                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 12 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

C. Q., a minor, by and through Guardians        No.    18-55779
Ad Litem Saku Quezada and Pablo
Quezada,                                        D.C. No.
                                                5:18-cv-01017-SJO-SHK
                Plaintiff-Appellee,

 v.                                             MEMORANDUM *

RIVER SPRINGS CHARTER SCHOOLS, a
California Local Education Agency,

                Defendant-Appellant.

                   Appeal from the United States District Court
                       for the Central District of California
                    S. James Otero, District Judge, Presiding

                     Argued and Submitted December 7, 2018
                              Pasadena, California

Before: RAWLINSON and BEA, Circuit Judges, and SETTLE,** District Judge.

      Defendant-Appellant River Springs Charter Schools (“River Springs”)

informed Plaintiff-Appellee C.Q. (“C.Q.”) that River Springs would transfer her to



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Benjamin H. Settle, United States District Judge for
the Western District of Washington, sitting by designation.
a different school during spring break of her current semester. C.Q. qualifies for

protection under the Individuals with Disabilities Education Act (“IDEA”), 20

U.S.C. §§ 1400 et seq., and filed a motion with the state administrative agency

requesting an order to stay put at the school she was currently attending, Prentice.

See 20 U.S.C. § 1415(j) (students entitled to stay-put at then-current educational

setting while legal dispute proceeds). After the Administrative Law Judge (“ALJ”)

denied C.Q.’s motion and failed to determine C.Q.’s then-current educational

setting, C.Q. filed a complaint in the district court and motion for preliminary

injunctive relief requesting Prentice as her stay-put placement. The district court

conducted a de novo review of the issue and granted C.Q.’s motion. River Springs

timely appealed. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      We review the district court’s grant of preliminary injunctive relief for abuse

of discretion. Am. Trucking Ass’ns, Inc. v. City of L.A., 559 F.3d 1046, 1052 (9th

Cir. 2009) (citing Lands Council v. Martin, 479 F.3d 636, 639 (9th Cir. 2007)). A

district court abuses its discretion if it bases its decision on an erroneous legal

standard or clearly erroneous findings of fact. Sierra Forest Legacy v. Rey, 577

F.3d 1015, 1021 (9th Cir. 2009) (citing Am. Trucking, 559 F.3d at 1052). Thus,

application of an incorrect legal standard in granting preliminary injunctive relief

or with regard to an underlying issue is grounds for reversal. See Earth Island Inst.

v. U.S. Forest Serv., 351 F.3d 1291, 1298 (9th Cir. 2003) (citation omitted).


                                           2                                     18-55779
      In this case, River Springs argues that the district court applied an incorrect

legal standard by conducting a de novo review instead of implementing the

traditional four-factor test for preliminary injunctive relief, which requires the

plaintiff to establish that: (1) she “is likely to succeed on the merits”; (2) she “is

likely to suffer irreparable harm in the absence of preliminary relief”; (3) “the

balance of equities tips in [her] favor”; and (4) “an injunction is in the public

interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). While

district courts throughout this circuit have applied both the de novo standard and

the traditional four-factor test, this court has yet to consider the issue of the

appropriate standard of review when an ALJ fails to determine a student’s stay-put

placement.

      Upon review of the record, we find no need to answer this standard of

review question because, even under the more stringent four-factor test, we find

that C.Q. has met her burden to establish that preliminary injunctive relief was

warranted. We find that C.Q. was likely to succeed on the merits because Prentice

was the only rational then-current placement. The homeschool program was not a

nonpublic school as required by the IEP, and C.Q. was not currently enrolled in a

homeschool program when River Springs proposed the transfer to Flabob.

Similarly, Flabob was not an available alternative because C.Q. was not currently

attending Flabob. Thus, the district court did not abuse its discretion in eliminating


                                            3                                       18-55779
the homeschool alternative and Flabob and concluding that Prentice was C.Q.’s

then-current placement.

      Furthermore, the other three factors weigh in favor of preliminary relief. We

agree with the district court that C.Q. would suffer irreparable harm in the absence

of relief because River Springs intended to transfer her to a new school in the

middle of the current semester causing an immediate disruption in her education.

The balance of hardships tips in C.Q.’s favor, and the public has an interest in

maintaining a child’s then-current educational environment while the parties

litigate the disputed transfer. Therefore, we affirm the district court’s issuance of

the injunction.

AFFIRMED.




                                          4                                     18-55779
                                                                            FILED
C.Q. v. River Springs Charter Schools, Case No. 18-55779
                                                                             JUN 12 2019
Rawlinson, Circuit Judge, concurring in the result
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
      I concur in the result reached by the majority because, and only because, the

Administrative Law Judge (ALJ) relied on out-of-circuit authority to support her

decision regarding the effect of a temporary placement on the “stay-put”

determination. In the absence of binding authority supporting the ALJ’s

conclusion, I am unable to conclude that the district court abused its discretion in

granting injunctive relief. See Johnson ex. rel. Johnson v. Special Educ. Hearing

Office, 287 F.3d 1176, 1179 (9th Cir. 2002) (noting that a district court abuses its

discretion when it commits an error of law).




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