N.F. v. Antioch Unified School Dist.

FILED
NOT FOR PUBLICATION
MAY 2 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
N.F., a minor, by and through his guardian No. 21-15781
ad litem Melanie Flyte,
D.C. No. 4:19-cv-02453-KAW
Plaintiff-Appellant,
v. MEMORANDUM*
ANTIOCH UNIFIED SCHOOL
DISTRICT, A Local Educational Agency,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Kandis A. Westmore, Magistrate Judge, Presiding
Argued and Submitted April 13, 2022
San Francisco, California
Before: SILER,** W. FLETCHER, and M. SMITH, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Petitioner N.F. appeals from the district court’s grant of summary judgment
in favor of the Antioch Unified School District (“AUSD”). We have jurisdiction
under 28 U.S.C. § 1291.
N.F. is an elementary school student who resided at all relevant times in the
boundaries of AUSD. In May 2018, N.F. filed a due process hearing request with
the Office of Administrative Hearings (“OAH”) and named AUSD as the
respondent. After four days of hearings and reviewing the evidence presented, the
Administrative Law Judge (“ALJ”) found in favor of AUSD on all the issues raised
by N.F. N.F. filed an action seeking review of the ALJ’s decision in the Northern
District of California. The district court denied N.F.’s motion for summary
judgment and granted AUSD’s cross-motion for summary judgment. N.F. timely
appealed.
We review the district court’s findings of fact for clear error, and we review
questions of law and mixed questions of fact and law de novo. N.B. v. Hellgate
Elementary Sch. Dist. ex rel. Bd. of Dirs., 541 F.3d 1202, 1207 (9th Cir. 2008).
We accord administrative rulings in Individuals with Disabilities Education Act
(“IDEA”) cases “due weight,” Bd. Of Educ. v. Rowley, 458 U.S. 176, 206 (1982),
with greater deference given where the findings are “thorough and careful,” R.B. ex
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rel. F.B. v. Napa Valley Unified Sch. Dist., 496 F.3d 932, 942 (9th Cir. 2007). The
ALJ’s thorough and careful decision in this case is entitled to substantial deference.
1. In 2016, Dr. Valerie Lopes assessed N.F. and concluded that he did not
meet the California eligibility criteria for autism. N.F. contends that AUSD’s
failure to provide the testing protocols underlying Lopes’s assessment violated
IDEA and the California Education Code by interfering with his ability to show
that the assessment was not legally compliant. We agree with the ALJ’s finding
that this argument was not properly raised because N.F. did not plead this issue in
his complaint to OAH. N.F. made this argument for the first time in his closing
brief before the ALJ.
2. On appeal before us, N.F. also contends that AUSD violated IDEA by
failing to timely review N.F.’s behavior intervention plan (“BIP”). This issue is
raised for the first time on appeal. Before the ALJ and district court, N.F. argued
only that AUSD failed to timely convene Individualized Education Program
(“IEP”) meetings to discuss his BIP. “Ordinarily, an appellate court will not hear
an issue raised for the first time on appeal.” Kaass L. v. Wells Fargo Bank, N.A.,
799 F.3d 1290, 1293 (9th Cir. 2015) (quoting Cornhusker Cas. Ins. Co. v.
Kachman, 553 F.3d 1187, 1191 (9th Cir. 2009)). We therefore do not consider the
issue as it is newly stated on appeal.
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Even if we were to consider the issue as it was raised below, the record does
not support N.F.’s contention that AUSD committed a procedural violation.
AUSD convened multiple meetings with the express purpose of discussing and
revising N.F.’s BIP.
3. N.F. contends that AUSD violated IDEA by conducting a manifestation
determination review meeting (“MDR”) on January 18, 2018, without providing
his parents timely notice of the meeting and without his parents’ consent. Even if
AUSD committed a procedural violation, that violation is not actionable if it did
not deprive N.F. of a free appropriate public education (“FAPE”). See Amanda J.
ex rel. Annette J. v. Clark Cnty. Sch. Dist., 267 F.3d 877, 892 (9th Cir. 2001)
(explaining that “[t]echnical deviations” do not render an IEP invalid). At the
January 18 MDR, AUSD concluded that N.F.’s behaviors were a manifestation of
N.F.’s disability. This conclusion meant that no disciplinary action would be taken
against N.F. N.F.’s educational placement was not changed as a result of the
MDR. Because the MDR did not affect either the educational opportunities or
placement of N.F., it did not deprive him of a FAPE.
AFFIRMED.
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