FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

A. M., a minor, by and through 

his parents David Marshall and

Karla Marshall; DAVID MARSHALL,

on his own behalf; KARLA

MARSHALL, on her own behalf,

Plaintiffs-Appellants,

No. 09-55169

v.

D.C. No.

MONROVIA UNIFIED SCHOOL 

2:07-cv-00243-

DISTRICT; WEST SAN GABRIEL RSWL-JTL

SPECIAL EDUCATION LOCAL

PLANNING AREA, Erroneously Sued

As West San Gabriel Valley

Special Education Local Plan

Area,

Defendants-Appellees. 

20093
A. M., a minor, by and through 

his parents David Marshall and

Karla Marshall; DAVID MARSHALL,

on his own behalf; KARLA

MARSHALL, on her own behalf,

Plaintiffs-Appellants, No. 09-55478

v. D.C. No.

M  2:07-cv-00243- ONROVIA UNIFIED SCHOOL

RSWL-JTL DISTRICT; WEST SAN GABRIEL

SPECIAL EDUCATION LOCAL OPINION

PLANNING AREA, Erroneously Sued

As West San Gabriel Valley

Special Education Local Plan

Area,

Defendants-Appellees. 

Appeal from the United States District Court

for the Central District of California

Ronald S.W. Lew, Senior District Judge, Presiding

Argued and Submitted

June 11, 2010—Pasadena, California

Filed December 15, 2010

Before: Alfred T. Goodwin and Johnnie B. Rawlinson,

Circuit Judges, and Mark W. Bennett, District Judge.*

Opinion by Judge Goodwin;

Partial Concurrence and Partial Dissent by Judge Bennett

*The Honorable Mark W. Bennett, United States District Judge for the

Northern District of Iowa, sitting by designation. 

20094 A. M. v. MONROVIA UNIFIED SCHOOL DISTRICT
COUNSEL

N. Jane DuBovy and Mandy L. Favaloro, A2Z Educational

Advocates, Pacific Palisades, California, for the plaintiffsappellants.

Jonathan J. Mott, Parker & Covert, Tustin, California, for the

defendants-appellees.

Keith L. Wurster, Baker & McKenzie, Palo Alto, California,

for amicus Council of Parent Attorneys and Advocates.

OPINION

GOODWIN, Circuit Judge:

A.M. and his parents (collectively, “Plaintiffs”) appeal a

summary judgment for Monrovia Unified School District and

West San Gabriel Special Education Local Planning Area

(collectively, “Defendant”) on Plaintiffs’ action for violation

of the Individuals with Disabilities Education Act (“IDEA”),

20 U.S.C. § 1415, and violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. Plaintiffs also appeal an

award of attorneys’ fees to Defendant under the IDEA. We

have jurisdiction under 28 U.S.C. § 1291. We affirm in part

and reverse in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

A.M. was a young boy, approximately eleven years old at

all relevant times, with cerebral palsy, seizure disorder, and

global developmental delays. He was non-ambulatory and

required assistance changing body positions. He had cortical

blindness, meaning his eyes could see but his brain did not

acknowledge what his eyes saw. Thus, A.M. did not always

understand, retain, or make associations with what he saw. He

20098 A. M. v. MONROVIA UNIFIED SCHOOL DISTRICT
could communicate only by responding to yes-or-no questions

—a smile, a sound, or lifting his hand was a “yes”; a flat

affect was a “no.” However, A.M. was not consistent with

these responses, so his service providers had difficulty determining whether a “yes” signal was actually an involuntary

movement caused by the cerebral palsy.

In December 2002, A.M. enrolled in the California Virtual

Academy (“CAVA”), a network of charter schools offering

independent study at its students’ homes. Although Plaintiffs

live in Los Angeles County, A.M. enrolled in CAVA Kern

County, which services students in any county that abuts Kern

County. CAVA provided materials to A.M.’s father, who

instructed A.M. and reported the results on CAVA’s website.

A general education teacher visited Plaintiffs’ home three

days per week for one and one-half hours per session. The

teacher modified the curriculum by converting materials to

yes-or-no questions and enlarging materials. 

CAVA created a valid individualized educational program

(“IEP”) for A.M. in 2002. CAVA and Plaintiffs agreed on an

independent study/home schooling placement with support

from a resource specialist five times a week for one-hour sessions, occupational therapy once a week for a one-hour session, adapted physical education once a week for a one-hour

session, and speech and language once a week for a one-hour

session. CAVA and Plaintiffs held IEP meetings again in

2003 and 2004, but they were unable to agree on goals and

objectives and A.M.’s parents refused to sign the IEP documents. A.M.’s placement continued as independent study/

home schooling. 

On December 9, 2005, CAVA and Plaintiffs agreed on a

new IEP that changed A.M.’s placement to a third-grade

general-education classroom with appropriate supports. The

IEP team found that A.M. had “marked improvement academically, socially, and physically,” though his academic

improvement was due to his service providers’ increased abilA. M. v. MONROVIA UNIFIED SCHOOL DISTRICT 20099
ity over time to gauge A.M.’s yes/no response. His social

improvement was based on observations of his interactions

and communication through his smiles with other people,

which indicated awareness of his surroundings. His physical

improvement was based on observations that he could sit in

his chair and focus. The IEP described A.M.’s language proficiency as “age appropriate,” which means that if a person

spoke to A.M. like any other nine or ten-year-old, A.M.

would have understood it completely, though he was nonverbal. The IEP was not based on any formal assessment of

A.M.’s academic or cognitive abilities. 

A.M. enrolled in Defendant school district because CAVA

has no general-education classrooms and therefore could not

implement the 2005 IEP. Plaintiffs submitted proof of residence and a copy of the 2005 IEP to Defendant on December

12, 2005. Gail Crotty reviewed A.M.’s IEP to determine his

interim placement. Crotty has a master’s degree in educational administration, credentials in adaptive physical education and learning handicaps, and certificates in resource

special programs and crosscultural language and academic

development. She has held numerous special-educationrelated positions and has worked with at least twenty students

with disabilities comparable to A.M.’s.

Crotty was concerned that Defendant was being asked to

implement an IEP that was never previously implemented and

required a change in placement. She also was concerned that

the placement was determined at the beginning of the IEP

meeting, rather than after A.M.’s present levels of performance were discussed, and that the present levels of performance in the IEP document were unclear and referred to

reports that were not attached. Some goals were not measurable, and other goals were on different levels. For example,

one goal was to give a big smile when prompted by “give a

big smile now,” while another goal was to write a three paragraph report using the third grade curriculum. Crotty was concerned about whether A.M. could succeed if he went straight

20100 A. M. v. MONROVIA UNIFIED SCHOOL DISTRICT
from home schooling to a general education classroom, since

he was not used to being around other students.

Crotty scheduled an intake meeting for December 20, 2005,

which was two days before the winter vacation. Plaintiffs and

Defendant disagreed about an appropriate placement—

Plaintiffs wanted a general-education classroom as provided

in the 2005 IEP, whereas Defendant wanted to continue independent study/home schooling for a thirty-day period to

assess A.M. Though Plaintiffs did not agree to Defendant’s

offer, A.M. continued in the independent study/home schooling placement with services beginning on January 9, 2006,

which was the first day of the new semester.

Defendant scheduled an IEP meeting on February 9, 2006.

Plaintiffs agreed to the February 9, 2006 meeting date, but

cancelled three days before the meeting because A.M.’s father

could not arrange child care for A.M. Plaintiffs requested an

IEP meeting date in mid-March or April, but Defendant could

not agree because of the thirty-day requirement. Defendant

offered to allow A.M.’s mother or father to participate by telephone, or to allow Plaintiff’s father to bring A.M. to the meeting as he had done in the past, but Plaintiffs refused these

suggestions. Defendant held the meeting without Plaintiffs. 

Defendant’s IEP team determined that A.M. should be classified as a fourth-grader and placed in a special day class on

a general-education campus. Because Defendant does not

have an appropriate special day class, the IEP team recommended a referral to the Los Angeles County Office of Education for placement. Defendant offered an IEP consisting of a

comprehensive assessment of A.M., physical therapy for two

hours per week, occupational therapy for one-half hour per

week, speech and language for one and one-half hours per

week, adaptive physical education twice a week in half-hour

sessions, placement in a special day class with a teacher credentialed in moderate-to-severe special education, a referral to

California Children’s Services, a referral to Los Angeles

A. M. v. MONROVIA UNIFIED SCHOOL DISTRICT 20101
County Office of Education for placement in a special day

class, and a one-to-one aide at the school site. This offer was

sent to Plaintiffs, but they did not consent to it.

Defendant held a second IEP meeting on May 1, 2006.

Plaintiffs’ lawyer attended, though Plaintiffs did not attend. A

Los Angeles County Office of Education representative

attended, and the IEP team agreed to offer Plaintiffs a placement in a special day class at Encinitas School.

Plaintiffs and Defendant each requested a due-process hearing with the Office of Administrative Hearings (“OAH”).

OAH consolidated the requests and ruled for Defendant.

Plaintiffs filed a complaint in district court alleging a violation of the IDEA and a violation of Section 504. A.M. died

while the action was pending. Defendants moved for summary judgment on both claims, and the district court granted

the motion. The district court also awarded attorneys’ fees to

Defendant on the ground that A.M.’s death mooted the case

and Plaintiffs should not have continued it after it became

moot.

II. DISCUSSION

Plaintiffs argue that the district court erred by (A) failing to

reverse the OAH ruling for Defendant on Plaintiffs’ IDEA

claim, (B) granting summary judgment to Defendant on Plaintiffs’ Section 504 claim, and (C) awarding attorneys’ fees to

Defendant.

A. Whether the District Court Erred by Failing to Reverse

the OAH Ruling for Defendant on Plaintiff’s IDEA

claim

We give “due weight” to OAH decisions. Bd. of Educ. v.

Rowley, 458 U.S. 176, 206 (1982). We give more deference

to OAH decisions if the findings are thorough and careful. See

Capistrano Unified Sch. Dist. v. Wartenberg by & Through

20102 A. M. v. MONROVIA UNIFIED SCHOOL DISTRICT
Wartenberg, 59 F.3d 884, 891 (9th Cir. 1995). However, the

ultimate determination of whether an IEP was appropriate is

reviewed de novo. Id.

Plaintiffs argue that Defendant denied A.M. a free appropriate public education (“FAPE”) by not developing a procedurally and substantively valid IEP. See 20 U.S.C.

§ 1414(a)(5); Rowley, 458 U.S. at 188 (stating that a FAPE

includes an IEP).

1. Procedure

Plaintiffs argue that Defendant denied A.M. a procedurally

valid IEP by (a) failing to implement the 2005 IEP or develop

and implement a new valid IEP within thirty days of A.M.

transferring into the district; (b) failing to develop an adequate

IEP; and (c) not allowing Plaintiffs to meaningfully participate in the IEP process.

a. Whether Defendant failed to implement the 2005

IEP or develop and implement a new valid IEP

within thirty days of A.M. transferring into the district

[1] When an exceptional-needs student transfers from one

California school district to another during the school year,

the local school district shall provide “services comparable to

those described in the previously approved [IEP] . . . for a

period not to exceed 30 days, by which time the local educational agency shall adopt the previously approved [IEP] or

shall develop, adopt, and implement a new [IEP].” Cal. Educ.

Code § 56325(a)(1). 

Plaintiffs argue that Section 56325(a)(1) required Defendant to provide services comparable to the 2005 IEP during

the initial thirty days because the 2005 IEP was the “previously approved IEP” since Plaintiffs and CAVA agreed to it,

A. M. v. MONROVIA UNIFIED SCHOOL DISTRICT 20103
though it was never implemented.1

 Defendant argues that it

was required only to provide services in accordance with the

last implemented IEP because California’s Section

56325(a)(1) is modeled after the IDEA, which states that

when an exceptional needs student who “had an IEP that was

in effect in the same State” transfers to a new school, the

school shall provide services comparable to the “previously

held IEP.” 20 U.S.C. § 1414(d)(2)(C)(i)(I). Defendant argues

that only the independent study/home schooling IEP was ever

“in effect.”

[2] OAH concluded that Section 56325(a)(1) refers to the

last IEP that was actually implemented. OAH’s reasoning is

persuasive: providing services in accordance with the previously implemented IEP effectuates the statute’s purpose of

minimizing disruption to the student while the parents and the

receiving school resolve disagreements about proper placement. We agree with OAH.

Plaintiffs also argue that Defendant violated Section

56325(a)(1) by not developing a new valid IEP within thirty

days. A.M.’s father filled out the paperwork to enroll A.M. in

Defendant District on December 12, 2005; Defendant held an

intake meeting with Plaintiffs on December 20, 2005; school

closed for the winter break from December 22, 2005 to January 9, 2006; Defendant began providing services to A.M. on

January 9, 2006; and Defendant held an IEP meeting on February 9, 2006. Thus, Defendant did not hold an IEP within

thirty days of A.M.’s enrollment.

OAH concluded, and the district court affirmed, that Defen1Plaintiffs claim that Defendant followed an outdated 2002 IEP in placing A.M. in independent study/home schooling. This argument is specious

and takes advantage of the fact that Plaintiffs refused to sign any IEP documents after 2002. Plaintiffs accepted the independent study/home schooling placement until December 2005, and it is the only placement A.M.

ever had through CAVA. 

20104 A. M. v. MONROVIA UNIFIED SCHOOL DISTRICT
dant’s actions were appropriate because Defendant would

have had insufficient time to evaluate A.M. if Defendant were

required to hold an IEP meeting within thirty days of A.M.’s

enrollment on December 20, 2005.2 However, neither OAH

nor the district court cited authority for the proposition that

school holidays toll Section 56325(a)(1)’s thirty-day requirement.

[3] Whether or not Defendant exceeded the thirty-day

limit, A.M. suffered no deprivation of educational benefit and

therefore has no claim. See Amanda J. v. Clark County Sch.

Dist., 267 F.3d 877, 892 (9th Cir. 2001). OAH is correct that

A.M.’s service providers could not have adequately assessed

A.M.’s needs within thirty days of December 12 or 20, 2005.

Indeed, even though Defendant had thirty days to evaluate

A.M., Plaintiffs and Defendant were unable to agree upon an

appropriate IEP and had to schedule a further meeting in May.

That the brief delay during winter vacation caused no educational deprivation to A.M. is further evidenced by the fact that

A.M.’s placement continued as independent study/home

schooling in May. 

[4] Therefore, Defendant did not commit a procedural violation by failing to implement the 2005 IEP or by failing to

develop and implement a new valid IEP within thirty days of

A.M. transferring into the district.

b. Whether Defendant failed to hold an adequate IEP

meeting on December 20, 2005

[5] Plaintiffs argue that the December 20, 2005 intake

meeting should be construed as an IEP meeting because the

resulting intake document substantially differed from the

2005 IEP, essentially changing it. On this basis, plaintiffs contend that the meeting was procedurally deficient since all per2OAH did not explain why it considered A.M. enrolled as of December

20, 2005 rather than December 12, 2005. 

A. M. v. MONROVIA UNIFIED SCHOOL DISTRICT 20105
sonnel necessary for an IEP evaluation were not present. As

OAH correctly noted, however, “[Defendant] did not commit

procedural violations when it did not have a full IEP team at

the December 20, 2005 intake meeting. The December 20,

2005 meeting was not an IEP meeting.”

c. Whether Defendant allowed Plaintiffs to 

meaningfully participate in the IEP process

[6] A receiving school must take steps to ensure that one

or both parents of a disabled child are present at the IEP meeting by “(1) Notifying parents of the meeting early enough to

ensure that they will have an opportunity to attend; and (2)

Scheduling the meeting at a mutually agreed on time and

place.” 34 C.F.R. § 300.322(a). “If neither parent can attend

an IEP Team meeting, the public agency must use other methods to ensure parent participation, including individual or

conference telephone calls . . . .” Id. at § 300.322(c). “A meeting may be conducted without a parent in attendance if the

public agency is unable to convince the parents that they

should attend. In this case, the public agency must keep a

record of its attempts to arrange a mutually agreed on time

and place . . . .” Id. at § 300.322(d).

[7] Plaintiffs argue that the district court erred by not making findings on whether Defendant allowed them to participate in A.M.’s IEP meetings. The district court indicated,

through its finding that Defendant did not commit a procedural violation, that Defendant took steps to obtain Plaintiffs’

presence at the IEP meetings. Moreover, OAH carefully considered the issue and concluded that Defendant took steps to

ensure Plaintiffs’ participation, and there is no reason to overturn that reasoned decision. Defendant scheduled an IEP

meeting for a date agreeable to Plaintiffs, and Plaintiffs cancelled three days before the meeting. Defendant offered to

reschedule, but Plaintiffs would only agree to a meeting in

mid-March or April, which was too far beyond the thirty-day

limit. Defendant offered to allow Plaintiffs to participate by

20106 A. M. v. MONROVIA UNIFIED SCHOOL DISTRICT
telephone, but Plaintiffs refused. Thus, Defendant took steps

to obtain Plaintiffs’ presence at the IEP meeting.

Plaintiffs also argue that A.M.’s parents could not meaningfully participate in the IEP process because the IEP documents failed to include pertinent information. OAH rejected

these arguments after careful consideration. OAH found that

the IEP documents did not specify a method for measuring

A.M.’s progress in physical therapy, but this did not affect

Plaintiffs’ ability to assess the IEP offer because the physical

therapy goals were similar to those in the CAVA IEP that

Plaintiffs accepted. OAH rejected Plaintiffs’ argument that the

IEP documents failed to specify the supports and modifications necessary for A.M. to participate in the generaleducation setting because the IEP specified that A.M. would

have the support of a one-to-one aide during school hours.

OAH also found that the IEP sufficiently documented the

rationale for placing A.M. in a special-education classroom

and identified the duration and location of the special day

classes and speech and language services.

[8] Therefore, the district court properly affirmed OAH’s

carefully considered decision that Defendant did not commit

a procedural violation.

2. Substance

Plaintiffs argue that A.M.’s IEP was substantively deficient

because it was not based on A.M.’s unique needs and was not

reasonably calculated to provide A.M. an educational benefit.

See Rowley, 458 U.S. at 207, 215. Plaintiffs also argue that

Defendant did not offer A.M. an educational program that

comported with his IEP, and did not offer A.M. a program in

the least restrictive environment. See id. at 203; Poolaw v.

Bishop, 67 F.3d 830, 834 (9th Cir. 1995). 

[9] The IEP team considered A.M.’s unique needs and

developed an IEP calculated to provide him an educational

A. M. v. MONROVIA UNIFIED SCHOOL DISTRICT 20107
benefit. The IEP team considered A.M.’s levels of performance and his needs based on the observations of A.M.’s service providers during the thirty-day period. They concluded a

fourth-grade placement was appropriate. Defendant created an

IEP that included individual services and placement in a special day class. Thus, the IEP was based on A.M.’s needs and

was calculated to provide him a benefit.

Plaintiffs argue that Defendant did not offer A.M. an educational program that comported with his IEP. However,

Plaintiffs claim only that the educational program did not

comport with the 2005 CAVA IEP; Plaintiffs do not claim

that Defendant did not offer a program that comported with

the IEP created by Defendant in 2006. Thus, this argument

fails.

Defendant offered A.M. an education in the least restrictive

environment appropriate. As OAH correctly noted, Defendant’s argument that A.M. could not have received a meaningful education in a full-inclusion general-education setting

is persuasive. A.M. was non-verbal and could respond only to

yes-or-no questions. The general education teacher assigned

to A.M. through CAVA testified that a general-education

classroom would have overwhelmed A.M. A.M.’s service

providers testified that their attempts to have A.M. interact

with other children were fruitless.

[10] The evidence, however, indicated that A.M. would

have benefitted from the special-education classroom placement offered by Defendant. Witnesses testified that the

offered setting had the equipment and staffing appropriate for

A.M. The program also offered A.M. opportunities for mainstreaming at lunch and recess, and the opportunity for mainstream classes if A.M. performed above the special-education

curriculum.

[11] Therefore, Defendant placed A.M. in the least restrictive environment appropriate.

20108 A. M. v. MONROVIA UNIFIED SCHOOL DISTRICT
B. Whether the District Court Erred by Granting 

Summary Judgment to Defendant on Plaintiffs’ 

Section 504 claim

[12] Section 504 prohibits discrimination against disabled

persons by any program receiving federal financial assistance.

29 U.S.C. § 794; see also Mark H. v. Lemahieu, 513 F.3d 922,

933 (9th Cir. 2008). Plaintiffs argue that Defendant discriminated against A.M. by failing to implement the 2005 IEP and

by not placing A.M. in a general education classroom. Plaintiffs argue that summary judgment must be reversed because

Defendant’s motion for summary judgment did not address

Plaintiffs’ claim of intentional discrimination and because the

district court did not analyze Plaintiffs’ allegations regarding

the Section 504 claim.

[13] As discussed above, Defendant did not commit procedural or substantive error with respect to A.M.’s placement,

and Defendant therefore did not discriminate against A.M.

Moreover, a school may establish compliance with Section

504 by implementing a valid IEP. 34 C.F.R. § 104.33(b)(2).

Accordingly, Plaintiffs have no viable Section 504 claim

against Defendant.

C. Whether the District Court Erred by Awarding 

Attorneys’ Fees to Defendant under the IDEA on the

Basis that the Action Became Moot upon A.M.’s Death

[14] Attorneys’ fees may be awarded under the IDEA to “a

State educational agency or local educational agency against

. . . the attorney of a parent who continued to litigate after the

litigation clearly became frivolous, unreasonable, or without

foundation . . . .” 20 U.S.C. § 1415(i)(3)(B)(i)(II). The district

court concluded that the case became moot upon A.M.’s death

and should not have been continued after February 13, 2008.

Therefore, the district court awarded Defendant attorneys’

fees incurred after that date, totaling $49,245, to be paid by

Plaintiffs’ counsel.

A. M. v. MONROVIA UNIFIED SCHOOL DISTRICT 20109
[15] Plaintiffs sought reimbursement for expenses caused

by caring for A.M. at home during the times when they

alleged that A.M. should have been in a school classroom and

also damages for emotional distress. Neither the IDEA claim

nor the Section 504 claim was mooted by A.M.’s death

because the parents sought reimbursement and damages. See

Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 5 n.3

(1993); Mark H., 513 F.3d at 935. 

Defendant argues that the attorneys’ fees award is proper

because Plaintiffs’ Section 504 claim is frivolous in light of

Ninth Circuit law holding that a valid IEP is sufficient to satisfy Section 504. This argument fails because the validity of

the challenged IEP had not been established prior to this lawsuit.

Defendant also argues that the district court properly

awarded attorneys’ fees because Plaintiffs could not seek

reimbursement and damages because they waived those issues

by not raising them to OAH. However, the district court did

not address waiver in its order, but instead relied only on

mootness.

[16] Accordingly, we remand this issue to the district court

to determine whether attorneys’ fees should be granted

because Plaintiffs waived reimbursement and damages, and

therefore had no claim that survived A.M.

III. CONCLUSION

The district court order granting summary judgment to

Defendant on Plaintiffs’ IDEA and Section 504 claims is

AFFIRMED. The order awarding attorney’s fees is

REMANDED to the district court.

AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED. Each party shall be responsible for its own

costs on appeal.

20110 A. M. v. MONROVIA UNIFIED SCHOOL DISTRICT
BENNETT, District Judge, concurring in part and dissenting

in part:

Although I find that the majority’s decision is generally

well reasoned, and I ultimately concur, albeit reluctantly, in

the disposition of the Plaintiffs’ IDEA and Section 504

claims, I write separately to address my concern that the construction of the “transfer” statutes, California Education Code

§ 56325(a)(1) and 20 U.S.C. § 1414(d)(2)(C)(i), relied upon

by the majority to determine which IEP the receiving district

was required to implement, is contrary to both plain meaning

and the purposes of these statutes. See Satterfield v. Simon &

Schuster, Inc., 569 F.3d 946, 951 (9th Cir. 2009) (“[O]ur

inquiry begins with the statutory text, and ends there as well

if the text is unambiguous.”); The Wilderness Soc’y v. U.S.

Fish & Wildlife Serv., 353 F.3d 1051, 1060 (9th Cir.2003) (en

banc) (“[T]he structure and purpose of a statute may also provide guidance in determining the plain meaning of its provisions.”).

The majority agrees with the OAH’s conclusion that California Education Code § 56325(a)(1), which refers to a “previously approved” IEP, refers to “the last IEP that was

actually implemented.” The majority finds persuasive the

OAH’s reasoning that providing services in accordance with

the previously implemented IEP effectuates the statute’s purpose of minimizing disruption to the student while the parents

and the receiving district resolve disagreements about proper

placement.

In contrast, I find that construing a “previously approved”

IEP to mean “the last IEP that was actually implemented” is

not consistent with the plain meaning of either Section

56325(a)(1) or Section 1414(d)(2)(C)(i), the IDEA provision

that Section 56325(a)(1) is intended to satisfy. See CAL. EDUC.

CODE § 56325(a)(1) (“As required by subclause (I) of clause

(i) of subparagraph (C) of paragraph (2) of subsection (d) of

Section 1414 of Title 20 of the United States Code, the folA. M. v. MONROVIA UNIFIED SCHOOL DISTRICT 20111
lowing shall apply. . . .”). Section 56325(a)(1) refers to “an

individual with exceptional needs who has an [IEP]” and to

“the previously approved [IEP],” while Section

1414(d)(2)(C)(i) refers to a child with a disability “who had

an IEP that was in effect” and to “the previously held IEP.”

None of this language requires an interpretation of these references to mean “the last IEP actually implemented.”

To the contrary, the plain meaning of “the previously

approved [IEP]” is exactly that, the IEP last approved by the

IEP team, and an individual “had” such an IEP from the time

it was approved, whether or not that IEP was ever implemented by the transferring district. Similarly, the plain meaning of an IEP that was “in effect” or “held” is an IEP that had

been approved by the IEP team, even if it had not been actually implemented by the transferring district. Reading the statutory language in question to mean “the IEP last approved by

the IEP team” properly distinguishes between an IEP that has

been either superseded or only proposed, and thus is not

appropriate for implementation by the receiving district, and

one that should have current force and effect and, thus, should

be implemented by the receiving district.

Moreover, to construe “previously approved IEP,” “the IEP

in effect,” or the IEP “held” to mean “the IEP actually implemented” would effectively preclude an IEP team from ever

approving an IEP that required services that the student’s current district could not provide and that, consequently, required

transfer of the student to a new district, because that IEP

would never have to be recognized or implemented by the

receiving district. Such an effect is plainly contrary to the purpose of the IDEA, which is to provide all individuals with a

free appropriate public education (FAPE). Forest Grove Sch.

Dist. v. T.A., 523 F.3d 1078, 1087 (9th Cir. 2008) (“We

emphasize in particular that the express purpose of the IDEA

is “to ensure that all children with disabilities have available

to them a free appropriate public education.” (quoting 20

U.S.C. § 1400(d)(1)(A), with emphasis added)). Even assum20112 A. M. v. MONROVIA UNIFIED SCHOOL DISTRICT
ing that a purpose of the “transfer” statutes is to minimize disruption to the student while the parents and the receiving

district resolve disagreements about proper placement, as the

majority states, making the transferring district’s last

approved IEP a nullity, if it has not actually been “implemented,” does not serve the purpose of avoiding disruption to the

student. Also, the “transfer” statutes already provide the

receiving district with a period (thirty days under the California statute) to evaluate the transferring district’s last approved

IEP and to develop, adopt, and implement a new IEP, if the

receiving district deems that course to be appropriate. Thus,

the purposes of providing transferring individuals with a

FAPE and allowing the receiving district the opportunity to

reevaluate the last approved IEP from the transferring district

are satisfied by applying the plain meaning of the terms in

question.

The receiving district’s failure to implement A.M.’s last

approved IEP, the December 2005 IEP, upon A.M.’s transfer,

as it was required to do under my construction of the “transfer” statutes, however, does not necessarily undermine the

validity of the 2006 IEP ultimately developed by the receiving

district. Were I writing on a clean slate, I would likely find

that the 2006 IEP was invalid. Nevertheless, in light of the

deference due the agency’s determination that the 2006 IEP

was valid, I must, reluctantly, concur in the majority’s conclusion that the Plaintiffs were allowed meaningful participation

in the development of the 2006 IEP and that the 2006 IEP was

not substantively deficient. Thus, I also, reluctantly, concur in

the majority’s conclusion that the district court properly

granted summary judgment on the Plaintiffs’ IDEA and Section 504 claims.

I also concur in the majority’s conclusion that neither the

IDEA claim nor the Section 504 claim was mooted by A.M.’s

death, because the parents sought reimbursement and damages, so that the district court’s award of attorney fees on the

ground that the parents’ separate claims were mooted was

A. M. v. MONROVIA UNIFIED SCHOOL DISTRICT 20113
improper. In reaching this conclusion, I am particularly persuaded by the reasoning presented in the brief of amicus

curiae Council of Parent Attorney Advocates, Inc.

However, I dissent from the majority’s conclusion that the

issue of attorney fees should be remanded to the district court

to determine whether attorney fees should be granted because

the Plaintiffs waived reimbursement and damages and, therefore, had no claim that survived A.M. I would hold that the

Plaintiffs did not waive their reimbursement and damages

claims as a matter of law, because the Plaintiffs sought reimbursement for privately provided services in both the administrative and the judicial review proceedings. Thus, I would

simply reverse the district court’s award of attorney fees.

Therefore, while I concur in affirming the denial of the

Plaintiffs’ IDEA and Section 504 claims and reversing the

district court’s award of attorney fees to the Defendants, I

respectfully dissent from remanding the issue of attorney fees

to the district court for the determination of whether or not the

Plaintiffs waived reimbursement and damages.

20114 A. M. v. MONROVIA UNIFIED SCHOOL DISTRICT