*1 of ex- imprisonment sentenced may be minor, by through E.M., his than) year, one not more
actly (though E.M., parents, E.M. and requirement satisfies which Plaintiff-Appellant, 1029(a)(3) 1227(a)(2)(A)(i)(ip. § Section conformity punishment provides v. con- 1029(c), states that one SCHOOL PAJARO VALLEY UNIFIED (a)(3) may be sen- paragraph victed under ADMINISTRA OFFICE OF DISTRICT alia, to, “imprisonment for inter tenced HEARINGS, Defendant-Appellee. TIVE years.” more than too, (c)(l)(A)(i). This, 1029(a)(3), satis- 09-17084. No. 1227(a)(2)(A)(i)(II). §of the stricture fies of Appeals, States Court United Planes’s review of Having completed our Ninth Circuit. to whether respect claims with legal 1029(a)(3) the definition of offense meets Nov. Argued and Submitted 1101(a)(48)(A), we lack §in “conviction” July Filed final order of to review his jurisdiction removal.
Ill the BIA’s discre- challenges also
Planes cancella- request for
tionary denial of his ground on the
tion of removal considering his legal
BIA made a error 1029(a)(3) offense for the
conviction pending' was still our remand order
when deeming
before involving crimes convictions to be
his two above, explained turpitude. As
moral Planes has fail. Because arguments
those or constitution- legal a colorable
not raised discretionary de- BIA’s challenge
al for cancellation application
nial of his
removal, jurisdiction to review we also lack (D); 1252(a)(2)(B),
that decision. Gonzales,
Bazua-Cota curiam).
(9th Cir.2006) (per
DISMISSED.
OPINION NOONAN, Judge: Circuit Pajaro bilingual E.M. is a student *3 (“PVUSD”), Valley Unified School District in performed poorly He has California. school, measures, although by most he is above-average to intellectual average brought action ability. parents E.M.’s challenge PVUSD’s determination that qualify special did not for education the Individuals with Disabilities Ed- under (“IDEA”). Special Act Edu- ucation of the cation Division California Office (“OAH”) Hearings upheld Administrative assessment. The district PVUSD’s turn, upheld the OAH’s decision. comes to us after careful appeal This judge. consideration an able district only disagree with his assessment We find one claim not ad- the extent we and one not measured for dressed judgment affirm the its relevance. We part, part, the district court reverse proceedings. for further and remand (of Leigh, Jay T. Jambeck Mandy G. FACTS Fairchild, counsel), Leigh Law J. Sarah times, a At all relevant E.M. was stu- Francisco, CA, plaintiff- for Group, San In the third and fourth dent PVUSD. appellant teach- grades, struggled he school. His and homework ers identified attention Smith, Kimberly A. Reynolds, Laurie E. completion problem They areas. used Fulfrost, Oakland, Friedman & Fagen, him succeed designed help interventions CA, Pajaro Valley defendant-appellee program. They regular in a School District. Unified designated limited success. E.M. was had However, his as “at risk for retention.” perceive did not him as a candi- teachers date for education. E.M. entered fifth
The summer before parents brought psy- him to a grade, his NOONAN, T. Roslyn Wright, Before: JOHN to have him eval- chologist, PAEZ, disability. Wright A. and CARLOS T. learning RICHARD for a Dr. uated BEA, Judges. using a intellectual Circuit test of assessed
ability, Intelligence Scale for the Wechsler Children, (“WISC-III”), NOONAN; Edition Dissent Third by Judge Opinion tests, battery of achievement the Wood- BEA. by Judge WISC-IV, intelligence using the Tests of Achievement-Ill cock-Johnson (“WJ-III”). results, Dr. Based on the test of the test that updated version WISC-III learning E.M. with a Wright diagnosed Wright Dr. used. on her assess- Based disability. relating ment and review of the records E.M., Jacques concluded that E.M. requested parents then PVUSD “specific learning disability” as de- had eligibility to assess their son under IDEA. fined under education and related services 1401(30). also the data She reviewed psychologist adminis- IDEA. PVUSD’s prior from assessments and concluded that tered to E.M. the Kaufman Assessment (“K-ABC”), “puzzling” it was did not find PVUSD Battery for Children com- *4 test, prehensive intelligence special and the WJ- that E.M. for education in III achievement tests. Based on this as- 2004. The district denied E.M.’s sessment, that E.M. PVUSD determined request supplement the record with Dr. eligible was not education. Jacques’s report. request parents,
At of E.M.’s initially The district denied May E.M. in PVUSD reassessed of his summary judgment motion for PVUSD’s fifth-grade year essentially and reached and remanded E.M.’s case to the OAH for in the same result as did its first assess- analysis further written some performed ment. a third assess- PVUSD prior conclusions of the administrative law June, resulting in ment recommenda- (“ALJ”). meantime, judge In the PVUSD tions for additional interventions in the and, 22, February re-assessed E.M. on general education At classroom. the end 2008, eligible found him edu- grade, fifth again designated PVUSD cation as of that date. PVUSD did not E.M. as at risk for retention. that it previously admit had failed to lo- 2005, In November the first half of evaluate, cate, identify E.M. as a stu- sixth-grade year, parents E.M.’s disability. a dent with auditory obtained an evaluation Dr. The OAH returned E.M.’s case to the Kaspar. Ruth that E.M. She concluded court, district where E.M. that he auditory processing had an disorder. compensatory was entitled to services, relief, among other forms of PROCEEDINGS based on PVUSD’s failure to meet its obli- parents disagreed with PVUSD’s gations prior to him under IDEA to its and, 5, 2005, assessments on December 22, February 2008 reassessment. The dis- E.M. complaint Special filed a with the trict court found that the ALJ’s amended Education Division of the OAH. The OAH opinion provided a sufficient basis for de- a six-day process hearing held due ciding parties’ cross-motions for sum- issued a decision in favor of on all PVUSD mary judgment. granted PVUSD’s mo- appealed issues. E.M. decision tion. court, parties district where filed summary judgment. appeal cross-motions This followed. In the district moved ANALYSIS
supplement the record with evidence ob- jurisdiction have We review the tained after the conclusion of the OAH grant summary court’s judg hearing. This evidence included a ment under 28 We review by Cheryl Jacques, psychologist, a clinical summary judgment. de novo an award of who reviewed E.M.’s records and conduct- battery Dr. Jacques Puyallup ed of tests. tested Parents Student W. v. Sch.
1003 Cir.1994). (9th first and second E.M. met the Dist., 1494 F.3d 31 criteria. for abuse rulings are reviewed Evidentiary Higuera- States v. United of discretion. that the district court argues (9th
Llamos,
Cir.
to es
concluded that he failed
improperly
2009).
from a “disorder
tablish that he suffered
court erred
that the district
E.M. claims
agree.
psychological process.” We
a basic
affirma
met its
concluding that PVUSD
formally
who
assessed
only person
evaluate,
locate,
obligation to
tive
auditory processing disorder
E.M. for an
disability
him as a student with
identify
Dr.
an
Kaspar.
Kaspar,
Dr. Ruth
(its
obligation). See U.S.C.
“child find”
diagnosed E.M. with
audi
audiologist,
1412(a)(3)(A);
C.F.R.
disorder. The school dis
tory processing
300.111(a)(l)(ii);
Educ.Code
Cal.
Jody Winzelberg,
Dr.
also an
trict hired
ar
particular,
§§
Based
audiologist,
expert
as an
witness.
properly
evalu
that PVUSD did
gues
Kaspar’s report,
of Dr.
on
review
identify him as a student
him and
ate
that she would char
Winzelberg testified
related
special education and
eligible for
showing
acterize E.M.’s test
results as
learning dis
specific
based on his
services
auditory system,”
“some weakness
*5
impair
on his “other health
ability and
auditory
and that she could not rule out
of Attention Deficit
ments”
Disorder/At
diagnosis.
disorder
processing
Hyperactivity Disorder
Deficit
tention
argues that the district court
E.M. also
(“ADD/ADHD”)
auditory processing
and
concluding
in
that he failed to show
erred
1401(3)(A)(i);
20 U.S.C.
disorder. See
discrepancy”
that there was a “severe
be-
1401(30).
E.M. claims entitle
ability
intellectual
and achieve-
tween his
educational services
ment to additional
determining
whether a
ment scores.
him for
failure
compensate
PVUSD’s
existed,
used
discrepancy
severe
PVUSD
him
IDEA.
obligations to
under
meet its
of 104 on the
performance
score
F.3d at 1496.
Puyallup, 31
by Dr.
test
administered
WISC-III
process-
than E.M.’s mental
Wright rather
I.
ing composite score of
on the K-ABC
eligibility for
address E.M.’s
first
We
that
itself administered.
test
PVUSD
specific
as a child with a
special education
it used
dispute
does not
had
PVUSD
law
learning disability. Under California
score,
found a
it would have
K-ABC
period, a child
during
in effect
the relevant
Instead, PVUSD ar-
discrepancy.
severe
specific learning
have a
disabili-
is found to
that it made a reasonable determina-
gues
(1)
a “severe
ty when it is determined
E.M. did not show a severe dis-
tion that
in-
the child’s
discrepancy” exists between
on
crepancy based on all available material
ability and achievement
one
tellectual
imper-
E.M. E.M. contends that PVUSD
areas;
designated
seven
academic
more of
the fact
that he is
missibly considered
(2)
to a disorder
discrepancy is due
“[t]he
“cherry picked” among
bilingual
psychological
in one or more of the basic
predetermined
to reach a
re-
test scores
not the result of environ-
processes and is
sult.
mental, cultural, or economic disadvan-
held that school dis
(3)
This court has
cannot
discrepancy
tages”;
“[t]he
selecting
diag
have discretion
tricts
regular or cat-
through other
be corrected
they
to determine
nostic tests
use
regular
offered within the
egorical services
Long
See Ford v.
eligibility.
education
instructional
Educ.Code
program.” Cal.
Dist.,
(2005).
dispute Beach
Sch.
parties
Unified
(9th Cir.2002) (holding that a
1088-89
reasonable choice between valid but con-
any
traditional
school district need
use
flicting
determining
test results
wheth-
IQ
learning
dis-
specific
test to assess
discrepancy”
er
“severe
exists. See Cal.
related,
ability).
presents
E.M.’s case
Regs.,
3030(j).
tit.
Code
different,
per-
IDEA
question:
but
does
determining
Before
mit a
valid
school district
exclude the
among
PVUSD’s choice
test scores was
of a test the
itself selected
results
reasonable,
necessary
it is
to address the
question
and administered? This
touches
parties’ dispute over whether the district
tension in
edu-
on a fundamental
properly
excluded the assessment of
ensuring
law—that between
that all
cation
by
E.M. conducted
IDEA
Jacques.
have access to edu-
disabled children
that,
mandates
on review of an administra
opportunity
ensuring
cational
decision,
tive
the district court “shall hear
improperly
children are not
non-disabled
additional
request
disabled. This
evidence
of a
identified as
tension is
students,
1415(i)(2)(C)(ii).
particularly
minority
salient for
party.” 20 U.S.C.
But
historically
who
have been over-identified
not all evidence is “additional evidence.”
disproportionally placed
as disabled and
Jackson,
In Ojai
Sch. Dish v.
we
Unified
segregated
settings,
due
held that a district court need not consider
See,
part
IQ
e.g., Larry
to biased
tests.
that simply repeats
evidence
or embel
Riles,
P.
P. v.
Lucille
1005 (8th Cir.2006). Wilson, In 782 439 F.3d precedent, our evidence mary, under relevant, Platte, non-cumulative, upheld the district and otherwise the court West is “additional evi- child’s constitutes evidence of a admissible exclusion of court’s “shall” con- district court that the dence” to the administrative subsequent progress 20 U.S.C. pursuant sider of the evi proponent hearing because 1415(i)(2)(C)(ii). “pro school district —failed dence—the supplementing justification vide a solid that courts consid- requirement IDEA’S The court in West record.” Id. at 785. grounded in the evidence is er additional cite did judicial nature of review Platte unusual somewhat 1415(i)(2)(C)(ii), appears Ojai, we observed and the under the Act. sub- in IDEA cases differs the unusual na “judicial review have accounted for not to of other judicial from review stantially cases. judicial review IDEA ture of actions, generally courts in which agency Moreover, 4 at 1471. West Ojai F.3d record to the administrative are confined requirement that the Platte’s unelaborated deferential stan- highly are held to a justification” a “solid school district offer at 1471. Under review.” dard of after-acquired evi admission IDEA, continuing has a “the federal court our appear to conflict with dence does not the state stan- to ensure obligation 1415(i)(2)(C)(ii). reading of U.S.C. applied and as are not themselves dards agency of a state are The determinations mínimums.... [which] the federal below where, as in greater deference entitled state administrative despite any persists Platte, agency finds that one West recodifica- federal law or state rulings on systems complied has not its school Burlington, federal law.” Town tions of implementation of the IDEA. the state’s requirement at 792. The 736 F.2d at 792. Burlington, 736 F.2d See Town of additional evidence courts consider federal reading Our rul- evaluating administrative when state 1415(i)(2)(C)(ii) support finds Susan that federal the intent ings implements District, N. v. Wilson School federal stan- the minimum courts enforce (3d Cir.1995), in which the Third Cir- IDEA out. dards sets “must exer- ruled that a district court cuit reading of 20 that our is *7 rulings in its discretion particularized cise 1415(i)(2)(C)(ii) with the conflicts U.S.C. relevant, evidence that it will consider so holding in v. Fourth Circuit’s Schaffer determining non-cumulative and useful (4th Cir.2009). Weast, 470, 476 554 F.3d reached Congress’ goal has been the Schaffer, But in the contention The court conclud- the child involved.” mandate violated IDEA’S district court lacked discretion that the district court ed failed for that it hear additional evidence summarily evidence that was exclude that the dis- “straightforward reason” the time of the administra- not available at the the evi- trict court in fact had admitted to the dis- hearing and was relevant tive simply concluded Id. at 475. It dence. of the reasonable- trict court’s assessment not “determine the evidence should at the of the school district’s decision ness Here, Id. the merits of the case.” the Id. at 758. the decision was made. time Jacques’s Dr. not admit district court did deciding it in not consider report and did Burlington, in Totvn Similarly, merits of E.M.’s case. adopt a rule dis- declined to First Circuit did, who allowing testimony by “all opinion is argued It our is also have, administrative [at] could testified Eighth hold inconsistent with the Circuit’s The court F.2d at 790. hearing.” R-II School District ing in Platte West particular commented on the for failing usefulness be faulted to use a test that was testimony to court in expert not available in 2004. The intent of 20 “illuminating nature of the controver- 1415(i)(2)(C)(ii),however, U.S.C. is that sy” “bringing up date on the school district’s 2004 actions be re- progress the child’s from the time of the viewed with the help available 2007. hearing to trial.” Id. remand, On the district court should hold that ap We the district court Jacques’s consider whether Dr. report is plied an incorrect standard for admission relevant to the determination whether after-acquired in excluding evidence Dr. obligations PVUSD met its to E.M. under Jacques’s report. The district court ex the IDEA and is otherwise admissible. Dr. Jacques’s report cluded as not “neces argues E.M. also that the district sary to evaluate the ALJ’s determination.” should have considered PVUSD’s 2008 as- proper inquiry report was whether the finding eligible sessment him for special relevant, non-cumulative, was and other education and related services on the basis wise admissible. specific learning disability. of his IDEA Dr. Jacques’s report shows that E.M. provides that the district court “shall re- legally significant discrepancy had a be- ceive the records of the pro- administrative ability tween achievement 1415(i)(2)(C)(i). ceedings.” showing may This likely make it more E.M. asserts that the 2008 assessment was legally significant discrepancy pres- submitted OAH after the district Moreover, ent in 2004. Jacques ob- court remanded his case. PVUSD does served that PVUSD would have found that dispute this assertion. It is unclear to discrepancy a severe existed 2004 had it why us appear assessment does not used either the K-ABC non-verbal score of the district court’s record. The district 113 or the K-ABC mental processing com- court should consider the assessment on posite score of 111. Her concluded Dist., remand. See M.L. v. Way Fed. Sch. puzzling that “it is that the district did not (9th Cir.2005). 394 F.3d 641 n. 8 eligible find for special [E.M.] education in 2004.” II. It is true that we have said that “actions E.M. asserts that the district court systems the school ... judged cannot be should have considered whether his audito Adams, exclusively in hindsight.” ry processing diagnosis disorder 1149-50(quoting F.3d at Fuhrmann v. E. him for education as a child with an of Educ., Hanover Bd. “other health impairment See 20 ].” (3d Cir.1993)). But that exclusive use of 1401(3)(A)(i). is that E.M. hindsight is preclude forbidden does not *8 failed to raise this claim. argument The consideration of subsequent events. Id. The clear overlooks the record. In implication permitting complaint some data, OAH, hindsight is that requested additional discover he be found “[t]o ed late in the process, may pro evaluation eligible for special education and related significant insight vide into the child’s con services under the IDEA ... as a child dition, and the reasonableness of the having an other impairment health due to action, school district’s at the earlier date. auditory his processing deficits.” E.M.’s complaint to alleged the district court that might thought be that the more exact- “testimonial and test, documentary evidence es ing developed is not relevant to 2004: tablished a strong the 2007 test could not basis for suspecting have been used 2004. The school district cannot can qualify special E.M. for education un- disability] allegations that specific learning erly struck E.M.’s PVUSD [than der other in- categories.” This evidence eligibility to assess him for The failed ADD/ADHD. diagnosing Kaspar’s evaluation cluded requesting process hearing a due party auditory processing with an disorder. E.M. may the ALJ in an IDEA before case not other ignored E.M.’s apparently The OAH hearing raise issues were not impairment claim and the district health in its unless complaint included the other it. In brief E.M. court did not consider a consents. party Cal. Educ.Code 56502® after the to the district court submitted (2005). The court con- correctly district decision, E.M. as- amended its first OAH include cluded that E.M. did not an ADD/ concluding that the erred in serted OAH complaint ADHD claim his to the ALJ. in “the assessed him properly that PVUSD Accordingly, the district did not err auditory disability suspected area decision upholding the ALJ’s to strike In his brief to processing.” opening allegations. E.M.’s ADD/ADHD qualified that he auditory based on his special education CONCLUSION short, had processing disorder. stated, For the reasons the district auditory processing disorder asserted his decision AFFIRMED re- court’s is with claim no than four times—to less to E.M.’s claim that he spect court; OAH; and in twice to the district education and related a services as ad- opening brief to us. Both parties and child REVERSED argument. the issue at oral dressed ADD/ADHD Ullah, a United States v. and REMANDED for determination (9th Cir.1992). E.M. did not waive his whether, times, during all relevant health claim. impairment other obligation met affirmative PVUSD its locate, evaluate, identify a and E.M. as im- regulations The define “other health impairment an a child with other health or vi- “having strength, limited pairment” as disability alertness, specific learning related to his tality, including heightened or stimuli, re- alertness to environmental auditory processing disorder. respect alertness with sults limited its party Each shall bear own costs on C.F.R.
the educational environment.” 34 appeal. 300.8(c)(9). at- impairment The must be prob- health tributable to “chronic acute BEA, Judge, dissenting: Circuit on lems” must have adverse effect I respectfully dissent. The district performance. child’s Id. not court did err when failed to admit regulations contain non-exhaustive Jacques report, which not could problems, list of chronic and acute health any have possibly had relevance auditory does include processing district’s 2004 evaluation school remand, disorder. See id. On “failing” court err by Nor did auditory address whether an should with which we to consider claim neither may qualify an oth- processing disorder presented: nor the district court were impairment, er health if so whether auditory quali- processing disorder obligation met to assess E.M. PVUSD its him fied education under identify child him as a with an other *9 provision health of the impairment” “other impairment. health 1401(3)(A). my § 20 IDEA. See U.S.C. III. view, majority the reverses the district for its failure to admit —or “ade- court E.M. contends that the claims holding prop- quately” erred in consider—evidence and court the ALJ 1008 irrelevant, waived,
which were either through Oregon, & Adams v. 195 F.3d (9th Cir.1999). improperly presented. 1141, 1149 majority The reverses remands standards, In light of these perceived “failings” by based on two the correctly determined the First, district court. majority the faults Jacques report was not “relevant” addi- discretionary the district court’s determi- tional evidence. Throughout litiga- report by nation that 2007 Cheryl tion, E.M. has contended that the school Jacques qualify did not as relevant “addi- district erred in October when de- 200k 1415(e)(2). tional evidence.” 20 U.S.C. termined ineligible E.M. was Second, majority holds that the district education. monetary E.M. seeks compen- required court was to consider (apparently sation for that claimed error.1 But 200k sponte) sua E.M.’s contention—raised for Jacques’s Dr. report upon relied a test argument the first time at oral before this performed key one auditory processing court—that his disor- assessment tools she used in performing der him for education as a the 2007 evaluation—the Woodcoek-John- child with an impairment.” “other health son III 2005 Update Normative —had 1401(3)(A). 20 U.S.C. published even been in 2004. E.M.’s 2007 Jacques report, As to the the relevant scores aon test which the school district statutory requirement provides that could not possibly have administered in district court “shall receive the records of 2004 is irrelevant question proceedings, administrative shall hear the school district erred in its 2004 deter- additional evidence at request of a mination. party, ... grant shall such relief as majority nevertheless contends that the court appropriate.” determines is 20 Jacques’s showed “le- —which 1415(e)(2). U.S.C. Despite the seeming gally significant discrepancy between abili- ly mandatory statute, language of the “the ty and achievement in potential- 2007”—is district court has discretion to determine ly ” relevant “may because it make it more qualifies what as ‘additional evidence.’ likely legally that a significant discrepancy Ojai Jackson, School Dist. v. Unified present matter, in 2004.” As an initial (9th Cir.1993). In the Jacques report itself undermines that discretion, district court’s additional evi Jacques conclusion. Dr. stated that dis- dence “might include ... evidence con crepancies between her evaluation of E.M. cerning relevant occurring events subse previous and his likely assessments were quent to the administrative hearing.” Id. attributable to the fact “updated that the added). (emphasis at 1473 However, “ac tests are harder” and the tions of the “increased aca- systems school ... cannot be judged demic load exclusively in middle school ... hindsight,” and a contribut- school district’s actions must ed to a judged widening gap be intelligence snapshot, “a not a retrospective.” Adams and his achievement levels.” (emphasis 1. E.M. may contends that this tary award remedies attorneys' E.M. can obtain are monetary costs, "remedies” under the IDEA. How- may only fees and be awarded to ever, "money damages are "prevailing not available un- party.” IDEA,” 1415(i)(3)(B)(i)(I). der the Robb v. Bethel Sch. Dist. prevail only can if #403, (9th Cir.2002), the school district erred in its 2004 evalua- above, and E.M. does not seek explained reimbursement of tion. As I do not think the private schooling costs under ruling district court erred in in favor of the 1412(a)(10)(C), district; because E.M. never prevail. enrolled school E.M. did not He Thus, private at a only institution. nothing. mone- should take *10 period.... time during in the relevant added). yet was not In E.M. held that educational Ninth Circuit has in the fourth He was school. middle hindsight in it are reviewed not programs makes Jacques’s report thus grade. light the available as but in disability not was clear that information of was program developed. the time the it in 2007. in 2004 as was noticeable clearly Oregon, Adams is majority if the correct Yet even (9th Cir.1993) (“Actions of the school it more Jacques report made the 2007 judged exclusively ... system cannot be learning had a likely that in fact hindsight.”). the Court con- in Because in is this case disability in the issue after-acquired evidence cludes that the condition truth of E.M.’s apodictic not the necessary introduce is not E.M. seeks to him. first assessed the school district when determination, ALJ’s it to evaluate the holds, the Rather, majority the itself not will be admitted. district’s] school “whether [the issue is Emphasis added. was reasonable.” among test scores choice of Maj. at 1004. The reasonableness Op. that the It is clear from order dis- in of scores choice test the school district’s weigh the relevance of the trict did by a test affected 2004 could not have been report. The district court credit- Jacques using in 2007 assessment administered that contention the ed the defendants’ Thus, in unknown 2004. tools were years report three after Jacques —written light previous in our admonitions purportedly erroneous the school district’s judged cannot be school district’s actions to diagnosis not “relevant the —was court was well “hindsight,” analysis” during error the Court’s it to discretion when declined within its doing, In period.” “relevant time so the Jacques report.2 the consider Adams, our district court cited decision law, as a matter of which holds that majority’s puzzled by I the am therefore judged actions cannot be not school district’s court did conclusion that the district relevance, exclusively hindsight. determining weigh Jacques report’s the that the district court failed to consider the majority’s to remand the decision relevance, may majority the Jacques report’s court so the district district The dis- out of context the district court’s plucks determine such relevance anew. the Jacques trict order on motion court’s determination the reads: to evaluate the supplement necessary record “not ALJ’s de- termination,” ap- because it and remands argues also his recent assessment language. fault in this But parently finds ... be because this evi- should admitted the clear from the order that district shed on the correctness it is light dence will Jacques report the court so found because determination. the ALJ’s Defendants to the issue whether is relevant is irrelevant argue that this evidence I district erred 2004.3 would not diagnosis school analysis Court’s Moreover, "necessary challeng- phrase evalu- noting E.M. is not It is worth ing synonymous a continued failure school "relevant.” ate” is Evi- light diagnose him education in is if it "moves the needle” dence relevant Indeed, only Jacques report. two of the another; towards one determination or if it completed Jacques her as- after Dr. months needle,” "moves the must be evaluated. sessment, district reassessed school irrelevant, that, not be if it need evalu- follows eligible ser- that he was for such and found ated. monetary compensation vices. E.M. seeks alleged district's error based on school its 2004 evaluation. *11 wasting to the district time even we to Ninth disregard remand Yet were court— precedent and that the district court resources —so Circuit and consider such a claim, it again can make a determination has E.M. auditory- also did not raise an already made. processing-disorder-as-an-other-health-im- pairment claim in the district court. The majority holds that the dis further majority misleadingly that be- contends trict erred when failed to court consider 1) complaint cause E.M.’s to the district purported auditory processing a whether alleged court that “testimonial and docu- for qualified special disorder edu mentary strong evidence established a ba- a an health cation as child with “other qualify sis that E.M. suspecting for can for 1401(3)(A). impairment.” See 20 U.S.C. special specif- education under other [than may But question we not address the learning disability] eligibility catego- ic auditory disor processing whether 2) ries,” and was there evidence der him as a qualified education Kaspar diagnosed auditory E.M. with an impairment,” “other standalone health be disorder, processing the district court cause E.M. did raise argument not this pieced fragments should have these two opening before the district nor in his together to create an auditory-processing- brief this This before court. court reviews disorder-as-an-other-health-impairment only argued specifically issues “are claim on throughout E.M.’s behalf. But distinctly in party’s a brief.” opening litigation, this that Dr. contended Yakima, v. City Brownfield Kaspar’s diagnosis only was relevant (9th Cir.2010). 1149 n. 4 Here- specific learning his disability claim.5 contrary majority’s misleading con E.M. never contended district before the tention that E.M. this his issue court—nor before this court—that Dr. brief, opening E.M. did not submit Kaspar’s diagnosis should have auditory-processing-disorder-as-an-other- him for education an other as health-impairment claim his opening impairment. health Nor brief at all.4 required piece together vague Thus, matter, phrases as an complaint initial I not isolated from would question reach the an create auditory-processing-disorder-as- failed consider E.M.’s health an-other-health-impairment other claim on impairment claim. “Judges pigs, E.M.’s behalf. are like majority par- specific 1) 4. The further notes that learning disability requires "[B]oth 5. A argument.” ties addressed the at issue oral discrepancy” a child has a "severe statistical true, Maj. Op. only at 1007. This is but "ability” between and "achievement” test because E.M.’s raised counsel the issue for scores, 2) discrepancy by be a caused argument, time at oral and devoted first process.” psychological disorder in a "basic argument the bulk her oral claim. to this 1401(30); See 20 U.S.C. Cal. Educ.Code Indeed, during argument, oral for the counsel impair- A child has other health school district she noted that would address strength, vitality, ment when he "limited has arguments raised E.M.'s at counsel or alertness ... is due [that] to chronic or opening argument, but further noted that this problems.” acute health many was one ... con- "issues which we 1401(30); 300.8(c)(9). 34 C.F.R. authority I sider new.” am aware of no Throughout litigation, contend- has which holds that a waived issue somehow alleged auditory processing ed that his disor- attorney to be ceases waived if an ambushes qualifies psycho- der "disorder in a basic party-opponent by raising the issue for logical process” purposes specific argument, party- first time oral and the opponent respond. learning is thus disability. forced *12 in briefs.” buried hunting truffles (9th FAA, v.
Greenwood
Cir.1994). as to how I puzzled am its court for can reverse claim to consider
failure presented. never deci- district court’s affirm the
I would entirety. in its
sion
ZHIQIANG Petitioner, HU, Jr., Attorney H.
Eric HOLDER
General, Respondent. 09-70240.
No. of Appeals, Court
United States
Ninth Circuit. 5,May Submitted
Argued and July
Filed