FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

C. W., a minor, by her Mother, K.S.,

Guardian Ad Litem; K.S., Guardian

Ad Litem,

Plaintiffs-Appellants,

v.

CAPISTRANO UNIFIED SCHOOL

DISTRICT,

Defendant-Appellee.

No. 12-57315

D.C. No.

8:11-cv-01157-

DOC-RNB

ORDER AND

AMENDED

OPINION

Appeal from the United States District Court

for the Central District of California

David O. Carter, District Judge, Presiding

Argued and Submitted

August 5, 2014—Pasadena, California

Filed March 2, 2015

Amended April 9, 2015

Before: Stephen Reinhardt, Kim McLane Wardlaw,

and Consuelo M. Callahan, Circuit Judges.

Order;

Opinion by Judge Wardlaw;

Partial Concurrence and Partial Dissent by Judge Reinhardt
2 C.W. V. CAPISTRANO UNIFIED SCH. DIST.

SUMMARY*

Attorney’s Fees

The panel filed (1) an amended opinion and (2) an order

amending the opinion, denying a petition for rehearing and a

suggestion for rehearing en banc, and directing the mandate

to issue forthwith.

In the amended opinion, the panel affirmed in part and

reversed in part the district court’s award of attorney’s fees

and costs to Capistrano Unified School District as the

prevailing defendant in an action alleging violations of the

Individuals with Disabilities Education Act, the Americans

with Disabilities Act, Section 504 of the Rehabilitation Act,

and 42 U.S.C. § 1983.

The panel agreed with the district court that the ADA and

§ 1983 claims were frivolous, and affirmed the district court

to the extent it awarded attorney’s fees and costs for

representation relating to those claims. The panel concluded

that the claims lacked any legal foundation, and the result was

obvious. The panel also concluded that the claims were not

brought for an improper purpose, which would have allowed

the school district to recover fees from the plaintiff parent as

well as from her attorneys.

The panel disagreed with the district court that the IDEA

and Rehabilitation Act claims were frivolous and/or brought

for an improper purpose, and reversed the district court to the

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

been prepared by court staff for the convenience of the reader.
C.W. V. CAPISTRANO UNIFIED SCH. DIST. 3

extent it awarded attorney’s fees and costs related to the

litigation of those claims under 20 U.S.C. § 1415(i)(3)(B).

The panel remanded the case to the district court with

specific instructions to determine which feeswere attributable

solely to litigating the frivolous ADA and § 1983 claims.

Judge Reinhardt concurred in part and dissented in part. 

He agreed with the majority that the claims under the IDEA

and the Rehabilitation Act were not frivolous and that none

of the claims was brought for an improper purpose. 

Disagreeing with the majority,Judge Reinhardt wrote that the

ADA and § 1983 claims, which were based on the same facts

as the Rehabilitation Act claim, were not frivolous.

COUNSEL

Gregory S. Fisher (argued), Davis Wright Tremaine LLP,

Anchorage, Alaska; Jennifer Guze Campbell and Vanessa

Jarvis, Special Education Law Firm, APC, Lakewood,

California, for Plaintiffs-Appellants.

Amy R. Levine (argued), Ernest Bell, and Matthew J. Tamel,

Dannis Woliver Kelley, San Francisco, California, for

Defendant-Appellee.

William S. Koski and Carly J. Munson, Youth & Education

Law Project, Mills Legal Clinic, Stanford Law School,

Stanford, California; Paula D. Pearlman, Michelle Uzeta, and

Anna Rivera, Disability Rights Legal Center, Los Angeles,

California, for Amici Curiae Disability Rights Legal Center,

Disability Rights California, Public Counsel Law Center,

Children’s Rights Clinic at Southwestern Law School,
4 C.W. V. CAPISTRANO UNIFIED SCH. DIST.

Pepperdine University School of Law Special Education

AdvocacyClinic, and University of San Diego Legal Clinics.

Jonathan J. Mott and Cynthia A. Yount, Parker & Covert

LLP, Tustin, California, for Amicus Curiae California School

Boards Association Education Legal Alliance.

ORDER

The opinion filed on March 2, 2015 is hereby amended,

and an amended opinion is filed concurrently with this order.

With that amendment, Judges Wardlaw and Callahan

have voted to deny, and Judge Reinhardt has voted to grant,

appellants’ petition for rehearing. The panel has voted to

reject the suggestion for rehearing en banc.

The full court has been advised of the suggestion for

rehearing en banc and no active judge has requested a vote on

whether to rehear the matter en banc. Fed. R. App. P. 35.

Thus, the petition for rehearing is denied and the

suggestion for rehearing en banc is rejected. No further

petitions for rehearing or for rehearing en banc will be

entertained. The mandate shall issue forthwith.

IT IS SO ORDERED.
C.W. V. CAPISTRANO UNIFIED SCH. DIST. 5

OPINION

WARDLAW, Circuit Judge:

C.W. appeals the district court’s award of attorney’s fees

and costs to Capistrano Unified School District, (“the

District”), as the prevailing defendant in an action alleging

violations of the Individuals with Disabilities Education Act

(“IDEA”). In addition to the IDEA claims, attorneys for

C.W. also claimed violations of the Americans with

Disabilities Act (“ADA”), Section 504 of the Rehabilitation

Act, and 42 U.S.C. § 1983, based on a claim of retaliation

arising from a letter threatening sanctions sent by the

District’s counsel should C.W.’s parent (“K.S.”) continue to

pursue this appeal. Because we agree with the district court

that the ADA and § 1983 claims are frivolous, we affirm the

district court to the extent it awarded attorney’s fees and costs

for representation relating to those claims. We disagree with

the district court, however, that plaintiff’s IDEA and

Rehabilitation Act claims were frivolous and/or brought for

an improper purpose, and we therefore reverse the district

court to the extent it awarded attorney’s fees and costs related

to the litigation of those claims.

I.

A.

Congress enacted the IDEA “to ensure that all children

with disabilities have available to them a free and appropriate

public education” and “to ensure that the rights of children

with disabilities and parents of such children are protected.” 

20 U.S.C. §§ 1400(d)(1)(A)-(B). “The statute sets forth

procedures for resolving disputes in a manner that, in the

Act’s express terms, contemplates parents will be the parties
6 C.W. V. CAPISTRANO UNIFIED SCH. DIST.

bringing the administrative complaints.” Winkelman ex rel.

Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 527

(2007). The IDEA relies in numerous ways on the

involvement of parents in the process of developing

Individualized Education Programs for students with special

needs, and provides a detailed scheme for parents to pursue

remedies when they believe that their child has been deprived

of a free and appropriate education. Since its inception, the

IDEA, like most civil rights statutes, has allowed a prevailing

plaintiff to seek attorney’s fees and costs. See 20 U.S.C.

§ 1415(i)(3)(B)(i)(I); see also Arlington Cent. Sch. Dist. Bd.

of Educ. v. Murphy, 548 U.S. 291, 301–02 (2006) (noting the

“virtually identical [] wording” of § 1415(i)(3)(B) and

42 U.S.C. § 1988). In 2004, Congress amended 20 U.S.C.

§ 1415(i)(3)(B), to allow a prevailing defendant in an IDEA

case to seek fees against the attorneys of a parent or against

the parent himself if the claims alleged were frivolous or

brought for an improper purpose. See P.L. No. 108-446,

December 3, 2004, 118 Stat. 2647.

B.

At the time of the disputed occupational therapy

assessment in this case, C.W. was 11-years old. C.W. was

and continues to be eligible for special education services

under the eligibility category of “Other Health Impairment”

because she has cerebral palsy, a ventriculoperitoneal shunt,

and a heart murmur. C.W. also has low cognitive ability. 

C.W. was in a special day class at Crown Valley Elementary

School within the District.

The District performed its legally required triennial

assessment of C.W. in 2010. The multidisciplinary team

recommended that C.W. remain eligible for special education

and related services because “she exhibits a severe health
C.W. V. CAPISTRANO UNIFIED SCH. DIST. 7

disorder which adversely affects educational performance.” 

Following an initial Individualized Education Program1

meeting in October 2010, K.S. consented to an occupational

therapy assessment for C.W. This assessment of C.W. in

areas of gross and fine motor development, was conducted by

Rebecca Hirchag, a licensed occupational therapist (“OT”). 

The OT assessment included a review of medical and

educational records, a teacher interview, a parent interview,

naturalistic observations of performance in an educational

setting, and clinical observations, as well as five different

standardized assessment tools. The OT report concluded:

Assessment revealed fine motor precision and

bilateral integration skills in the average range

when compared to typically developing peers

her same age. Scores for fine motor

integration and upper limb coordination were

slightly below average however in alignment

with her academic ability. Manual dexterity

scores were impacted by time. Please see

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

includes (i) “a statement of the child’s present levels of academic

achievement and functional performance”; (ii) “a statement of measurable

annual goals, including academic and functional goals”; (iii) “a description

of how the child’s progress toward meeting the annual goals . . . will be

measured”; (iv) “a statement of the special education and related services

and supplementary aids and services . . . to be provided to the child”;

(v) “an explanation of the extent, if any, to which the child will not

participate with nondisabled children in the regular class”; (vi) “a

statement of any individual appropriate accommodations that are

necessary to measure the academic achievement and functional

performance ofthe child on State and districtwide assessments”; (vii) “the

projected date” for the beginning of the services” in (iv); and

(viii) beginning when the child is 16, “measurable postsecondary goals”

along with the “transition services . . . needed to assist the child” in

reaching those goals. 20 U.S.C. § 1414(d)(1)(A)(i).
8 C.W. V. CAPISTRANO UNIFIED SCH. DIST.

accommodations in the chart below to assist

[C.W.] in the classroom. . . . In the classroom

she is focused and attentive, she is processing

sensory information with regards to her access

of educational environment.

Hirchag made several recommendations for goals,

modifications, or accommodations based on C.W.’s

weaknesses in manual dexterity, registration and sensitivity,

remembering content during written language assignments,

spelling, and desk organization, but she did not recommend

whether any direct OT services were needed. The IEP,

informed by the OT assessment, recommended a one hourmonthly collaboration between an OT therapist and C.W.’s

teacher to evaluate strategies for going forward, as well as

two 30-minute individual OT consults per year.

Hirchag presented the OT assessment at a January 12,

2011 IEP meeting, and K.S. responded that it was “stupid.” 

K.S. also expressed shock that the OT assessment concluded

that C.W. was able to appropriately cut a shape from paper,

and said that at home, C.W. holds scissors incorrectly.

On January 25, 2011, K.S., pursuant to California law,

requested an independent educational evaluation for

occupational therapy based on her disagreement with the

occupational therapy portion of the January 2011 IEP. See

Cal. Educ. Code § 56329(b) (granting parents the “right to

obtain, at public expense, an independent educational

assessment of the pupil from qualified specialists . . . if the

parent or guardian disagrees with an assessment obtained by

the public education agency”); 34 C.F.R. § 300.502(a)

(same). K.S. refused to consent to the OT portion of the IEP

because the District failed to include in C.W.’s January 2011

IEP all of the OT report’s recommended accommodations. 
C.W. V. CAPISTRANO UNIFIED SCH. DIST. 9

The letter was signed by attorney Jennifer Guze Campbell of

the Special Education Law Firm.

On February 23, 2011, the District denied the request for

an independent educational evaluation at public expense. The

District filed its complaint initiating a due process hearing

before an Administrative Law Judge (“ALJ”) on March 4,

2011.2

C.

The Due Process hearing concerned two issues:

(1) whether the OT assessment was appropriate; and

(2) whether the District committed a procedural IDEA

violation by delaying unnecessarily in filing its due process

complaint. The ALJ reviewed the records and took

testimony, principally from Hirchag. The ALJ concluded that

the OT assessment was administered properly pursuant to the

correct test manual and in compliance with the statutory

requirements. The ALJ also concluded that the forty days

between the IEE request and the filing of the Due Process

complaint was not unnecessary delay.

2 Once a parent requests an IEE at public expense, “the public agency

must, without unnecessary delay, either– (i) File a due process complaint

to request a hearing to show that its evaluation is appropriate; or

(ii) Ensure that an independent educational evaluation is provided at

public expense . . . .” 34 C.F.R. § 300.502 (b)(2). “[If] the final decision

is that the agency’s evaluation is appropriate, the parent still has the right

to an independent educational evaluation, but not at public expense.” Id.

at (b)(3); see Cal. Educ. Code § 56329(c) (“If the final decision resulting

from the due process hearing is that the assessment is appropriate, the

parent or guardian maintains the right for an independent educational

assessment, but not at public expense.”).
10 C.W. V. CAPISTRANO UNIFIED SCH. DIST.

Because the ALJ concluded that the District’s OT

assessment was appropriate, C.W. remained able to obtain an

independent assessment, but not at a public expense. K.S.’s

remedy was to appeal the ALJ decision in federal district

court. On July 1, 2011, K.S.’s attorney wrote to the District

indicating that K.S. would forego an appeal if the District

agreed to fund the IEE for occupational therapy and pay

$12,500 in attorney’s fees and costs to her attorneys, The

Special Education Law Firm. Counsel noted that: “legal fees

will continue to increase as this matter proceeds to Federal

litigation if the parties do not achieve a settlement

agreement.” The District’s attorney responded in a letter

dated July 14, 2011:

Your July 1, 2011 correspondence cements

your office’s pattern of litigating, and

threatening to litigate, nonexistent

violations . . . As you are aware, continued

litigation as to the appropriateness of the

District’s 2011 occupational therapy

assessment is frivolous . . . . Accordingly, the

District reserves the right to seeks [sic]

sanctions against you and your client if the

most recent administrative decision is

appealed.

D.

On August 3, 2011, K.S. filed an appeal of the ALJ’s

decision in federal district court, adding claims for violations

of the intimidation clause of the Americans with Disabilities

Act, 42 U.S.C. § 12203(b); 42 U.S.C. § 1983 for retaliation

in violation of K.S.’s First Amendment rights; and § 504 of

the Rehabilitation Act of 1973. Each of these additional

claims was based on the theory that the District’s July 14,
C.W. V. CAPISTRANO UNIFIED SCH. DIST. 11

2001 letter was an attempt to intimidate K.S. from pursuing

her legal right to appeal the ALJ decision.

The District moved under Federal Rule of Civil Procedure

12(b)(6) for dismissal of the ADA, § 1983, and § 504 claims. 

The district court dismissed the ADA claim with prejudice;

dismissed the § 1983 claim with prejudice, except to the

extent injunctive relief was sought; and dismissed the § 504

claim because, as pled, it failed to meet the standards

articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544

(2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009), but

granted K.S. leave to amend the § 504 claim because an

amendment might not be futile.

On January 13, 2012, K.S. filed an amended complaint

alleging the § 1983 and ADA claims once more and pleading

the § 504 claim with more particularity. In response, the

District filed a second motion to dismiss on January 27, 2012,

and on January 31, the parties stipulated to dismiss the § 1983

and ADA claims with prejudice. The district court dismissed

the § 504 claim with prejudice on March 23, 2012.

On July 2, 2012, K.S. moved for summary judgment,

arguing the ALJ incorrectly ruled on the adequacy of the OT

assessment because it failed to recommend that C.W. may

need special education and related services and that the

District had not unnecessarily delayed in filing the due

process complaint.

On August 3, 2012, the district court affirmed the ALJ’s

decision, finding that it “contain[ed] no factual errors and was

thorough and careful,” and concluding that the disputed

occupational therapy report did not violate the IDEA and the

District did not unnecessarilydelayits due process complaint. 

The court further denied K.S.’s request for attorney’s fees and
12 C.W. V. CAPISTRANO UNIFIED SCH. DIST.

invited the District to file a request for attorney’s fees

because the “bases for appeal [were] frivolous.”

The District accepted the court’s invitation and was

awarded $94,602.34 in attorney’s fees and $2,058.21 in costs. 

The district court found that each of the claims was

“frivolous, unreasonable, and without foundation.” Further,

the court concluded that these claims were brought by K.S.

for the improper purpose of “harassment, unnecessary delay,

and needlessly increasing litigation costs,” exposing K.S. to

potential personal liability for the fees. 

II.

We review for abuse of discretion a district court’s

award of attorney’s fees to a prevailing defendant

under the fee provisions of the IDEA, 20 U.S.C.

§ 1415(i)(3)(B)(i)(II)–(III). R.P. v. Prescott Unified Sch.

Dist., 631 F.3d 1117, 1125 (9th Cir. 2011). “A district court

abuses its discretion when it awards fees based on an

inaccurate view of the law or a clearly erroneous finding of

fact.” Benton v. Or. Student Assistance Comm’n, 421 F.3d

901, 904 (9th Cir. 2005) (internal quotation marks and

citation omitted). In reviewing attorney’s fees awards in

other contexts, we “employ a two-step inquiry to determine

whether a district court abused its discretion in applying law

to facts in a manner that is ‘essentially factual.’” United

States v. Capener, 608 F.3d 392, 400 (9th Cir. 2010) (internal

citation omitted).

First, we determine de novo whether the trial

court identified the correct legal rule to apply

to the relief requested. If it did, we then

evaluate the trial court’s application of this

legal standard to the facts of the case and may
C.W. V. CAPISTRANO UNIFIED SCH. DIST. 13

reverse only if its application was

(1) illogical, (2) implausible, or (3) without

support in inferences that may be drawn from

the facts in the record.

Id. (internal citations and quotation marks omitted). 

Moreover, “[a]ny elements of legal analysis which figure in

the district court’s decision are . . . subject to de novo

review.” Benton, 421 F.3d at 904.

A.

Section 1415 allows prevailing defendants in IDEA cases

to recover fees from the attorney of a parent and from a

parent in certain rare circumstances. A prevailing school

district may recover attorney’s fees against the parent’s

attorney where the complaint is “frivolous, unreasonable, or

without foundation” (the “frivolous prong”). 20 U.S.C.

§ 1415(i)(3)(B)(i)(II). Additionally, attorney’s fees may be

awarded against a parent or her attorney, “if the parent’s

complaint or subsequent cause of action was presented for

any improper purpose” (the “improper purpose prong”). 

20 U.S.C. § 1415(i)(3)(B)(i)(III). The statute gives examples

of improper purposes, including “to harass, to cause

unnecessary delay, or to needlessly increase the cost of

litigation.” Id.

We have previously noted that there is little case law

governing fee awards to prevailing defendants under the

IDEA. R.P., 631 F.3d at 1124. In R.P., though we rejected

the autistic child’s claim that he was denied a fair and

appropriate education in violation of the IDEA, we reversed

the district court’s award of attorney’s fees to the school

district because it applied an improper and unsupported legal

standard. There, we concluded:
14 C.W. V. CAPISTRANO UNIFIED SCH. DIST.

[T]he language of the IDEA’s fee-shifting

statute is nearly identical to 42 U.S.C. § 1988,

the general fee-shifting provision for federal

civil rights cases. And the IDEA’s language

granting fees to prevailing defendants is

nearly identical to the standard the Supreme

Court developed in Christiansburg Garment

Co. v. EEOC, 434 U.S. 412, . . . (1978),

which is now the standard for awarding fees

to prevailing defendants in civil rights cases.

Id. at 1124–25 (internal quotation marks and citations

omitted). We explained that the legislative history of § 1415

demonstrates that Congress fashioned the first part of the law,

which allows defendants to recover if a claim is frivolous,

after the Christiansburg standard. The second part of the law,

§ 1415(i)(3)(B)(i)(III), which allows a prevailing party to

recover against the parents or the parents’ attorneys in the

event that a claim is brought for an improper purpose, “comes

from another well-established Federal law: Federal Rule of

Civil Procedure 11.” R.P., 631 F.3d at 1125 (quoting 150

Cong. Rec. S5250, S5349 (daily ed. May 12, 2004)

(statement of Sen. Gregg)). We therefore “rely on

Christiansburg and Rule 11 cases to determine whether the

district court abused its discretion in awarding attorney’s fees

to the school district against the parents and their lawyer.” Id.

B. Frivolousness

1. IDEA Claims

In assessing the frivolousness of the IDEA claims, the

district court abused its discretion by failing to properly apply

the Christiansburg standard. R.P., 631 F.3d at 1124–25. 
C.W. V. CAPISTRANO UNIFIED SCH. DIST. 15

When the correct legal standard is applied, it is clear that the

claims were not frivolous within the meaning of the statute.

Under Christiansburg, a prevailing defendant is entitled

to attorney’s fees only if plaintiff’s “claim was frivolous,

unreasonable, or groundless, or . . . the plaintiff continued to

litigate after it clearly became so.” 434 U.S. at 422. In

considering what constitutes a claim that is frivolous,

unreasonable or groundless, “it is important that a district

court resist the understandable temptation to engage in post

hoc reasoning by concluding that, because a plaintiff did not

ultimately prevail, his action must have been unreasonable or

without foundation.” Id. at 421–22. And, “if a plaintiff is

found to have brought or continued such a claim in bad faith,

there will be an even stronger basis for charging him with the

attorney’s fees incurred by the defense.” Id. at 422.

Applying the Christiansburg frivolousness standard, we

have held that “[a] case may be deemed frivolous only when

the result is obvious or the . . . arguments of error are wholly

without merit.” Karam v. City of Burbank, 352 F.3d 1188,

1195 (9th Cir. 2003) (internal citation and quotation marks

omitted). Moreover, when there is very little case law on

point and a claim raises a novel question, the claim is much

less likely to be considered frivolous. Id.

To the extent that the district court implied that the IDEA

claims were frivolous at the administrative hearing stage, it

erred.3 First, the District, not K.S., filed the due process

3

 The district court failed to analyze whether the claim was frivolous at

the administrative hearing stage, despite suggesting it could award

attorney’s fees for fees incurred at the due process stage. In theory,

however, fees are available for the time spent litigating before the ALJ. 

See Lucht v. Molalla River Sch. Dist., 225 F.3d 1023, 1028 (9thCir. 2000)
16 C.W. V. CAPISTRANO UNIFIED SCH. DIST.

complaint after it decided not to address K.S.’s two concerns

regarding the OT assessment that was provided. Second, the

ALJ’s inquiry focused narrowly on “[w]hether the District’s

January 5, 2011 occupational therapy (OT) assessment was

appropriate.” K.S. contended that the OT assessment was not

appropriate because: (1) The testing used and the scoring of

at least one of the OT tests underlying the OT assessment was

inappropriate; and (2) the report failed to comply with

statutory requirements because the report omits the 

assessor’s conclusion about whether C.W. actually required

special education services. The ALJ conducted a thorough

review of these claims, taking testimony from the OT

assessor, and ultimately rejected K.S.’s arguments. Nothing

in the ALJ’s decision hints that these claims were

frivolous—indeed, the ALJ’s careful analysis, findings of

fact, and conclusions of law indicate the seriousness of K.S.’s

claims.

Nor were the IDEA claims frivolous as the litigation

continued. In the motion for summary judgment before the

district court, K.S. argued that the requirement of California

Education Code § 56327—that a written assessment of a

student include a statement of whether the pupil may need

special education and related services—was not met in this

case. K.S. disagreed with the report because it did not

adequately address C.W.’s then-current situation. 

Specifically, it was undisputed that the OT report did not

include any specific recommendation and evinced concern

that the subsequently recommended collaborative OT would

merely take the form of ad hoc informal conversations

(“[T]he text of § 1415(i)(3)(B) suggests that Congress intended that

attorney fee awards be available in actions and proceedings under § 1415

as well as in impartial due process hearings.”).
C.W. V. CAPISTRANO UNIFIED SCH. DIST. 17

between the OT therapist and C.W.’s teacher rather than any

actual occupational therapy.

K.S.’s claims relating to the OT assessment were poorly

plead and argued and she ultimately lost; however, this does

not mean they were frivolous. As we said in R.P. 631 F.3d at

1126, “[l]awyers would be improperly discouraged from

taking on potentially meritorious IDEA cases if they risked

being saddled with a six-figure judgment for bringing a suit

where they have a plausible, though ultimately unsuccessful,

argument, as here.” There was some basis for K.S.’s belief

that the OT assessment was inappropriate, some basis for

concluding that the report failed to meet the procedural

requirements of California Education Code § 56327 (a–b),

and some basis for believing that the IEP failed to provide

C.W. with a free and public education (“FAPE”). In its

decision on the merits, the district court concluded that

because the District did not “dispute [C.W.’s] eligibility at the

time the Disputed Report was written,” the procedural

violation alleged is “especially frivolous.” This conclusion

misapprehended the fact that the OT assessment itself could

be read to violate California Education Code § 56327, which

requires anyone who assesses the pupil to prepare a written

report which includes “[w]hether the pupil may need special

education and related services,” and “[t]he basis for making

the determination.” In reviewing the OT assessment, Hirchag

never states whether C.W. is or is not eligible for OT services

and on what basis. While the district court appropriately

notes that the OT assessment mentions that C.W. was eligible

for special education services, § 56327 by its own terms also

states that the report should note whether the pupil may need

“related services.” Given the dearth of cases citing or
18 C.W. V. CAPISTRANO UNIFIED SCH. DIST.

interpreting § 56327’s requirements,4it was hardly a foregone

conclusion that a challenge to the OT assessment on the basis

of its failure to include a section recommending what OT

services should be provided to C.W. or seeking an

independent evaluation to ascertain which services should be

provided, could not prevail. See Karam, 352 F.3d at 1195

(“A case is less likely to be considered frivolous when there

is very little case law directly apposite.”) (citation and

internal quotation marks omitted). As in Karam, “[t]hese

circumstances furnish some basis, albeit somewhat tenuous,”

352 F.3d at 1196, for the conclusion that there was some

factual basis for C.W.’s claim. The factual basis for the claim

in concert with the lack of apposite case-law demonstrates

that this claim is not frivolous.

In its analysis of the frivolousness of the 41-day

“unnecessarydelay” claim, the district court also failed to cite

any case law setting forth the standard for frivolousness. 

Under Christiansburg, K.S.’s claim that the 41-day delay

between parent’s request for an IEE and the District filing for

a due process hearing was “unnecessary” in violation of 34

C.F.R. § 300.502 (b)(2) was not frivolous. Although other

courts have held that periods of time longer than 41-days do

not constitute an “unnecessarydelay,” those same courts have

highlighted the fact-specific inquiry necessary to determine

whether the delay violated the Regulation. See, e.g., J.P. v.

Ripon Unified Sch. Dist., No. 2:07-cv-02084-MCE-DAD,

2009 WL 1034993, at *7–8 (E.D. Cal. Apr. 15, 2009).

4 A search of WestlawNext reveals only five cases citing this provision,

two of which are the two decisions by the district court in this case.
C.W. V. CAPISTRANO UNIFIED SCH. DIST. 19

2. Retaliation-Based Claims

The district court did not discuss Christiansburg in

concluding that the three retaliation-based claims were

frivolous. Nonetheless, our review of these claims under the

proper legal framework demonstrates that two of the three

retaliation-based claims were frivolous, and we affirm the

district court’s finding as to these claims.5

The ADA intimidation claim and the § 1983 claim lack

any legal foundation and “the result is obvious.” Karam,

352 F.3d at 1195. The ADA intimidation claim filed under

42 U.S.C. § 12203(b) had an outcome that was clear at the

time it was filed. Section 12203(b) states: “It shall be

unlawful to coerce, intimidate, threaten, or interfere with any

individual in the exercise or enjoyment of, or on account of

his or her having exercised or enjoyed, or on account of his

or her having aided or encouraged any other individual in the

exercise or enjoyment of, any right granted or protected by

this chapter.” (emphasis added). By its own terms,

protection under the ADA against intimidation does not

extend to a plaintiff’s attempts to exercise rights granted or

protected by the IDEA—the basis of K.S.’s claim in this case. 

See Morse v. N. Coast Opportunities, Inc., 118 F.3d 1338,

1343 (9th Cir. 1997) (“Because [Plaintiff’s] § 1983 complaint

5

“We may affirm a district court’s judgment on any ground supported

by the record, whether or not the decision of the district court relied on the

same grounds or reasoning we adopt.” Atel Fin. Corp. v. Quaker Coal Co.,

321 F.3d 924, 926 (9th Cir. 2003) (per curiam); see also, Patton v. Cnty.

of Kings, 857 F.2d 1379, 1381 (9th Cir. 1988) (“Ordinarily, a district

court’s failure to provide any explanation regarding its conclusion that

plaintiff’s suit is frivolous necessitates remand. However, when a court

does not enter a specific finding of fact or conclusion of law, we will

uphold the result if there is a reasonable view of the record to support it.”).
20 C.W. V. CAPISTRANO UNIFIED SCH. DIST.

against [Defendant] is completely barred by the terms of the

statute, we find that her claim is ‘unreasonable’ and

‘meritless.’”). The district court concluded as much in

dismissing the claim with prejudice. Despite this dismissal,

K.S.’s attorneys pled the same claim in their First Amended

Complaint requiring the District to respond once again to this

frivolous claim.6

The § 1983 claim seeking monetary damages and

injunctive relief is likewise frivolous, its outcome

predetermined by a review of relevant law. It is wellestablished that a school district cannot be sued for damages

under § 1983. Belanger v. Madera Unified Sch. Dist.,

963 F.2d 248, 254 (9th Cir. 1992) (holding that in California,

school districts are state agencies for purposes of Eleventh

Amendment immunity, and concluding that school districts

cannot be liable for damages under § 1983). The district

court dismissed this claim with prejudice, except insofar as

K.S. sought some sort of injunctive relief against the district. 

The request for injunctive relief, however, also is frivolous

because K.S. failed to indicate what she sought to enjoin or

what injunctive relief would be possible in this case. See

Hudson v. Moore Bus. Forms, Inc., 836 F.2d 1156, 1163 (9th

Cir. 1987) (“[F]ailure to justify the basis for the [damages

sought] onlyserve[s]to support the district court’s conclusion

6 The dissent argues that K.S. dismissed her ADA intimidation and

§ 1983 claims by stipulation “almost immediately after opposing counsel

objected to their inclusion in the amended complaint,” and that, therefore,

the claims should not be deemed sanction-worthy. This statement is

neither true nor relevant. Our conclusion rests on a finding that the ADA

and § 1983 claims were frivolous from the outset. Although K.S. did file

them again after they were dismissed with prejudice, she did not stipulate

to dismiss them until after the District filed a second motion to dismiss

them. But that fact is irrelevant to our conclusion that the claims were

always frivolous.
C.W. V. CAPISTRANO UNIFIED SCH. DIST. 21

that the damage claims were frivolous and brought to

harass.”). Finally, despite the district court’s dismissal with

prejudice of this claim, K.S. reasserted the § 1983 claim in

her amended complaint, including a request for damages.7

The final retaliation-related claim based on § 504 of the

Rehabilitation Act of 1973, in contrast, is not frivolous. 

Although the district court ultimately granted the District’s

Rule 12(b)(6) motion to dismiss, it did so after careful

consideration, ultimately concluding that “the specific facts

of this case would not dissuade a reasonable person from

engaging in a protected activity.” As the district court’s own

reasoning made clear, “[K.S.] present[ed] evidence that, if

believed by the fact-finder, would [have] entitle[d] [her] to

relief.” R.P., 631 F.3d at 1126. Under such circumstances,

“the case is per se not frivolous and will not support an award

of attorney’s fees.” Id. Moreover, although K.S. did not

ultimately prevail on this case, dismissal under Rule 12(b)(6)

is not the same as the standard for frivolousness. See, e.g.,

Neitzke v. Williams, 490 U.S. 319 (1989) (discussing at length

the difference between failure to state a claim under Rule

12(b)(6) and a finding of frivolousness).

C. Improper Purpose

The district court also concluded that K.S.’s claims were

brought for an improper purpose, thus exposing K.S. to

liability for attorney’s fees—an extreme result that not even

the District sought.8 A finding of frivolousness, without a

7

Indeed, counsel for C.W. conceded at oral argument that the § 1983

claim was frivolous to the extent C.W. sought monetary damages.

8 The District confirmed during oral argument that it did not seek

attorney’s fees from K.S., but from K.S.’s counsel only.
22 C.W. V. CAPISTRANO UNIFIED SCH. DIST.

finding of improper purpose, allows a school district to

recover fees from the attorneys, not the parents. See

20 U.S.C. § 1415(i)(3)(B)(i)(III). “It’s therefore harder for a

school district to collect attorney’s fees against parents than

against their lawyers: Collecting against parents requires a

showing of both frivolousness and an improper purpose,

while collecting against their attorneys requires only a

showing of frivolousness. This makes sense, since parents

are not usually in the position to assess whether a claim is

frivolous.” R.P., 631 F.3d at 1126.

We have held, as a matter of law, that “a non-frivolous

claim is never filed for an improper purpose.” Id. Therefore,

we consider only whether the § 1983 and ADA claims were

brought for an improper purpose. Federal Rule of Civil

Procedure 11(b) governs our analysis. See id. at 1125. We

have recognized that under Rule 11(b)(1), “[a]n improper

purpose is a purpose to ‘harass or to cause unnecessary delay

or needless increase in the cost of litigation.’” G.C. & K.B.

Invs., Inc. v. Wilson, 326 F.3d 1096, 1110 (9th Cir. 2003)

(quoting Rule 11(b)(1)). An improper purpose “is ‘tested by

objective standards,’” id. (quoting Zaldivar v. City of Los

Angeles, 780 F.2d 823, 831 n.9 (9th Cir. 1986)), and may be

found where “a motion or paper, other than a complaint, is

filed in the context of a persistent pattern of clearly abusive

litigation activity.” Aetna Life Ins. Co. v. Alla Med. Servs.

Inc., 855 F.2d 1470, 1476 (9th Cir. 1988).

The district court concluded that K.S. demonstrated her

improper purpose by her “attempt to extort fees from District

to which Mother was not legally entitled in exchange for

Mother foregoing an appeal.” The district court stated: “In

short, Mother’s offer to ransom her child’s IDEA appeal in

exchange for money to which her non-attorney advocate was

not entitled shows that the purpose of this appeal was not to
C.W. V. CAPISTRANO UNIFIED SCH. DIST. 23

vindicate the rights of her disabled child.” There is no basis

in the record for this finding.

First, a reading of the terms of the settlement offer reveals

no attempt by K.S. to “ransom” the appeal in exchange for

any improper gain. In that settlement offer, K.S. sought both

the District’s funding of an IEE and the attorney’s fees and

costs incurred by the Special Education Law Firm. Her

settlement offer— clearlycontingent upon her child receiving

the IEE that K.S. believed C.W. deserved— cannot be

characterized as an effort to improperly extort funds.

Second, from the start, all K.S. sought was a proper OT

recommendation for her child. When the District refused to

provide the requested recommendation, she defended against

the District’s due process complaint, and then, prior to

appealing the adverse decision, provided, through the

settlement offer, an option to avoid further litigation should

the District agree to fund the IEE that she sought for C.W. 

When the District refused to settle the dispute, K.S. appealed. 

The record fails to reflect the one-sided effort to

“unnecessarily increase the litigation costs incurred by

District until it acquiesced to lining the pockets of her nonattorney advocate” described by the district court. Nor do the

July 2011 letters counsel exchanged reflect “clearly abusive

litigation activity”; they were, rather, a sideshow by

overzealous advocates. Aetna Life Ins., 855 F.2d at 1476.

Furthermore, the district court’s order shows a degree of

frustration with K.S. and her counsel. (“Finally, Mother’s

latest salvo against this Court is entirely consistent with her

strategy throughout this appeal of casting unfounded

aspersions on the expertise or reasoning of others to deflect

from her own shortcomings.”) District Court’s Order, p. 14. 

To the extent that the district court’s frustration with K.S. and
24 C.W. V. CAPISTRANO UNIFIED SCH. DIST.

counsel colored its legal conclusions that these claims were

brought for an improper purpose, this was error. As already

discussed, no evidence supports an alleged improper purpose. 

Instead, the record compels the conclusion that K.S. was

simply attempting to “vindicate the rights of [her] disabled

child.”9 R.P., 631, F.3d at 1127. K.S.’s steadfast

determination to ensure that her child received the

appropriate OT is not an improper purpose justifying an

award of attorney’s fees. Indeed, we have made clear that

“anger is a legitimate reaction by parties who believe that

their rights have been violated or ignored.” Id. at 1127.

III.

Where a plaintiff has asserted both frivolous and nonfrivolous claims, a prevailing defendant may recover

attorney’s fees under § 1988 for the time attributable to

defending against solely the frivolous claims. Fox v. Vice,

131 S. Ct. 2205, 2214 (2011). We have held that, “[f]ees may

be awarded only for frivolous claims, and a defendant bears

the burden of establishing that the fees for which it is asking

are in fact incurred solely by virtue of the need to defend

against those frivolous claims.” Harris v. Maricopa Cnty.

Super. Ct., 631 F.3d 963, 971 (9th Cir. 2011); see also TutorSaliba Corp. v. City of Hailey, 452 F.3d 1055, 1063–64 (9th

Cir. 2006) (following other circuits in permitting defendants

to recover fees under § 1988 for those claims that were

frivolous, even when related to the non-frivolous claims, so

long as the claims were “distinctive”). Because Congress

modeled the fee-shifting provisions of § 1415 on § 1988, we

9 Whether K.S.’s counsel brought the § 1983 and ADA claims for an

improper purpose is unnecessary to decide because a finding of

frivolousness alone is sufficient to allow the District to recover attorney’s

fees against counsel under § 1415.
C.W. V. CAPISTRANO UNIFIED SCH. DIST. 25

conclude that this principle is equally applicable in the § 1415

context. See R.P., 631 F.3d at 1125. Therefore, we reverse

in part and affirm in part the award of attorney’s fees. 

Accordingly, we remand this case to the district court with

specific instructions to determine which fees are attributable

solely to litigating the frivolous § 1983 and ADA claims in

this case and to award attorney’s fees against K.S.’s attorneys

in an amount limited to fees generated for work litigating

those claims only.

This panel, as presently constituted, will entertain any

further appeals in this case.

IV.

For the foregoing reasons, the district court’s order

awarding attorney’s fees and costs is reversed in part and

affirmed in part.

Each party shall bear its own costs on appeal.

AFFIRMED in part; REVERSED in part;

REMANDED.

REINHARDT, Circuit Judge, concurring in part and

dissenting in part:

This case is about a mother who engaged in IDEA

litigation principally to secure an independent educational

evaluation for occupational therapy for her child, who

indisputably has special education needs. In the course of

litigating her IDEA claim, the mother alleged that her child’s
26 C.W. V. CAPISTRANO UNIFIED SCH. DIST.

school district violated not only the Individuals with

Disabilities Education Act (IDEA), but also theRehabilitation

Act, the Americans with Disabilities Act (ADA), and § 1983

by improperly threatening to seek sanctions against her and

her counsel if they appealed the administrative denial of the

child’s IDEA claims.

At the conclusion of the mother’s unsuccessful attempt to

obtain an independent educational evaluation in the district

court, the district judge of his own accord invited the school

district to file a motion for attorney’s fees. The district judge

— expressing a “degree of frustration” with the child’s

mother and her counsel, Maj. Op. at 23 — then awarded the

school district nearly $100,000 in fees and costs, finding

not only that each of the mother’s claims was frivolous, but

that they were brought for improper purposes — “namely,

to ‘harass,’ ‘cause unnecessary delay,’ and ‘needlessly

increase the costs of litigation’” (citing 20 U.S.C.

§ 1415(i)(3)(B)(i)(III)). Under the IDEA, the latter finding

exposed the mother herself to potential liability.

In almost all respects, the majority correctly finds that the

district court was wrong. Specifically, the majority holds that

the claims under the IDEA and the Rehabilitation Act were

not frivolous, and it holds that none of the claims was brought

for any improper purpose. To that extent, I agree completely

with the majority. My colleagues, however, perhaps out of a

desire to give something to both sides, partially affirm the

district court’s decision by holding that the claims under the

ADA and § 1983 were frivolous, although those claims were

based entirely on the very same facts that underlay the nonfrivolous claim under the Rehabilitation Act. This holding

represents more than what some might call legalistic arglebargle. To hold that when a litigant has a non-frivolous claim

and pleads it under the wrong legal label as well as under the
C.W. V. CAPISTRANO UNIFIED SCH. DIST. 27

right one, the pleadings under the wrong statutes are frivolous

and warrant the imposition of sanctions runs contrary to the

spirit and purpose of the IDEA. Such sanctions, if upheld,

would not only penalize both civil rights litigants and lawyers

for good faith efforts to correct perceived violations of

statutes designed to help some of those most in need of help

from our judiciary, but would chill the filing of civil rights —

here, disability — claims in the first instance. Although the

majority opinion should ultimately result in a very small

award for the additional legal work necessary to obtain the

dismissal of the ADA and § 1983 claims, the majority’s

decision to impose sanctions on a small special education law

firm for mere overpleading is important, as it creates

extremely bad law. I strongly disagree that the plaintiff’s

filing of her ADA and § 1983 claims justifies any sanctions

at all, and I dissent from that portion of the majority opinion.

Under the IDEA, a prevailing defendant agency or district

can recover fees only in “rare circumstances.” R.P. v.

Prescott Unified Sch. Dist., 631 F.3d 1117, 1124 (9th Cir.

2011). Such circumstances generally involve conduct so

offensive to the fair and honorable practice of law that it

merits sanctioning of the offending attorneys. An attorney

who files a legitimate action for a client does not exceed the

bounds of honorable lawyering when he adds to the

complaint an allegation that the same conduct violates related

statutes as well, whether doing so results from a disagreement

with prior case law, the offering of a novel though erroneous

legal theory, or an inability to thoroughly research every

possible legal theory before filing the complaint. Although

law firms with thousands of attorneys may be able to fully

research every legal claim they assert, a small, under-staffed,

and under-paid law firm seeking to protect the rights of

children with disabilities should not be held to so rigorous a

standard. As a lawyer with obligations to his client, counsel
28 C.W. V. CAPISTRANO UNIFIED SCH. DIST.

from such a firm is following his professional duties far better

by possibly overpleading the number of statutes the

defendant’s unlawful actions may violate than by

underpleading them. The former does far less harm to the

defendant who may readily have the extraneous counts

stricken than the latter does to the plaintiff who may lose a

legitimate claim should the lawyer fail to include all

potentially applicable statutes. Counsel’s action of referring

to too many statutes, rather than too few, is not the type of

“rare circumstance” that warrants the sanctioning of a lawyer

asserting a legitimate IDEA claim.

That is particularly true in this case, as counsel “may have

[had] an entirely reasonable ground for bringing” claims

under § 1983 and the ADA, despite the fact that “the law . . .

appear[ed] questionable or unfavorable at the outset.” 

Christianburg Garment Co. v. EEOC, 434 U.S. 412, 422

(1978). The damages claim under § 1983, for example, failed

because we had held almost a quarter of a century ago in

Belanger v. Madera Unified Sch. Dist, 963 F.2d 248, 254 (9th

Cir. 1992), that a school district in California is an arm of the

state for purposes of Eleventh Amendment immunity. 

Although the rule of Belanger is undoubtedly presently good

law in our court as to the immunity of California school

districts, “the Supreme Court and the vast majority of

appellate courts that have considered the issue [as it relates to

school districts in other states] have found that school

districts and school boards are not entitled to Eleventh

Amendment immunity.” Lightfoot v. Henry Cty. Sch. Dist.,

771 F.3d 764, 768–69 (11th Cir. 2014). It would not be

improper or surprising for a plaintiff to question whether

Belanger should remain good law by raising that argument

for purposes of asserting it before an en banc court or even in

order to preserve the possibility of seeking Supreme Court

review. See Davis v. Electronic Arts Inc., No. 12-15737,
C.W. V. CAPISTRANO UNIFIED SCH. DIST. 29

2015 WL 66510, at *6 n.7 (9th Cir. Jan. 6, 2015). However,

by sanctioning the attorney in this case because the plaintiff’s

§ 1983 claim was barred by Belanger, the majority severely

punishes the exercise of that legitimate right and violates the

“rare circumstances” rule.

The plaintiff's ADA claim, moreover, was rejected by the

district court only because, in its view, the statutory text

under which counsel asserted that claim was not expansive

enough to support the plaintiff’s argument. As an initial

matter, I disagree with the majority’s failure to treat this

claim in the same manner as it did the Rehabilitation Act

claim, which the majority correctly determined was not

frivolous. We have held that “[t]here is no significant

difference in analysis of the rights and obligations created by

the ADA and the Rehabilitation Act,” Zukle v. Regents of

Univ. of Cal., 166 F.3d 1041, 1045 n.11 (9th Cir. 1999), and

the majority provides no reason not to follow that rule in this

case. Even if the majority were correct, however, that the

statutory text under which counsel brought the ADA claim

was not expansive enough to support it, that would not be a

sufficient reason to find the claim frivolous. I need not

recount the number of times that a federal court has read

statutory text as holding a meaning that its ordinary language

would not appear to bear. See, e.g., Chevron U.S.A. Inc. v.

Echazabal, 536 U.S. 73, 76 (2002) (holding that the ADA’s

direct-threat defense may apply not only to “other individuals

in the workplace,” as the statute states, but to the disabled

individual himself). The fact that the plaintiff’s arguments

were not successful in this case “doesn’t make them

frivolous.” R.P., 631 F.3d at 1126. More fundamentally,

however, it is entirely reasonable for practitioners in a small

law firm (or even counsel in a large firm) to think that the

Americans with Disabilities Act might apply in a case

concerning a child with disabilities and to set forth that
30 C.W. V. CAPISTRANO UNIFIED SCH. DIST.

contention in a complaint. Thinking so, right or wrong, is not

a ground for sanctions.

The arguments against sanctioning plaintiff’s counsel for

bringing the mother’s legitimate intimidation claim under

what the majority believes to be the wrong statutes — § 1983

and the ADA — as well as under what it holds to be the right

one — the Rehabilitation Act — are especially strong

considering the minimal costs that the defendant incurred

“solely by virtue of the need to defend against” these claims. 

Harris v. Maricopa Cnty., 631 F.3d 963, 971 (9th Cir. 2011). 

As the majority opinion correctly states, a court may grant

attorney’s fees to the defendant “only for costs that the

defendant would not have incurred but for the frivolous

claims.” Fox v. Vice, 131 S. Ct. 2205, 2211 (2011). In this

case, it is impossible for those costs to be more than a

minimal amount, if any. All of the time and effort that the

defendant expended defending against the substance of the

plaintiff’s § 1983 and ADA claims would have been

expended even if the plaintiff had not brought those claims

because the § 1983 and ADA claims were based on the very

same facts as the non-frivolous Rehabilitation Act claim. The

only costs the defendant theoretically incurred that it would

not have but for the § 1983 and ADA claims are costs relating

to asserting that Belanger barred the § 1983 claim and costs

relating to asserting that the ADA did not apply in this case. 

The former required making an argument that California

school districts surely are prepared to make in any § 1983

case, and the latter basically required reproducing the

statutory text.

Although the award in this case should, therefore, be

extremely low, the majority nevertheless should have heeded

the warning that we offered in R.P.:
C.W. V. CAPISTRANO UNIFIED SCH. DIST. 31

Lawyers would be improperly discouraged

from taking on potentially meritorious IDEA

cases if they risked being saddled with a sixfigure judgment for bringing a suit where they

have a plausible, though ultimately

unsuccessful argument, as here. Such a

procrustean interpretation of section

1415(i)(3)(B)(i)(II) is inconsistent with the

IDEA’s objective of “ensur[ing]that the rights

of children with disabilities and parents of

such children are protected.”

R.P., 631 F.3d at 1126 (quoting 20 U.S.C. § 1400(d)(1)(B))

(citation omitted). By punishing a small firm for arguing a

non-frivolous claim under the wrong sections of the United

States Code, the precedent established by the majority

opinion will discourage disability lawyers from taking on the

very cases that the IDEA sought to encourage. In light of the

majority’s opinion, small firms will have to weigh the risk

that they will incur a costly sanction for a minor legal error

intended to benefit a disabled child. This despite the fact that

IDEA practitioners — indeed, nearly all civil rights

practitioners — rarely have the time or the staff to handle the

volume of cases for which they are responsible with the same

attention or devotion of resources as their counterparts who

represent the defense.

We must be sensitive to imposing sanctions in IDEA

cases, as it is critical that we keep the federal courts open to

IDEA claims, counsel, and parties. Indeed, it is the clients

with IDEA complaints who in the end will suffer if lawyers

become reluctant to bring such cases before us. To further

the purpose of the IDEA, we must allow counsel for IDEA

plaintiffs the leeway to handle their cases in a practical

manner. The majority, unintentionally, fails to abide by this
32 C.W. V. CAPISTRANO UNIFIED SCH. DIST.

rule. In doing so, it sets a precedent that is at odds with the

core purpose of the IDEA.

There is an additional issue in this case, which is

governed by the same principles we have discussed above:

should we affirm the sanctioning of plaintiff’s counsel for

reasserting the ADA and § 1983 claims in an amended

complaint after those claims had previously been dismissed

with prejudice? Here, the circumstances provide the answer. 

The facts show that counsel agreed to dismiss those claims by

stipulation almost immediately after opposing counsel

objected to their inclusion in the amended complaint. In the

Rule 11 context, this fact would end our inquiry; we would

not sanction plaintiff’s counsel. See Fed. R. Civ. P. 11

advisory committee’s notes to 1993 amends. (explaining that

Rule 11 “generally provid[es] protection against sanctions if

[attorneys] withdraw or correct contentions after a potential

violation is called to their attention”); Barber v. Miller,

146 F.3d 707, 710 (9th Cir. 1998) (explaining that the

purpose of Rule 11’s “safe harbor” provision is to allow

counsel to withdraw claims in order to “protect[] himself

totally from sanctions”). Although the IDEA does not

contain the “safe harbor” provided in Federal Rule of Civil

Procedure 11(c)(2), we have held that — in light of the

legislative history of the IDEA — we must in the IDEA

context rely on “Rule 11 cases to determine whether the

district court abused its discretion in awarding attorney’s fees

to the school district.” R.P., 631 F.3d at 1125. Our inquiry

here, therefore, must similarly end with the fact that the ADA

and § 1983 claims were dismissed by stipulation of the

parties. Otherwise, in the IDEA context we would encounter

the very issue that motivated the adoption of a “safe harbor”

in Rule 11 — counsel would be “reluctant to abandon a

questionable contention lest that be viewed as evidence” that

his contention was frivolous. Fed. R. Civ. P. 11 advisory
C.W. V. CAPISTRANO UNIFIED SCH. DIST. 33

committee’s notes to 1993 amends. The majority’s holding

to the contrary creates an unnecessary incongruity between

the IDEA and Rule 11 without any basis for doing so.

Moreover, whether or not plaintiff’s counsel’s actions

constituted a technical violation of our pleading rules, Iwould

hold that they do not warrant sanctions. We should sanction

plaintiff’s counsel in an IDEA case for continuing to litigate

a claim that was dismissed with prejudice only when the

continued litigation was deliberate. In this case, the school

district bore “the burden of establishing entitlement to an

award.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). It

made no showing, however, that plaintiff’s counsel’s renewed

litigation of the dismissed claims was intentional. In fact, the

evidence is to the contrary. Although the plaintiff reasserted

her ADA and § 1983 claims after they were dismissed with

prejudice, the parties dismissed them by stipulation almost

immediately after the defendant filed its motion to dismiss. 

Moreover, the plaintiff’s reassertion of these dismissed

claims did not create any significant additional work for

defense counsel, who needed only to state that the claims had

already been dismissed with prejudice. Given that the

reassertion of the failed claims did little or no harm to the

defendant and could have caused little or no expenditure of

defendant’s counsel’s time and energy, I would not sanction

disability rights attorneys for what was, in all likelihood, a

simple mistake by counsel or another employee of an understaffed law firm — a mistake that it corrected almost

immediately by stipulation.

Due to the minimal costs that the defendant incurred

“solely by virtue of the need to defend against” the claims

that the majority erroneously finds to be frivolous, Harris,

631 F.3d at 971, I fully expect the award in this case to be

nominal at most. The majority opinion nevertheless creates
34 C.W. V. CAPISTRANO UNIFIED SCH. DIST.

an unfortunate precedent. I would hope that on rehearing the

majority, which has otherwise issued an excellent opinion

that is fully consistent with the letter and spirit of the IDEA,

will reconsider and delete the few offending paragraphs

affirming sanctions — paragraphs that sound so jarring and

contrary a note to the rest of its disposition.