                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


SAM K., by and through his parents;      No. 13-15486
DIANE C.; GEORGE K.,
                Plaintiffs-Appellees,      D.C. No.
                                        1:12-cv-00355-
                 v.                       ACK-BMK

STATE OF HAWAII DEPARTMENT OF
EDUCATION,
            Defendant-Appellant.



SAM K., by and through his parents;      No. 13-16452
DIANE C.; GEORGE K.,
               Plaintiffs-Appellants,      D.C. No.
                                        1:12-cv-00355-
                 v.                       ACK-BMK

STATE OF HAWAII DEPARTMENT OF
EDUCATION,                                OPINION
             Defendant-Appellee.


     Appeals from the United States District Court
               for the District of Hawaii
     Alan C. Kay, Senior District Judge, Presiding

                Argued and Submitted
          October 9, 2014—Honolulu, Hawaii
2       SAM K. V. STATE OF HAWAII DEP’T OF EDUC.

                        Filed June 5, 2015

    Before: A. Wallace Tashima, Johnnie B. Rawlinson,
          and Richard R. Clifton, Circuit Judges.

                 Opinion by Judge Clifton;
      Partial Concurrence and Partial Dissent by Judge
                        Rawlinson


                           SUMMARY*


        Individuals with Disabilities Education Act

     The panel affirmed the district court’s judgment in an
action brought by a disabled student under the Individuals
with Disabilities Education Act.

    The panel affirmed the district court’s conclusion that the
student’s parents were entitled to reimbursement for the costs
of a private school program because this placement was
bilateral, not unilateral, and so the parents’ request for
reimbursement was timely under the two-year statute of
limitations set forth in Haw. Rev. Stat. § 302A-443(a).
Distinguishing K.D. v. Dep’t of Educ., 665 F.3d 1110 (9th
Cir. 2011), the panel held that the placement was bilateral
because the State of Hawaii Department of Education tacitly
consented to the student’s placement by failing to propose an
alternative.


  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
       SAM K. V. STATE OF HAWAII DEP’T OF EDUC.              3

    Affirming the district court’s award of attorneys’ fees to
the student and his parents, the panel held that the district
court did not abuse its discretion in reducing the hourly rate
requested by counsel.

    Concurring in part and dissenting in part, Judge
Rawlinson agreed with the majority that the district court
acted within its discretion in determining a reasonable hourly
rate for the calculation of attorneys’ fees. She disagreed with
the majority’s holding that the private school placement
became bilateral due to implied consent on the part of the
Department of Education.


                         COUNSEL

Jocelyn H. Chong, Michelle Puu (argued), and Holly T.
Shikada, Deputy Attorneys General, Honolulu, Hawaii, for
Defendant-Appellant/Defendant-Appellee.

Carl M. Varady, Honolulu, Hawaii, for Plaintiffs-
Appellees/Plaintiff-Appellee.


                         OPINION

CLIFTON, Circuit Judge:

    Sam K. is a disabled student. An administrative hearings
officer for the State of Hawaii concluded that the State
Department of Education (“DOE”) failed to propose a school
placement for Sam for the 2010–11 school year that was
appropriate and satisfied the requirements of the Individuals
with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400
4      SAM K. V. STATE OF HAWAII DEP’T OF EDUC.

et seq. The hearings officer further found that the private
school program in which Sam was enrolled by his parents
was appropriate.

    In other circumstances, this would have entitled the
parents to reimbursement by the DOE for the costs of
attending the private program, but the hearings officer also
concluded that the parents’ request for reimbursement was
untimely under Haw. Rev. Stat. § 302A–443(a). That statute
sets two different limitations periods. Parents ordinarily have
two years to initiate the process by requesting a hearing, but
the statute requires a filing “within one hundred and eighty
calendar days of a unilateral special education placement” if
the request includes “reimbursement of the costs of the
placement.” Id. The hearings officer found that the private
placement by the parents was “unilateral” and that their
request was not filed within 180 days. Reimbursement was
denied on that ground. The district court disagreed. It held
that the placement was “bilateral,” not “unilateral,” so that the
parents’ request was not untimely, and concluded that the
parents were entitled to reimbursement. We affirm the
judgment of the district court.

    The district court also awarded attorney’s fees to Sam and
his parents. Contending that the hourly rate used in
calculating the award was too low, Sam cross-appeals the
amount of the attorney’s fees. We affirm that order as well.

I. Background

    Sam K. suffers from anxiety, depression, language issues,
speech issues, social issues, and central auditory processing
disorder. In 2003, his parents (“Parents”) removed Sam from
public school and placed him in Loveland Academy, a private
         SAM K. V. STATE OF HAWAII DEP’T OF EDUC.                          5

institution in Honolulu, where he was enrolled every year
thereafter. The current litigation concerns Sam’s placement
for the 2010–11 school year.

    Previous litigation between the Parents and DOE
regarding the three years immediately preceding the 2010–11
school year was resolved by a settlement in May 2010 under
which (1) DOE agreed to pay for Sam’s tuition at Loveland
for school years 2007–08 through 2009–10, (2) current
information from Loveland about Sam would be provided to
DOE, and (3) the Parents would participate in an “IEP
Reevaluation meeting” by the end of June 2010.1 The Parents
and DOE representatives met to discuss Sam’s Individual
Education Plan (“IEP”) for the following year several times
during the summer and into the fall of 2010. In the
meantime, the 2010–11 school year began, and Sam remained
at Loveland.

    The meetings extended into January 2011. No different
placement was ever agreed upon. DOE did not present a
specific public school placement until January 14, 2011,
when DOE produced a signed IEP that provided that Sam
would be placed in a public school program at the Windward
Intensive Learning Center (“ILC”). DOE followed up on that
proposal by sending to the Parents a document entitled Prior
Written Notice of Department Action, giving formal notice of
the ILC placement, dated January 27, 2011. Sam never joined
the ILC program, remaining at Loveland instead.




  1
   Prior to the settlement, the litigation resulted in several district court
orders, one of which was published. See D.C. v. Dept. of Educ., 550 F.
Supp. 2d 1238 (D. Haw. 2008).
6      SAM K. V. STATE OF HAWAII DEP’T OF EDUC.

    The Parents disputed the effectiveness of the IEP and the
finality of the ILC placement. The DOE stated in letters
dated March 9, 2011, and April 20, 2011, that the IEP issued
on January 14, 2011, was the final IEP. The Parents filed a
request for a due process hearing on October 27, 2011.

    Following an extensive due process hearing, the
administrative hearings officer issued a 34-page Findings of
Fact, Conclusions of Law, and Decision. The decision
included at least five determinations that are important for the
current appeal.

    1. The DOE “predetermine[d] placement to be appropriate
at DOE Proposed Placement [the ILC program] in advance
and without any significant parental input.” The hearings
officer further concluded that “[t]he IDEA is violated when
the DOE predetermines placement for [Sam] before the IEP
is developed. In addition to being contrary to the procedural
requirement that the placement be based on the IEP,
pre-determination also deprived [the] Parents of meaningful
participation in the IEP process.”

    2. The placement proposed by the DOE was “ill advised,
inappropriate, and potentially disastrous to [Sam] and his
education.” The decision detailed reasons for that strongly-
worded conclusion, but as the DOE is no longer contesting
the conclusion, it is not necessary to go into them here. The
important determination, also no longer disputed by DOE,
was that the placement proposed by the DOE was not
reasonably calculated to confer educational benefits on Sam
and denied him the free appropriate public education to which
he was entitled under the IDEA.
       SAM K. V. STATE OF HAWAII DEP’T OF EDUC.              7

    3. The Parents established that Loveland was an
appropriate placement for purposes of reimbursement. The
hearings officer specifically concluded that it “has provided
and can provide educational instruction specially designed to
meet the unique needs of [Sam], supported by such services
as are necessary to permit [Sam] to benefit from instruction.”
(citations omitted).

    4. The placement of Sam at Loveland for the 2010–11
school year was a “unilateral placement” by the Parents,
without the agreement of DOE. The DOE made its position
clear that the IEP process was over and the ILC placement
was what it made available. The hearings officer found that
DOE stated this view no later than in its letter dated March 9,
2011. This letter was received by the Parents around March
12, 2011, and so the 180-day period began running, at the
latest, on March 12, 2011. The Parents’ request for a due
process hearing and reimbursement was filed on October 21,
2011. That was untimely as it was more than 180 days later,
so the hearings officer concluded that reimbursement was
precluded under Haw. Rev. Stat. § 302A–443(a). In reaching
that conclusion, the hearings officer’s decision discussed both
the previous decision of the district court in D.C. v.
Department of Education, 550 F. Supp. 2d 1238 (D. Haw.
2008), and our decision in K.D. v. Department of Education,
665 F.3d 1110 (9th Cir. 2011).

    5. The Parents did not establish that DOE was
responsible for the failure to have the 2010–11 IEP in place
by the conclusion of the August 6, 2010, IEP meeting, which
would have been only about one week after the start of the
school year. In reaching that conclusion, the hearings officer
observed that the IEP process was “very lengthy and very
disputatious. . . . As stated by Petitioners’ counsel: ‘We’ll
8      SAM K. V. STATE OF HAWAII DEP’T OF EDUC.

stipulate that it [the relationship between the parties] was
bad.’” (alteration in original).

     On appeal from the administrative decision, the district
court reversed the hearings officer’s finding as to the statute
of limitations, but affirmed in all other respects. The district
court followed its own prior decision in D.C., where it held
that a subsequent determination by a hearings officer in favor
of a student that a private placement was appropriate, while
the DOE’s proposed placement was not, constituted an
agreement between the DOE and the family rendering the
private placement “bilateral” rather than unilateral. See D.C.,
550 F. Supp. 2d at 584. The district court also observed that
Sam had been placed at Loveland for many years, and that the
DOE had agreed in the settlement agreement to pay for the
Loveland program for the preceding three years. The court
noted that the DOE had not offered an IEP for Sam for those
preceding years, that the settlement agreement did not
provide for a change in placement, and that no IEP had been
offered by the DOE by the beginning of the 2010–11 school
year. Under those circumstances, the district court concluded
that the “Parents’ decision to continue to enroll Sam in
Loveland effectively was a continuation of a bilateral
placement rather than a unilateral placement.” The court’s
order discussed our decision in K.D., which held that a
settlement agreement did not necessarily constitute an
agreement by the DOE that continued into following years,
concluding that our K.D. decision was distinguishable based
on the facts that the district court identified.

     On appeal to this court, the DOE does not challenge the
first three conclusions by the hearings officer identified
above, all of which were affirmed by the district court. It is,
therefore, no longer in dispute regarding the 2010–11 school
       SAM K. V. STATE OF HAWAII DEP’T OF EDUC.                9

year that (1) DOE breached a procedural requirement of the
IDEA by predetermining Sam’s placement and failing to
allow for significant parental input in the IEP process, (2) the
ILC placement proposed by DOE was inappropriate for Sam,
and (3) the Loveland program in which Sam was enrolled by
his Parents was appropriate. DOE appeals only the decision
by the district court that the Parents are entitled to
reimbursement because the Loveland placement for school
year 2010–11 was not “unilateral” and thus that the Parents’
request was not untimely.

    After the district court rendered its decision on the merits,
including the Parents’ entitlement to reimbursement, Sam,
through his Parents, brought a motion in the district court for
an award of attorney’s fees and costs. Adopting a calculation
made in findings and recommendation by a magistrate judge,
the district court awarded fees in the amount of $77,226.93.
The calculation was primarily based on 255.05 billable hours
compensated at a rate of $285 per hour, with small amounts
added for work done by a paralegal and for Hawaii general
excise tax. Sam’s attorney sought a higher hourly rate of
$375 per hour and supported that request with declarations by
five Hawaii attorneys stating their opinions that such a rate
was reasonable for the attorney in question. The district court
noted those declarations but concluded, based on the court’s
familiarity with the prevailing rates in the community, that
the requested hourly rate was excessive and that an hourly
rate of $285 was reasonable. The court awarded fees based
on that reduced hourly rate.

    Sam appeals the amount of fees awarded, raising only the
issue of the reduced hourly rate.
10     SAM K. V. STATE OF HAWAII DEP’T OF EDUC.

II. Reimbursement Claim

    In a case under IDEA, this court reviews a district court’s
findings of fact for clear error. L.M. v. Capistrano Unified
Sch. Dist., 556 F.3d 900, 908 (9th Cir. 2009). We review
questions of law and mixed questions of fact and law de
novo, unless the mixed question is primarily factual. Amanda
J. ex. rel. Annette J. v. Clark Cnty. Sch. Dist., 267 F.3d 877,
887 (9th Cir. 2001).

    The IDEA aims to provide “all children with disabilities
. . . a free appropriate public education that emphasizes
special education and related services designed to meet their
unique needs and prepare them for further education,
employment, and independent living[.]”           20 U.S.C.
§ 1400(d)(1)(A). If parents believe their child is not
receiving a free appropriate public education (commonly
referred to as a “FAPE”), they may be able to place the child
in a private program and then seek reimbursement from the
public school district. 20 U.S.C. § 1412(a)(10)(C)(ii);
34 C.F.R. § 300.148(c). The federal statute provides that the
parent must seek a hearing within two years of an alleged
denial of a FAPE, but permits states to set a different
limitations period. 20 U.S.C. § 1415(b)(6)(B), (f)(3)(C).

    Under Haw. Rev. Stat. § 302A–443(a), parents in Hawaii
have two years to initiate the process by requesting a due
process hearing, but a filing is required “within one hundred
and eighty days of a unilateral special education placement,
where the request is for reimbursement of the costs of the
placement.” The statute does not define “unilateral special
education placement.” There are no reported Hawaii state
court decisions interpreting this provision.
       SAM K. V. STATE OF HAWAII DEP’T OF EDUC.             11

    Our court considered the meaning of “unilateral special
education placement” as used in Section 302A–443 in K.D.,
665 F.3d at 1110. We adopted a definition previously set
forth in a District of Hawaii decision and held that “a
unilateral special education placement occurs when one party
unilaterally (i.e., without consent or agreement of the other
party) enrolls the student in a special education program.” Id.
at 1122 (quoting Makiko D. v. Hawaii, No. 06-cv-00189,
2007 WL 1153811, at *7 (D. Haw. Apr. 17, 2007)) (internal
quotation marks omitted).

    In K.D., a student’s family reached a settlement
agreement in March 2007 with the Hawaii DOE under which
the DOE agreed to pay for the student’s private tuition, by
coincidence also at Loveland Academy, for the then-current
2006–07 school year. The agreement provided that the
student was to participate in planning for transition to a
public school for the following school year, if deemed
appropriate. Before that next school year began, the DOE
presented a IEP providing for placement in a public school.
The family did not respond and re-enrolled the student in the
Loveland program. After a due process hearing, the
administrative hearings officer concluded that the public
school placement proposed by the DOE would have provided
a FAPE. The hearings officer also dismissed the family’s
claims for private program tuition reimbursement for the
2007–08 year. Although the family argued that it was
entitled to maintain the placement at Loveland as a “stay put”
placement during the pendency of litigation, the request was
rejected as untimely because the placement at Loveland for
the 2007–08 year was found to have been “unilateral” and the
request for reimbursement was made over a year later.
12      SAM K. V. STATE OF HAWAII DEP’T OF EDUC.

    Our court affirmed that decision. In particular, we agreed
that the placement for 2007–08 was properly described as
“unilateral.” We noted that the March 2007 settlement
agreement never called for “placement” at Loveland and only
required tuition reimbursement for the prior year. Id. at 1119.
The agreement also referenced at least the possibility that the
student would transition to a public school for the next year.
Id. We observed that the “settlement agreement specified in
several places that it applied only to the 2006–07 school
year[.]” Id. at 1120. The decision to enroll the student at
Loveland the following year was, therefore, a “unilateral”
decision by the family. “The enrollment thus occurred
without consent or agreement of the other party.” Id. at 1122
(internal quotation marks omitted).

    The DOE points to K.D. and argues that this case is the
same. We disagree, however, and conclude that this case is
different in at least one important respect.

    In K.D. the settlement agreement explicitly contemplated
a public school placement for the following year, and the
DOE proposed such a placement before the next school year
began. In the current case, the DOE did not present an IEP
providing for a public school placement for the 2010–11
school year until January 2011, at least halfway through that
year. The DOE did not make clear that its position was final
until it sent a letter to that effect in March 2011, after most of
the 2010–11 school year had already gone by. Prior to that
time, Sam was still attending the Loveland program, as the
DOE necessarily knew. The DOE had not proposed anything
else, and it presumably did not intend that Sam would receive
no educational services in the meantime.                 In those
circumstances, it does not appear to us that the placement at
Loveland for the 2010–11 school year was “without consent
       SAM K. V. STATE OF HAWAII DEP’T OF EDUC.              13

or agreement” of DOE, as the term “unilateral” was defined
in K.D.

    Agreement may be tacit. The inclusion of “consent” as an
alternative to “agreement” in K.D.’s definition of “unilateral”
further suggests that the manifestation of agreement need not
be explicit. See generally Sierra Club v. Castle & Cooke
Homes Hawaii, Inc., 320 P.3d 849, 861 (Haw. 2013)
(recognizing “implied consent” as “[c]onsent inferred from
one’s conduct rather than from one’s direct expression”)
(quoting Black’s Law Dictionary 346 (9th ed. 2009)).
Consent may be indicated by silence or inaction where such
silence or inaction manifests a willingness for the conduct in
question to happen. See generally Restatement (Second) of
Torts § 892(1) (1965) (“(1) Consent is willingness in fact for
conduct to occur. It may be manifested by action or inaction
and need not be communicated to the actor. (2) If words or
conduct are reasonably understood by another to be intended
as consent, they constitute apparent consent and are as
effective as consent in fact.”); Restatement (First) of Property
§ 516 cmt. c (1944) (“Manifestation of consent. The consent
from which a license arises may be manifested by conduct of
any kind. The manifestation may consist in the use of
language, or in conduct other than the use of language. Such
conduct may consist of acts indicative of a consent by the
actor to the use of his land by another, or it may consist in
failure to take reasonable action when inaction may
reasonably lead to an inference of consent.”).

    Here, the DOE knew that Sam was enrolled at Loveland
for the 2010–11 school year. By waiting so long into that
school year to propose a different placement, the DOE tacitly
consented to his enrollment at Loveland Academy. It is true
that the hearings officer found that the Parents did not prove
14       SAM K. V. STATE OF HAWAII DEP’T OF EDUC.

that the DOE was responsible for the failure to have an IEP
for a public school program in place by the time that the
2010–11 school year began. But that does not change the fact
that the DOE knew that Sam was going to be enrolled in
Loveland in the meantime and necessarily consented to that
enrollment for that school year because it had not offered
another alternative.

    That did not mean that the DOE was precluded from
proposing something different thereafter. Had it proposed an
appropriate public school placement, it might have been able
to maintain the position that Sam’s family should not be
entitled to reimbursement for the time following the proposal
of a proper public placement. But the hearings officer and the
district court both concluded that the DOE’s proposed
placement was not appropriate and that the Loveland program
was, findings that the DOE no longer disputes. For now, the
only question is whether the placement at Loveland for the
2010–11 school year was “unilateral.” We agree with the
district court that it was not, and as a result, the 180-day
limitations period did not apply. Reimbursement cannot be
denied on that basis.2

   Sam’s family is entitled to reimbursement for the
2010–11 school year. We affirm the decision of the district
court to that effect.




 2
   The district court identified other reasons for reaching the conclusion
that the placement was not unilateral, but we do not need to consider those
other reasons.
       SAM K. V. STATE OF HAWAII DEP’T OF EDUC.              15

III.   Attorney’s Fees

    Sam appeals the amount of attorney’s fees awarded by the
district court, contending that the fees should have be
calculated at a rate of $375 per hour rather than at the $285
rate used by the district court.

    We review a district court’s determination of whether to
grant attorney’s fees in an IDEA case for an abuse of
discretion. Oscar v. Alaska Dept. Of Educ. & Early Dev.,
541 F.3d 978, 980–81 (9th Cir. 2008). We review the district
court’s factual determinations for clear error and the legal
analysis related to the fee determination de novo. Id.

    The district court did not abuse its discretion in using an
hourly rate of $285. In support of his position, Sam’s
attorney presented to the district court declarations from other
Hawaii attorneys who undertake IDEA or other civil rights
cases on behalf of plaintiffs, stating their opinions that the
requested rate of $375 per hour, in light of the attorney’s
training and experience, was reasonable. It was telling,
however, that none of the declarations stated that any of the
attorneys had actually been paid fees at that $375 rate for
work of this type, or that any attorney of similar training and
experience had.

    Reasonable attorney’s fees are to be calculated according
to “the prevailing market rates in the relevant community.”
Van Skike v. Dir., Office of Workers Compensation
Programs, 557 F.3d 1041, 1046 (9th Cir. 2009) (quoting
Blum v. Stenson, 465 U.S. 886, 895 (1984)). The burden is
on the fee applicant “to produce satisfactory evidence” of the
prevailing market rates. Id. (quoting Blum, 465 U.S. at 896
n. 11). District courts may consider the fees awarded by
16      SAM K. V. STATE OF HAWAII DEP’T OF EDUC.

others in the same locality for similar cases. Moreno v. City
of Sacramento, 534 F.3d 1106, 1115 (9th Cir. 2008); see also
Nat’l Ass’n of Concerned Veterans v. Sec’y of Def., 675 F.2d
1319, 1325 (D.C. Cir. 1982) (“Recent fees awarded by the
courts or through settlement to attorneys of comparable
reputation and experience performing similar work are also
useful guides in setting an appropriate rate.”). District courts
may also use their “own knowledge of customary rates and
their experience concerning reasonable and proper fees.”
Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011).

    That other attorneys may think that a given rate is
“reasonable” does not necessarily say what the prevailing
market rates actually are. That is especially true when the
opinion are expressed by attorneys whose own professional
interests might motivate them to favor higher rates. The D.C.
Circuit has expressed skepticism about the value of
declarations from attorneys that provide only conclusory
statements as to the prevailing rates or whether a given hourly
rate is reasonable. See Nat’l Ass’n of Concerned Veterans,
675 F.2d at 1325–26 (“The District Court’s . . . inquiry is
aided little by an affidavit which just offers one attorney’s
conclusory and general opinion on what [the relevant market]
rate is. Nor is it helpful if the affiant simply states that he is
familiar with the attorney and the litigation and that he thinks
the fee request is reasonable.”). In concluding that the
requested hourly rate was excessive and that an hourly rate of
$285 was reasonable, the magistrate judge noted the court’s
familiarity with the prevailing rates in the community and
cited specific fee awards in other cases in the district. The
district court accepted that recommendation. Nothing in the
record gives us reason to doubt the court’s assessment.
         SAM K. V. STATE OF HAWAII DEP’T OF EDUC.              17

    Sam’s attorney also argues that the district court
improperly followed a policy to “hold the line” by adopting
a policy to limit fee awards to a certain rate for similar cases,
citing our decision in Moreno, 534 F.3d at 1115. The district
court rejected a similar attack on the recommendation of the
magistrate judge, noting that nothing in the recommendation
indicated an effort to “hold the line.” We agree. Indeed, we
note that the $285 hourly rate awarded by the district court
was, as the magistrate judge’s report described, higher than
the $275 rate previously awarded by the court to Sam’s
attorney in a different case. In addition, the magistrate
judge’s report discussed an even higher hourly rate, $300 per
hour, that had been awarded to another attorney in IDEA
cases, noting that the attorney awarded that higher rate had
many years more experience than Sam’s attorney. That
discussion contradicts the claim that the court applied a
policy to “hold the line.”

      We affirm the fee award entered by the district court.

IV.      Conclusion

    For the reasons stated above, we affirm both the award of
reimbursement in No. 13-15486 and the award of attorney’s
fees in No. 13-15452.

      Each side to bear its own costs.

      AFFIRMED.
18     SAM K. V. STATE OF HAWAII DEP’T OF EDUC.

RAWLINSON, Circuit Judge, concurring in part and
dissenting in part:

    I agree with the majority that the district court acted
within its discretion in determining a reasonable hourly rate
for the calculation of attorney’s fees in this case. However,
I respectfully disagree that the hotly disputed placement at
Loveland Academy somehow morphed from a unilateral
placement to a bilateral placement due to implied consent on
the part of the State Department of Education.

    Initially, it is important to note that the State Hearings
Officer determined that the private placement for the
2010–2011 school year was a unilateral placement. Thus, the
adjudicator in the case with the closest nexus to the case did
not give “implied consent” to the placement. Relying on
K.D. v. Department of Education, 665 F.3d 1110 (9th Cir.
2011), the same case cited by the majority, the State Hearings
Officer determined that under the settlement agreement
between the State Department of Education and Sam K.’s
parents, the State agreed to pay tuition at Loveland only
through the end of the 2009–2010 school year. That
determination is undisputed. As the hearings officer also
noted, the settlement agreement contained no provision
regarding placement for Sam K. As the hearings officer
pointed out, the settlement agreement was “not a conclusion
from a detailed evaluation that determined private placement
to be the appropriate educational institution for Student
under the [Act]. . . .” (emphasis added).
         SAM K. V. STATE OF HAWAII DEP’T OF EDUC.                     19

     The hearings officer’s reasoning is supported by our
analysis in K.D. In the context of a “stay put”1 scenario, we
held that before a favorable administrative or judicial
decision can convert a unilateral placement into an agreed-
upon bilateral placement, the favorable decision “must
expressly find that the private placement was appropriate.”
665 F.3d at 1118 (emphasis added). We expressly
distinguished between placement of a child in an educational
setting, and reimbursement of private school tuition. Quoting
Zvi D. v. Ambach, 694 F.2d 904, 908 (2d Cir. 1982), we
emphasized that “payment and placement are two different
matters.” Id. at 1119 (alteration omitted). We contrasted the
settlement agreement in Zvi D., where the child was “never
placed in the private school—the Board of Education merely
agreed to pay for his tuition . . .”, with Bayonne Board of
Education v. R.S., 954 F. Supp. 933 (D.N.J. 1997), where the
settlement agreement “actually placed the student” rather than
merely agreeing to reimburse tuition. Id. (internal quotation
marks omitted). We likened the settlement agreement in K.D.
to that in Zvi D. as opposed to the one in Bayonne. We
observed that “K.D.’s settlement agreement never called for
‘placement,’ and only required tuition reimbursement.” Id.
We clarified that the distinction between education placement
and tuition reimbursement “is not an insignificant semantic
difference.” Id. We explained that simply because the State
agrees to pay tuition at a private school for a discrete period
of time, “it does not follow that, by doing so, the [State] had
conducted the detailed evaluation required to determine
whether Loveland was the proper educational institution for
K.D. under the [Act].” Id. Indeed, we intimated that


 1
   The “stay put” provision of the Individuals with Disabilities Education
Act (Act) requires the continuation of a “then-current educational
placement.” 20 U.S.C. § 1415(j).
20     SAM K. V. STATE OF HAWAII DEP’T OF EDUC.

Loveland was not an appropriate educational placement under
the Act. See id. at 1128 (“K.D.’s Loveland placement does
not square with one of the main purposes behind [the
Act]—to combat the apparently widespread practice of
relegating handicapped children to private institutions . . .”)
(citation and internal quotation marks omitted) (emphasis
added).

    Because the settlement agreement did not place K.D. at
Loveland and because the State only agreed to pay tuition for
a finite time period, we concluded that the State “never
affirmatively agreed to place K.D. at Loveland.” Id. at 1121.
In turn, Loveland never became K.D.’s stay put placement
and “the settlement agreement did not operate to change the
placement from unilateral to bilateral.” Id. at 1122.

    In a similar vein, we concluded in Clovis Unified School
District v. California Office of Administrative Hearings,
903 F.2d 635, 641 (9th Cir. 1990), “that once the State
educational agency decided that the parents’ placement was
the appropriate placement, it became the [stay put educational
location] . . .” (citation omitted) (emphasis added); see also
School Committee of the Town of Burlington, Mass. v.
Department of Education of Mass., 471 U.S. 359, 369–70
(1985) (concluding that “placement in private schools at
public expense” is appropriate under the Act “where a court
determines that a private placement . . . was proper . . . and
that an [individualized education program] calling for
placement in a public school was inappropriate”) (emphasis
added).

    The flaw in the district court’s opinion that is repeated by
the majority is that despite the fact that the settlement
agreement did not mention placement as required by all the
      SAM K. V. STATE OF HAWAII DEP’T OF EDUC.       21

cases that have addressed this issue, the district court
conflated the reimbursement agreement into a bilateral
placement agreement. None of our precedent supports this
conflated analysis. I respectfully dissent.
