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Sam K. v. State of Hawaii Department of Education

United States Court of Appeals, Ninth Circuit

June 5, 2015

SAM K., by and through his parents; DIANE C.; GEORGE K., Plaintiffs-Appellees,
v.
STATE OF HAWAII DEPARTMENT OF EDUCATION, Defendant-Appellant. SAM K., by and through his parents; DIANE C.; GEORGE K., Plaintiffs-Appellants,
v.
STATE OF HAWAII DEPARTMENT OF EDUCATION, Defendant-Appellee

Argued and Submitted, Honolulu, Hawaii October 9, 2014.

Page 1034

Appeals from the United States District Court for the District of Hawaii. D.C. No. 1:12-cv-00355-ACK-BMK, D.C. No. 1:12-cv-00355-ACK-BMK. Alan C. Kay, Senior District Judge, Presiding.

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 affirmed the district court's conclusion that the student's parents were entitled to reimbursement for the costs of a private school program because this placement was bilateral, not unilateral, and so the parents' request for reimbursement was timely under the two-year statute of limitations set forth in Haw. Rev. Stat. § 302A-443(a). Distinguishing K.D. v. Dep't of Educ., 665 F.3d 1110 (9th Cir. 2011), the panel held that the placement was bilateral because the State of Hawaii Department of Education tacitly consented to the student's placement by failing to propose an alternative.

Affirming the district court's award of attorneys' fees to the student and his parents, the panel held that the district court did not abuse its discretion in reducing the hourly rate requested by counsel.

Concurring in part and dissenting in part, Judge Rawlinson agreed with the majority that the district court acted within its discretion in determining a reasonable hourly rate for the calculation of attorneys' fees. She disagreed with the majority's holding that the private school placement became bilateral due to implied consent on the part of the Department of Education.

Jocelyn H. Chong, Michelle Puu (argued), and Holly T. Shikada, Deputy Attorneys General, Honolulu, Hawaii, for Defendant-Appellant/Defendant-Appellee.

Carl M. Varady, Honolulu, Hawaii, for Plaintiffs-Appellees/Plaintiff-Appellee.

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.

OPINION

Page 1035

 Richard R. Clifton, Circuit Judge:

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 request was not filed within 180 days. Reimbursement was denied on that ground. The district court disagreed. It held that the placement was " bilateral," not " unilateral," so that the parents' request was not untimely, and concluded that the parents were entitled to reimbursement. We affirm the judgment of the district court.

The district court also awarded attorney's fees to Sam and his parents. Contending that the hourly rate used in calculating the award was too low, Sam cross-appeals the amount of the attorney's fees. We affirm that order as well.

I. Background

Sam K. suffers from anxiety, depression, language issues, speech issues, social issues,

Page 1036

and central auditory processing disorder. In 2003, his parents (" Parents" ) removed Sam from public school and placed him in Loveland Academy, a private institution in Honolulu, where he was enrolled every year thereafter. The current litigation concerns Sam's placement for the 2010-11 school year.

Previous litigation between the Parents and DOE regarding the three years immediately preceding the 2010-11 school year was resolved by a settlement in May 2010 under which (1) DOE agreed to pay for Sam's tuition at Loveland for school years 2007-08 through 2009-10, (2) current information from Loveland about Sam would be provided to DOE, and (3) the Parents would participate in an " IEP Reevaluation meeting" by the end of June 2010.[1] The Parents and DOE representatives met to discuss Sam's Individual Education Plan (" IEP" ) for the following year several times during the summer and into the fall of 2010. In the meantime, the 2010-11 school year began, and Sam remained at Loveland.

The meetings extended into January 2011. No different placement was ever agreed upon. DOE did not present a specific public school placement until January 14, 2011, when DOE produced a signed IEP that provided that Sam would be placed in a public school program at the Windward Intensive Learning Center (" ILC" ). DOE followed up on that proposal by sending to the Parents a document entitled Prior Written Notice of Department Action, giving formal notice of the ILC placement, dated January 27, 2011. Sam never joined the ILC program, remaining at Loveland instead.

The Parents disputed the effectiveness of the IEP and the finality of the ILC placement. The DOE stated in letters dated March 9, 2011, and April 20, 2011, that the IEP issued on January 14, 2011, was the final IEP. The Parents ...


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