 33 (1983), and the N inth Circuit in V a n Duyn
, 502 F .3d at 825.

D. The P arents are not entitle d to attorneys’ f ees pursuant to 20 U.S.C. § 1415(i)(3)(B)(i)(I).

Section 1415(i)(3)(B )(i)(I ) p r o vides that attorney s’ fees
may be awarded “to a prevailing party who is the parent of a child with a d

isability .” (Emphasis added). Section 1401(3) defines “child with a disability ” as a child with an impairment

or d isability “who, by reason thereof, needs special education and rel a t e d services.” MSD contends that this definition o f “child with a disability ” limits the availab i l ity of attorney s’ fees under the I DEA to a parent whose chi l d h a s been determined to need special education services. MSD reasons that because Matthew h as not been determined to need special education services, the Parents are not elig ible f or an award of attorney s’ fees pursuant to § 1415(i)(3)(B )(i)(I ).

The F ifth Circuit adopted this approach in T.B. v. B r y a n Independent School District
, 6 28 F. 3 d 240 (5th Cir. 2010),

r e l y ing
, in part, on an unpublished opinion by the Third Circuit, D.S. v

. Neptune Township B oard of Ed u c ation
, 264 F

. A pp’x

. 186 (3rd Cir. 2008), w hich was factually similar to Matthew’s case. The F ifth Circuit ex plained:

I n Neptune Township
, parents of a child with

v arious disorders f

iled a due process p e titio n to compel special-education testing a nd servi ce s

. The state administrative law judg e

o r d e r e d t h e s c h o o l t o c o n d u c t aM E R I D I A N J O I N T S C H

. D I S T

. N O

. 2. V

. D.A. 24

special-educ a tion evaluation but denied the other requested relief. The school e valuated the child a

nd concluded that he w as not elig ible for spec ial-education services. The parents amended t h e i r petition for a d ue p r o c ess hearing to challeng e the school’s de t e r m ination that the child was not elig ible f o r s p e c i a l

- e d u c a t i o n s e r v i c e s b u t subsequently withdrew the appeal and filed for a ttorney s’ fe e s under the I DEA. The district cou r t denied the parents’ motion for attorney s’ fees because the child had not been determined to be elig ible for s p e c i a l

- e d ucation services.

On appeal, the Thi rd Circuit concluded that the tex t of the I DEA’s fee- s h ifting provision

was unambig u ous a

nd interpreted t h e statute to bar recovery o f attorney s’ f ees because “there was n e v e r a determination that the

c h i l d n e e d e d s p e c i a l e d u c a t i o n , ” a n d therefore, the pa r e n ts d id not meet the plain l a n g u a g e of the I DEA’s fee-shifting provision

. I n so holding
, the court acknowledg ed that the school “likely w ould h a v e not completed the evaluations absent the A L J ’s orders” and that “[ b] ut for retaining counsel, the parents would
not have secured [ th e special-education evaluation] for the child.” B ut, the court also noted that its interpretation of the statute was consis tent with the purpose of the I DEA’s fee-shifting p rovision—to allow parents o f disabled children to e ffectuate their rig ht to a fr e e appropriate public education. The courtM E R I D I A N J O I N T S C H

. D I S T

. N O

. 2. V

. D.A. 25

rejected the sug g estion that the fee-shifting provision should apply to children “ m e rely suspected of having

a disability .”

T.B. , 628 F

. 3d at 244 (footnotes omitted). 1 0

The F ifth Circuit a cknowledg ed T

. B .’s arg uments that (a) other p rovis i o n s of the I DEA e x tended procedural rig hts
to children who had y e t to be found to be disab l ed
, a n d (b) “holding he is not elig ible for recovery of attorney s’ fees will ha v e a c hilling effect on future I DEA cases, f rustrate parents’ a bility to hire counsel, and undermine the interests o f the students and g oals of the I D E A

. ” 628 F .3d at 244–45. The F ifth Circuit, however, reasoned:

T.B .’s arg uments cannot overcome the plain lang uag e of the statute. The Supreme Co u r t has directed courts interpreting the I DE A to start with the te x t of the statute and has “stated time and ag ain that courts m ust presume that a leg islature say s in a statute what it means an d means in a statute what it

s a y s t here.” The Court has also stated tha t “[ w] hen the statutory ‘ lang uag e is plain, the sole func t i on of the courts — at least where the d i s p o s ition required by the tex t is not absurd — is t o enforce it according to its

1 0 T h e Fif th Circu it also n o ted th at th e Six th Circu it in “ an u n p u b lish ed

o p in io n i n terp retin g an earlier v ersio n o f th e f ee- sh if tin g p ro v isio n n o w f o u n d i n t h e IDEA ,” h ad d en ied atto rn ey s’ f ees w h en it h ad y et to b e d eterm in ed in th e ad m in istrativ e p ro ceed i n g s w h eth er th e ch ild h ad a learn in g d isab ility .” T.B. , 6 2 8 F.3 d at 2 4 4 (citin g Ed wa rd s v. Clevela n d H e i g h ts-Un iv. Heig h ts Bd

. of Ed u c. , 9 5 1 F.2 d 3 4 9 (6 th C ir. 1 9 9 1 ) (u n p u b lish ed )).M E R I D I A N J O I N T S C H

. D I S T

. N O

. 2. V

. D.A. 26

t erms.’” Here, the p lain lang uag e of the I DEA’s fee-shifting p rovision limits recovery of attorney s’ fees to the paren t o f a “child with a disability .”

Id

. at 245 (footnotes omitted). I n further response t o TB ’s
arg uments, the F ifth Circuit noted:

Cong r ess has provided some protections for childr e n not y et d etermined to fit the definition of “child with a disability .” Section 1415(k)(5) and its pro t ections in disciplinary proceeding s mig ht r e flect a broader intent to protect children n ot y et determined to fit the definition o f “child wi t h a disability .” B ut just because C ong ress has specifically

ex tended some protections to c hildren n ot y et determined to meet the definitio n of “child with a disability ” does n ot mean that it has

ex tended all p rotections. To the contrary , the lang uag e of the attorney s’-fee pr ovision in § 1 415(i)(3)(B ) ( i)(I ) specifically provides the district court with discretion t o award attorney s’ f

ees to a “parent of a child with a d i s a b i l i t y

. ” U n l i k e § 1 4 1 5 ( k ) ( 5 )
, § 1415(i)(3)(B )(i)(I ) makes no reference to children not y e t determined to be d isabled. T he I DEA cannot be read to p r ovi d e attorney s’ fees to T.B.
, and any policies reflected in § 1 415(k)(5) c a nnot overcome the

ex p ress provisions in § 1415(i)(3)(B ) (i)(I ).

Id

. at 2 45–46. The F ifth Circuit c oncluded that “reg ardless o f the policy c o nsiderations and even if an alternate version o fM E R I D I A N J O I N T S C H

. D I S T

. N O

. 2. V

. D.A. 27

the statute would better serve the g oals of the I DEA, that is a decision appropriately left to Cong ress, not to this court.” Id. at 246.

I n Matthew’s case, the district c ourt declined to follow the F ifth Circuit’s approach on the g rounds that it could look bey ond the lang uag e of a statute to avoid “an absurd result o r

a decision that would violate Cong r essional intent in enacting the statute.” See Barajas v. U nited S tates , 258 F

. 3d 1004, 1012 (9th Cir. 2001). The district c ourt reasoned that the feeshifting provision was not as clear and unambiguous as the F ifth Circuit sug g ested, a nd that the term “ parent of a child with a disability ” is used in other parts of the I DEA to cover procedures t h a t p recede any determination of elig ibility for special education services. The district c o u r t also f ound support for its approach i n our opinion in Hacienda La Puente Unified School District o f Los Angeles v. Honig
, 976 F

. 2d 4 87 (9th Cir. 1 992), where w e held that althoug h the I DEA referred to “children with disabilities,” a child “ not previously identified as disabled” coul d raise his or her alleg ed d isability in an I DEA a dministrative d u e process hearing

. I

d . at 492.

Having determined that the I DEA was subject to differing interpretations, the district court c o n cluded that the restrictive interpretation of the attorney s’ fees provision was contrary to the Cong ressional intent to encourag e, assist and make whole parents and attorney s who work to v indicate the rig hts o f handicapped children. The district court worried that MSD’s “interpretation would discourag e parents from invoking their rig hts under the I DEA and create an incentive for schools to take an adversarial position early in the i d entification a nd evaluation process without f ear of being liable for attorney s’ fees.”M E R I D I A N J O I N T S C H

. D I S T

. N O

. 2. V

. D.A. 28

W e a ppreciate the district court’s concerns, but ag ree with the F ifth Ci rcuit that we are bound by the clear lang u ag e in the I DE A limiting the award o f attorney s’ fees to parents o f

a “child with a disability ,” defined a s a c h ild determined to

nee d s p ec ial education services. Abiding by the plain lang uag e of the statute w ill not “thwart the purpose of the over-all statutory scheme or lead to an absurd r e s u l t

. ” See Barajas
, 2 58 F .3d a t 1012. The purpose of the I DEA is to provide a free and appropriate p ublic education to all disabled children who n eed special education services. L imiting the award of at t o r n e y s’ fees ag ainst school districts to instances where the c hild has been determine d to need special education services is not incons i s t ent with this purpose. Rather, it preserves pub l i c r esources for those disabled children most in need of services.

Moreover, limiting awards of attorney s’ fees to parents o f children w ho have been determined to need special education services is not inconsistent with the I DEA’s e mphasis on providing procedural rig hts to parents and children prior to final determinations of their need fo r s e r vices. S ee Honig
, 48 4 U

. S. at 311–12. 1 1 The I DEA provides a parent w ho

11 A d d ressin g th e Ed u catio n o f th e Han d icap p ed A ct, th e p red ecesso r to th e IDEA , th e Su

p rem e Co u

rt n o ted ;

En v isio n in g t

h e IEP as th e cen terp iece o f t h e statu te’ s ed u catio n d eliv ery sy stem f o r d isab led ch il d r e n , an d

aw are th at sch oo ls h ad all to o o f ten d en ied su ch ch ild ren a p p ro priate ed u catio n s w ith o u t in an y w ay

c o n s u l t i n g t h e i r p a r e n t s, C o n gr e s s r e p e a t e d l y

em p h asize d t h ro u g h ou t th e A ct th e i m p o rtan ce an d in d eed th e n ecessity of paren tal particip atio n in b oth th e d ev elo pm en t o f th e IEP an d an y su bseq u en t

assessm en ts o f its ef

f ectiv en ess.

. . . A c c o r d i n g ly
, th e A ct estab lish es v ario u s p ro ced u ra l saf eg u ard s th atM E R I D I A N J O I N T S C H

. D I S T

. N O

. 2. V

. D.A. 29

believes that his or h er c h ild has a disability and is in need o f special services with certain procedural rig hts tow a rd a fair d etermination of the child’s n e e ds. However, this prim a r y purpose is not necessarily furthered, and mig h t well be impeded, if parents o f children who are determined not to need special education services were e lig ible for an award o f attorney s’ fees based on having prevailed on some i s s u e i n the process.

I ndeed, the distinction between assuring that parents have

an opportunity to have their children evaluated and a warding
atto r n e y s ’ fees disting uishes this case from our o p inion in Hacie n da

. I n Hacienda
, the restrictive interpretation proposed by the s c h o ol district would have frustrated a parent’s ability to have the c hild’s n e ed for special services determined. Here, althoug h the process to o k an inordinate
amount of time, MSD c onsidered Matthew’s I EE, a nd determined that he did not need spec ial services. Thus, Matthew and his parents received all th e p r o cess they were entitled to under the I DEA.

Althoug h Congr e ss could have established a more inclusive fee shifting provision, we ag ree with the F ifth Circuit that Cong ress chose p l ain lang uag e that limits elig ibility for attorney s’ fees under the I D E A t o parents whose childr e n have b een determined to need special services. F urther, this interpretation is r easonable and

— a s

g u aran tee p aren ts b o th an o p po rtu n ity f o r m ean i n g f

u l in p u t in t o all d ecisio n s af

f ectin g th eir ch ild ’ s ed u catio n

an d th e rig h t to s eek rev iew o f an y d ecisio n s th ey th in k in ap p ro p riate.

4 8 4 U.S. at 3 1 1 –1 2 (citatio n s o m itted ).M E R I D I A N J O I N T S C H

. D I S T

. N O

. 2. V

. D.A. 30

courts a re wont to say

— “not inconsistent” with the overall
purpose of the A ct. According ly
, we vacate t h e d istrict court’s award of attorney s’ fees.

E. We vacate the injunction against Matthe w’s graduation.

The d istrict court cited 20 U.S.C. § 1415(j), known as the “stay -put” provision, as authoriz ing its injunction p rohibiting MSD from g raduating Matthew. 1 2 The district court reasoned that it had jurisdiction even t houg h the action concerned M a tthew’s entitlement to an I EE, not whether h e n eed e d

s p e cial education services, and that the stay -put provision applied even t houg h Matthew had not been f ound to need special services. The district court found that MSD’s position

on this issue conflicted with the purpose of the I DEA, which

was “to strip schools of the unilateral a u t h o rity they h ad traditionally employ ed to ex clude d isabled 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 a t 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.
, 6 00 F .3d 1104, 1110 (9th Cir. 2010) (adopting the Seco n d

12 2 0 U.S.C. § 1 4 1 5 (j ) p ro v i d es th at:

d u rin g th e p en d en cy of an y p ro ceed in g s co n d u ct ed
p u rsu an t to th is sectio n , u n less th e State o r lo cal ed u catio n al ag en cy an d th e p aren ts o th erw ise ag ree, th e

c hi ld sh all rem ain in t h e t h en

- cu rren t ed u catio n al
p l a cem en t o f th e ch i ld
, o r, if ap p ly in g f o r in i t i a l ad m i ssio n to a p u

blic sch o o l
, s h all, w ith th e co n sen t of th e p aren ts, be placed in th e p u b l i c s c h o o l p ro g ram

u n til all su ch p ro ceed in g s h av e b een co m p leted

.M E R I D I A N J O I N T S C H

. D I S T

. N O

. 2. V

. D.A. 31

Circuit’s reasoning in Murphy v. Arli ngton Cent. Sch. Dist. Bd. of E duc.
, 297 F .3d 195 (2d Cir. 2002)), “that ex haustion of administrative remedies was not required because of t he ti m e

- s ensitive nature of the rig ht § 1415(j) was desig ned to p r otect— i.e.
, the rig ht to r emain in the current educatio n al 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 n ot show the traditionally r equired factors (e.g
., irreparable harm) in o rder to obtain preliminary relief.”).

W e ag ree that the district court had jurisdiction to consider the request f

or a n i n junction, 1 3 and that the Parents did not have to show irreparable harm. I n Rocklin Uni f i ed
, we noted:

The fact that the stay put provision requires no specific showing o n t h e part of the moving party , and n o balancing o f equities by the court, evidences Cong ress’s sense that there is

a heig htened risk of irreparable harm inherent i n t h e p remature removal of a disabled chil d
to a potentially inappropriate educational

se t ting

. I n lig ht of this risk, the stay put provision acts as a p owe rful protective

measure to prevent d i s ruption of the child’s education throug h out the dispute process. I t

13 See, e

. g

. M.P. v. Go vern in g Bd

. o f th e Gro ssmo n t Un io n H ig h S ch

. Dist.
, 8 5 8 F. Su

p p. 1 0 4 4 (S.D. Cal. 1 9 9 4 ) (ap p l y i n g th e stay

- pu t p ro v isio n to a ch ild in th e g en eral ed u catio n p ro g ram w i th o u t an IEP to p rev en t h is

ex p u lsio n d u rin g t h e se c o n d sem ester o f h is sen io r y ear f o r brin g in g a p ellet g u n to sch o o l).M E R I D I A N J O I N T S C H

. D I S T

. N O

. 2. V

. D.A. 32

is unlikely that Cong ress intended t h is protective measure to end suddenly a nd arbitrarily before the dispute is fully resolved.

559 F .3d at 1040.

N o n e t h e l e s s, we question whether the district court s h o u l d have issued the injunction i n t h e first place, and we n ow vacate the injunction. I f a child’s need f or special education services (albeit contested) continued after he would otherwise
g raduate, the g eneral purposes behind the stay -put provision and the I DEA mig ht support an injunction requiring t h e continuation of services. Here, h o w e v er, Matthew was not receiving sp e c i al services, but was in the g eneral education
prog r am. As h e had met the criteria for g raduation, he h ad presumably received all the benefits that the g eneral

e d u c ation p r og ram offered. According ly
, it is d oubtful t h at the purposes of the stay -put provision were s e r v e d b y enjoining Matthew from g raduating

. This seems p a rticularly
true here as the Parents have c onsiste ntly arg ued that the general e ducation prog ram was not providing Matthew t h e supportive services he needed. I n a n y event, it has n ow been three y ears since the entry of the injunction preve n t i ng Matthew’s im m i nent g raduation from hig h school a nd Matthew h as been determined not to need special services. 1 4 W h atever benefit that mig ht have f lowed from the injunction would appear to have been ex h austed, and oral arg ument did
not reveal any salient g rounds f or maintaining the injunction. According ly
, we hereby v acate the injunction p rohibiting Matthew’s g raduation from hig h school.

1 4 S ee o u r co n cu

rren t l y f iled d isp o sitio n i n th e P aren ts’ ap peal, No

. 14

- 3 5 0 8 1
, af f irm in g th e d e t e r m i n atio n th at Matth ew w as n o t elig ib le f or sp ecial ed u catio n

serv i ces.M E R I D I A N J O I N T S C H

. D I S T

. N O

. 2. V

. D.A. 33

IV

W e appreciate th e c o n cerns that underlie the parties’
p ositions, and they have informed our disposition of t h e s e appeals. Pursuant to the a p p l i c a b le standards of review we conclude that: (1) the d i s t r ict court and the hearing officer reasonably determined that M a t thew was entitled to an I EE
at p ublic ex pense; (2) the Parents’ request for attorney s’ fees is more analog ous to an independent c laim than an ancillary proceeding and thus was timely f iled; (3) by p rocuring an I EE
at publ ic ex p ense, the Parents were “ prevailing parties” a s that t e r m has been defined in Hensley
, 461 U.S. a t 4 33, a nd Van Duyn
, 5 02 F .3d at 825; ( 4) because the plain lang uag e o f the I DEA l i m i t s awards o f attorney s’ fees pursuant to 20 U.S.C. § 1415(i)(3)(B )(i)(I ) to instances in which the child has been d etermined to n eed special education servi c es, a nd Matthew had not been found to n eed s u c h services, the Parents are not elig ible for an award of a ttorney s’ f ees under
t h e I DEA; and (5) the injunction p reventing Matthew’s
g raduation from hig h school must b e lifted. According ly
, we vacate the district court’s award of a t t o r ney s’ fees and its injunction preventing Matthew from g raduating

.

A F FI R MED in part, R EVERSED in part, a nd VACATED in part. Each side shall bear its own costs.