Irvine Unified School District v. K. G.

Filing

FILED OPINION (DIARMUID F. O'SCANNLAIN, JOHNNIE B. RAWLINSON and CONSUELO M. CALLAHAN) K.G. s motion for us to take judicial notice of the district court s order awarding fees in A.S., as well as the docket for this case, filed September 22, 2015, is GRANTED. The Motion for Leave to File Brief of Amici Curiae California School Boards Association Education Legal Alliance & National School Boards Association in Support of Irvine Unified School District and Reversal of the District Court s Decision, filed March 25, 2015, is GRANTED. The parties shall bear their own costs incurred during this appeal. AFFIRMED IN PART; VACATED IN PART; REMANDED; Judge: DFO Authoring, Judge: CMC Concurring & dissenting. FILED AND ENTERED JUDGMENT. [10394220]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

IRVINE UNIFIED SCHOOL DISTRICT,
Plaintiff-Appellant,
v.
K. G., an adult student,
Defendant-Appellee.

No. 14-56457
D.C. No.
2:10-cv-01431JVS-MLG
OPINION

Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted August 1, 2016
Pasadena, California
Filed April 13, 2017
Before: Diarmuid F. O’Scannlain, Johnnie B. Rawlinson,
and Consuelo M. Callahan, Circuit Judges.
Opinion by Judge O’Scannlain;
Partial Concurrence and Partial Dissent by Judge Callahan

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IRVINE USD V. K.G.
SUMMARY*

Individuals with Disabilities Education Act /
Attorneys’ Fees
The panel affirmed the district court’s grant of relief from
judgment but vacated its award of attorneys’ fees to a student
in an action under the Individuals with Disabilities Education
Act.
On remand from a ruling that student K.G.’s school
district was the agency responsible for K.G.’s free appropriate
public education, K.G. moved for statutory attorneys’ fees.
The district court denied the motion on the ground that K.G.
was not a prevailing party but subsequently granted relief
from judgment under Federal Rule of Civil Procedure 60(b)
and awarded fees.
The panel held that the district court did not abuse its
discretion in granting relief under Rule 60(b)(1) on the
ground of excusable neglect.
The panel held that K.G. was a prevailing party entitled
to attorneys’ fees because K.G. achieved the benefit sought,
a decision as to which agency was responsible to provide a
free appropriate public education. The panel rejected the
argument that K.G. could not have benefitted from the
litigation because K.G. graduated with a high school diploma
months before the district court decided the case. The panel
held that K.G.’s victory was not trivial or merely technical.
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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The panel held, however, that it was not clear whether the
amount of attorneys’ fees awarded was reasonable because
much of counsel’s work took place after K.G.’s graduation.
The panel vacated the fee award and remanded for the district
court to determine whether the hours billed following K.G.’s
graduation were truly the result of advocacy reasonably
calculated to advance K.G.’s interests.
Concurring and dissenting in part, Judge Callahan joined
all of the majority opinion except for Section III C,
addressing the amount of fees. Judge Callahan wrote that
there was no justification in either the IDEA or case law for
limiting an award of attorneys’ fees to a prevailing party
based on whether the student graduated.

COUNSEL
S. Daniel Harbottle (argued), Harbottle Law Group, Irvine,
California, for Plaintiff-Appellant.
Marcy J.K. Tiffany (argued), Tiffany Law Group, Torrence,
California, for Defendant-Appellee.
Sue Ann Salmon Evans and Karl H. Widell, Dannis Woliver
Kelley, Long Beach, California, for Amici Curiae California
School Boards Association Education Legal Alliance &
National School Boards Association.

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IRVINE USD V. K.G.
OPINION

O’SCANNLAIN, Circuit Judge:
We are asked to decide whether the attorney for a student
covered under the Individuals with Disabilities Education Act
is entitled to fees for legal work performed after the student’s
graduation from public school.
I
This case originates from a dispute over which California
government entity would be responsible for funding the
education of K.G., an emotionally disturbed minor from
California. Following K.G.’s release from juvenile hall in
2007, the California Department of Education (“the State”),
the Orange County Department of Education (“the County”),
and the Irvine Unified School District (“the School District”)
all agreed that K.G. was entitled to a “free appropriate public
education” (“FAPE”) under the Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C. § 1400(d)(1)(A), but
each entity disclaimed responsibility for funding such FAPE.
Eventually, the County agreed to fund K.G.’s FAPE,
temporarily, until the financially responsible agency could be
determined as a matter of law.
A
In November 2009, an administrative law judge (“ALJ”)
within California’s Office of Administrative Hearings ruled
that the School District was the agency responsible for the
FAPE under California law. The District filed a civil action
in federal district court challenging the ALJ’s decision and
naming the State, the County, and K.G. as co-defendants in

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February of 2010, two months before K.G.’s graduation in
April. Proceedings in the district court continued for seven
months after K.G.’s graduation and culminated in a decision
holding the State responsible for K.G.’s FAPE in November
of 2010. The State appealed to this court, and we determined
that, as a matter of California law, the School District was
responsible for providing K.G.’s FAPE and not the State; we
remanded the case for proceedings consistent with our
decision. See Irvine Unified Sch. Dist. v. Cal., 506 F. App’x
548, 550 (9th Cir. 2013) (unpublished).
On remand and before the entry of judgment in district
court, K.G. moved for statutory attorneys’ fees under IDEA.
20 U.S.C. § 1415(i)(3)(B)(i)(I). K.G., still with the original
attorney, requested $232,625.00 in fees and $1,286.85 in
costs. The district court denied the request for attorneys’ fees
entirely, holding that K.G. was not a “prevailing party” under
IDEA because K.G.’s “victory”—the conclusive
determination as to which agency would fund the
FAPE—was merely “technical or de minimis.” During the
course of litigation, K.G. had maintained that the State was
responsible for the FAPE rather than the School District, an
argument the district court accepted. The district court
therefore reasoned that, “given the inherently equitable nature
of deciding on attorney fee awards, it seems inappropriate for
the District to pay fees accumulated while K.G. was arguing
the District’s own position.” K.G. failed to file a timely
appeal.
B
With the assistance of a new attorney, K.G. sought relief
from the district court’s denial of fees under Federal Rule of
Civil Procedure 60(b) in February 2014. K.G. argued that the

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original attorney had “experienced several traumas, including
the death of her mother and father-in-law as well as her own
life-threatening condition, which triggered an unusually
severe bout of depression and anxiety.” According to K.G.,
the denial of substantial attorneys’ fees was the final blow,
deepening the attorney’s depression and “feelings of
hopelessness,” rendering her “too incapacitated to file a
timely appeal of the Fee Order.” The district court found
K.G.’s arguments persuasive and granted relief from
judgment on May 20, 2014. After receiving such relief, K.G.
again moved for attorneys’ fees. This time, K.G. sought a
total of $282,038.25, representing $221,971.35 for work
performed by the original attorney and $60,066.90 for work
performed by the new attorney.
The district court went on to grant in part K.G.’s renewed
motion for attorney’s fees, mandating that the School District
pay $174,803.65 in fees and costs: the court awarded
$126,657.25 for work performed by K.G.’s original attorney
and $48,146.40 for work performed by K.G.’s new attorney.
The School District timely appeals the district court’s order.1
II
The School District contends that the district court erred
in granting K.G. relief from its original judgment denying
attorneys’ fees. We review a district court’s grant of relief
under Federal Rule of Civil Procedure 60(b) for abuse of

1

K.G. filed a cross-appeal, No. 14-56524, challenging the district
court’s decision to reduce appellate fees sought by the original attorney by
more than 50%. Such appeal has since been dismissed by stipulation of the
parties.

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discretion. Cal. Dep’t of Soc. Servs. v. Leavitt, 523 F.3d 1025,
1031 (9th Cir. 2008).
A
The School District first argues that the district court did
not apply the correct legal rule in evaluating whether to grant
relief. Rule 60(b)(1) provides that a district court “may
relieve a party . . . from a final judgment” in cases of
“mistake, inadvertence, surprise, or excusable neglect.” To
determine whether a party’s failure to meet a deadline
constitutes “excusable neglect” under Rule 60(b)(1), a court
“must apply a four-factor equitable test, examining: (1) the
danger of prejudice to the opposing party; (2) the length of
the delay and its potential impact on the proceedings; (3) the
reason for the delay; and (4) whether the movant acted in
good faith.” Ahanchian v. Xenon Pictures, Inc., 624 F.3d
1253, 1261 (9th Cir. 2010).
The district court began its analysis by rejecting the
District’s contention that it would be prejudiced by a grant of
relief. The District argued that it had fixed its budget under
the assumption that an order for attorneys’ fees was off the
table and had relied on the district court’s denial of fees in
negotiating settlements in other matters. The district court
found both claims unpersuasive. As to the remaining relevant
factors, the district court determined that K.G.’s delay in
pursuing Rule 60(b) relief was understandable in light of the
original attorney’s poor mental and physical health. The
district court thus “identified and applied the correct legal
rule,”United States. v. Hinkson, 585 F.3d 1247, 1263 (9th Cir.
2009), and applied it to the facts at hand, weighing each
element before arriving at its decision to grant relief.

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B

The School District counters that even if the district court
applied the correct legal rule, the court’s factual findings
were flawed—specifically, that the district court “gave undue
weight to the Declaration of Dr. Lorna Swartz” and other
evidence outlining the attorney’s psychological difficulties.
It cites evidence in the record demonstrating that K.G.’s
original attorney continued to practice law during the period
when Swartz asserted that she was incapable of doing so. The
School District notes that the attorney communicated with
opposing counsel and, when she stated that she did not
oppose a proposed judgment sent to her by the State,
explained via email that she had “been out of the office in
marathon [individual education program team] meetings.”
Such facts, according to the School District, undermine
K.G.’s claim that the original attorney was “incapacitated.”
The district court noted such criticisms but nevertheless
found Dr. Swartz’s declaration persuasive:
While the Court acknowledges that this
contemporaneous evidence displays some
ability to continue her practice, the Court still
concludes that Swartz’s evidence and [the
attorney’s] own declaration confirm that her
depression, and in particular her feelings of
hopelessness in regard[] to the fee motion,
were so severe that her neglect in failing to
appeal was excusable.
Although one might reasonably disagree as to whether the
attorney was truly incapable of performing her job, the
district court’s decision to grant relief was not “illogical,

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implausible, or without support in inferences that may be
drawn from the facts in the record.” Hinkson, 585 F.3d at
1263.
III
The School District next argues that the district court
abused its discretion in granting K.G.’s motion for attorney’s
fees. IDEA provides that “the court, in its discretion, may
award reasonable attorneys’ fees as part of the costs . . . to a
prevailing party who is the parent of a child with a disability.”
20 U.S.C. § 1415(i)(3)(B)(i)(I). Thus, in reviewing the district
court’s fee award, we must confirm that (1) K.G. was in fact
a “prevailing party” and (2) the fees were reasonable. Aguirre
v. L.A. Unified Sch. Dist., 461 F.3d 1114, 1117 (9th Cir.
2006).
A
Under the Supreme Court’s “‘generous formulation’ of
the term, ‘plaintiffs may be considered “prevailing parties”
for attorney’s fees purposes if they succeed on any significant
issue in litigation which achieves some of the benefit the
parties sought in bringing suit.’” Farrar v. Hobby, 506 U.S.
103, 109 (1992) (quoting Hensley v. Eckerhart, 461 U.S. 424,
433 (1983)); see T.B. ex rel. Brenneise v. San Diego Unified
Sch. Dist., 806 F.3d 451, 483 (9th Cir. 2015) (applying the
Farrar definition of “prevailing party” to IDEA attorneys’
fees provision). “The touchstone of the prevailing party
inquiry must be the material alteration of the legal
relationship of the parties in a manner which Congress sought
to promote in the fee statute.” Tex. State Teachers Ass’n v.
Garland Indep. Sch. Dist., 489 U.S. 782, 792–93 (1989).

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In initiating the IDEA action in California’s Office of
Administrative Hearings, K.G. requested that “the ALJ deem
one of the [three agencies] responsible to provide him
FAPE.” K.G.’s prayer was answered in full when the ALJ
designated the School District as the responsible agency. The
district court similarly granted K.G.’s requested relief,
originally by designating the State as the responsible agency,
then by ordering the District to pay the bill following our
reversal. See Irvine Unified Sch. Dist, 506 F. App’x at 550.
K.G. thus achieved the “benefit [he] sought in bringing the
suit.” Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d
1489, 1498 (9th Cir. 1994). By receiving relief on the merits,
K.G. “met that minimum condition for prevailing party
status.” Farrar, 506 U.S. at 116 (O’Connor, J., concurring)
(“One dollar is not exactly a bonanza, but it constitutes relief
on the merits.”).
The School District nevertheless suggests that K.G. could
not have benefitted from the litigation because K.G.
graduated with a high school diploma months before the
district court decided the case. It cites Farrar v. Hobby,
506 U.S. 103 (1992), which in turn relies heavily on Rhodes
v. Stewart, 488 U.S. 1 (1988) (per curiam). In Rhodes, two
inmates sued prison officials after they were denied the right
to subscribe to a magazine. Though the prisoners successfully
won a declaratory judgment granting them the right to
subscribe to the magazine, the Supreme Court held that they
were not “prevailing parties” for purposes of assigning
attorneys’ fees. Rhodes, 488 U.S. at 2. The Court reasoned
that “a modification of prison policies . . . could not in any
way have benefited [sic] either plaintiff, one of whom was
dead and the other released before the District Court entered
its order.” Id. at 4.The prisoners could not be considered
“prevailing parties” for purposes of assigning statutory

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attorneys’ fees because the judgment could not alter the
behavior of the defendant towards them. Just like the
prisoners in Rhodes, the District argues that K.G. received no
real benefit from the district court’s order because he was no
longer a student when judgement was entered.
In elucidating the contours of its “prevailing party”
definition, however, the Supreme Court in Farrar explained
that the inmates in Rhodes could not be said to have
“prevailed” when their litigation culminated merely in a
declaratory judgment: “Whatever ‘modification of prison
policies’ the declaratory judgment might have effected ‘could
not in any way have benefitted either plaintiff, one of whom
was dead and the other released.’” Farrar, 506 U.S. at 110
(quoting Rhodes, 488 U.S. at 4). A party receives a
meaningful benefit “if, and only if, [the judgment] affects the
behavior of” the opposing party towards it. Rhodes, 488 U.S.
at 4. Because the plaintiffs were no longer in prison custody,
they could not benefit from the particular relief they had won.
The posture of this case differs significantly from that of
Rhodes. Unlike the prisoners in Rhodes, K.G. secured a
judicially enforceable judgment—the ALJ’s decision—when
it still mattered. See T.B. ex rel. Brenneise, 806 F.3d at 483
(“It is true that the educational relationship between T.B. and
the district ended in 2008 when the Brenneises left San
Diego. But they had still earned relief before they left in the
form of an enforceable judgment.”). The administrative
record demonstrates that for a brief period at least some threat
of discharge from school hung over K.G.’s head as a result of
the funding dispute. A ruling from an ALJ definitively
holding one agency responsible was the most effective means
of eliminating such risk. K.G. secured this initial judgment on
November 30, 2009, well before high school graduation

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ceremonies occurred in April of the following year. At that
point, K.G.’s original counsel had billed 60.6 hours of her
time to this case.
Litigation could have ceased with the decision of the ALJ.
Instead, it was the School District that kept the meter running
when it filed a complaint in district court. One could not
reasonably expect K.G., who was still enrolled in school
when the District named the student as a defendant in federal
court, to refrain from expending resources as the case
progressed. And it would make little sense to render a party
wholly ineligible for an award of fees incurred in defending
its victory, especially during the period when K.G. was still
enrolled.
B
A party whose “success on a legal claim can be
characterized as purely technical or de minimis” is not
entitled to fees. Parents of Student W., 31 F.3d at 1498. The
School District argues that K.G., even if properly termed a
“prevailing party,” obtained only limited success because it
was effectively a forgone conclusion that some agency would
fund K.G.’s education. In that sense, the District contends,
K.G.’s legal victory amounted to nothing more than the
designation as to which agency would be responsible for
providing the relief he had already received. And, as the
District notes, most of the litigation preceding this “victory”
occurred after the threat of discharge had been essentially
eliminated because of the County’s willingness to fund
K.G.’s FAPE temporarily.
Contrary to the District’s suggestion, however, K.G.’s
victory in this case cannot be dismissed as “de minimis.” Cf.

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Farrar 506 U.S. at 115 (“When a plaintiff recovers only
nominal damages . . . the only reasonable fee is usually no fee
at all.”). K.G. received the requested relief in full by forcing
an agency to take responsibility for funding the FAPE. Such
a victory was significant because it eliminated any residual
risk that K.G. could be discharged from school. K.G. argued
the case before the ALJ in order to guarantee that a California
government agency would pay the cost of the FAPE: the
ALJ’s decision notes that the sole issue of the administrative
proceedings was “Which educational agency is responsible
for providing [K.G.] with a [FAPE]?” Securing an
enforceable judgment holding one such agency responsible
for that FAPE, and later defending that victory in a civil
action in federal court, certainly constitutes success in a
“significant issue” of litigation. Parents of Student W, 31 F.3d
at 1498.2
K.G. qualified as a prevailing party under IDEA, and this
victory was not trivial or merely technical. An award of some
amount of fees incurred in achieving this end was therefore
justified.
C
That, however, does not end our inquiry. Even when a
party is entitled to some fees, the amount awarded must be
“reasonable.” 20 U.S.C. § 1415(i)(3)(B)(i). The School
District argues that the fee award was unreasonably high
given that much of the work performed on K.G.’s behalf
took place after graduation when K.G. was no longer

2

K.G.’s motion for us to take judicial notice of the district court’s
order awarding fees in A.S., as well as the docket for this case, filed
September 22, 2015, is GRANTED.

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vulnerable. Before graduating, K.G. had at least some skin in
the game. Although the threat of discharge may have been
remote given the County’s willingness to fund K.G.’s FAPE
temporarily, it remained reasonable for K.G. to continue to
pursue a more definitive resolution. This changed in April
2010, of course, when the risk of discharge evaporated as a
result of K.G.’s graduation. With a diploma in hand, K.G.
moved on to the next phase of life, having been provided with
all that IDEA guaranteed him. Yet the litigation to which
K.G. was a party continued.
While K.G.’s original attorney reported spending only
60.6 hours advocating on behalf of K.G. during state
administrative proceedings, she purportedly dedicated 134.5
hours litigating before the district court in support of holding
the State responsible for the FAPE rather than the District.
Counsel’s zealous advocacy on behalf of her long-graduated
client continued before this court—she reported spending
206.5 hours on an appeal that did not even commence until
roughly ten months after K.G.’s graduation.
Although the district court wisely reduced requested fees
in its final award, we question the need for any significant
advocacy on behalf of K.G. following the student’s high
school graduation. If the vagaries of litigation demanded
K.G.’s continued nominal presence as a party, counsel
certainly deserves to be compensated for advocacy
undertaken on K.G.’s behalf (and in pursuit of fees derived
from such work). But the need for such work may have been
minimal given what appears to be an utter lack of risk borne
by K.G. following graduation. Once a student receives all the
statutory benefits guaranteed by IDEA and no longer faces
even a nominal risk that those benefits might be taken away,
only exceptional circumstances can justify an ever-

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lengthening billing invoice. A finding that K.G. might end up
liable for bills already paid, or the possibility that his diploma
might be retroactively revoked, for instance, would certainly
explain the need for hundreds of hours of advocacy after his
graduation in 2010. But IDEA is not “a relief Act for
lawyers.” Farrar, 506 U.S. at 122 (O’Connor, J., concurring)
(quoting Riverside v. Rivera, 477 U.S. 561, 588 (1986)
(Rehnquist, J., dissenting)). Here, the burden is on K.G. to
demonstrate why his continued participation in this litigation
was necessary after he received everything to which he was
entitled.
It may well be that the district court took into account the
forgoing considerations in reducing the fees originally
requested, but it is not clear from the court’s order awarding
fees. On remand, the district court should review the work
undertaken following K.G.’s graduation to determine whether
it truly furthered K.G.’s interests. Further inquiry into why
K.G. did not seek to remove himself from the proceedings
following his graduation would be appropriate. Legal work
the district court identifies as having been unmoored from
genuine advocacy in furtherance of K.G.’s interests may not
be rewarded with fees. The district court must explain why,
specifically, any given percentage reductions are proper and
how such fees are appropriately allocated to work performed
before and after K.G.’s graduation. See Barnard v. Theobald,
721 F.3d 1069, 1077 (9th Cir. 2013) (“[W]hile the district
judge explained why he thought the award was excessive, he
failed to explain why he thought that a 40 percent reduction
would be an appropriate remedy.”).

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IV

We affirm the district court’s grant of relief from
judgment, but we vacate the fee award. On remand, the
district court shall determine whether the hours billed
following K.G.’s graduation were truly the result of advocacy
reasonably calculated to advance K.G.’s interests as opposed
to those of K.G.’s lawyers, and the district court shall adjust
the fee award accordingly with appropriate explanation.3
The parties shall bear their own costs incurred during this
appeal.
AFFIRMED in part, VACATED in part, and
REMANDED.

CALLAHAN, Circuit Judge, concurring and dissenting in
part:
I join all of Judge O’Scannlain’s opinion except for
Section III C. I can find no justification in either the IDEA or
case law for limiting an award of attorneys’ fees to a
prevailing party based on when the student graduated.
Rather, such a restriction fails to appreciate the IDEA and its
carefully crafted provisions for attorneys’ fees.

3
The Motion for Leave to File Brief of Amici Curiae California
School Boards Association Education Legal Alliance & National School
Boards Association in Support of Irvine Unified School District and
Reversal of the District Court’s Decision, filed March 25, 2015, is
GRANTED.

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The IDEA allows for attorneys’ fees, under certain
conditions, for either the plaintiffs or defendants.1 The IDEA
further contains provisions for insuring that the amount of

1

20 U.S.C. § 1415(i)(B) states:
(B) Award of attorneys’ fees
(i) In general
In any action or proceeding brought under this
section, the court, in its discretion, may award
reasonable attorneys’ fees as part of the costs–
(I) to a prevailing party who is the parent of a
child with a disability;
(II) to a prevailing party who is a State
educational agency or local educational
agency against the attorney of a parent who
files a complaint or subsequent cause of action
that is frivolous, unreasonable, or without
foundation, or against the attorney of a parent
who continued to litigate after the litigation
clearly became frivolous, unreasonable, or
without foundation; or
(III) to a prevailing State educational agency
or local educational agency against the
attorney of a parent, or against the parent, if
the parent’s complaint or subsequent cause of
action was presented for any improper
purpose, such as to harass, to cause
unnecessary delay, or to needlessly increase
the cost of litigation.

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attorneys’ fees is reasonable.2 Here, as the majority notes, it
2

20 U.S.C. § 1415(i)(F) and (G) provide:
(F) Reduction in amount of attorneys’ fees
Except as provided in subparagraph (G), whenever
the court finds that–
(I) the parent, or the parent’s attorney, during
the course of the action or proceeding,
unreasonably protracted the final resolution of
the controversy;
(ii) the amount of the attorneys’ fees otherwise
authorized to be awarded unreasonably
exceeds the hourly rate prevailing in the
community for similar services by attorneys of
reasonably comparable skill, reputation, and
experience;
(iii) the time spent and legal services furnished
were excessive considering the nature of the
action or proceeding; or
(iv) the attorney representing the parent did
not provide to the local educational agency the
appropriate information in the notice of the
complaint described in subsection (b)(7)(A),
the court shall reduce, accordingly, the amount of
the attorneys’ fees awarded under this section.
(G) Exception to reduction in amount of attorneys’ fees
The provisions of subparagraph (F) shall not apply
in any action or proceeding if the court finds that
the State or local educational agency unreasonably
protracted the final resolution of the action or
proceeding or there was a violation of this section.

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was the School District and the State that continued this
litigation well after K.G.’s graduation. Thus, the only
conceivable way that K.G.’s graduation might figure into the
award of attorneys’ fees is under § 1415(i)(F)(iii) as
supporting an assertion that “the time spent and legal services
furnished were excessive considering the nature of the action
or proceeding.”
But “graduation from high school does not necessarily
eliminate the possibility of receiving benefits under IDEA.”
McCormick v. Waukegan Sch. Dist. No. 60 , 374 F.3d 564,
568 n. 1 (7th Cir. 2004). Furthermore, K.G.’s graduation has
nothing to do with the reasonableness of his attorneys’ efforts
in this litigation. True, no one would take away his diploma.
But the fact that the County was willing to fund K.G.’s FAPE
temporarily did not necessarily preclude a court from
ordering otherwise.
In order to obtain the attorneys’ fees she had earned,
K.G.’s attorney had to stay in the litigation until the entry of
a final judgment because only then could she be sure that
K.G. was a prevailing party and could calculate her fees.
Indeed, in this very case, the district court ruled in October
2013—over three years after K.G. had graduated—that K.G.
was not a prevailing party, and thus was not entitled to an
award of attorneys’ fees. It took another year for K.G. to
change the district court’s mind and procure an order that he
was a prevailing party and was entitled to attorneys’ fees.
Thus, when K.G. graduated from high school is simply not
relevant to determining the reasonableness of the attorneys’
fees incurred in representing K.G. for over five years.
More importantly, the majority’s approach overlooks or
denies the importance of attorneys’ fees in IDEA cases. The

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purpose of K.G.’s suit under the IDEA was—as the majority
recognizes—to ensure that he received a FAPE. But this is
hardly the type of benefit that can be shared with an attorney.
Accordingly, the IDEA provides for awards of attorneys’ fees
where a child or parent prevails.3 Without such a provision
very few attorneys would take IDEA cases.
The cases cited by the majority for the proposition that the
IDEA is “not a relief Act for lawyers” are inapposite. The
comment was reiterated by Justice O’Connor in her
concurring opinion in Farrar v. Hobby, 506 U.S. 103, 122
(1992), but she was addressing attorneys’ fees under
42 U.S.C. § 1988, not fees under the IDEA. Justice
O’Connor was quoting Justice Rehnquist’s dissent in City of
Riverside v. Rivera, 477 U.S. 562, 588 (1986), which also
concerned attorneys’ fees under § 1988, not the IDEA.
There are critical differences between claims under
§ 1983 which may include damages, and claims under the
IDEA which for the most part, and certainly in this case,
concern primarily providing children with FAPEs. See Payne
v. Peninsula Sch. Dist., 653 F.3d 863, 873 (9th Cir. 2011) (en
banc) (noting that monetary damages are ordinarily not
available under the IDEA). Just months ago, the Supreme
Court in Fry v. Napolean Community Schools, 137 S. Ct. 743,
752–55 (2017), carefully set forth a number of differences
between claims under the IDEA and claims under other

3

See S. Rep. No. 99-112, at 13 (1985) (“It is the committee’s
intention that a parent or legal representative should be free to select and
be represented by the attorney of his/her choice.”).

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overlapping statutes.4 Opinions such as Fry disavow any
4

For example, the Supreme Court noted:
If a lawsuit charges [the denial of a FAPE], the plaintiff
cannot escape § 1415(l ) merely by bringing her suit
under a statute other than the IDEA—as when, for
example, the plaintiffs in Smith claimed that a school’s
failure to provide a FAPE also violated the
Rehabilitation Act. Rather, that plaintiff must first
submit her case to an IDEA hearing officer,
experienced in addressing exactly the issues she raises.
But if, in a suit brought under a different statute, the
remedy sought is not for the denial of a FAPE, then
exhaustion of the IDEA’s procedures is not required.

137 S. Ct. at 754 (footnote omitted). It further explained:
The IDEA, of course, protects only “children” (well,
really, adolescents too) and concerns only their
schooling. § 1412(a)(1)(A). And as earlier noted, the
statute’s goal is to provide each child with meaningful
access to education by offering individualized
instruction and related services appropriate to her
“unique needs.” § 1401(29); see Rowley, 458 U.S., at
192, 198, 102 S.Ct. 3034; supra, at 753 – 754. By
contrast, Title II of the ADA and § 504 of the
Rehabilitation Act cover people with disabilities of all
ages, and do so both inside and outside schools. And
those statutes aim to root out disability-based
discrimination, enabling each covered person
(sometimes by means of reasonable accommodations)
to participate equally to all others in public facilities
and federally funded programs. See supra, at 749 –
750. In short, the IDEA guarantees individually
tailored educational services, while Title II and § 504
promise non-discriminatory access to public
institutions.
Id. at 755–56.

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suggestion that the IDEA can be analogized to § 1983.
Finally, the majority’s questioning of “the need for any
significant advocacy on behalf of K.G. following the
student’s high school graduation,” Majority at 14, is at odds
with our standard of review of a district court’s award of
attorneys’ fees under the IDEA. We review an award of
attorneys’ fees for abuse of discretion. Shapiro ex rel.
Shapiro v. Paradise Valley Unified Sch. Dist. No. 69,
374 F.3d 857, 861 (9th Cir. 2004). The underlying factual
determinations are reviewed for clear error and the legal
analysis relevant to the fee determination is reviewed de
novo. Id; see also T.B. ex rel. Brenneise v. San Diego Unified
Sch. Dist., 806 F.3d 451, 474 (9th Cir. 2015). Here, when
K.G. graduated from high school has little, if any relevance,
to the factual determination of the reasonableness of the
attorneys’ fees incurred during this law suit that commenced
in 2010. Furthermore, the majority cites no authority for the
proposition that K.G.’s date of graduation is relevant, as a
matter of law, to the determination of the reasonableness of
the attorneys’ fees.
Requiring the district court to re-evaluate its award of
attorneys’ fees based on the date of K.G.’s graduation from
high school is contrary to the spirit of the IDEA and its
carefully crafted provisions for attorneys’ fees, improperly
analogizes the IDEA to § 1983, and is at odds with our
standard of review of attorneys’ fee awards. Accordingly, I
dissent from Section III C of the majority’s opinion, and
would affirm the district court on all issues.