Disability Law Cn Ak v. Anchorage School Dis ( 2009 )


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  •                  FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    DISABILITY LAW CENTER OF ALASKA,      
    INC.,                                       No. 08-35057
    Plaintiff-Appellant,
    v.                            D.C. No.
    CV-07-00131-RRB
    ANCHORAGE SCHOOL DISTRICT,                   OPINION
    Defendant-Appellee.
    
    Appeal from the United States District Court
    for the District of Alaska
    Ralph R. Beistline, District Judge, Presiding
    Argued and Submitted
    August 3, 2009—Anchorage, Alaska
    Filed September 9, 2009
    Before: Jerome Farris, David R. Thompson and
    Johnnie B. Rawlinson, Circuit Judges.
    Opinion by Judge Farris
    12831
    12834    DISABILITY LAW CENTER v. ANCHORAGE SCHOOL
    COUNSEL
    Megan K. Allison and Holly Johanknecht, Disability Law
    Center of Alaska, Anchorage, Alaska, for the plaintiff-
    appellant.
    Bradley D. Owens and Cheryl Mandala, Jermain, Dunnagan
    & Owens, Anchorage, Alaska, for the defendant-appellee.
    J. Daniel Sharp, Folger, Levin, & Kahn, San Francisco, Cali-
    fornia, for the Amicus.
    Francisco Maria Negron Jr., General Counsel, Alexandria,
    Virginia for the Amicus.
    OPINION
    FARRIS, Circuit Judge:
    I.   Background
    Beginning in 2007, Plaintiff Disability Law Center of
    Alaska received six separate complaints regarding mistreat-
    ment of students in the intensive needs special education class
    at Lake Otis Elementary School in Anchorage. These com-
    plaints described general problems with classroom conditions
    and specific treatment of both named and unnamed students,
    as well as identifying the one teacher and one aide responsi-
    ble.
    Law Center is the designated Protection and Advocacy
    agency for the state of Alaska, as provided under the Protec-
    DISABILITY LAW CENTER v. ANCHORAGE SCHOOL         12835
    tion and Advocacy for Individuals with Mental Illness Act, 42
    U.S.C. § 10801 et seq., and the Developmental Disabilities
    Assistance and Bill of Rights Act, 42 U.S.C. § 15001 et seq.
    Acting pursuant to its investigatory authority under the legis-
    lation, Law Center contacted Defendant Anchorage School
    District, requesting information regarding the class, its stu-
    dents, its staff, and any relevant school district investigations.
    The school district provided most of the requested informa-
    tion but refused to provide contact information for the stu-
    dents’ guardians or legal representatives.
    Law Center brought suit in the district court, seeking to
    enjoin the school district to turn over the contact information.
    Law Center also moved for a temporary restraining order and
    preliminary injunction. The district court treated this as a
    motion seeking a permanent injunction, on the logic that the
    release of information cannot be undone. The district court
    dismissed the case with prejudice, holding that 1) Law Center
    had failed to establish probable cause to investigate because
    the responsible teacher and aide no longer worked at Lake
    Otis Elementary, and 2) the guardian or representative contact
    information at issue was protected under the Federal Educa-
    tional Rights and Privacy Act, 20 U.S.C. § 1232g(b)(1), and
    the Individuals with Disabilities Education Improvement Act,
    20 U.S.C. §§ 1412(a)(8), 1417(c). The district court awarded
    attorney fees to the school district pursuant to Rule 82 of the
    Alaska Rules of Civil Procedure. Law Center now appeals the
    dismissal of its action and the award of fees.
    II.   Standard of Review
    We review questions of law de novo. Samayoa-Martinez v.
    Holder, 
    558 F.3d 897
    , 899 (9th Cir. 2009). Mixed questions
    of law and fact also receive de novo review, and we review
    the underlying factual findings for clear error. United States
    v. Bourseau, 
    531 F.3d 1159
    , 1164 (9th Cir. 2008).
    12836      DISABILITY LAW CENTER v. ANCHORAGE SCHOOL
    III.    The district court erred by applying the wrong stan-
    dard in determining whether Law Center had estab-
    lished probable cause.
    [1] The Development Disabilities Act grants a Protection
    and Advocacy agency “the authority to investigate incidents
    of abuse and neglect of individuals with developmental dis-
    abilities if the incidents are reported . . . or if there is probable
    cause to believe that the incidents occurred.” 42 U.S.C.
    § 15043(a)(2)(B). Under this authority, P&As may, after con-
    tacting the person’s guardian or representative, access a dis-
    abled individual’s records on the basis of “probable cause to
    believe that such individual has been subject to abuse or
    neglect.” 42 U.S.C. § 15043(a)(2)(I) (emphasis added). In this
    context, “[p]robable cause means a reasonable ground for
    belief that an individual with developmental disabilities has
    been, or may be, subject to abuse or neglect.” 45 C.F.R.
    § 1386.19 (emphasis added).
    Law Center argued that complaints concerning general
    problems with classroom conditions and the treatment of stu-
    dents created probable cause to believe that every student in
    the Lake Otis special education class may have been subject
    to abuse or neglect, including those not named specifically.
    On that basis, it could demand guardian contact information
    from the school district.
    The district court disagreed, holding that complaints about
    classroom conditions do not establish probable cause once the
    teacher allegedly responsible has left, “absent some showing
    of systemic neglect.” The district court found “no indication
    of continuing potential for abuse or neglect since the teacher
    and teaching assistant provoking the complaints are no longer
    employed at the school.”
    [2] The students subject to alleged abuse at Lake Otis were
    elementary-aged children with developmental disabilities who
    were particularly unable to assert their rights or to protect
    DISABILITY LAW CENTER v. ANCHORAGE SCHOOL         12837
    themselves. The DD Act does not protect such a vulnerable
    population only for future harm and systemic neglect. Rather,
    under the DD Act regulations, a P&A’s belief about past
    harms and a P&A’s belief about future harms are distinct,
    alternative bases for probable cause. 45 C.F.R. § 1386.19. The
    language of the DD Act, by employing the past tense, makes
    clear that P&As have authority to investigate past incidents.
    See, e.g., 42 U.S.C. §§ 15043(a)(2)(B) (“ . . . probable cause
    to believe that the incidents occurred”) (emphasis added);
    15043(a)(2)(I)(iii)(II) (“ . . . has been subject to abuse or
    neglect”) (emphasis added).
    [3] The district court erred in holding that probable cause
    under the DD Act requires some showing that abuse and
    neglect are ongoing or likely to recur. The fact that the
    offending teacher and aide had been removed from the Lake
    Otis classroom did not defeat Law Center’s showing of proba-
    ble cause.
    IV.   Law Center’s access to the contact information was
    not barred by FERPA.
    The Federal Educational Rights and Privacy Act protects
    the confidentiality of educational records kept by
    government-funded schools. 20 U.S.C. § 1232g. FERPA and
    IDEA prohibit education agencies from disclosing “educa-
    tional records” or “personally identifiable information con-
    tained therein” without parental consent or court order. 20
    U.S.C. § 1232g(b)(1); see also 20 U.S.C. §§ 1412(a)(8),
    1417(c).
    The district court held that FERPA, and the provisions of
    IDEA incorporating FERPA’s privacy protections, overrode
    Law Center’s authority under the DD Act to demand guardian
    or representative contact information from the school district.
    Where an agency is tasked with administering a statute, we
    defer to its interpretation of the statute so long as the statute
    12838    DISABILITY LAW CENTER v. ANCHORAGE SCHOOL
    itself is silent or ambiguous on the issue and the agency’s
    interpretation is not arbitrary or capricious. Chevron v. Natu-
    ral Res. Def. Council, 
    467 U.S. 837
    , 842-43 (1984). An agen-
    cy’s interpretation expressed in an amicus brief receives the
    same deference. Hertzberg v. Dignity Partners, Inc., 
    191 F.3d 1076
    , 1082 (9th Cir. 1999).
    [4] The Department of Health and Human Services and the
    Department of Education — tasked with administering the
    DD Act and FERPA, respectively — interpreted the DD Act
    to have created a limited exception to FERPA. In an amicus
    brief filed in the Second Circuit case State of Conn. Office of
    Prot. & Advocacy for Persons with Disabilities v. Hartford
    Bd. of Educ., 
    464 F.3d 229
    (2d Cir. 2006), DHHS and DOE
    interpreted the DD Act as “expressly contemplat[ing] that a
    school or other facility will provide contact information to a
    P&A in order to allow the P&A to carry out its responsibility
    to investigate abuse or neglect.” The agencies concluded that
    “FERPA does not bar a P&A from obtaining access to the
    name of and contact information for a parent, guardian, or
    other legal representative.”
    [5] This interpretation merits Chevron deference. 
    See 467 U.S. at 842-43
    . The DD Act and FERPA are ambiguous as to
    their interaction with one another. The agencies’ conclusion
    constitutes a permissible interpretation of the DD Act and
    FERPA. The agencies stated that “[i]f a school or other facil-
    ity could refuse to provide the name and contact information,
    it could interfere substantially with P&A’s investigation of
    abuse or neglect, thereby thwarting Congress’ intent that
    P&As act to protect vulnerable populations from abuse or
    neglect.” Furthermore, the agencies found “no indication that
    Congress believed that the carefully tailored access rights
    required under [the DD Act] would be subordinate to the gen-
    eral privacy requirements of FERPA.” Rather, “permitting
    access as provided for under . . . the DD Act is generally con-
    sistent with Congress’ intent relating to student privacy.” Fur-
    thermore, “because a P&A is required to maintain the
    DISABILITY LAW CENTER v. ANCHORAGE SCHOOL         12839
    confidentiality of any student records it receives . . . there is
    little risk of the public disclosure of information that FERPA
    is intended to prevent.”
    [6] This conclusion is grounded in a reasonable analysis of
    Congressional intent and is not arbitrary and capricious. See
    Natural Res. Def. Council v. United States Envtl. Prot.
    Agency, 
    526 F.3d 591
    , 605 (9th Cir. 2008) (agency interpreta-
    tions receive judicial deference if not arbitrary or capricious).
    The analysis is especially apt here, where the value in protect-
    ing vulnerable individuals outweighs the value in protecting
    against a small diminution in privacy. We defer to the inter-
    pretation. The district court erred in concluding that FERPA
    bars the Law Center’s demand for contact information.
    V.   The district court erred in awarding fees to the school
    district.
    [7] The district court awarded attorney fees to the school
    district pursuant to Rule 82 of the Alaska Rules of Civil Pro-
    cedure, which entitles the prevailing party in a civil case to
    attorney fees. This was error. In a pure federal question case
    brought in federal court, federal law governs attorney fees.
    Bass v. First Pac. Networks, Inc., 
    219 F.3d 1052
    , 1055 (9th
    Cir. 2000). This case presented federal questions concerning
    the application of federal statutes, and presented no issue of
    state law.
    The school district argues that District of Alaska Local
    Rule 54.3(a) “adopts Rule 82 as a basis for attorney’s fees”
    without limiting its applicability to cases involving state law.
    However, Local Rule 54.3(a) states that “[a] motion for attor-
    ney’s fees under Rule 54(d)(2), Federal Rules of Civil Proce-
    dure, must . . . set forth the authority for the award, whether
    Rule 82, Alaska Rules of Civil Procedure, a federal statute,
    contractual provision, or other grounds entitling the moving
    party to the award[.]” The local rule merely acknowledges
    that Rule 82 can sometimes provide grounds for a fee award
    12840    DISABILITY LAW CENTER v. ANCHORAGE SCHOOL
    in the District of Alaska; specifically, in diversity cases, see,
    e.g., Johnson v. Columbia Props. Anchorage, LP, 
    437 F.3d 894
    , 902 (9th Cir. 2006), and in federal question cases with
    supplemental jurisdiction over state-law claims, see, e.g.,
    United States ex rel. Rebar Placement Co. v. GBC, L.L.C.
    Contractors, 
    2005 WL 846211
    , at *1 (D. Alaska Jan. 18,
    2005). The local rule does not permit Rule 82 to apply in this
    case.
    REVERSED and REMANDED.