Capistrano Unified Sch. Dist. v. S.W.

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 30 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CAPISTRANO UNIFIED SCHOOL Nos. 20-55961 DISTRICT, 20-55987

Plaintiff-Appellant/ D.C. Nos. Cross-Appellee, 8:18-cv-01896-JVS-DFM 8:18-cv-01904-JVS-DFM v.

S.W. and C.W., on behalf of their minor MEMORANDUM* child, B.W.,

Defendants-Appellees/ Cross-Appellants.

Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding

Argued and Submitted September 3, 2021 Pasadena, California

Before: Mark J. Bennett and Ryan D. Nelson, Circuit Judges, and David A. Ezra,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. We addressed most of the parties’ claims in a concurrently-filed published

opinion. Here we address reimbursement of costs for second grade and

occupational therapy services. The district court abused its discretion in ordering

reimbursement for tuition and services for second grade. But the district court did

not abuse its discretion in awarding reimbursement for occupational therapy

services.

1. The district court abused its discretion in ordering reimbursement for

second grade. The ALJ awarded reimbursement for second grade because she held

that Capistrano violated its duty to prepare an IEP for that year. But because the

district court found that there was no duty to prepare an Individualized Education

Plan (IEP) for that year, the district court’s second grade reimbursement award was

thus untethered from any particular wrong. At oral argument, Capistrano

disclaimed any reliance on the argument that, as a matter of law, reimbursement

could never be appropriate relief in years in which there are no violation, and so

we do not address that question here. Instead, we agree with Capistrano that, given

the particular facts of this case, because it awarded a remedy untethered from any

wrong, the district court abused its discretion in ordering reimbursement for second

grade. The district court’s choice of a remedy must be logical, plausible, and

supported by inferences that may be drawn from facts in the record. Pauma Band

of Luiseno Mission Indians of Pauma & Yuima Reservation v. California, 813 F.3d

2 1155, 1163 (9th Cir. 2015). Here, on these particular facts, the district court’s

award of reimbursement for second grade was illogical because it did not tether

that award to any particular wrong.

2. The district court did not abuse its discretion in ordering reimbursement

for occupational therapy (“OT”). Capistrano argues that B.W.’s parents waived

OT reimbursement by affirmatively stating in front of the ALJ that OT was not at

issue. But in the district court, Capistrano explicitly acknowledged that the parents

did raise OT reimbursement in front of the ALJ, by referring several times to their

“request for reimbursement of speech or OT services.” And regardless, the parents

did raise OT reimbursement below. B.W.’s parents did not challenge

Capistrano’s provision of OT services, but that does not mean that they thought

those services were unnecessary. What’s more, in separate portions of the hearing,

the parents explicitly raised OT reimbursement in front of the ALJ. They asked the

ALJ to order Capistrano “to reimburse parents for their tuition cost and related

expenses -- including speech and language therapy, occupational therapy, and

social skills instruction,” as well as other expenses.

Capistrano waived its argument that OT services went above and beyond

what was required for a free appropriate public education (“FAPE”). “Arguments

not raised by a party in its opening brief are deemed waived.” Friends of Yosemite

Valley v. Kempthorne, 520 F.3d 1024, 1033 (9th Cir. 2008). Capistrano waived its

3 argument that the OT services exceeded what was needed to provide a FAPE by

failing to raise it in its opening brief, which argued only that B.W.’s parents

waived OT reimbursement. Because it raised the issue only in its reply brief,

Capistrano waived its argument that the OT services went above and beyond what

was required for a FAPE.

We hold that the district court abused its discretion in ordering

reimbursement for tuition and services for second grade but did not abuse its

discretion in awarding reimbursement for occupational therapy services. The

district court’s judgment is therefore AFFIRMED IN PART and REVERSED IN

PART. As stated in the concurrently-filed published opinion, we REMAND the

case to the district court for the limited purpose of considering attorneys’ fees.