                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 28 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MARCUS I., by and through his parent             No. 12-16149
and next best friend Karen I.,
                                                 D.C. No. 1:10-cv-00381-SOM-
              Plaintiff - Appellee,              BMK

  v.
                                                 MEMORANDUM *
DEPARTMENT OF EDUCATION, State
of Hawaii,

              Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Hawaii
                Susan Oki Mollway, Chief District Judge, Presiding

                      Argued and Submitted January 22, 2013
                            San Francisco, California

Before: TASHIMA, W. FLETCHER, and BERZON, Circuit Judges.

       1. A stay-put order pursuant to 20 U.S.C. § 1415(j) is appealable under the

collateral order doctrine, as it conclusively determines the disputed question of the

child’s stay-put location, resolves an important issue completely separate from the



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
merits of the child’s ultimate placement, and is effectively unreviewable on appeal

from a final judgment. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 468

(1978) (citations omitted).

      2. We affirm the district court’s order of April 12, 2012, granting stay-put at

Loveland Academy. Whether or not this result is dictated as a matter of collateral

estoppel, the clear implication of our 2011 memorandum was that the Five Oaks

placement was no longer operative.

      We dismissed Marcus’s challenge to the Five Oaks placement as moot,

relying in part on the DOE’s representation that it was no longer seeking to send

Marcus to Five Oaks and that the Five Oaks placement therefore would never be

implemented. See Marcus I. ex rel. Karen v. Dep’t of Educ., 434 F. App’x 600,

601-02 (9th Cir. 2011). The premise of the mootness decision was that the Five

Oaks placement had lapsed for all purposes, not that it would remain in place as the

last implemented IEP placement, as the DOE now maintains.

      This case is not controlled by K.D. ex rel. C.L. v. Dep’t of Educ., Haw., 665

F.3d 1110 (9th Cir. 2011), because in that case, the child’s parents had unilaterally

changed his placement. Here, however, Judge Ezra found in the case underlying

our 2011 memorandum, and the state conceded at oral argument in this case, that

Marcus “was placed at Loveland by the State, and not unilaterally by his parents.”


                                          2
Marcus I. ex rel. Karen I. v. Haw., Dep’t of Educ., Civ. No. 08-00491 DAE/BMK,

2009 WL 3378589, at *1 n.3 (D. Haw. Oct. 21, 2009). Moreover, unlike in K.D.,

the settlement agreement for the 2006-07 school year was in terms a placement, not

just an agreement to pay money.

      Marcus I. has the statutory right to remain at the last agreed-upon placement

or last implemented IEP placement — that is, the one in effect before the IEP

currently being adjudicated. See 20 U.S.C. § 1415(j); Joshua A. v. Rocklin Unified

Sch. Dist., 559 F.3d 1036, 1037-40 (9th Cir. 2009). Here, with the Five Oaks

placement moot — that is, inoperative for all purposes — the Loveland placement

is the relevant one for stay-put purposes.

      AFFIRMED.




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