F OR P UBLICATION



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

I R V I N E U N I F I E D S C H O O L D I S T R I C T , Plaintiff-Appellant
,

v

. K. G., an adult student,

Defendant-Appellee. N o. 14-56457

D.C. No. 2:10-cv-01431- J VS-ML G

OPI NI ON

A ppeal from the United States District Court for the Central District of California J ames V. Selna, District J udg e, Presiding

Arg ued and Submitted Aug ust 1, 2016 Pasadena, California

F iled April 13, 2017

B efore: Diarmuid F . O’Scannlain, J ohnnie B

. Rawlinson, and Consuelo M. Callahan, Circuit J udg es.

O pinion by

J udg e O’Scannlain; Partial Concu rrence and Partial Dissent by J udg e CallahanI R V I N E USD V

. K.G. 2

SUMMARY *

Individuals w ith Disabilities Education Act /

Attorneys’ F ees

The panel affirmed the district court’s g rant of relief from judg ment but v acated its award of a ttorney s’ f ees to a student in an action u nder the I ndividuals with Disabilities Education Act.

On r emand from a ruling that student K. G

. ’s school district was the ag ency responsible f or K .G.’s free appropriate publi c education, K.G. moved for statutory attorney s’ fees. The district court denied the motion on the g round that K.G.

was not a prevailing party b ut subsequently g ranted relief from judg ment under F ederal Rule of Civil P r o cedure 60(b) and awarded fees.

The panel held that the district c ourt did not ab u s e its discretion in g ranting r elief under Rule 60(b)(1) on the g round of ex cusable neg lect.

The p a n e l held that K.G. was a prevailing party entitled
to attorney s’ fees becau s e K .G. a chieved the benefit soug ht,

a decision as to which ag ency w as respo n s ible to provide a free appropriate public e ducation. Th e panel rejected the arg ument that K.G. could not have b e n e fitted f r om the litig ation because K.G. g r aduated with a hig h school diploma months before the district court decided the case. The panel held that K.G.’s victory

was not trivial or merely technical.

* T h is su m m ary co n stitu

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

co urt staf

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

th e read er.I R V I N E USD V

. K.G. 3

The panel held, however, that it was not clear whether the
amount o f a ttorney s’ fees awarded was reason a b l e because much of counsel’s work took place after K.G.’s g raduati o n. The panel vacated the fee award a n d remanded for the district
court to d etermine whether the hours billed following K.G.’s g raduation were truly the result of advocacy reasonably calculated to advance K.G.’s interests.

Concurring and dissenting in part, J udg e Callahan joined all of the majority o pinio n e x c ept for Section I I I C, addressing the amount of fees. J udg e Callahan wrote that there was no justification in e ither the I D E A or case law for limiting an a

ward of attorney s’ fees to a pre vailing party based on whether the student g raduated.

COUNSEL

S. Daniel Harbottle (arg

u ed), Harbottle L aw Gr o u p , I rvine, California, for Plaintiff-Appellant.

Marcy J .K. Tiffany (arg

ued), T iffany L aw Group, Torrence, California, for Defendant-Appellee.

Sue Ann Salmon Evans and Karl H. W idell, Dannis W o liver Kelley
, L ong B each, California, for A mici Curiae California School B oards Association E ducation L eg a l Alliance & National School B oards Association.I R V I N E USD V

. K.G. 4

OP INION

O’SCANNL AI

N, Circuit J udg e:

W e are asked to decide whether the a ttorney for a student covered under the I ndividuals with D isabilities Education A ct is entitled to fees for leg al work performed after the student’s g raduation from public school.

I

This case orig inates from a dispute over which California g over n ment entity would be responsible for f unding the education of K.G., an e motionally disturbed minor from California. F ollowing K.G.’s release from j uvenile hall in 2007, the California Department o f Education (“the S t a t e ”), the O rang e County Department o f Education (“the County ”), and the I rvine U nified School District (“the School District”) all ag reed that K.G. was entitled to a “free appropriate public education” (“F APE”) under the I ndividuals with Disabilities E d ucation Act (“I DEA”), 20 U.S.C. § 1400(d)(1)(A), b u t each entity d isclaimed responsibility for funding such F APE. Eventually
, the County ag reed to fund K.G.’s F A P E, temporarily
, until the financially responsible a g ency could be determined as a matter of law.

A

I n November 2009, an administrative law judg e (“AL J ”) within Ca l i f

ornia’s Office of A dministrative Hearing s ruled that t h e S chool District was the ag ency responsible f or the F APE under California law. The District fi l e d a c ivil action in federal district c ourt challeng ing the AL J ’s decision a nd naming the State, the Co u n t y , and K .G. as co-defendants inI R V I N E USD V

. K.G. 5

F ebruary of 2010, two months before K.G.’ s g raduation in April. Proce eding s in the district court continued for seven months after K .G.’s g raduation and culminated in a decision holding the State responsible for K.G.’s F APE in N ovember of 2010. The State a

ppealed to this court, and we determined that, as a matter of California law, the School Dist rict was responsible f

or providing K.G.’s F A PE a nd n ot the State; we remanded the case for p roceeding s consistent w ith our decision. See Irvine Unified Sch. Dist. v. Cal.
, 506 F

. App’x 548, 550 (9th Cir. 2013) (unpublished).

O n remand and before the e ntry of judg ment in distri ct court, K.G. moved for statutory a ttorney s’ fees under I DEA. 20 U.S.C. § 1415(i)(3)(B )(i)(I ). K.G., still w i th the orig inal attorney , requested $ 232,62 5.00 in fees and $1,286.85 in
costs. The district c o urt denied the request for attorney s’ fees entirely
, holding that K.G. was not a “prevailing party ” under I D E A b e c a u s e K

. G

. ’ s “ v i c t o r y ”

— t h e c o n c l u s i v e d e termination as to w hich ag ency would fund t h e F APE—was m e r e l y “technical or d e minimis.” During the

course of litig ation, K.G. h ad mainta ined that the State was responsible for the F A PE rather t h a n the School D istrict, an arg ument the district court accepted. The district c ourt therefore reasoned that, “g iven the inherently equitable nature of deciding on attorney fee awards, it seems inappropriate for the District to pay

fees accumulated while K.G. w as arg uing the District’s own position.” K

. G

. fa i led to f ile a timely appeal.

B

W ith the assistance of a n ew attorney , K.G. soug h t relief from the district court’s denial of fees under F ederal Rule o f Civil Procedure 60(b) in F ebruary 2014. K.G. arg ued that theI R V I N E USD V

. K.G. 6

orig inal a ttorney had “ ex perienced several traumas, including the death of her mother and f ather-in-law as well as her own life-threatening condition, which trig g ered an unusually

severe bout of depression a n d anx iety .” According to K. G

. , the denial of substantial atto r n ey s’ fees was the final blow, deepening the attorney ’s d epression and “feeling s o f hopelessness,” rendering h e r “too incapacitated to file a timely appeal of the F ee Or d e r

. ” T he district court f ound K.G.’s arg uments persuasive a nd g ranted relief from judg ment on May 20, 2014. After receiving such relief, K.G. ag ain moved for attorney s’ fee s

. T h i s time, K.G. soug h t a total o f $282,038.25, representing $221,971.35 for work performed b y the o r ig inal attorney and $60,06 6.90 for work performed by

the new attorney

.

The district court went on to g rant in part K.G.’s renewed motion for attorney ’s fees, mandating that the School District
p a y $174,803.65 in f

ees and c osts: the court awarded $126,657.25 for work performed by K.G.’s o rig inal attorney and $48,146.40 for work performed by K .G.’s new attorney

. The School District timely appeals the district court’s order. 1

I I

The School District contends that the district court erred in g ranting K.G. relief f

r om its o r i g inal judg ment deny ing

a t t o rney s’ fees. W e review a district court’s g rant of reli e f under F ede r a l Rule of Civil Procedure 60(b) for abuse o f

1 K.G. f i led a cro ss- ap peal, No

. 1 4

- 56 5 2 4
, ch allen g in g th e d istrict

co u rt’ s d ecisio n to red u ce ap p ellate f ees s o u g h t b y th e o rig in al atto rn ey b y

m o re th an 5 0 %. Su ch ap p eal h as sin ce b een d ism i ssed by stip u l atio n o f th e p arties.I R V I N E USD V

. K.G. 7

discretion. Cal. Dep’t of

Soc. Servs. v. Leavitt
, 523 F .3d 1025, 1031 (9th Cir. 2008).

A

The School District first arg u es that the district court did
not apply the correct leg al rule in evaluating whether to g rant relief. Rule 60(b)(1) provi d es that a district court “may relieve a p a r t y

. . . from a final judg ment” in cases o f “mistake, i n advertence, surprise, or ex cusable neg lect.” T o determine whether a party ’s failure to meet a deadline constitutes “ ex cusable neg lect” under Rule 6 0(b)(1), a court “must a pply a fou r-factor e q

uitable test, ex amining : (1) the dang er of prejudice to the opposing party ; (2) the leng th o f the delay and its potential impact o n the proceeding s; ( 3) the

reason f or the delay ; and (4) whether the movant acted in g ood faith.” Ahanchian v. Xenon P i c t u r e s, Inc.
, 6 24 F .3d 1253, 1261 (9th Cir. 2010).

T he district court beg an its analy sis by r ejecting the District’s contention that it would be prejudiced by a g rant o f relief. T he D istrict arg u ed that it had fix ed its budg et under the assumption that an orde r for attorney s’ fees was off the table and had reli ed o n t he district court’s d enial o f fees in neg otiating settl em ents in o ther matters. The d istrict court found b oth c laims u npersuasive. As to the remaining relevant factors, the distr i c t c o urt determined that K.G.’s delay in pursuing Rule 60(b) relief was understandable in lig ht of the orig inal atto r n e y ’s p oor mental a n d phy sical health. The district court thus “ identified and ap p l i e d the correct leg al rule,” United States. v. H

inkson
, 585 F .3d 1247, 1263 (9th Cir. 2 009), and applied it to the facts a t hand, weig hin g e a c h element before arriving

at its decision to g rant relief.I R V I N E USD V

. K.G. 8

B

The School District counters that even if the district court ap p lied the correct leg al rule, the court’s factual finding s

were flawed—specifically
, that the district court “g ave undue

w eig ht to the Declaration of Dr. L orna Swartz ” and other evidence outlini n g the attorney ’ s psy c h o log ical difficulties. I t cites e vidence in the re c o rd demonstrating that K.G.’s orig inal attorney continued to practice law during the period when Swartz asserted that she w as incapable of doing so. The School District notes that the a t torney communicated with

o p p o s ing counsel and, when she stated that she did n o t

o p p o se a proposed judg ment sent to her by the Sta t e,

ex p lained via email that she had “ b een out of the o f fice i n marathon [ individual e ducation prog r am team] meeting s.” Such facts, a ccording to th e School District, undermine K.G.’s claim that the orig inal attorney was “incapacitated.”

The district court noted such criticis ms but nevertheless found Dr. Swartz ’s declaration persuasive:

W h ile the Court a cknow ledg es that this contemporaneous evi d ence d isplay s some ability to continue h er practice, the Court still concludes tha t Swartz ’s evidence and [ the attorney ’s] own declaration confirm t hat her depress i o n, and in particular h er feeling s o f hopelessness in r eg ar d [ ] to the fee motion,

were so seve r e that her neg lect in failing to appeal was ex cusable.

Althoug h one mig ht rea s onably disag ree as to whether the
at t o r ney was truly incapable o f performing her job, the district co u r t ’s decision to g rant relief was not “illog ical,I R V I N E USD V

. K.G. 9

implausible, or w ith o u t s u pport in inferences that may be drawn from the facts i n the record.” Hinkson
, 585 F

. 3d at 1263.

I I I

The School District nex t arg u es that t he district court abused its discretion in g ranting K .G.’s motion f or attorney ’s fees. I DEA pr o v i des that “the court, in its discretion, may award reasonable attorney s’ fees a s part of the costs

. . . to a prevailing party who is the parent of a child with a disability

. ” 20 U.S.C. § 1415(i)(3)(B )(i)(I ). Thus, in reviewing the district court’s fee award, we must confirm that (1) K.G. was in fact

a “prevailing party ” and (2) the fees were reasonable. Aguirre

v. L.A. Unified Sch. D ist. , 461 F

. 3 d 1 1 1 4
, 1117 (9th Cir. 2006).

A

Under the Supreme Cour t ’s “‘g enerous formulation’ o f the term, ‘plaintiffs may be consider e d “ p revailing parties” for attorney ’s fees purposes if they succeed on any sig nificant issue in litig a tion which a chieves s o m e o f the benefit the parties soug ht in brin gi n g suit.’” Farrar v. Hobby
, 506 U.S. 103, 109 (1992) (quoting Hensley v. Ec kerhart
, 461 U

. S. 424, 433 (1983)); see T.B. ex rel. B renneise v. San Diego Unified Sch. Dist.
, 8 06 F

. 3d 451, 483 (9th Cir. 2015) ( apply ing the Farrar definition of “prevaili ng p arty ” to I DEA attorney s’ fees provisio n )

. “The touchstone of the prevailing party inquiry must be the material alteration of the leg al relationship o f the parties in a manner which Cong ress soug ht
to promote in the fee statute.” Tex. State Teachers A ss’n v

. Garland Indep. Sch. Dist.
, 489 U.S. 782, 792–93 (1989).I R V I N E USD V

. K.G. 10

I n init i ating the I DEA action in California’s Office o f Administrative Hearing s, K.G. requested that “the A L J deem

one of the [three ag encies] responsible to provide him FA P E.” K.G.’s pray er was answered in full when the A L J desig nated the School District as the responsible ag ency

. The district court similarly gr a n ted K.G.’s requested relief, orig inally b y desig nating the State as the responsible ag ency , then by ordering t h e D istrict to p ay the bill following our reversal. See Irvine Unified Sch. Dist
, 506 F

. App’x at 550. K.G. thus a c h i e v ed the “ benefit [he] soug ht in bring ing the suit.” Parents of Student W

. v

. P uyallup Sch. Dist.
, 31 F .3d 1489, 1498 (9th Cir. 1994). B y receiving relief on the merits, K.G. “met that minimum c o ndition f or prevailing party status.” F arrar , 506 U.S. a t 116 (O’Connor, J
., concurrin g ) (“One dollar is not ex actly a b onanz a, but it constitutes relief on the merits.”).

The School District nevertheless sug g ests that K .G. could
not have be n efitted from the litig ation because K.G. gr a d uated with a hig h school d iploma months b e fore the district court decided the case. I t ci t e s Farrar v. Hobby
, 506 U.S. 103 ( 1992), which in turn relies heavily on R h odes

v. Stewart
, 488 U.S. 1 (1988) (per curiam). I n Rhodes
, two inmates sued prison officials after they were denied the rig ht
to subscribe to a mag az ine. Thoug h the prisoners successfully

won a d ecla r a tory judg ment g ranting them the rig ht to subscribe to the mag az ine, the Supreme Court held that they

were not “prevailing parties” fo r p u r poses of assig ning attorney s’ fees. Rhodes
, 488 U.S. at 2. The Court reasoned that “a modification of p r i s on policies

. . . could n ot in any way h a ve benefited [ sic] ei t h er plaintiff, one of whom was dead and the other released b efore the District Court entered its order.” Id. at 4.The p r i s oners could not be considered “prevailing parties” for pur p o s e s of assig ning statutoryI R V I N E USD V

. K.G. 11

attorney s’ fees because the judg ment coul d n o t a lter the behavio r of the defendant towards them. J ust like the prisoners in R hodes
, the District a r g u es that K.G. received no real benefit from the d istrict court’s order because he was no long er a student when judg ement was entered.

I n elucidating the contours of its “prevailing p arty ” definition, however, the Supreme Court in Farrar ex p lained that t h e inmates in Rhodes could not be said to have “prevailed” w h e n their litig ation culminated merely in a de c laratory judg ment: “W hatever ‘modification of prison policies’ the declaratory judg ment mig ht have effected ‘could not in any way have benefitted either plaintiff, one of whom

was dead and the other r eleased.’” Farrar
, 5 0 6 U .S. at 110 (quoting Rhodes
, 488 U

. S

. a t 4). A party receives a meaning ful benefit “if, and only if, [ the judg ment] a ffects the behavior of” the opposing party towards it. Rhodes
, 488 U.S. at 4. B ecause the plaintiffs were no long er in prison custody
, they c ould not benefit from the particular relief they h ad won.

The posture of this case differs sig nificantly from that o f Rhodes

. U nlike t h e prisoners in Rhodes
, K.G. secured a judicially enforceable judg ment—the AL J ’s decision—when it still mattered. S

e e T.B. e x rel. Brenneise
, 806 F .3d at 483 (“I t is true that the educational relationship between T.B

. a nd the district ended in 2 0 08 when the B renneises left San Dieg o. B ut they h a d still earned relief before th ey l ef t in the fo r m of an enforceable judg ment.”). The administrative record demonstrates that for a brief period at least some threat of discharg e from school hung over K.G.’s head as a result o f the funding dispute. A r u ling from a n A L J definitively holding one ag ency responsible was the most effective means of eliminating such risk. K.G. secured this initial judg ment on November 30, 2009, w ell before h ig h school g raduationI R V I N E USD V

. K.G. 12

ceremonies occurred in April of the f o l lowing y ear. At that point, K.G.’s orig inal counsel had b illed 60.6 hours of her time to this case.

L itig ation could have ceased w ith the decision of the A L J

. I nstead, it was the School District that kept the meter running

w h en it filed a complaint in district court. One co u l d n o t

reason a b ly ex p ect K.G., who was still enrolled in school when the District named the student as a defendant in federal court, to refrain from ex pending resou rces as the case prog r essed. And it w ould ma k e little sense to render a party wholly inelig ible for an a w ard of f ees incurred in defending its victory
, e specially d

uring the p er i o d when K.G. was still enrolled.

B

A party whose “success on a leg al claim can b e characteriz ed as purely technical or de mi n i m i s” is not entitled to fees. P arents of Student W

. , 3 1 F .3d at 1498. The School District arg ues that K.G., ev en if properly termed a “prevailing party ,” obtained onl y l i mited success because it

was effectively a forg one conclusion that some ag ency would fund K .G.’s education. I n that sense, the District contends, K.G.’s leg al victory amounted to no thing more than the desig nation as to whic h a ge ncy would be responsible for providing the relief he had already received. And, as the District notes, most of the litig ation preceding this “victory ” occurred aft e r the threat of discharg e had been essentially eliminated b ecause of the County ’s w illing ness to fund K.G.’s F APE temporarily

. Contrary to the District’s sug g e stion
, however, K.G.’s victory in this case cannot be dismissed as “de minimis.” Cf.I R V I N E USD V

. K.G. 13

Farrar 5 06 U.S. at 115 (“W hen a p laintiff recovers only nominal damag es

. . . the only reasonable fee is usually no f ee at a ll.”). K.G. received the req uested relief in full by forcing an ag ency to take responsibility

for funding the F APE. Such

a victory was sig nificant because it eliminated any resid u al risk that K.G. could be discharg ed from school. K.G. a rg u ed the case before the AL J in o rder to g u arantee that a California g overnme n t ag ency w ould pay the cost of the F APE: the AL J ’s decision notes that the sole issue of the administrative proceeding s was “W h ich e ducational ag ency is responsible for providing [ K .G.] with a [F APE] ? ” Securing an enforceable judg me n t holding one such ag ency responsible for that F APE, and later defending that victo ry i n a civil action in federal court, certainly c onstitutes success in a “sig nificant issue” of litig ation. Parents o f Student W

, 31 F .3d at 1498. 2

K.G. qualified as a prevailing party under I DEA, and this victory was not trivial o r merely technical. An award of some amount of fees incurred in achieving th i s e n d was therefore justified.

C

That, however, does not e n d our inquiry

. Even w hen a party is entitled to some fees, t h e amount awarded must be “reasonable.” 20 U .S.C. § 1415(i)(3)(B )(i). The S c h o o l District arg ues that the fee award was unreasonably hig h g iven that much of the work performe d o n K .G.’s behalf took place af

t e r g raduation when K.G. was no long er

2 K.G.’ s m o tio n f

o r u s to tak e j u d icial n o tice o f th e d istrict co u rt’ s

o rd er aw ard in g f

ees in A.S

. , as w ell as th e d o ck et f o r th is case, f

iled Sep tem b er 2 2 , 2 0 1 5 , is G RANTED

.I R V I N E USD V

. K.G. 14

vulnerable. B efore g raduating
, K.G. had at least some skin in the g ame. Althoug h the threat of discharg e m a y h a ve been
remote g iven the County ’s willing ness to fund K.G.’s F APE temporarily
, it remained rea sonable for K.G. to continue to p u rsue a more definitive resolution. This chang ed in A p r i l 2010, of c ourse, when the risk of discharg e evaporated as a result of K .G.’s g raduatio n

. W i t h a diploma in hand, K.G. moved on to the nex t phase of life, having been provided with all that I DEA g uaranteed him

. Y e t the litig ation to which K.G. was a party

continued.

W h ile K.G.’s orig inal attorney reported spen d i n g only 60.6 hours advocating on b ehalf of K.G. during st ate administrative proceeding s, she purportedly dedicated 134.5 hours litig ating before the district court in support of holding th e State responsible for the F APE rather than the District. Counsel’s z ealous advocacy on b ehalf of her long -g raduated client c ontinued before this court—s h e reported spending 206.5 hours on an a

ppeal that did not e v e n c o m mence until roug h ly ten months after K.G.’s g r aduation.

Althoug h the district court wisely reduced requested fees in its final award, we question the need for any sig nificant advocacy on behalf of K.G. following the student’s hig h school g raduation. I f the vag aries of litig a t ion demanded K.G.’s cont i n u e d nominal p r esence as a party , counsel certainly deserves to be compensated for a dvocacy undertaken on K

. G

. ’ s behalf (and in pursuit of fees derived from such work). B ut the need for such work may have been minimal g iven what appears to be an utter lack o f risk borne by K.G. following g raduation. Once a student receives all the statutory benefits g uaranteed by I DEA and no long er faces

even a nominal risk that those b enefits mig ht be taken away , only ex ceptional circumstances can justify a n ever-I R V I N E USD V

. K.G. 15

leng thening b illing invoice. A f inding that K.G. mig ht end up liable for bills already paid, o r the possibility that his diploma mig ht be r etroactively revoked, for instance, would c ertainly

ex p lain the need for hundreds of hours of advocacy after his g raduation in 2010. B ut I DEA is n o t “ a r e lief Act for lawy ers.” F

arrar , 506 U.S. at 122 ( O’Connor, J
., concurring ) (quoting Riversid

e v

. R ivera , 477 U.S. 561, 588 (1986) (Rehnquist, J
., dissenting )). Here, the bu r d e n is on K.G. to demonstrate why his continued participation in this litig ation

was necessary after he received every thing to wh i ch he was entitled.

I t may w ell be that the district court took into account the forg oing consider a t i ons in reducing the fees orig inally requested, but it is not clear from the court’s order awarding fees. On r emand, the district c o u rt should review the work

u ndertaken following K.G.’s g raduation to determ i n e w h e t h e r it truly f u r t h ered K.G.’s interests. F urther inquiry into why K.G. did not seek to remove himself fro m the proceeding s following his g raduation would be appropriate. L eg a l work the district c ourt identifies as havi n g been unmoored from g enuine advocacy

in furtherance of K.G.’s interests may not be rewarded with fees. The dis t ri ct c ourt must ex p lain why
, specifically
, any g iven percentag e r eductions a re proper a

nd how such fees are appropriately allocated to work performed before and after K.G.’s g raduation. See Barnard v. Theobald
, 721 F .3d 1069, 1077 (9th Cir. 2 0 13) (“[ W ] hile the district judg e ex p lained why he thoug h t the a w ard was ex cessive, he f a i l e d to ex plain why he thoug ht that a 40 percent reduct i o n would be an appropriate remedy .”).I R V I N E USD V

. K.G. 16

I V

W e affirm the distr i ct c ourt’s g rant of relief from judg ment, b ut we vacate t h e f ee a ward. On remand, the district court shall determ i n e whether the hours billed following K.G.’s g raduation were truly the result of a dvocacy reasonably calculated to advance K.G.’s interests as opposed to those of K.G.’s lawy ers, and the district court shall adjust the fee award according

ly with appropriate ex planation. 3

The parties shall bear their own costs incurred during this appeal.

AF F IRMED in pa r t, VACATED in part, a nd REMANDED

.

CAL L A HAN, Circui t J udg e, concurring and dissenting in part:

I join all of J udg e O’Scannlain’s opinion ex cept for Section I I I C. I can find no justification in either the I D EA o r

case law for limiting an award of attorney s ’ f e es to a prevailing party b a sed on when the student g raduated. Rather, such a restriction fails to appreciate the I DEA a nd its carefully crafted provisions for attorney s’ fees.

3 T h e Mo tio n f

o r L eav e to File B rief o f Am ici Cu riae C alif o rn ia Sch o o l Bo ard s A sso ciatio n Ed u catio n L eg al A llian ce & Natio n al Sch oo l B o ard s A s so ciatio n in Su p p ort o f Irv in e Un i f

i ed Sch o o l District an d Rev ersal o f th e District Co ur t ’s D e c i sio n , f iled March 2 5, 20 1 5, is G RANTED

.I R V I N E USD V

. K.G. 17

The I DEA allows f

o r attorney s’ fees, under c ertain conditions, for either the p laintiffs or d e f endants. 1 The I DEA further contains provisions f or insuring that the amount o f

1 2 0 U.S.C. § 1 4 1 5 (i)(B ) states:

(B ) A w ard o f

atto rn ey s ’ f

ees
(i) In g en eral

In an y actio n o r p ro ceed in g b ro u g h t u n d er th is sectio n , th e co urt, in i t s d iscretio n , m ay aw ard

reaso n ab le atto rn ey s’ f

ees as p art o f

th e co sts–

(I) to a p rev ailin g p arty w h o is th e p aren t o f a ch ild w ith a d i sab ility ;
(II) to a p rev a i l i n g p arty w h o is a State ed u catio n al ag en cy o r lo cal ed u catio n al ag en cy ag ain st th e atto rn ey o f a p ar e n t w h o f iles a co m p lain t o r su

b s eq u en t cau se o f actio n th at is f riv o lo u s, un reaso n ab le, o r w ith o u t f o un datio n , o r ag ain st th e atto rn ey o f a paren t

w h o co n tin u ed t o litig ate af

ter t h e litig atio n clearly b ecam e f

riv olo u s , un

reaso n ab l e, or

w ith o u t f o un d atio n ; o r
(III) to a p rev ailin g State ed u catio n al ag en c y

o r lo cal ed u catio n al ag en cy ag ain st th e atto rn ey o f a p aren t , o r ag ain st th e p aren t , if th e p aren t’ s co m

p lain t o r su

b seq u en t cau se of actio n w as p resen ted f o r an y im

p ro per p urp ose, su ch as to h a rass, to cau s e

un n ecessary delay
, o r to n eed lessly in creas e th e co st o f

litig atio n

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attorney s’ f

ees is reasonable. 2 Here, as the majority notes, it

2 2 0 U.S.C. § 1 4 1 5 (i)(F) an d (G) p ro v id e:
(F) Red u ctio n

inam o un t o f

atto rn ey s’ f

ees

Ex cep t as p ro v id ed in su

bp arag rap h (G), w

h en ev er th e co urt f

in d s th at–

(I) th e p aren t, o r th e p aren t’ s atto rn ey , d u rin g th e co urse of th e actio n o r p ro ceed in g , un reaso n ab l y p ro tracted t

h e f in al reso lu tio n of th e co n tro v ersy ;
(ii) t h e am o un t o f th e atto rn ey s’ f ees o th erw ise

au th o rized to b e aw ard ed u n reaso n ab ly

e x ceed s th e h o urly rate prev ailin g in th e

co m m un ity f o r sim ilar serv ices b y atto rn ey s of

reaso n ab l y co m

p arab l e sk ill, rep u t atio n , an d

ex p erien ce;
(iii) th e tim e sp en t an d l eg al s erv ices f u rn ish ed

w ere ex cess i v e co n sid erin g th e n atu re of th e actio n o r p ro ceed in g ; o r
(iv ) th e at t o rn ey rep resen tin g th e p aren t did

n o t p ro v id e to th e lo cal ed u catio n al ag en cy th e ap p ro p r i a te in f

o rm atio n in th e n o tice o f th e

co m p lain t d escrib ed insu

b sectio n (b )(7 )(A ),

th e co urt s h all red u ce, acco rd in g ly , th e am o u n t o f th e atto rn ey s’ f

ees aw ard ed u

n d er th is sectio n

. (G) Ex cep t io n to red u ctio n i n am o un t o f atto rn ey s’ f ees

T h e p ro v isio n s o f su

b p arag rap h (F) sh all n o t ap p ly in an y actio n o r p ro ceed in g i f th e co urt f in d s t h a t th e State o r l o cal ed u catio n al ag en cy un reaso n ab ly p ro tracted th e fin al reso lu tio n o f th e actio n or p ro ceed i n g o r th ere w as a v io latio n o f th is sectio n

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. K.G. 19

was the School Distr i c t and the State that continued this litig ation well after K.G.’s g raduation. Th u s , t he only conceivable way that K.G.’s g r aduation mig ht f ig ure into the

a w ard of attorney s’ fees is u nder § 1415(i)(F )(iii ) a s supporting an a ssertion that “the time spent and leg a l services furnished were ex cessive considering the nature of the action or proceeding .”

B u t “g raduation f

rom hig h school does not necessarily eliminate the possibility o f rec eiving benefits under I DEA.” Mc C o r m i c k v. W

aukegan Sch. Dist. No. 60
, 374 F .3d 564, 568 n. 1 (7th Cir. 2004). F u rthermore, K.G.’s g raduation has nothing to do with the reasonableness of his attorney s’ efforts in this litig ation. True, no o ne would take away his diploma. B ut the f act that the County was willing to fund K.G.’s F APE temporarily did n ot necessarily p reclude a court from orderingotherwise.

I n order to o btain the a ttorney s’ f ees she had e a r n ed
, K.G.’s attorney

had to stay in the litig ation until the entry of

a final judg ment because only then c ould s h e b e sure that K.G. was a p revailing party and could calculate her fees. I ndeed, in this very case, t h e district c ourt ruled in October 2013—over three y ears a fter K.G. had g r aduated—that K.G.

was n ot a prevailing par t y , and thus was not entitled to an award of attorney s’ f

e e s

. I t took another y ear for K .G. to chang e the district c ourt’s mind and procure an order that he

was a prevailin g p arty a nd was entitled to attorney s’ fees. Thus, when K. G

. gr aduated from hig h school is simply not relevant to determining the reasonableness of the at t orney s’ fees incurred in representing K.G. for over five y

ears.

More importantly
, the majority ’s appr o a c h overlooks o r denies the importance o f attorney s’ f ees in I DEA cases. TheI R V I N E USD V

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purpose of K.G.’s suit u nder the I DEA w as—as the majority

r e c o g niz es—to ensure that h e received a F APE. B ut this i s hardly the ty

pe of benefit that c an be shared with an attorney

. According ly
, the I DEA provides for awards of attorney s’ fees whe r e a child or parent prevails. 3 W ithout such a provision very few attorney s would take I DEA cases.

The cases cited by the majority for the proposition that the I DEA is “not a re l i ef Act for lawy ers” are inapposite. The

c o m m ent was reiterated b y J ustice O’Connor in h e r concurring opinion in Farrar v

. Hobby
, 506 U.S. 103, 122 (1992), but she was a d dressing attorne y s’ fees under 42 U.S.C. § 1988, n ot fees under the I DEA. J u s t i c e O’Connor was quoting J ustice Rehnquist’s dissent in City of Riverside v. Rivera
, 477 U.S. 562, 5 8 8 ( 1 986), which also concerned attorney

s’ fees under § 1988, not the I DEA.

There a re c r i tical differences between claims under § 1983 w hich may include damag es, a nd claims un d er the I DEA which for the most part, a nd certa i n l y i n this c ase,

concern primarily providing children with F APEs. See Payne

v. Peninsula Sch. Dist
., 653 F .3d 863, 8 73 (9th Cir. 2011) (en banc) (noting that mo netary damag e s are ordinarily not

a vailable under the I D EA). J ust months ag o, the Supre m e Court in Fry v. Napolean Community Schools
, 137 S. Ct. 743, 752–55 (2017), c arefully set f or t h a n u mber of differences between claims under the I D EA and claims under other

3 S ee S

. Rep

. No

. 99

- 1 1 2
, at 1 3 (1 9 8 5) (“ It is th e co m m i t t e e’ s in ten tio n th at a p aren t o r l eg al rep resen tativ e sh o u ld b e f ree to select an d b e rep resen ted b y

th e atto rn ey

o f h is/h er ch o ice.”).I R V I N E USD V

. K.G. 21

o v e r l apping statutes. 4 Opinions such as Fry disavow an y

4 Fo r ex am

p le, th e Su

p rem e Co u

rt n o ted :

If a law su it ch arg es [th e d en ial o f a FA P E], th e p lain tif f

can n o t escap e § 1 4 1 5 (l ) m erely b y b rin g in g h er su i t

u n d er a statu te o th er t h a n th e IDEA—as w h en , f or

ex am p le, th e p lain tif

f s in S mith claim ed th at a sch o o l’ s f ailu re to p ro v i de a FA P E also v io lated th e Reh ab ilitatio n A ct. Rath er, th at p l ain tif f m u st f irst

su bm it h er case t o an IDEA h earin g o fficer,

ex p erien ced in ad d ressin g ex actly th e issu es sh e raises. B u t i f
, in a su it b ro u g h t un d er a dif f eren t statu te, th e

r e m ed y so u g h t is n ot f

o r th e d en ial o f a FA P E
, t he n

ex h au stio n

o f th e IDEA ’ s p ro ced ures is n o t req u ired

.

1 3 7 S. Ct. at 7 5 4 (f

o o tn o t e o m itted ). It f

urth er ex p lain ed :

T h e IDEA
, o f co u

rse, p ro tects o n ly “ ch ild ren ” (w ell, really
, ad o lescen ts to o ) an d co n cern s on ly th eir sch o o l i n g

. § 1 4 1 2 (a)(1 )(A ). A n d as earlier n o ted
, th e statu te’ s g o al is to p ro v id e each ch ild w ith m ean i n g f u l

access to ed

u catio n b y o f

f erin g i n d iv id u alized in stru ctio n an d related serv ic e s ap p ro p riate to h er

“ u n iq u e n eed s.” § 1 40 1 (2 9 ); see Ro wley
, 4 5 8 U.S., at 1 9 2
, 1 9 8
, 1 0 2 S .Ct. 3 03 4 ; su p ra, at 7 5 3 – 7 5 4

. B y
c o n t r a st, T itle II o f th e A D A an d § 5 0 4 o f th e Reh ab ilitatio n

A ct co v er p eo ple w ith

d isab ilities o f

all ag es, an d do so b o th in sid e an d o u tsid e s c h o o ls. A n d th o se s tat u t es aim to ro ot o u t d isab ility

- b ased d i sc r i m i n a t i o n , e n a b l i n g e a c h c o v er e d p e r s o n (so m etim es b y m e an s o f reaso n ab le acco m m o d atio n s) to p articip ate eq u ally to all o th ers in pu b lic f acilities

an d f ed erally f u n d ed p ro g ram s. See su p ra , at 7 4 9

– 7 5 0

. In s h o rt, t

h e IDEA g u aran tees in d iv id u ally
t a ilo red ed u catio n al serv ices, w h ile T itle II an d § 5 0 4 p r o m i s e n o n

- d i s c r i m i na t o r y a c c e s s t o p u b l i c in stitu tio n s.

Id . at 7 5 5

– 5 6

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sug g estion that the I DEA can be analog iz ed to § 1983.

F inally
, the majority ’s questioning of “the nee d f o r any si g nificant a dvocacy on behalf of K.G. following the student’s hig h school g raduation,” Majority at 14, is at odds

w i t h our standard of review o f a district court’s a w a r d o f attorney s’ fees u n d e r the I DEA. W e review an award o f
attorn e y s’ fees for abuse of d iscretion. Shapiro ex rel. Shapiro v. Paradi s e V

a lley U nified Sch. Dist. No. 69
, 374 F .3d 857, 861 (9th Cir. 2004). The underly i n g f a ct ual determinations are reviewed fo r c l e ar error and the leg al analy sis relevant to the fee de t e r m i nation is reviewed de

novo. Id ; see also T.B. ex rel. Brenneise v

. San Diego Unified Sch. Dist.
, 806 F .3d 451, 4 74 (9th Cir. 2015 ). Here, when K.G. g raduated from hig h school has little, if any relevance,
to the factual determination of the re a s onableness of the attorney s’ fees incurred d uring this law suit that c ommenced in 2010. F urthermore, the majority cites no a uthority for the proposition that K.G.’s date of g raduation is r e l e v a n t, as a matter of law, to the determination of the reasonableness o f the attorney s’ fees.

Requiring the district court to re-evaluate its awa rd o f attorney s’ fees based on th e d a t e of K.G.’s g raduation from hig h school is c ontrary to the spirit of the I D E A and its carefully cr a fted provisions for attorney s’ fees, improperly analog iz e s the I DEA to § 1983, and is at odds wit h our st a n d a r d o f r eview of attorney s’ fee awards. According ly
, I dissent f rom Section I I I C of the majority ’s opi n ion, a nd would affirm the district court on all issues.