Capistrano Unified Sch. Dist. v. S.W. ( 2021 )

NOT FOR PUBLICATION FILED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
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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
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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.
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