F. K. v. Edu-Hi

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 26 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
F. K., by and through her mother, A.K., No. 13-15071
Plaintiff - Appellant, D.C. No. 1:12-cv-00240-ACK-RLP
v.
MEMORANDUM*
STATE OF HAWAII DEPARTMENT OF
EDUCATION,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Hawaii
Alan C. Kay, Senior District Judge, Presiding
Argued October 7 & 9, 2014 and Submitted October 9, 2014
Honolulu, Hawaii
Before: TASHIMA, RAWLINSON, and CLIFTON, Circuit Judges.
Appellant F.K., through her mother, A.K., appeals the district court’s
affirmance of two decisions issued by the State of Hawaii’s Office of
Administrative Hearings pursuant to the framework established by the Individuals
with Disabilities Education Act, 20 U.S.C. § 1400, et seq. As the parties are
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
familiar with the facts, procedural history, and arguments, we will not recount
them here. We affirm.
We consider the two Hearings Officer decisions challenged by Appellant in
turn. We begin with the decision dated April 9, 2012, designated DOE–SY
1011–126, which rejected F.K.’s challenge to the proposed placement at King
Intermediate School. This challenge raises four distinct issues.
First, we conclude that the district court did not err in giving deference to the
Hearings Officer’s findings. It is well-established that a federal court’s review of a
state administrative proceeding pursuant to the IDEA must give “due weight” to
the findings and conclusions of the state proceeding. Bd. of Educ. of Hendrick
Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206 (1982). Deference is
particularly appropriate where administrative findings “are thorough and careful.”
Union Sch. Dist. v. Smith, 15 F.3d 1519, 1524 (9th Cir. 1994). The findings and
analysis in the administrative proceeding at issue here were sufficiently thorough
and careful to merit deference. The failure to provide citations to specific pages in
the administrative record does not require stripping those findings and conclusions
of deference.
Second, we reject Appellant’s assertion that the DOE failed to make a
specific written offer of placement to F.K. The three-page Prior Written Notice
2
dated March 10, 2011 met the IDEA’s requirements. See K.D. ex rel. C.L. v. Dep’t
of Educ. Hawaii, 665 F.3d 1110, 1127 (9th Cir. 2011) (formal offer of placement
made where the offer “identified the specific school [the student] was to attend . . .
along with a description of the classroom environment”).
Third, we are not persuaded by Appellant’s contention that the proposed
placement at King Intermediate School was not an appropriate educational setting
within the meaning of the IDEA. In this respect, the IDEA mandates that students
be provided with “a basic floor of opportunity.” Rowley, 458 U.S. at 200. The
Hearings Officer heard extensive testimony for and against the plan to place F.K.
at King Intermediate School. The district court adopted the Hearings Officer’s
findings, which were based in part on determinations as to witness credibility.
Those factual findings were not clearly erroneous. See E.M. ex rel. E.M. v. Pajaro
Valley Unified Sch. Dist. Office of Admin. Hearings, 758 F.3d 1162, 1170 (9th Cir.
2014) (this court “review[s] the district court’s factual determinations for clear
error, even when based on the administrative record”) (quotation omitted). In light
of these factual findings, the district court’s conclusion—that F.K. had failed to
establish that King was not an appropriate educational setting under the
IDEA—was correct.
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Fourth, we disagree with Appellant’s argument that the DOE could not have
implemented the February 28, 2011 individualized education program that it
offered to F.K. We have previously held that “a material failure to implement an
IEP violates the IDEA.” Van Duyn ex rel. Van Duyn v. Baker Sch. Dist. 5J, 502
F.3d 811, 822 (9th Cir. 2007) (emphasis in original). Both the Hearings Officer and
the district court considered this issue, made factual findings regarding the DOE’s
ability to implement the IEP, and rejected Appellant’s claim. These factual
findings were not clearly erroneous, and we agree with the district court’s decision
to reject this claim.
We turn next to F.K.’s challenge to the second Hearings Officer decision,
dated April 25, 2012 and designated DOE–SY 1011–067. We reject Appellant’s
contention that the DOE’s failure to make payments to Loveland Academy
constituted either a unilateral change in F.K.’s placement or a denial of a FAPE for
F.K. under the IDEA. It is, of course, true that a free appropriate public education
must be free to F.K. and her family. It is not difficult to imagine circumstances in
which a failure on the part of the DOE to pay a private provider would fall afoul of
the IDEA, particularly where that failure to pay significantly impacted the
student’s educational program. But here, as the district court found, the DOE
resumed its payments to Loveland pursuant to the preliminary injunction order
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issued in another action, Civ. No. 12-00136 ACK-RLP. The district court further
found that F.K.’s educational program had not experienced any significant changes
as a consequence of the DOE’s nonpayment. In light of these facts, we conclude
that the district court’s decision was correct.1
The related but distinct issue of whether Act 129 is preempted by federal
law, raised more directly in the other action, does not have to be addressed to
resolve this case. We express no opinion regarding that issue.
AFFIRMED.
1
Appellant appears to be of the view that a district court’s review of a
Hearings Officer’s decision under the IDEA must be limited to the facts as they
existed at the time the Hearings Officer rendered his decision, and that the district
court thus should not have considered the subsequent resumption of tuition
payments in determining whether the DOE had denied F.K. a FAPE or made a
unilateral change in placement. Our case law does not support this contention. The
IDEA expressly provides for the hearing of “additional evidence” by the district
court. 20 U.S.C. § 1415(i)(2)(C)(ii). And we have previously established that a
district court called upon to review a state administrative decision under the IDEA
may take into account “relevant events occurring subsequent to the administrative
hearing.” Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1473 (9th Cir. 1993)
(quotation omitted). The subsequent resumption of payments by the DOE is one
such “event” that may properly be considered by the district court.
5