author: O’SCANNLAIN, Circuit Judge: NGUYEN, Circuit Judge,

text:
    UNITED STATES of America, Plaintiff-Appellee v. Douglas Vance CROOKED ARM, Defendant-Appellant United States of America, Plaintiff-Appellee, v. Kenneth G. Shane, Defendant-Appellant.
    No. 15-30277, No. 15-30280
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted October 6, 2016, Portland, Oregon
    Filed April 11, 2017

      Brian M. Murphy (argued), Holland & Hart LLP, Billings, Montana; Mark D. Parker, Parker Heitz & Cosgrove PLLC, Billings, Montana; for Defendant-Appellant Douglas Vance Crooked Arm.
    Sherry Scheel Matteucci, Matteucci Law Firm PLLC, Billings, Montana; for Defendant-Appellant Kenneth G. Shane.
    Jeffrey S. Beelaert (argued), Allen Bra-bender, and Andrew C. Mergen, Attorneys; John C. Cruden, Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Mark S. Smith and Leif M. Johnson, Assistant United States Attorneys; Michael W. Cotter, United States Attorney; United States Attorney’s Office, Billings, Montana; for Plaintiff-Appellee.
    Before: DIARMUID F. O’SCANNLAIN, RICHARD R. CLIFTON, and JACQUELINE H. NGUYEN, Circuit Judges.
   Dissent by Judge NGUYEN

OPINION

O’SCANNLAIN, Circuit Judge:

We are asked to review sentences imposed for violations of the Migratory Bird Treaty Act.

I

Douglas Vance Crooked Arm and Kenneth G. Shane appeal their felony sentences for conspiring “to kill, transport, offer for sale, and sell migratory birds, including bald and golden eagles” in violation of the Migratory Bird Treaty Act (“MBTA”), 16 U.S.C. §§ 703(a), 707(b), and 18 U.S.C. § 371. Crooked Arm and Shane were the subjects of a sting operation conducted by United States Fish & Wildlife Service agents as part of “Operation Hanging Rock,” an investigation into the illegal sale of migratory bird feathers. Over the course of seven months, undercover agents posed as buyers seeking to purchase fans made from migratory bird feathers from Crooked Arm and Shane before executing search warrants against them. United States v. Vance Crooked Arm (Crooked Arm I), 788 F.3d 1065, 1068-69 (9th Cir. 2015).

In February 2013, a grand jury indicted Crooked Arm and Shane on foür criminal counts. Count I alleged a conspiracy “to kill, transport, offer for sale, and sell migratory birds, including bald and golden eagles,” in violation of 16 U.S.C. §§ 703(a), 707(b), and 18 U.S.C. § 371. It also alleged that Crooked Arm and Shane committed one or more of the following acts in furtherance of the conspiracy:

1. Crooked Arm “placed deer carcasses on the land in order to attract and capture birds of prey, including eagles and hawks.”
2. Crooked Arm and Shane “sold a golden eagle feather fan for $1,500.”
3. Crooked Arm and Shane “offered to sell a magpie feather fan for $800.”
4. Crooked Arm and Shane “offered to sell a bald eagle feather fan, and received a down payment of $500.”
5. Crooked Arm “offered to sell a winter hawk tail fan for $500.”
6. Crooked Arm “offered to sell a bald eagle tail fan for $1,000.”

Count II alleged that Crooked Arm and Shane knowingly sold parts of a golden eagle for $1,500; Count III alleged that Crooked Arm and Shane offered to sell parts of á magpie for $800; and Count IV alleged that Crooked Arm and Shane knowingly offered to sell parts of a bald eagle for $1,000, all in violation of 16 U.S.C. §§ 703, 707(b), and 18 U.S.C. § 2.

Crooked Arm and Shane filed a motion to dismiss the indictment for failure to state a felony claim, contending that their conduct in selling parts of birds was a misdemeanor only. The district court denied this motion, ruling that § 707(b) does not distinguish between the sale of whole birds and bird parts and thus the indictment properly charged felony violations.

Subsequently, the defendants entered conditional plea agreements by which they pled guilty to Count I and Count II, while reserving their right to appeal the district court’s denial of their motion to dismiss. At the plea colloquy, the district court satisfied itself that Crooked Arm’s and Shane’s pleas were knowing and voluntary, and that they understood the nature of the charges against them and the consequences of their pleas. In addition to their general pleas of guilty to Count I and Count II, Crooked Arm and Shane specifically admitted to selling bird feathers, and Crooked Arm also admitted to dropping off a deer carcass in the hills “for the animals and the birds to eat.”

After being sentenced to probation, Crooked Arm and Shane appealed the district court’s denial of their motion to dismiss. Thus, in Crooked Arm I, Crooked Arm and Shane challenged their convictions by arguing that the sale of bird feathers was a misdemeanor under § 707. This court agreed, holding that the MBTA makes a distinction between birds and parts of birds. Crooked Arm I, 788 F.3d at 1073-75. We vacated their felony convictions for selling parts of a golden eagle (Count II) but affirmed their felony convictions for conspiracy to violate § 703(a) (Count I), through the killing, transporting, offering for sale, or selling of migratory birds. Recognizing that having one felony conviction instead of two could impact the sentence for Count I, we vacated the sentences for both counts and remanded for resentencing. Id. at 1072, 1080. On remand, the district court again imposed felony sentences for their convictions under Count I, sentencing each to one year of probation with credit for time served. Crooked Arm and Shane now contend that they admitted only to misdemeanor conduct and cannot be sentenced as felons, an argument they cast as an Apprendi claim.

II

A

While Crooked Arm and Shane challenge their sentences in this appeal, the core of their claim actually appears to be a challenge to their felony convictions — the logical predicate of being sentenced as a felon is conviction of a felony. Yet, this court has already resolved any challenge to their felony convictions in Crooked Arm I. We held that Count I properly charged a felony offense, and we affirmed their Count I felony convictions. Id. at 1071-72, 1080.

Crooked Arm and Shane point to language in Crooked Arm I stating that “Count I clearly charge[d] in part a statutory felony,” id. at 1071-72 (emphasis added), and use this to argue that their convictions were not felonies. Yet, such selective quotation is a misreading of our opinion. At least six other times in Crooked Arm /, we stated that Count I charged a felony without including the qualifying language of “in part.” And, in context, we explained:

[E]ven if Defendants were right that sale of eagle feathers is only a misdemeanor, Count I clearly charge[d] in part a statutory felony ... because [it] charge[d] a conspiracy to “kill, transport, offer for sale, and sell migratory birds, including bald and golden eagles,” conduct that falls within the MBTA’s felony provisions. And the overt acts alleged included placing deer carcasses to attract birds of prey.

Id. at 1071-72. Thus, “in part” makes it clear that even iffhe sale of feathers might not amount to a felony, “placing deer carcasses to attract birds of prey” did support felony convictions. Id. And we upheld these convictions in our disposition. Id. at 1080.

B

Crooked Arm and Shane now contend that they admitted only to selling bird feathers during the plea colloquy, and by implication they did not admit to “placing deer carcasses to attract birds of prey,” the overt act supporting felony charges upon which Crooked Arm I relied. Id. at 1072. Thus, they argue that they only pled guilty to conduct that constituted a misdemeanor. Yet, to the extent that Crooked Arm and Shane are challenging the adequacy of their pleas to support felony convictions (and thus felony sentences), this is also foreclosed by Crooked Arm I.

Indeed, Crooked Arm and Shane presented the very same arguments in supplemental briefing in Crooked Arm I. They specifically contended that Count I charged both felony and misdemeanor violations and that based on their pleas, their convictions were for misdemeanors only. And they raised the Apprendi point that they make now.

Nonetheless, we held that “the record before us d[id] not permit a conclusion that Defendants’ pleas were not knowing and voluntary without adequate factual basis.” Id. at 1072 n.5. Alternatively, we explained that Crooked Arm and Shane “waived” any challenge to the adequacy of their pleas by not raising this claim before the district court or in their opening brief before 'Our court. Id. Thus, we upheld their felony convictions. Id. at 1080.

C

Under law of the case, we are precluded from reconsidering these issues. See United States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997). Thus, we will not reevaluate Crooked Arm and Shane’s claims that the government needed to obtain a specific admission from them during the plea colloquy in order for them to be convicted (and sentenced) as felons. Defendants cannot relitigate the adequacy of their pleas by resurrecting them in the guise of a sentencing claim.

The dissent argues that law of the case does not apply, citing our decision in United States v. Caterino, 29 F.3d 1390, 1395-96 (9th Cir. 1994) overruled on other grounds by Witte v. United States, 515 U.S. 389, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995). Caterino, however, involved a situation where we held that a defendant was free to raise an argument on remand for resentencing which we had found waived in the initial appeal. Id.

Unlike Caterino, the problem here is not that the district court merely failed to address the argument before the first appeal, but that our decision on the merits of the plea agreement forecloses further review. If Crooked Arm I had merely held that Crooked Arm and Shane had waived their ability to challenge the adequacy of the pleas, Caterino might be on point. But we also rejected Crooked Arm and Shane’s arguments on their face. See Crooked Arm I, 788 F.3d at 1072 n.5. It would be improper to reexamine them now.

Further, in Caterino there was no challenge to the underlying conviction. Instead, the question was a pure sentencing claim — whether the defendant’s consecutive sentences violated the Double Jeopardy clause. See 29 F.3d at 1396. The dissent is correct that “[o]n remand, the district court generally should be free to consider any matters relevant to sentencing, even those that may not have been raised at the first sentencing hearing, as if it were sentencing de novo.” United States v. Matthews, 278 F.3d 880, 885-86 (9th Cir. 2002) (citing United States v. Ponce, 51 F.3d 820, 826 (9th Cir. 1995)). But Crooked Arm and Shane’s claims about the adequacy of the pleas supporting their felony convictions are not sentencing issues.

D

Indeed, because we affirmed Crooked Arm’s and Shane’s felony convictions and vacated only their sentences, the district court was precluded from evaluating the adequacy of their pleas or their convictions. Such analysis fell outside the scope of the remand. See Mendez-Gutierrez v. Gonzales, 444 F.3d 1168, 1172-73 (9th Cir. 2006) (collecting cases).

E

Finally, even if one accepts Crooked Arm and Shane’s contention that they did not realize that they were pleading guilty to felony conduct (apart from the sale of feathers), after this court upheld their felony convictions in Crooked Arm I, the district court offered them a chance to withdraw their guilty pleas on remand. Regardless of whether the district court had the authority to do so, if Crooked Arm and Shane did not want to be sentenced as felons, they should have tried to withdraw their pleas. Cf. United States v. Broce, 488 U.S. 563, 571, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). In the wake of Crooked Arm I, to claim that they did not understand that they were pleading guilty to a felony (or would be sentenced as felons) is simply unbelievable.

Ill

In sum, because Crooked Arm I disposes of their arguments, Crooked Arm’s and Shane’s challenges to their felony sentences fail. We express no opinion whatsoever on the merits of their Apprendi claim.

AFFIRMED.

NGUYEN, Circuit Judge,

dissenting:

Crooked Arm’s and Shane’s felony sentences violate Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the conspiracy object to which they admitted — selling migratory bird feathers — was only a misdemeanor. Yet the majority refuses to reach the merits of Defendants’ sentencing argument because a prior panel purportedly “affirmed their felony convictions.” Majority Op. at 1067. The majority’s flawed reasoning is as follows: the prior panel, by not vacating the convictions, implicitly ruled that Defendants should be sentenced as felons on remand. But the panel made no such ruling, which would have required a finding that Defendants admitted to one of the felony objects — rather than the misdemeanor objects — alleged in Count I’s mul-ti-object conspiracy. Instead, the panel held that Count I charged a felony in part, that Defendants admitted only to a conspiracy to sell feathers, that the sale of feathers was a misdemeanor, and that Defendants’ felony sentences must be vacated. United States v. Vance Crooked Arm (Crooked Arm I), 788 F.3d 1065, 1070 n.2, 1071-72, 1079 (9th Cir. 2015) (per curiam).

Because Defendants’ sentences violate Apprendi, and because the law of the case does not prevent us from correcting this error (indeed, Supreme Court and our own precedent require us to fix it), I respectfully dissent.

I

The majority relies solely on a procedural ground not advanced by the government to deny relief, and it is therefore important at the outset to understand the unusual posture of this ease.

The parties do not dispute that, during the plea colloquies, Crooked Arm and Shane admitted only to a misdemeanor object: a conspiracy to “sell parts of birds,” namely, migratory bird feathers. The district court nevertheless initially sentenced them as felons based on the mistaken belief that selling parts of birds is a felony. No one addressed whether a felony sentence could be supported on other grounds because the district court and the parties believed — mistakenly—that the only object of the conspiracy alleged in Count I was to “sell the various parts of the birds.” While the district court and the parties all understood Count I as alleging only a conspiracy to sell bird parts, they disagreed as to whether doing so was. a misdemeanor (as Crooked Arm and Shane argued) or a felony (as the government and the district court believed).

On appeal, the panel in Crooked Arm, I agreed with Defendants that, unlike the sale of whole birds, the sale of bird parts was only a misdemeanor. 788 F.3d at 1079. The panel nevertheless affirmed the district court’s denial of the motion to dismiss because “Count I clearly charges in part a statutory felony,” namely, a conspiracy to offer for sale and sell birds. Id. at 1071-72 (emphasis added).

This holding in Crooked Arm, I is consistent with the plain language of the statute, which shows that only two of the four alleged objects of the conspiracy in Count I — offering for sale and selling migratory birds — qualify as felonies. The other two objects — killing and transporting migratory birds — are misdemeanors. Indeed, the government conceded this point at oral argument, as did the district court below when denying the motion to dismiss. This distinction matters because, if Crooked Arm and Shane admitted only to misdemeanor objects, then the conspiracy to which they pled is itself only a misdemean- or. See 18 U.S.C. § 371; Crooked Arm I, 788 F.3d at 1071.

In supplemental briefing requested by the panel in Crooked Arm I, Defendants advanced several arguments, including that Apprendi required them to be sentenced as misdemeanants for Count I because “the object of the conspiracy to which the Defendants pled guilty (selling feathers) is a misdemeanor.” Defendants therefore requested that the panel “remand for re-sentencing rather than dismissing” Count I. The panel obliged by vacating their sentences and remanding. Id. at 1080.

II

A

The linchpin of the majority’s opinion is that, under the law of the case doctrine, we must decline to hear Crooked Arm’s and Shane’s sentencing challenge. I disagree. Because the prior panel “did not decide” whether Crooked Arm’s and Shane’s felony sentences were Apprendi error, the “law of the case doctrine does not preclude us from deciding that issue here.” United States v. Almazan-Becerra, 537 F.3d 1094, 1097 (9th Cir. 2008) (holding that the law of the case doctrine did not bar consideration on remand of sentencing argument because the prior panel, despite addressing the issue, did not decide it); see Wyler Summit P’ship v. Turner Broad. Sys., Inc., 235 F.3d 1184, 1193 (9th Cir. 2000).

Crooked Arm and Shane are not, as the majority characterizes it, improperly attempting to “relitigate the adequacy of their pleas by resurrecting them in the guise of a sentencing claim.” Majority Op. at 1069. To the contrary, they are not challenging their convictions under Count I; they do not argue that their “pleas were not knowing and voluntary and without adequate factual basis,” two issues addressed in a footnote in Crooked Arm I, 788 F.3d at 1072 n. 5. Instead, Crooked Arm and Shane concede the propriety of their convictions on Count I, but challenge only the sentences they received on remand. The majority conflates a challenge to a sentence with a challenge to a conviction — two different legal theories with different remedies based on different facts— so as to shoehorn this appeal into a theory rejected in Crooked Arm I.

Contrary to the majority’s suggestion, the panel in Crooked Arm I never “rejected” the Apprendi argument included in Defendants’ supplemental briefing; the panel simply did not discuss the argument or even mention Apprendi. Majority Op. at 1069. Nor was it required to do so, as it granted Defendants the relief they sought: the panel held that Count I charged a felony only in part, that Defendants admitted only to a conspiracy to sell bird parts, that the sale of bird parts was a misdemeanor, and that Defendants’ felony sentences must be vacated. Crooked Arm I, 788 F.3d at 1070 n.2, 1071-72, 1079. These holdings — which are law of the case — laid the necessary groundwork for Defendants to receive misdemeanor sentences on remand.

Having vacated the sentences, the panel in Crooked Arm I did not reach the issue of whether Defendants were properly sentenced for a felony. The passages cited by the majority describing Count I as charging a felony only underscore the limits of Crooked Arm Ts holding, namely, that the district court properly denied the motion to dismiss as to Count I. But a determination that Count I charged a felony says nothing about whether Defendants were properly sentenced as felons because, as the government conceded and the district court held, Count I also charged a misdemeanor. Under such circumstances, to determine that a felony sentence was proper under Apprendi would have required the panel to hold that Crooked Arm and Shane admitted to a felony object. See United States v. Guerrero-Jasso, 752 F.3d 1186, 1189-91 (9th Cir. 2014). The panel never did so. Because CrookedArm 7’s analysis “neither acknowledged nor discussed” the Apprendi argument and, in fact, granted Defendants the relief they requested, the law of the case doctrine does not apply here. Hegler v. Borg, 50 F.3d 1472, 1475 (9th Cir. 1995).

B

Even if Crooked Arm Ps silence on the issue could be read as a rejection of Defendants’ Apprendi argument (which it cannot), the law of the case doctrine does not bar relief here because the prior panel “wiped the slate clean” by vacating the original sentences and remanding for re-sentencing. Pepper v. United States, 562 U.S. 476, 507, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011). This is true even if Crooked Arm I vacated their sentences on different grounds than those raised by Defendants on remand. Id. at 507-08, 131 S.Ct. 1229 (holding that the district court “was not bound by the law of the case doctrine” to rule the same way as in prior sentencing because the court of appeals had vacated the sentence, albeit on different grounds).

“On remand, the district court generally should be free to consider any matters relevant to sentencing, even those that may not have been raised at the first sentencing hearing, as if it were sentencing de novo.” United States v. Matthews, 278 F.3d 880, 885-86 (9th Cir. 2002) (en banc). The present case underscores the policy reasons behind the rule generally permitting defendants to raise all available sentencing arguments on remand: doing so provides the “predictability and consistency in sentencing” necessary for a “just sentence.” Matthews, 278 F.3d at 886 (quoting United States v. Matthews, 240 F.3d 806, 823 (9th Cir. 2000) (O’Scannlain, J., dissenting)). In the first sentencing hearing, the district court sentenced Crooked Arm and Shane based on the mistaken belief that Count I alleged only a conspiracy to “sell the various parts of the birds” and that doing so was a felony, a legal conclusion that we reversed in Crooked Arm I. As the district court-noted on remand, “nobody contemplated” that the Ninth Circuit would hold that Count I charged a felony in part. Rather, the district court and the parties expected either a total affirmance or total reversal. Thus, in their first sentencing hearing, Crooked Arm and Shane had no reason to challenge an Apprendi error that had yet to occur and which depended on a future partial reversal that nobody expected.

The majority’s only answer is that Defendants’ Apprendi argument is not an Apprendi argument but rather a challenge to the “adequacy of the pleas,” an argument rejected in Crooked Arm I. Majority Op. at 1069. Respectfully, this reasoning substitutes a strawman argument for the one Defendants actually make. Crooked Arm and Shane clearly state that their “pleas were adequate to convict them” on Count I because they admitted a misdemeanor object of the conspiracy: the sale of bird feathers. They simply challenge their sentences because they pled to a misdemeanor conspiracy, but were sentenced as felons — a quintessential Appren-di error.

C

Furthermore, we do not apply the law of the case doctrine when doing so would be “clearly erroneous” and would result in “a manifest injustice.” Pepper, 562 U.S. at 506-07, 131 S.Ct. 1229. Such is the case here. Closing our eyes to a clear Apprendi error is a manifest injustice because, unlike a misdemeanant, a felon must “carry through life the disability of a felon[y] and by reason of that fact he might lose certain civil rights,” such as the right to vote, serve on a jury, or hold political office. See Fiswick v. United States, 329 U.S. 211, 222 & n.10, 67 S.Ct. 224, 91 L.Ed. 196 (1946); United States v. Chovan, 735 F.3d 1127, 1145 (9th Cir. 2013) (Bea, J., dissenting) (unlike misdemeanants, “felons can suffer numerous restrictions on their constitutional rights”).

D

Defendants also could not have waived in Crooked Arm I a challenge to a sentencing error that had not yet occurred. In United States v. Caterino, we affirmed Caterino’s convictions in his first appeal and held that he had “waived” his double jeopardy sentencing argument by acquiescing below. 29 F.3d 1390, 1393, 1395 (9th Cir. 1994) overruled on other grounds by Witte v. United States, 515 U.S. 389, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995). However, we identified a different error and remanded for resentencing. Id. at 1393. On remand, the district court rejected Caterino’s attempt to raise his double jeopardy argument, finding that the argument was barred by the law of the case doctrine. Id. at 1395. We reversed again, holding that the defendant was “free to make any new arguments or concessions he deemed appropriate given the new set of circumstances” of a vacated sentence and remand for resentencing. Id. at 1396. We explained that, after an appellate court vacates a sentence and remands for resen-tencing, a defendant is not “bound at the resentencing phase by his [earlier] waiver.” Id. at 1396; see also United States v. Garcia-Guizar, 234 F.3d 483, 490 (9th Cir. 2000) (rejecting the argument that the government “waived its right to correct [on remand] the error in the original sentencing because it did not cross-appeal from the original sentence”).

E

The majority faults Crooked Arm and Shane for not withdrawing their pleas on remand, stating that they “should have tried” to do so if they “did not want to be sentenced as felons.” Majority Op. at 1070. But the district court’s offer to withdraw their pleas came with a warning that doing so would erase their victory on appeal, because the government would be permitted to recharge them as felons. A district court cannot immunize itself from Appren-di error simply by offering a defendant the Hobson’s choice between an unconstitutional sentence and withdrawal of his plea. That dubious proposition appears nowhere in the case cited by the majority, which rejected a collateral attack on a conviction because “a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked” absent certain exceptions. United States v. Broce, 488 U.S. 563, 574, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989) (quoting Mabry v. Johnson, 467 U.S. 504, 508, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984)). That case has nothing to do with the Apprendi error that arose here.

Ill

While not addressed by the majority, the district court committed Apprendi error by sentencing Defendants as. felons because the government failed to secure an admission of any felony object of the conspiracy.

Under Apprendi and its progeny, a sentencing court may not increase the penalty for a crime beyond the statutory maximum by relying on facts, other than the fact of a prior conviction, “that were neither admitted by the [defendant nor found by a jury beyond a reasonable doubt.” Guerrero-Jasso, 752 F.3d at 1189. Error occurs even if the court sentences a defendant to less than the maximum penalty provided by statute because the term “ ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or. admitted by the defendant.” Blakely v. Washington, 542 U.S. 296, 303, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

The government bears the burden “at the plea colloquy to seek an explicit admission of any unlawful conduct it seeks to attribute to the defendant.” United States v. Hunt, 656 F.3d 906, 912 (9th Cir. 2011) (quoting United States v. Thomas, 355 F.3d 1191, 1199 (9th Cir. 2004)). Therefore, in order to obtain felony sentences here, the government must have elicited from Crooked Arm and Shane explicit admissions to a felony object of the conspiracy: offering for sale or selling migratory birds (not merely bird feathers). The government failed to do so. In fact, during his plea colloquy, Shane specifically rejected the government’s offer of ppoof as “wrong and misleading,” admitting only to helping Crooked Arm sell his daughter’s fan made of migratory bird feathers. Crooked Arm also admitted only to selling feathers and leaving a deer carcass out for birds to eat. But neither admitted to conspiring to sell or offer for sale migratory birds.

The government falls back on the argument that Crooked Arm and Shane pled guilty to a felony because the indictment alleges a multi-object conspiracy that includes both misdemeanor and felony objects. That is not the law. Where, as here, a defendant pleads guilty to a count alleging conduct in the conjunctive, the defendant admits only the least serious conduct. See Guerrero-Jasso, 752 F.3d at 1191 (vacating a sentence based on a guilty plea to a charge alleged in the conjunctive because when “either ‘A’ or ‘B’ could support a conviction, a defendant who pleads guilty to a charging document alleging ‘A and B’ admits only ‘A’ or ‘B’ ” (quoting Young v. Holder, 697 F.3d 976, 988 (9th Cir. 2012) (en banc))). That is because, by pleading guilty to the charging document, a defendant only “admits the facts constituting the elements of the charge,” but not allegations that are “not necessary” for a conviction. United States v. Cazares, 121 F.3d 1241, 1246-47 (9th Cir. 1997) (vacating sentence based on a guilty' plea to an indictment charging a drug conspiracy and alleging that the defendant possessed a gun because gun possession was not an element of the drug conspiracy charge).

Here, all that was necessary for a conviction under Count I was an admission to any one of the four alleged objects of the conspiracy, including the misdemeanor objects of killing and transporting birds. See Griffin v. United States, 502 U.S. 46, 56-57, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991) (affirming a conviction on a multi-object conspiracy charge under 18 U.S.C. § 371 where the evidence implicated the defendant as to only one of the two objects of the conspiracy). Because the government failed to secure an admission from Crooked Arm and Shane of any felony object of the conspiracy, they pled only to a misdemeanor. As a result, the district court erred in sentencing them as felons. See Guerrero-Jasso, 752 F.3d at 1191.

Because the district court committed Apprendi error, I would vacate the sentences and remand with instructions to resentence Crooked Arm and Shane' as misdemeanants.

      . Although Crooked Arm and Shane claim that they are not challenging their convictions, this is the essence of their dispute. Contrary to the dissent’s suggestion, it would be absurd to affirm Crooked Arm's and Shane’s felony convictions but find their felony sentences improper on the basis that the relevant crimes were only misdemeanors. If one is convicted of first-degree murder, it would be bizarre to claim that he can be sentenced only for manslaughter. Notably, Crooked Arm and Shane do not claim that the district court improperly calculated their Guidelines’ range or bring similar sentencing claims.

      . See id. at 1068 (“We conclude ... that ... Count I ... charges a felony”), 1071 (“[T]his [C]ount [I] plainly charged a felony”), 1072 (“The substantive MBTA offense ... makes Count I a felony charge”) ("Count I ... charged a felony offense”), 1073 ("Count I charged a felony”), 1080 (“Count I charged a felony”).

      .Contrary to the dissent, it is not undisputed that Crooked Arm and Shane admitted only to misdemeanor conduct. At the plea hearing, when the district court asked Crooked Arm why he was guilty, Crooked Arm explained that he "had a deer carcass in the back of [his] truck,” which he took “out in the hills and dropped ... off for the animals and birds to eat.”

      . The majority confusingly focuses on Crooked Arm’s admission to an alleged overt act: placing deer carcasses on the land. Majority Op. at 1068.& n.3. But, as Crooked Arm and Shane explain, this overt act — which itself is not a felony — does not convert a misdemeanor conspiracy into a felony. See Iannelli v. United States, 420 U.S. 770, 785 n.17, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975). Whether the conspiracy is a misdemeanor or a felony turns not on this overt act, but rather on the “object of the conspiracy” admitted by Defendants, which was the sale of feathers. Crooked Arm I, 788 F.3d at 1070 n.2, 1071; 18 U.S.C. § 371.

      . At the plea colloquy, the district court told Shane that what the indictment is "saying in Count One is that you conspired with Mr. Crooked Arm ... to sell the various parts of the birds.” No party disagreed with this characterization. That is because the government had already conceded, and Defendants agreed, that the “indictment here charges defendant with selling and offering to sell bird parts.” The government and the district court simply took the position that the indictment’s use of the statutory term "migratory bird” included "parts of birds.” As Crooked Arm I held, that conflation of birds with bird parts was error. 788 F.3d at 1075.

      . Under the Migratory Bird Treaty Act, it is a felony to "sell” or "offer for sale ... any migratory bird.” 16 U.S.C. § 707(b)(2). Absent intent to sell, the Act makes it a misdemeanor to "kill” or "transport” a migratory bird. See id. §§ 703(a), 707(a). Consistent with Crooked Arm I, our sister circuits have also recognized that killing migratory birds is only a "misdemeanor” under 16 U.S.C. § 707(a). See United States v. Apollo Energies, Inc., 611 F.3d 679, 681 (10th Cir. 2010); United States v. CITGO Petroleum Corp., 801 F.3d 477, 488 (5th Cir. 2015).

      . We routinely recognize the distinction between a challenge to a conviction and a challenge to a sentence by affirming convictions but vacating sentences due to Apprendi error. See, e.g., United States v. Locklin, 530 F.3d 908, 911-13 (9th Cir. 2008). Therefore, contrary to the majority's suggestion, it would not be absurd to affirm Defendants' convictions but also hold that their felony sentences were improper.

      . The two cases relied upon by the majority do not hold otherwise. Those cases do not involve an appeal from a remand for resen-tencing, nor do they address the binding authorities discussed herein. See United States v. Alexander, 106 F.3d 874, 875 (9th Cir. 1997) (holding that the "district court abused its discretion by departing from the law of the case and admitting a previously suppressed confession"); Mendez-Gutierrez v. Gonzales, 444 F.3d 1168, 1173 (9th Cir. 2006) (holding that the Board of Immigration Appeals- was bound by the first appeal’s "limited remand” to consider only "whether [the petitioner] has established a prima facie case of eligibility for asylum”).


source: Caselaw Access Project

author: BYBEE, Circuit Judge:

license: Public Domain

text:
    SOUTHERN CALIFORNIA ALLIANCE OF PUBLICLY OWNED TREATMENT WORKS, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY; Jared Blumenfeld, Regional Administrator, USEPA, Region IX, Respondents.
    No. 14-74047
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted November 7, 2016, Pasadena, California
    Filed April 12, 2017

      Melissa Thorme (argued), Downey Brand LLP, Sacramento, California, for Petitioner.
    Eileen T. McDonough (argued), Attorney; John C. Cruden, Assistant Attorney General; Environment Defense Section, Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Marcela von Vacano, Assistant Regional Counsel, Region 9, United States Environmental Protection Agency, San Francisco, California; Pooja S. Parikh, Attorney-Advisor, Office of the General Counsel, United States Environmental Protection Agency, Washington, D.C.; for Respondents.
    Before: KIM McLANE WARDLAW and JAY S. BYBEE, Circuit Judges, and ROBERT HOLMES BELL, District Judge.

       The Honorable Robert Holmes Bell, United States District Judge for the Western District of Michigan, sitting by designation.

   OPINION

BYBEE, Circuit Judge:

The Southern California Alliance of Publicly Owned Treatment Works (SCAP) petitions for review of an objection letter sent by the United States Environmental Protection Agency (EPA) regarding draft permits for water reclamation plants in El Monte and Pomona, California. SCAP argues that we have original jurisdiction to review the objection letter under 33 U.S.C. § 1369(b)(1)(E), which applies to EPA action “approving or promulgating any effluent limitation,” and 33 U.S.C. § 1369(b)(1)(F), which applies to EPA action “issuing or denying any permit.” We agree with EPA that we lack subject matter jurisdiction to hear SCAP’s claims, and we dismiss the petition.

I. BACKGROUND

A. The Clean Water Act

In 1972, Congress enacted sweeping amendments to the Federal Water Pollution Control Act (FWPCA) of 1948 “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). After another round of substantial amendments in 1977, the statute became known as the Clean Water Act (CWA or the Act). The CWA prohibits the discharge of any pollutant into navigable waters from any point source without a permit. Id. § 1311(a). Permits are issued in accordance with the National Pollutant Discharge Elimination System (NPDES). Id. § 1342(a). These permits authorize certain point source discharges and are typically conditioned on compliance with water quality standards and effluent limitations issued under the Act. Id. § 1342(a).

The CWA establishes two pathways for the issuance of NPDES permits. First, EPA may issue the permits under 33 U.S.C. § 1342(a). Second, the states, with EPA approval, may assume responsibility for issuing permits. Id. § 1342(b). The state program must meet specific requirements, including incorporating certain provisions of the NPDES regulations, and be approved by EPA. Id.; 40 C.F.R. §§ 123.25(a)(15), 122.44. “If [NPDES permitting] authority is transferred, then state officials — not the federal EPA — have the primary responsibility for reviewing and approving NPDES discharge permits, albeit with continuing EPA oversight.” Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 650, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007). Forty-six states, including California, currently have authority to issue their own NPDES permits. EPA, NPDES State Program Information, https://www.epa.gov/npdes/npdes-state-program-information (follow: “Authority” hyperlink).

Even when a state assumes primary responsibility for issuing NPDES permits, EPA retains supervisory authority over state permitting programs under 33 U.S.C. § 1342(d). The state must transmit to EPA a copy of each permit application received, as well as proposed permits, and EPA has ninety days to notify the state of any objections it has to the draft permit. Id. § 1342(d)(1)-(2). The objection must be in writing and state “the reasons for such objection and the effluent limitations and conditions which such permit would include if it were issued by” EPA. Id. § 1342(d)(2). If the disagreement proves intractable, the state or any interested person can request that EPA hold a public hearing on the objection. Id. § 1342(d)(4); 40 C.F.R. § 123.44(e). Following a public hearing, EPA may reaffirm, withdraw, or modify the original objection. 40 C.F.R. § 123.44(g). If the state does not request a hearing or EPA maintains its objection, the state then has a choice: It can either revise the permit to address EPA’s objection or allow permitting authority to pass back to EPA. 33 U.S.C. § 1342(d)(4); see also 40 C.F.R. § 123.44(h).

The state’s decision either to make the changes and retain jurisdiction over the permit or to relinquish permitting authority to EPA has practical consequences for further review. If the state chooses to revise and issue a permit, an aggrieved party can seek further administrative review and then judicial review in accordance with state law. See Am. Paper Inst., Inc. v. EPA, 890 F.2d 869, 875 (7th Cir. 1989). By contrast, if jurisdiction returns to EPA and EPA issues a federal NPDES permit, EPA’s decision may be appealed within EPA to the Environmental Appeals Board (EAB). 40 C.F.R. § 124.19(a)(1). A final EPA permit approved by the EAB is subject to review in an appropriate circuit court of appeals. 33 U.S.C. § 1369(b)(1)(F).

B. California’s NPDES Permitting Program

In 1973, EPA granted California authority to administer the NPDES permits program. Approval of California’s Revisions to the State National Pollution Discharge Elimination System Program, 54 Fed. Reg. 40,664 (Oct. 3, 1989); Discharges of Pollutants to Navigable Waters: Approval of State Programs, 39 Fed. Reg. 26,061 (July 16, 1974). Regional Boards make the initial permitting decisions. The California State Water Resources Control Board (State Board), the final NPDES permitting authority in California, reviews the permits issued by Regional Boards. “[A]ny aggrieved party” may then file a petition for review in California Superior Court. Cal. Water Code § 13330(a).

Additionally, California and EPA have entered into a Memorandum of Agreement that explains in greater detail the rights the State has under the Act and the regulations. Under that agreement, for example, if the State disagrees with EPA’s objection, it has the option to pursue informal means of resolving the dispute. See, e.g., NPDES Memorandum of Agreement Between U.S. Environmental Protection Agency and California State Water Resources Control Board 16 (1989) (MOA) (“If EPA and a Regional Board are unable to resolve a disagreement over provisions of a prenotice draft permit to which EPA has filed a formal objection, the State Board may mediate the disagreement to a resolution that is satisfactory to EPA and to the Regional Board.”). Once EPA has filed an objection letter, the State may request that EPA conduct a public hearing pursuant to 40 C.F.R. § 123.44 or opt to conduct its own public hearing. Id. at 16-17. The MOA, like the regulations, contemplates that, following this process, EPA may modify or even withdraw its objections. Id. at 19.

C. The Permits at Issue

The Whittier Narrows Water Reclamation Plant, located in El Monte, California, and the Pomona Water Reclamation Plant, located in Pomona, California (collectively, the Plants), are tertiary-level treatment water reclamation facilities that receive industrial, commercial, and residential wastewater from the surrounding cities. They each produce approximately 9000 acre-feet of recycled water per year, which is used for groundwater recharge and landscape irrigation in Southern California.

The Los Angeles Regional Office (L.A. Board) of the State Board prepared the draft NPDES permits (Draft Permits) for the Plants at issue. The L.A. Board also prepared a “Fact Sheet,” which included its determination that effluent limitations were required for “whole effluent toxicity” because the discharge potentially could cause or contribute to chronic toxicity. The Draft Permits addressed chronic toxicity by setting “Chronic Toxicity Trigger and Requirements” (Toxicity Triggers).

The L.A. Board submitted the Draft Permits to EPA for review consistent with 33 U.S.C. § 1342(d)(1). Jane Diamond, the Region 9 Director of EPA’s Water Division, issued a letter with EPA’s formal objections to the Draft Permits on September 4, 2014 (“Objection Letter”). EPA’s principal concern “relate[d] to numeric effluent limitations for whole effluent toxicity.” EPA criticized the permits because they “express a chronic toxicity requirement as a series of steps which include a narrative trigger for further investigation of effluent toxicity, not as an effluent limitation for WET.... Taken together, these toxicity triggers simply require further investigation, and thus do not met meet the definition of ‘effluent limitation’ under the CWA....” EPA offered other criticism as well and attached to its letter what it characterized as “Required Changes” and “Recommended Changes” in the permits. EPA stated that if the L.A. Board did not submit revised permits addressing EPA’s concerns, EPA would “acquire exclusive NPDES authority over the discharges pursuant to 40 C.F.R. § 123.44(h)(3).”

The L.A. Board revised the Draft Permits to meet the terms of EPA’s Objection Letter. After reviewing the revised permits, EPA notified the L.A. Board, the State Board, and the permit applicants that EPA’s objections had been satisfied and that the NPDES permits for the Plants remained within the L.A. Board’s jurisdiction. After complying with procedures required by state law, the L.A. Board issued the permits for both Plants in November 2014.

D. State Administrative Proceedings

On December 8, 2014, SCAP, along with the permittees and other parties, filed an administrative appeal of the L.A. Board’s action with the State Board. The petition requested a hearing and a stay of the NPDES Permits. Three weeks later, on December 31, 2014, SCAP also filed a petition for review before us.

The State Board did not immediately act on SCAP’s administrative petition. On July 9, 2015, the L.A. Board amended the NPDES permits for the Plants. SCAP amended its administrative petition in light of the amended permits. SCAP then requested that the State Board hold the state administrative appeals in abeyance until 2017. SCAP stated that its request would “allow the opportunity for resolution of these matters and for further discussion and exchanges between the Petitioners and the [L.A. Board].” The State Board granted SCAP’s request and placed the matter in abeyance until August 10, 2017.

II. DISCUSSION

SCAP seeks review of EPA’s September 4, 2014 Objection Letter. SCAP argues the original permits proposed by the L.A. Board were consistent with the CWA and that EPA exceeded its authority in requiring water quality-based effluent limitations for whole effluent toxicity, numeric effluent limitations, and daily maximum effluent limitations. In response, EPA contends that we lack jurisdiction to review its Objection Letter and that, so long as permitting authority rests with California state agencies, SCAP’s judicial remedy lies in California courts under California’s administrative procedures. We review challenges to our jurisdiction de novo. Bidart Bros. v. Cal. Apple Comm’n, 73 F.3d 925, 928 (9th Cir. 1996).

The CWA vests the federal courts of appeals with original jurisdiction over seven categories of EPA action. 33 U.S.C. § 1369(b)(1).

We do not lightly hold that we have jurisdiction under [33 U.S.C. § 1369(b)(1) ]. We have counseled against [its] expansive application. The specificity and precision of section [1369], and the sense of it, persuade us that it is designed to exclude EPA actions that Congress did not specify. Indeed, [n]o sensible person ... would speak with such detail otherwise.

Nw. Envtl. Advocates v. EPA, 537 F.3d 1006, 1015 (9th Cir. 2008) (second and fourth alterations in original) (citations omitted) (internal quotation marks omitted). SCAP asserts two bases for our jurisdiction. First, it claims that EPA promulgated new daily and numeric effluent limitations for chronic toxicity through the Objection Letter, giving our court jurisdiction under 33 U.S.C. § 1369(b)(1)(E). Second, SCAP claims that we have jurisdiction under 33 U.S.C. § 1369(b)(1)(F) because the Objection Letter was the “functional equivalent” of EPA’s denial of the state-proposed Draft Permits.

Neither provision gives us jurisdiction to review the Objection Letter. When a state assumes responsibility for administering the NPDES program, the state becomes the permit-issuing agency. 33 U.S.C. § 1342(b). An objection by EPA to a draft state permit is merely an interim step in the state permitting process. Id. EPA may decide to withdraw the objection after discussions with the state and regional board or after holding a public hearing, or the state may revise a draft permit to remedy EPA’s objection and issue the permit. Id. In either case, the permitting decision remains the state’s. The permits issued by the state are subject to administrative and judicial review in accordance with state law. See, e.g., Cal. Water Code § 13330 (providing for review in California Superior Court of State Board decisions). Alternatively, the state can choose not to remedy the objection and let permitting authority pass back to EPA. 33 U.S.C. § 1342(d)(4). In that case, the state has relinquished jurisdiction over the permitting process, and EPA assumes full responsibility for the permit. If EPA issues the permit, the permit is subject to review by the EAB first and then the appropriate federal court of appeals. City of San Diego v. Whitman, 242 F.3d 1097, 1101 (9th Cir. 2001). Here, the L.A. Board chose to revise the Draft Permits and retain control of the NPDES permitting process for the Plants, and the permits were issued through the State of California, not EPA. The appropriate avenue for SCAP to seek redress is through the State’s review process. We explain our reasons in greater detail below.

A. Jurisdiction Under 33 U.S.C. § 1369(b)(1)(E)

Section 1369(b)(1)(E) provides for federal appellate review of EPA action “in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345 of this title.” Relying on a decision of the Eighth Circuit, SCAP contends that EPA’s objection effectively promulgated new effluent limitations and is reviewable under § 1369(b)(1)(E). See Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013). EPA counters that we have already considered and rejected SCAP’s argument. See Crown Simpson Pulp Co. v. Costle, 599 F.2d 897 (9th Cir. 1979) (Crown Simpson I), rev’d in part, 445 U.S. 193, 100 S.Ct. 1093, 63 L.Ed.2d 312 (1980) (per curiam) (Crown Simpson II). EPA is correct. Following our circuit’s decision in Crown Simpson I, we hold that we lack jurisdiction to review the Objection Letter under § 1369(b)(1)(E).

In .Crown Simpson I, we held that 33 U.S.C. § 1369(b)(1)(E) does not provide jurisdiction over a claim like SCAP’s. Similar to this case, Crown Simpson I involved a challenge to EPA’s veto of NPDES permits that the California State Board proposed to issue to bleached kraft pulp mills pursuant to 33 U.S.C. § 1342(b). Crown Simpson argued that EPA’s veto was “the functional equivalent of a newly promulgated, generalized regulation” and that “if the Administrator had formally promulgated such a generalized variance regulation, it would have been directly renewable by the court of appeals as an ‘effluent or other limitation’ under subsection (E).” Id. at 900. We simply rejected the premise that the “Administrator’s vetoing of the two permits was tantamount to the promulgation of a new variance regulation.” Id. at 901. We characterized EPA’s actions as “not the establishment of new regulations through an irregular procedure, but simply two individualized adjudications to determine the proper application of already promulgated effluent limitation regulations covering the entire industry.” Id. We concluded that “[sjubsection (E) provides for direct review of the promulgation of -effluent limitations, not for direct review of all of the Administrator’s actions that may in any way be dependent upon the Administrator’s power to promulgate such limitations.” Id. at 902.

Crown Simpson I is controlling in this case. The statutory regime differentiates between the promulgation of effluent limitation regulations, which are “standards restricting the quantities of pollutants that enterprises in a given industry may discharge,” and “individualized adjudications to determine the proper application of already promulgated ... regulations covering the entire industry.” Id. at 901-02. Here, as in Crown Simpson /, EPA did not “approve or promulgate anything” in objecting to the Draft Permits. Id. at 900, 902 (internal quotation marks omitted). Instead, it applied preexisting regulations on an individualized basis to determine that the Draft Permits were inadequate. See id. at 901. “The two permits and variances at issue here have no ... far reaching implications” beyond their effect on the Plants, as compared to “generalized effluent limitations,” which “may affect dozens or even hundreds of plants.” Id. at 902. Our precedent therefore compels the conclusion that we lack jurisdiction under § 1369(b)(1)(E).

Petitioners urge us to follow the Eighth Circuit’s decision in Iowa League of Cities, 711 F.3d 844. In that case the Iowa League of Cities (the League) believed that EPA had imposed new requirements for water treatment processes and that it was doing so without promulgating regulations. At the League’s request, U.S. Senator Charles Grassley wrote to EPA. EPA responded in two guidance letters. The League, believing that the guidance letters were inconsistent with the CWA and EPA’s own regulations, brought a challenge in the Eighth Circuit under 38 U.S.C. § 1369(b)(1)(E). EPA argued that the court lacked subject matter jurisdiction, but the Eighth Circuit held that the guidance letters not only had a “binding effect on regulated entities,” 711 F.3d at 863. but that “communications from the EPA indicat[ed] that it would object to any permits that were inconsistent with the policy outlined in the EPA letters,” id. at 864. On that understanding, the court held that EPA’s letters “were promulgations for the purposes of CWA section [1369](b)(1)(E),” id. at 866, and should be reviewed under the APA, id. at 872-78.

To the extent Iowa League of Cities is inconsistent with our decision in Cream Simpson I, we are, of course, bound by Crown Simpson I. Moreover, there are other reasons to distinguish this case from Iowa League of Cities. Unlike the Iowa case, EPA here was commenting specifically on the Draft Permits submitted by the Plants, consistent with 33 U.S.C. § 1342(d)(1). EPA was not responding to a more general inquiry about its “binding policy,” and nothing in the EPA comments suggest that it was proposing objections applicable to “any permits that were inconsistent with the policy outlined in the EPA letters.” Iowa League of Cities, 711 F.3d at 865. We need not decide whether we would agree with the Eighth Circuit’s decision in Iowa League of Cities in other circumstances. Those circumstances are not presented to us in this case.

There are other features of our case that persuade us that we may not review EPA’s Objection Letter. First, unlike with the guidance letters to Senator Grassley in Iowa League of Cities, EPA here was participating in an interim step in a complex statutory scheme. Under the scheme, EPA’s Objection Letter was not a binding order to the L.A. Board. To be sure, EPA notified the L.A. Board that if it did not make the changes EPA wanted EPA would assume jurisdiction over the NPDES permits. Nonetheless, the L.A. Board was given the option of adopting EPA’s required changes or ceding permitting jurisdiction to EPA. And no matter what the L.A. Board decided — whether to ignore or to adopt EPA’s requested changes — there was going to be an opportunity in due course for court review. Cf. City of San Diego, 242 F.3d at 1101-02 (holding that EPA letter regarding the city’s as-yet-unfiled application for renewal of a modified NPDES permit was not reviewable until EPA actually issued the permit in question).

Under the Act’s scheme of cooperative federalism, if the L.A. Board refused to make EPA’s required changes, EPA would assume jurisdiction and, presumably, issue its own permits. The petitioners could then have filed a petition for review first before the EAB and then in this court and challenged the substance of the EPA-issued permits. Because, however, the L.A. Board acquiesced to EPA’s requests, the Plants may pursue available state remedies, including review by the State Board, in the California courts, and, potentially, in the U.S. Supreme Court. See Am. Paper Inst., 890 F.2d at 875; cf. S.D. Warren Co. v. Me. Bd. of Envtl. Prot., 547 U.S. 370, 375, 126 S.Ct. 1843, 164 L.Ed.2d 625 (2006) (reviewing state court decision regarding conditions placed in permit by state environmental agency under 33 U.S.C. § 1341); PUD No. 1 of Jefferson Cty. v. Wash. Dep’t of Ecology, 511 U.S. 700, 114 S.Ct. 1900, 128 L.Ed.2d 716 (1994) (same).

There is a another reason for us to decline to exercise jurisdiction at this stage in the process. Under the CWA, California may impose restrictions that exceed the CWA’s minimum requirements and EPA’s regulations. 33 U.S.C. § 1370; 40 C.F.R. § 122.44(d). The L.A. Board (or the State Board) may take a more, aggressive view of the requirements for keeping the state’s waters clean. In that circumstance, any request for review of EPA’s Objection Letter would be moot because California water regulators may determine that the discharges at issue exceed the requirements of state water quality standards. 40 C.F.R. § 122.44(d). EPA’s views, in that case, are irrelevant, and a petitioner’s remedies, if any, lie with the State Board and the California courts. We have no business getting into the middle of this process.

We have no jurisdiction to review EPA’s Objection Letter under § 1369(b)(1)(E).

B. Jurisdiction Under 33 U.S.C. § 1369(b)(1)(F)

Section 1369(b)(1)(F) provides for review of an EPA action “issuing or denying any permit under section 1342.” SCAP urges us to find that EPA’s Objection Letter effectively denied the permits sought by the Plants and tentatively approved by the L.A. Board. For authority, SCAP points to the Supreme Court’s decision in Crown Simpson II. In that case, the Supreme Court held that under the 1972 version of the CWA, when EPA “objects to effluent limitations contained in a state-issued permit, the precise effect of its action is to ‘den[y]’ a permit within the meaning of § [13691(b)(1)(F).” 445 U.S. at 196, 100 S.Ct. 1093 (first alteration in original). EPA argues that Crown Simpson II is not applicable because Congress amended the CWA in 1977 and revised the procedures relating to EPA supervisory authority of state NPDES permitting. Although the Supreme Court in Crown Simpson II was aware of the 1977 CWA amendments, it expressly declined to consider their impact on the jurisdictional question before it, because the EPA objection at issue occurred before the amendments took effect. Id. at 194 n.2, 100 S.Ct. 1093 (“Section [1342] was amended in 1977, after the permits in the present case were vetoed, to give EPA the power, which it did not then have, to issue its own permit if the State fails to meet EPA’s objection within a specified time. We do not consider the impact, if any, of this amendment on the jurisdictional issue presented herein.” (citation omitted)). Since Crown Simpson II, neither the Supreme Court nor we have addressed the interaction of 33 U.S.C. § 1342(d) and § 1369(b)(1)(F). Doing so now for the first time, we conclude that the Objection Letter did not constitute the “issufance] or den[ial]” of the Draft Permits at issue, and we do not have jurisdiction under § 1369(b)(1)(F).

In our view, the 1977 amendments significantly changed the CWA. Section 1342(d)(2), as enacted in 1972 and construed by the Court in Crown Simpson II, provided:

No permit shall issue (A) if the Administrator within ninety days of the date of his notification under subsection (b)(5) of this section objects in writing to the issuance of such permit, or (B) if the Administrator within ninety days of the date of transmittal of the proposed permit by the State objects in writing to the issuance of such permit as being outside the guidelines and requirements of this Act.

Pub. L. 92-500, § 2, 86 Stat. 816, 882 (1972) (CWA § 402(d)(2)). Under this version of the .statute, once EPA objected to a state permit, the permit could not be issued unless the state revised it to remedy EPA’s objection. And if the state refused to address EPA’s objection, EPA and the state were at an impasse: “No permit shall issue.At that point neither the state nor EPA had authority to issue a permit. In this scheme, EPA’s objection was “functionally similar to its denial of a permit.” Crown Simpson II, 445 U.S. at 196, 100 S.Ct. 1093. The Court expressed concern that “denials of NPDES permits would be reviewable at different levels of the federal-court system depending on the fortuitous circumstances of whether the State in which the case arose was or was not authorized to issue permits.” Id. at 196-97, 100 S.Ct. 1093. Additionally, the Court thought that “the additional level of judicial review in those States with permit-issuing authority would likely cause delays in resolving disputes under the Act.” Id. at 197, 100 S.Ct. 1093. The Court thought such a “bifurcated system” was “seemingly irrational.” Id. However, it added that its conclusion was based in part on the' absence of “a far clearer expression of congressional intent.” Id.

That “clearer expression of congressional intent” came in the form of the 1977 CWA amendments. In 1977, Congress amended the CWA and added § 1342(d)(4). It reads:

In any case where, after December 27, 1977, the Administrator, pursuant to paragraph (2) of this subsection, objects to the issuance of a permit, on request of the State, a public hearing shall be held by the Administrator on such objection. If the State does not resubmit such permit revised to meet such objection within 30 days after completion of the hearing, or, if no hearing is requested within 90 days after the date of such objection, the Administrator may issue the permit pursuant to subsection (a) of this section for such source 'in accordance with the guidelines and requirements of this chapter.

Pub. L. 95-217, § 65, 91 Stat. 1566, 1604 (1977). In contrast to the prior iteration of the statute, which made EPA’s objection binding, the amended statute creates a process in which the state can request a hearing, following which there is additional opportunity for back and forth between the state and EPA. See 33 U.S.C. § 1342(d)(4); 40 C.F.R. § 123.44(e), (g). The state then has the choice to issue the permit with EPA’s requested changes or to allow jurisdiction over the permitting process to return to EPA. The amendment resolves the impasse that occurred under the prior scheme when EPA objected to a permit and the state chose not to modify the permit to remedy EPA’s objection. See Crown Simpson II, 445 U.S. at 194 n.2, 100 S.Ct. 1093 (“Section [1342] was amended in 1977 ... to give EPA the power, which it did not then have, to issue its own permit if-the State fails to meet EPA’s objection within a specified time.”).

The 1977 Amendments alter the permit-approval process so that an EPA objection no longer automatically and finally results in the denial of a permit if the state refuses to conform to EPA’s request. EPA’s objections are now part of an ongoing process, not the end of the process. Thus, complaints about an EPA Objection Letter are premature because when EPA objects to a permit, the administrative process is not yet at an end: The state and EPA may resolve their dispute over the objection informally, see, e.g., MOA at 16; the state may request that EPA hold a public hearing, or hold its own public hearing, after which EPA may reaffirm, withdraw, or modify its objection, 40 C.F.R. § 123.44(g); MOA at 16-17; the state may decide to modify the permit, and EPA may accept the modifications; or the state may decide not to act or refuse to accept EPA’s modifications, and EPA may then issue the permit on its own authority, 40 C.F.R. § 128.44(h); MOA at 19-20. In sum, under the current scheme, an objection by EPA is no longer “functionally similar” to denying a permit outright, because there are other procedures still available to the interested parties before the state denies the permit. And, if the state chooses not to adopt the recommendation of EPA, permitting authority simply transfers out of the state’s hands and back to the federal level.

Our conclusion is also consistent with decisions of the Seventh and Eighth Circuits, the only other circuits to have addressed the' issue directly. The Seventh Circuit held that the “amendments to the [CWA] fundamentally altered the underpinnings of the Crown Simpson [II ] decision” such that “an EPA objection to a proposed state permit is no longer ‘functionally similar’ to denying a permit.” Am. Paper Inst., 890 F.2d at 874 (quoting Crown Simpson II, 445 U.S. at 196, 100 S.Ct. 1093). Emphasizing the “strong congressional intent to make the states, where possible, the primary regulators of the NPDES system,” the Seventh Circuit concluded that the CWA, as amended, “does not contemplate federal court review of state-issued permits” and, accordingly, the federal courts may not review EPA’s objections to state-drafted permits before those permits have been issued by the states. Id. at 873, 875. Because “state courts are perfectly competent to decide questions of federal law,” the “state courts may examine challenges to any pertinent EPA objections.” Id. at 875.

The Eighth Circuit reached a similar conclusion. Determining that it lacked subject matter jurisdiction to review an EPA Regional Administrator’s objection to a state NPDES permit, the court wrote:

The crucial question here is whether the EPA Administrator has issuedor denied an NPDES permit.... EPA’s action here, although indicating disapproval with the City’s NPDES permit as drafted, does not constitute a decision by the Regional Administrator — let alone the EPA’s Administrator, to whom the Regional Administrator’s decision is ap-pealable — to issue or deny an NPDES permit.... The EPA’s actions thus far constitute preliminary objections to the State’s proposed permit.

City of Ames v. Reilly, 986 F.2d 253, 256 (8th Cir. 1993). The Eighth Circuit noted the administrative options that remain following an EPA objection: “[T]he State could issue its own permit, the EPA could withdraw its objections, or the EPA could issue a final NPDES permit.” Id.; cf. Champion Int'l Corp. v. EPA, 850 F.2d 182, 188 (4th Cir. 1988) (holding that when EPA files an objection for a state permit and then assumes NPDES issuing authority, EPA has not reached a final agency action subject to judicial review).

We lack jurisdiction under 33 U.S.C. § 1369(b)(1)(F) to review EPA’s Objection Letter.

III. CONCLUSION

We conclude that neither 33 U.S.C. § 1369(b)(1)(E) or (F) provides us subject matter jurisdiction to review the Objection Letter, and we dismiss SCAP’s petition for review.

DISMISSED.

      . Tertiary treatment plants produce water meeting drinking water standards required by the Safe Drinking Water Act, 42 U.S.C. § 300f et seq.

      . “Whole effluent toxicity” (sometimes referred to as WET) refers to the fact that effluent can contain many different pollutants. Even if no one pollutant is likely to cause harm to aquatic organisms, the combination of several pollutants may have an adverse result. See Edison Elec. Inst. v. EPA, 391 F.3d 1267, 1268-69 (D.C. Cir. 2004).

      . The Supreme Court reversed our decision only with respect to jurisdiction under 33 U.S.C. § 1369(b)(1)(F). See infra Part II.B. It declined to consider that portion of our decision addressing § 1369(b)(1)(E). Crown Simpson II, 445 U.S. at 196 n.7, 100 S.Ct. 1093 ("Because we find that the Court of Appeals had jurisdiction over this action under § [1369](b)(l)(F), we do not decide whether it might also have had jurisdiction under § [1369](b)(l)(E).”). Our decision with respect to 33 U.S.C. § 1369(b)(1)(E) is still binding precedent in our circuit absent intervening higher authority that is clearly irreconcilable with our existing precedent. Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc).

      . Even if EPA had assumed jurisdiction, the Objection Letter would still not be a final order. Permits issued by EPA must follow numerous procedural requirements outlined in 40 C.F.R. § 124.1-124.21, 124.51-124.66. The Plants would have had the right to submit written comments and seek a hearing before EPA, 40 C.F.R. § 124.11, the right to an administrative appeal to the EAB, id. § 124.19(a)(1), and the right to review under the APA in a federal court of appeals, 33 U.S.C. § 1369(b)(1)(F).

      . A statement by Senator Muskie, floor manager of the conference bill in the Senate during Senate debate on the 1977 amendments, is consistent with our reading of the statute:
      It is intended that this process be utilized to insure the rapid issuance of an effective, valid permit. The Administrator’s action in objecting to a permit would generally not be subject to judicial review since it will always be followed by further administrative action. The final issuance of a permit by EPA would be subject to judicial review pursuant to [33 U.S.C. § 1369(b)(1)(F) ].
      123 Cong. Rec. S39,187 (daily ed. Dec. 15, 1977) (statement of Sen. Muskie).


author: O’SCANNLAIN, Circuit Judge: CALLAHAN, Circuit Judge,

text:
    IRVINE UNIFIED SCHOOL DISTRICT, Plaintiff-Appellant, v. K.G., an adult student, Defendant-Appellee.
    No. 14-56457
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted August 1, 2016, Pasadena, California
    Filed April 13, 2017

      S. Daniel Harbottle (argued), Harbottle Law Group, Irvine, California, for Plaintiff-Appellant.
    Marcy J.K. Tiffany (argued), Tiffany Law Group, Torrence, California, for Defendant-Appellee.
    Sue Ann Salmon Evans and Karl H. Widell, Dannis Woliver Kelley, Long Beach, California, for Amici Curiae California School Boards Association Education Legal Alliance & National School Boards Association.
    Before: DIARMUID F. O’SCANNLAIN, JOHNNIE B. RAWLINSON, and CONSUELO M. CALLAHAN, Circuit Judges.
   Partial Concurrence and Partial Dissent by Judge CALLAHAN

OPINION

O’SCANNLAIN, Circuit Judge:

We are asked to decide whether the attorney for a student covered under the Individuals with Disabilities Education Act is entitled to fees for legal work performed after the student’s graduation from public school.

I

This case originates from a dispute over which California government entity would be responsible for funding the education of K.G., an emotionally disturbed minor from California. Following K.G.’s release from juvenile hall in 2007, the California Department of Education (“the State”), the Orange County Department of Education (“the County”), and the Irvine Unified School District (“the School District”) all agreed that K.G. was entitled to a “free appropriate public education” (“FAPE”) under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400(d)(1)(A), but each entity disclaimed responsibility for funding such FAPE. Eventually, the County agreed to fund K.G.’s FAPE, temporarily, until the financially responsible agency could be determined as a matter of law.

A

' In November 2009, an administrative law judge (“ALJ”) within California’s Office of Administrative Hearings ruled that the School District was the agency responsible for the FAPE under California law. The District filed a civil action in federal district court challenging the ALJ’s decision and naming the State, the County, and K.G. as co-defendants in February of 2010, two months before KG.’s graduation in April. Proceedings in the district court continued for seven months after KG.’s graduation and culminated in a decision holding the State responsible for K.G.’s FAPE in November of 2010. The State appealed to this court, and we determined that, as a matter of California law, the School District was responsible for providing KG.’s' FAPE and not the State; we remanded the case for proceedings consistent with our decision. See Irvine Unified Sch. Dist. v. Cal., 506 Fed.Appx. 548, 550 (9th Cir. 2013) (unpublished).

On remand and before the entry of judgment in district court, K.G. moved for statutory attorneys’ fees under IDEA. 20 U.S.C. § 1415(i)(3)(B)(i)(I). K.G., still with the original attorney, requested $232,625.00 in fees and $1,286.85 in costs. The district court denied the request for attorneys’ fees entirely, holding that K.G. was not a “prevailing party” under IDEA because KG.’s “victory” — the conclusive determination as to which agency would fund the FAPE — was merely “technical or de minimis.” During the course of litigation, K.G. had maintained that the State was responsible for the FAPE rather than the School District, an argument the district court accepted. The district court therefore reasoned that, “given the inherently equitable nature of deciding on attorney fee awards, it seems inappropriate for the District to pay fees accumulated while K.G. was arguing the District’s own position.” K.G. failed to file a timely appeal.

B

With the assistance of a new attorney, K.G. sought relief from the district court’s denial of fees under Federal Rule of Civil Procedure 60(b) in February 2014. K.G. argued that the original attorney had “experienced several traumas, including the death of her mother and father-in-law as well as her own life-threatening condition, which triggered an unusually severe bout of depression and anxiety.” According to K.G., the denial of substantial attorneys’ fees was the final blow, deepening the attorney’s depression and “feelings of hopelessness,” rendering her “too incapacitated to file a timely appeal of the Fee Order.” The district court found K.G.’s arguments persuasive and granted relief from judgment on May 20, 2014. After receiving such relief, K.G. again moved for attorneys’ fees. This time, K.G. sought a total of $282,038.25, representing $221,971.35 for work performed by the original attorney and $60,066.90 for work performed by the new attorney.

The district court went on to grant in part K.G.’s renewed motion for attorney’s fees, mandating that the School District pay $174,803.65 in fees and costs: the court awarded $126,657.25 for work performed by KG.’s original attorney and $48,146.40 for work performed by KG.’s new attorney. The School District timely appeals the district court’s order.

II

The School District contends that the district court erred in granting K.G. relief from its original judgment denying attorneys’ fees. We review a district court’s grant of relief under Federal Rule of Civil Procedure 60(b) for abuse of discretion. Cal. Dep’t of Soc. Servs. v. Leavitt, 523 F.3d 1025, 1031 (9th Cir. 2008).

A

The School District first argues that the district court did not apply the correct legal rule in evaluating whether to .grant relief. Rule 60(b)(1) provides that a district court “may relieve a party ... from a final judgment” in cases of “mistake, inadvertence, surprise, or excusable neglect.” To determine whether a party’s failure to meet a deadline constitutes “excusable neglect” under Rule 60(b)(1), a court “must apply a four-factor equitable test, examining: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith.” Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1261 (9th Cir. 2010).

The district court began its analysis by rejecting the District’s contention that it would be prejudiced by a grant of relief. The District argued that it had fixed its budget under the assumption that an order for attorneys’ fees was off the table and had relied on the district court’s denial of fees in negotiating settlements in other matters. The district court found both claims unpersuasive. As to the remaining relevant factors, the district court determined that K.G.’s delay in pursuing Rule 60(b) relief was understandable in light of the original attorney’s poor mental and physical health. The district court thus “identified and applied the correct legal rule,” United States. v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009), and applied it to the facts at hand, weighing each element before arriving at its decision to grant relief.

B

The School District counters that even if the district court applied the correct legal rule, the court’s factual findings were flawed — specifically, that the district court “gave undue weight to the Declaration of Dr. Lorna Swartz” and other evidence outlining the attorney’s psychological difficulties. It cites evidence in the record demonstrating that K.G.’s original attorney continued to practice law during the period when Swartz asserted that she was incapable of doing so. The School District notes that the attorney communicated with opposing counsel and, when she stated that she did not oppose a proposed judgment sent to her by the State, explained via email that she had “been out of the office in marathon [individual education program team] meetings.” Such facts, according to the School District, undermine K.G.’s claim that the original attorney was “incapacitated.”

The district court noted such criticisms but nevertheless found Dr. Swartz’s declaration persuasive:

While the Court acknowledges that this contemporaneous evidence displays some ability to continue her practice, the Court still concludes that Swartz’s evidence and [the attorney’s] own declaration confirm that her depression, and in particular her feelings of hopelessness in regard[] to the fee motion, were so severe that her neglect in failing to appeal was excusable.

Although one might reasonably disagree as to whether the attorney was truly incapable of performing her job, the district court’s decision to grant relief was not “illogical, implausible, or without support in inferences that may be drawn from the facts in the record.” Hinkson, 585 F.3d at 1263.

Ill

The School District next argues that the district court abused its discretion in granting K.G.’s motion for attorney’s fees. IDEA provides that “the court, in its discretion, may award reasonable attorneys’ fees as part of the costs ... to a prevailing party who is the parent of a child with a disability.” 20 U.S.C. § 1415(i)(3)(B)(i)(I). Thus, in reviewing the district court’s fee award, we must confirm that (1) K.G. was in fact a “prevailing party” and (2) the fees were reasonable. Aguirre v. La. Unified Sch. Dist., 461 F.3d 1114, 1117 (9th Cir. 2006).

A

Under the Supreme Court’s “ ‘generous formulation’ of the term, ‘plaintiffs may be considered “prevailing parties” for attorney’s fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.’ ” Farrar v. Hobby, 506 U.S. 103, 109, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)); see T.B. ex rel. Brenneise v. San Diego Unified Sch. Dist., 806 F.3d 451, 483 (9th Cir. 2015) (applying the Farrar definition of “prevailing party” to IDEA attorneys’ fees provision). “The touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute.” Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989).

In initiating the IDEA action in California’s Office of Administrative Hearings, K.G. requested that “the ALJ deem one of the [three agencies] responsible to provide him FAPE.” KG.’s prayer was answered in full when the ALJ designated the School District as the responsible agency. The district court similarly granted K.G.’s requested relief, originally by designating the State as the responsible agency, then by ordering the District to pay the bill following our reversal. See Irvine Unified Sch. Dist., 506 Fed.Appx. at 550. K.G. thus achieved the “benefit [he] sought in bringing the suit.” Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1498 (9th Cir. 1994). By receiving relief on the merits, K.G. “met that minimum condition for prevailing party status.” Farrar, 506 U.S. at 116, 113 S.Ct. 566 (O’Connor, J., concurring) (“One dollar is not exactly a bonanza, but it constitutes relief on the merits.”).

The School District nevertheless suggests that K.G. could not have benefitted from the litigation because K.G. graduated with a high school diploma months before the district court decided the case. It cites Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992), which in turn relies heavily on Rhodes v. Stewart, 488 U.S. 1, 109 S.Ct. 202, 102 L.Ed.2d 1 (1988) (per curiam). In Rhodes, two inmates sued prison officials after they were denied the right to subscribe to a magazine. Though the prisoners successfully won a declaratory judgment granting them the right to subscribe to the magazine, the Supreme Court held that they were not “prevailing parties” for purposes of assigning attorneys’ fees. Rhodes, 488 U.S. at 2, 109 S.Ct. 202. The Court reasoned that “a modification of prison policies ... could not in any way have benefited [sic] either plaintiff, one of whom was dead and the other released before the District Court entered its order.” Id. at 4, 109 S.Ct. 202. The prisoners could not be considered “prevailing parties” for purposes of assigning statutory attorneys’ fees because the judgment could not alter the behavior of the defendant towards them. Just like the prisoners in Rhodes, the District argues that K.G. received no real benefit from the district court’s order because he was no longer a student when judgement was entered.

In elucidating the contours of its “prevailing party” definition, however, the Supreme Court in Farrar explained that the inmates in Rhodes could not be said to have “prevailed” when their litigation culminated merely in a declaratory judgment: “Whatever ‘modification of prison policies’ the declaratory judgment might have effected ‘could not in any way have benefit-ted either plaintiff, one of whom was dead and the other released.’ ” Farrar, 506 U.S. at 110, 113 S.Ct. 566 (quoting Rhodes, 488 U.S. at 4, 109 S.Ct. 202). A party receives a meaningful benefit “if, and only if, [the judgment] affects the behavior of’ the opposing party towards it. Rhodes, 488 U.S. at 4, 109 S.Ct. 202. Because the plaintiffs were no longer in prison custody, they could not benefit from the particular relief they had won.

The posture of this case differs significantly from that of Rhodes. Unlike the prisoners in Rhodes, K.G. secured a judicially enforceable judgment — the ALJ’s decision — when it still mattered. See T.B. ex rel. Brenneise, 806 F.8d at 483 (“It is true that the educational relationship between T.B. and the district ended in 2008 when the Brenneises left San Diego. But they had still earned relief before they left in the form of an enforceable judgment.”). The administrative record demonstrates that for a brief period at least some threat of discharge from school hung over KG.’s head as a result of the funding dispute. A ruling from an ALJ definitively holding one agency responsible was the most effective means of eliminating such risk. K.G. secured this initial judgment on November 30, 2009, well before high school graduation ceremonies occurred in April of the following year. At that point, KG.’s original counsel had billed 60.6 hours of her time to this case.

Litigation could have ceased with the decision of the ALJ. Instead, it was the School District that kept the meter running when it filed a complaint in district court. One could not reasonably expect K.G., who was still enrolled in school when the District named the student as a defendant in federal court, to refrain from expending resources as the case progressed. And it would make little sense to render a party wholly ineligible for an award of fees incurred in defending its victory, especially during the period when K.G. was still enrolled.

B

A party whose “success on a legal claim can be characterized as purely technical or de minimis” is not entitled to fees. Parents of Student W., 31 F.3d at 1498. The School District argues that K.G., even if properly termed a “prevailing party,” obtained only limited success because it was effectively a forgone conclusion that some agency would fund K.G.’s education. In that sense, the District contends, K.G.’s legal victory amounted to nothing more than the designation as to which agency would be responsible for providing the relief he had already received. And, as the District notes, most of the litigation preceding this “victory” occurred after the threat of discharge had-been essentially eliminated because of the County’s willingness to fund K.G.’s FAPE temporarily.

Contrary to the District’s suggestion, however, K.G.’s victory in this case cannot be dismissed as “de minimis.” Cf. Farrar, 506 U.S. at 115, 113 S.Ct. 566 (“When a plaintiff recovers only nominal damages ... the only reasonable fee is usually no fee at all.”). K.G. received the requested relief in' full by forcing an agency to take responsibility for funding the FAPE. Such a victory was significant because it eliminated any residual risk that K.G. could be discharged from school. K.G. argued the case before the ALJ in order to guarantee that a California government agency would pay the cost of the FAPE: the ALJ’s decision notes that the sole issue of the administrative proceedings was “Which educational agency is responsible for providing [K.G.] with a [FAPE]?” Securing an enforceable judgment holding one such agency responsible for that FAPE, and later defending that victory in a civil action in federal court, certainly constitutes success in a “significant issue” of litigation. Parents of Student W, 31 F.3d at 1498.

K.G. qualified as a prevailing party under IDEA, and this victory was not trivial or merely technical. An award of some amount of fees incurred in achieving this end was therefore justified.

C

That, however, does not end our inquiry. Even when a party is entitled to some fees, the amount awarded must be “reasonable.” 20 U.S.C. § 1415(i)(3)(B)(i). The School District argues that the fee award was unreasonably high given that much of the work performed on K.G.’s behalf took place after graduation when K.G. was no longer vulnerable. Before graduating, K.G. had at least some skin in the game. Although the threat of discharge may have been remote given the County’s willingness to fund KG.’s FAPE temporarily, it remained reasonable for K.G. to continue to pursue a more definitive resolution. This changed in April 2010, of course, when the risk of discharge evaporated as a result of KG.’s graduation. With a diploma in hand, K.G. moved on to the next phase of life, having been provided with all that IDEA guaranteed him. Yet the litigation to which K.G. was a party continued.

While K.G.’s original attorney reported spending only 60.6 hours advocating on behalf of K.G. during state administrative proceedings, she purportedly dedicated 134.5 hours litigating before the district court in support of holding the State responsible for the FAPE rather than the District. Counsel’s zealous advocacy on behalf of her long-graduated client continued before this court — she reported spending 206.5 hours on an appeal that did not even commence until roughly ten months after KG.’s graduation.

Although the district court wisely reduced requested fees in its final award, we question the need for any significant advocacy on behalf of K.G. following the student’s high school graduation. If the vagaries of litigation demanded KG.’s continued nominal presence as a party, counsel certainly deserves to be compensated for advocacy undertaken on K.G.’s behalf (and in pursuit of fees derived from such work). But the need for such work may have been minimal given what appears to be an utter lack of risk borne by K.G. following graduation. Once a student receives all the statutory benefits guaranteed by IDEA and no longer faces even a nominal risk that those benefits might be taken away, only exceptional circumstances can justify an ever-lengthening billing invoice. A finding that K.G. might end up liable for bills already paid, or the possibility that his diploma might be retroactively revoked, for instance, would certainly explain the need for hundreds of hours of advocacy after his graduation in 2010. But IDEA is not “a relief Act for lawyers.” Farrar, 506 U.S. at 122, 113 S.Ct. 566 (O’Connor, J., concurring) (quoting Riverside v. Rivera, 477 U.S. 561, 588, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986) (Rehnquist, J., dissenting)). Here, the burden is on KG. to demonstrate why his continued participation in this litigation was necessary after he received everything to which he was entitled.

It may well be that the district court took into account the forgoing considerations in reducing the fees originally requested, but it is not clear from the court’s order awarding fees. On remand, the district court should review the work undertaken following KG.’s graduation to determine whether it truly furthered KG.’s interests. Further inquiry into why KG. did not seek to remove himself from the proceedings following his graduation would be appropriate. Legal work the district court identifies as having been unmoored from genuine advocacy in furtherance of KG.’s interests may not be rewarded with fees. The district court must explain why, specifically, any given percentage reductions are proper and how such fees are appropriately allocated to work performed before and after K.G.’s graduation. See Barnard v. Theobald, 721 F.3d 1069, 1077 (9th Cir. 2013) (“[W]hile the district judge explained why he thought the award was excessive, he failed to explain why he thought that a 40 percent reduction would be an appropriate remedy.”).

IV

We affirm the district court’s grant of relief from judgment, but we vacate the fee award. On remand, the district court shall determine whether the hours billed following KG.’s graduation were truly the result of advocacy reasonably calculated to advance KG.’s interests as opposed to those of KG.’s lawyers, and the district court shall adjust the fee award accordingly with appropriate explanation.

The parties shall bear their own costs incurred during this appeal.

AFFIRMED in part, VACATED in part, and REMANDED.

CALLAHAN, Circuit Judge,

concurring and dissenting in part:

I join all of Judge O’Scannlain’s opinion except for Section III C. I can find no justification in either the IDEA or case law for limiting an award of attorneys’ fees to a prevailing party based on when the student graduated. Rather, such a restriction fails to appreciate the IDEA and its carefully crafted provisions for attorneys’ fees.

The IDEA allows for attorneys’ fees, under certain conditions, for either the plaintiffs or defendants. The IDEA further contains provisions for insuring that the amount of attorneys’ fees is reasonable. Here, as the majority notes, it was the School District and the State that continued this litigation well after KG.’s graduation. Thus, the only conceivable way that K.G.’s graduation might figure into the award of attorneys’ fees is under § 1415(i)(F)(iii) as supporting an assertion that “the time spent and legal services furnished were excessive considering the nature of the action or proceeding.”

But “graduation from high school does not necessarily eliminate the possibility of receiving benefits under IDEA.” McCormick v. Waukegan Sch. Dist. No. 60, 374 F.3d 564, 568 n. 1 (7th Cir. 2004). Furthermore, K.G.’s graduation has nothing to do with the reasonableness of his attorneys’ efforts in this litigation. True, no one would take away his diploma. But the fact that the County was willing to fund K.G.’s FAPE temporarily did not necessarily preclude a court from ordering otherwise.

In order to obtain the attorneys’ fees she had earned, KG.’s attorney had to stay in the litigation until the entry of a final judgment because only then could she be sure that K.G. was a prevailing party and could calculate her fees. Indeed, in this very case, the district court ruled in October 2013 — over three years after K.G. had graduated — that K.G. was not a prevailing party, and thus was not entitled to an award of attorneys’ fees. It took another year for K.G. to change the district court’s mind and procure an order that he was a prevailing party and was entitled to attorneys’ fees. Thus, when K.G. graduated from high school is simply not relevant to determining the reasonableness of the attorneys’ fees incurred in representing K.G. for over five years.

More importantly, the majority’s approach overlooks or denies the importance of attorneys’ fees in IDEA cases. The purpose of KG.’s suit under the IDEA was— as the majority recognizes — to ensure that he received a FAPE. But this is hardly the type of benefit that can be shared with an attorney. Accordingly, the IDEA provides for awards of attorneys’ fees where a child or parent prevails. Without such a provision very few attorneys would take IDEA cases.

The cases cited by the majority for the proposition that the IDEA is “not a relief Act for lawyers” are inapposite. The comment was reiterated by Justice O’Connor in her concurring opinion in Farrar v. Hobby, 506 U.S. 103, 122, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992), but she was addressing attorneys’ fees under 42 U.S.C. § 1988, not fees under the IDEA. Justice O’Connor was quoting Justice Rehnquist’s dissent in City of Riverside v. Rivera, 477 U.S. 561, 588, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986), which also concerned attorneys’ fees under § 1988, not the IDEA.

There are critical differences between claims under § 1983 which may include damages, and claims under the IDEA which for the most part, and certainly in this case, concern primarily providing children with FAPEs. See Payne v. Peninsula Sch. Dist., 653 F.3d 863, 873 (9th Cir. 2011) (en banc) (noting that monetary damages are ordinarily not available under the IDEA). Just months ago, the Supreme Court in Fry v. Napoleon Community Schools, — U.S. —, 137 S.Ct. 743, 752-55, 197 L.Ed.2d 46 (2017), carefully set forth a number of differences between claims under the IDEA and claims under other overlapping statutes. Opinions such as Fry disavow any suggestion that the IDEA can be analogized to § 1983.

Finally, the majority’s questioning of “the need for any significant advocacy on behalf of K.G. following the student’s high school graduation,” Majority at 1094, is at odds with our standard of review of a district court’s award of attorneys’ fees under the IDEA. We review an award of attorneys’ fees for abuse of discretion. Shapiro ex rel. Shapiro v. Paradise Valley Unified Sch. Dist. No. 69, 374 F.3d 857, 861 (9th Cir. 2004). The underlying factual determinations are reviewed for clear error and the legal analysis relevant to the fee determination is reviewed de novo. Id; see also T.B. ex rel. Brenneise v. San Diego Unified Sch. Dist., 806 F.3d 451, 474 (9th Cir. 2015). Here, when K.G. graduated from high school has little, if any relevance, to the factual determination of the reasonableness of the attorneys’ fees incurred during this law suit that commenced in 2010. Furthermore, the majority cites no authority for the proposition that K.G.’s date of graduation is relevant, as a matter of law, to the determination of the reasonableness of the attorneys’ fees.

Requiring the district court to re-evaluate its award of attorneys’ fees based on the date of KG.’s graduation from high school is contrary to the spirit of the IDEA and its carefully crafted provisions for attorneys’ fees, improperly analogizes the IDEA to § 1983, and is at odds with our standard of review of attorneys’ fee awards. Accordingly, I dissent from Section III C of the majority’s opinion, and would affirm the district court on all issues.

      . K.G. filed a cross-appeal, No. 14-56524, challenging the district court’s decision to reduce appellate fees sought by the original attorney by more than 50%. Such appeal has since been dismissed by stipulation of the parties.

      . K.G.'s motion for us to take judicial notice of the district court’s order awarding fees in A.S., as well as the docket for this case, filed September 22, 2015, is GRANTED.

      . The Motion for Leave to File Brief of Amici Curiae California School Boards Association Education Legal Alliance & National School Boards Association in Support of Irvine Unified School District and Reversal of the District Court's Decision, filed March 25, 2015, is GRANTED.

      . 20 U.S.C. § 1415(i)(B) states:
      (B) Award of attorneys’ fees (i) In general
      In any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys' fees as part of the costs—
      (I)to a prevailing party who is the parent of a child with a disability;
      (II) to a prevailing party who is a State educational agency or local educational agency against the attorney of a parent who files a complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation, or against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation; or
      (III) to a prevailing State educational agency or local educational agency against the attorney of a parent, or against the parent, if the parent's complaint or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.

      . 20 U.S.C. § 1415(i)(F) and (G) provide:
      (F) Reduction in amount of attorneys’ fees Except as provided in subparagraph (G), whenever the court finds that—
      (I) the parent, or the parent's attorney, during the course of the action or proceeding, unreasonably protracted the final resolution of the controversy;
      (ii) the amount of the attorneys’ fees otherwise authorized to be awarded unreasonably exceeds the hourly rate prevailing in the community for similar services by attorneys of reasonably comparable skill, reputation, and experience;
      (iii) the time spent and legal services furnished were excessive considering the nature of the action or proceeding; or
      (iv) the attorney representing the parent did not provide to the local educational agency the appropriate information in the notice of the complaint described in subsection (b)(7)(A),
      the court shall reduce, accordingly, the amount of the attorneys’ fees awarded under this section.
      (G) Exception to reduction in amount of attorneys’ fees
      The provisions of subparagraph (F) shall not apply in any action or proceeding if the court finds that the State or local educational agency unreasonably protracted the final resolution of the action or proceeding or there was a violation of this section.

      . See S. Rep. No. 99-112, at 13 (1985) ("It is the committee’s intention that a parent or legal representative should be free to select and be represented by the attorney of his/her choice.”).

      . For example, the Supreme Court noted:
      If a lawsuit charges [the denial of a FAPE], the plaintiff cannot escape § 1415(1) merely by bringing her suit under a statute other than the IDEA — as when, for example, the plaintiffs in Smith claimed that a school’s failure to provide a FAPE also violated the Rehabilitation Act. Rather, that plaintiff must first submit her case to an IDEA hearing officer, experienced in addressing exactly the issues she raises. But if, in a suit brought under a different statute, the remedy sought is not for the denial of a FAPE, then exhaustion of the IDEA's procedures is not required.
      137 S.Ct. at 754 (footnote omitted). It further explained:
      The IDEA, of course, protects only "children” (well, really, adolescents too) and concerns only their schooling. § 1412(a)(1)(A). And as earlier noted, the statute’s goal is to provide each child with meaningful access to education by offering individualized instruction and related services appropriate to her "unique needs.” § 1401(29); see Rowley, 458 U.S. at 192, 198, 102 S.Ct. 3034; supra, at 753-754. By contrast, Title II of the ADA and § 504 of the Rehabilitation Act cover people with disabilities of all ages, and do so both inside and outside schools. And those statutes aim to root out disability-based discrimination, enabling each covered person (sometimes by means of reasonable accommodations) to participate equally to all others in public facilities and federally funded programs. See supra, at 749-750. In short, the IDEA guarantees individually tailored educational services, while Title II and § 504 promise non-discriminatory access to public institutions.

        Id. at 755-56.