FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IRVINE UNIFIED SCHOOL DISTRICT,

Plaintiff-Appellant,

v.

K. G., an adult student,

Defendant-Appellee.

No. 14-56457

D.C. No.

2:10-cv-01431-

JVS-MLG

OPINION

Appeal from the United States District Court

for the Central District of California

James V. Selna, District Judge, Presiding

Argued and Submitted August 1, 2016

Pasadena, California

Filed April 13, 2017

Before: Diarmuid F. O’Scannlain, Johnnie B. Rawlinson,

and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge O’Scannlain;

Partial Concurrence and Partial Dissent by Judge Callahan
2 IRVINE USD V. K.G.

SUMMARY*

Individuals with Disabilities Education Act /

Attorneys’ Fees

The panel affirmed the district court’s grant of relief from

judgment but vacated its award of attorneys’ fees to a student

in an action under the Individuals with Disabilities Education

Act.

On remand from a ruling that student K.G.’s school

district was the agencyresponsible for K.G.’s free appropriate

public education, K.G. moved for statutory attorneys’ fees. 

The district court denied the motion on the ground that K.G.

was not a prevailing party but subsequently granted relief

from judgment under Federal Rule of Civil Procedure 60(b)

and awarded fees.

The panel held that the district court did not abuse its

discretion in granting relief under Rule 60(b)(1) on the

ground of excusable neglect.

The panel held that K.G. was a prevailing party entitled

to attorneys’ fees because K.G. achieved the benefit sought,

a decision as to which agency was responsible to provide a

free appropriate public education. The panel rejected the

argument that K.G. could not have benefitted from the

litigation because K.G. graduated with a high school diploma

months before the district court decided the case. The panel

held that K.G.’s victory was not trivial or merely technical.

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

been prepared by court staff for the convenience of the reader.
IRVINE USD V. K.G. 3

The panel held, however, that it was not clear whether the

amount of attorneys’ fees awarded was reasonable because

much of counsel’s work took place after K.G.’s graduation. 

The panel vacated the fee award and remanded for the district

court to determine whether the hours billed following K.G.’s

graduation were truly the result of advocacy reasonably

calculated to advance K.G.’s interests.

Concurring and dissenting in part, Judge Callahan joined

all of the majority opinion except for Section III C,

addressing the amount of fees. Judge Callahan wrote that

there was no justification in either the IDEA or case law for

limiting an award of attorneys’ fees to a prevailing party

based on whether the student graduated.

COUNSEL

S. Daniel Harbottle (argued), Harbottle Law Group, Irvine,

California, for Plaintiff-Appellant.

Marcy J.K. Tiffany (argued), Tiffany Law Group, Torrence,

California, for Defendant-Appellee.

Sue Ann Salmon Evans and Karl H. Widell, Dannis Woliver

Kelley, Long Beach, California, for Amici Curiae California

School Boards Association Education Legal Alliance &

National School Boards Association.
4 IRVINE USD V. K.G.

OPINION

O’SCANNLAIN, Circuit Judge:

We are asked to decide whether the attorney for a student

covered under the Individuals with Disabilities Education Act

is entitled to fees for legal work performed after the student’s

graduation from public school.

I

This case originates from a dispute over which California

government entity would be responsible for funding the

education of K.G., an emotionally disturbed minor from

California. Following K.G.’s release from juvenile hall in

2007, the California Department of Education (“the State”),

the Orange County Department of Education (“the County”),

and the Irvine Unified School District (“the School District”)

all agreed that K.G. was entitled to a “free appropriate public

education” (“FAPE”) under the Individuals with Disabilities

Education Act (“IDEA”), 20 U.S.C. § 1400(d)(1)(A), but

each entity disclaimed responsibility for funding such FAPE.

Eventually, the County agreed to fund K.G.’s FAPE,

temporarily, until the financially responsible agency could be

determined as a matter of law.

A

In November 2009, an administrative law judge (“ALJ”)

within California’s Office of Administrative Hearings ruled

that the School District was the agency responsible for the

FAPE under California law. The District filed a civil action

in federal district court challenging the ALJ’s decision and

naming the State, the County, and K.G. as co-defendants in
IRVINE USD V. K.G. 5

February of 2010, two months before K.G.’s graduation in

April. Proceedings in the district court continued for seven

months after K.G.’s graduation and culminated in a decision

holding the State responsible for K.G.’s FAPE in November

of 2010. The State appealed to this court, and we determined

that, as a matter of California law, the School District was

responsible for providing K.G.’s FAPE and not the State; we

remanded the case for proceedings consistent with our

decision. See Irvine Unified Sch. Dist. v. Cal., 506 F. App’x

548, 550 (9th Cir. 2013) (unpublished).

On remand and before the entry of judgment in district

court, K.G. moved for statutory attorneys’ fees under IDEA.

20 U.S.C. § 1415(i)(3)(B)(i)(I). K.G., still with the original

attorney, requested $232,625.00 in fees and $1,286.85 in

costs. The district court denied the request for attorneys’ fees

entirely, holding that K.G. was not a “prevailing party” under

IDEA because K.G.’s “victory”—the conclusive

determination as to which agency would fund the

FAPE—was merely “technical or de minimis.” During the

course of litigation, K.G. had maintained that the State was

responsible for the FAPE rather than the School District, an

argument the district court accepted. The district court

therefore reasoned that, “given the inherentlyequitable nature

of deciding on attorney fee awards, it seems inappropriate for

the District to pay fees accumulated while K.G. was arguing

the District’s own position.” K.G. failed to file a timely

appeal.

B

With the assistance of a new attorney, K.G. sought relief

from the district court’s denial of fees under Federal Rule of

Civil Procedure 60(b) in February 2014. K.G. argued that the
6 IRVINE USD V. K.G.

original attorney had “experienced several traumas, including

the death of her mother and father-in-law as well as her own

life-threatening condition, which triggered an unusually

severe bout of depression and anxiety.” According to K.G.,

the denial of substantial attorneys’ fees was the final blow,

deepening the attorney’s depression and “feelings of

hopelessness,” rendering her “too incapacitated to file a

timely appeal of the Fee Order.” The district court found

K.G.’s arguments persuasive and granted relief from

judgment on May 20, 2014. After receiving such relief, K.G.

again moved for attorneys’ fees. This time, K.G. sought a

total of $282,038.25, representing $221,971.35 for work

performed by the original attorney and $60,066.90 for work

performed by the new attorney.

The district court went on to grant in part K.G.’s renewed

motion for attorney’s fees, mandating that the School District

pay $174,803.65 in fees and costs: the court awarded

$126,657.25 for work performed by K.G.’s original 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

II

The School District contends that the district court erred

in granting K.G. relief from its original judgment denying

attorneys’ fees. We review a district court’s grant of relief

under Federal Rule of Civil Procedure 60(b) for abuse of

1 K.G. filed a cross-appeal, No. 14-56524, challenging the district

court’s decision to reduce appellate fees sought by the original attorney by

more than 50%. Such appeal has since been dismissed by stipulation ofthe

parties.
IRVINE 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 argues that the district court did

not apply the correct legal rule in evaluating whether to grant

relief. Rule 60(b)(1) provides that a district court “may

relieve a party . . . from a final judgment” in cases of

“mistake, inadvertence, surprise, or excusable neglect.” To

determine whether a party’s failure to meet a deadline

constitutes “excusable neglect” under Rule 60(b)(1), a court

“must apply a four-factor equitable test, examining: (1) the

danger of prejudice to the opposing party; (2) the length of

the delay and its potential impact on the proceedings; (3) the

reason for the delay; and (4) whether the movant acted in

good faith.” Ahanchian v. Xenon Pictures, Inc., 624 F.3d

1253, 1261 (9th Cir. 2010).

The district court began its analysis by rejecting the

District’s contention that it would be prejudiced by a grant of

relief. The District argued that it had fixed its budget under

the assumption that an order for attorneys’ fees was off the

table and had relied on the district court’s denial of fees in

negotiating settlements in other matters. The district court

found both claims unpersuasive. As to the remaining relevant

factors, the district court determined that K.G.’s delay in

pursuing Rule 60(b) relief was understandable in light of the

original attorney’s poor mental and physical health. The

district court thus “identified and applied the correct legal

rule,”United States. v. Hinkson, 585 F.3d 1247, 1263 (9th Cir.

2009), and applied it to the facts at hand, weighing each

element before arriving at its decision to grant relief.
8 IRVINE USD V. K.G.

B

The School District counters that even if the district court

applied the correct legal rule, the court’s factual findings

were flawed—specifically, that the district court “gave undue

weight to the Declaration of Dr. Lorna Swartz” and other

evidence outlining the attorney’s psychological difficulties.

It cites evidence in the record demonstrating that K.G.’s

original attorney continued to practice law during the period

when Swartz asserted that she was incapable of doing so. The

School District notes that the attorney communicated with

opposing counsel and, when she stated that she did not

oppose a proposed judgment sent to her by the State,

explained via email that she had “been out of the office in

marathon [individual education program team] meetings.”

Such facts, according to the School District, undermine

K.G.’s claim that the original attorney was “incapacitated.”

The district court noted such criticisms but nevertheless

found Dr. Swartz’s declaration persuasive:

While the Court acknowledges that this

contemporaneous evidence displays some

ability to continue her practice, the Court still

concludes that Swartz’s evidence and [the

attorney’s] own declaration confirm that her

depression, and in particular her feelings of

hopelessness in regard[] to the fee motion,

were so severe that her neglect in failing to

appeal was excusable.

Although one might reasonably disagree as to whether the

attorney was truly incapable of performing her job, the

district court’s decision to grant relief was not “illogical,
IRVINE USD V. K.G. 9

implausible, or without support in inferences that may be

drawn from the facts in the record.” Hinkson, 585 F.3d at

1263.

III

The School District next argues that the district court

abused its discretion in granting K.G.’s motion for attorney’s

fees. IDEA provides that “the court, in its discretion, may

award reasonable attorneys’ fees as part of the costs . . . to a

prevailing partywho 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. Dist., 461 F.3d 1114, 1117 (9th Cir.

2006).

A

Under the Supreme Court’s “‘generous formulation’ of

the term, ‘plaintiffs may be considered “prevailing parties”

for attorney’s fees purposes if they succeed on any significant

issue in litigation which achieves some of the benefit the

parties sought in bringing suit.’” Farrar v. Hobby, 506 U.S.

103, 109 (1992) (quoting Hensley v. Eckerhart, 461 U.S. 424,

433 (1983)); see T.B. ex rel. Brenneise v. San Diego Unified

Sch. Dist., 806 F.3d 451, 483 (9th Cir. 2015) (applying the

Farrar definition of “prevailing party” to IDEA attorneys’

fees provision). “The touchstone of the prevailing party

inquiry must be the material alteration of the legal

relationship of the parties in a manner which Congress sought

to promote in the fee statute.” Tex. State Teachers Ass’n v.

Garland Indep. Sch. Dist., 489 U.S. 782, 792–93 (1989).
10 IRVINE USD V. K.G.

In initiating the IDEA action in California’s Office of

Administrative Hearings, K.G. requested that “the ALJ deem

one of the [three agencies] responsible to provide him

FAPE.” K.G.’s prayer was answered in full when the ALJ

designated the School District as the responsible agency. The

district court similarly granted K.G.’s requested relief,

originally by designating the State as the responsible agency,

then by ordering the District to pay the bill following our

reversal. See Irvine Unified Sch. Dist, 506 F. App’x at 550.

K.G. thus achieved the “benefit [he] sought in bringing the

suit.” Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d

1489, 1498 (9th Cir. 1994). By receiving relief on the merits,

K.G. “met that minimum condition for prevailing party

status.” Farrar, 506 U.S. at 116 (O’Connor, J., concurring)

(“One dollar is not exactly a bonanza, but it constitutes relief

on the merits.”).

The School District nevertheless suggests that K.G. could

not have benefitted from the litigation because K.G.

graduated with a high school diploma months before the

district court decided the case. It cites Farrar v. Hobby,

506 U.S. 103 (1992), which in turn relies heavily on Rhodes

v. Stewart, 488 U.S. 1 (1988) (per curiam). In Rhodes, two

inmates sued prison officials after they were denied the right

to subscribe to a magazine. Though the prisoners successfully

won a declaratory judgment granting them the right to

subscribe to the magazine, the Supreme Court held that they

were not “prevailing parties” for purposes of assigning

attorneys’ fees. Rhodes, 488 U.S. at 2. The Court reasoned

that “a modification of prison policies . . . could not in any

way have benefited [sic] either plaintiff, one of whom was

dead and the other released before the District Court entered

its order.” Id. at 4.The prisoners could not be considered

“prevailing parties” for purposes of assigning statutory
IRVINE USD V. K.G. 11

attorneys’ fees because the judgment could not alter the

behavior of the defendant towards them. Just like the

prisoners in Rhodes, the District argues that K.G. received no

real benefit from the district court’s order because he was no

longer a student when judgement was entered.

In elucidating the contours of its “prevailing party”

definition, however, the Supreme Court in Farrar explained

that the inmates in Rhodes could not be said to have

“prevailed” when their litigation culminated merely in a

declaratory judgment: “Whatever ‘modification of prison

policies’ the declaratoryjudgment might have effected ‘could

not in any way have benefitted either plaintiff, one of whom

was dead and the other released.’” Farrar, 506 U.S. at 110

(quoting Rhodes, 488 U.S. at 4). A party receives a

meaningful benefit “if, and only if, [the judgment] affects the

behavior of” the opposing party towards it. Rhodes, 488 U.S.

at 4. Because the plaintiffs were no longer in prison custody,

they could not benefit from the particular relief they had won.

The posture of this case differs significantly from that of

Rhodes. Unlike the prisoners in Rhodes, K.G. secured a

judicially enforceable judgment—the ALJ’s decision—when

it still mattered. See T.B. ex rel. Brenneise, 806 F.3d at 483

(“It is true that the educational relationship between T.B. and

the district ended in 2008 when the Brenneises left San

Diego. But they had still earned relief before they left in the

form of an enforceable judgment.”). The administrative

record demonstrates that for a brief period at least some threat

of discharge from school hung over K.G.’s head as a result of

the funding dispute. A ruling from an ALJ definitively

holding one agency responsible was the most effective means

of eliminating such risk. K.G. secured this initial judgment on

November 30, 2009, well before high school graduation
12 IRVINE USD V. K.G.

ceremonies occurred in April of the following year. At that

point, K.G.’s original counsel had billed 60.6 hours of her

time to this case.

Litigation could have ceased with the decision of the ALJ.

Instead, it was the School District that kept the meter running

when it filed a complaint in district court. One could not

reasonably expect K.G., who was still enrolled in school

when the District named the student as a defendant in federal

court, to refrain from expending resources as the case

progressed. And it would make little sense to render a party

wholly ineligible for an award of fees incurred in defending

its victory, especially during the period when K.G. was still

enrolled.

B

A party whose “success on a legal claim can be

characterized as purely technical or de minimis” is not

entitled to fees. Parents of Student W., 31 F.3d at 1498. The

School District argues that K.G., even if properly termed a

“prevailing party,” obtained only limited success because it

was effectively a forgone conclusion that some agency would

fund K.G.’s education. In that sense, the District contends,

K.G.’s legal victory amounted to nothing more than the

designation as to which agency would be responsible for

providing the relief he had already received. And, as the

District notes, most of the litigation preceding this “victory”

occurred after the threat of discharge had been essentially

eliminated because of the County’s willingness to fund

K.G.’s FAPE temporarily.

Contrary to the District’s suggestion, however, K.G.’s

victory in this case cannot be dismissed as “de minimis.” Cf.
IRVINE USD V. K.G. 13

Farrar 506 U.S. at 115 (“When a plaintiff recovers only

nominal damages . . . the only reasonable fee is usually no fee

at all.”). K.G. received the requested relief in full by forcing

an agency to take responsibility for funding the FAPE. Such

a victory was significant because it eliminated any residual

risk that K.G. could be discharged from school. K.G. argued

the case before the ALJ in order to guarantee that a California

government agency would pay the cost of the FAPE: the

ALJ’s decision notes that the sole issue of the administrative

proceedings was “Which educational agency is responsible

for providing [K.G.] with a [FAPE]?” Securing an

enforceable judgment holding one such agency responsible

for that FAPE, and later defending that victory in a civil

action in federal court, certainly constitutes success in a

“significant issue” of litigation. Parents of Student W, 31 F.3d

at 1498.2

K.G. qualified as a prevailing party under IDEA, and this

victory was not trivial or merely technical. An award of some

amount of fees incurred in achieving this end was therefore

justified.

C

That, however, does not end our inquiry. Even when a

party is entitled to some fees, the amount awarded must be

“reasonable.” 20 U.S.C. § 1415(i)(3)(B)(i). The School

District argues that the fee award was unreasonably high

given that much of the work performed on K.G.’s behalf

took place after graduation when K.G. was no longer

2 K.G.’s motion for us to take judicial notice of the district court’s

order awarding fees in A.S., as well as the docket for this case, filed

September 22, 2015, is GRANTED.
14 IRVINE USD V. K.G.

vulnerable. Before graduating, K.G. had at least some skin in

the game. Although the threat of discharge may have been

remote given the County’s willingness to fund K.G.’s FAPE

temporarily, it remained reasonable for K.G. to continue to

pursue a more definitive resolution. This changed in April

2010, of course, when the risk of discharge evaporated as a

result of K.G.’s graduation. With a diploma in hand, K.G.

moved on to the next phase of life, having been provided with

all that IDEA guaranteed him. Yet the litigation to which

K.G. was a party continued.

While K.G.’s original attorney reported spending only

60.6 hours advocating on behalf of K.G. during state

administrative proceedings, she purportedly dedicated 134.5

hours litigating before the district court in support of holding

the State responsible for the FAPE rather than the District.

Counsel’s zealous advocacy on behalf of her long-graduated

client continued before this court—she reported spending

206.5 hours on an appeal that did not even commence until

roughly ten months after K.G.’s graduation.

Although the district court wisely reduced requested fees

in its final award, we question the need for any significant

advocacy on behalf of K.G. following the student’s high

school graduation. If the vagaries of litigation demanded

K.G.’s continued nominal presence as a party, counsel

certainly deserves to be compensated for advocacy

undertaken on K.G.’s behalf (and in pursuit of fees derived

from such work). But the need for such work may have been

minimal given what appears to be an utter lack of risk borne

by K.G. following graduation. Once a student receives all the

statutory benefits guaranteed by IDEA and no longer faces

even a nominal risk that those benefits might be taken away,

only exceptional circumstances can justify an ever-
IRVINE USD V. K.G. 15

lengthening billing invoice. A finding that K.G. might end up

liable for bills already paid, or the possibility that his diploma

might be retroactively revoked, for instance, would certainly

explain the need for hundreds of hours of advocacy after his

graduation in 2010. But IDEA is not “a relief Act for

lawyers.” Farrar, 506 U.S. at 122 (O’Connor, J., concurring)

(quoting Riverside v. Rivera, 477 U.S. 561, 588 (1986)

(Rehnquist, J., dissenting)). Here, the burden is on K.G. to

demonstrate why his continued participation in this litigation

was necessary after he received everything to which he was

entitled.

It may well be that the district court took into account the

forgoing considerations in reducing the fees originally

requested, but it is not clear from the court’s order awarding

fees. On remand, the district court should review the work

undertaken followingK.G.’s graduation to determinewhether

it truly furthered K.G.’s interests. Further inquiry into why

K.G. did not seek to remove himself from the proceedings

following his graduation would be appropriate. Legal work

the district court identifies as having been unmoored from

genuine advocacy in furtherance of K.G.’s interests may not

be rewarded with fees. The district court must explain why,

specifically, any given percentage reductions are proper and

how such fees are appropriately allocated to work performed

before and after K.G.’s graduation. See Barnard v. Theobald,

721 F.3d 1069, 1077 (9th Cir. 2013) (“[W]hile the district

judge explained why he thought the award was excessive, he

failed to explain why he thought that a 40 percent reduction

would be an appropriate remedy.”).
16 IRVINE USD V. K.G.

IV

We affirm the district court’s grant of relief from

judgment, but we vacate the fee award. On remand, the

district court shall determine whether the hours billed

following K.G.’s graduation were truly the result of advocacy

reasonably calculated to advance K.G.’s interests as opposed

to those of K.G.’s lawyers, and the district court shall adjust

the fee award accordingly with appropriate explanation.3

The parties shall bear their own costs incurred during this

appeal.

AFFIRMED in part, VACATED in part, and

REMANDED.

CALLAHAN, Circuit Judge, concurring and dissenting in

part:

I join all of Judge O’Scannlain’s opinion except for

Section III C. I can find no justification in either the IDEA or

case law for limiting an award of attorneys’ fees to a

prevailing party based on when the student graduated. 

Rather, such a restriction fails to appreciate the IDEA and its

carefully crafted provisions for attorneys’ fees.

3 The Motion for Leave to File Brief of Amici Curiae California

School Boards Association Education Legal Alliance & National School

Boards Association in Support of Irvine Unified School District and

Reversal of the District Court’s Decision, filed March 25, 2015, is

GRANTED.
IRVINE USD V. K.G. 17

The IDEA allows for attorneys’ fees, under certain

conditions, for either the plaintiffs or defendants.1 The IDEA

further contains provisions for insuring that the amount of

1

 20 U.S.C. § 1415(i)(B) states:

(B) Award of attorneys’ fees

(i) In general

In any action or proceeding brought under this

section, the court, in its discretion, may award

reasonable attorneys’ fees as part of the costs–

(I) to a prevailing party who is the parent of a

child with a disability;

(II) to a prevailing party who is a State

educational agency or local educational

agency against the attorney of a parent who

files a complaint or subsequent cause of action

that is frivolous, unreasonable, or without

foundation, or against the attorney of a parent

who continued to litigate after the litigation

clearly became frivolous, unreasonable, or

without foundation; or

(III) to a prevailing State educational agency

or local educational agency against the

attorney of a parent, or against the parent, if

the parent’s complaint or subsequent cause of

action was presented for any improper

purpose, such as to harass, to cause

unnecessary delay, or to needlessly increase

the cost of litigation.
18 IRVINE USD V. K.G.

attorneys’ fees is reasonable.2 Here, as the majority notes, it

2

 20 U.S.C. § 1415(i)(F) and (G) provide:

(F) Reduction in amount of attorneys’ fees

Except as provided in subparagraph (G), whenever

the court finds that–

(I) the parent, or the parent’s attorney, during

the course of the action or proceeding,

unreasonably protracted the final resolution of

the controversy;

(ii) the amount ofthe attorneys’fees otherwise

authorized to be awarded unreasonably

exceeds the hourly rate prevailing in the

community for similar services by attorneys of

reasonably comparable skill, reputation, and

experience;

(iii) the time spent and legal services furnished

were excessive considering the nature of the

action or proceeding; or

(iv) the attorney representing the parent did

not provide to the local educational agency the

appropriate information in the notice of the

complaint described in subsection (b)(7)(A),

the court shall reduce, accordingly, the amount of

the attorneys’ fees awarded under this section.

(G) Exception to reduction in amount of attorneys’fees

The provisions ofsubparagraph (F) shall not apply

in any action or proceeding if the court finds that

the State or local educational agency unreasonably

protracted the final resolution of the action or

proceeding or there was a violation of this section.
IRVINE USD V. K.G. 19

was the School District and the State that continued this

litigation well after K.G.’s graduation. Thus, the only

conceivable way that K.G.’s graduation might figure into the

award of attorneys’ fees is under § 1415(i)(F)(iii) as

supporting an assertion that “the time spent and legal services

furnished were excessive considering the nature of the action

or proceeding.”

But “graduation from high school does not necessarily

eliminate the possibility of receiving benefits under IDEA.” 

McCormick v. Waukegan Sch. Dist. No. 60 , 374 F.3d 564,

568 n. 1 (7th Cir. 2004). Furthermore, K.G.’s graduation has

nothing to do with the reasonableness of his attorneys’ efforts

in this litigation. True, no one would take away his diploma. 

But the fact that the County was willing to fund K.G.’s FAPE

temporarily did not necessarily preclude a court from

ordering otherwise.

In order to obtain the attorneys’ fees she had earned,

K.G.’s attorney had to stay in the litigation until the entry of

a final judgment because only then could she be sure that

K.G. was a prevailing party and could calculate her fees. 

Indeed, in this very case, the district court ruled in October

2013—over three years after K.G. had graduated—that K.G.

was not a prevailing party, and thus was not entitled to an

award of attorneys’ fees. It took another year for K.G. to

change the district court’s mind and procure an order that he

was a prevailing party and was entitled to attorneys’ fees. 

Thus, when K.G. graduated from high school is simply not

relevant to determining the reasonableness of the attorneys’

fees incurred in representing K.G. for over five years.

More importantly, the majority’s approach overlooks or

denies the importance of attorneys’ fees in IDEA cases. The
20 IRVINE USD V. K.G.

purpose of K.G.’s suit under the IDEA was—as the majority

recognizes—to ensure that he received a FAPE. But this is

hardly the type of benefit that can be shared with an attorney. 

Accordingly, the IDEA provides for awards of attorneys’ fees

where a child or parent prevails.3 Without such a provision

very few attorneys would take IDEA cases.

The cases cited by the majority for the proposition that the

IDEA is “not a relief Act for lawyers” are inapposite. The

comment was reiterated by Justice O’Connor in her

concurring opinion in Farrar v. Hobby, 506 U.S. 103, 122

(1992), but she was addressing attorneys’ fees under

42 U.S.C. § 1988, not fees under the IDEA. Justice

O’Connor was quoting Justice Rehnquist’s dissent in City of

Riverside v. Rivera, 477 U.S. 562, 588 (1986), which also

concerned attorneys’ fees under § 1988, not the IDEA.

There are critical differences between claims under

§ 1983 which may include damages, and claims under the

IDEA which for the most part, and certainly in this case,

concern primarily providing children with FAPEs. See Payne

v. Peninsula Sch. Dist., 653 F.3d 863, 873 (9th Cir. 2011) (en

banc) (noting that monetary damages are ordinarily not

available under the IDEA). Just months ago, the Supreme

Court in Fry v. Napolean Community Schools, 137 S. Ct. 743,

752–55 (2017), carefully set forth a number of differences

between claims under the IDEA and claims under other

3

See S. Rep. No. 99-112, at 13 (1985) (“It is the committee’s

intention that a parent or legal representative should be free to select and

be represented by the attorney of his/her choice.”).
IRVINE USD V. K.G. 21

overlapping statutes.4 Opinions such as Fry disavow any

4

 For example, the Supreme Court noted:

If a lawsuit charges [the denial of a FAPE], the plaintiff

cannot escape § 1415(l ) merely by bringing her suit

under a statute other than the IDEA—as when, for

example, the plaintiffs in Smith claimed that a school’s

failure to provide a FAPE also violated the

Rehabilitation Act. Rather, that plaintiff must first

submit her case to an IDEA hearing officer,

experienced in addressing exactly the issues she raises. 

But if, in a suit brought under a different statute, the

remedy sought is not for the denial of a FAPE, then

exhaustion of the IDEA’s procedures is not required.

137 S. Ct. at 754 (footnote omitted). It further explained:

The IDEA, of course, protects only “children” (well,

really, adolescents too) and concerns only their

schooling. § 1412(a)(1)(A). And as earlier noted, the

statute’s goal is to provide each child with meaningful

access to education by offering individualized

instruction and related services appropriate to her

“unique needs.” § 1401(29); see Rowley, 458 U.S., at

192, 198, 102 S.Ct. 3034; supra, at 753 – 754. By

contrast, Title II of the ADA and § 504 of the

Rehabilitation Act cover people with disabilities of all

ages, and do so both inside and outside schools. And

those statutes aim to root out disability-based

discrimination, enabling each covered person

(sometimes by means of reasonable accommodations)

to participate equally to all others in public facilities

and federally funded programs. See supra, at 749 –

750. In short, the IDEA guarantees individually

tailored educational services, while Title II and § 504

promise non-discriminatory access to public

institutions.

Id. at 755–56.
22 IRVINE USD V. K.G.

suggestion that the IDEA can be analogized to § 1983.

Finally, the majority’s questioning of “the need for any

significant advocacy on behalf of K.G. following the

student’s high school graduation,” Majority at 14, is at odds

with our standard of review of a district court’s award of

attorneys’ fees under the IDEA. We review an award of

attorneys’ fees for abuse of discretion. Shapiro ex rel.

Shapiro v. Paradise Valley Unified Sch. Dist. No. 69,

374 F.3d 857, 861 (9th Cir. 2004). The underlying factual

determinations are reviewed for clear error and the legal

analysis relevant to the fee determination is reviewed de

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

Sch. Dist., 806 F.3d 451, 474 (9th Cir. 2015). Here, when

K.G. graduated from high school has little, if any relevance,

to the factual determination of the reasonableness of the

attorneys’ fees incurred during this law suit that commenced

in 2010. Furthermore, the majority cites no authority for the

proposition that K.G.’s date of graduation is relevant, as a

matter of law, to the determination of the reasonableness of

the attorneys’ fees.

Requiring the district court to re-evaluate its award of

attorneys’ fees based on the date of K.G.’s graduation from

high school is contrary to the spirit of the IDEA and its

carefully crafted provisions for attorneys’ fees, improperly

analogizes the IDEA to § 1983, and is at odds with our

standard of review of attorneys’ fee awards. Accordingly, I

dissent from Section III C of the majority’s opinion, and

would affirm the district court on all issues.