                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 08 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


EMMA C., by and through her Guardian             No.   14-16479
Ad Litem; et al.,
                                                 D.C. No. 3:96-cv-04179-TEH
              Plaintiffs-Appellees,

 v.                                              MEMORANDUM*

DELAINE EASTIN, individually and in
her capacity as Superintendent of Public
Instruction for the State of California and
CALIFORNIA DEPARTMENT OF
EDUCATION,

              Defendants-Appellants.



EMMA C., by and through her Guardian             No.   14-16557
Ad Litem; et al.,
                                                 D.C. No. 3:96-cv-04179-TEH
              Plaintiffs-Appellees,

 v.

STATE BOARD OF EDUCATION,

              Defendant-Appellant.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
EMMA C., by and through her Guardian              Nos. 15-16853
Ad Litem; et al.,                                      15-17545

              Plaintiffs-Appellees,               D.C. No. 3:96-cv-04179-TEH

 v.

DELAINE EASTIN, individually and in
her capacity as Superintendent of Public
Instruction for the State of California; et
al.,

              Defendants-Appellants.


                   Appeal from the United States District Court
                       for the Northern District of California
                  Thelton E. Henderson, District Judge, Presiding

                     Argued and Submitted November 16, 2016
                             San Francisco, California

Before: THOMAS, Chief Judge, and KOZINSKI and FRIEDLAND, Circuit
Judges.

      In this consolidated appeal, the California Department of Education

(“Department of Education”), California Superintendent of Public Instruction, and

California State Board of Education (collectively “the State”) appeal the district

court’s orders requiring the parties to develop and implement a corrective action

plan (“Action Plan”). The Action Plan was designed to ensure that the Department

of Education’s state-level monitoring system would be adequate to guarantee that


                                              2
the Ravenswood City School District (“Ravenswood”) continues to satisfy its

obligations under the parties’ first amended consent decree (“Consent Decree”) and

the parties’ joint submissions to the Court, the most relevant of which is the Fifth

Joint Statement. The parties entered into the Consent Decree to bring Ravenswood

and the State into compliance with the Individuals with Disabilities Education Act

(“IDEA”). We have jurisdiction under 28 U.S.C. § 1291. We affirm.

      1.     The plaintiffs have standing to bring this action, as parties and

intended beneficiaries of the Consent Decree. Hook v. State of Ariz., Dept. of

Corrs., 972 F.2d 1012, 1014 (9th Cir. 1992). They have also have suffered a

direct, concrete, and particularized injury caused by Department of Education’s

monitoring system that would be remedied by the Action Plan. See, e.g., Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).

      2.     Because this dispute arises under the Consent Decree, and not under

any particular provision of the IDEA, the plaintiffs have the right to enforce the

State’s obligations under the Consent Decree. In addition, we note that the State

has waited more than a decade to raise its argument that the plaintiffs have no

private right of action. Contrary to counsel’s argument at hearing, whether the

plaintiffs have a right of action is not a jurisdictional question, and that argument

may be waived. See, e.g., Lexmark Int’l, Inc. v. Static Control Components, Inc.,


                                           3
134 S. Ct. 1377, 1386–88 & n.4 (2014); Indep. Living Ctr. of S. Cal., Inc. v.

Shewry, 543 F.3d 1050, 1065 n.17 (9th Cir. 2008). By waiting so long and signing

the Consent Decree, the State has waived this defense.

      3.     The district court retained jurisdiction to enforce the Consent Decree,

as a judgment of the court. United States v. FMC Corp., 531 F.3d 813, 819 (9th

Cir. 2008). Further, the language of the Consent Decree and the Fifth Joint

Statement is clear and explicit, and it manifests the parties’ mutual intent to grant

the district court broad authority to enforce the Consent Decree.1 The language of

the Consent Decree and Fifth Joint Statement evinces the parties’ intent to make

the Department of Education’s state-level monitoring system as applied to

Ravenswood subject to review by the appointed Court Monitor. The parties

intended to grant the district court broad authority to ensure the adequacy of the



      1
         For instance, under Section 4.1 of the Consent Decree, the “[Department of
Education] shall implement an effective monitoring system” to “ensure
Ravenswood’s performance of all its obligations.” Under Section 13.0 of the
Consent Decree, “after an appropriate hearing, the Court may order any
appropriate relief” to ensure compliance with and implementation of the Consent
Decree. Section 13.0 also allows the district court to release the Department of
Education from its obligations under the Consent Decree once the Department of
Education’s “state-level system in place is capable of ensuring continued
compliance with the law and the provision of [a free appropriate public education]
to children with disabilities in Ravenswood.” In addition, under Sections 6.1.7 and
7.3, the Court Monitor or Plaintiffs “may request that the Court issue an order to
implement or effectuate [the Consent Decree],” or “any other order at any time”.
                                           4
monitoring system, including the authority to order the development and

implementation of an Action Plan.

      4.     The district court did not exceed its subject matter jurisdiction or the

scope of the Consent Decree in its orders.2 The Consent Decree and the Fifth Joint

Statement explicitly authorize the Court Monitor to provide the district court with

determinations and recommendations about the Department of Education’s state-

level monitoring system as applied to Ravenswood, and they authorize the district

court to order implementation of those recommendations. The State itself has

proposed only a statewide system to meet its monitoring obligations under the

Consent Decree, and the district court’s order merely reflected this choice by the

State in ordering relief as to that system. Although a plaintiff who alleges no

statewide injuries has no standing to pursue statewide relief, see, e.g., Lewis v.

Casey, 518 U.S. 343, 358 (1996), and although injunctions must not be overbroad,

see, e.g., Horne v. Flores, 557 U.S. 433, 470–71 (2009), here the State itself

appears to have chosen to turn its state-level obligation under the Consent Decree


      2
        Interpretation of a consent decree is a question of law we review de novo.
Gates v. Rowland, 39 F.3d 1439, 1444 (9th Cir. 1994) (citation omitted). We do,
however, provide some deference to the district court “based on the [district]
court’s extensive oversight of the decree from the commencement of the litigation
to the current appeal.” Labor/Cmty. Strategy Ctr. v. Los Angeles Cnty. Metro.
Transp. Auth., 564 F.3d 1115, 1119 (9th Cir. 2009) (citation and internal quotation
marks omitted).
                                           5
to monitor Ravenswood into an obligation to monitor school districts

statewide—by choosing to present the court with only a uniform statewide

monitoring approach. Indeed, the district court emphasized that the Action Plan

does not exceed the scope of the Consent Decree “[s]imply because the corrective

action steps the Monitor recommends may require CDE—due to the nature of its

administrative scheme, or other internal reasons—to implement changes in other

district in addition to Ravenswood.” In addition, the State’s objections to the

Monitor’s determinations were untimely, and therefore waived under the terms of

the Fifth Joint Statement. In light of these choices by the State, the scope of the

injunction may be affirmed.

      5.     The district court’s orders do not infringe on the role of the United

States Department of Education, as the State claims. As the district court pointed

out, there was no evidence in the record that the federal government had actually

reviewed or considered the questions at issue here. Further, a federal agency

“cannot usurp the power of a district court to construe the provisions of an order it

has issued.” Nehmer v. U.S. Dep’t of Veteran Affairs, 494 F.3d 846, 860 (9th Cir.

2007).

      6.     The district court did not violate the Tenth Amendment, which

reserves non-delegated power to the states. This case does not involve the power


                                           6
of Congress, nor a question of statutory interpretation. Rather, the issues involve

interpretation of the Consent Decree, entered into freely by the State on its own

accord, and enforceable as a judgment of the court.

      7.     The district court’s orders do not impermissibly bind future state

officials. A party to a consent decree may request to be released from its

obligations when circumstances have changed. Flores, 557 U.S. at 447.

      8.     The State was not denied due process of law. Due process requires

notice and an opportunity to be heard. Mullane v. Cent. Hanover Bank & Tr. Co.,

339 U.S. 306, 314 (1950). Here, the State has had ample opportunities to be heard

throughout the fifteen years developing the Consent Decree, joint statements, and

the Action Plan in the form of “meet-and-confers,” negotiations, objections,

motions, and hearings. The terms of the Consent Decree and Action Plan are

sufficiently specific to satisfy the notice requirements of due process. The State

negotiated for and consented to the Consent Decree and the Fifth Joint Statement.

It is “now in no position to object to [them] or to rely on the vagueness of [their]

language as a defense.” United States v. Schafer, 600 F.2d 1251, 1253 (9th Cir.

1979). The Action Plan is a detailed, sixty-five page document that adopts terms

from the IDEA. PER 50–51; See 20 U.S.C. § 1416; 34 C.F.R. § 300.600–608.

The terms of the IDEA are routinely interpreted and enforced by courts. See, e.g.,


                                           7
Forest Grove Sch. Dist. v. T.A., 523 F.3d 1078, 1088–89 (9th Cir. 2008)

(articulating relevant factors to be considered in interpreting “appropriate” relief

under IDEA).



      AFFIRMED.3




      3
          All pending motions are denied.
                                            8
