                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                             AUG 14 2017
                                                                         MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS
J. T., by and through his parents Renee and      No.    14-16143
Floyd T.,
                                                 D.C. No.
              Plaintiff-Appellant,               1:11-cv-00612-LEK-BMK

 v.
                                                 MEMORANDUM*
DEPARTMENT OF EDUCATION,
STATE OF HAWAII,

              Defendant-Appellee.


                   Appeal from the United States District Court
                              for the District of Hawaii
                   Leslie E. Kobayashi, District Judge, Presiding

                        Argued and Submitted June 16, 2017
                                Honolulu, Hawaii

Before: FISHER, PAEZ, and NGUYEN, Circuit Judges.

      Through his parents, J.T. appeals the district court’s orders affirming in part

and reversing in part the administrative hearing officer’s rulings on his due process

hearing request (the “Request”), which sought reimbursement of private school



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
tuition at Loveland Academy (“Loveland”) under the Individuals with Disabilities

Education Act (“IDEA”), 20 U.S.C. §§ 1400–1482. We have jurisdiction under 28

U.S.C. § 1291, and we reverse and remand for further proceedings.

      We review de novo a district court’s legal conclusions, including whether a

special education placement is proper, see Cty. of San Diego v. Cal. Special Educ.

Hearing Office, 93 F.3d 1458, 1466 (9th Cir. 1996), but we review a district

court’s factual findings for clear error, see Capistrano Unified Sch. Dist. v.

Wartenberg ex rel. Wartenberg, 59 F.3d 884, 891 (9th Cir. 1995). We review for

abuse of discretion a district court’s ruling denying reimbursement. See Forest

Grove Sch. Dist. v. T.A., 523 F.3d 1078, 1084 (9th Cir. 2008), aff’d, 557 U.S. 230

(2009).

      1. As a threshold matter, the district court erred when it concluded that the

Request was not timely. Hawaii requires parents or guardians to file a

reimbursement request “within one hundred and eighty calendar days of a

unilateral special education placement, where the request is for reimbursement of

the costs of the placement.” Haw. Rev. Stat. § 302A-443(a)(2). We have defined

“placement” as “occur[ing] when one party unilaterally (i.e., without consent or

agreement of the other party) enrolls the student in a special education program.”

K.D. ex rel. C.L. v. Dep’t of Educ., Haw., 665 F.3d 1110, 1122 (9th Cir. 2011)


                                           2
(emphasis added) (quoting Makiko D. v. Hawaii, No. 06-00189, 2007 WL

1153811, at *7 (D. Haw. 2007)). Although J.T. began attending Loveland for

assessment in July 2010, he did not officially enroll until November 2010.

Measured from the time of enrollment, J.T.’s March 2, 2011 request was timely.

      2. Turning to the merits, we conclude that the district court abused its

discretion when it held that Loveland was not a proper placement. A placement is

proper if it is “specially designed to meet the unique needs of a handicapped child,

supported by such services as are necessary to permit the child to benefit from

instruction.” C.B. ex rel. Baquerizo v. Garden Grove Unified Sch. Dist., 635 F.3d

1155, 1159 (9th Cir. 2011). Once the parents have established a denial of a free

appropriate public education and a proper placement, “the district court then must

exercise its ‘broad discretion’ and weigh ‘equitable considerations’ to determine

whether, and how much, reimbursement is appropriate.” Id. (emphasis added)

(quoting Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993)).

      Here, the district court collapsed the inquiry into whether a placement is

“proper” with its subsequent duty to weigh “equitable considerations.” The district

court concluded that Loveland was not designed to meet J.T.’s needs because he

“regressed in a number of areas” while a student there. While a student’s lack of

progress is an equitable consideration the district court has discretion to weigh, it is


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not a suitable basis for determining whether a placement was proper. Cf. Adams v.

Oregon, 195 F.3d 1141, 1149 (9th Cir. 1999) (determining that the “design[] and

implement[ation]” of a program is a “more pertinent question” than a student’s

progress or lack thereof).

      At the “proper placement” stage, the district court need only consider

whether, at the time of enrollment, the unilateral placement was “reasonably

calculated” to meet the student’s needs. Id. For this inquiry, relying on hindsight

is inappropriate. See id. We therefore remand for the district court to reconsider

whether J.T. has demonstrated that Loveland was a “proper placement,” before

exercising its “broad discretion,” C.B., 635 F.3d at 1159, to consider “all relevant

factors,” Forest Grove, 557 U.S. at 247, when determining if reimbursement is

appropriate.

      Because we reverse the district court’s May 31, 2012 order denying

reimbursement on this ground, we also vacate its March 24, 2014 order denying

attorneys’ fees. We need not address any other arguments raised by J.T.

      REVERSED and REMANDED for further proceedings.




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