Edu-Hi

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SAM K., by and through his parents; No. 13-15486

DIANE C.; GEORGE K.,

Plaintiffs-Appellees, D.C. No. 1:12-cv-00355- v. ACK-BMK

STATE OF HAWAII DEPARTMENT OF

EDUCATION,

Defendant-Appellant.

SAM K., by and through his parents; No. 13-16452

DIANE C.; GEORGE K.,

Plaintiffs-Appellants, D.C. No. 1:12-cv-00355- v. ACK-BMK

STATE OF HAWAII DEPARTMENT OF

EDUCATION, OPINION

Defendant-Appellee.

Appeals from the United States District Court for the District of Hawaii Alan C. Kay, Senior District Judge, Presiding

Argued and Submitted October 9, 2014—Honolulu, Hawaii SAM K. V. STATE OF HAWAII DEP’T OF EDUC.

Filed June 5, 2015

Before: A. Wallace Tashima, Johnnie B. Rawlinson, and Richard R. Clifton, Circuit Judges.

Opinion by Judge Clifton; Partial Concurrence and Partial Dissent by Judge Rawlinson

SUMMARY*

Individuals with Disabilities Education Act

The panel affirmed the district court’s judgment in an action brought by a disabled student under the Individuals with Disabilities Education Act.

The panel…

concurring in part and dissenting in part:

I agree with the majority that the district court acted within its discretion in determining a reasonable hourly rate for the calculation of attorney’s fees in this case. However, I respectfully disagree that the hotly disputed placement at Love-land Academy somehow morphed from a unilateral placement to a bilateral placement due to implied consent on the part of the State Department of Education.

Initially, it is important to note that the State Hearings Officer determined that the private placement for the 2010-2011 school year was a unilateral placement. Thus, the adjudicator in the case with the closest nexus to the case did not give “implied consent” to the placement. Relying on K.D. v. Department of Education, 665 F.3d 1110 (9th Cir.2011), the same case cited by the majority, the State Hearings Officer determined that under the settlement agreement between the State Department of Education and Sam K.’s parents, the State agreed to pay tuition at Loveland only through the end of the 2009-2010 school year. That determination is undisputed. As the hearings officer also noted, the settlement agreement contained no provision regarding…

Sam K. is a disabled student. An administrative hearings officer for the State of Hawaii concluded that the State Department of Education (“DOE”) failed to propose a school placement for Sam for the 2010-11 school year that was appropriate and satisfied the requirements of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. The hearings officer further found that the private school program in which Sam was enrolled by his parents was appropriate.

In other circumstances,' this would have entitled the parents to reimbursement by the DOE for the costs of attending the private program, but the hearings officer also concluded that the parents’ request for reimbursement was untimely under Haw.Rev.Stat. § 302A-443(a). That statute sets two different limitations periods. Parents ordinarily have two years to initiate the process by requesting a hearing, but the statute requires a filing “within one hundred and eighty calendar days of a unilateral special education placement” if the request includes “reimbursement of the costs of the placement.” Id. The hearings officer found that the private placement by the parents was “unilateral” and that their…