                 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.
