T.B. v. San Diego Unified School District , 795 F.3d 1067 ( 2015 )


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  •                  FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    T.B., a minor, by and through his        No. 12-56060
    Guardian ad Litem; ALLISON
    BRENNEISE; ROBERT BRENNEISE,                D.C. No.
    Plaintiffs-Appellants,   3:08-cv-00028-
    MMA-WMC
    STEVEN WYNER;
    WYNER AND TIFFANY,
    Appellants,      OPINION
    v.
    SAN DIEGO UNIFIED
    SCHOOL DISTRICT,
    Defendant-Appellee.
    Appeal from the United States District Court
    for the Southern District of California
    Michael M. Anello, District Judge, Presiding
    Argued and Submitted
    July 9, 2014—Pasadena, California
    Filed July 31, 2015
    2              T.B. V. SAN DIEGO UNIFIED SCH. DIST.
    Before: Raymond C. Fisher and Richard R. Clifton,
    Circuit Judges, and Lee H. Rosenthal, District Judge.*
    Opinion by Judge Clifton
    SUMMARY**
    Individuals with Disabilities Education Act / Americans
    with Disabilities Act / Rehabilitation Act
    The panel affirmed in part and reversed in part the district
    court’s summary judgment on claims under the Americans
    with Disabilities Act and Section 504 of the Rehabilitation
    Act and vacated the district court’s determination of
    attorneys’ fees and costs under the Individuals with
    Disabilities Education Act in an action brought against a
    school district by a disabled student and his parents.
    The district court upheld an administrative law judge’s
    ruling that the school district denied the student a free
    appropriate public education in the least restrictive
    environment, as he was guaranteed under the IDEA, by
    failing to provide him with a legally adequate way to receive
    gastrostomy-tube feedings.
    *
    The Honorable Lee H. Rosenthal, United States District Judge for the
    Southern District of Texas, sitting by designation.
    **
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    T.B. V. SAN DIEGO UNIFIED SCH. DIST.              3
    The plaintiffs argued that the school district was
    automatically deliberately indifferent to the student’s rights,
    and therefore also liable for damages under Section 504 and
    the ADA, by failing to abide by California law on g-tube
    feedings. The panel agreed that California law established
    federally enforceable rights governing g-tube feeding in
    schools, but it held that the plaintiffs also must show
    intentional discrimination. The panel affirmed the district
    court’s summary judgment in favor of the school district on
    Count IV, which concerned a 2006-07 individualized
    education program. The panel reversed on Count V, which
    concerned a 2007-08 IEP, and remanded for further
    proceedings, because there was a genuine dispute of material
    fact as to whether the school district was deliberately
    indifferent to the student’s right to be assisted by a person
    qualified under California law.
    The panel affirmed the district court’s summary
    judgment in favor of the school district on a claim that the
    district retaliated against the student and his mother, in
    violation of the ADA, for her “aggressive advocacy” on his
    behalf. Following other circuits, the panel applied the but-for
    causation test of Univ. of Tex. Sw. Med. Ctr.v. Nassar, 
    133 S. Ct. 2517
    (2013), and concluded that the plaintiffs failed to
    make out a prima facie case of retaliation.
    Vacating the district court’s award of substantially less
    than the amount of attorneys’ fees requested by the plaintiffs
    under the IDEA, the panel concluded that the student’s
    parents were substantially justified in rejecting a settlement
    offer because the relief obtained through the ALJ’s decision
    was more favorable to the parents than the offer of settlement.
    In addition, the district court abused its discretion in
    concluding that the fee claim was unreasonable. For these
    4         T.B. V. SAN DIEGO UNIFIED SCH. DIST.
    and other reasons, the panel vacated the district court’s
    determination of fees and costs and remanded for
    reconsideration.
    COUNSEL
    Steven Wyner, Wyner Law Group, PC, Torrance, California;
    Marcy J.K. Tiffany (argued), Tiffany Law Group, PC,
    Torrance, California, for Plaintiffs-Appellants.
    Amy R. Levine, Sarah L.W. Sutherland (argued), William B.
    Tunick, Dannis Woliver Kelley, San Francisco, California,
    for Defendant-Appellee.
    Maureen R. Graves, Daniel R. Shaw, Irvine, California, as
    and for Amicus Curiae California Association for Parent-
    Child Advocacy.
    Harvey Saferstein, Nada I. Shamonki, Abigail V. O’Brient,
    Mintz Levin Cohn Ferris Glovsky & Popeo, P.C., Los
    Angeles, California; Paula D. Pearlman, Los Angeles,
    California, for Amici Curiae Disability Rights Legal Center
    and Learning Rights Law Center.
    Jonathan P. Read, Tiffany M. Santos, Susan B. Winkelman,
    Fagen Friedman & Fulfrost, LLP, San Marcos, California, for
    Amicus Curiae California School Boards Association’s
    Educational Legal Alliance.
    Donald Davis, Damara Moore, San Francisco, California, as
    and for Amicus Curiae San Francisco Unified School District.
    T.B. V. SAN DIEGO UNIFIED SCH. DIST.              5
    OPINION
    CLIFTON, Circuit Judge:
    This is the latest round in an unfortunate dispute that has
    endured for almost a decade regarding the education of a
    child with disabilities. The child is now 21 years old and has
    since graduated from high school, but the litigation has
    continued. T.B. and his parents, the Brenneises, used to be
    residents of the San Diego Unified School District. T.B. has
    learning and motor disabilities and feeds himself in part
    through a gastrostomy tube (“g-tube”). In 2006, the
    Brenneises and the district began working on an
    individualized education plan (“IEP”) that would allow T.B.,
    who was then being educated outside the public school
    system, to reenter school for the 2006–07 academic year. The
    two sides could not agree, however, and both filed for a due
    process hearing under the Individuals with Disabilities in
    Education Act (“IDEA”).
    The administrative law judge (“ALJ”) who presided over
    that hearing ruled in favor of the school district on most
    issues but held that the district’s proposed IEP was
    inadequate because it did not provide a legally adequate way
    for T.B. to receive g-tube feedings. That ruling was upheld
    on appeal to the district court. Neither side has further
    pursued that subject on appeal to this court.
    The Brenneises also brought in district court a claim that
    the school district had violated T.B.’s civil rights under the
    Americans with Disabilities Act (“ADA”), 42 U.S.C.
    § 12131, and Section 504 of the Rehabilitation Act, 29 U.S.C.
    § 794. The district court granted summary judgment to the
    school district on those civil rights claims. We affirm that
    6          T.B. V. SAN DIEGO UNIFIED SCH. DIST.
    summary judgment as to two counts but reverse it as to a third
    count. We remand that claim for further proceedings.
    In addition, the Brenneises and their attorneys sought
    attorneys’ fees and costs for their partial victory before the
    ALJ. The district court awarded them approximately $50,000
    for attorneys’ fees, substantially less than the $1.4 million
    that was requested. The principal basis for denying most of
    the fee request was a determination by the district court that
    the Brenneises had unreasonably rejected a settlement offer
    made by the school district shortly before the start of the due
    process hearing. The IDEA provides that attorneys’ fees
    should not be awarded if the parents do not accept a timely
    settlement offer, “the relief finally obtained by the parents is
    not more favorable to the parents than the offer of
    settlement,” and the parents’ rejection of the settlement offer
    was not “substantially justified.”                   20 U.S.C.
    § 1415(i)(3)(D)(i)(III), (E). We conclude, contrary to the
    district court, that the relief obtained through the ALJ’s
    decision was more favorable to the parents than the offer of
    settlement and that the parents were substantially justified in
    rejecting the offer, so the district court’s denial of fees on that
    basis must be set aside. For that and other reasons, we vacate
    the district court’s determination of fees and costs and
    remand that matter for further consideration as well.
    I. Background
    T.B. was born in January 1994. He suffers from
    phenylketonuria, which prevents him from processing
    phenylalanine, an amino acid. Infants are screened for
    phenylketonuria at birth, but because of a lab error, T.B. was
    not correctly diagnosed until he was three. As a result, he
    suffered brain damage and physical problems. Children with
    T.B. V. SAN DIEGO UNIFIED SCH. DIST.                       7
    phenylketonuria are given a phenylalanine-free drink based
    on formula; in 1997, T.B. was fitted with a g-tube through
    which the drink could be poured directly into his stomach.
    A. T.B.’s home education
    In 2003, a dispute arose between T.B.’s mother, Alison
    Brenneise, and the school district about his education, and she
    withdrew him from school. From 2003 to 2006, T.B. was
    educated by external service providers, funded by the school
    district, and by Mrs. Brenneise herself, who was not paid.
    This program sometimes took place in the Brenneises’ garage
    and was informally called “garage school,” a term which we
    will also use. Under the terms of a settlement agreement, the
    school district funded 40 hours of services per week for T.B.
    That settlement did not prevent further disputes. In May
    2006, the Brenneises filed for a due process hearing,
    contending that the district had failed to provide T.B. with a
    free appropriate public education (“FAPE”) for the years
    2003–06, as required under the IDEA.1 See generally Bd. of
    Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty.
    v. Rowley, 
    458 U.S. 176
    (1982) (discussing the requirements
    1
    There are two mechanisms for resolving special education disputes.
    The first is to seek a due process hearing before a hearing officer. The
    hearing officer’s decision may be appealed, directly or indirectly, to a
    federal district court. See 20 U.S.C. § 1415; Porter v. Bd. of Trs. of
    Manhattan Beach Unified Sch. Dist., 
    307 F.3d 1064
    , 1066–67 (9th Cir.
    2002). Second, either side may use a state’s complaint resolution
    procedure. Each state is required, under regulations promulgated pursuant
    to the IDEA, to provide a formal means for resolving disputes outside of
    a due process hearing. See 34 C.F.R. § 300.151; 
    Porter, 307 F.3d at 1066
    –67. Filing a compliance complaint is the way to activate
    California’s complaint resolution procedure.
    8         T.B. V. SAN DIEGO UNIFIED SCH. DIST.
    of a FAPE under the Education for All Handicapped Children
    Act of 1975, Pub. L. No. 94–142, 89 Stat. 773, the
    predecessor of the IDEA). This case eventually settled.
    Under the IDEA, the school district was required to
    evaluate T.B.’s educational needs at least once every three
    years. 20 U.S.C. § 1414(a)(2)(B)(ii). In July 2006, the
    district produced an assessment report, and a few days later
    the parties agreed on an “extended school year” IEP that
    would cover the summer period. This IEP placed T.B. in
    Coronado Academy, a public school outside the district, for
    eleven half-days, which was all that remained of the school
    year. At that point, the IEP provided that T.B. would return
    to garage school. Garage school also represented the “stay-
    put” schooling arrangement—how T.B. would be educated if
    the parties were unable to agree on an IEP for the 2006–07
    school year. See 20 U.S.C. § 1415(j); Honig v. Doe, 
    484 U.S. 305
    , 312 (1988). After T.B. had attended Coronado for only
    five days, however, Coronado asked him to leave, so T.B.
    returned to garage school early.
    B. The compliance complaint and due process filings
    Mrs. Brenneise then filed a compliance complaint against
    the school district. The California Department of Education
    upheld the complaint and ordered compensatory education as
    a remedy. The amount of fees due to T.B.’s lawyers in
    connection with this compliance complaint is one of the
    issues in this appeal.
    Immediately after T.B. returned to garage school, the
    school district attempted to create a new IEP for the 2006–07
    school year. At the end of August, the district provided a new
    draft IEP and a transition plan to facilitate his return to
    T.B. V. SAN DIEGO UNIFIED SCH. DIST.              9
    school. The district proposed that T.B. would be placed at
    Sierra Academy, which served only disabled students. Mrs.
    Brenneise did not want T.B. to attend Sierra, in part because
    it did not have a nurse’s office where he could lie down after
    g-tube feedings. She did not agree to the August 2006 IEP
    and objected to “all areas” of the assessments on which the
    IEP was based.
    Between September and December, the district worked on
    revising the IEP. Because Mrs. Brenneise disagreed with
    assessments of T.B. that the district had made in June and
    July, she requested independent educational evaluations. The
    district denied some of those requests and, in November
    2006, filed for a due process hearing to defend its
    assessments.
    In December 2006, the district prepared a new IEP under
    which T.B. would be placed at Wangenheim Middle School.
    In accordance with Mrs. Brenneise’s request, this was a
    comprehensive school within and operated by the school
    district. Unlike Sierra, Wangenheim had a nurse’s office.
    The December IEP was otherwise largely similar to the
    August IEP. Mrs. Brenneise did not consent to the December
    IEP. In December 2006, the school district again filed for a
    due process hearing, arguing that the IEP “offer[ed] Student
    a FAPE designed to meet his unique needs and allow him to
    benefit from his education.” In January 2007, the Brenneises
    also filed for a due process hearing, contending that the
    school district had denied T.B. a FAPE. This case was
    consolidated with the previously pending cases.
    10         T.B. V. SAN DIEGO UNIFIED SCH. DIST.
    C. Settlement proposals
    From February to May 2007, the parties engaged in
    settlement discussions. The Brenneises were represented by
    Steven Wyner and his law firm, Wyner and Tiffany.
    Although some of the discussions were oral and the parties
    have not stipulated as to their content, it is undisputed that the
    two sides discussed the possibility of an arrangement under
    which the school district might pay the Brenneises an annual
    sum in return for the Brenneises’ commitment to take over
    responsibility for T.B.’s education from the district and to
    have T.B. educated outside the public school system.
    According to the district, the Brenneises requested
    $200,000 per year to have T.B. educated privately. The
    Brenneises and Wyner have not denied this. In March 2007,
    the school district offered to pay the Brenneises $75,000 per
    year to have T.B. educated privately until he reached the age
    of 18, in the 2011–12 school year. According to the district,
    this was considerably more than the $30,000 to $55,000 that
    it would cost to educate T.B. in private school, but far less
    than the cost of the existing garage school program, which
    was approximately $157,000. The district also stated that it
    was rejecting the Brenneises’ demand of $200,000 per year
    to educate T.B. privately. The Brenneises rejected the
    $75,000 offer.
    In April 2007, the school district offered the Brenneises
    a one-time payment of $50,000 to settle all of the due process
    claims T.B. had brought relating to the August and December
    IEPs. The school district stated that the prior $75,000 offer
    was “supersede[d].” The record does not contain any
    evidence of a response to this offer.
    T.B. V. SAN DIEGO UNIFIED SCH. DIST.              11
    In May 2007, the district sent Wyner a new long-term
    settlement proposal. This offer, described in more detail
    below, was for $150,000 per year. It permitted the
    Brenneises to reenroll T.B. in public school beginning with
    the 2009–10 school year. The agreement was to be effective
    immediately; the Brenneises would receive a pro-rated share
    of the $150,000 for the 2006–07 school year. If T.B. was
    subsequently enrolled in public school, and the Brenneises
    were unhappy with that program, the stay-put arrangement
    while the dispute was resolved would be the public school
    program.
    Wyner, the attorney for the Brenneises, rejected the offer
    later the same day on the ground that it was “still far short of
    the demand that I communicated to you.” As a counteroffer,
    he requested an annual payment of $250,000, a larger figure
    than previously sought. The counteroffer provided that T.B.
    would remain in garage school for the rest of the 2006–07
    school year, be educated privately for the 2007–08 school
    year, and have the right to reenroll in public school any year
    thereafter. The stay-put arrangement under the counteroffer
    was garage school. The district did not accept that offer; the
    record does not contain any response to the district’s
    rejection.
    D. The due process hearing and decision
    The case proceeded to the due process hearing, which
    began on May 14, 2007. The administrative law judge
    addressed eighteen issues, two raised by the district in its
    filings and sixteen raised by the Brenneises. There was
    overlap in some of the issues raised by the parties.
    12         T.B. V. SAN DIEGO UNIFIED SCH. DIST.
    After a 27-day hearing and written closing arguments, the
    ALJ in October 2007 handed down a careful and thorough
    75-page written decision that found in favor of the school
    district on 15 issues. The Brenneises won on the remaining
    three: Issues 10, 14, and 15. Issue 10, raised by the district,
    was whether the district’s education would provide T.B. “a
    FAPE designed to meet his unique needs and allow him to
    benefit from his education.” The other two issues were raised
    by the Brenneises: Issue 14 was whether the district had
    denied T.B. a FAPE by failing to develop a health care plan
    that would “enable [T.B.] to attend school safely,” and Issue
    15 was whether the district had denied T.B. a FAPE by
    failing to develop an appropriate transition plan. Issue 10
    overlapped with Issues 14 and 15, so we do not discuss it
    separately.
    1. Issue 14: the g-tube feeding
    The first of the two discrete issues on which T.B. won
    centered around his g-tube feeding. The IDEA sets out
    minimum federal standards for school districts that receive
    federal funding. States may choose to supplement the federal
    standards with their own, and “[s]tate standards that are not
    inconsistent with federal standards are also enforceable in
    federal court.” W.G. v. Bd. of Trustees of Target Range Sch.
    Dist. No. 23, 
    960 F.2d 1479
    , 1483 (9th Cir. 1992). Here, the
    ALJ ruled that the school district had failed to show that its
    plan met the minimum standards that California had set
    relating to g-tube feeding to complement the federal
    standards.
    To understand the basis for the ALJ’s decision, it is
    necessary to review in some detail the relevant federal and
    state requirements. The IDEA provides that an IEP shall
    T.B. V. SAN DIEGO UNIFIED SCH. DIST.              13
    contain a “statement of the special education and related
    services” that will be provided to a child. 20 U.S.C.
    § 1414(d)(1)(A)(i)(IV). These related services are defined at
    § 1401(26) as a range of items including “school nurse
    services designed to enable a child with a disability to receive
    a free appropriate public education.” California has adopted
    a similar definition of related services, called “designated
    instruction and services.” Cal. Educ. Code § 56363(a).
    Designated instruction and services include “[h]ealth and
    nursing services,” 
    id. § 56363(b)(12).
    These may in turn
    include “specialized physical health care services,” 5 Cal.
    Code Regs. § 3051.12(b), which are defined as “those health
    services prescribed by the child’s licensed physician and
    surgeon requiring medically related training for the individual
    who performs the services and which are necessary during the
    school day to enable the child to attend school.” Under the
    Code of Regulations, “[s]pecific continuing specialized
    physical health care services required in order for the
    individual to benefit from special education will be included
    in the [IEP].” 
    Id. § 3051.12(b)(3)(A)
    (emphasis added).
    The ALJ held that T.B.’s g-tube feeding, “if required to
    be performed during the school day by District personnel,”
    was a specialized physical health care service. Therefore, it
    had to be described in the IEP. But the August 2006 IEP did
    not “describe general procedures for G-Tube feeding, where
    that procedure would take place on the Sierra campus, or
    identify the category of employee who would assist [T.B.]
    with the feedings.” Rather, the IEP simply recited that T.B.
    would receive three hours of nursing services in September
    2006 and “5 hours consultation per year as needed,” and
    contained a “School Health Management Plan,” which
    required adult supervision of T.B.’s g-tube feedings. The
    transition plan section of the IEP stated that the nurse would
    14         T.B. V. SAN DIEGO UNIFIED SCH. DIST.
    train Sierra staff in g-tube feeding before T.B. started school
    but provided no further details. Therefore, the ALJ
    concluded, the August 2006 IEP did not provide a FAPE.
    The December 2006 IEP also failed to provide a FAPE.
    Like the August IEP, this plan provided for a total of eight
    hours of nursing services throughout the school year and also
    contained the health management plan. Unlike the August
    IEP, the December IEP contained two extra pages explaining
    how food was to be prepared at school and stating that
    “[T.B.] requires an Individualized School Healthcare Plan.”
    These pages also referred to the transition plan, which was
    more detailed than the August version. The transition plan
    provided that all school staff would be trained in T.B.’s
    dietary requirements, and that g-tube feeding would take
    place in the nurse’s office, with the staff member assisting
    T.B. “[t]o be determined in collaboration with the school
    nurse and parent.”
    The ALJ ruled that this was insufficient. The district was
    not permitted to rely on the creation of an Individualized
    School Healthcare Plan after the event: the IEP itself had to
    be sufficiently clear. And the December IEP “did not specify
    which category of District staff would be responsible for the
    G-Tube feeding.”
    This failure to specify was important under California
    law. Under Education Code § 49423.5(a), only two types of
    persons were allowed to perform specialized physical
    education services such as g-tube feeding: “(1) Qualified
    persons who possess an appropriate credential . . . [and]
    (2) [q]ualified designated school personnel trained in the
    administration of specialized physical health care if they
    perform those services under the supervision . . . of a
    T.B. V. SAN DIEGO UNIFIED SCH. DIST.             15
    credentialed school nurse, public health nurse, or licensed
    physician . . . .” The ALJ found that a school nurse would be
    considered in the former category. But a person could be
    considered “qualified designated school personnel” only if he
    or she had received “[m]edically related training” in
    “standardized procedures provided by a qualified school
    nurse, qualified public health nurse, qualified licensed
    physician and surgeon, or other approved programs.” 5 Cal.
    Code Regs. § 3051.12(b)(1)(E)(2).
    The ALJ found that the district had two job categories that
    were intended to cover qualified designated school personnel:
    Special Education Technician (“SET”) and Special Education
    Health Technician (“SEHT”). The district’s job classification
    prescribed a wide range of duties for SETs, including
    “[p]erform[ing] specialized health care procedures under
    [the] direction of [a] school nurse.” An SEHT’s duties were
    more narrowly focused on health care, and specifically
    included g-tube feedings. An SEHT was more experienced
    than an SET: according to the job classification, an SEHT
    required “[a]ny combination of training, experience, and/or
    education equivalent to one year of experience in the district
    job class of . . . Special Education Technician.” By contrast,
    the ALJ determined that the district provided insufficient
    evidence that a third job categorization, Behavioral Support
    Assistant (“BSA”), was qualified to provide g-tube feedings
    under California law. The district’s job classification stated
    that BSAs should “[p]rovide individual or small group
    support to pupils according to established Individualized
    Education Programs” but did not specify any medical duties.
    As the ALJ stated, the IEP was silent about who would
    be performing the g-tube feeding. There was evidence at the
    hearing that the feeding would, in fact, be done by a BSA,
    16         T.B. V. SAN DIEGO UNIFIED SCH. DIST.
    who would be assigned to assist T.B. throughout the school
    day. That was the problem. The district had not shown that
    the BSA would be qualified to perform g-tube feedings, so
    “[T.B.’s] parents had no way to be sure that an appropriate
    employee would be assisting their child.” As a result, the
    ALJ concluded, the Brenneises prevailed on Issue 14.
    2. Issue 15: the transition plans
    The second discrete issue on which the Brenneises
    prevailed related to the transition plans. Under California
    law, an IEP had to contain “[p]rovision for the transition into
    the regular class program if the pupil is to be transferred from
    a special class or nonpublic, nonsectarian school into a
    regular class in a public school . . . .” Cal. Educ. Code
    § 56345(b)(4). This included “[a] description of activities
    provided to integrate the pupil into the regular education
    program” and “[a] description of the activities provided to
    support the transition of pupils from the special education
    program into the regular education program.”                  
    Id. § 56345(b)(4)(A),
    (B). The ALJ concluded that the transition
    plans in both the August and December IEPs were defective.
    The August IEP transition plan purported to provide a
    three-week transition into school. At the hearing, however,
    the district’s expert testified that the transition might take
    more than three weeks, depending on T.B.’s progress.
    Therefore, the language of the plan was “directly
    contradictory” to the school district’s evidence. Furthermore,
    the plan did not state that designated instruction and services
    would continue until transition was complete, nor who would
    decide when T.B. was to move to the next phase. That made
    the plan inadequate.
    T.B. V. SAN DIEGO UNIFIED SCH. DIST.              17
    The December IEP transition plan, by contrast, explicitly
    provided for four flexible phases. But this plan was also
    flawed: T.B. could, in theory, remain in one phase of the plan
    for the entire year, and so the plan needed to state what T.B.’s
    services were in each phase. Like the August plan, it did not
    specify the designated instruction and services that T.B.
    would receive during the transition plan.
    In addition, the parents were not included in the
    collaboration team that decided when T.B. would move from
    one phase to the next, a problem that affected both plans. The
    ALJ concluded this was a violation of federal law, which
    required that the child’s parents must be involved in decisions
    relating to his education placement. See, e.g., 34 C.F.R.
    § 300.327. Therefore, the Brenneises prevailed on Issue 15.
    3. The relief
    As relief, the ALJ modified the December IEP by
    including language to state that a school nurse would
    “personally assist” T.B. with his g-tube feeding, and that the
    feeding would occur “at the time(s) and in the manner
    designated in a doctor’s order from the [T.B.’s] current
    physician.” But the ALJ also said that
    nothing in this Decision is intended to prevent
    the District from proposing, in a future IEP,
    that another classification of employee assist
    [T.B.] with the feedings, provided that the
    assistant meets the requirements of Education
    Code section 49423.5. In addition, nothing in
    this Decision is intended to limit the
    classification of employee that may be
    designated pursuant to that code section. This
    18         T.B. V. SAN DIEGO UNIFIED SCH. DIST.
    Decision is simply based on the finding that,
    at the present time and in the present case, the
    District failed to make an evidentiary showing
    that the three hours of training provided for
    District staff in the December 4 IEP would
    qualify [T.B.’s] one-to-one behavioral aide to
    perform specialized physical health care
    services.
    The December IEP was also modified to include Mrs.
    Brenneise as a participant in the collaboration meetings in the
    transition plan, and to clarify that “until [T.B.] reaches phase
    four of the transition plan, [T.B.’s] District-funded
    [designated instruction and] services will continue with his
    current . . . providers and at his current levels of service.”
    E. The district prepares new IEPs
    The district sent Mrs. Brenneise a modified IEP in
    October 2007. Like the December 2006 IEP, this IEP
    provided for eight hours of “health nursing.” It also spelled
    out how g-tube feeding would take place: “G-tube feeding
    will be scheduled to occur daily in the nurse’s office. A
    school nurse will be present and will personally assist the
    student with the student’s G-tube feeding.” The district also
    added language stating that health training would be critical
    throughout the year, although it provided no more hours of
    training. And the IEP identified T.B.’s then-current provider
    of occupational therapy as a service provider until T.B.
    transitioned into spending the full day at school.
    Mrs. Brenneise rejected this IEP, apparently because it
    provided that T.B. would receive occupational therapy from
    the school T.B. was to attend, Wangenheim, not from the
    T.B. V. SAN DIEGO UNIFIED SCH. DIST.             19
    current provider, which she preferred. The district moved to
    clarify the ALJ’s decision on the ground that Mrs.
    Brenneise’s preferred provider was not certified with the
    California Department of Education. The ALJ denied that
    request, in part because all the parties had agreed to fund
    T.B.’s current providers.
    Nevertheless, the Brenneises and the district slowly began
    implementing the transition plan. The district also began
    creating an IEP for the 2007–08 school year. On November
    29, 2007, the district held a meeting to adopt a new IEP. As
    relevant to this appeal, the IEP provided for health nursing
    services as follows:
    3 hours consultation/training to be provided
    prior to [T.B.’s] starting school. 5 hours
    consultation per year as needed.
    G-tube feeding will be scheduled to occur as
    prescribed by MD twice daily in nurse’s
    office—one time daily during Phases I–III of
    transition plan, then two times daily beginning
    in Phase IV when [T.B.] attends school full
    day. During first week of [T.B.’s] school
    attendance, a school nurse will be present and
    personally assist him with G-tube feeding.
    Following training by the school nurse, BSA
    staff will replace the school nurse as staff
    designated to be present and personally assist
    [T.B.] with G-tube feeding. School nurse will
    supervise BSAs, as well as train and supervise
    SEHT and SET to be designated back-up staff
    in case of BSA absence or emergency.
    20         T.B. V. SAN DIEGO UNIFIED SCH. DIST.
    Mrs. Brenneise refused to agree to this IEP because it
    provided that a BSA, not a nurse, would be responsible for
    T.B.’s feedings. At a December 21, 2007 meeting to discuss
    the IEP, the district responded by offering to raise the nursing
    services from eight hours per year to twelve.
    F. Both sides appeal to district court
    On January 4, 2008, the Brenneises filed a complaint in
    district court to appeal the ALJ’s determinations on the
    fifteen issues on which they lost. The district filed its own
    district court appeal on the same day to challenge the ALJ’s
    determinations on the three issues on which it lost. The
    district also sued Steven Wyner and his law firm personally
    to recover the district’s fees for responding to frivolous
    claims. It also sought a declaration that it was not liable to
    pay the Brenneises’ fees for their successful July 2006
    compliance complaint.
    At the end of January 2008, the district filed for another
    due process hearing, seeking a determination that the district
    had offered a FAPE for the 2007–08 school year. On
    February 22, 2008, MarySue Glynn, the district’s Director of
    Special Education, wrote to Mrs. Brenneise that the district
    remained eager for T.B. to begin school and would start him
    immediately “if you would consent.” Glynn asked Mrs.
    Brenneise to contact her if she was “interested in
    modifications to [T.B.’s] IEP which would allow him to
    transition more quickly.” A week later, Mrs. Brenneise gave
    the district notice that T.B. and his family were moving out
    of state. The Brenneises did not pursue the due process
    hearing for the 2007–08 school year, but the litigation over
    the prior year lived on.
    T.B. V. SAN DIEGO UNIFIED SCH. DIST.             21
    The Brenneises amended their district court complaint in
    March 2008, seeking, among other things, attorneys’ fees
    relating to the July 2006 compliance complaint. In April, the
    court consolidated the cases filed by the Brenneises and the
    district. It denied Wyner’s motion to dismiss the district’s
    claim against Wyner and his law firm and denied the
    district’s motion to dismiss the Brenneises’ claim for fees for
    the compliance complaint. The school district appealed the
    denial of its motion to dismiss, but this court dismissed the
    appeal because there was no final judgment and the district
    had not been granted permission to appeal from the
    interlocutory ruling.
    The Brenneises filed a Second Amended Complaint, the
    currently operative pleading, in May 2009. It contained the
    three surviving claims from the first amended
    complaint—appealing the ALJ’s adverse rulings, and seeking
    attorneys’ fees under the IDEA and in connection with the
    compliance complaint—and also four new civil rights claims
    under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794,
    and the Americans with Disabilities Act (ADA), 42 U.S.C.
    § 12132.
    The school district moved for summary judgment on its
    first cause of action. In June 2010, the court denied this
    motion and upheld the ALJ’s rulings in favor of the
    Brenneises on Issues 10, 14, and 15, praising the quality of
    the ALJ’s analysis. The school district did not appeal this
    judgment, and it later abandoned its other two causes of
    action.
    The Brenneises abandoned their claim challenging the
    ALJ’s adverse rulings on the IEP. The court then invited the
    Brenneises to file their motion for attorneys’ fees relating to
    22         T.B. V. SAN DIEGO UNIFIED SCH. DIST.
    their victory in upholding the ALJ’s three rulings in their
    favor. The parties stipulated to judgment in favor of the
    Brenneises on their claim for recovery for fees related to the
    July 2006 compliance complaint. (As we discuss below, this
    stipulation is still a source of dispute.)
    In November 2011, the parties moved jointly to dismiss
    one of the Brenneises’ civil rights claims. The Brenneises
    moved for summary judgment on one of the other claims,
    Count 4 of the complaint, in which they alleged that the
    district was deliberately indifferent to T.B.’s safety by failing
    to provide a qualified person to do the g-tube feedings. The
    district moved for summary judgment on all three of the
    remaining civil rights claims (Counts 4, 5, and 7).
    G. The district court awards the Brenneises reduced
    attorneys’ fees
    In March 2012, the district court ruled on the Brenneises’
    motion for attorneys’ fees.             The motion sought
    $1,398,048.70. The court held that the Brenneises were a
    “prevailing party” on the IDEA claims, because they had
    secured more than “merely technical” relief. In particular, the
    ALJ had found that the August and December 2006 IEPs
    failed to specify a “qualified person” to assist T.B. with his g-
    tube feedings, and the district court had upheld this finding.
    This was “an important issue of health and safety.”
    Having found that the Brenneises were entitled to fees,
    the court then moved to the amount. The IDEA prohibits
    attorneys’ fees for services performed after a written
    settlement offer is made to the parents if (i) the offer is made
    more than ten days before the start of the due process hearing,
    (ii) the parents reject it, and (iii) the offer is at least as good
    T.B. V. SAN DIEGO UNIFIED SCH. DIST.              23
    as the relief the parents secure in the hearing. 20 U.S.C.
    § 1415(i)(3)(D). However, as an exception to the foregoing
    rule, fees are available if the parents are “substantially
    justified” in rejecting the offer. 20 U.S.C. § 1415(i)(3)(E).
    Based on that provision, the district court ruled that the
    Brenneises were not entitled to any fees and costs incurred on
    and after May 4, 2007, when they rejected an offer made by
    the district in a letter from its attorney, dated May 3, 2007.
    The district court concluded that the Brenneises did not
    secure more favorable relief before the ALJ and were not
    substantially justified in rejecting the offer. The court went
    on to rule that “[e]ven if the IDEA’s provision did not strictly
    apply to the facts, the Court, in its discretion, would not
    award the Brenneises any fees incurred after they
    unreasonably rejected the May 3, 2007, settlement offer.”
    The court ruled, however, that the Brenneises could
    recover reasonable fees and costs incurred before May 4,
    2007, the date they rejected the district’s offer. The court
    conducted a lodestar analysis and awarded attorneys’ fees of
    $50,260.50, plus nontaxable costs of $5,173.41.
    H. The district court grants summary judgment to the
    school district
    In May 2012, the court granted the school district
    summary judgment on the Brenneises’ three outstanding civil
    rights claims. To establish a claim for damages under the
    Rehabilitation Act and ADA, a plaintiff must prove that the
    defendant intended to discriminate on the basis of his or her
    disability, or was deliberately indifferent to the disability.
    Duvall v. Cnty. of Kitsap, 
    260 F.3d 1124
    , 1139 (9th Cir.
    2001). First, the court rejected the Brenneises’ claim that the
    school district had been deliberately indifferent to T.B.’s need
    24           T.B. V. SAN DIEGO UNIFIED SCH. DIST.
    for a qualified person to provide his g-tube feedings. It
    concluded that the district never ignored the Brenneises’
    concerns; it acted in good faith, and simply read the relevant
    California law differently from the Brenneises. Next, the
    court ruled that the school district had not violated T.B.’s
    civil rights by failing to implement the ALJ’s decision. The
    ALJ had required that the 2006–07 IEP be amended to
    provide that a nurse do the g-tube feedings, but the decision
    had explicitly stated that the ALJ was not ruling on future
    IEPs, such as the December 2007 IEP. The district seemed to
    be acting in good faith by offering to increase nursing hours.
    Relatedly, there was no evidence to support the allegation that
    the school district had discriminated against T.B. by failing
    to provide him with occupational therapy from his preferred
    provider. Finally, the district court concluded, no reasonable
    jury could infer that the school district retaliated against the
    Brenneises. The district’s IEP team wanted T.B. to return to
    school and “took great pains” to respond to Mrs. Brenneise’s
    concerns.
    The Brenneises and Wyner appealed both the summary
    judgment on the civil rights claims and the limited grant of
    attorneys’ fees.2 The school district has not filed a cross-
    2
    In April 2012, the Brenneises filed a Rule 54(b) motion for the court
    to reconsider its ruling on attorneys’ fees. They noticed their appeal in
    June 2012, after the court had issued its ruling on the motion for attorneys’
    fees and summary judgment, but while the motion for reconsideration was
    still pending. In July 2012, the court denied the Brenneises’ motion under
    Rule 54(b) to reconsider the denial of the request for $1.4 million in
    attorneys’ fees and costs.
    The parties dispute whether the ruling on the Rule 54(b) motion is
    before the court. It is not. The motion did not toll the time for filing an
    appeal because the district court did not extend the time to appeal under
    T.B. V. SAN DIEGO UNIFIED SCH. DIST.                      25
    appeal.
    II. Standard of Review
    “This court reviews a grant of summary judgment de
    novo.” Mark H. v. Hamamoto, 
    620 F.3d 1090
    , 1096 (9th Cir.
    2010). “We must determine, viewing the evidence in the
    light most favorable to . . . the non-moving party, whether
    there are any genuine [disputes] of material fact and whether
    the district court correctly applied the substantive law.”
    Nigro v. Sears, Roebuck & Co., 
    784 F.3d 495
    , 495 (9th Cir.
    2015) (quoting Olsen v. Idaho Bd. of Med., 
    363 F.3d 916
    , 922
    (9th Cir. 2004)); Fed. R. Civ. P. 56(a). “A factual [dispute]
    is genuine if the evidence is such that a reasonable jury could
    return a verdict for the nonmoving party.” 
    Id. (quoting Anderson
    v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 248 (1986)).
    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
    district court’s underlying factual determinations are
    reviewed for clear error and its legal analysis relevant to the
    fee determination is reviewed de novo.” 
    Id. We discuss
    below in more detail the standard for reviewing the district
    court’s decision to limit attorneys’ fees under 20 U.S.C.
    § 1415(i)(3)(D).
    Rule 58. See Fed. R. App. P. 4(a)(4)(A)(iii). Therefore, the Brenneises
    were required to file a separate appeal relating to this motion, which they
    did not. See 
    id. R. 4(a)(4)(B)(i);
    Stone v. INS, 
    514 U.S. 386
    , 403 (1995)
    (“[M]otions that do not toll the time for taking an appeal give rise to two
    separate appellate proceedings . . . .”). Nevertheless, our disposition of
    this case is not affected by the Brenneises’ failure to appeal the decision
    on the Rule 54(b) motion.
    26           T.B. V. SAN DIEGO UNIFIED SCH. DIST.
    III.      The Civil Rights Claims
    We affirm in part and reverse in part the grant of
    summary judgment on the three civil rights claims. In
    particular, we affirm the summary judgments in favor of the
    school district on Counts IV and VII of the Second Amended
    Complaint, but reverse the summary judgment on Count V
    and remand for further proceedings on that count.
    A. Counts IV and V: the g-tube feeding
    In Counts IV and V of the Second Amended Complaint,
    the Brenneises alleged that the school district violated the
    ADA and Section 504 of the Rehabilitation Act by failing to
    offer and implement a g-tube feeding regime that would
    enable T.B. to attend school safely. Section 504 provides that
    “[n]o otherwise qualified individual with a disability . . .
    shall, solely by reason of his or her disability, be excluded
    from the participation in, be denied the benefits of, or be
    subjected to discrimination under any program or activity
    receiving Federal financial assistance.” 29 U.S.C. § 794(a).
    The language of the ADA is almost identical, and courts
    typically analyze the two provisions together.3 See Vinson v.
    Thomas, 
    288 F.3d 1145
    , 1152 n.7 (9th Cir. 2002).
    “Plaintiffs may establish that an organization [that
    receives federal funds, such as the district,] violated § 504 by
    showing that the public entity discriminated against,
    3
    42 U.S.C. § 12132 provides that “no qualified individual with a
    disability shall, by reason of such disability, be excluded from
    participation in or be denied the benefits of the services, programs, or
    activities of a public entity, or be subjected to discrimination by any such
    entity.”
    T.B. V. SAN DIEGO UNIFIED SCH. DIST.                27
    excluded, or denied the benefits of a public program to a
    qualified person with a disability. This includes showing that
    the public entity denied the plaintiff a reasonable
    accommodation.” Mark 
    H., 620 F.3d at 1096
    (citation
    omitted). If a plaintiff seeks monetary damages for a
    violation of Section 504 or the ADA, he must show that the
    defendant acted with intent to deny him the benefits of the
    public program or a reasonable accommodation. 
    Duvall, 260 F.3d at 1138
    .
    1. Statutory accommodations
    Before we pass on the Brenneises’ claims, we must
    address a threshold issue: whether a district’s failure to abide
    by a statutorily mandated accommodation may give rise to a
    civil rights claim. In the typical civil rights case arising out
    of an IDEA suit, the plaintiff alleges that the district failed to
    provide a “reasonable accommodation” to allow him to take
    advantage of the district’s educational program. See, e.g.,
    Mark 
    H., 620 F.3d at 1097
    –98. When a court determines
    whether an accommodation is reasonable or not, each side
    may be required to produce evidence, and the ultimate
    question of reasonableness may have to be decided by a jury.
    Wong v. Regents of Univ. of Cal., 
    192 F.3d 807
    , 816–17 (9th
    Cir. 1999).
    This case is different, however. The Brenneises allege
    that the school district denied T.B. a free appropriate public
    education in the “least restrictive environment,” as he was
    guaranteed under the IDEA, by failing to provide him with a
    reasonable accommodation for his g-tube feeding. See
    20 U.S.C. § 1412(a)(5); 34 C.F.R. § 300.114 et seq. The only
    reasonable accommodation, according to the Brenneises, is
    not one that may be determined by a court, but the one
    28           T.B. V. SAN DIEGO UNIFIED SCH. DIST.
    prescribed by the California statute and regulations. They go
    on to argue that the school district was automatically
    deliberately indifferent to T.B.’s rights, and therefore liable
    for damages under Section 504 and the ADA, by failing to
    abide by California law.4 The school district responds that
    there is no “per se” reasonable accommodation for g-tube
    feeding under California law and denies that it was
    deliberately indifferent to T.B.’s rights.
    We agree with the Brenneises that California law
    establishes federally enforceable rights governing g-tube
    feeding in schools. In the absence of any specific regulations,
    the district would be required to make a reasonable
    accommodation to allow T.B. to receive g-tube feedings in
    school so that he could receive a free appropriate public
    education. The form of this accommodation would depend
    on the “individual circumstances of [the] case.” 
    Vinson, 288 F.3d at 1154
    . But when the State has specified the form
    that the accommodation must take, that specification
    establishes minimum standards to which the district must
    adhere.5
    4
    Although the Brenneises consistently claim that they only sought for
    T.B. to be able to attend school safely, they do not assert that, in the
    absence of the California regulations, the district’s plans for T.B.’s g-tube
    feeding were unreasonable.
    5
    We say “minimum” advisedly. Of course, a state’s law prescribing a
    mandatory reasonable accommodation may not be reasonable in all
    circumstances. It is possible that there could be situations where a student
    is so disabled that a statutory accommodation would be inadequate. In
    such a case, the district would not avoid its duties by pointing to the
    minimum statutory requirement. See, e.g., Quinones v. City of Evanston,
    Ill., 
    58 F.3d 275
    , 277 (7th Cir. 1995).
    T.B. V. SAN DIEGO UNIFIED SCH. DIST.             29
    The service or program that T.B. claims he was prevented
    from receiving is a safe public education, not simply g-tube
    feedings from a nurse, SEHT, or SET. Even though T.B.’s
    failure to obtain an IEP that unambiguously provided for g-
    tube feedings in accordance with California law is the hook
    on which his civil rights claims depend (and the parties
    disagree as to how concerned the Brenneises were about this
    issue before they prevailed on it in the due process hearing),
    his fundamental complaint is that he has been prevented from
    attending public school safely. In California, g-tube feeding
    provisions are part of the overall educational program that the
    state provides to students; they are not a separate service.
    T.B.’s claim, then, is that he was deprived of his right to
    attend public school, in the manner required by California
    law, on account of his disability.
    T.B.’s right to attend public school in a manner permitted
    by California law is enforceable in district court. As we
    observed earlier, state standards for a free appropriate public
    education “not inconsistent with federal standards are . . .
    enforceable in federal court.” Target 
    Range, 960 F.2d at 1483
    . “While a state may not depart downward from the
    minimum level of appropriateness mandated under federal
    law, a state is free to exceed, both substantively and
    procedurally, the protection and services to be provided to its
    disabled children.” Roland M. v. Concord Sch. Comm.,
    
    910 F.2d 983
    , 987 (1st Cir. 1990) (internal quotation marks
    omitted). In setting forth who shall provide g-tube feedings,
    California appears to have gone beyond what a federal court
    might require in other circumstances, but that is a choice the
    legislature has made, and, like other choices regarding public
    30           T.B. V. SAN DIEGO UNIFIED SCH. DIST.
    education for disabled children, it is enforceable in court.6
    We therefore agree with the only other court that, so far as we
    are aware, has analyzed this issue, and hold that where the
    State has defined an accommodation by law, that
    accommodation is enforceable in court. See Sullivan ex rel.
    Sullivan v. Vallejo City Unified Sch. Dist., 
    731 F. Supp. 947
    ,
    959 (E.D. Cal. 1990) (holding that a reasonable
    accommodation is defined “at the minimum” by state law that
    prescribes mandatory accommodations for disabled persons).
    The reasonable accommodation that the school district was
    required to provide was the designation of a qualified
    employee to administer g-tube feedings: either an employee
    “possess[ing] an appropriate credential . . . [or a] [q]ualified
    designated school personnel trained in the administration of
    specialized physical health care if they perform those services
    under the supervision . . . of a credentialed school nurse,
    public health nurse, or licensed physician.” Cal. Educ. Code
    § 49423.5(a).
    Although we agree with the Brenneises that a school
    district’s failure to abide by California’s minimum standards
    6
    Amici supporting the school district make other arguments why we
    should not rule that the state’s statutory accommodation is enforceable.
    Amicus California School Boards Association submits that the ALJ
    misinterpreted Education Code § 49423.5(a), which provides that g-tube
    feeding “may” be provided by qualified individuals. This argument (if it
    was made at all) evidently failed to persuade the district court in its denial
    of the school district’s appeal from the ALJ’s ruling, and the district chose
    not to appeal that decision to this court. In any case, it is unconvincing.
    Amicus ignores the opening words of § 49423.5(a), “[n]otwithstanding
    Section 49422,” which references a section that delineates stricter
    requirements for which health professionals may administer health
    services in the schools. In that context, the use of the term “may” in
    § 49423.5 appears to be intended to carve out a permissive exception to
    these more rigorous requirements.
    T.B. V. SAN DIEGO UNIFIED SCH. DIST.              31
    on g-tube feeding may give rise to a civil rights claim, we
    reject their argument that a district’s failure to provide these
    services means that they automatically prevail on such a
    claim. To succeed on a civil rights claim in this context, the
    plaintiffs must show intentional discrimination. 
    Duvall, 260 F.3d at 1139
    . Deliberate indifference qualifies as intent,
    and the Brenneises attempt to meet this easier standard rather
    than showing animus on the part of the school district.
    Deliberate indifference is defined as “knowledge that a harm
    to a federally protected right is substantially likely, and a
    failure to act upon that likelihood.” 
    Id. The Brenneises
    meet the first part of the test, but not the
    second. “When the plaintiff has alerted the public entity to
    his need for accommodation (or where the need for
    accommodation is obvious, or required by statute or
    regulation), the public entity is on notice that an
    accommodation is required, and the plaintiff has satisfied the
    first element of the deliberate indifference test.” 
    Duvall, 260 F.3d at 1139
    . In this case, the school district was on
    notice that the personnel selected to administer g-tube
    feedings had to meet the requirements of California
    Education Code § 49423.5. The Duvall court went on to
    hold, however, that “in order to meet the second element of
    the deliberate indifference test, a failure to act must be more
    than negligent, and involves an element of deliberateness.”
    
    Id. This defeats
    the Brenneises’ argument that any failure to
    meet the state standard is per se deliberate indifference,
    which rests solely on the maxim “everyone is presumed to
    know the law.”          The Brenneises’ approach would
    impermissibly convert the deliberate indifference standard
    into a strict liability standard. See Ferguson v. City of
    Phoenix, 
    157 F.3d 668
    , 673–75 (9th Cir. 1998). Therefore,
    the Brenneises must still prove that the school district was
    32         T.B. V. SAN DIEGO UNIFIED SCH. DIST.
    deliberately indifferent to the need to meet state standards for
    feeding T.B. at school.
    2. Count IV: the 2006–07 IEP
    With this in mind, we turn to Count IV of the Second
    Amended Complaint. The Brenneises, citing the language of
    Education Code § 49423.5(a), alleged that “[t]he District
    failed and refused to offer to provide either a qualified person
    or qualified designated trained school personnel to provide
    [T.B.’s] G-Tube feedings.” The district court upheld the
    determination of the ALJ that the IEP did not specify that a
    qualified person, as defined by statute, would perform the g-
    tube feedings. But the district court also concluded that there
    was no evidence that the district had been deliberately
    indifferent to T.B.’s g-tube feeding. The school district, the
    court held, “never ignored the Brenneises’ concerns,” but
    engaged in detailed discussions about how to provide adult
    supervision for the g-tube feedings. “[T]he School district
    offered accommodations based upon its knowledge of T.B.’s
    abilities, which allowed any trained adult to assist him with
    the procedure.”
    We agree that no reasonable jury could find that the
    district was deliberately indifferent to T.B.’s right to be
    assisted by a person qualified under California law. The
    school district was on constructive notice about the g-tube
    feeding requirements, as they were laid down in the
    California statute. 
    Duvall, 260 F.3d at 1139
    . But there is no
    evidence that the school district was deliberately indifferent
    to this standard. The district believed that it could specify
    who would assist T.B. in an Individualized School Healthcare
    Plan. California’s requirements are not spelled out with
    precision: the most objective requirement is that the assistant
    T.B. V. SAN DIEGO UNIFIED SCH. DIST.               33
    should demonstrate “competence in basic cardiopulmonary
    resuscitation.” Cal. Educ. Code § 49423.5(C); 5 Cal. Code
    Regs. § 3051.12(b)(1)(C). About the time of the IEP
    meetings in this case, at least one other student in the school
    district was being assisted by a BSA in his g-tube feeding. A
    reasonable jury would be able to find, at most, that the district
    was wrong about the state’s g-tube feeding requirements, not
    that it was deliberately indifferent.
    The Brenneises try, and fail, to show that the school
    district was on notice that its plan to have a behavioral aide
    assist in g-tube feedings would not meet California’s
    requirements by pointing to an unpublished Office of
    Administrative Hearings case involving the district, Student
    v. San Diego Unified School District, OAH No. 04-209 (May
    25, 2004). In that case, the ALJ was required to decide
    whether a severely disabled child, who was fed through a g-
    tube, could be assisted by a SET or SEHT at school, or
    whether he had to be assisted by a full-time nurse. The
    Brenneises are correct that this case involves some of the
    same statutes and regulations as that one and that the student
    had some of the same medical needs. But, at most, that case
    would put the district on notice as to the regulations, which
    under the first prong of the deliberate indifference test is
    already assumed. 
    Duvall, 260 F.3d at 1139
    . The case does
    not shed light on how much training a BSA would require to
    be able to provide nursing services under California law and
    whether the district was in compliance with that law under the
    facts of this case. We therefore affirm the summary judgment
    entered in favor of the school district on Count IV.
    34           T.B. V. SAN DIEGO UNIFIED SCH. DIST.
    3. Count V: the 2007–08 IEP
    The implementation of the ALJ’s decision in the IEP for
    the following year is potentially a different matter. In Count
    V of the Second Amended Complaint, the Brenneises alleged
    that the school district failed to comply with the ALJ’s
    decision and “knew that it was substantially likely that [T.B.]
    would not able to safely attend public school or be able to
    obtain educational benefit from his educational program.”7
    In the Brenneises’ view, the district illegally “fail[ed] and
    refus[ed] to ensure the presence of a school nurse to
    personally assist with [T.B.’s] G-Tube feedings.”
    The district responds that the ALJ’s decision covered the
    2006–07 year. As described above, in October 2006 the
    district amended the December 2006 IEP in the way that the
    ALJ ordered: it provided that “[a] school nurse will be present
    and will personally assist the student with the student’s G-
    tube feeding.” But by the time the ALJ ordered relief, the
    2007–08 school year had already begun. The language
    ordered by the ALJ did not appear in the draft November
    2007 IEP, which covered the 2007–08 school year. The
    November IEP provided that a nurse would personally assist
    T.B. with g-tube feeding in his first week at school, at which
    point a BSA would take over. The November IEP also
    provided for a total of three hours training for the BSA before
    he or she took over.
    7
    In the Second Amended Complaint, the Brenneises also alleged that
    the district was deliberately indifferent by failing to provide transition
    services, and in particular occupational therapy, at the same level as
    before. The Brenneises have not pressed this claim on appeal, and it is
    therefore waived. See Arpin v. Santa Clara Valley Transp. Auth.,
    
    261 F.3d 912
    , 919 (9th Cir. 2001).
    T.B. V. SAN DIEGO UNIFIED SCH. DIST.                 35
    The school district argues that its proposed 2007-08 IEP
    did not violate T.B.’s civil rights. It observes that the ALJ
    held specifically that the district was permitted to propose a
    different classification of employee to assist T.B. with his
    feedings, “provided that the assistant meets the requirements
    of Education Code section 49423.5,” and that “nothing in this
    Decision is intended to limit the classification of employee
    that may be designated pursuant to that code section.” The
    district’s position, in effect, is that the due process hearing for
    the previous school year was irrelevant once the new school
    year had begun.
    We disagree. It is true that an IEP is only valid for the
    school year to which it applies. But the pertinent issue here
    is whether a reasonable jury could find that the district
    violated T.B.’s civil rights by failing to accommodate his
    need for g-tube feedings. We believe that it could. After the
    ALJ handed down her decision, the district knew how a judge
    might interpret California’s rules on g-tube feeding and what
    the district would likely have to do to comply with the rules.
    A reasonable jury might find that the district was being
    deliberately indifferent to T.B.’s rights under California
    law—as opposed to merely negligent or wrong—by refusing
    to specify that a nurse, SEHT, or SET should carry out the g-
    tube feedings when the ALJ had suggested strongly that this
    was the only way in which the district could fulfill its legal
    duties. Furthermore, a jury might consider that the district’s
    failure to increase the number of hours of training for the
    BSA in the first week (three hours), was a sign of deliberate
    indifference, particularly after the ALJ had pointed out that
    the statute required that an SET or SEHT be trained through
    “standardized procedures.” Indeed, the BSA might never
    have received those three hours: g-tube feeding took place
    36           T.B. V. SAN DIEGO UNIFIED SCH. DIST.
    once a day during T.B.’s first week at school and lasted about
    twenty minutes each time.
    A factfinder could also conclude, to the contrary, that the
    district was simply negligent, not deliberately indifferent, in
    interpreting the ALJ’s instructions. The ALJ held that
    “[n]othing in this Decision is intended to prevent the District
    from proposing, in a future IEP, that another classification of
    employee assist [T.B.] with the feedings, provided that the
    assistant meets the requirements of Education Code section
    49423.5.” The district may simply have failed to pay enough
    attention to the final clause. Alternatively, it may have had
    a good-faith belief that the ALJ was wrong in her
    construction of California law and sincerely believed that it
    was not violating T.B.’s rights by failing to provide a nurse,
    SEHT, or SET to provide g-tube feedings. Or perhaps the
    district could have provided sufficient evidence under its
    2007–08 school year IEP showing that its proposed
    supervision and training of a BSA would meet the
    requirements for providing g-tube feedings.
    Because there is a genuine dispute of material fact,
    summary judgment is not appropriate in favor of either party
    on this claim. We reverse the summary judgment granted in
    favor of the school district on this claim and remand for
    further proceedings.8
    8
    The school district argues that the Brenneises failed to exhaust their
    civil rights claims, including the claim asserted in Count V. In particular,
    it objects that the Brenneises never alleged in a due process hearing that
    the district discriminated and retaliated against them by failing to provide
    staff to perform the g-tube feedings, and that they should have filed for a
    due process hearing relating to the December 2007 IEP. The g-tube issue
    was pursued through a due process hearing for the 2006–07 school year,
    as discussed above, but there was no due process hearing for the 2007–08
    T.B. V. SAN DIEGO UNIFIED SCH. DIST.                     37
    B. Count VII: the retaliation claim
    The Brenneises also alleged in the Second Amended
    Complaint that the district retaliated against T.B. and Mrs.
    Brenneise for her “aggressive advocacy” on T.B.’s behalf.
    We affirm the judgment of the district court that a reasonable
    jury would not be able to find that the district retaliated
    against the Brenneises.
    We apply the Title VII burden-shifting framework, as
    established in McDonnell Douglas Corp. v. Green, 
    411 U.S. 792
    (1973), to retaliation claims under the ADA. See Brown
    school year, as the family moved to Minnesota. Claim V presents a claim
    for the 2007–08 school year. The district court did not discuss the
    exhaustion issue and did not base the summary judgment on any failure
    to exhaust.
    We held in Payne ex rel. D.P. v. Peninsula School District, 
    653 F.3d 863
    , 874 (9th Cir. 2011) (en banc), that “[t]he IDEA’s exhaustion
    requirement applies to claims only to the extent that the relief actually
    sought by the plaintiff could have been provided by the IDEA.” Count V
    of the Second Amended Complaint asserts a non-IDEA claim for
    discrimination under Section 504 and the ADA. We note that the damages
    sought in Count V have not been precisely set forth. Although the relief
    sought, in part, appears to be beyond what could be obtained through the
    IDEA, including damages for lost educational opportunities for the
    mother, lost wages and costs incurred in moving to Minnesota, and
    emotional distress, other requested relief, such as costs the parents
    allegedly incurred to educate T.B. at home, appears to duplicate the
    potential IDEA remedy and thus may be subject to the exhaustion
    requirement. Additionally, neither party has briefed the issues of
    exceptions to the exhaustion requirement or the effect of the family’s
    move to Minnesota on the viability of the 2007–08 due process hearing.
    In light of the lack of clarity regarding the types of damages at issue in
    Count V and the other issues affecting the exhaustion analysis that have
    not been fully briefed on appeal, we leave the exhaustion issue open on
    remand for the district court to consider in the first instance.
    38           T.B. V. SAN DIEGO UNIFIED SCH. DIST.
    v. Tucson, 
    336 F.3d 1181
    , 1186–87 (9th Cir. 2003); see also
    Barnett v. U.S. Air, Inc., 
    228 F.3d 1105
    , 1121 (9th Cir. 2000)
    (en banc) (“[W]e join our sister circuits in adopting the Title
    VII retaliation framework for ADA retaliation claims.”),
    vacated on other grounds, U.S. Airways, Inc. v. Barnett,
    
    535 U.S. 391
    (2002). Under the Title VII retaliation standard,
    a plaintiff must make out a prima facie case “(a) that he or
    she was engaged in protected activity, (b) that he or she
    suffered an adverse action, and (c) that there was a causal link
    between the two.” Emeldi v. Univ. of Ore., 
    673 F.3d 1218
    ,
    1223 (9th Cir. 2012). In University of Texas Southwestern
    Medical Center v. Nassar, 
    133 S. Ct. 2517
    , 2528 (2013), the
    Court held that the standard for the “causal link” is but-for
    causation, a more stringent test. Other circuit and district
    courts have applied Nassar to ADA retaliation claims, and we
    do as well. See, e.g., Feist v. La., Dep’t of Justice, Office of
    Att’y Gen., 
    730 F.3d 450
    , 454 (5th Cir. 2013); E.E.O.C. v.
    Ford Motor Co., 
    782 F.3d 753
    , 767 (6th Cir. 2015) (en banc);
    Staley v. Gruenberg, 575 F. App’x 153, 155 (4th Cir. 2014);
    Gallagher v. San Diego Unified Port Dist., 
    14 F. Supp. 3d
    .
    1380, 1390–91 (S.D. Cal. 2014). Making out a prima facie
    case is a necessary, but not sufficient, condition for surviving
    a motion for summary judgment in the McDonnell Douglas
    framework. See Wallis v. J.R. Simplot Co., 
    26 F.3d 885
    , 890
    (9th Cir. 1994).
    No reasonable jury could find that the Brenneises made
    out a prima facie case of retaliation. The Brenneises claim
    that the district retaliated against them by providing for a
    BSA to perform IEP feedings in the 2007–08 IEP.9 But no
    9
    In the Second Amended Complaint, the Brenneises also alleged that
    the district had retaliated by failing to provide a qualified home teacher.
    T.B. V. SAN DIEGO UNIFIED SCH. DIST.                     39
    jury could find that the school district would have provided
    a nurse, SEHT, or SET in the 2007–08 IEP but for Mrs.
    Brenneise’s aggressive advocacy. There was no evidence
    that the district’s actions were connected to Mrs. Brenneise’s
    advocacy. As discussed above, there were many plausible
    explanations why the district may have failed to provide a
    nurse, SEHT or SET. Retaliation was not one of them.
    Mrs. Brenneise also claims that the school district
    required her to “consent” to the IEP before enrolling T.B. in
    school. The source of this claim is Glynn’s letter to
    Brenneise that the district remained eager for T.B. to begin
    school at Wangenheim and would start him immediately “if
    you would consent.” The Brenneises claim that, in this
    context, “consent” means “consent to the IEP” and that Glynn
    was thus trying to force Mrs. Brenneise to agree to the IEP.
    But there is no evidence that Glynn was refusing to consider
    further changes to the IEP to satisfy Mrs. Brenneise. The
    letter itself stated that if Mrs. Brenneise was “interested in
    modifications to [T.B.’s] IEP which would allow him to
    transition more quickly, please contact my office and we will
    arrange.” Furthermore, even if Glynn was not prepared to
    modify the IEP further to allay Mrs. Brenneise’s concerns, a
    jury would not be able to conclude that Mrs. Brenneise’s
    advocacy was a but-for cause of Glynn’s letter. We affirm
    the district court’s summary judgment on the retaliation
    claim.
    Like the Brenneises’ claim relating to transition services, this claim has
    not been pressed on appeal and is waived.
    40           T.B. V. SAN DIEGO UNIFIED SCH. DIST.
    IV.      Attorneys’ Fees
    The district court granted fees and costs to the Brenneises
    and their attorneys but awarded only a small fraction of the
    amount requested.10        They submitted a request for
    $1,398,048.70 in fees and costs for their success in the due
    process hearing and on appeal to the district court. The
    district court awarded only $55,433.91.
    When reviewing a court’s award of fees for abuse of
    discretion, we “review the underlying factual determinations
    for clear error and review de novo any legal analysis relevant
    to the fee determination.” Fischel v. Equitable Life
    Assurance Soc’y of U.S., 
    307 F.3d 997
    , 1005 (9th Cir. 2002).
    The IDEA permits a court “in its discretion [to] award
    reasonable attorneys’ fees” to a prevailing party. 20 U.S.C.
    § 1415(i)(3)(B)(i). The ALJ ruled that the Brenneises had
    prevailed on Issues 10, 14, and 15 in the due process hearing.
    The district court held that the Brenneises were a prevailing
    party under the IDEA. It rejected the district’s claim that the
    Brenneises had secured only technical or de minimis relief
    10
    The district court’s decision on fees was originally filed under seal.
    It was also filed under seal as part of the record in this court, but the
    Brenneises moved to unseal it. The motion was denied because the
    district court had ruled that “[b]ecause this memorandum contains
    confidential settlement discussions, the Court files this memorandum
    under seal until further order of the Court or upon stipulation of the
    parties.” The parties later jointly moved to unseal the decision in the
    district court, and the motion was granted. The parties have not renewed
    their motion to unseal the decision in this court. Nevertheless, because the
    parties have cited to and quoted from the fee decision liberally in their
    unsealed briefs, and because the decision is unsealed in district court, we
    order that it be unsealed in this court and treat it that way.
    T.B. V. SAN DIEGO UNIFIED SCH. DIST.                41
    and held: “[T]he ALJ found, and this Court agreed, that the
    proposed August and December IEPs failed to specify a
    qualified person to assist T.B. with his G-tube feedings. This
    is an important issue of health and safety.”
    The limited amount of the award was primarily the result
    of the court’s decision to deny all fees and costs for work
    performed on and after May 4, 2007, the date the Brenneises
    rejected the district’s settlement offer of $150,000 per year.
    The court identified two independent grounds to support that
    decision. First, it concluded that the IDEA barred an award
    for work performed after that date because the relief that the
    Brenneises won in the due process hearing was “not more
    favorable to the parents than the offer of settlement,” and the
    parents were not “substantially justified” in rejecting the
    settlement. 20 U.S.C. § 1415(i)(3)(D), (E). Second, and
    independently, the district court exercised its discretion to cut
    off fees on the ground that any fees and costs incurred after
    that date were not “reasonable.”
    We reject both of these grounds. In addition, we conclude
    that the district court was mistaken about another element
    affecting the fee award, specifically the nature of the
    settlement agreement governing the attorneys’ fees for the
    compliance complaint. Moreover, the district court did not
    sufficiently explain the basis of its calculations for the portion
    of fees that were awarded. Our decision does not mean that
    the Brenneises’ attorneys are necessarily entitled to a
    substantially larger award, but the reasoning behind the
    previous determination cannot be sustained. We therefore
    vacate the fee award and remand for further proceedings.
    42         T.B. V. SAN DIEGO UNIFIED SCH. DIST.
    A. The IDEA statutory bar
    The critical statutory provisions are 20 U.S.C.
    § 1415(i)(3)(D) and (E). They provide, in relevant part:
    (D) Prohibition of attorneys’ fees and related
    costs for certain services
    (i) In general
    Attorneys’ fees may not be awarded and
    related costs may not be reimbursed in
    any action or proceeding under this
    section for services performed subsequent
    to the time of a written offer of settlement
    to a parent if—
    (I) the offer is made within the time
    prescribed by Rule 68 of the Federal
    Rules of Civil Procedure or, in the
    case of an administrative proceeding,
    at any time more than 10 days before
    the proceeding begins;
    (II) the offer is not accepted within 10
    days; and
    (III) the court or administrative
    hearing officer finds that the relief
    finally obtained by the parents is not
    more favorable to the parents than the
    offer of settlement.
    ....
    T.B. V. SAN DIEGO UNIFIED SCH. DIST.               43
    (E) Exception to prohibition on attorneys’ fees
    and related costs
    Notwithstanding subparagraph (D), an
    award of attorneys’ fees and related costs
    may be made to a parent who is the
    prevailing party and who was
    substantially justified in rejecting the
    settlement offer.
    Our primary focus is on subsections (D)(i)(III) and (E).
    In denying fees incurred for work on and after May 4, 2007,
    the district court concluded that “the relief finally obtained by
    the parents [wa]s not more favorable to the parents than the
    offer of settlement” and that the parents were not
    “substantially justified” in rejecting the offer.
    As an initial matter, we must set out our standard of
    review. We have not yet clearly established the standard that
    a reviewing court should apply when determining whether the
    relief obtained in a due process hearing under the IDEA is
    more favorable than that offered under a settlement. See, e.g.,
    Capistrano Unified Sch. Dist. v. Wartenberg ex rel.
    Wartenberg, 
    59 F.3d 884
    , 897 (9th Cir. 1995) (analyzing
    whether the forerunner of § 1415(i)(3)(D) applied in an
    attorneys’ fee dispute, and holding simply that “[the parents]
    won a more favorable decision”). But we can draw guidance
    from Federal Rule of Civil Procedure 68, which is
    specifically mentioned in § 1415(i)(3)(D)(i)(I). Rule 68
    provides that
    At least 14 days before the date set for trial, a
    party defending against a claim may serve on
    an opposing party an offer to allow judgment
    44          T.B. V. SAN DIEGO UNIFIED SCH. DIST.
    on specified terms, with the costs then
    accrued. . . . If the judgment that the offeree
    finally obtains is not more favorable than the
    unaccepted offer, the offeree must pay the
    costs incurred after the offer was made.11
    Rule 68 is thus clearly animated by the same principles as
    § 1415(i)(3)(D): if the offeree protracts the litigation by
    rejecting a favorable offer, he risks suffering a financial
    penalty. See Marek v. Chesny, 
    473 U.S. 1
    , 5 (1985) (“The
    plain purpose of Rule 68 is to encourage settlement and avoid
    litigation.”). Although the language of the IDEA is broader
    than that of Rule 68—the IDEA cuts off “attorneys’ fees and
    related costs,” while Rule 68 speaks of cutting off
    “costs”—the Supreme Court has held that costs for Rule 68
    purposes may include attorneys’ fees. 
    Marek, 473 U.S. at 9
    –10. As a district court has noted, the provisions of
    § 1415(i)(3)(D) “essentially incorporate most of the elements
    of Rule 68 and expand their application to all offers of
    settlement in IDEA cases.” B.L. ex rel. Lax v. District of
    Columbia, 
    517 F. Supp. 2d 57
    , 60 (D.D.C. 2007).
    We therefore think that our jurisprudence concerning
    Rule 68 provides the correct standard for reviewing a district
    court’s decision on the comparative favorability of a
    settlement offer and a final award under the IDEA. “We
    review a district court’s interpretation of Rule 68 de novo. To
    11
    Rule 68 was originally even more similar to § 1415(i)(3)(D), as the
    period in which an offer could be made before trial was ten days, not
    fourteen. This was changed in the 2009 amendment to reflect the change
    in the Rule 6(a) method for computing periods less than eleven days. See
    Mark R. Kravitz, Advisory Comm. on Fed. Rules of Civil Procedure,
    Report of the Civil Rules Advisory Committee 33–34 (May 9, 2008); Fed.
    R. Civ. P. 68 advisory committee’s note (2009 Amendments).
    T.B. V. SAN DIEGO UNIFIED SCH. DIST.              45
    the extent the district court’s Rule 68 analysis turns on
    disputed factual findings, we review for clear error.”
    Champion Produce, Inc. v. Ruby Robinson Co., 
    342 F.3d 1016
    , 1020 (9th Cir. 2003) (citing Simon v. Intercontinental
    Transp. (ICT) B.V., 
    882 F.2d 1435
    , 1439 (9th Cir. 1989)
    (“[W]e review de novo whether Simon’s offer of judgment,
    MTC’s rejection of the offer, and the judgment following the
    trial satisfied the requirements of Rule 68.”)). In this case,
    then, we will review the question of relative favorability de
    novo, while reviewing the factual findings supporting the
    district court’s decision for clear error.
    Turning to the merits, it should be recognized that the
    statute specifies that the comparison of the settlement offer
    versus the result of litigation must be made from the
    perspective of the parents. To deny attorneys’ fees under this
    provision, the court must find that the relief obtained from the
    ALJ was “not more favorable to the parents than the offer of
    settlement.” 20 U.S.C. § 1415(i)(3)(D)(i)(III) (emphasis
    added). From the perspective of the school district in this
    case, it is fair to infer that the ALJ’s decision was perceived
    as a big victory, not just because the district prevailed on
    most issues, but because the IEP as modified by the ALJ’s
    decision would have cost the district substantially less money
    than the offer made to the Brenneises. But that does not
    necessarily mean that the settlement offer was as good as the
    ALJ’s decision from the point of view of the parents, which
    is the perspective that counts under the statute.
    Similarly, for this purpose the comparison is between the
    result obtained from the litigation (in this instance, the ALJ’s
    decision) and the settlement offer made by the district. The
    settlement offer relied upon by the district court in denying
    attorneys’ fees was the offer to pay $150,000 per year in
    46           T.B. V. SAN DIEGO UNIFIED SCH. DIST.
    exchange for the parents taking responsibility for T.B.’s
    education themselves and relieving the district of that
    responsibility. It does not matter that the district may have
    been willing to provide, and likely would have preferred, the
    arrangement offered in the IEP. The denial of fees by the
    district court based on the parents’ refusal to accept a
    settlement offer must be based on the terms of that offer, not
    on some other offer that could have been made.12
    The school district’s proposal would have required the
    parents to arrange, on their own, a complete education
    schedule for T.B. Paragraph 2 stated that “[p]arents take full
    and complete responsibility for [T.B.’s] education and entire
    educational program.” Paragraph 3 provided that “[p]arents,
    and each of them, agree to enroll [T.B.] in an educational
    program or programs that are in full compliance with, and
    completely satisfy, California compulsory education laws and
    requirements.” Paragraph 8 provided that “[p]arents
    represent and warrant that they can provide educational
    services through nonpublic schools, nonpublic agencies
    and/or other service providers that are appropriate for [T.B.’s]
    educational needs within the meaning of the IDEA for the
    amount of money that the District has agreed to provide for
    the time period covered by this Agreement and that they do
    not foresee that [T.B.’s] educational needs will change as to
    warrant any modification of this Agreement, including
    12
    A comparison of the terms of the proposed IEP with the outcome of
    the litigation expressed in the ALJ’s decision would presumably be
    relevant in determining the amount of attorneys’ fees to be awarded as a
    reflection of what the Brenneises achieved through the litigation. The
    district court did not make such assessment in this case, however, instead
    denying all fees after the rejection of the settlement offer. Our decision
    does not preclude consideration on remand of the degree of success as a
    relevant factor in determining the amount to be awarded.
    T.B. V. SAN DIEGO UNIFIED SCH. DIST.              47
    termination, during that period of time.” Paragraph 20
    provided that any dispute under the Agreement was to be
    resolved by binding arbitration, with each party to bear its
    own fees and costs.
    The district court gave five reasons for the conclusion that
    the settlement offer was more favorable than the ultimate
    relief the Brenneises obtained. First, it stated that the
    Brenneises’ asserted preference for a public school setting
    was “an after-the-fact rationalization.” In the view of the
    district court, they were willing to accept money even if it
    meant T.B. would have remained in garage school, but they
    simply wanted more money than the district offered. Second,
    “Mrs. Brenneise preferred to keep T.B. at home unless she
    obtained every item on her long list of demands.” Third, the
    district’s monetary offer was “exceptionally generous.”
    Fourth, the offer covered the next five years, the remainder of
    T.B.’s status as a minor, and would have “put to rest all
    disputes for the next five years.” Fifth, each of the district’s
    offers included reasonable attorneys’ fees and costs.
    We disagree with the district court’s conclusion. For a
    number of reasons, we conclude that the settlement offer
    made by the district was not more favorable from the
    perspective of the parents, such that the statutory bar should
    not have applied.
    1. Attorneys’ fees and costs up to the settlement
    We start with the final reason cited by the district court
    for reaching the opposite conclusion, the payment of the
    Brenneises’ attorneys’ fees and costs up to that point. The
    offer made by the district did not provide for the payment by
    48         T.B. V. SAN DIEGO UNIFIED SCH. DIST.
    the district of those fees and costs. The district court’s finding
    to the contrary was clearly erroneous.
    The settlement agreement proposed by the district in May
    2007 explicitly provided in Paragraph 18 that “[a]t no time
    shall this Agreement be construed to confer prevailing party
    status on either party. Except as otherwise provided herein,
    each party to this Agreement shall bear his/her/its own costs,
    expenses, and attorneys’ fees, whether taxable or otherwise,
    connected with the disputes resolved by this Agreement.”
    The cover letter from the district’s attorney, dated March
    13, 2007, that accompanied an earlier version of the proposed
    settlement agreement said that it was understood that the
    parties had agreed that the district would pay reasonable
    attorneys’ fees and that the district was “open to including”
    payment of the fees. However, that letter did not state either
    how much would be paid or how that amount would be
    determined. Moreover, the proposed settlement agreement
    enclosed with that letter contained language identical to the
    language quoted in the preceding paragraph from the May
    settlement agreement, and that language did not provide for
    the payment of those fees. Obviously, an agreement could
    have been drafted to provide for the payment of fees and
    costs, but the document sent to the Brenneises said something
    very different. The cover letter that accompanied the May
    settlement agreement made no mention of attorneys’ fees.
    In its brief to us, the district contended that its offer “also
    included reasonable attorneys’ fees assuming the parties
    could agree upon an amount.” It is always true, of course,
    that parties could agree to something different, but that is not
    what the proposed agreement itself actually said. Instead, the
    agreement proposed by the district explicitly stated that each
    T.B. V. SAN DIEGO UNIFIED SCH. DIST.               49
    party would bear its own fees and costs. The agreement
    contained an integration clause stating that it contained the
    entire agreement. The Brenneises should not have been
    required to assume differently in evaluating the offer. Nor
    should we assume something different in evaluating whether
    the district’s offer was more favorable than the relief
    obtained. See Holland v. Roeser, 
    37 F.3d 501
    , 504 (9th Cir.
    1994) (“[W]e have held that courts should apply the usual
    rules of contract interpretation to offers of judgment, and
    these rules dictate that ambiguities be construed against the
    drafter.” (citation omitted)); Erdman v. Cochise Cnty., Ariz.,
    
    926 F.2d 877
    , 880 (9th Cir. 1991) (same); Webb v. James,
    
    147 F.3d 617
    , 623 (7th Cir. 1998) (“Because Rule 68 puts
    plaintiffs at their peril whether or not they accept the offer,
    the defendant must make clear whether the offer is inclusive
    of fees when the underlying statute provides fees for the
    prevailing party. As with costs, the plaintiff should not be left
    in the position of guessing what a court will later hold the
    offer means.”).
    By the terms of the proposed agreement, the Brenneises
    would not have been able to seek an award for fees and costs
    already incurred, including the activity for which the district
    court later awarded $55,433.91. By declining the offer, the
    Brenneises retained the right to seek an award of fees and
    costs. In that way, the offer was less favorable than the relief
    obtained.
    2. The duration of the agreement and the “stay put”
    provision
    The fourth reason cited by the district court in support of
    its conclusion was that the proposed settlement would “put to
    rest all disputes for the next five years.” Unfortunately, that
    50           T.B. V. SAN DIEGO UNIFIED SCH. DIST.
    was not necessarily true. The agreement explicitly provided
    that, after a specified period, perhaps as short as one more
    academic year, T.B.’s parents could re-enroll him into a
    district school.13
    That was a provision added to the May settlement offer by
    the school district to make the offer more attractive to the
    parents. To the extent that the agreement limited the options
    available to T.B. for a longer period, that did not necessarily
    make it more favorable than the ALJ’s decision from the
    parents’ perspective.
    There were many reasons why the parents may have
    wanted the option to re-enroll T.B. in a district school at some
    point in the future. Over time, his condition and needs could
    change, for better or worse. Recognizing that the needs of a
    student with disabilities change over time, an IEP is
    customarily prepared on an annual basis. See 20 U.S.C.
    § 1414(d)(4)(A)(i)–(ii). If T.B.’s condition worsened or if the
    parents determined that they were not able to provide T.B.
    with a sufficient program, even with an annual $150,000
    payment from the school district, it is understandable that
    they would want to retain the option to return responsibility
    for T.B.’s education back to the school district, where that
    responsibility customarily rests. The IDEA and California law
    both impose responsibility on local school districts to provide
    13
    At what point T.B. could be reenrolled was not entirely clear. The
    offer itself appears to preclude T.B.’s return to the district until the
    2009–10 school year. The cover letter that accompanied the settlement
    offer suggested that the parents could reenroll T.B. in the district any year
    after the upcoming 2007–08 school year, or as early as the 2008–09 school
    year. This confusion regarding a material term of the offer may alone
    have substantially justified the parents’ rejection of the offer. See
    20 U.S.C. § 1415(i)(3)(E).
    T.B. V. SAN DIEGO UNIFIED SCH. DIST.              51
    a free appropriate public education for children with
    disabilities. 20 U.S.C. § 1400(d)(1)(A); Cal. Educ. Code
    § 56000 et seq. From the perspective of the parents,
    therefore, it would not have been an advantage for the
    agreement to extend as long as the district court presumed
    that it would.
    Moreover, under the proposed settlement agreement, the
    proposed terms for any return to school by T.B. would have
    been unfavorable for the Brenneises. If the parents elected to
    return T.B. to a district school, an IEP would have to be
    prepared and an effort made to reach agreement about the
    program to be provided to T.B. The potential for
    disagreement at that point is obvious.
    The offer provided that “[s]hould Parent dispute the
    District’s offered program, the Parties also agree [T.B.’s] stay
    put placement will be the District’s offered program pending
    resolution of the dispute.” In other words, if T.B. proposed
    to return to a district school, but he or his parents were
    unhappy with the program offered by the district, he would be
    forced to accept whatever program the school district
    proposed while the parties agreed on how to settle the issue
    or went to arbitration. T.B. would not have the option of
    continuing his prior placement in the meantime, no matter
    how unsuitable the district’s program was or how much better
    his previous educational program was.
    Stay-put provisions “direct[] that a disabled child ‘shall
    remain in [his or her] then current educational placement’
    pending completion of any review proceedings, unless the
    parents and state or local educational agencies otherwise
    agree.” 
    Honig, 484 U.S. at 308
    (second alteration in original)
    (quoting 20 U.S.C. § 1415(e), the predecessor of the current
    52         T.B. V. SAN DIEGO UNIFIED SCH. DIST.
    stay-put provision, § 1415(j)). This is an important right for
    parents and students: the school district cannot change a
    placement over the parents’ objection until review
    proceedings are completed. 
    Id. at 324.
    Under the so-called
    stay-put provision in the settlement offer, however, T.B.
    could not continue his prior program if he objected to what
    the district proposed for him. It would not, in fact, have
    allowed T.B. to “stay put” in what he already had.
    The Brenneises were justified in being wary of such a
    provision. Their dissatisfaction with T.B.’s education had led
    them to withdraw him from school in 2003, and in 2006 he
    had lasted only five days at Coronado Academy before that
    school asked him to leave. The Brenneises had recently
    prevailed against the district in a compliance complaint
    related to his brief attendance at Coronado. The stay-put
    provision contained in the district’s settlement offer gave the
    district leverage it would not have had otherwise. If T.B.
    asked to return to a district school, he would have been
    required to accept whatever the district offered, for at least
    some period of time. That fact alone might well have
    deterred T.B. and his family from ever seeking to return to
    public school, meaning that the district’s offer of the option
    to permit the re-enrollment of T.B. after a year or two may
    not, in real terms, have been much of an option at all.
    In light of the term allowing T.B. to enroll in a district
    school after one or two years, it does not appear that the
    district court’s finding that the settlement agreement would
    have put to rest all disputes for the next five years was
    entirely correct. To the extent that the agreement might have
    made it difficult for the parents to return T.B. to public
    school, the duration of the agreement and the stay put
    T.B. V. SAN DIEGO UNIFIED SCH. DIST.              53
    provision were not more favorable from the parents’
    perspective.
    3. The cash settlement amount
    The first three reasons identified by the district court to
    support its conclusion that the settlement offer was more
    favorable for the parents than the ultimate relief they obtained
    do not appear to us to amount in fact to three separate
    reasons. Indeed, the first two—that the parents’ expressed
    preference for a public school was an “after-the-fact
    rationalization” and that Mrs. Brenneise actually preferred to
    keep T.B. at home—amount to the same observation. The
    district court reasoned, in essence, that because the parents
    had no genuine interest in a district placement, certain
    unfavorable terms of the offer—such as requiring the parents
    to assume sole responsibility for T.B.’s education and
    correspondingly absolving the district of responsibility—did
    not in fact make the offer unfavorable. Under that view, if
    the parents actually desired complete separation from the
    district, then these terms should not be considered
    unfavorable aspects of the offer.
    We do not accept this line of reasoning. The record does
    not support the proposition that the parents were interested
    only in a cash-out alternative and not also in a
    district-administered placement in a district school. Nor does
    it support the proposition that the parents pursued their IDEA
    complaint solely to obtain leverage over the district in an
    attempt to exact a larger cash settlement. The record shows
    the parents pursued a district-administered FAPE through the
    ALJ proceedings because they were genuinely interested in
    a district placement. We do not discount the evidence that the
    parents were also interested in a cash-out option, and in fact
    54         T.B. V. SAN DIEGO UNIFIED SCH. DIST.
    may at some time have preferred it, at least in light of the
    drawn out disagreements with the district. However, they
    clearly continued to value the alternative of placing T.B. in a
    district school. Indeed, although the parents proposed a
    cash-out settlement, their settlement offer also would have
    given them the annual option to re-enroll in the district
    schools. Furthermore, when the parents moved the family to
    Minnesota, they placed T.B. in a public school, where he
    appears to have thrived. Accordingly, we conclude that the
    district court erroneously assumed that the cash settlement
    offer was more favorable because the Brenneises preferred to
    educate T.B. privately as opposed to sending him to public
    school.
    The remaining reason given by the district court to
    support its conclusion was the proposition that the school
    district’s offer of $150,000 per year was “exceptionally
    generous.”       On closer examination, though, that
    characterization seems exaggerated. The annual payment of
    $150,000 would not have covered the cost of the existing
    home school arrangement, which was both what the district
    court found that the parents wanted and what T.B. was
    entitled to, as the “stay put” arrangement, during the
    pendency of the dispute. That program was calculated to cost
    the school district $157,000 per year. If the parents elected
    to continue the arrangement that was then in place, they
    would have had to reach into their own pockets to make it
    happen.
    The additional costs imposed on them might actually have
    exceeded the difference between $157,000 and $150,000. A
    case manager from the school district was involved in
    arranging garage school for T.B., for example. Under the
    settlement offer, the Brenneises would have taken full
    T.B. V. SAN DIEGO UNIFIED SCH. DIST.             55
    responsibility for arranging services for T.B., requiring
    additional time or additional expense to hire someone else to
    do it. Furthermore, T.B. was an individual customer in the
    special education market, while the district was a repeat
    player and had more bargaining power. It might have cost
    more for the Brenneises to arrange to have T.B. educated
    privately or to have obtained assistance from external service
    providers than it cost the district.
    From this perspective, the school district’s offer of an
    annual cash payment was not so generous. It would not have
    covered the expenses of T.B.’s then-current program. The
    IDEA “was intended to give handicapped children both an
    appropriate education and a free one; it should not be
    interpreted to defeat one or the other of those objectives.”
    Sch. Comm. of Town of Burlington, Mass. v. Dep’t of Educ.
    of Mass., 
    471 U.S. 359
    , 372 (1985). T.B.’s education would
    not necessarily have been free.
    We are unable to conclude, as the district court did, that
    the settlement offer was more favorable to the parents than
    the result of the hearing. Although the ALJ ruled in favor of
    the school district on most of the issues, the ultimate
    conclusion of the due process hearing was that the program
    offered by the district would not have provided T.B. with a
    FAPE. Both the August 2006 IEP and the December 2006
    IEP had fatal shortcomings. The district court affirmed that
    determination, and the school district did not appeal. Had the
    parents accepted the settlement offer, they would not have
    obtained that result; they would have waived their claim for
    attorneys’ fees and costs; they would have been precluded
    from re-enrolling T.B. in public school for at least some
    period of time, even if his condition changed; in the event of
    re-enrollment, if there was a disagreement over the
    56         T.B. V. SAN DIEGO UNIFIED SCH. DIST.
    appropriate program for T.B., during the pendency of that
    dispute they would have agreed to forego the right to
    maintain his then-current program as the stay put
    arrangement and instead would have been required to accept
    whatever the school district offered; and if they chose to
    continue the garage school program, they would have been
    required to pay for part of it with their own funds. Based
    upon the facts of this case we conclude, contrary to the
    district court, that the settlement offer was not as favorable to
    the parents as the ALJ’s decision.
    In addition, we conclude that the parents were
    “substantially justified” in rejecting the May 4 settlement
    offer, under the exception provided in 20 U.S.C.
    § 1415(i)(3)(E). Even if we agreed that the result obtained
    through the ALJ hearing was not “more favorable to the
    parents” than the terms of the May 4 offer, perhaps because
    the parents did in fact prefer to educate T.B. at home, that
    does not end the question. Subsection (E) establishes an
    exception to the statutory bar that applies even if a
    determination were made under 20 U.S.C. § 1415(i)(3)(D)(i)
    that the settlement offer was more favorable:
    “Notwithstanding subparagraph (D), an award of attorneys'
    fees and related costs may be made to a parent who is the
    prevailing party and who was substantially justified in
    rejecting the settlement offer.” As discussed above, the
    parents qualified as a prevailing party. Even if the May 4
    offer could be considered more favorable from the parents’
    perspective in the aggregate, it was clearly less favorable to
    the parents in several material respects, as described in the
    preceding paragraph. These inferior aspects of the district’s
    offer establish that the parents were “substantially justified in
    rejecting [it].” 
    Id. § 1415(i)(3)(E).
    Fees for services on and
    T.B. V. SAN DIEGO UNIFIED SCH. DIST.                       57
    after May 4, 2007 should not have been denied based on the
    IDEA’s statutory bar.14
    B. Reasonableness
    The district court’s second rationale for reducing the fee
    award was based on the perceived unreasonableness of the
    claim for fees. The court held that “[e]ven if the IDEA’s
    provision did not strictly apply to the facts, the Court, in its
    discretion, would not award the Brenneises fees after they
    14
    We make clear that we do not hold as a matter of law that there is
    anything improper about an arrangement along the lines of the settlement
    proposal here, under which the school district would pay a certain amount
    for a given period and the parents would take responsibility for the child’s
    education program. The IDEA favors settlement of disputes between
    parents and school districts. See, e.g., D.R. ex rel. M.R. v. E. Brunswick
    Bd. of Educ., 
    109 F.3d 896
    , 901 (3d Cir. 1997) (“[P]ublic policy plainly
    favors upholding the settlement agreement entered between D.R.’s parents
    and the Board.”); cf. McDermott, Inc. v. AmClyde, 
    511 U.S. 202
    , 215
    (1994) (noting in another context that “[p]ublic policy wisely encourages
    settlements”). A cash settlement would not provide for education of the
    child in the public school, the approach preferred under the IDEA, but in
    some circumstances it may be the best course for the child, consistent with
    the IDEA.
    However, we also caution that a district should not be able to threaten
    parents that they might be denied attorneys’ fees and costs and be forced
    to bear the expense of litigation themselves thereafter by declining to
    accept an offer that absolves the district of responsibility, even if the
    monetary settlement offered would cover the costs for the parents to
    personally oversee or provide for their children’s education. The IDEA
    and California law impose responsibilities on local school districts for the
    education of children with disabilities. 20 U.S.C. § 1400(d)(1)(A); see,
    e.g., Cal. Educ. Code § 56000 et seq. For parents who express a
    preference for the school district to assume those obligations, failure to
    settle for a cash payout should not trigger the statutory bar.
    58         T.B. V. SAN DIEGO UNIFIED SCH. DIST.
    unreasonably rejected the May 3, 2007, favorable settlement
    offer.”
    The district court relied on two factors in exercising its
    discretion. First, it held that T.B. received no benefit from
    the due process hearing. Second, the district court found that
    “the Brenneises unreasonably rejected the May 3, 2007,
    settlement offer.” We disagree on both scores.
    1. The benefit that T.B. obtained
    The district court reasoned that T.B. never benefitted from
    his victory in the due process hearing because “[t]he
    Brenneises never implemented the [ALJ]’s Decision on the
    three issues that had been decided in their favor. Instead,
    they chose to maintain the Stay Put placement through T.B.’s
    2006–07 and 2007–08 school years that had kept him in
    garage school since the parents had removed him from public
    school in 2003.” Even after the district court upheld the
    ALJ’s ruling in June 2010, the school district’s conduct did
    not change, because T.B. had moved out of the district and
    had been living in Minnesota “for two years by the date of
    that decision.”
    We disagree with the district court’s conclusion that the
    Brenneises did not obtain any benefit from the court hearing.
    First, this finding is in conflict with its ruling that they were
    the “prevailing party.” Indeed, the district court cited
    Supreme Court precedent that a “plaintiff ‘prevails’ when
    actual relief on the merits of his claim materially alters the
    legal relationship between the parties by modifying the
    defendant’s behavior in a way that directly benefits the
    plaintiff.” Farrar v. Hobby, 
    506 U.S. 103
    , 111–12 (1992)
    (emphasis added by district court); see also Bd. of Educ. of
    T.B. V. SAN DIEGO UNIFIED SCH. DIST.               59
    Downers Grade Sch. Dist. No. 58 v. Steven L., 
    89 F.3d 464
    ,
    468–69 (7th Cir. 1996) (holding that the definition of
    prevailing party under 42 U.S.C. § 1988, as discussed in
    Farrar, is the same as that used in the IDEA). If, as the
    district court correctly held, the Brenneises had prevailed,
    they also necessarily obtained an actual benefit.
    This case is unusual in that the Brenneises did not take
    advantage of the benefit they received through the ALJ’s
    decision, but that is not automatically fatal to their fee
    request. As the district court found in connection with the
    prevailing party discussion, the Brenneises changed the legal
    relationship between the parties in their favor and secured the
    option of relief. The failure to exercise that option does not
    render the relief nonexistent. See, e.g., M.L. v. Fed. Way Sch.
    Dist., 
    401 F. Supp. 2d 1158
    , 1163 (W.D. Wash. 2005) (“An
    option need not be exercised in order to be ‘more favorable
    [than a settlement offer].’”), vacated on other grounds,
    
    394 F.3d 634
    , 638 (9th Cir. 2005); M.C. ex rel. C.M. v. Bd. of
    Educ. of Whitesboro Cent. Sch. Dist, No. 97-CV-1533, 
    1998 WL 951675
    , at *3 (N.D.N.Y. Sept. 1, 1998) (holding that the
    plaintiffs had prevailed because “[t]he availability of this
    option for M.C. changed the legal relationship to the
    plaintiffs’ benefit . . . .”).
    That the Brenneises moved to Minnesota did not render
    the relief illusory. 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. It is
    the relief that they earned “at the time of the judgment or
    settlement” that is important. 
    Farrar, 506 U.S. at 111
    .
    60         T.B. V. SAN DIEGO UNIFIED SCH. DIST.
    Furthermore, it would be perverse to deny plaintiffs fees
    for the supposed failure to exercise an option when some of
    the blame for that failure may lie with the defendants. By
    way of illustration, a defendant should not be able to lose in
    court, resist and delay enforcement of the relief awarded, and
    then attempt to escape payment of attorneys’ fees on the
    ground that the plaintiff never took advantage of the relief.
    As discussed earlier in relation to the summary judgment on
    Count V of the Second Amended Complaint, there is
    outstanding a genuine dispute of material fact as to whether
    the district was deliberately indifferent to T.B.’s rights by
    failing to abide by California’s g-tube feeding standards. It
    could be found that the district hampered T.B.’s return to
    school, in which case the failure of the Brenneises to take
    advantage of the ALJ decision could fairly be attributed to the
    district’s own actions.
    On remand the district court should take into account the
    value of the relief obtained and may consider the reasons why
    the Brenneises did not exercise the relief they won. See
    Aguirre v. L.A. Unified Sch. Dist., 
    461 F.3d 1114
    , 1117–21
    (9th Cir. 2006) (explaining that fees under the IDEA should
    reflect the degree of success obtained by the plaintiffs). The
    fact that the family moved to Minnesota did not mean that
    they could not have obtained any benefit.
    2. Unreasonable rejection of the settlement offer
    The second factor that the court cited in the exercise of its
    discretion was that “the Brenneises unreasonably rejected the
    May 3, 2007, settlement offer.” In the court’s view, “the
    Brenneises demanded an extremely high payment and took an
    all-or-nothing approach. Either they secured every demand
    on their lengthy list or T.B. would remain in garage school.
    T.B. V. SAN DIEGO UNIFIED SCH. DIST.                          61
    Settlement requires both sides to make concessions, but the
    parents were unwilling to compromise to reach a fair result.”
    On that basis, the court denied all fees and costs for work
    done on and after May 4, 2007. That denial was an abuse of
    discretion. For the reasons noted above in support of our
    conclusion that the settlement offer was not as favorable for
    the parents as the ALJ’s decision, the district court’s finding
    that the Brenneises acted unreasonably in rejecting that offer
    was clearly erroneous.15
    C. The fee calculation
    The district court did award a total of $55,433.91 for fees
    and costs incurred prior to May 4, 2007. We vacate that
    award and remand for further consideration.
    1. The compliance complaint
    As described above, the Brenneises filed a request for a
    Compliance Complaint Investigation with the California
    Department of Education in July 2006. They alleged that the
    district had failed to implement T.B.’s July 2006 extended
    school year IEP. The compliance complaint report, published
    in November 2006, provided 24 hours of English language
    arts instruction and 80 minutes of adapted physical education
    instruction as a remedy.
    15
    We note in particular that the district court clearly erred in its apparent
    belief that the school district had previously offered $200,000 per year to
    settle the case, more than it was currently paying for garage school. More
    broadly, it is not apparent that the inability to reach agreement was
    entirely the responsibility of the Brenneises. As the district court itself
    observed in the same order, “[b]oth sides [were] responsible for creating
    and fostering the animosity that impaired an efficient resolution to the
    case.”
    62         T.B. V. SAN DIEGO UNIFIED SCH. DIST.
    In October 2007, the Brenneises’ attorneys sent the
    district a demand for $7,113.50 in fees and costs in
    connection with the compliance complaint. In November
    2007, the district offered $3,500 for their work in securing the
    compensatory education.
    In the district court action filed by the school district in
    January 2008, the district sought a declaratory judgment that
    it was not liable to pay any fees in relation to the compliance
    complaint. The Brenneises then amended their district court
    complaint to seek reasonable fees for that activity, relying on
    Lucht v. Molalla River School District, 
    225 F.3d 1023
    (9th
    Cir. 2000), in which we held that a party who prevails in a
    state’s complaint resolution procedure can recover attorneys’
    fees.
    In May 2011, the Brenneises accepted an offer of
    judgment from the school district for “Recovery of
    Reasonable Attorneys’ Fees in Connection with a CDE
    Compliance Complaint[] in the sum of $7,113.50, plus
    reasonable attorney’s fees and costs incurred by plaintiffs [in
    seeking that sum] prior to the date of this offer in an amount
    to be set by the Court.”
    The Brenneises sought $48,173.00 in fees and costs for
    obtaining the original $7,113.50 fee award. The district court
    denied these fees because “the parties previously settled their
    dispute as to the amount of attorneys’ fees recoverable in
    connection with that 2006 State proceeding.”
    It appears that the district court was mistaken about the
    parties’ May 2011 agreement. The court did not state that it
    viewed the amount of “reasonable attorneys’ fees” for
    recovering the $7,113.50 in fees and costs as zero; rather, it
    T.B. V. SAN DIEGO UNIFIED SCH. DIST.              63
    considered that this dispute was already settled. All that was
    settled, however, was the payment of $7,113.50 for fees and
    costs previously incurred in connection with the compliance
    complaint itself. The May 2011 settlement itself explicitly
    provided for additional fees and costs, in an amount to be
    determined by the court, incurred by the Brenneises in
    seeking that payment. That part of the claim was not settled,
    so rejection of that claim on the ground that it had been
    settled was incorrect. On remand, the court should determine
    what fees are owing for recovering the $7,113.50 for the
    compliance complaint.
    2. The detail in the fee and costs award
    The Brenneises also object that the district court did not
    sufficiently explain its fee award. We agree.
    The district court ruled that the Brenneises were eligible
    to recover the “reasonable fees and related costs that were
    incurred before May 4, 2007, when they rejected the School
    District’s favorable offer to settle the IDEA issues.” The
    court used the lodestar approach. First, it determined the
    reasonable billing rates for the attorneys and staff involved in
    the case, based on their experience and the location. It then
    determined the “reasonable hours” for services rendered
    before May 4, 2007. The court went through each of the
    different categories of work for which the Brenneises
    requested compensation and adjudicated the district’s
    objections to the hours billed.
    As we held in Moreno v. City of Sacramento, 
    534 F.3d 1106
    , 1111 (9th Cir. 2008), “[w]hen the district court makes
    its award, it must explain how it came up with the amount.”
    Here, it is not possible for us to determine how the court
    64         T.B. V. SAN DIEGO UNIFIED SCH. DIST.
    arrived at the amount of its award. Because there was a large
    difference between the fee request and the fee award—the
    court only awarded about five-ninths of what the Brenneises
    were requesting up to May 4, 2007—some greater
    explanation of its adjustments is in order. See 
    id. There were
    two main problems with the court’s
    explanation. First, the court did not state how it reduced the
    billable time for each category of work. For example, the
    court “award[ed] reasonable hours to review the School
    District’s request for a Due Process hearing, to discuss a
    strategy for responding to it, to consult with experts, and to
    gather evidence,” but did not state what these reasonable
    hours were. As another example, the court “largely
    overrule[d] objections to the amount of time the firm spent in
    internal conferences,” but did not say to what extent it
    sustained the objections. Relatedly, the district court did not
    say how it was reducing the fees for each lawyer in each work
    category. Cutting an hour off the time claimed by one of the
    partners in the case, whom the court decided to compensate
    at $425 an hour, had a much larger effect than cutting an hour
    off the time billed by the associate, whom the court
    compensated at $125 an hour, and the paralegal, who was
    compensated at $95 an hour.
    Second, the court stated that it “significantly cut” the time
    that the Brenneises sought to be compensated for the fifteen
    out of the eighteen issues on which they lost in the due
    process hearing. But the court did not explain by what
    percentage it cut the time or why, nor did it explain which
    work it assigned to each losing issue. As we held in Padgett
    v. Loventhal, 
    706 F.3d 1205
    , 1209 (9th Cir. 2013), “[f]ailure
    on a claim does not automatically reduce the fee award.”
    Rather, “where attorney work proves beneficial to a
    T.B. V. SAN DIEGO UNIFIED SCH. DIST.                  65
    successful claim, district courts should generally award these
    fees in full, even if the work is also useful to an unsuccessful
    claim.” 
    Id. Where work
    is only useful to an unsuccessful
    claim, the fee request should be denied. See 
    id. Because the
    court did not explain how it reduced the time “devoted to
    losing issues,” or even what time was devoted to losing
    issues, the Brenneises are unable to object in any detail to the
    court’s determination and we are unable to effectively review
    it.
    We acknowledge that a precise explanation for each
    reduction from the fees counsel sought may be difficult, and
    we recognize that the district court may make general,
    across-the-board adjustments.              However, because the
    reduction in this case “passes well beyond the safety zone of
    a haircut . . ., the district court’s justification for the cuts must
    be weightier and more specific.” 
    Moreno, 534 F.3d at 1113
    .
    “The explanation need not be elaborate, but it must be
    comprehensible.” 
    Id. at 1111.
    See also Ferland v. Conrad
    Credit Corp., 
    244 F.3d 1145
    , 1151 (9th Cir. 2001)
    (remanding the fee award because the district court “did not
    explain except at the most general level why it reduced by
    more than half the number of attorney hours for which [the
    plaintiff] could be compensated, and did not explain at all the
    particular level of reduction . . . chosen” (footnote omitted));
    Gates v. Deukmejian, 
    987 F.2d 1392
    , 1400 (9th Cir. 1992)
    (remanding fee award because “the district court . . . failed to
    articulate a ‘concise but clear’ explanation for why the ten
    percent across-the-board reduction, when coupled with
    plaintiffs’ discrete billing judgments, properly compensated
    for plaintiffs’ overbilling or duplication”).
    The court’s ruling on nontaxable costs suffered from the
    same lack of clarity, although the absolute effect is much
    66           T.B. V. SAN DIEGO UNIFIED SCH. DIST.
    smaller.16 For example, the court reduced the Brenneises’
    photocopying request from approximately $8,200 to $4,394
    “to reflect the limited degree of success.” On remand, the
    court should strive to explain its reductions more precisely.
    V. Conclusion
    We affirm the district court’s grant of summary judgment
    in favor of the school district as to Counts IV and VII of the
    Second Amended Complaint. We reverse the grant of
    summary judgment as to Count V. We vacate and remand the
    award of attorneys’ fees and costs. Each party shall bear its
    own costs on appeal.
    AFFIRMED IN PART, REVERSED IN PART,
    VACATED IN PART, AND REMANDED.
    16
    The court did not rule on taxable costs under 28 U.S.C. § 1920,
    preferring that these be addressed by the clerk of court at the end of the
    litigation.
    

Document Info

Docket Number: 12-56060

Citation Numbers: 795 F.3d 1067, 2015 U.S. App. LEXIS 13365, 2015 WL 4591816

Judges: Fisher, Clifton, Rosenthal

Filed Date: 7/31/2015

Precedential Status: Precedential

Modified Date: 11/5/2024

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Sullivan Ex Rel. Sullivan v. Vallejo City Unified School ... , 731 F. Supp. 947 ( 1990 )

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