Opinion
No. 07-17300.
Argued and Submitted November 21, 2008.
Filed December 12, 2008.
Carl M. Varady, Esq., Honolulu, HI, for Plaintiffs-Appellants.
Christine E. Savage, Esq., David A. Webber, Esq., AGHI-Office of the Hawaii Attorney General, Honolulu, HI, for Defendants-Appellees.
Appeal from the United States District Court for the District of Hawaii, David A. Ezra, District Judge, Presiding. D.C. No. CV-06-00212-DAE.
Before: SCHROEDER, PAEZ and N.R. SMITH, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Plaintiffs-Appellants Alan H. and Cheryl H., individually, and as guardians ad litem for their son, David H., seek to appeal the district court's order denying their "motion for declaratory and other equitable relief for their claim under the Individuals with Disabilities in Education Act (IDEA). Plaintiffs brought this action in the district court of Hawaii alleging claims under the IDEA, Title II of the Americans with Disabilities Act of 1990, and section 504 of the Rehabilitation Act of 1973. The district court denied the Plaintiffs' claim under the IDEA, but ordered Defendant-Appellee, State of Hawaii, to pay Plaintiffs for the cost of David H.'s private school tuition during the 2005-2006 school year pursuant to the stay-put provision of the IDEA, 20 U.S.C. § 1415(j). The other claims remain pending in the district court. Because the order appealed from only disposed of the IDEA claim, there is no appealable final judgment. See 28 U.S.C. § 1291; Cheng v. C.I.R., 878 F.2d 306, 310 (9th Cir. 1989) ("[A]n order must conclusively terminate the litigation in order to be considered final; an order that may terminate the proceeding is insufficient."). We therefore lack appellate jurisdiction.