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T.B. v. San Diego Unified Sch. Dist.

United States Court of Appeals, Ninth Circuit

July 31, 2015

T.B., a minor, by and through his Guardian ad Litem; ALLISON BRENNEISE; ROBERT BRENNEISE, Plaintiffs-Appellants, STEVEN WYNER; WYNER AND TIFFANY, Appellants,

Argued and Submitted, July 9, 2014, Pasadena, California

Appeal from the United States District Court for the Southern District of California. D.C. No. 3:08-cv-00028-MMA-WMC. Michael M. Anello, District Judge, Presiding.


Individuals with Disabilities Education Act / Americans with Disabilities Act / Rehabilitation Act

The panel affirmed in part and reversed in part the district court's summary judgment on claims under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act and vacated the district court's determination of attorneys' fees and costs under the Individuals with Disabilities Education Act in an action brought against a school district by a disabled student and his parents.

The district court upheld an administrative law judge's ruling that the school district denied the student a free appropriate public education in the least restrictive environment, as he was guaranteed under the IDEA, by failing to provide him with a legally adequate way to receive gastrostomy-tube feedings.

The plaintiffs argued that the school district was automatically deliberately indifferent to the student's rights, and therefore also liable for damages under Section 504 and the ADA, by failing to abide by California law on g-tube feedings. The panel agreed that California law established federally enforceable rights governing g-tube feeding in schools, but it held that the plaintiffs also must show intentional discrimination. The panel affirmed the district court's summary judgment in favor of the school district on Count IV, which concerned a 2006-07 individualized education program. The panel reversed on Count V, which concerned a 2007-08 IEP, and remanded for further proceedings, because there was a genuine dispute of material fact as to whether the school district was deliberately indifferent to the student's right to be assisted by a person qualified under California law.

The panel affirmed the district court's summary judgment in favor of the school district on a claim that the district retaliated against the student and his mother, in violation of the ADA, for her " aggressive advocacy" on his behalf. Following other circuits, the panel applied the but-for causation test of Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013), and concluded that the plaintiffs failed to make out a prima facie case of retaliation.

Vacating the district court's award of substantially less than the amount of attorneys' fees requested by the plaintiffs under the IDEA, the panel concluded that the student's parents were substantially justified in rejecting a settlement offer because the relief obtained through the ALJ's decision was more favorable to the parents than the offer of settlement. In addition, the district court abused its discretion in concluding that the fee claim was unreasonable. For these and other reasons, the panel vacated the district court's determination of fees and costs and remanded for reconsideration.

Steven Wyner, Wyner Law Group, PC, Torrance, California; Marcy J.K. Tiffany (argued), Tiffany Law Group, PC, Torrance, California, for Plaintiffs-Appellants.

Amy R. Levine, Sarah L.W. Sutherland (argued), William B. Tunick, Dannis Woliver Kelley, San Francisco, California, for Defendant-Appellee.

Maureen R. Graves, Daniel R. Shaw, Irvine, California, as and for Amicus Curiae California Association for Parent-Child Advocacy.

Harvey Saferstein, Nada I. Shamonki, Abigail V. O'Brient, Mintz Levin Cohn Ferris Glovsky & Popeo, P.C., Los Angeles, California; Paula D. Pearlman, Los Angeles, California, for Amici Curiae Disability Rights Legal Center and Learning Rights Law Center.

Jonathan P. Read, Tiffany M. Santos, Susan B. Winkelman, Fagen Friedman & Fulfrost, LLP, San Marcos, California, for Amicus Curiae California School Boards Association's Educational Legal Alliance.

Donald Davis, Damara Moore, San Francisco, California, as and for Amicus Curiae San Francisco Unified School District.

Before: Raymond C. Fisher and Richard R. Clifton, Circuit Judges, and Lee H. Rosenthal, District Judge.[*]


CLIFTON, Circuit Judge

This is the latest round in an unfortunate dispute that has endured for almost a decade regarding the education of a child with disabilities. The child is now 21 years old and has since graduated from high school, but the litigation has continued. T.B. and his parents, the Brenneises, used to be residents of the San Diego Unified School District. T.B. has learning and motor disabilities and feeds himself in part through a gastrostomy tube (" g-tube" ). In 2006, the Brenneises and the district began working on an individualized education plan (" IEP" ) that would allow T.B., who was then being educated outside the public school system, to reenter school for the 2006-07 academic year. The two sides could not agree, however, and both filed for a due process hearing under the Individuals with Disabilities in Education Act (" IDEA" ).

The administrative law judge (" ALJ" ) who presided over that hearing ruled in favor of the school district on most issues but held that the district's proposed IEP was inadequate because it did not provide a legally adequate way for T.B. to receive g-tube feedings. That ruling was upheld on appeal to the district court. Neither side has further pursued that subject on appeal to this court.

The Brenneises also brought in district court a claim that the school district had violated T.B.'s civil rights under the Americans with Disabilities Act (" ADA" ), 42 U.S.C. § 12131, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. The district court granted summary judgment to the school district on those civil rights claims. We affirm that summary judgment as to two counts but reverse it as to a third count. We remand that claim for further proceedings.

In addition, the Brenneises and their attorneys sought attorneys' fees and costs for their partial victory before the ALJ. The district court awarded them approximately $50,000 for attorneys' fees, substantially less than the $1.4 million that was requested. The principal basis for denying most of the fee request was a determination by the district court that the Brenneises had unreasonably rejected a settlement offer made by the school district shortly before the start of the due process hearing. The IDEA provides that attorneys' fees should not be awarded if the parents do not accept a timely settlement offer, " the relief finally obtained by the parents is not more favorable to the parents than the offer of settlement," and the parents' rejection of the settlement offer was not " substantially justified." 20 U.S.C. § 1415(i)(3)(D)(i)(III), (E). We conclude, contrary to the district court, that the relief obtained through the ALJ's decision was more favorable to the parents than the offer of settlement and that the parents were substantially justified in rejecting the offer, so the district court's denial of fees on that basis must be set aside. For that and other reasons, we vacate the district court's determination of fees and costs and remand that matter for further consideration as well.

I. Background

T.B. was born in January 1994. He suffers from phenylketonuria, which prevents him from processing phenylalanine, an amino acid. Infants are screened for phenylketonuria at birth, but because of a lab error, T.B. was not correctly diagnosed until he was three. As a result, he suffered brain damage and physical problems. Children with phenylketonuria are given a phenylalanine-free drink based on formula; in 1997, T.B. was fitted with a g-tube through which the drink could be poured directly into his stomach.

A. T.B.'s home education

In 2003, a dispute arose between T.B.'s mother, Alison Brenneise, and the school district about his education, and she withdrew him from school. From 2003 to 2006, T.B. was educated by external service providers, funded by the school district, and by Mrs. Brenneise herself, who was not paid. This program sometimes took place in the Brenneises' garage and was informally called " garage school," a term which we will also use. Under the terms of a settlement agreement, the school district funded 40 hours of services per week for T.B.

That settlement did not prevent further disputes. In May 2006, the Brenneises filed for a due process hearing, contending that the district had failed to provide T.B. with a free appropriate public education (" FAPE" ) for the years 2003-06, as required under the IDEA.[1] See generally Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) (discussing the requirements of a FAPE under the Education for All Handicapped Children Act of 1975, Pub. L. No. 94-142, 89 Stat. 773, the predecessor of the IDEA). This case eventually settled.

Under the IDEA, the school district was required to evaluate T.B.'s educational needs at least once every three years. 20 U.S.C. § 1414(a)(2)(B)(ii). In July 2006, the district produced an assessment report, and a few days later the parties agreed on an " extended school year" IEP that would cover the summer period. This IEP placed T.B. in Coronado Academy, a public school outside the district, for eleven half-days, which was all that remained of the school year. At that point, the IEP provided that T.B. would return to garage school. Garage school also represented the " stay-put" schooling arrangement--how T.B. would be educated if the parties were unable to agree on an IEP for the 2006-07 school year. See 20 U.S.C. § 1415(j); Honig v. Doe, 484 U.S. 305, 312, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). After T.B. had attended Coronado for only five days, however, Coronado asked him to leave, so T.B. returned to garage school early.

B. The compliance complaint and due process filings

Mrs. Brenneise then filed a compliance complaint against the school district. The California Department of Education upheld the complaint and ordered compensatory education as a remedy. The amount of fees due to T.B.'s lawyers in connection with this compliance complaint is one of the issues in this appeal.

Immediately after T.B. returned to garage school, the school district attempted to create a new IEP for the 2006-07 school year. At the end of August, the district provided a new draft IEP and a transition plan to facilitate his return to school. The district proposed that T.B. would be placed at Sierra Academy, which served only disabled students. Mrs. Brenneise did not want T.B. to attend Sierra, in part because it did not have a nurse's office where he could lie down after g-tube feedings. She did not agree to the August 2006 IEP and objected to " all areas" of the assessments on which the IEP was based.

Between September and December, the district worked on revising the IEP. Because Mrs. Brenneise disagreed with assessments of T.B. that the district had made in June and July, she requested independent educational evaluations. The district denied some of those requests and, in November 2006, filed for a due process hearing to defend its assessments.

In December 2006, the district prepared a new IEP under which T.B. would be placed at Wangenheim Middle School. In accordance with Mrs. Brenneise's request, this was a comprehensive school within and operated by the school district. Unlike Sierra, Wangenheim had a nurse's office. The December IEP was otherwise largely similar to the August IEP. Mrs. Brenneise did not consent to the December IEP. In December 2006, the school district again filed for a due process hearing, arguing that the IEP " offer[ed] Student a FAPE designed to meet his unique needs and allow him to benefit from his education." In January 2007, the Brenneises also filed for a due process hearing, contending that the school district had denied T.B. a FAPE. This case was consolidated with the previously pending cases.

C. Settlement proposals

From February to May 2007, the parties engaged in settlement discussions. The Brenneises were represented by Steven Wyner and his law firm, Wyner and Tiffany. Although some of the discussions were oral and the parties have not stipulated as to their content, it is undisputed that the two sides discussed the possibility of an arrangement under which the school district might pay the Brenneises an annual sum in return for the Brenneises' commitment to take over responsibility for T.B.'s education from the district and to have T.B. educated outside the public school system.

According to the district, the Brenneises requested $200,000 per year to have T.B. educated privately. The Brenneises and Wyner have not denied this. In March 2007, the school district offered to pay the Brenneises $75,000 per year to have T.B. educated privately until he reached the age of 18, in the 2011-12 school year. According to the district, this was considerably more than the $30,000 to $55,000 that it would cost to educate T.B. in private school, but far less than the cost of the existing garage school program, which was approximately $157,000. The district also stated that it was rejecting the Brenneises' demand of $200,000 per year to educate T.B. privately. The Brenneises rejected the $75,000 offer.

In April 2007, the school district offered the Brenneises a one-time payment of $50,000 to settle all of the due process claims T.B. had brought relating to the August and December IEPs. The school district stated that the prior $75,000 offer was " supersede[d]." The record does not contain any evidence of a response to this offer.

In May 2007, the district sent Wyner a new long-term settlement proposal. This offer, described in more detail below, was for $150,000 per year. It permitted the Brenneises to reenroll T.B. in public school beginning with the 2009-10 school year. The agreement was to be effective immediately; the Brenneises would receive a pro-rated share of the $150,000 for the 2006-07 school year. If T.B. was subsequently enrolled in public school, and the Brenneises were unhappy with that program, the stay-put arrangement while the dispute was resolved would be the public school program.

Wyner, the attorney for the Brenneises, rejected the offer later the same day on the ground that it was " still far short of the demand that I communicated to you." As a counteroffer, he requested an annual payment of $250,000, a larger figure than previously sought. The counteroffer provided that T.B. would remain in garage school for the rest of the 2006-07 school year, be educated privately for the 2007-08 school year, and have the right to reenroll in public school any year thereafter. The stay-put arrangement under the counteroffer was garage school. The district did not accept that offer; the record does not contain any response to the district's rejection.

D. The due process hearing and decision

The case proceeded to the due process hearing, which began on May 14, 2007. The administrative law judge addressed eighteen issues, two raised by the district in its filings and sixteen raised by the Brenneises. There was overlap in some of the issues raised by the parties.

After a 27-day hearing and written closing arguments, the ALJ in October 2007 handed down a careful and thorough 75-page written decision that found in favor of the school district on 15 issues. The Brenneises won on the remaining three: Issues 10, 14, and 15. Issue 10, raised by the district, was whether the district's education would provide T.B. " a FAPE designed to meet his unique needs and allow him to benefit from his education." The other two issues were raised by the Brenneises: Issue 14 was whether the district had denied T.B. a FAPE by failing to develop a health care plan that would " enable [T.B.] to attend school safely," and Issue 15 was whether the district had denied T.B. a FAPE by failing to develop an appropriate transition plan. Issue 10 overlapped with Issues 14 and 15, so we do not discuss it separately.

1. Issue 14: the g-tube feeding

The first of the two discrete issues on which T.B. won centered around his g-tube feeding. The IDEA sets out minimum federal standards for school districts that receive federal funding. States may choose to supplement the federal standards with their own, and " [s]tate standards that are not inconsistent with federal standards are also enforceable in federal court." W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1483 (9th Cir. 1992). Here, the ALJ ruled that the school district had failed to show that its plan met the minimum standards that California had set relating to g-tube feeding to complement the federal standards.

To understand the basis for the ALJ's decision, it is necessary to review in some detail the relevant federal and state requirements. The IDEA provides that an IEP shall contain a " statement of the special education and related services" that will be provided to a child. 20 U.S.C. § 1414(d)(1)(A)(i)(IV). These related services are defined at § 1401(26) as a range of items including " school nurse services designed to enable a child with a disability to receive a free appropriate public education." California has adopted a similar definition of related services, called " designated instruction and services." Cal. Educ. Code § 56363(a). Designated instruction and services include " [h]ealth and nursing services," id. § 56363(b)(12). These may in turn include " specialized physical health care services," 5 Cal. Code Regs. § 3051.12(b), which are defined as " those health services prescribed by the child's licensed physician and surgeon requiring medically related training for the individual who performs the services and which are necessary during the school day to enable the child to attend school." Under the Code of Regulations, " [s]pecific continuing specialized physical health care services required in order for the individual to benefit from special education will be included in the [IEP]." Id. § 3051.12(b)(3)(A) (emphasis added).

The ALJ held that T.B.'s g-tube feeding, " if required to be performed during the school day by District personnel," was a specialized physical health care service. Therefore, it had to be described in the IEP. But the August 2006 IEP did not " describe general procedures for G-Tube feeding, where that procedure would take place on the Sierra campus, or identify the category of employee who would assist [T.B.] with the feedings." Rather, the IEP simply recited that T.B. would receive three hours of nursing services in September 2006 and " 5 hours consultation per year as needed," and contained a " School Health Management Plan," which required adult supervision of T.B.'s g-tube feedings. The transition plan section of the IEP stated that the nurse would train Sierra staff in g-tube feeding before T.B. started school but provided no further details. Therefore, the ALJ concluded, the August 2006 IEP did not provide a FAPE.

The December 2006 IEP also failed to provide a FAPE. Like the August IEP, this plan provided for a total of eight hours of nursing services throughout the school year and also contained the health management plan. Unlike the August IEP, the December IEP contained two extra pages explaining how food was to be prepared at school and stating that " [T.B.] requires an Individualized School Healthcare Plan." These pages also referred to the transition plan, which was more detailed than the August version. The transition plan provided that all school staff would be trained in T.B.'s dietary requirements, and that g-tube feeding would take place in the nurse's office, with the staff member assisting T.B. " [t]o be determined in collaboration with the school nurse and parent."

The ALJ ruled that this was insufficient. The district was not permitted to rely on the creation of an Individualized School Healthcare Plan after the event: the IEP itself had to be sufficiently clear. And the December IEP " did not specify which category of District staff would be responsible for the G-Tube feeding."

This failure to specify was important under California law. Under Education Code § 49423.5(a), only two types of persons were allowed to perform specialized physical education services such as g-tube feeding: " (1) Qualified persons who possess an appropriate credential . . . [and] (2) [q]ualified designated school personnel trained in the administration of specialized physical health care if they perform those services under the supervision . . . of a credentialed school nurse, public health nurse, or licensed physician . . . ." The ALJ found that a school nurse would be considered in the former category. But a person could be considered " qualified designated school personnel" only if he or she had received " [m]edically related training" in " standardized procedures provided by a qualified school nurse, qualified public health nurse, qualified licensed physician and surgeon, or other approved programs." 5 Cal. Code Regs. § 3051.12(b)(1)(E)(2).

The ALJ found that the district had two job categories that were intended to cover qualified designated school personnel: Special Education Technician (" SET" ) and Special Education Health Technician (" SEHT" ). The district's job classification prescribed a wide range of duties for SETs, including " [p]erform[ing] specialized health care procedures under [the] direction of [a] school nurse." An SEHT's duties were more narrowly focused on health care, and specifically included g-tube feedings. An SEHT was more experienced than an SET: according to the job classification, an SEHT required " [a]ny combination of training, experience, and/or education equivalent to one year of experience in the district job class of . . . Special Education Technician." By contrast, the ALJ determined that the district provided insufficient evidence that a third job categorization, Behavioral Support Assistant (" BSA" ), was qualified to provide g-tube feedings under California law. The district's job classification stated that BSAs should " [p]rovide individual or small group support to pupils according to established Individualized Education Programs" but did not specify any medical duties.

As the ALJ stated, the IEP was silent about who would be performing the g-tube feeding. There was evidence at the hearing that the feeding would, in fact, be done by a BSA, who would be assigned to assist T.B. throughout the school day. That was the problem. The district had not shown that the BSA would be qualified to perform g-tube feedings, so " [T.B.'s] parents had no way to be sure that an appropriate employee would be assisting their child." As a result, the ALJ concluded, the Brenneises prevailed on Issue 14.

2. Issue 15: the transition plans

The second discrete issue on which the Brenneises prevailed related to the transition plans. Under California law, an IEP had to contain " [p]rovision for the transition into the regular class program if the pupil is to be transferred from a special class or nonpublic, nonsectarian school into a regular class in a public school . . . ." Cal. Educ. Code § 56345(b)(4). This included " [a] description of activities provided to integrate the pupil into the regular education program" and " [a] description of the activities provided to support the transition of pupils from the special education program into the regular education program." Id. § 56345(b)(4)(A), (B). The ALJ concluded that the transition plans in both the August and December IEPs were defective.

The August IEP transition plan purported to provide a three-week transition into school. At the hearing, however, the district's expert testified that the transition might take more than three weeks, depending on T.B.'s progress. Therefore, the language of the plan was " directly contradictory" to the school district's evidence. Furthermore, the plan did not state that designated instruction and services would continue until transition was complete, nor who would decide when T.B. was to move to the next phase. That made the plan inadequate.

The December IEP transition plan, by contrast, explicitly provided for four flexible phases. But this plan was also flawed: T.B. could, in theory, remain in one phase of the plan for the entire year, and so the plan needed to state what T.B.'s services were in each phase. Like the August plan, it did not specify the designated instruction and services that T.B. would receive during the transition plan.

In addition, the parents were not included in the collaboration team that decided when T.B. would move from one phase to the next, a problem that affected both plans. The ALJ concluded this was a violation of federal law, which required that the child's parents must be involved in decisions relating to his education placement. See, e.g., 34 C.F.R. § 300.327. Therefore, the Brenneises prevailed on Issue 15.

3. The relief

As relief, the ALJ modified the December IEP by including language to state that a school nurse would " personally assist" T.B. with his g-tube feeding, and that the feeding would occur " at the time(s) and in the manner designated in a doctor's order from the [T.B.'s] current physician." But the ALJ also said that

nothing in this Decision is intended to prevent the District from proposing, in a future IEP, that another classification of employee assist [T.B.] with the feedings, provided that the assistant meets the requirements of Education Code section 49423.5. In addition, nothing in this Decision is intended to limit the classification of employee that may be designated pursuant to that code section. This Decision is simply based on the finding that, at the present time and in the present case, the District failed to make an evidentiary showing that the three hours of training ...

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