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S. L. v. Upland Unified School District

United States Court of Appeals, Ninth Circuit

April 2, 2014

S. L., by and through her Guardian Ad Litem, Rita Loof, Plaintiff-Appellant,
v.
UPLAND UNIFIED SCHOOL DISTRICT; WEST END SELPA, Local Education Agencies, Defendants-Appellees

Argued and Submitted, Pasadena, California: December 5, 2013.

Page 1156

Appeal from the United States District Court for the Central District of California. D.C. No. 2:11-cv-04187-GAF-PJW. D.C. No. 2:11-cv-04187-GAF-PJW. Gary A. Feess, District Judge, Presiding.

Appeal No. 12-55715 is AFFIRMED IN PART and REVERSED IN PART. Appeal No. 12-56796 is DISMISSED. Each party shall bear its costs on appeal.

Tania L. Whiteleather (argued), Law Offices of Tania L. Whiteleather, Lakewood, California, for Plaintiff-Appellant.

Jack Byron Clarke, Jr., Kira L. Klatchko (argued), Best Best & Krieger LLP, Indian Wells, California, for Defendants-Appellees.

Before: Harry Pregerson, Marsha S. Berzon, and Morgan Christen, Circuit Judges. Opinion by Judge Christen.

OPINION

Page 1157

CHRISTEN, Circuit Judge:

In this consolidated appeal, S.L., a minor, by and through her guardian, challenges the district court's orders upholding the California Office of Administrative Hearing's (" OAH" ) partial denial of reimbursement for educational costs pursuant to the Individuals with Disabilities Education Act (" IDEA" ) (No. 12-55715), and granting in part and denying in part a related motion for attorney's fees (No. 12-56796). We have jurisdiction under 28 U.S.C. § 1291 in appeal No. 12-55715 and reverse the district court's decision, in part. We dismiss appeal No. 12-56796 for lack of jurisdiction.

I. BACKGROUND

A. Facts

S.L., who has an intellectual disability under federal law, began attending kindergarten in Upland Unified School District, a member of the West End Special Education Local Plan Area (collectively " the districts" ), during the 2002/2003 school year. S.L.'s parents were unhappy with the districts' educational program, withdrew S.L., and placed her in a private, parochial school called Our Lady of Assumption (" OLA" ). S.L. remained at OLA at least through the end of fifth grade. While S.L. was at OLA, S.L.'s mother hired two private, one-on-one aides to assist S.L. with her schoolwork. In June 2005, S.L. filed a due process hearing request against Upland, alleging her right to a free appropriate public education (" FAPE" ) was violated between 2002 and 2006.

On June 21, 2007, S.L.'s mother and Upland settled the due process dispute for the years 2002 to 2006. As part of the agreement, Upland agreed to reimburse S.L. $18,000 for educational expenses, provide

Page 1158

S.L. with an intensive reading program through a private company, and provide speech and language services. S.L.'s mother agreed to make S.L. available for assessments at reasonable times and to provide releases so the districts could gather information about S.L. and develop a FAPE offer for the 2007/2008 school year.

Meanwhile, in April 2007, the districts sent a proposed assessment plan to S.L.'s parents to prepare for S.L.'s 2007 triennial Individual Education Plan (" IEP" )[1] and to meet the requirement that a special education student be assessed at least every three years. The districts estimated that they would need approximately twelve to fifteen hours with S.L. to complete the assessment. On June 13, 2007, S.L.'s mother marked the box " I prefer to meet and discuss the assessment plan before ...


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