May 26, 2015

What It Really Means To Be a “Frivolous Claim” for Purposes of Fee-Shifting

BY: Joanne Kim, Karen Gilyard

A case out of the Ninth Circuit Court of Appeals, C.W. v. Capistrano Unified School District, was decided on March 2, 2015 and involved the review of a district court’s award of attorney’s fees to a California school district upon a finding that the claims therein were frivolous, unreasonable, and without foundation.

The IDEA provides prevailing plaintiff families the opportunity to seek attorney’s fees and costs.  (20 U.S.C. 1415(i)(3)(B)(i)(I))  With the 2004 reauthorization, the attorney’s fees law was amended to provide school districts an opportunity to obtain attorney’s fees in specified instances where a parent’s alleged claims are frivolous or brought for improper purpose.

In C.W., the Capistrano Unified School District (“District”) conducted a triennial assessment of student C.W. in 2010, which included an occupational therapy assessment for evaluation of C.W.’s gross and fine motor development.  After the assessment was completed and reviewed at C.W.’s IEP team meeting, C.W.’s mother requested an independent educational evaluation (“IEE”) in the area of occupational therapy. Approximately 41 days after the parental request for an IEE was made, the District denied the request and filed a due process complaint, which, in part, concerned the issue of whether the District’s occupational therapy assessment was appropriate. At hearing, the administrative law judge (“ALJ”) concluded that the District’s assessment was appropriate.

Coupled with additional claims under the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act of 1973, the family appealed the ALJ’s decision in federal district court.  The district court ruled that the District’s occupational therapy assessment was appropriately conducted, and further invited the District to pursue attorney’s fees because the “bases for appeal [were] frivolous.”  The District later received an award from the district court of $94,602.34 in attorney’s fees and $2,058.21 in costs upon the district court’s determination that C.W’s claims were “frivolous, unreasonable, and without foundation” and brought for the improper purpose of “harassment, unnecessary delay, and needlessly increasing litigation.”

In its review of the district court’s award of attorney’s fees for abuse of discretion, the Ninth Circuit Court of Appeals noted that a claim may be deemed frivolous only when the result is obvious or wholly without merit.  Furthermore, when there is little case law on point for a novel issue, the claim upon which is it based is less likely to be considered frivolous.

The Ninth Circuit emphasized that the ALJ in C.W. had conducted a thorough review of the family’s claims, including testimony from the assessor.  Acknowledging that the family in C.W. lost on their claims, the Ninth Circuit attributed this outcome to the poor pleading of the claims; but this, the Ninth Circuit stated, did not mean that the claims were frivolous. Consequently, the Ninth Circuit reversed the district court’s order awarding attorney’s fees and costs as to the IDEA and Section 504 claims, but let stand the award of attorney’s fees for the ADA and 42 U.S.C. Section 1983 claims.

As to the ADA and Section 1983 claims, the Ninth Circuit supported the district’s court determination that an award of attorney’s fees to the District was warranted because they were frivolous.  Specifically, the Ninth Circuit concluded that the outcome of the ADA intimidation claim was clear at the time it was filed based on the language of the statute under which it was brought, as its terms do not allow for protection against intimidation in a plaintiff’s attempts to exercise rights granted or protected by the IDEA.  The Ninth Circuit similarly determined that the outcome of the Section 1983 claim was predetermined by a review of relevant law, which holds that a school district cannot be sued for damages under Section 1983.  The Ninth Circuit referred the matter back for a re-adjustment of the fees awarded to the District, limited to the ADA and Section 1983 claims.

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CATEGORIES: Special Education/504


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Attorney Bio(s)

Joanne Kim

Joanne Kim



Joanne J. Kim is an associate in the firm’s Cerritos office. Ms. Kim represents California school districts and county offices of education in education law, with a concentration in special education. While in law school, Ms. Kim gained a rich background of experience as a Law Fellow and Legal/Judicial Intern. Ms. Kim served as a Judicial Intern for the Honorable Michael Nash, Edelman Children’s Court of the Los Angeles County Superior Court where she conducted research and prepared memoranda on juvenile delinquency and dependency issues. As a Law Fellow at the USC Center on Communication Leadership & Policy, she assisted with the Center’s Trafficking in Persons project by researching statutes and case law related to the trafficking and exploitation of minors.

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Karen Gilyard

Karen Gilyard



Karen Gilyard is a partner in the Cerritos office of Atkinson, Andelson, Loya, Ruud & Romo. She represents California school districts and community college districts in education law and labor relations. Ms. Gilyard provides interpretation and assessment of issues arising under the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act of 1973, and the Educational Employment Relations Act. She also provides litigation services for special education due process hearings, Section 504 complaints, public sector unfair practice charges, and discrimination claims. Ms. Gilyard acts as a district negotiator and specializes in employment discrimination, student discipline, special education, and condemnation actions.

full bio