C.W. Ex Rel. K.S. v. Capistrano Unified School District

gun stolen reported Hines after Matthews as

January 2013 and identified thief, more than a month potential eventually recovered police

passed before apartment. from Matthews’s

the firearm circumstances, application

In these 2K2.1(b)(4) stolen-gun enhancement was

appropriate. affirmed. judgment Mother, K.S.,

C.W., minor, her Litem; K.S., Ad Guardian

Guardian Litem, Plaintiffs-Appellants,

Ad UNIFIED SCHOOL

CAPISTRANO

DISTRICT, Defendant-

Appellee.

No. 12-57315. Appeals,

United States Court

Ninth Circuit. Aug. 2014.

Argued and Submitted

Filed March 2015. April

Amended

Gregory (argued), S. Fisher Davis LLP, AL; Wright Tremaine Anchorage, Jennifer Campbell Guze and Vanessa Jar- vis, Firm, APC, Special Education Law Lakewood, CA, for Plaintiffs-Appellants. Amy Bell, (argued), R. Levine Ernest Tamel, and Matthew J. Dannis Woliver Francisco, CA, Kelley, San for Defendant- Appellee. Munson, Carly

William Koski and S. J. Project, & Education Youth Law Mills Le- Clinic, School, Stanford, gal Stanford Law CA; Pearlman, Uzeta, Paula D. Michelle Rivera, Disability Rights Legal and Anna Center, CA, Angeles, Los for Amici Curiae Center, Disability Rights Legal Disability California, Rights Public Counsel Law Center, Rights Children’s Clinic South- School, Pepperdine western Law Universi- ty Special School of Law Education Advo- Clinic, cacy University Diego of San Legal Climes. Yount, Cynthia

Jonathan J. Mott and A. LLP, Tustin, CA, Parker & Covert Amicus Curiae California School Boards Legal Association Education Alliance. REINHARDT, based on a claim of retalia- Before: STEPHEN WARDLAW, arising threatening from a letter sanc- tion KIM MCLANE CALLAHAN, should tions sent the District’s counsel M. Circuit CONSUELO (“K.S.”) parent pursue continue to C.W.’s Judges. agree appeal. Because we with the WARDLAW; Partial Judge Opinion by ADA district court that the by Judge and Partial Dissent Concurrence frivolous, are we affirm the district REINHARDT. court to the extent it awarded relating representation fees and costs for ORDER disagree to those claims. We [779 filed on March opinion court, however, plaintiffs district amended, hereby and an F.3d 956] IDEA and Rehabilitation Act claims were concurrently with opinion is filed amended improper frivolous and/or this order. purpose, and we therefore reverse the dis- attor- trict court to the extent awarded amendment, Judges Wardlaw With litiga- to the ney’s fees and costs related deny, and and to Callahan voted. tion of those claims. grant, appel- has voted to Judge Reinhardt rehearing. panel The petition lants’ for reject suggestion for re-

has voted to I.

hearing en banc. A. full court has been advised of the rehearing and no

suggestion for en banc IDEA “to Congress enacted the ensure requested a vote on judge active has that all children disabilities have to rehear the matter en banc. whether appropriate to them a free and available App. R. P. 35. Fed. public education” and “to ensure that the rights par of children with disabilities and Thus, petition rehearing for is de- protected.” of such children are ents suggestion rehearing nied and the for en 1400(d)(1)(A) (B). §§ “The-statute — rejected. for petitions banc is No further procedures resolving for dis sets forth rehearing en will be rehearing or for banc that, in in a manner the Act’s ex putes The mandate shall issue entertained. terms, press contemplates parents will be forthwith. the administrative parties bringing IT IS SO ORDERED. ex rel. Winkel complaints.” Winkelman Dist., 550 U.S. City man v. Parma Sch. OPINION 1994, L.Ed.2d 904 127 S.Ct. WARDLAW, Judge: Circuit (2007). IDEA in numerous relies parents of in the ways court’s award on the involvement appeals C.W. the district Individualized Edu attorney’s Capistrano process developing costs to of of fees and (“the District”), District, Programs special for students with cation Unified School needs, for provides and a detailed scheme alleg- defendant in an action prevailing they remedies when be parents pursue Individuals with Dis- ing violations (“IDEA”). deprived that their child has been Act In ad- lieve abilities Education claims, appropriate education. Since attorneys to the IDEA free dition IDEA, like most civil inception, Ameri- its also claimed violations of the C.W. statutes, (“ADA”), prevailing allowed a rights Act has cans with Disabilities Section costs. Act, to seek fees and plaintiff 504 of the Rehabilitation 1415(i)(3)(B)(i)(I); Program1 see also vidualized Education meeting See 20 U.S.C. Arlington Cent. Sch. Dist. Bd. Educ. in October K.S. consented to an oc- 291, 301-02, 126 S.Ct. Murphy, U.S. cupational therapy assessment for C.W. (2006) (noting 165 L.Ed.2d 526 the This gross assessment of C.W. areas of wording” “virtually [ ] identical development, and fine motor was conduct- 1988). 1415(i)(3)(B). and U.S.C. ed Hirchag, Rebecca occu- licensed 2004, Congress amended 20 U.S.C. (“OT”). pational therapist The OT as- 1415(i)(3)(B), prevailing to allow a defen sessment included a review of medical IDEA against dant in an case to seek fees records, and educational a teacher inter- attorneys of a parent view, interview, parent naturalistic ob- parent alleged himself if the claims performance servations of in an edu- improper pur frivolous or setting, observations, cational clinical 108-446, pose. P.L. No. See December as well as five different standardized as- 2004, 118 Stat. 2647. sessment tools. The report OT conclud- ed: B. Assessment revealed fine preci- motor disputed occupational At the time of the sion and bilateral integration skills in case, therapy assessment C.W. was the average range compared when 11-years old. was and C.W. continues typically developing peers her age. same eligible be for special education services Scores for fine integration motor eligibility category under the of “Other upper slightly limb coordination were Impairment” Health because has cere- she average alignment below however in shunt, palsy, bral a ventriculoperitoneal ability. with her academic Manual dex- and a heart murmur. has C.W. also low terity scores impacted by time. cognitive ability. special was in a C.W. Please see accommodations in the chart day Valley Elementary class at Crown below to in [C.W.] assist the class- School within the District. room .... In the classroom she is fo- The performed legally District its re- attentive, processing cused and she is quired triennial assessment of C.W. sensory regards information with to her multidisciplinary

2010. The team recom- access of educational environment. eligible mended that C.W. remain for special education Hirchag and related services be- made several recommendations modifications, cause “she a goals, exhibits severe health disor- or accommoda- adversely der which affects educational tions based on C.W.’sweaknesses manu- performance.” Following dexterity, registration an initial Indi- al sensitivity, pate regular 1. An IEP is a statement written for each child with nondisabled children in the (i) disability class”; with a (vi) that includes "a statement "a statement of individual present of the child’s levels of academic appropriate, accommodations that are neces performance”; achievement and functional (ii) sary to measure the academic achievement goals, "a statement of measurable annual performance and functional child on including goals”; academic and functional assessments”; (vii) State and districtwide (iii) description progress "a of how the child’s projected beginning "the date” for the of the meeting goals toward measured”; ... will annual be (iv); (viii) beginning services” in when (iv) special "a statement of the postsecondary the child is "measurable supple education and related services and goals” along with the "transition services ... mentary provided aids and services ... to be reaching needed to assist the child” in those child”; (v) explanation to the "an ex 1414(d)(1)(A)(i). goals. 20 U.S.C. tent, any, partici to which the child will not 23, 2011, de- February lan- the District during written On remembering content request independent for an edu- and desk or- nied spelling, assignments, guage public expense. at The cational evaluation not recommend she did ganization, but complaint initiating a due District filed its need- services were any direct OT whether hearing an Administrative process before IEP,- by the OT assess- informed The ed. (“ALJ”) 4, 2011.2 Judge on March Law hour-monthly one ment, recommended therapist and an OT between collaboration C. strategies for to evaluate teacher C.W.’s forward, two 30-minute well as two going hearing Due Process concerned per year. (1) consults individual OT the OT assessment issues: whether the District appropriate; and whether was at the OT assessment presented Hirchag IDEA violation procedural committed meeting, and K.S. 2011 IEP January pro- delaying unnecessarily filing its due “stupid.” K.S. also that was responded The ALJ reviewed complaint. cess that the OT assessment expressed shock testimony, principally took records and appropri- was able to that C.W. concluded concluded that Hirchag. from ALJ shape paper, and said ately cut a prop- the OT assessment was administered home, incorrectly. holds scissors at C.W. test manual erly pursuant to the correct statutory re- compliance and in 25, 2011, K.S., pursuant January On The ALJ also concluded quirements. law, independent an requested California request the IEE forty days between occupational evaluation educational the Due Process com- filing and the disagreement with based on her therapy unnecessary delay. plaint was not therapy portion occupational 2011 IEP. See Cal. Educ.Code January Because the ALJ concluded 56329(b) “right (granting parents appropriate, District’s OT assessment obtain, expense, independent public an indepen- remained able to obtain C.W. pupil the from assessment, assessment of public educational but not at a ex- dent ... parent remedy if the the qualified specialists pense. appeal KS.’s was to with an assessment ob- court. On guardian disagrees ALJ decision federal district 2011, agency”); 1, attorney education wrote to the public July tained the K.S.’s 300.502(a) (same). indicating forego re- that would § K.S. District K.S. 34 C.F.R. agreed of the an if the District to fund the portion appeal consent to the OT fused to therapy pay and occupational to include IEE for the District failed IEP because $12,500 attorney’s fees and costs to her January 2011 IEP all of the OT in C.W.’s attorneys, Special Education Law accommodations. report’s recommended fees will attorney “legal Firm. noted that: signed by Jennifer Counsel The letter pro- increase as this matter Education continue to Campbell Special of the Guze litigation parties if the do ceeds to Federal Firm. Law right priate, parent to an requests public at still has parent an IEE 2. Once evaluation, must, agency independent educational but not expense, public without “the (b)(3); (i) public expense.” Id. at see Cal. unnecessary delay, pro due at either File a 56329(c) (“If § decision hearing the final complaint request a to show Educ.Code cess (ii) hearing resulting process is that from the due appropriate; or En that its evaluation is parent or appropriate, the independent evalua the assessment is an educational sure that indepen right an guardian maintains the provided public expense....” at 34 tion is assessment, 300.502(b)(2). public but not § deci dent educational the final "[Id C.F.R. expense.”). agency’s appro evaluation is sion is that the agreement.” achieve a settlement and ADA claims once more pleading and attorney in a responded § District’s letter 504 claim with particularity. more 14, July 2011: dated response, the District filed second 27, 2012, motion to July correspondence January Your ce- dismiss on and your pattern litigating, January parties ments office’s on stipulated to threatening litigate, § and nonexistent dismiss the 1983 and ADA claims with aware, you prejudice. violations ... As are contin- The district court dismissed litigation § ued as to the appropriateness prejudice claim with on March occupational District’s thera- py assessment is frivolous.... Accord- 2, 2012, July On K.S. moved for sum- ingly, right District reserves the to mary judgment, arguing the ALJ incor- against you seeks sanctions and [sic] rectly ruled on the adequacy of the OT your client the most recent adminis- assessment because failed to recommend appealed. trative decision is special C.W. need education and related services and that the District had D. not unnecessarily delayed in filing the due 3, 2011, August appeal On K.S. filed process complaint. of the ALJ’s decision in federal district 3, 2012, August On the district court court, adding claims for violations of the decision, affirmed the ALJ’s that it finding intimidation clause of the Americans with no factual errors “eontain[ed] and was Act, 12203(b); Disabilities U.S.C. careful,” thorough concluding and and 1983 for retaliation in violation of disputed occupational therapy report rights; KS.’s First Amendment did not violate IDEA and the District of the Rehabilitation Act of 1973. Each of did not unnecessarily delay process its due these additional claims was based on the complaint. The court further denied theory July the District’s request K.S.’s fees and invit- attempt letter was an to intimidate K.S. request ed the District to file a for attor- pursuing legal right appeal her ney’s fees appeal because the “bases for ALJ decision. [were] frivolous.” The District moved under Federal Rule accepted The District the court’s invita- 12(b)(6) of Civil Procedure for dismissal of $94,602.34 tion was awarded in attor- ADA, 504 claims. The $2,058.21 ney’s fees and in costs. The district court dismissed the ADA claim district court found that each of the claims with prejudice; § dismissed the claim 1983 “frivolous, unreasonable, was and without prejudice, except injunc- to the extent Further, foundation.” the court concluded sought; tive relief was and dismissed the that these brought by claims were K.S. for because, § claim pled, 504 it failed to “harassment, improper purpose un- meet the standards articulated in Bell At- necessary delay, needlessly increasing 544, lantic v. Corp. Twombly, 550 U.S. 127 costs,” litigation exposing potential K.S. to 1955, (2007) S.Ct. 167 L.Ed.2d 929 personal liability for the fees. 662, Iqbal, v. 556 U.S. 129 S.Ct. Ashcroft (2009), granted 173 L.Ed.2d 868 but II, § K.S. leave to amend the claim be- an might cause amendment not be futile. We review for abuse of discretion 13, 2012, January On K.S. filed an a district attorney’s court’s award of fees amended complaint alleging § to a prevailing defendant under the fee IDEA, presented im cause of action was U.S.C.

provisions (the 1415(i)(3)(B)(i)(II)-(III). proper purpose” “improper purpose R.P. v. Pres- Dist., 1415(i)(3)(B)(i)(III). 20 U.S.C. prong”). 631 F.3d cott Sch. Unified Cir.2011). (9th gives examples improper The statute “A district court abuses its harass, to cause purposes, including on an “to when it awards fees based discretion y needlessly in clearly delay, or a or to view of the law inaccurate unnecessar litigation.” the cost of Id. of fact.” Benton v. Or. crease finding erroneous Comm’n, Assistance Student that there is previously noted We (internal (9th Cir.2005) quotation governing little case law fee awards to omitted). reviewing In and citation marks under the IDEA. prevailing defendants contexts, in fees awards other attorney’s R.P., though 631 F.3d at 1124. two-step inquiry to deter- “employ we rejected we the autistic child’s claim district court abused its mine whether a appropriate he was denied a fair and edu- in law to facts applying discretion IDEA, re- cation in violation of the we ” ‘essentially factual’ manner that is Unit- court’s award of attor- versed district 392, 400 Capener, ed States ney’s to the school district because it fees omitted). (9th Cir.2010) (internal citation legal applied improper unsupported First, novo whether the we determine de There, we concluded: standard. legal trial court identified the correct language of the IDEA’S fee-shift- [T]he If requested. to the relief apply rule to nearly ing statute is identical did, then evaluate the trial court’s we general fee-shifting legal of this standard to the application provision rights for federal civil cases. may reverse facts of the case and language granting And the IDEA’S fees (1) (2) illogical, im- application its prevailing nearly defendants is identi- (3) support or without in infer- plausible, Supreme cal to the standard the Court may ences that be drawn from the facts developed Christiansburg Garment in the record. EEOC, (1978), ... Co. v. 434 U.S. (internal awarding which is now the standard for quotation citations and marks Id. omitted). Moreover, prevailing defendants in civil fees “[a]ny elements rights cases. legal in the district analysis figure which subject ... to de novo court’s decision are (internal marks quotation Id. at 1124-25 Benton, review.” at 904. F.3d omitted). explained that and citations We legislative history of- 1415 demon- A. Congress strates that fashioned the first law, part of the which allows defendants to prevailing Section 1415 allows defen- frivolous, if a claim dants in IDEA cases to recover fees from recover after part attorney parent parent Christiansburg of a and from a standard. second law, 1415(i)(3)(B)(i)(III), A which al- prevail- certain rare circumstances. ing prevailing party against lows a to recover school district recover attorneys in attorney parents parents’ fees where or the parent’s unreasonable, “frivolous, brought that a claim is for an complaint the event is (the “comes from another improper purpose, or without “frivolous foundation” 1415(i)(3)(B)(i)(II). prong”). well-established Federal law: Federal 20 U.S.C. R.P., 11.” Additionally, attorney’s may fees be Rule of Civil Procedure attorney, (quoting Cong. at 1125 Rec. against parent awarded or her F.3d 2004) 12, S5250, May (daily “if ed. parent’s complaint subsequent or S5349 (statement therefore Gregg)). of Sen. We case be only deemed frivolous when Christiansburg and Rule 11 cases “rely on the result is obvious or the ... arguments determine whether the district court of error are wholly without merit.” Kar- awarding attor- abused its discretion City Burbank, am v. to the school district ney’s fees (9th Cir.2003) (internal citation and parents lawyer.” and their Id. omitted). quotation marks Moreover, very when there is little case law on point B. Frivolousness and a claim question, raises a novel 1. IDEA Claims claim much likely is less to be considered assessing In the frivolousness of frivolous. Id. claims, the IDEA the district court abused To the extent the district court by failing properly apply its discretion implied that the IDEA claims were frivo- Christiansburg standard. at lous hearing stage, administrative legal F.3d at 1124-25. When the correct First, District, K.S., erred.3 applied, standard is it is clear that filed were not process frivolous within the mean the due complaint after it decided the statute. ing of not to address KS.’s two concerns regard- ing the OT assessment that provided. was Christiansburg, a prevailing Under Second, inquiry the ALJ’s focused narrow- attorney’s defendant is entitled to fees ly on “[w]hether the January District’s frivolous, plaintiffs “claim was un (OT) occupational therapy assessment reasonable, groundless, or ... the plain appropriate.” was K.S. contended that the tiff litigate clearly continued to after it OT assessment appropriate was not be- became so.” 434 U.S. at S.Ct. (1) testing cause: used and the In scor- considering what constitutes a claim frivolous, ing of at least one of underly- that is the OT tests ground unreasonable or less, important “it ing that a district court the OT assessment inappropriate; (2) temptation resist the understandable report comply failed to engage post reasoning by hoc conclud statutory requirements because report that, ing a plaintiff because did not ulti omits the assessor’s conclusion about mately prevail, his action must have been actually required whether C.W. special ed- unreasonable or without foundation.” Id. ucation services. The ALJ conducted a 421-22, And, at plaintiff 98 S.Ct. 694. “if a claims, thorough review of taking these is found to have or continued such assessor, testimony from the OT and ulti- faith, a claim bad there will be an even mately rejected arguments. KS.’s Noth- stronger charging basis for him with the ing in the ALJ’s decision hints that these fees incurred the defense.” indeed, claims were the ALJ’s frivolous— Id. at 98 S.Ct. 694. fact, analysis, careful findings of and con-

Applying the clusions of law indicate the Christiansburg frivo seriousness of standard, lousness we have held that claims. “[a] KS.’s Dist., analyze (9th Cir.2000) 3. The district court failed to whether the claim was ("[T]he frivolous the administrative 1415(i)(3)(B) suggests text of hearing stage, despite suggesting it could Congress attorney intended that fee awards attorney's award fees for fees incurred at the proceedings be available in actions and under however, process stage. theory, due fees impartial process 1415 as well inas due spent litigating are available for the time be- hearings.”). fore the ALJ. See Lucht v. Molalla River Sch. the OT read to IDEA claims frivolous as assessment itself could be were the Nor In the for motion violate California Education Code litigation the continued. anyone which the requires before the district who assesses summary judgment requirement pupil prepare report the a written which court, that argued K.S. the pupil may 56327—that a includes need “[w]hether Code Education California services,” special a and a student include education related assessment of written pupil and for may making the need basis the determina “[t]he of whether statement assessment, reviewing related tion.” In and services— the OT education special K.S. disagreed Hirchag met this case. never states whether C.W. is or is was eligible it did not ade- not for OT services and on what report the because with appropri basis. the then-current situa- While district court address C.W.’s quately undisputed ately that that the OT men

1247 of, process hearing enjoyment for a due was “unneces- cise or or on account of his sary” violation 34 C.F.R. or having her enjoyed, exercised or or on 300.502(b)(2) § was not frivolous. Al- account of his or her having aided or en though other that periods courts held couraged any other individual in the exer longer 41-days of time than do not consti- of, enjoyment cise or any right granted or “unnecessary delay,” tute an those same protected by chapter.” (emphasis add highlighted fact-specific ed). courts have By terms, protection its own under inquiry necessary to determine whether the ADA against intimidation does not ex See, delay Regulation. violated the plaintiffs' tend to a attempts to exercise Dist., e.g., Ripon J.P. v. Sch. No. rights granted protected by the Unified 2:07-cv-02084-MCE-DAD, 2009 WL IDEA —the basis of KS.’s claim in this (E.D.Cal. 1034993, 2009). Apr. at *7-8 case. See Morse v. N. Opportuni Coast ties, Inc., (9th 118 F.3d Cir. 2. Retaliation-Based Claims 1997) (“Because § [Plaintiffs] 1983 com The district court did not discuss Chris plaint against is completely [Defendant] tiansburg concluding that the three re statute, barred the terms of the we find s taliation-based claim were frivolous. that her claim is ‘unreasonable’ and ‘merit- Nonetheless, our review of ”). these claims less.’ The district court concluded as proper legal under the framework demon much in dismissing the claim preju strates that two of the three retaliation- dismissal, dice. Despite this KS.’s attor frivolous, based claims were and we affirm neys pled the same claim in their First the district finding court’s as to these Amended Complaint requiring the District claims.5 respond again once to this frivolous claim.6

The ADA intimidation claim and § any claim lack legal foundation 1983 claim seeking monetary Karam, and “the result is obvious.” damages injunctive relief is likewise F.3d at ADA frivolous, 1195. The intimidation claim its outcome predetermined by a 12203(b) filed under had an review of relevant law. It is well-estab- outcome was clear at the time it was lished that a school district cannot be sued 12203(b) filed. Section states: “It shall damages be under Belanger 1983. coerce, intimidate, threaten, unlawful to Dist., or Madera Sch. 963 F.2d Unified (9th Cir.1992) interfere with individual in the exer- (holding that in Califor- judgment "We affirm a argues district court's 6. The dissent that K.S. dismissed her record, any ground supported by by stipu- ADA intimidation and on 1983 claims immediately opposing lation “almost after whether or not the decision of the district objected counsel to their inclusion in the grounds court relied'on the same or reason- that, therefore, complaint,” amended ing adopt.” Corp. we Atel Fin. v. Quaker Coal claims should not be deemed sanction-wor- Co., (9th Cir.2003) (per thy. This statement is neither true nor rele- curiam); also, Cnty. Kings, see Patton v. vant. Our finding conclusion rests on a (9th Cir.1988) ("Ordi- the ADA and 1983 claims were frivolous narily, a provide any district court's failure to Although from the outset. K.S. did file them explanation regarding its conclusion again they after were preju- dismissed with plaintiff’s suit is frivolous necessitates re- dice, stipulate she did not to dismiss them However, mand. when a court does not enter until after the filed District a second motion law, specific finding of fact or conclusion of to dismiss them. But that fact is irrelevant to uphold we will the result if there is reason- our always conclusion that it.”). support able view of the record frivolous. See, Williams, 490 e.g., Neitzke v. U.S. agencies are state nia, districts school (1989) 1827, 104 immuni- 109 S.Ct. L.Ed.2d 338 Amendment of Eleventh purposes at difference be (discussing length districts concluding that school ty, and Rule tween failure to state a claim under damages under liable for cannot be frivolousness). 12(b)(6) 1983). finding and a of dismissed this § The district court insofar as K.S. prejudice, except claim with Improper Purpose C. injunctive relief sort of sought some request for in- concluded the district. The district court also against relief, however, brought also is frivolous were for an junctive that K.S.’s claims exposing she K.S. to improper purpose, failed to indicate what thus K.S. because extreme injunctive liability relief fees—an enjoin or what sought to sought.8 A in case. Hud- result that not even District possible See would be Inc., frivolousness, Forms, finding without a finding 836 F.2d Moore Bus. son v. (9th Cir.1987) (“[FJailure jus- purpose, allows a school dis improper to attorneys, [damages sought] trict to recover fees from for the tify the basis parents. 20 U.S.C. support the district court’s not See only to serve[s] 1415(i)(3)(B)(i)(III). “It’s therefore damage claims were conclusion harass.”). Final- harder for a school district to collect attor brought to frivolous and ney’s against parents against than the district court’s dismissal fees ly, despite claim, Collecting against parents lawyers: K.S. reassert- their prejudice of this requires showing in com- a of both frivolousness claim her amended ed the damages.7 improper purpose, collecting and an while including request a plaint, attorneys requires only their claim final retaliation-related showing of frivolousness. This makes Act of on 504 of the Rehabilitation based sense, parents usually since are not contrast, Al is not frivolous. position to assess whether a claim is frivo ultimately grant court though the district R.P., lous.” 631 F.3d 1126. 12(b)(6) to District’s Rule motion ed the held, law, dismiss, careful consider We have as a matter it did so after ation, that “a non-frivolous claim is never filed ultimately concluding spe that “the Therefore, improper purpose.” for an Id. cific facts of this case would dissuade person engaging pro we consider whether reasonable improper ADA for an activity.” As the district court’s tected clear, Rule Procedure reasoning pres purpose. made Federal of Civil “[K.S.] own 11(b) that, by governs analysis. our See id. at evidence if believed ented] fact-finder, recognized 1125. that under [her] would We [have] entitle[d] 11(b)(1), purpose is a improper “[a]n 631 F.3d at 1126. Under Rule relief.” circumstances, unnecessary to cause per purpose “the case is se not to ‘harass or such delay or in the cost of support and will not an award of needless increase frivolous ” Invs., Moreover, although litigation.’ & K.B. Inc. v. Wil attorney’s fees.” Id. G.C. (9th Cir.2003) son, case, ultimately on this prevail K.S. did not 11(b)(1)). 12(b)(6) pur An (quoting improper Rule is not the Rule dismissal under ” standards,’ objective pose by for frivolousness. “is ‘tested same as the standard Indeed, argu- during C.W. conceded at oral 8. The District confirmed oral counsel for attorney's argument ment that it did not seek fees from that the 1983 claim was frivolous K.S., only. sought monetary damages. the extent C.W. but from K.S.’s counsel (quoting City Zaldivar v. Ange agree id. Los to fund the IEE that she sought for les, (9th Cir.1986)), n. 9 C.W. When the District refused to settle dispute, be found “a appealed. where motion or K.S. The record than a fails to reflect paper, complaint, other is filed in the one-sided effort to “un- necessarily persistent pattern litigation the context of a of clear increase the in- costs ly by curred District until it litigation activity.” acquiesced abusive Aetna Life Inc., lining pockets of her non-attorney Ins. Co. v. Alla Med. ad- Servs. F.2d (9th 1470, 1476 Cir.1988). vocate” described the district court. July Nor do the 2011 letters counsel ex- The district court concluded that changed “clearly reflect litigation abusive K.S. improper purpose demonstrated her were, rather, activity”; they by sideshow by “attempt her to extort fees from Dis Ins., overzealous advocates. Aetna Life legally trict to which Mother not was enti 855 F.2d at 1476. exchange tled in for foregoing Mother an Furthermore, the district court’s order appeal.” The district court stated: “In degree shows a of frustration with K.S. short, Mother’s offer to ransom her child’s and her counsel. (“Finally, Mother’s latest IDEA in appeal exchange money to against salvo entirely this Court is consis- which her non-attorney advocate not was tent with her strategy throughout ap- this purpose entitled shows that of this peal of casting unfounded aspersions on appeal rights was not to vindicate the the expertise reasoning of others to her disabled child.” There is no basis in deflect from her own shortcomings.”) Dis- the record for finding. Order, trict Court’s p. 14. To the extent First, reading of the terms of the the district court’s frustration with settlement offer attempt by reveals no K.S. and counsel colored its legal conclu- to appeal exchange K.S. “ransom” the sions that these claims were brought for In improper gain. that settlement an improper purpose, this was error. As offer, sought K.S. both the District’s fund- discussed, already no evidence supports an ing of an IEE attorney’s and the fees and alleged improper Instead, purpose. Special costs incurred Education compels record the conclusion that K.S. Law Firm. Her settlement clearly offer— simply attempting was to “vindicate the contingent upon receiving her child rights of [her] disabled child.”9 IEE that K.S. believed C.W. deserved— F.3d at 1127. K.S.’s steadfast determina- cannot be characterized an effort to tion to ensure that her child received the improperly extort funds. appropriate improper OT is not an purpose

Second, start, justifying an attorney’s from the all award of fees. In- sought K.S. deed, a proper OT we have made clear that “anger recommendation for her is a legitimate by parties child. When the reaction pro- District refused to who believe recommendation, rights vide the their requested have been violated or she against ignored.” defended Id. at 1127. pro- the District’s due then, complaint, cess prior to appeal- III. ing decision, adverse provided, offer, through the settlement option to plaintiff Where a has asserted avoid litigation further claims, should the District both frivolous and non-frivolous 9. Whether K.S.'s counsel frivolousness alone is sufficient to allow the and ADA improper purpose claims for an District to recover fees unnecessary finding to decide because a counsel under REINHARDT, Judge, Circuit may recover attor defendant prevailing dissenting part: part time at concurring 1988 for the fees under ney’s solely the defending against tributable who en- a mother This case is about —Vice, v. U.S. Fox claims. frivolous litigation principally in IDEA gaged 2205, 2214, L.Ed.2d 45 —, 131 S.Ct. evalua- independent educational secure an that, (2011). be “[f]ees have held We child, therapy for her occupational tion for claims, and a only for frivolous awarded education indisputably special has who establishing the burden bears defendant her litigating course of needs. asking are in which it is fees for that the claim, her alleged that IDEA the mother solely by of the need fact incurred virtue violated child’s school district frivolous claims.” against those to defend Act with Disabilities Education Individuals Ct., Cnty. Super. Maricopa Harris v. Act, (IDEA), the Rehabilitation but also (9th Cir.2011); also Tu see F.3d (ADA), Disabilities Act Americans with City Hailey, Corp. tor-Saliba threatening by improperly § 1983 (9th Cir.2006) (follow 1055, 1063-64 F.3d her counsel against her and seek sanctions permitting circuits in defendants other ing denial the administrative they appealed if § 1988 for those fees under to recover IDEA claims. of the child’s frivolous, even when re that were claims claims, long so as the non-frivolous lated to unsuc- of the mother’s At the conclusion “distinctive”). Because claims were the attempt independent to obtain an cessful fee-shifting provi modeled the Congress court, in the district evaluation educational on we conclude of sions invit- judge of his own accord the district in equally applicable is principle that this for district to file a motion ed the school R.P., 631 F.3d at § 1415 context. See judge attorney’s fees. The district —ex- Therefore, part we reverse in and “degree of frustration” with pressing affirm attorney’s of fees. part in the award counsel, Maj. Op. and her child’s mother this case to the Accordingly, remand we district (cid:127) —then awarded the school at 1249 specific instructions to court with district costs, $100,000 finding in and nearly fees fees are attributable sole which determine only that each of the mother’s not and the frivolous ly litigating to frivolous, they brought but that were and to award claims in this case ADA ‘ha- improper purposes “namely, for — attorneys in fees KS.’s rass,’ unnecessary delay,’ and ‘cause generated for limited to fees an amount litiga- ‘needlessly increase the costs only.' those claims litigating work ” (citing tion’ constituted, presently will panel, This 1415(i)(3)(B)(i)(IID). IDEA, Under in this case. appeals further entertain the mother her- finding exposed the latter liability. potential self to IV. reasons, foregoing the district For the majority cor- respects, all almost awarding attorney’s fees and court’s order court was rectly finds that the district in part in and affirmed costs is reversed majority holds wrong. Specifically,

part. IDEA and the that the claims under the own costs on party Each shall bear its frivolous, Act not were Rehabilitation appeal. that none of the claims was it holds purpose. To any improper part;

AFFIRMED REVERSED extent, agree completely I part; REMANDED. however, colleagues, per- lawyering honorable when majority. My he adds to the something give complaint allegation out of a desire to haps the same con- sides, partially affirm the district well, both duct violates related statutes as by holding decision that the claims court’s doing disagree- whether so results from a frivolous, ADA and under the law, with prior offering ment case of a entirely although those claims were based though legal theory, novel erroneous or an underlay very on the same facts that inability thoroughly every research pos- non-frivolous claim under the Rehabilita- legal theory filing sible before the com- holding represents tion Act. This more plaint. Although law firms with thousands might legalistic argle- than what call some attorneys may fully be able to research bargle. litigant To hold when has a assert, small, every legal they claim un- pleads non-frivolous claim and it under the der-staffed, and firm under-paid law seek- wrong legal label as well as under the ing to protect rights of children with one, right pleadings wrong under the rigor- disabilities should not be held to so statutes are frivolous and warrant the im- lawyer ous a standard. As a with obli- position contrary of sanctions runs to the client, gations to his counsel from such a spirit purpose of the IDEA. Such firm following professional his duties far sanctions, only penal- upheld, would by possibly overpleading better the num- lawyers rights litigants ize both civil ber of statutes the defendant’s unlawful good perceived faith efforts to correct actions violate than underpleading designed of statutes to help violations them. The former does far harm to less help some those most need of may readily the defendant who have the judiciary, filing our would chill the but extraneous counts stricken the latter than rights here, disability civil in the — —claims plaintiff legiti- does to the who lose a majority Although first instance. the lawyer mate claim should the fail to in- opinion ultimately very should result in a potentially applicable clude all statutes. small award for the additional legal work many action of to too referring Counsel’s necessary to obtain the dismissal of the statutes, few, rather than too is not the claims, § ADA and majority’s 1983 the of “rare circumstance” that warrants type impose decision to sanctions on a small lawyer asserting of a a sanctioning special overp- education law firm for mere legitimate IDEA claim. leading important, as it creates extreme- I ly strongly disagree bad law. that the case, particularly That is true in this as plaintiffs filing of her ADA and “may entirely counsel rea [had] justifies all, sanctions at and I ground bringing” sonable for claims under portion majority dissent from that of the ADA, despite 1983 and the the fact that opinion. appealed] questionable “the law ... or unfavorable the outset.” Christians IDEA, prevailing

Under the a defendant EEOC, 412, burg Garment Co. v. 434 U.S. agency only or district can recover fees in (1978). 422, 694, 98 S.Ct. 54 L.Ed.2d 648 “rare circumstances.” R.P. v. Prescott Dist., damages The claim under for ex Sch. 631 F.3d Unified (9th Cir.2011). ample, failed because we had held almost a gener- Such circumstances century Belanger of a in ally quarter ago involve v. conduct so offensive to the fair Dist., and honorable of Madera Sch. 963 F.2d practice law that it mer- Unified (9th Cir.1992), in sanctioning offending attorneys. its that a school district attorney pur An a an arm of for legitimate who files action California is the state for a poses immunity. client does not exceed the bounds of of Eleventh Amendment claim frivolous. I need not re- Belanger is undoubt find the

Although the rule law in our court as to the number of times that a federal edly good count presently districts, holding a immunity statutory of California school has read text as court majority vast Supreme Court and the meaning ordinary language “the that its would See, courts that have considered appellate e.g., Chevron appear not to bear. in it relates to school districts Echazabal, 73, 76, the issue [as Inc. v. 536 U.S. U.S.A. have found that school dis (2002) other states] L.Ed.2d 82 S.Ct. are not entitled to tricts and school boards that the ADA’s direct-threat de- (holding immunity.” Light Eleventh Amendment individ- may apply only to “other fense Dist., Henry Cty. Sch. the statute workplace,” uals in foot the. Cir.2014). (11th It would not be 768-69 states, him- individual but to the disabled surprising plaintiff or for improper self). argu- plaintiffs The fact that Belanger remain question whether should in this case ments were not successful by raising argument good law make them frivolous.” “doesn’t asserting it before an en banc purposes fundamentally, howev- F.3d at 1126. More in preserve or even order to court er, entirely practition- it is reasonable for seeking Supreme Court re possibility (or firm in ers in a small law even counsel Inc., Davis v. Electronic Arts view. See firm) think that the Americans large (9th Cir.2015). 1172, 1181 n. 7 might apply Act in a case with Disabilities However, by sanctioning attorney concerning a child with disabilities and to plaintiffs case because the complaint. set forth that contention by Belanger, majori claim was barred so, Thinking right wrong, is not a severely the exercise of that ty punishes ground sanctions. the “rare cir legitimate right and violates sanctioning arguments cumstances” rule. plaintiffs bringing counsel for the moth moreover, claim, plaintiffs ADA claim under legitimate er’s intimidation rejected by the district court majority wrong what believes to be the because, view, statutory text its ADA'—-as well statutes— 1983 and the counsel asserted that claim under which right as under what it holds to be enough support expansive was not especial one—the Rehabilitation Act—are matter, an initial plaintiffs argument. As minimal costs ly strong considering the majority’s disagree I with the failure to “solely by incurred vir that the defendant claim in manner it treat this the same as against” to these tue of the need defend claim, Act did the Rehabilitation which the Maricopa Cnty., claims. Harris v. 631 majority correctly determined was (9th Cir.2011). ma F.3d As the that no frivolous. We have held “[t]here states, correctly a court jority opinion analysis of the significant difference attorney’s fees to the defendant grant obligations by created the ADA rights and Regents“only for that the defendant would costs Act,” and the Rehabilitation Zukle incurred for the frivolous Cal., not have but 1041, 1045 of Univ. —Vice, —, (9th claims.” Fox v. U.S. Cir.1999), majority pro n. 11 and the (2011). S.Ct. 180 L.Ed.2d vides no reason not to follow that rule in case, In for those costs impossible this it is majority if cor this case. Even the were amount, any. to more than a minimal rect, however, un be statutory that the text All of the time and effort that the defen brought the ADA claim der which counsel it, the sub expended defending against dant expansive enough support was not § plaintiffs the 1983 and ADA that would not be a sufficient reason to stance of expended practitioners indeed, have even if IDEA nearly claims would been all civ- — il rights plaintiff practitioners rarely the had not those claims have the — ADA time or the staff to because the 1983 and handle the volume of very they the non- cases for which responsible based on the same facts as are Act claim. the same frivolous Rehabilitation attention or devotion of re- theoretically in- counterparts costs the defendant sources as their who repre- that it not have but for the sent the defense. curred would ADA relating 1983 and claims are costs We must be imposing sensitive to sanc- asserting Belanger barred the cases, tions in IDEA it as is critical that relating 1983 claim and costs to assert- keep we open federal courts to IDEA ing apply the ADA did not in this claims, counsel, Indeed, parties. it is required making case. The former an ar- complaints clients with IDEA inwho gument that California school districts lawyers end will suffer if become reluc- surely prepared any § are to make in bring tant such cases before us. To case, basically required and the latter re- IDEA, purpose further the we must producing statutory text. allow counsel for IDEA plaintiffs the lee- should, way to Although practical the award in this handle their cases in a case therefore, low, manner. extremely majority, majority unintentionally, be so, fails to abide this rule. In doing nevertheless should have heeded the warn- precedent sets a ing that we offered in R.P.: that is at odds with the core purpose the IDEA. Lawyers improperly would be discour- aged taking potentially on merito- case, There is an additional issue this IDEA if they being rious cases risked governed by which is same principles with a six-figure judgment saddled for we have discussed above: should we affirm bringing they a suit where a plausi- sanctioning of plaintiffs counsel for ble, though ultimately ar- unsuccessful reasserting ADA 1983 claims in Such, gument, procrustean here. complaint an amended after those claims interpretation section previously had been with preju- dismissed 1415(i)(3)(B)(i)(II) is inconsistent with Here, provide dice? the circumstances objective “ensuring] the IDEA’S answer. The facts show that counsel rights of children with disabilities agreed by stipula- to dismiss those claims parents protect- of such children are immediately opposing tion almost after ed.” objected counsel to their inclusion in the (quoting complaint. amended the Rule con- (citation 1400(d)(1)(B)) omitted). text, By fact inquiry; would end our we punishing a small firm for arguing plaintiffs non- would not sanction counsel. See wrong frivolous claim under the 11 advisory sections of Fed.R.Civ.P. committee’s amends, Code, the United States the precedent (explaining es notes to 1993 that by majority opinion “generally provid[es] protection tablished the will dis Rule courage lawyers disability taking [attorneys] on sanctions if withdraw very sought the cases that the IDEA to a potential correct contentions after vio- attention”); In encourage. light majority’s opin of the lation is called to their Barber ion, Miller, (9th Cir.1998) weigh small firms will have to the risk v. they costly that will incur a sanction a that (explaining purpose the of Rule ll’s legal minor error intended to a provision benefit “safe harbor” is to allow counsel despite disabled child. This “protect[ the fact that to withdraw claims order to ] sanctions”). claims did these dismissed reassertion of Although totally from himself work any significant har- additional the “safe not create not contain IDEA does the counsel, needed Rule of Civil who in Federal for defense provided bor” 11(c)(2), already that —in have held had been we that the claims Procedure state history of the legislative that the prejudice.. the with Given light of dismissed rely IDEA context in the must did little or IDEA —we of the failed claims reassertion to determine whether 11 cases “Rule could have on the defendant and no harm to its discretion court abused district the of defen- expenditure or no caused little dis- attorney’s fees to school awarding energy, I would time and dant’s counsel’s inqui- F.3d at 1125. Our trict.” attorneys for disability rights not sanction therefore, similarly end with here, must ry likelihood, was, simple mis- in all what the ADA and fact that employee of an or another by take counsel by stipulation par- of the were dismissed that it law firm—a mistake understaffed Otherwise, in IDEA context we ties. by stipula- immediately corrected almost very issue that moti- encounter the would tion. adoption of a “safe harbor” vated the minimal costs that defen- Due to the “reluctant 11—counsel would be Rule of the need “solely incurred virtue dant lest questionable contention abandon ma- the claims that the against” to defend that his con- viewed as evidence” that be frivolous, to be jority erroneously finds 11 ad- Fed.R.Civ.P. tention was frivolous. Harris, fully expect I amends. notes to 1993 visory committee’s nominal at most. award in this case to be contrary holding to the cre- majority’s creates majority opinion nevertheless unnecessary incongruity between ates hope I would precedent. an unfortunate basis IDEA and Rule without majority, which has rehearing that on doing so. opinion that an excellent otherwise issued Moreover, plaintiffs' whether or not spirit fully with the letter consistent technical vi actions constituted a counsel’s IDEA, and delete will reconsider rules, I hold pleading our would olation of affirming offending paragraphs the few We they do not warrant sanctions. jar- so that sound paragraphs sanctions— counsel in an plaintiffs sanction should rest of its contrary a note to the ring and continuing litigate case for IDEA disposition. prejudice with dismissed claim was. litigation was de only when the continued case, In the school district

liberate. establishing entitle

bore “the burden Eckerhart, Hensley an award.” v.

ment to 424, 437, 103 S.Ct.

461 U.S. (1983). showing, It made no L.Ed.2d 40 MELENDRES; Ortega Manuel De Jesus however, counsel’s renewed plaintiffs Quitugua Rodriguez; David Jessica in claims was litigation of the dismissed Meraz; Manuel Nie Rodriguez; Velia fact, the evidence is to tentional. America, Plaintiffs-Ap to, Jr.; Somos Although plaintiff reassert contrary. pellees, they claims after her ADA and ed parties prejudice, were dismissed County Maricopa ARPAIO; Joseph M. im by stipulation them almost dismissed Office, Defendants- Sheriff's filed its mo mediately after the defendant Appellants. Moreover, plaintiffs tion to dismiss. it was notes assessment Specifically, tion. tions any specific eligible special not include that was for report did C.W. the OT services, § that by and evinced concern education its own recommendation terms that subsequently report recommended collabora- also states the should the pupil the note merely take form of ad whether the need “related tive OT would citing the OT the dearth informal between services.” Given of cases hoc conversations teacher than interpreting requirements,4 and rather 56327’s therapist C.W.’s therapy. hardly foregone was conclusion that a any occupational actual to the OT on the challenge assessment the relating to OT assess K.S.’s basis of its failure to include a section poorly plead argued ment were what OT recommending services should be however, lost; ultimately this does not she provided or seeking indepen to C.W. As said in they frivolous. we mean dent evaluation to ascertain which services 1126, “[ljawyers F.3d at would be provided, not prevail. should be See could discouraged taking po on improperly Karam, (“A F.3d at case is less they tentially IDEA cases meritorious likely when to be considered frivolous being six-figure risked saddled very directly appo there little case is law they for a suit where judgment bringing site.”) (citation quotation and internal plausible, though ultimately unsuc omitted). Karam, As in marks “[t]hese cessful, here.” was argument, as There basis, furnish some albeit circumstances for belief that the OT some basis KS.’s tenuous,” 1196, for somewhat 352 F.3d at basis inappropriate, assessment some was the that there some factual conclusion was report failed to concluding for that basis claim. The factual basis for C.W.’s procedural requirements of Cali meet for the claim concert with the lack of 56327(a-b), fornia Education Code that this apposite case-law demonstrates that IEP believing basis some claim is not frivolous. awith free and provide failed to C.W. (“FAPE”). In analysis decision its frivolousness of public education its claim, “unnecessary the dis- merits, 41-day delay” court concluded on the the district trict failed to case law “dispute did not court also cite because the District frivolous- Disputed setting at the time the forth standard for eligibility [C.W.’s] written,” Christiansburg, ness. KS.’s claim Report procedural viola Under 41-day delay parent’s alleged “especially tion frivolous.” This between filing request an IEE and the District misapprehended conclusion fact the district court in this 4. A search reveals five two decisions of WestlawNext citing provision, two are case. cases of which

Case Details

Case Name: C.W. Ex Rel. K.S. v. Capistrano Unified School District

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 2, 2015

Citation: 784 F.3d 1237

Docket Number: 12-57315

Court Abbreviation: 9th Cir.