Parent V.S., on Behalf of Student A.O. v. Los Gatos-Saratoga Joint Union High School District

484 F.3d 1230 Parent V.S., on behalf of Student A.O., Plaintiff-Appellant, v. LOS GATOS-SARATOGA JOINT UNION HIGH SCHOOL DISTRICT, Defendant-Appellee. No. 04-17480. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 14, 2006. Filed May 9, 2007. Valerie J. Mulhollen, San Leandro, CA, for the appellant. Gregory A. Wedner, Lozano Smith, Monterey, CA, for the appellee. Appeal from the United States District Court for the Northern District of California; Howard R. Lloyd, Magistrate Judge, Presiding. D.C. No. CV-04-03675-HRL. Before MARY M. SCHROEDER, Chief Circuit Judge, JEROME FARRIS and JOHNNIE B. RAWLINSON, Circuit Judges. Opinion by Judge RAWLINSON; Dissent by Judge FARRIS. RAWLINSON, Circuit Judge. 1 This case presents the issue of when one is a prevailing party under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. (2000). Because the hearing officer determined that student A.O. was deprived of a free and appropriate public education (FAPE), and that A.O. was eligible for special education, A.O. was a prevailing party entitled to an award of attorneys' fees. We reverse the district court's ruling to the contrary and…

Opinion by Judge RAWLINSON; Dissent by Judge FARRIS.

This case presents the issue of when one is a prevailing party under the Individuals with Disabilities Education Act (IDEA), 20 *1232 U.S.C. § 1400 et seq. (2000). Because the hearing officer determined that student A.O. was deprived of a free and appropriate public education (FAPE), and that A.O. was eligible for special education, A.O. was a prevailing party entitled to an award of attorneys’ fees. We reverse the district court’s ruling to the contrary and remand for an award of attorneys’ fees.

I. Background

When A.O. was a student in the Los Gatos-Saratoga Joint Union High School District, her mother filed a petition for a due process hearing pursuant to the IDEA and corresponding provisions of California law. After a due process proceeding, the hearing officer concluded that the school district had denied A.O. her legal right to a FAPE by failing to conduct a timely assessment to determine A.O.’s special education needs and by inappropriately finding A.O. ineligible for special education. However, because the school had started an assessment process during the course of the proceedings, the hearing officer limited his…

dissenting:

Neither the IEP requirement nor the reevaluation requirement apply in the present case, since the regulation and statute from which they arise are triggered only when it is determined that a child presently has a disability. The hearing officer’s decision does not support classifying A.O. as such.

The IEP requirement is found in 34 C.F.R. § 300.306 (c)(2) (formerly 34 C.F.R. § 300.535 (b)): “[i]f a determination is made that a child has a disability and needs special education and related services, an IEP must be developed for the child.” The hearing officer found “that [A.O.] was eligible for special education from January 24, 2004, through April 26, 2004,” (emphasis added), and elsewhere stated that he “makes no findings ... with regard to [A.O.]’s eligibility after April 26, 2004.” Since the decision was issued and dated June 1, 2004, there was no point at which Appellant could rely on it to establish that A.O. “has a disability” as required to enforce 34 C.F.R. § 300.306 (c)(2). The best Appellant could show is that during a specified but foregone period, A.O. had a disability.

The requirement that a school district reevaluate eligible children before effecting…