S.L., by аnd through her Guardian Ad Litem, Rita LOOF, Plaintiff-Appellant, v. UPLAND UNIFIED SCHOOL DISTRICT; West End SELPA, Local Education Agencies, Defendants-Appellees.
Nos. 12-55715, 12-56796
United States Court of Appeals, Ninth Circuit
Filed April 2, 2014
Argued and Submitted Dec. 5, 2013.
The district court did not abuse its discretion in denying Lopez‘s motion for a new trial. The district court correctly found Lopez‘s motion for an evidentiary hearing to cross-examine Agent Harris and Officer Schmid untimely under Local Rule 7-8. However, the district court also considered the merits of Lopez‘s argument and did not clearly err when it found insufficient evidence of false testimony. The signed declarations of Officer Schmid and Investigator Garcia upon which Lopez relies do not directly contradiсt Agent Harris‘s testimony at trial; the unsigned declaration that did contradict Agent Harris‘s testimony was subsequently signed only after the contradictory language had been excised. And, even if Agent Harris testified falsely about the location at which the fingerprint is taken, that point is so tangential that Lopez cannot meet his burden of showing “there is a reasonable probability that without the evidence the result of the proceeding would have been different.” United States v. Inzunza, 638 F.3d 1006, 1020 (9th Cir. 2011) (internal quotation marks omitted).
V.
Accordingly, we find no reversible error and therefore affirm.
AFFIRMED.
Jack Byron Clarke, Jr., Kira L. Klatchko (argued), Best Best & Krieger LLP, Indian Wells, CA, for Defendants-Appellees.
Before: HARRY PREGERSON, MARSHA S. BERZON, and MORGAN CHRISTEN, Circuit Judges.
OPINION
CHRISTEN, Circuit Judge:
In this consolidated appeal, S.L., a minor, by and through her guardian, challenges the district court‘s orders upholding the California Office of Administrative Hearing‘s (“OAH“) partial denial of reimbursement for educational costs pursuant to the Individuals with Disabilities Education Act (“IDEA“) (No. 12-55715), and granting in part and dеnying in part a related motion for attorney‘s fees (No. 12-56796). We have jurisdiction under
I. BACKGROUND
A. Facts
S.L., who has an intellectual disability under federal law, began attending kindergarten in Upland Unified School District, a member of the West End Sрecial Education Local Plan Area (collectively “the districts“), during the 2002/2003 school year. S.L.‘s parents were unhappy with the districts’ educational program, withdrew S.L., and placed her in a private, parochial school called Our Lady of Assumption (“OLA“). S.L. remained at OLA at least through the end of fifth grade. While S.L. was at OLA, S.L.‘s mothеr hired two private, one-on-one aides to assist S.L. with her schoolwork. In June 2005, S.L. filed a due process hearing request against Upland, alleging her right to a free appropriate public education (“FAPE“) was violated between 2002 and 2006.
On June 21, 2007, S.L.‘s mother and Upland settled the due process dispute for the years 2002 to 2006. As part оf the agreement, Upland agreed to reimburse S.L. $18,000 for educational expenses, pro-
Meanwhile, in April 2007, the districts sent a proposed assessment plan to S.L.‘s parents to prepare for S.L.‘s 2007 triennial Individual Education Plan (“IEP“) 1 and to meet the requirement that a special education student be assessed at least every three years. The districts estimated that they would need approximately twelve to fifteen hours with S.L. to complete the assessment. On June 13, 2007, S.L.‘s mother marked the box “I prefer to meet and discuss the assessment plan before I give approval,” requested several dates for a meeting, and rеturned the proposed plan to the districts.
In the four months following the settlement agreement, S.L.‘s mother, the districts, and their attorneys had a series of increasingly contentious exchanges regarding: whether the assessment would take place and, if so, when and how long it would take; whether the districts would provide the mother with the manuals for the proposed assessments; and whether the districts could have an attorney present at an in-person meeting held to discuss substantive disputes. During this time, the districts notified S.L.‘s mother that, because “it is clear that you do not intend” to adhere to section A(4) of the settlement agreement regarding the assessment, they cоnsidered S.L. to have been voluntarily placed in a private school for the 2007/2008 school year.
B. Procedural History
In December 2007, S.L., by and through her guardian, filed a second due process complaint against the districts, alleging that they denied S.L. a FAPE by failing to hold an IEP meeting at the parents’ request to discuss the proposed assessment plаn and the length of time needed to conduct the assessment (“Issue One“). The complaint also alleged that the districts failed to conduct the agreed-upon assessments, thereby denying S.L. a FAPE (“Issue Two“).2 Following a three-day hearing, the Administrative Law Judge (“ALJ“) issued a split decision, determining that the districts “fully prevailed” on Issue One, and that S.L. “substantiаlly prevailed” on Issue Two. The ALJ concluded that OLA was not an appropriate placement for S.L., and “[t]he totality of the Mother‘s conduct, attitude, and interaction with [the districts] during the time period covered by this case indicated that it was not her intent to resolve the issue with [the districts] and ensure that [S.L.] was assessed.”
Weighing the districts’ failure to abide by the settlement agreement and failure to assess S.L. on the one hand, and the mother‘s failure to place S.L. at an appropriate school and unreasonable attitude with regard to the duration of the assessments on the other hand, the ALJ ruled that S.L. was entitled to “some reimbursement” for cоsts incurred during the 2007/2008 school year. The ALJ concluded placement at OLA was not appropriate for S.L., and did
S.L. appealed the ALJ‘s decision regarding partial reimbursement for the educational costs to the federal district court, which upheld the ALJ‘s decision in its entirety. Neither the ALJ nor the district court expressly ruled on S.L.‘s request for reimbursement for transportation expenses.
Following the district court‘s decision, and while the appeal of that decision was pending in this cоurt, S.L. moved for attorney‘s fees and costs, claiming $92,078.35. The district court issued an order on August 27, 2012, granting thirty-eight percent of the fee request, or $34,989.77. S.L. subsequently presented a proposed judgment to the court on September 19, 2012, which the court signed on September 24, 2012. S.L. filed her notice of appeal on October 2, 2012.
II. DISCUSSION
We review the аppropriateness of a special education placement de novo. C.B. v. Garden Grove Unified Sch. Dist., 635 F.3d 1155, 1159 n. 1 (9th Cir. 2011). In so doing, we “give weight to the ALJ‘s findings.” Id. at 1160. We review a district court‘s factual findings for clear error. Id. at 1159 n. 1.
A. Appeal No. 12-55715 (Merits)
1. Appropriateness of Placement at OLA
The first issue we must address is the appropriateness of S.L.‘s placement at OLA. Applicable law provides that:
If the parents of a child with a disability enroll the child in a private school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made FAPE available to the child in a timеly manner prior to that enrollment and that the private placement is appropriate.
Thе “appropriateness” analysis is more complicated. In evaluating whether a placement is appropriate:
parents need not show that a private placement furnishes every special service necessary to maximize their child‘s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
C.B., 635 F.3d at 1159 (emphasis omitted) (quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 365 (2d Cir. 2006)).
The districts argue that, although S.L. received educational benefit from her private aidеs, OLA did not provide S.L.
Additionally, while the placement at OLA was less than perfect, we are mindful that the OAH found the districts denied S.L. a FAPE by failing to complete the agreed-upon assessments that were intended to ensure an appropriate placement for the 2007/2008 school year. The placement chosen by the mother, under these circumstances, was not unreasonable or inappropriate. As such, S.L. should be reimbursed for the cost of tuition, $4,010.00.
2. Reimbursement for Transportation Expenses
Because we find, under the circumstances of this case, that OLA was an appropriate placement, S.L. is also entitled to transportation reimbursement in the amount of $2,693.21, a sum based on “the total mileage driven from [S.L.‘s] home to OLA and the IRS mileage rate.” The “language and spirit of the IDEA encompass reimbursement for reasonable transportation ... expenses ... аs [a] related service[].” Union Sch. Dist. v. Smith, 15 F.3d 1519, 1528 (9th Cir. 1994). The best evidence available establishes that transportation to and from OLA was “required to assist” S.L. “to benefit from special education,”
3. Reimbursement for Private Aides
The district court did not err in partially rejecting reimbursement for the cost of the private aides. The court found that “there is insufficient evidence on the record” to prove S.L.‘s claim that $14,490 in fees “were incurred,” but ordered reimbursement for $6,999.25, an amount proven by cancelled checks. S.L. argues that thе trier of fact can weigh testimony about pay rates and hours worked. That is what the district court did in finding that S.L.‘s estimate for additional compensation was “insufficiently proven because it relies on the witness’ bare estimations without supporting documentation or even a statement
The districts arguе that an equitable reduction in reimbursement on the basis of the mother‘s conduct was appropriate, but we need not consider this argument because the district court did not reduce the reimbursement amount on that basis. The district court did not mention the mother‘s behavior or an equitable reduction of reimbursement in its order.
B. Appeal No. 12-56796 (Attorney‘s Fees)
S.L.‘s аppeal from the order awarding attorney‘s fees is dismissed as untimely. “In a civil case, ... the notice of appeal ... must be filed with the district clerk within 30 days after the entry of judgment or order appealed from.”
The district court issued a written order regarding plaintiff‘s motion for attorney‘s fees on August 27, 2012. S.L. filed her notice of appeal thirty-six days later.
S.L. argues that
First, because “a separate document is not required for an order disposing of a motion for attorney‘s fees under [Federal Rule of Civil Procedure] 54,”
Second, “if, after filing a final disposition, a court files a more formal judgment, the latter does not constitute a second final disposition or extend the appeal period.” In re Slimick, 928 F.2d 304, 307 (9th Cir. 1990). Slimick also noted, “[a] disposition is final if it contains a complete act of adjudication, that is, a full adjudication of the issues at bar, and clearly evidences the judge‘s intention that it be the court‘s final
For these reasons, we lack jurisdiction to hear the untimely appeal of the district court‘s order on fees.
III. CONCLUSION
Appeal No. 12-55715 is AFFIRMED IN PART and REVERSED IN PART. Appeal No. 12-56796 is DISMISSED. Each party shall bear its costs on appeal.
MORGAN CHRISTEN
UNITED STATES CIRCUIT JUDGE