UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT D.O., By and Through His Guardian No. 21-55498 Ad Litem Sonya Walker, Plaintiff-Appellee, D.C. No. 3:17-cv-02400- v. BEN-MDD ESCONDIDO UNION SCHOOL DISTRICT, OPINION Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding

Argued and Submitted July 13, 2022 Pasadena, California

Filed January 31, 2023

Before: Mark J. Bennett and Gabriel P. Sanchez, Circuit Judges, and Elizabeth E. Foote, * District Judge.

Opinion by Judge Bennett; Partial Concurrence and Partial Dissent by Judge Sanchez * The Honorable Elizabeth E. Foote, United States District Judge for the Western District of Louisiana, sitting by designation. 2 D.O. V. ESCONDIDO UNION SCHOOL DIST.

SUMMARY **

Individuals with Disabilities Education Act

The panel reversed the district court’s summary judgment in favor of student D.O. in his action under the Individuals with Disabilities Act against Escondido Union School District. An administrative law judge ruled that Escondido’s delay in assessing D.O. for autism was neither a procedural violation of the IDEA nor a denial of a free appropriate public education, or FAPE. The district court reversed the ALJ in part, holding that Escondido’s four-month delay in assessing D.O. constituted a procedural violation of IDEA and that this procedural violation denied D.O. a FAPE by depriving him of educational benefits. The panel held that it had jurisdiction because Escondido timely appealed the district court’s final judgment, and there was no indication that the district court lacked jurisdiction. Reviewing de novo, the panel reversed the district court’s determination that Escondido’s delay in proposing to assess D.O. was a procedural violation of IDEA. The panel concluded that Escondido’s duty to propose an assessment in an area of suspected disability was triggered on December 5, 2016, when Escondido was put on notice that D.O. might be autistic by Dr. Margaret Dyson, who had completed an assessment and report. The panel concluded that Escondido’s subsequent four-month delay in proposing an ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. D.O. V. ESCONDIDO UNION SCHOOL DIST. 3

autism assessment plan did not violate any California statutory deadlines or any federal statutory timeline. The panel held that Escondido’s delay did not constitute a procedural violation of IDEA because Escondido did not fail to assess D.O., and some delay in complying with IDEA’s procedural requirement is permissible. The panel held that the district court erred in determining that Escondido’s delay was due, at least in part, to the subjective skepticism of its staff. Distinguishing Timothy O. v. Paso Robles Unified Sch. Dist., 822 F.3d 1105 (9th Cir. 2016), the panel concluded that Escondido staff’s skepticism was based on substantial and scientific reasons. The panel held that the district court also erred in finding that Escondido’s efforts to obtain Dr. Dyson’s report from D.O.’s mother were “minimal,” and Escondido properly pursued the report as useful to its own assessment. The panel also held that even if the delay were a procedural violation of FAPE, it did not deny D.O. a FAPE. The panel concluded that Escondido’s delay did not deprive D.O. of educational benefits, and D.O.’s individualized education program, or IEP, was reasonably calculated to provide D.O. educationa