Payne Ex Rel. D.P. v. Peninsula School District

individually PAYNE, Windy and as access person’s of a obstruction the willful D.P., guardian behalf of a mi- a treatment at counseling and to medical child, Plaintiff-Appellant, nor a matter of statewide facility is care health assembly therefore general concern. enact appropriate it is DISTRICT, declares a PENINSULA SCHOOL a from person prohibits legislation corporation; municipal Artondale person’s another obstructing knowingly municipal Elementary School, cor- a facility. care from a health entry to or exit Coy, in her individual poration; Jodi Coolican, capacity; official James (2) a class 3 misde- commits person A capacity; in his individual official knowingly ob- person if such meanor 1-10, 1-10; and Does Does John Jane hinders, or structs, detains, impedes, Defendants-Appellees. entry to or exit person’s another blocks facility. care from health No. 07-35115. (3) knowingly approach shall person No Appeals, States Court United feet of such eight person within another Ninth Circuit. consents, person other unless such

person, Dec. 2010. Argued and Submitted or leaflet passing purpose to, to, sign engag- or displaying handbill July Filed education, or counsel- ing protest, in oral public person such other

ing with a radius of area within

way or sidewalk entrance door any feet from hundred

one who facility. Any person a health care (3) commits a class

violates this subsection misdemeanor. section,

(4) of this purposes For entity that facility’ means care

‘health certified, licensed, author- or otherwise by law to administer permitted

ized or treatment this state.

medical

(5) con- shall be Nothing this section home rule statutory prohibit

strued to county city county

city or the control of access

adopting a law for no less restric- care facilities

health of this section. provisions than the

tive of,

(6) to, and not lieu In addition section, person forth in this

penalties set of this section provisions violates the

who liability, provid- civil subject to

shall be 13-21-106.7, C.R.S.

ed in section non-

IDEA’S exhaustion bars law IDEA federal state claims. Appellant Windy Payne, behalf of D.P., son, appeals and her the dis- herself grant summary judgment court’s to trict The district court dis- the defendants. Vertetis, Pfau Cochran Ver- Thomas B. subject her claim for lack of matter missed PLLC, Tacoma, WA, Kosnoff, tetis Payne initially did not jurisdiction because plaintiff-appellant. process hearing relief in a seek due Patterson, Bu- Patterson A. Michael comply failed with one of the therefore to P.S., Kalzer, Inc., Leitch & chanan Fobes requirement of the exhaustion-of-remedies Seattle, WA, defendants-appellees. with Education Act Individuals Disabilities 1415(Z). (“IDEA”), hold U.S.C. We L. and Mark Samberg-Champion Sasha (1) the exhaustion require- Gross, Department of Jus- States United (2) jurisdictional, and Payne’s ment is not Division, tice, Washington, Rights Civil are non-IDEA federal state-law claims Silverman, D.C.; Fagen and Lenore to subject the IDEA’S exhaustion re- Fulfrost, Oakland, CA, LLP, Friedman & We quirement. therefore reverse. amici curiae. I case, facts in The inferences them, vigorously to be drawn from Payne parties. contested Because appealing grant summary adverse judgment, we review this case de novo and KOZINSKI, Before: ALEX Chief light the facts in the most favorable state O’SCANNLAIN, F. Judge, DIARMUID case, to her Olsen v. Idaho State Bd. of SILVERMAN, P. BARRY G. SUSAN (9th Med., Cir.2004), McKEOWN, GRABER, MARGARET M. although only we outline facts material FISHER, B. RAYMOND JOHNNIE C. to our decision. RAWLINSON, BYBEE, S. JAY diagnosed D.P. is minor who was CALLAHAN, M. CARLOS CONSUELO apraxia motor and autism when he oral BEA, SMITH, JR., D.

T. and MILAN years During was five old. the 2003-04 Judges. Circuit seven, year, was was when D.P. he special in a placed contained education BYBEE; Opinion by Judge Elementary within Artondale classroom CALLAHAN; by Judge Concurrence School, part the Peninsula School Dis- and Partial Dissent Partial Concurrence Coy Defendant was his teacher trict. Jodi Judge BEA. year. Coy employed small room the size a closet as a time-out about

OPINION room or “safe room” for students who BYBEE, Judge: Circuit “overly became stimulated.” agreed to rehear this case en banc D.P.’s meeting We At a discuss Individual (“IEP”)1 Program the Education and Behav- clarify under what circumstances appropriate public education.” are re- “free participating States in the IDEA (a)(4). 1412(a)(1)(A), The IEP must U.S.C. quired students with disabilities requirements, articulated in meet a number of with an in furtherance of the statute’s IEP 1436(d). providing U.S.C. goal of each such student with Plan, 1415(f), Coy requested per- ior (g). Assessment The district court mission to use the time-out room while the case, Payne’s citing dismissed entire our Paynes IEP paperwork pending. decision Robb v. Bethel School District initially objected, claiming that their son Cir.2002), # 308 F.3d 1047 where perceive was unable to be- difference we held that the IDEA’S exhaustion re reinforcement. positive negative tween quirement applied any case in which “a They eventually gave limited consent to plaintiff alleged has injuries that could be room, specifying the time-out redressed to degree the IDEA’S agree Coy would allow the room use and remedies.” (and punish- periods for time-out Id. at 1048. ment), but that the door remain had to open and that D.P. was not to be left alone Payne timely appealed. In a divided According Payne, Coy inside the room. decision, panel of this court affirmed the punish nonetheless used room to D.P. grant summary district court’s judg- and him in the locked closet a number of Dist., Payne ment. v. Peninsula Sch. 598 supervision. times In in- without some (9th Cir.2010), reh’g F.3d 1123 en banc stances, responded D.P. by removing his (9th Cir.2010). granted, 621 F.3d 1001 clothing urinating defecating and or on majority began by noting The Although Paynes himself. repeatedly 1415(0 § applicability depended on requested Coy stop using her “aver- closely whether each claim more resem- therapy” techniques, Coy sive continued. Robb, in bled the one in held that Eventually, January 2004, in Coy refused exhaustion was required, the one in to allow the Paynes visit her classroom District, Clark County Witte v. School 197 or pick up son directly their from the (9th Cir.1999), 1271 in F.3d which we held classroom, insisting that Paynes might required. exhaustion was Payne, misinterpret they what observed. 598 panel F.3d 1126-27. The concluded Paynes and the school un- district ” that “this case akin is more to Robb mediation, derwent and agreed Payne because had failed to seek an im- D.P. would transfer to another school partial due process hearing after mediation Later, Paynes district. removed failed, seeking was redress for academic D.P. from public system injuries “for provides which IDEA some began schooling They home him. never relief,” and claiming physical was “not in- underwent a process hearing formal due juries for D.P. within the meaning of with the school district. Payne, Witte.” 598 F.3d 1127-28. Ac- 2005, In Payne Windy filed the current cordingly, panel concluded that “as an complaint son, on behalf herself her (even educational strategy a misguided 42 by relief under U.S.C. one), misapplied [Coy’s use of the safe alleging Fourth, Eighth, violations initially by was better room] addressed Amendments, and Fourteenth and the process” administrative and affirmed the complaint IDEA. The neg- also advanced Judge district court. Id. at 1128. Noonan ligence outrage Washing- claims under on ground dissented that “[t]he facts in ton law. The defendants for sum- moved this case closer to those [Witte ] mary judgment, claiming had Payne than in “full [Robb ]” and that failed to exhaust her remedies as 1415(0 processes of the IDEA [was 20 U.S.C. failing go required.” (Noonan, through the due Id. at 1128-29 process hearing not] informal J., and appeal process dissenting). established (1982). 72 L.Ed.2d 492 majority of nonrecused S.Ct. a vote of the On court, ju judges our we vacated federal courts grants The Constitution active agreed Cases, to rehear opinion Eq over Law and panel risdiction “all Sch. Payne v. Peninsula case en banc. uity, arising [and] under this Constitution Cir.2010) (order Dist., 621 F.3d the Laws of the United States.” U.S. banc). rehearing en granting Const, III, Here, 1. Payne art. cl. federal under 42 U.S.C. raised claims II § 1983 addition to a number of state-law nature by clarifying the begin We one, as this district claims. cases such requirement. the IDEA’S exhaustion jurisdiction fed statutory courts have over Adhering precedent, to this circuit’s claims, supple eral original panel treated jurisdiction mental over related state-law one, questioned but jurisdictional claims, Additionally, Payne, soundness of this conclusion. given statutory has Congress us authoriza Indeed, n. F.3d at 1124-25 & 2. hear from all final “appeals tion to deci it reached consistent conclusion of sions of district courts the United See, v. e.g., Blanchard precedent. our clear, § 1291. States.” 28 U.S.C. It is Dist., 918, 420 F.3d 920-21 Morton Sch. then, has Congress limited this unless Cir.2005) (“If (9th required further, jurisdiction the federal courts fails remedies but exhaust administrative mat jurisdiction have over IDEA-related so, not have federal courts do to do ters. claim.”); hear the jurisdiction to requirement The IDEA’s exhaustion (same). Witte, of light 1274 197 F.3d at provides: clarifying spate Supreme of Court cases con- Nothing chapter this shall be provisions limiting between the difference limit rights, or strued restrict can subject jurisdiction, which our matter un- procedures, and remedies available in the pled and must not be waived be Constitution, the Americans with der processing provi “claims complaint, Act of 1990 U.S.C. [42 Disabilities sions,” pled an affirma which must be as § 12101 et title V of Rehabili- seq.], see, forfeited, e.g., tive defense Shinseki, Act 791 et [29 tation of 1973 v. Henderson rel. Henderson ex 1202-07, 179 protecting Federal laws 1197, seq.], other —U.S. —, 131 S.Ct. disabilities, Elsevier, (2011); rights of Inc. v. children L.Ed.2d 159 Reed — 1237, Muchnick, U.S. —, except filing a civil 130 S.Ct. before of (2010); 1243-48, also L.Ed.2d 18 see under laws 176 action Castillo, F.3d 496 States v. Jacobo is also under this sub- United (en (9th Cir.2007) banc), over we now 947 chapter, under subsec- 1415(i) previous rule our treatment of (0 (g) tions shall exhausted re and hold that the same as would be extent processing provision quirement is a claims brought this had action may that IDEA defendants offer subchapter.

affirmative defense. added). (emphasis our Circuits share Eighth The Fourth and only decide courts

Federal cre- assumption language earlier constitu cases over which have both See, e.g., jurisdictional limitation. ates statutory jurisdiction. See Ins. tional and rel. Dist. Ireland, des MM ex DM v. Sch. Greenville Compagnie Ltd. v. Corp. (4th Cir.2002) 701-02, 523, Guinee, 694, 536 Cnty., 303 456 U.S. F.3d Bauxites de 868 ”

(“The at rulings.’ (quoting failure of the Parents to exhaust tional Id. 1243-44 Co., deprives 91, ... 1003); their administrative remedies at Steel 523 U.S. 118 S.Ct. subject jurisdiction Henderson, us of matter over those 131 see also S.Ct. at 1202-07 ”); by Urban v. claims.... Urban (holding that a veteran’s to file a failure Jeffer R-1, 720, Sch. Cnty. son Dist. F.3d appeal notice of the required within 120- (“We Cir.1996) conclude that the dis day deprive did period not the Court of correctly trict court dismissed the [unex jurisdiction Appeals Veterans over his jurisdiction.”). claims for lack hausted] claim); Elsevier, Reed S.Ct. contrast, By the Seventh and Eleventh (holding that copyright-registration re re Circuits treated quirement jurisdictional); was not Union defense, as an rath quirement affirmative R.R., Pac. (holding S.Ct. 598-99 See, jurisdictional requirement. er than a requirement settlement-conference Educ., 527, Mosely e.g., v. Bd. 434 F.3d jurisdictional); Arbaugh v. Y & H (7th Cir.2006) (“A failure to exhaust is 500, 514-15, 126 1235, 546 U.S. Corp., S.Ct. normally considered to be an affirmative (2006) (holding 163 L.Ed.2d 1097 that a defense, and we see no reason to treat it VII provision exempting employers Title (citation differently omitted)); N.B. here.” employees with fewer than 15 was not Bd., Cnty. v. Alachua Sch. D.G. Kontrick, jurisdictional); at 452- U.S. (11th Cir.1996) curiam) 1376, 1379 (per (holding 124 S.Ct. 906 bankrupt that a (“The exhaustion is not cy governing timely rule amendments was jurisdictional----”). jurisdictional); United States Cot Term, Supreme Last Court remind ton, 630-31, 535 U.S. 122 S.Ct. “the ‘jurisdiction’ ed us that word has (2002) 152 L.Ed.2d (holding 860 that sen used courts ... convey ‘many, too tencing in excess a statutory maximum ” many, ... meanings’ and “cautioned deprive did not the sentencing court of against profligate use of the term.” Un jurisdiction). Russell, see But Bowles v. ion R.R. Pac. Co. v. Bhd. Locomotive 205, 209-10, 2360, 551 U.S. 127 S.Ct. 168 Eng’rs & Trainmen Comm. Ad Gen. (2007) (holding 96 L.Ed.2d that the statu — U.S. —, justment, Cent. Region, 130 tory taking time for the of an appeal from 584, (2009) 596, S.Ct. 175 L.Ed.2d 428 jurisdictional). district court is decision Steel (quoting Co. v. Better Citizens recently Two cases decided the Court 83, 1003, 90, 523 U.S. 118 S.Ct. 140 Env't Elsevier, are instructive. In Reed (1998)). L.Ed.2d 210 “Accordingly, Court examined a Copy- of the ‘jurisdictional’ only term properly applies right providing Act that copyright holders ‘prescriptions delineating the classes of register must their works bringing before (subject-matter cases jurisdiction) and the suit for copyright infringement. Section persons (personal jurisdiction)’ implicat 41(a) of the Act Copyright provides that ing[the adjudicatory] authority.” court’s infringement “no civil action for Elsevier, Reed 130 at (quoting S.Ct. 1243 in copyright United States shall work 443, 455, v. Ryan, Kontrick U.S. 124 540 be until preregistration regis- instituted 906, (2004)). S.Ct. 157 867 L.Ed.2d tration of the copyright claim has been perhaps Court confessed that “[w]hile in made accordance with this title.” 17 theory, clear in the distinction between 411(a). 411(a) § Holding § that U.S.C. jurisdictional and claim-process conditions jurisdictional, not the Court pointed to ing can confusing rules in practice,” First, the three factors. Court out pointed that ‘jurisdic we should term “us[e] “ 411(a) § that not apposite,” ‘clearly tional’ when it that does state[ ]’ we “curtail ‘drive-by jurisdic- registration requirement ‘juris- should that its

869 ” (however Elsevier, complaint in her initial pleading 130 at Reed S.Ct. dictional.’ 515, briefly) requirement 546 U.S. at how that has been Arbaugh, (quoting 1245 1235). Second, 8(a)(1). the Court noted met. Fed.R.Civ.P. In other 126 S.Ct. See 411(a) from other separate words, § was though even Court did state jurisdic- matter grant subject statutes terms, its result in such it follows from § nor that neither 28 U.S.C. 1331 tion and require- the PLRA’s exhaustion Jones that specific 1338—which is non-jurisdictional. Reed ment is El- registration re- copyright sevier, at (citing S.Ct. 1246-47 & n. 6 130 —mentions Finally, at quirement. Id. 1245-46. example of where the Jones as Court “any other factor could find Court nonjurisdictional has “treated other 411(a)’s suggests] [that] types requirements”). of threshold requirement can be read to registration background With that return to in jurisdictional terms or refer in ‘speak requirement jurisdiction of the any way to the district 1415(1) prior and to our statement that ” (quoting Arbaugh, courts.’ Id. at 1246 “[i]f exhaust ad- 515, 1235); also at S.Ct. see U.S. remedies, to, ministrative but fails federal (reaffirm- Henderson, 1202-07 S.Ct. jurisdiction courts are without to hear the applying Reed Elsevier’s method- ing and Witte, 1274; claim.” plaintiffs 197 F.3d ology). Amphitheater see Dreher v. also Unified Bock, In 549 U.S. 127 S.Ct. Jones Dist., Cir.1994) Sch. (2007), L.Ed.2d 798 Court holding, but not (suggesting, exhaus- Litigation whether the Prison addressed IDEA). tion jurisdictional (“PLRA”) re- Act’s Reform First, nothing we observe quirement2 pleading was a jurisdiction of the mentions the federal prisoner include his com- that the must fact, courts. neither the word “courts” plaint an affirmative defense that the “jurisdieation” appears nor word must raise. The Court held defendant 1415(1). Section 1415 is written as a an affirmative that “failure to exhaust is rights on the restriction PLRA, that under the inmates defense suit, bring than a limitation rather as on required plead or dem- specially are not power the of the federal courts to hear the complaints.” exhaustion in their onstrate strongly sug- suit. That textual choice 216, 127 Although Id. S.Ct. gests may the restriction be enforced pleading heightened did not treat a Court by but that exhaustion defendants re- jurisdiction as of requirement going to quirement may be or waived forfeited. courts, the Court’s conclu- the federal See, Kontrick, e.g., U.S. PLRA defendants the bur- sion—that (“Characteristically, S.Ct. a court’s non-exhaustion, pleading den of subject-matter jurisdiction cannot be ex- specifically plead PLRA need panded litigation to account for the parties’ complaints in their initial exhaustion —is rule, conduct; claim-processing jurisdic- with of consonant our discussion hand, party’s if on a other even unalterable claim-processing require- versus tional application, forfeited jurisdictional, can nonetheless be requirement If a ments. asserting waits too party long has the of rule then a federal burden facility provision until such administra- PLRA reads: correctional 2. The exhaustion tive are remedies as exhaust- brought respect action shall No be ed. prison under section 1983 of conditions law, title, 1997e(a). any prison- or other Federal 42 U.S.C. any jail, prison, er confined in or other Castillo, find Finally, why we can no point.”); to raise the Jacobo reason (“Defects 1415(Z) in procedural F.3d at 952 rules should be read to make exhaus- may who parties be waived or forfeited prerequisite tion a to the exercise of feder- object properly, fail to whereas defects subject jurisdiction. al matter We can jurisdiction subject-matter go our many good why think reasons it of should power inherent the court and cannot be section, As we discuss in the next not. (footnote omitted)). waived forfeited.” §in requirement is not a check-the-box kind of exercise. As our Second, jurisdic- in the relevant nothing demonstrate, determining what cases has tional statutes 1415(i) and what has not been exhausted under provides the IDEA. Section “seeking may procedures prove if the relief that also an inex- IDEA], proce- available under act [the science. See Tucson Hoeft Unified 1415(f), (g) Dist., dures under [20 ] Sch. 1302-03 be shall exhausted same extent Cir.1992) (noting that the IDEA’S exhaus- would be had the action been one, rigid tion “is brought subchapter.” under this Section subject to certain exceptions,” determined 1415(f) can be describes actions that general purposes “the of exhaustion brought IDEA. party A who is congressional and the intent behind the “aggrieved by findings and decision” scheme”). words, In other made under the IDEA’S has requirement appears the exhaustion more right “the bring civil action ... rigid jurisdictional than a flexible limita- competent jurisdiction court or in State questions about whether administra- tion— States, a district court with- United futile, proceedings tive would be wheth- regard controversy.” out amount in er dismissal of suit would be consistent 1415(i)(2)(A). no re- There is exhaustion, “general with the purposes” subject striction this section on the mat- through are better a fact-specif- addressed jurisdiction ter of the federal courts. The ic assessment the affirmative defense only provision arguably affects federal through inquiry than about whether the subject jurisdiction matter is the power court has the to decide the case at specifying that is no there amount-in-con- all. If were to hold that exhaustion troversy requirement, appears and it jurisdictional, question of exhaus- expand, contract, juris- rather than federal non tion vel would haunt the pro- entire point, diction. More to the section ceeding, including any appeals. We would expressly provides suit obligation have the to raise the issue sua brought or federal As state courts. sponte, particularly frustrating exercise general subject state courts are courts of for parties Congress and courts when has jurisdiction, it is that matter hard to think parties authorized the to file suit in state Congress to permit would IDEA suits be place. Congress may, court in first brought in court state but at the same course, override our concerns and make subject restrict jurisdic- time matter requirement the IDEA’S juris- exhaustion tion federal courts. clearer Without dictional, but we would need a clearer Congress, instruction from reluc- we are statement its intent before we will im- tant to infer such a restriction where Con- pose requirement. gress explicit. has not made it sum, we hold Henderson, (“[Courts that 131 at S.Ct. 1203 jurisdic- §in is not look to ‘clear’ any should] see there is It Congress clearly jurisdic- indication that tional. “is not wanted the rule labeled ”). ‘jurisdictional.’ tional, jurisdiction- is not located in a

871 Payne’s court dismissed congres properly district provision, and admits granting Elsevier, exceptions.” claim, Reed sionally § it authorized IDEA-based should our 1247. We overrule 0 S.Ct. at non-IDEA claims on have dismissed her 13 Blanchard, contrary in statements grounds. Witte, 920-21; F.3d at at F.3d Dreher, join 1274; 22 F.3d at and and A Mose Eleventh Circuits. the Seventh and D.G., 533; N.B. 434 F.3d at ly, chil- protect The IDEA enacted 1379; Newburgh see Coleman v. also parents and their dren with disabilities Dist., F.3d Enlarged City Sch. states to “a requiring participating (2d Cir.2007) (noting that the Second appropriate public education free dis equivocal [its] “ha[s] Circuit (‘FAPE’) emphasizes edu- special ] [ require of the IDEA’S exhaustion cussion designed and services cation related ment, acknowledging statement [its] unique needs and students’] meet [disabled Education, F.3d v. Board [Polera education, em- them for further prepare (2d Cir.2002),] 478, 483, 488-90 independent living.” ployment, to exhaust failure 1400(d)(1)(A). § Participating subject court of mat deprives a remedies provide eligible must students with states referring to the jurisdiction but also ter education,” id. appropriate public a “free as the requirements IDEA’S exhaustion that, 1412(a)(1)(A), among things, § ” other (in ‘non-exhaustion defense.’ defendants’ IEP, proper to a see id. conforms marks and alterations quotation ternal 1412(a)(4), 1436(d), §§ ensures omitted)). were prior statements Our ex- students maximum “[t]o disabled fully if not consid even well-intentioned are with appropriate, tent educated misstep well illus We think our ered. disabled,” who id. children are Supreme Court’s observation trates 1412(a)(5)(A). with Children disabilities “[cjourts including this Court—have — parents provided their claim-process mischaracterized sometimes procedural protections out extensive set action cause of ing rules elements stat- particular, 1415. In limitations, jurisdictional particularly requires provide aggrieved was not central ute states when characterization case, close require thus did not to mediate parties opportunity with the Elsevier, analysis.” 1415(e), 130 S.Ct. Reed disputes, to secure their id. 1243-44. hearing due to resolve impartial process id. agencies, differences with state certain

Ill 1415(f), appeal and to decision merits. We We now turn agency, findings to the state educational provision that the IDEA’S exhaustion hold above, 1415(g). As we stated id. the relief in cases where applies parties the exhaustion pleadings of these to avail themselves the IDEA. Non-IDEA available under (and pro- local corresponding appeals seek claims that do not relief cess) to the when- resorting courts before subject are not to the the IDEA under they relief that also avail- “seek[ ] ever they allege requirement, even 1415(1). §Id. [the IDEA].” able under have been conceivably that could found in The exhaustion by IDEA. our We overrule redressed 1415(1). quoting provision § This worth they to the extent that state previous cases that, in full: although again, and conclude otherwise 872 chapter Dist., shall

Nothing this be con- But see v. Morton Blanchard Sch. (9th Cir.2007) 934, or rights, strued to restrict limit the 509 F.3d 938 (holding procedures, § un- and remedies available 1983 does not authorize actions Constitution, IDEA). predicated der the the Americans with violations Third, Disabilities Act provision [42 U.S.C.A. 1415R) § § seq.], 12101 et title V the Rehabili- as an exception framed to the general § tation Act of [29 U.S.C.A. 791 et rule of construction that “[n]othing seq.], or protecting other Federal laws be [the IDEA] shall construed to re disabilities, rights of children with strict” rights, procedures, and reme except filing 1983, § that before the of a ADA, civil dies available under action under such laws relief words, Rehabilitation Act. other subchap- IDEA, is also available under this remedies available under the ter, (f) rule, under subsections are in addition remedies par (g) shall be exhausted to the same ents and students have under other laws. Indeed, extent § as would be had the makes it clear that Con action brought gress under this subchap- parents understood that and stu ter. dents affected the IDEA likely would have issues with schools and school per (alterations 1415(i) § 20 U.S.C. in origi sonnel that could be per addressed —and nal). begin We a few observations. haps only could be through a First, provision is titled “Rule of con addressed — § suit under 1983 or other federal laws. struction.” provides Id. It thus us with a Finally, 1415(i) § observe re rule for harmonizing IDEA with over quires IDEA exhaustion of remedies lapping “rights, procedures, and remedies” when the civil brought action Second, found in other laws. the rule of 1983, ADA, Act, the Rehabilitation in very plain construction tells us terms or other federal laws “seek[s] that is that the IDEA must construed to coex also Thus, available” under the IDEA. remedies, ist with including other remedies “except” clause parents and Constitution, available under students exhaust the remedies available to (“ADA”), Americans with Disabilities Act them under before seek the Act, the Rehabilitation and “other Federal same under other laws. laws.” The principal remedy available for violations of the Constitution is 42 U.S.C. Our decision in Witte is consistent with which There, creates action in law or these principles. we recognized suit in equity who, against any person that the IDEA’S exhaustion does acting law, under color of state deprives not encompass every challenge concerning rights, of “any privileges, school’s of a treatment disabled student. immunities secured the Constitution The complained Wittes that school officials and laws.” Like the the ADA and forced their disabled child to eat oatmeal (to the Rehabilitation Act create their own allergic) he was occasionally private causes of action to vomit, enforce mixed him, those with his own choked acts, 12117; see 42 U.S.C. subjected him to “take-downs” and other 794a, although Witte, all three physical acts have been abuses. F.3d at 1273. See, enforced under 1983 as well. e.g., These punitive responses actions were Edgar, Marie O. v. the child’s bodily tics resulted Cir.1997); K.M. Hyde ex rel. D.G. v. Syndrome. Park Tourette’s Id. The Wittes Dist., Cent. Sch. F.Supp.2d eventually agreed 361-63 with the school district (S.D.N.Y.2005); DeBuono, BD v. transfer their son another school in F.Supp.2d 401, (S.D.N.Y.2000). 427-29 the same district then sued for com- “for ‘peer- under 42 from her classroom extended punitive pensatory Act, junior high high school and tutoring’ the Rehabilitation supervision at school students without ADA, law. Id. 1273-74. and state tort tutoring a certified teacher.” Id. This took the defendants granted court The district floor place hallway on the of a dim without ground on the that the summary judgment a chair desk. additional their adminis- Id. No abuse had to exhaust failed Wittes Witte, alleged. Taking guidance IDEA. at was under the Id. remedies trative prayer limited to Robbs their 1274. money damages, specified but that that the IDEA’S We held We reversed. opportunities were for “lost educational apply plain- did to not exhaustion humiliation, distress, and emotional embar- that school officials had tiffs who claimed rassment, injury.” and psychological and emotional abuse on physical inflicted Robb, (internal at quotation 308 F.3d child, their when com- their id. omitted). marks The district held court only retrospective damages plaint sought that the Robbs had not exhausted their already had resolved parties because the administrative remedies. Id. “the through issues rem- their educational IDEA,” that are available under edies in a We affirmed divided decision. that emphasized because id. at 1276. We majority expressed concern panel par- that ordinarily monetary damages were un- opt might permitted ents “be to out of the simply making IDEA demand for seeking “not relief that is also avail- were money pro- or services the IDEA not does Id.; IDEA.” see also id. at able under the Noting vide.” Id. 1050. there (“The remedies available appeared authority be a to division appear IDEA not to be well-suited would among the circuits—the Third Circuit took physical injuries addressing past ade- to position that exhaustion was unneces- injuries typically remed- quately; sary damages, a suit while monetary through an award of dam- ied Sixth, Tenth, First, Seventh, and Elev- Accordingly, plain “under ages.”). limiting held requested enth Circuits statute, of admin- words of the exhaustion enough relief to alone was required.” is not Id. at istrative remedies requirement avoid the exhaustion 1275. plaintiff IDEA3 —we held “that a cannot IDEA’S avoid the subsequently took a more muscular

We by limiting prayer for relief to 1415(i) merely Robb, holding “that view money damages.” Id. at 1049. thenWe has alleged when a adopted the rule that the IDEA’S exhaus- any degree by could redressed case in requirement applied any tion procedures IDEA’S administrative injuries that plaintiff “alleged which a remedies, of those remedies is degree Robb, could at 1048. be redressed required.” Robb diagnosed who was involved student added).4 (emphasis Id. at regularly removed remedies.” palsy

cerebral through Notably, longer suit Id. at clear that vindicated at all. 3. it is no there is so, Jersey doing split In A.W. v. it overruled W.B. v. circuit issue. 798-99. Schs., (3d Cir.2007) Matula, 1995), (3d City Cir. Pub. 486 F.3d 791 67 F.3d 484 (en banc), merely split. Third Circuit did cited in Robb demonstrate circuit position its backtrack from emphasize Judge if the Berzon dissented claim need not be exhausted plaintiffs seek only sought money damages; it went “the issue is whether the further Robb, F.3d rights is available” under the IDEA. that IDEA could not be and concluded 874 (“[W]e cases, of subsequent agree a number we have with those courts “injury-centered” ap

reaffirmed Robb’s money decided that mere claim for dam See, e.g., proach. J.L. v. Mercer Island ages is not sufficient to render exhaustion (9th Dist., 938, Cir.2010); Sch. F.3d 592 952 remedies unneces Dist., Virgenes Kutasi v. Las Sch. ...”); sary. by N.B. v. Alachua Cnty. Unified D.G. (9th 1162, Cir.2007); 494 F.3d 1163-64 (11th Bd., 1376, Sch. 84 F.3d 1379 Cir. Blanchard, 420 F.3d at 921. 1996) (holding plaintiffs cannot avoid Furthermore, requirement by exhaustion limiting and Seventh Tenth requested money their relief adopted “injury-centered” Circuits have otherwise, we adopted litigants tests similar the one in because “future could See, e.g., Robb. v. Waukegan McCormick avoid the exhaustion simply 60, 564, Sch. Dist. No. 374 F.3d 568-69 by asking for relief that administrative (7th Cir.2004) Robb, (citing 308 F.3d at However, grant”). authorities could not 1054, holding can only exhaustion these courts have not articulated a com “if the plaintiff alleged avoided has prehensive determining standard for when injuries that cannot be redressed to exactly the exhaustion requirement ap degree by the pro IDEA’S administrative plies. (internal quotation cedures and remedies” omitted)); marks Cudjoe Indep. Sch. B (10th 12, 1058, #

Dist. F.3d Cir. clarify We now proper restate the 2002) (“[T]he dispositive question generally resolving method for IDEA exhaustion alleged injuries whether the has cases, and we overrule Robb to the extent any degree could be redressed to it is inconsistent our decision. The IDEA’S administrative IDEA’S requirement applies so, remedies. If those reme claims to the extent that the relief (alteration dies is required.” original) actually could have (internal omitted)). quotation marks provided by the IDEA. In other Other generally circuits have agreed words, reject the “injury-centered” ap- that plaintiffs cannot evade the exhaustion proach developed by Robb and hold that a requirement simply by limiting pray- their approach aptly “relief-centered” more re- er for request relief for damages. flects meaning of the IDEA’S exhaus- See, e.g., Frazier v. Fairhaven Sch. tion requirement. (1st Comm., Cir.2002) F.3d (“[W]e bring hold who claim IDEA-based under 42 U.S.C. Robb, Relying on panel majority they fo- only money seek damages, analysis cused question its

must process exhaust the administrative whether available under the IDEA as a suffered D.P. condition precedent more entering closely resembled force-feeding state federal court.”); Covington Cnty. alleged v. Knox Sch. take-downs in Witte or the Sys., Cir.2000) peer tutoring isolated alleged Robb. J., (Berzon, dissenting). She ex- available under this statute. As court and "[¡Insofar pressed the view that plain- clear, as the compen- others have made seeking tiffs here are that is not edu- past pain suffering sate for do not fit into (here, cationally-oriented compensation for the model of relief available under harms) past present- emotional and is not administrative remedies.” Id. future-focused, are not

875 is words, remedy a available under 1127. In other whether such Payne, F.3d at 598 ADA, the IDEA is employed injury- an the or whether men- panel majority the Again, that in prayer and concluded be- in the relief. approach tioned centered that ... is Payne alleging misconduct that the “relief also available” cause case IDEA, could have been redressed under the see 20 theory U.S.C. 1412(a)(10), under resorting § to administrative remedies must student ex- IDEA, any not seek redress she could seeking haust his IDEA remedies before until Second, in the courts she for that misconduct parallel relief under ADA. administrative reme- had exhausted those requires the IDEA exhaustion cases approach in Robb way, a our injunc- dies. In plaintiff prospective where a seeks 1415(Z) § a quasi-preemption as treated IEP tive relief to alter an or the education- exhaus- requiring provision, placement al of a disabled student. As gen- case falls within the any 1415(l) tion that previous point, § with the bars educating disabled students. eral “field” of plaintiffs seeking relief that avail- if even able to them under this explained, ap- have For reasons we urged the court to craft the with the IDEA’S proach is inconsistent from a remedy different federal statute. speci- The statute provision. exhaustion Third, required in exhaustion is cases required “before the fies that exhaustion is plaintiff seeking where a enforce civil filing of a action rights arise a result a denial of a under [the IDEA].” that is also available education, appropriate public free whether 1415(Z) added). (emphasis pled as an IDEA claim other claim plaintiff whether a suggests This that relies the denial of a FAPE to relief available under sought could have provide the basis for cause of action is irrelevant —what matters is IDEA (for instance, a claim under plaintiff sought relief actually whether the § 504 the Rehabilitation Act of under the IDEA. other 794, premised on a denial a U.S.C. words, determining whether when FAPE). under either Such claims arise exhaust, requires IDEA a (if alleged the IDEA IDEA violation is by looking at com- courts should start (if directly) or its standards substantive plaint’s prayer for relief and determine § 504 claim is on a violation of premised is also available whether IDEA), directly so the relief follows not, If it is then it is under the IDEA. from the IDEA and is therefore “available 1415(Z) require likely does not ex- subchapter.” under in that haustion case. 1415(Z). We think these situations approach with much of the agree We encompass gen- cases in which “[b]oth Depart- by amicus United States

proposed problem esis and manifestations ment Justice. Under relief-centered Blanchard, are educational.” F.3d requires exhaustion approach, Educ., F. v. Charlie Bd. (quoting First, three situations. (7th Cir.1996)) (alteration F.3d when seeks clearly required original). equivalent. remedy or its functional IDEA approach with our un- This is consistent files example, For if a disabled student derstanding that the exhaustion challenges suit under the ADA for the exercise of designed “allow[] his failure accommodate school district’s expertise by discretion educational for the special needs and seeks education, local full ex- agencies, afford[] state and private costs of issues, educational ploration of technical regardless of ..., complete of a factu- children development further[ ] suit could have been record, judicial efficiency al promote[ EHA, ] parents then filed ... by giving agencies opportuni- the first EHA required to exhaust ty correct in their edu- shortcomings to 99-112, S.Rep. remedies.” at No. 15 programs for cational disabled children.” (em (1985), 1798, 1986 U.S.C.C.A.N. 1805 at The Hoeft, 967 F.2d 1303. added). Indeed, phasis of number eases prevent requirement is intended to courts shortly decided after was enact acting from as ersatz school administrators implement Congress’s ed understood it to making expert what should be deter- provision will that ... “reaffirm way minations about the best to educate viability of ... other separate statutes as time, At the same it is disabled students. ensuring vehicles for the rights of handi temporarily not intended shield v. capped Digre children.” Roseville Schs. liability officials from all for conduct 623, 245, Indep. Dist. No. 841 F.2d 250 statutory rights violates constitutional and (8th Cir.1988); Tirozzi, see also Mrs. W. v. independent exist of IDEA and (2d Cir.1987) (character 748, 754 832 F.2d entitles different 1415(Í) izing § “nonexclusivity provi as a what is under the IDEA. Our sion”). purpose decision reflects limited of requirement. IDEA’S exhaustion 3 The approach adopted yields we have

2 implications. First, number of because legislative history of 20 U.S.C. approach emphasizes our the relief 1415(i) understanding our supports of injuries rather than types alleged, meaning. its The exhaustion we find no merit to we the distinction was included part as of the Handicapped previously physical drawn between 1986, Children’s Act Protection Pub.L. non-physical injuries. Robb, See 308 F.3d 99-372, 3,§ No. the Supreme followed Although at 1052. physical injuries might Robinson, Court’s decision in Smith 992, plaintiffs bolster a likelihood of success in U.S. 104 S.Ct. 82 L.Ed.2d 746 (1984). case, 99-112, (1985), See No. is no S.Rep. at there reason treat constitu- Smith, 1986 U.S.C.C.A.N. 1799. In physi- tional violations that do not result in held Court that the Education of the injuries cal differently under the exhaus- (“EHA”) Handicapped Act IDEA’S Blanchard, provision. tion See —the 420 F.3d at predecessor statute —served “the exclu- (holding that the IDEA not re- does through plaintiff may sive avenue which a quire exhaustion when the “emo- equal protection assert an pub- claim to a tional ... distress could not be licly special financed education.” 468 U.S. through remedied the educational reme- at so, doing S.Ct. IDEA”). dies available under the held that Congress Court intended to elim- We hold that in also cases where a plaintiffs ability inate a seek seeking money damages, courts injury 1983. Id. depth should not engage specula 1012-13, 104 3457. The language S.Ct. case, tion we conducted Robb. In that 1415(i) now codified was enacted in sought money we inferred that the Robbs response to that decision. No. See Pub.L. “[presumably part pay least in (1986). 99-372, § 3 Congress specifically (such as counseling tutoring) services sought to it] clear that when par- “make[ will their daughter’s recovery ents choose to file suit law that assist under another protects rights handicapped promote self-esteem and her progress in FAPE, vation of does Damages could be measured school. Yet the school services. to exhaust require the cost of these her administrative rem- able these district edies before them court. Robb, under the IDEA.” in kind services Finally, do not believe that the we think longer We no F.3d at 1050. triggered sim Although is appropriate. speculation ply challenged conduct consti because that “a agree proposition “at ... an at an edu attempt tutes least avoid the exhaus- plaintiff cannot Payne, program.” cational merely limiting a requirement tion Robb, at 1127 at 1052 n. (quoting money damages,” to id. at for relief prayer 3). Department As amicus of Justice think, 1049, in the especially do not we out, a points school official’s ac whether summary context of motions to dismiss “attempt tion is a reasonable at an edu motions, proper that it is for judgment comprise very program” may cational money damages that will courts to assume dispute of that of a about the directed toward forms heart constitutionali IDEA. Thus, available under the ty example, would be that action. if a of alleges a Fourth vio student Amendment time, cannot plaintiffs At the same lation, the school answer that through artful pleading. avoid exhaustion reasonably search or seizure was related damages a plaintiffs If the measure of is programs; to the school’s educational but counseling, tutoring, private the cost a deprived the student 1983 schooling —relief remedy merely the conduct took because IDEA —then the IDEA exhaus place educating in the context of dis case, In such a are tion. relief, Particularly in contexts abled. where are same even willing accept expected cash in lieu of services in courts are to draw inferences in require exhaustion Accordingly, kind. do not think it is plaintiffs, favor apply also cases where a ment would essentially to make what are appropriate a arguing that state’s failure to plaintiff in the context of merits determinations provide specialized programs disabled evaluating the need for exhaustion. Noth Equal students violates the Protection ing protects in the IDEA a school from Amendment and Clause of Fourteenth liability it simply non-IDEA because was private a seeks fund education attempt making good-faith a to educate its IDEA). (without mentioning the It would If the conduct disabled students. school’s plaintiff to cases in which the apply also a violation of laws other than constituted compensate for requests damages to costs IDEA, plaintiff a is entitled hold the unilaterally altering dis associated responsible under those other laws. placement, abled student’s educational request since such would also be “seek 4 ing that is also available under” the The National School Boards Association 1415(2). 20 In other IDEA. U.S.C. (“NSBA”), amicus, suggests that our words, request extent that a the Supreme conclusion is at odds with money damages functions as substitute Churner, v. 532 Court’s decision Booth IDEA, plaintiff can for relief under 731, 1819, 121 L.Ed.2d U.S. S.Ct. 958 escape requirement the exhaustion (2001), a case in which the Court construed limiting for relief simply by prayer her PLRA, requirement in the the exhaustion However, damages. to the extent 1997e(a). Indeed, Booth’s U.S.C. laid plausible that a has out depri- language “strongly” factored Robb’s claim for unrelated conclusion, since we noted in that case that from plaintiffs pursuing who are non- requirement “[t]he PLRA’s IDEA claims compel the same forms language framed in similar to the IDEA’S.” as the IDEA. of relief Robb, (comparing F.3d at 1050-51 “ad- appeals The NSBA also to the inevitabil- ... ministrative remedies available” under ity parent-school disputes argues 1997e(a), PLRA, to “relief “[r]elaxing IDEA’S administrative IDEA, also available” does violence” to 1415(i)). Booth, the Court Congress’s goal of expediting resolu- PLRA “mandate[s] concluded ex- disputes. tion of these We mindful of regardless haustion relief of- “the rule general parties exhaust pre- through procedures.” fered scribed administrative remedies before 741, 532 U.S. at 121 S.Ct. 1819. heldWe seeking relief from the federal courts.” that, applied in Robb McCarthy Madigan, 503 U.S. 144- language meant that “a must ex- (1992). 112 S.Ct. L.Ed.2d a mandatory haust process administrative general The salutary allowing rule is a one precise even if form the of relief is agencies to exercise expertise, their to cor- not available the venue.” administrative errors, rect their own and to wording suggests 308 F.3d at 1051. This may that be both swifter and more satis- a plaintiff that even if non- has available than factory through relief available more IDEA poten- forms of relief in addition to litigation. formal IDEA, parties Even where the tial relief under the ultimately must file suit in federal exhaust administrative court after remedies be- pursuing any fore exhausting remedies, them. While this their administrative Booth, conclusion was correct in there are process benefit from a that has important differences between the PLRA developed the factual record and narrowed IDEA, and the incorrectly ap- and Robb the issues parties. contested plied the same conclusion to the IDEA. The reasons for administrative exhaus- The PLRA’s exhaustion requirement spec- tion change do not the fact that ifies that action shall brought “[n]o be IDEA’S exhaustion is as not until such administrative remedies as are Moreover, broad as the NSBA urges. exhausted.” reading place NSBA’s actually would dis- 1997e(a) added). (emphasis The lan- abled position students in disadvantaged guage unequivocal and makes no refer- relative to special students without needs. to parallel ence forms of relief. Booth Payne notes, As accurately a student who sensibly interpreted the prohibition on disability had no therefore had no —and bringing an action to mean that the PLRA an need for IEP —would be able to chal- restricted prisoner litigation unexhausted constitutionality lenge of his teacher’s altogether. By contrast, the IDEA’S ex- confinement without first re- haustion provision applies only to “the fil- sorting procedures. The ing a civil ... seeking action that simply student could advance IDEA]”; is also available under [the other- claim alleging violations his constitution- wise, the IDEA does “restrict limit al rights. No exhaustion would re- be rights, procedures, and remedies” quired. If a disabled student would be ADA, available under the Re- Act, similarly able to make out a habilitation or other meritorious federal laws. 20 1415(i). constitutional The claim—one that need not difference between these two disability statutes critical—unlike reference his at all—it odd to PLRA, IDEA requires only suggest exhaustion IDEA impose would addi- IDEA, sue, on its own without reference simply because qualifications tional why it to see the IDEA should disability. is difficult had he hardly It is “nul- its an compel dismissal. C mandated congressionally lification of the carefully examined the criti- We have Op. requirement,” Dissenting and, with re- by the dissent cism raised complaint say pres- at that a criticism alters not think such spect, do wholly apart sound claims ents views. our the IDEA’S comport need such a case requirements. though Even lia- “subject districts civil might approach our argues The dissent first bility money damages, without 1415(Z) by providing “largely nullifies opportunity giving school districts easy around the with an end-run plaintiffs remedy requirement,” exhaus- because IDEA,” Op. this will Dissenting long “[s]o would not be tion law governing some other because monetary complaint which seeks liability. The dissent’s authorizes specific provision not mention a does suggestion “games- this constitutes remedy specifically or demand fact manship” puzzling. Dissenting Op. it.” provided IDEA claims to plaintiff could have added analysis “nullifies” Nothing our (and complaint thus otherwise sound 1415(Z). If does not seek a subjected re- themselves exhaustion right, IDEA and does based on an to, not quirement), but chose not should by remedy provided seek a viability detract of that com- pre- by is not then she bound plaint. This litigation. does not requisites course, plaintiff try a to evade might Of 1415(Z)” simply limits the “nullif[y] —it by on relying the exhaustion scope. its intended allegations. This is the situation “artful” Indeed, particularly seems dissent about. appears worry the dissent most approach with the fact that our concerned approach But our still plaintiffs’ pleadings form of “elevates the example, these cases. For dissent substance,” Op. at Dissenting over their of child provides example “a disabled 890,5 “gamesmanship,” Dis- and facilitates a monetary damages seeks because who worry at But is senting Op. 886-87. of implementation school district’s some case where a defen- misplaced. each in a program educational resulted claimed a complete as dant raises adequately instruct him in read- failure defense, possibilities two arise. partial Dissenting Op. at 890. The dissent ing.” First, might a that a com- court decide interprets opinion allowing our as such a facially a meritorious claim plaint states so proceed claim to without exhaustion rely rights created that does not either complaint not mention a long as the “does the IDEA or seek remedies available by Dissenting specific provision of the IDEA.” complaint If a can stand under the IDEA. actually "seeking re- improperly whether the is contends that dissent appeal Whether pleadings lief" available under IDEA. because this focus on supporting grant summary judg- Payne can evidence her a of reaches us from ment, sepa- to such relief is a considered claim entitlement in which the district court parties. question that the district court did presented by the Dis- rate the evidence —one However, (because to) in its it had no need Op. at n. 5. we focus on not address senting granting summary judgment. initially pleadings they determine order because claim Op. 890. But where the arises rect both the past ongoing aftereffects only FAPE, as a result of denial of a Coy’s suffered D.P. as a result of use of under whether or the Rehabili Dissenting Op. isolation room. at 888. Act, clearly required tation exhaustion is The dissent therefore concludes that be- pled. no how claim To matter use Payne cause damages “for the the dissent’s example, claim for failure to past and ongoing psychologi- academic and adequately instruct a in reading student cal aftereffects D.P.’s claimed mistreat- can arise under the IDEA because district,” ment of the school there is other no federal cause action for required. Dissenting Op. at (emphasis Doe, Plyler such claim. U.S. omitted). 202, 221, S.Ct. L.Ed.2d 786 1415(i) approach This misreads and is (1982) (finding no enforceable federal con First, at odds with Witte. it not clear right public education); stitutional ato cf. actually the IDEA authorizes relief Dist., Blanchard v. Morton Sch. 509 F.3d designed to correct the effects miscon- (9th Cir.2007) (holding duct the school. The suggests dissent § 1983 does authorize suits for IDEA that “the provided ‘related services’ violations). The claim asserted here —for services, psychologi- IDEA —academic knowing and intentional infliction of exces cal cure, counseling therapy may al- cognizable sive force—is under the Fourth — leviate, [injuries or mitigate caused Amendment and exists separate apart wrongful district’s act FAPE, or omission].” from the denial of a irrespective of Dissenting alleged Op. the fact punish excessive 888. But the IDEA place ment took in a special education defines “related services” include See, e.g., classroom. Preschooler II v. “transportation, and developmental, Trs., Cnty. Clark Sch. Bd. corrective, supportive and other services Cir.2007) 1181-82 (holding that assist child clearly established law under the Fourth disability with a to special benefit from prohibits Amendment physical “excessive education, early and includes the identifi- schoolchildren”); abuse of Doe ex rel. Doe cation and disabling assessment of condi- Educ., Dept. v. Haw. 334 F.3d tions children.” (9th Cir.2003). Although we would not 1401(26)(A) added). (emphasis In other doubt, example, for that an unconstitution words, it is far from clear that the IDEA al beating might interfere a student provision authorizes the of services de- FAPE, enjoying the of a fruits the result signed injuries to correct caused ing not, excessive force claim is for that past school’s violation of other laws. alone, reason a claim brought that must be Furthermore, even if such services are under the IDEA. available under the the dissent’s proposal is too plainly broad. For exam- ple, the student plausibly Witte could The dissent nonetheless contends have received psychological some counsel- 1415(i) requires exhaustion whenever ing might therapy have corrected the IDEA’S administrative mitigated resulting some of the harms “may to lead of curative or ” from the he abuse suffered at school. See palliative ‘related Dissenting services.’ Witte, 197 Here, F.3d 1272-73. Under the Op. for example, the dissent view, suggests dissent’s the fact that that the school district Witte could have provided physical injuries “intensive individualized tutor- remedies for without ing” “[psychological counseling” to cor- easily relief under IDEA could decision, the district announced in “gamesmanship” that characterized be to permit Payne court on remand should exhaus- in favor of the set aside should be complaint in to flesh out amend her order approach The requirement. dissent’s tion to the court specific her claims and enable necessarily require speculation, would IDEA ex- require which claims determine one in identical to the patterns in fact even not. and which do haustion if psy- hold that would The dissent Witte. a stu- counseling correct

chological could pro should then The district court exhaustion is injuries, then dent’s opportunity the defendants with vide a non- were caused if the even Payne’s or all of of some seek dismissal law au- which federal violation for they require ground on claims from the IDEA. apart thorizes remedies exhaustion. district would be approach think such an appli We wait to court need not consider identify can a If a un requirement cability mistaken. of the exhaustion laws violation federal complete district’s til the record is and motion point to an summary the IDEA and can has We judgment than been filed. other un- non-jurisdic for that violation that a remedy previously held authorized IDEA, then there is no can cited requirement tional exhaustion available under abatement, defensively exhaustion under “as matter require reason 12(b) 1415(l). approach subject would to an unenumerated Rule The dissent’s 1415(Z) summary pro- motion rather than a motion refashion effectively Terhune, F.3d Wyatt v. judgment.” facilitate the coexistence designed to vision eases). (9th Cir.2003) (collecting of relief into IDEA with other forms because, matter, as general This is “sum all cases involv- designed preempt one merits, mary judgment whereas students the mistreatment disabled ing ground on the an action dismissal of do not think that the a school. We administrative remedies failure exhaust was in- judg Id. Unlike a is not on the merits.” disabled students penalize tended merits, failure ment on the disability. This not what their re exhaust administrative remedies should Congress it is think not what says, and we prejudice. in a without sult dismissal intended. LP, Oakland, v. Hotels.com Cal. City of Cir.2009). IV General mo ly, entertaining in an unenumerated A dismiss, may be “the court look tion to Payne’s apply approach our to nowWe disputed yond the and decide pleadings the dis- supply instructions for case and F.3d at 1120. Wyatt, issues of fact.” Payne alleged several trict court. depart to from this We see little reason claims, Washington tort as state as well of the IDEA. The rationale in the context outrage. The negligence and actions permitted to chal defendants should be address specifically did not court district under the exhaustion Payne’s claims lenge explain why exhaustion was claim each in an unenumerated motion to Robb, it Relying dismiss, each. required for in context of which the court plaintiffs’ inju- to disputed that “because issues fact simply may stated decide necessary to degree deciding to some are remedie[d] ries could be extent require claims administrative whether her the IDEA’S and, so, adequately she has remedies, must exhaust those whether reme administrative filing suit.” exhausted available remedies before However, light of the new standards dies. in 1415(Z) stage proceeding. on the “re- a But as we

Because focuses have 1415(Z) action,6 noted, § in it is itself an sought pro- lief’ conceivable anomalous court, vision, in entertaining district it categorically pre- since does not initially dismiss, might motion to clude claims instead a court conclude that exhaustion is being sought by to examine the relief those claims, might recognize certain subse- but claims and to it to avail- compare the relief that, fact, being in quently the remedies Ultimately, able under IDEA. plaintiff pro- could designed requests to channel case, by the IDEA. In such a we vided (and incidents) for a FAPE through its permitted think the defendants should be IDEA-prescribed proce- procedures. The re- provide showing to evidence outlined, dure we have while somewhat was, sought by lief being unusual, faithfully Congress’s executes de- fact, IDEA. Because sign. the line between available under B other remedial sources and relief avail- clear, IDEA is able under the less than Payne given opportunity After to should, assessing the finder of fact complaint, amend her the district court remedies, permitted to the evi- assess Payne’s requests should examine each of and withhold dence those that are unex- whether determine ex- IDEA. hausted available under requirement applies haustion each. It any gov- then dismiss claims that recognize approach We ex- requirement, haustion is somewhat erned the exhaustion unconventional —it but permit party anomalous to it should not raise fail- dismiss remaining ure exhaust as in both a guidance a defense claims.7 To additional fact-finding concerning motion dismiss and new approach we have 1415(/)’s emphasis 6. Section on the relief construe it an unenumerated motion to dismiss) sought by presented it makes different from because “all of the facts provisions previously we have Paynes addressed. the district court indicated the were Wyatt, example, interpreted For we at least some relief that was 'also PLRA, which, Op. Dissenting available’ under the IDEA.” discussed, 1415(1) as we have Although agree differs that "at some” least filing pre-exhaus in that it restricts the of all being sought by Payne of the relief does re- regardless sought— exhaustion, tion of the relief quire we do not think this re- actions— 1997e(a). by prisoners. See 42 U.S.C. quires Payne’s the court to dismiss entire Likewise, Wyatt's predicate typically cases in adopt case. We see no reason to such a private requirements volved arbitration "total exhaustion rule” similar to one we contracts, which, again, filing restricted apply in corpus. the context of habeas actions, regardless sought. entire of the relief 509, 522, Lundy, Rose v. 455 U.S. 102 S.Ct. See, e.g., Inlandboatmens Union Pac. v. (1982). Supreme 71 L.Ed.2d 379 Grp., Dutra Cir. Court has observed that "total exhaustion” is 2002) (interpreting agreement an that re Jones, exception the the rather than rule. See quired "[a\ny dispute arbitration over con (holding 549 U.S. at 127 S.Ct. 910 that conditions, cerning wages, working the PLRA’s exhaustion did not any other matters [con referred to noting create total exhaustion rule and that added)); (emphasis Long tract]” matter, v. Int’l general Ritza complaint "[a]s contains Union, shoremen’s & Warehousemen’s claims, good proceeds both and bad the court F.2d 365, 1988). Cir. good [0]nly and leaves bad. dismissed; complaint bad claims are as a 7. The that Congress depart dissent contends we should none- whole is not. If meant to norm, grant theless affirm the district of expect court’s from this we would some indi- that, summary judgment (alteration (perhaps deciding after and we cation find none.” injuries” not discuss some of for “emotional distress did briefly we adopted, exhaustion because “could not require in her current com- Payne’s federal claims reiterate, through be remedied the educational rem- sought. the relief We plaint and IDEA”). If, course, under court should edies available district however, complaint the “emotional distress” stems Payne to her be- permit amend Payne’s aspects concern that D.P. was not determining which are barred from fore education, receiving adequate an then ex- by requirement. the exhaustion required. haustion is Payne’s claim to address The easiest example, complaint To take a second the defendants violated D.P.’s claim alleges “procedural violations of and “statutory rights under IDEA.” This sub- 1415(i) process” stantive due the Four- plainly claim barred be- Payne Payne obtain teenth Amendment. If seeks dam- any cause relief that could ages for the the IDEA is “relief that is school district’s failure for violations of process rights itself. for procedural available under due [the IDEA]” also 1415(l) Payne IDEA, the must conferred claims must explicit Section provides “to the IDEA her IDEA the same exhausted because exhaust remedies procedural process rights, had due U.S.C. as would be the action extent simply § 1415(f) (g), Payne and cannot brought IDEA].” under [the — place damages process claim respect remaining With Similarly, dis- available to her. we cannot Fourth, alleged violations claims— Payne’s current cern contours sub- Amendments —the Eighth, and Fourteenth claim, if, process stantive but for ex- due link con complaint explicitly does not each claim is ample, deprivation for requested to a form of claim stitutional education,” appropriate “free and see Rather, complaint seeks declar relief. 1412(a)(1)(A), Payne then seeks U.S.C. special, puni atory general, is also available under Accordingly, it will be the damages. tive statutory she must exhaust her court on remand to task of district remedies.8 being whether the relief determine “also available under” the IDEA. For Finally, emphasize holding we that our Payne’s request “general example, procedural removes certain barriers suffering damages for extreme mental Payne non- preventing litigating her within distress” would fall to, emotional IDEA claims. have been asked We 1415(l) purview §of if such not, do decide whether of these inju compensate Payne intended to are meritorious. claims Eighth from Fourth resulting ries Y Amendment violations committed 1415(0 Blanchard, gives that 20 420 F.3d We hold officials. Cf. plead request opportunity IDEA defendants (holding that a (internal opine 8. We no here to on the original) quotation marks omit- occasion ted)). right, scope of such a but even if existence or Congress may require right, there is such a Additionally, because articulate new administrative exhaustion of constitutional today, appropriate it is to remand standard Elk See United States Clintwood claims. apply to the district court the case 9, Co., 1, remand, Mining 553 U.S. 128 S.Ct. horn the district court standard. On (2008); L.Ed.2d 392 & parties plead- to amend their should allow the Aircraft Hirsch, Corp. v. Equip. 331 U.S. necessary Diesel ings any steps and take other (1947). 773-74, S.Ct. 91 L.Ed. 1796 apply approach. this new as an affirmative of the alleged damages non-exhaustion defense would have been limiting jurisdiction. without federal addressed, We in or in in part, whole adminis- affirm the district court’s dismissal of proceedings. Accordingly, trative lest the Payne’s claim IDEA-based purpose of the exhaustion be We its dismissal U.S.C. reverse of evaded, recognize scope we should that the her other 1983 claims and remand for of the proceed- unexhausted administrative reconsideration standards we ings may only become clear trial. Of have articulated. course, at that point impossi- time it is on appeal Payne. Costs are awarded to literally ble to enforce the exhaustion re- quirement. The lawsuit has been filed and PART, AFFIRMED IN REVERSED presumably aspects alleged some of the PART, IN AND REMANDED.

damages would not have been addressed in CALLAHAN, Judge, concurring: Circuit the available proceedings administrative (otherwise the court would already have I in the opinion, sepa- concur but write action). situation, dismissed the In rately I because share the concern ex- the intent of the statute is best pressed by Judge served separate Bea his con- denying plaintiff any recovery any currence and dissent that our clarification of IDEA’S requirement, aspect of the alleged damages that 1415(Z), may be used to circum- defendant school district shows would have vent the requirement. Even under the been addressed in the pro- administrative “relief-centered” approach adopt, it is ceedings. always not possible to determine whether The school district has the burden of alleged damages are separate and dis- making requisite showing factual that tinct from those covered the IDEA. aspect an a damage of claim would have The solution to this not may dilemma lie addressed pro- administrative solely in the ambiguous dismissal of an ceedings, but it need not show that complaint or cause of action for failure to administrative proceedings would have exhaust, may complemented but be by al- produced Rather, a solution. if the school

lowing defendant school district to as- shows, district requisite degree of sert, trial, aspect even at an plain- certainty, that the administrative proceed- tiffs claim damages would have been ings would have aspect addressed an of the addressed proceed- administrative plaintiffs alleged damages, plaintiff Then, ings. to the extent that the defen- may not aspect. dant recover for that meets es- its burden of demonstrating sence, if processes administrative the factfinder would determines an aspect alleged aspect addressed of plaintiffs claim for damages damages, plaintiff would be denied would have been addressed the admin- recovery for that aspect por- because that istrative proceedings, has tion of his claim is unexhausted. failed exhaust proce- the administrative aspect. dures Accordingly, to en- approach

This differs in its critical as- provision, force the exhaustion pects mitigation. from the concept Al- should be barred from seeking damages though the statute states that an action aspect his her claim. This may not be filed until pro- mitigation in the ceedings exhausted, reducing sense have been it always possible determine, on a based failure either at pleadings stage prevent harm, or on a it motion for rather enforces a summary judgment, aspect statutory whether some prerequisite to the entitlement to laws,” (Maj. p. Bea req- Op. other but see in the damages engaging collect — 887-88), proceedings. the line between those p. administrative Con. pre-suit uisite would have damages aspects allow for an in this case allegations The proceedings, in administrative addressed D.P.’s con- approach. of this illustration not, may would be factu- and those which out of “safe room” arose finement will have to be determined on al issue that on the relationship based parties a case case basis. However, his confinement was IDEA. of D.P.’s constitu- arguably a violation also Bea, Here, by Judge noted much as parties’ rights of the irrespective

tional Payne sought was damages the relief or focus, the IDEA. Our relationship under under the IDEA. On arguably available however, alleged is not on whether admit, hand, as all to the extent the other injury resulted from violation monetary plaintiffs seek constitutional IDEA or child’s past pain suffering, compensation for sought is rights, but whether “relief such relief not available Maj. Op. IDEA.” also available 883-84; Op. Bea Maj. pp. IDEA. See Con. 875; Maj. Op. 872-73. see also Furthermore, majority n. 891-92 as the 8. damages, difficulty measuring The notes, explicitly complaint “does not to admitted in our direction implicitly link claim to a form of each constitutional Payne allow “to amend district court to Maj. Op. Al- requested relief.” 883. to flesh out her complaint order her though we court to direct the district scru- court claims and enable the to specific complaint, implicitly tinize the we admit require IDEA ex- which claims determine line between Maj. Op. and which do not.” 881. haustion in IDEA adminis- and are not addressable Payne’s recognize that example, For may not clear. See proceedings trative be “general damages for extreme request Maj. It that the dis- Op. 882-83. follows distress” suffering mental and emotional may to trict court be able use purview of not fall “within the might to narrow requirement 1415(i),” will if “the ‘emotional dis- but stage, may complaint pleading at the but Payne’s concern that tress’ stems from dispose of the case. not be able receiving an edu- adequate D.P. Maj. It Op. 883. is not clear cation.” notes, is, Judge Bea danger The academic, long psycho- term what extent may pleading artful enable harms, ad- or emotional must be logical requirement. circumvent the exhaustion proceedings. dressed in However, much of Bea 890-91. Con. IDEA’S ex- majority “[t]he holds that if, dissipated the incentive to do so will requirement applies haustion claims trial, present evi- the defendant actually only to the extent that the relief showing pro- that the administrative dence provided could have been utilized, ceedings under Maj. Op. p. IDEA.” 874. It further holds aspects certain would have addressed in cases where that “exhaustion recog- also damages. the claimed This rights enforce is akin to nizes the exhaustion as a result of a denial of free arise defense, juris- than a an affirmative rather p. Maj. Op. public education.” appropriate to the lawsuit. dictional bar Thus, it be “far from although may with the approach is consistent Such provi- the IDEA authorizes the clear that encourage par- IDEA to inju- intent of the designed correct of services sion advantage of the administra- ties to take past violation ries caused school’s time, the of proceedings. purposes allowing tive At same it IDEA exhaustion: recognizes just agencies a student is and local because state “the exercise IDEA, subject expertise,” giving he she does not discretion and education his her other “the agencies opportunity forfeit constitutional and first to correct (1) Nonetheless, statutory rights. shortcomings where pro- their educational children,” alleged damages grams arise the for disabled allowing context and (2) IDEA, a relationship exploration under the “full of technical educational pro- did exhaust the administrative issues.” v. Tucson Sch. Hoeft Unified (3) (9th Cir.1992). IDEA, Dist., 1298, ceedings under the aspects Finally, newly-restricted measure includes requirement would have been addressed in the will allow plaintiffs through adminis- — gamesmanship cleverly-crafted trative proceedings, plead- then the exhaustion subject ings requirement deny- should be school districts to civil construed as —to liability money damages, ing any recovery without first aspects for those giving opportunity school districts the of the claim that it is determined —under remedy the plaintiffs applicable proof standard of IDEA. appropriate factfinder —would have been proceed- addressed the administrative Moreover, in remanding this case

ings. parse district court to Paynes’ com- plaint, majority ignores the procedural BEA, joined Judge, Circuit posture of this case. This case comes to RAWLINSON, SILVERMAN Circuit on appeal grant us of the district court’s Judges, concurring part dissenting summary judgment to the school district. in part: The evidence, school district presented respectfully I dissent from ma- what the of deposition the form testimony from jority calls its “clarification” of “proper plaintiff Windy Payne, proved method for resolving IDEA exhaustion Paynes sought relief which was “also avail- 1 Maj. Op. cases.” at 874. Rather than a able” under the IDEA —thus triggering clarification, I it see as a nullification of the IDEA’S exhaustion requirement. congressionally mandated exhaustion 1415(i). contrast, U.S.C. Paynes In requirement. majority The opinion presented no evidence at all to raise a clashes with the language clear of the triable issue material fact as to whether IDEA, which requires administrative ex- the relief sought was not “also avail- haustion filing of a civil action able” under the nor evidence at “before relief that is also available provided all that recourse to the remedies 1415(1) [the IDEA].” in the IDEA moving would be futile. A added). (emphasis majority’s ap- party is summary judgment entitled to proach is also inconsistent with the non-moving party core present, by fails to Bock, light of Jones v. 549 U.S. firmative defense in the district court. There- (2007), S.Ct. 166 L.Ed.2d 798 and Reed regardless whether IDEA'S exhaus- fore — tion Elsevier, Muchnick,-U.S.-, Inc. v. requirement jurisdictional or must be (2010), S.Ct. 176 L.Ed.2d 18 I concur raised as an affirmative defense —it is clear majority's in the determination the exhaustion issue in this case was non-juris IDEA’S exhaustion properly before the district court. Because note, however, dictional. I that it was unnec jurisdictional ques- did court reach the essary jurisdictional to reach the issue in this tion, however, analysis I concur in its Here, Payne's case. defendants raised failure issue. to exhaust administrative remedies as an af- IDEA plaintiffs a substantive interrog- tions of affidavits, depositions, answers Public Edu- a Free right Appropriate facts show- atories, “specific or admissions 2) (FAPE); a plaintiff when seeks cation for trial.” genuine a issue there is ing that remedy, equiv- or “functional an IDEA Catrett, v. Corp. U.S. Celotex a remedy IDEA under differ- of an (1986). alent I 91 L.Ed.2d 106 S.Ct. (for example, plaintiff when a ent law” court to the district not remand would edu- a school recompense private for seeks complaint allegations for Paynes’ parse the Americans with Disabili- cation under Paynes facts, facts the of which evidence Act, calcula- its explicitly ties or measures opposi- in their not present themselves did cost of academic tion of as the an judgment. This is summary tion to counseling); and tutoring psychological or Rule 56 of the from an order under appeal 3) injunctive relief to plaintiff a seeks when Procedure, an Civil Rules of Federal pro- alter a child’s individualized education 12(b)(6) I a would order. appeal (IEP) placement.2 gram or educational reasons, I dissent. affirm. For these

Maj. Op. at 875-76. I. matter, majority’s limit- As initial opinion be- majority respect, With inconsistent is ed misreading the IDEA’S exhaustion gins by 1415(i). § text of Section plain with the 1415(i). § codified at provision, 1415(Z) that exhaustion is does not state 1415(i) re- § majority reads The premised for relief that required —which plaintiff a to exhaust quires alleged violation of upon an “seeking plaintiff if the remedies rights, IDEA the func- substantive seeks the IDEA—to also available under” that is remedy, or equivalent of an IDEA tional if required only a that exhaustion mean IDEA injunctive relief after reme- seeks alleges violations Rather, plaintiff specifically effected. dies “func- rights, 1415(i) or their IDEA broadly substantive simply and states ma- According to the equivalent.” plaintiff tional seeks could have jority, under “whether is “also available” relief that the IDEA is requires under schools sought public relief available The IDEA IDEA. matters is whether the “free irrelevant —what disabled students un- sought ap- relief available A “free plaintiff actually public education.” appropriate (emphasis Maj. at 875 includes not Op. propriate public IDEA.” education” der the Therefore, according just pre-school, elementa- appropriate “an original). education,” school, secondary charged with “determin- school majority, ry courts or include “related services” which ing whether the but also looking at a counseling psychological ... should start services. to exhaust 1401(26). Thus, if and determine a disabled complaint’s prayer for relief 20 USC monetary dam- brings is also available suit the relief student whether not, then it is him for academic compensate the IDEA. If it is his ages 1415(i) injuries require ex- likely regression psychological does not completion of a majority persist claims after Maj. Op. he haustion.” wrongful act or under the district’s claimed is available” sees “relief 1) omission, is “also those to three situations: IDEA as restricted IDEA, be- available” in kind upon alleged viola- a claim is based when reviewed and renewed at least IEP must be education- IEP is document which sets 2. An plan specifies goals annually. an instructional al Id. An 34 C.F.R. 300.320. disabled students. provided cause “related services” un- County held Witte Clark School Dis- services, trict, psycho- Cir.1999), der the IDEA —academic plain- cure, logical counseling therapy may tiffs need not exhaust IDEA remedies if — alleviate, mitigate injuries. seek damages “retrospective” psy- case, plain such a chological injuries. text of Id. 1276. For ex- requires a plaintiff ample, to exhaust the Paynes sought IDEA’S had the monetary procedures may damages administrative which lead past tempo- for the claimed and provision palliative rary psychological curative emotional and trauma filing “related services” a civil suit. D.P. suffered while locked in the isolation before room, IDEA exhaustion would majority’s skepticism The required. This is so because when actually “IDEA designed authorizes relief damages sought are for purely retro- to correct the by effects of misconduct spective injuries, relief is not “also avail- misplaced. school” is Maj. atOp. 880. able” under the IDEA: no amount of aca- majority The notes that the IDEA defines counseling demic or possibly services could “related services” as services which “may past, alleviate the temporary, fright but to assist a child a disabili- ” D.P. might claim he felt inside the isolation ty to special education id. benefit from room. Neither could IDEA’S “related ser- (quoting 1401(26)(A)), pos- vices” cure or the pain alleviate and suffer- its the IDEA require does not schools ing D.P. might have suffered in the “iso- to alleviate academic and psychological lation days thereafter, room” and for a few damage to a by child which is caused sprained had he his ankle while locked school. Id. But this reading of the IDEA Witte, inside. As this court held makes little sense. The plainly statute “remedies available IDEA would holds that if child “related ser- appear to be to addressing well suited education, vices” to special benefit from past physical injuries adequately.” Id. at provided. those services must be Nothing in the statute requires any inquiry as to why Thus, those required. services are if hand, On the other when a child crippling suffers from anxiety at monetary seeks compensate school, and that anxiety must be alleviated for the academic psychological after-

before he (or, can learn in the words of the of a school district’s wrongful act or effects statute, special education”), “benefit from omission in education, re- the IDEA plainly requires psychological lief is necessarily available under provided. services be It makes no differ- Here, IDEA. for example, intensive indi- ence anxiety whether that by was caused tutoring vidualized might well have allevi- the school or whether it was caused ated D.P.’s claimed academic regression. some external factor. Psychological counseling might also have 1415(i) course, §

Of eliminated nightmares does not require which the Paynes IDEA exhaustion for all contend D.P. brought lawsuits suffered aas result by disabled allege students who the district’s academic use the “isolation room” or psychological injuries only placed which it those D.P. And relief for such — lawsuits relief for regression those academic nightmares be cured or alleviated “also available” under the IDEA if the “related services” provided through regression and nightmares likely IDEA’S process. administrative As we continue.3 Here —as discussed further 3. Plaintiffs can also avoid the IDEA'S exhaus- course to proce- the IDEA's administrative prove tion can that re- long And exhaust their Paynes so detail below—the remedies, nothing prevents them ongoing academic past for the bringing civil subsequently of D.P.’s claimed from claims psychological after-effects upon the school district. based violations of constitutional or mistreatment 1415(Z) 1415(Z) Thus, re- cases, plain statutory rights. text of does not liability to exhaust the of civil school districts quires absolve filing before injuries which could not be remedied or civil palliated by suit.4 IDEA’S “related services.” Instead, recognition it that the codifies that this majority expresses concern a complex of disabled children is education “penalize^] view of “muscular” endeavor, calling for much individual at- disability,” Maj. for their disabled students tention, a in a misjudgment and that involving all Op. “preempts] at cases a in execution of child’s IEP —or mistake by a the mistreatment of disabled students unexpected aca- plan result id., school,” “temporarily shieldfs]” and —can injuries. For psychological demic and liability from for violations school officials reason, genesis cases where “both statutory rights. Id. and of constitutional problem the manifestations of the First, my reading all. at 875-76. Not at educational,” Blanchard v. Morton Sch. 1415(Z) preempt § all cases does (9th Dist., Cir.2005), 420 F.3d by students harmed a involving disabled 1415(Z) § potential plaintiffs first requires majority’s Contrary to asser- school. give opportunity school districts the Witte, tion, pre- I which eschews embrace claimed correct the effects their edu- emption in cases where seek cational mistakes under the IDEA’S ad- physical or retro- compensation only for recasting Witte, process, ministrative before injuries. spective See F.3d frojn acts or Moreover, arising claims omissions relat- any imposed shield ed to educational efforts as violations of very lim- requirement is of the exhaustion statutory rights, un- constitutional and with process complaints ited duration. Due compensation money sought damages. IDEA must be heard and decided der the 300.515(a). students, penalizing § Far disabled days. 34 C.F.R. within only alleged inadequate. ulated that the child—who retro- have been futile or dures would injuries monetary spective physical could have al- example, parents For who seek —also Maj. leged damages compensation out-of-pock ongoing psychological harm. See as for the 1415(1) they specialized Op. wrong: § expenses paid a form of at 880-81. et This tutoring only private private psychological a or when counseling “seeking IDEA'S exhaustion [the could avoid the relief that is also available under 1415(Z) prove tutoring requirement they (emphasis that such add- IDEA].” 1) 2) ed). If, Witte, necessary, counseling allege could or does not as in provided by the school district. psychological injuries not have been thus academic —and party alleging futility of IDEA psychological academic or re- proving futility. 1415(Z) burden of its Doe v. obviously bears the permit lief— does not Educ., Dep't injuries plaintiff. Arizona to invent for the court 1997). exception Here, This to the exhaustion Cir. per plaintiff’s complaint own Paynes, requirement apply to the as does not deposition testimony, presented futility; no evidence of psychological relief which was academic course, neither did the school district. IDEA.” I is “also available under the would pages 893-94. required only where hold that exhaustion is infra could or "related services” correct academic injuries plaintiff, not where plain reading claimed majority 4. The contends Witte, could also correct such services somehow inconsistent purely conjectural. spec- could have which are because the court in Witte 1415(£) fast, way provides ly efficient measures as the cost of coun- psy- seling, redress such students’ academic and tutoring, private schooling. then, chological injuries, as an civil Only Alternative to according majority, is the may drag on litigation years. upon claim based “either the IDEA ... or Maj. Op. its substantive standards.” See contrast, the eviscerated exhaustion majority at 875. The opinion thus effec- requirement majority articulated tively a roadmap serves as for plaintiffs elevates the form of plaintiffs’ pleadings 1415(£)’s who wish to avoid Consider, over their substance.5 for exam- or palliative curative ple, a monetary disabled child who seeks services the district could offer to imple- because a school district’s eliminate damages, or reduce but would of some program mentation educational money rather obtain a award a federal resulted in claimed adequately failure long court. So a complaint which seeks reading.6 instruct him in Such a child monetary damages does not mention a 1) allege could either: the school district IDEA, specific demand a failed to appropriate public “free it, remedy specifically provided by or seek required by education” as injunctive modify implemented relief to an 1401(9), or, § U.S.C. as the plaintiffs here IEP, 2) majority the claim, holds there is no need the school district’s actions exhaust administrative remedies which caused the prowess child’s “academic remedy could the harm done to a diminished, abilities” to be disabled entitling the child through child to the school’s in general and mistakes im- special damages for plementing Thus, his the emotional and child’s education. psychological pain and majority the suffering. Although largely the nullifies underlying facts of identical, providing plaintiffs easy both these claims would be with an end-run majority holds that around the requires requirement. IDEA It exhaustion of only crystal administrative remedies does not take a ball to foresee the if plaintiff styles complaint plaintiffs his as a result. Would a attorney rather 1) failure a appropriate pub- “free a state claim for the of in-kind IDEA, lic education” under the explicit- or services under the success- greater 5. As discussed in detail below at room If himself. that child were to suffer 887-88, pages majority for the to thus frame anxiety claustrophobia quiet while in the here, especially issue was incorrect leading since regression reading ato in his room— adequacy issue here does not involve the might scores—he sue the school district under plaintiffs' of pleadings, adequacy but the improper 1983 for detention in violation of parties evidence adduced compensa the Fourth Amendment and seek or establish eliminate triable issues of materi- Indeed, injuries. tion for his academic a al fact. The district court entertained and largely analogous be case would to the facts motion, ruled a Rule 56 a Rule # 403, in v. Robb Bethel School District 12(b)(6) motion. (9th Cir.2002), plain F.3d 1047 in which the sought monetary damages tiff for academic majority 6. The contends that "a claim for partic resulted from child's adequately failure to ipation “peer tutoring” instruct student sessions which took reading can place arise under the be- IDEA dimly-lit hallway. on the floor of a As I cause there is no other federal cause of action majority, long alleged read the so anas viola Maj. Op. for such a claim.” at 880. With tion is cast as a federal Constitutional respect, claim, majority po- statutory underestimates plaintiffs are not creativity plaintiffs' attorneys. tential Con- to exhaust their administrative remedies —re sider, example, pro- gardless child whose IEP actually whether the claim based spend vides he should upon 30 minutes each adequately the school district's failure day reading independently quiet in a instruct child. 912, County Sys., 205 F.3d attorney’ v. Knox Sch. ful, court-supervised paid (6th Cir.2000); v. Dist. 2) Padilla Sch. 1415(i)(3)(B), fees, see Denver, City County No. 1 in the a contin- monetary damages under seek (10th Cir.2000); Colo., 233 F.3d parents? fee contract with gent v. Bd. Educ. Skokie Sch. Charlie F. our incorrectly insists that majority (7th Cir.1996); 989, 993 Dist. to ex- “injury-centered” approach previous Bd., F.3d County Sch. N.B. Alachua 1415(i)’s inconsistent with haustion (11th Cir.1996). Thus —be- admin- exhaust plaintiff who includes edu- cause a “seeking a plaintiff remedies if istrative prayer monetary dam- cation-related [the available under is also “actually” ages necessarily does not seek 1415(0 (emphasis IDEA].” we, relief available under IDEA — added). majority, According circuits, our have held that what sister suggests “seeking purposes pre- relief’ “matters” for exhaustion phrase plaintiff “could have” cisely whether a sought re- plaintiff could have “whether a injuries, for the claimed IDEA is irrele- available under the lief which relief is also available plain- matters is whether the vant —what ma- in-kind services. The through IDEA actually sought relief available tiff jority aspect does not overturn this opinion Maj. Op. (emphasis at 875 IDEA.” jurisprudence;7 this leaves of our interpretation But this original). inconsistency. puzzling us On the with “seeking relief’ inconsistent phrase hand, majority today, the as the holds one determination prior court’s courts to phrase “seeking relief’ ex- the IDEA’S cannot circumvent form of relief the solely plain- look at what by seeking requirement haustion hand, “actually sought.” On the other tiff Robb, F.3d 1047 damages. monetary necessarily what look sort courts will damages are Although monetary at 1050. sought in relief a “could have” ordinarily available under damages measured complaints which seek circuits sister joined at least five in-kind in the cost of services available monetary dam- prayer a for to hold that monetary IDEA, or which seek under the excuse the automatically ages does explicitly for claims which are damages Id.; see requirement. exhaustion IDEA’S plain- a upon alleged violations of based Comm., Maj. v. Fairhaven Sch. rights,8 Op. Frazier IDEA also tiffs substantive (1st 875-76, 52, Cir.2002); Covington 876-77. F.3d Consider, example, for one situation in plaintiffs prayer 8. majority that 7. The holds automatically majority that "exhaustion is which the holds damages monetary does not for plaintiff files a clearly required”: where a requirement. the IDEA’S exhaustion excuse § 504 of the Reha- plaintiff’s under example, of a claim if "the measure For prem- counseling, [monetary] bilitation Act damages is the cost rights. plaintiff's of a schooling ised on denial tutoring, private —relief Maj. Op. at 875-76. If such a claim seeks ex- the IDEA under the IDEA—then damages, only monetary has not Maj. majority Op. 877. The haustion.” under the "actually relief available requirement applies also the exhaustion holds IDEA,” does not private because the IDEA plaintiff “seeks to fund if a case, IDEA).” monetary damages. (without But in such a mentioning education exhaustion, majority (rightly) requires be- explicitly seek the such claims Id. Because rights at are clear- remedy, issue equivalent” cause the substantive of an IDEA "functional premised could have ly on the IDEA—and available" majority holds relief "also using re- resolved the IDEA’s agree I the IDEA. situation, cases; not, phrase procedures. In that I quirement applies in such do however, 1415(1) "seeking does not bar courts narrowly. relief” so read Finally, majority academic, opinion psychological, undermines ate or emotional harm. And the sound behind the disabled children whose aca- principles demic and psychological might requirement. previously We have held quickly mitigated by have been cured or that requirement the IDEA’S exhaustion supplied by in-kind services a school dis- traditionally “recognizes strong state trict under the IDEA have to wait education, and local interest allows for potentially until the lengthy resolution exercise discretion and educational monetary civil lawsuit to receive balm. expertise by agencies, state affords full issues, exploration of technical educational II. development furthers of a factual record Recognizing, perhaps, reading its promotes judicial efficiency by giving financially could burden school agencies state and local the first opportu by requiring districts them to reimburse nity shortcomings.” to correct Kutasi palliative services the school Dist., Virgenes Las Sch. Unified cost-effectively districts could have provid- Cir.2007). addition, be in-kind, ed majority rewrites process cause complaints due 1415(0 exhaustion statute —as a —an IDEA must heard and decided within mitigation majority statute. con- days, 300.515(a), C.F.R. cludes after a court ex- determines expedited encourages timetable required, haustion was not a defendant quick and efficient of disputes. resolution subsequently permitted pro- should “be Yet majority’s curtailment of the ex showing vide evidence being the relief haustion promotes none of sought by plaintiff was, fact, avail- goals. these contrary, On the the weak able under the IDEA” and “withhold [rem- ened exhaustion requirement will bode edies] are unexhausted and available cases, flood federal courts with IDEA be Maj. under the IDEA.”9 Op. at I am agency fore a local an opportunity has had puzzled as to majority how the can so the dispute. resolve judges Federal 1415(i). 1415(i) § interpret Section is not juries experts education be —not a —-will “collateral source” doctrine which would to asked serve as “ersatz school adminis permit defendant school districts to submit trators,” Maj. Op. at and make deter proving evidence a plaintiffs monetary money minations about what damage damages would have been reduced had are necessary prevent awards to plaintiffs or allevi- availed of themselves remedies looking plaintiff Judge to whether the "could have” 9. nearly Callahan a makes identical concurrence, point sought concluding in her available under the IDEA. I am ambiguous complaint "the dismissal of an puzzled majority toas how the concludes that cause of action for failure to exhaust ... phrase the same looking bars courts from to complemented allowing a defendant plaintiff whether a "could have” in- assert, trial, school district to even at that an where, here, kind relief under the IDEA as the aspect plaintiff's damages of claim of would plaintiffs psycholog- claim academic and have been addressed in the administrative which, ical at least to future aca- Then, proceedings. to extent that psychological injuries, demic and could be demonstrating defendant meets its burden of eliminated, attenuated, mitigated by IDEA- processes that the administrative would have provided "related services.” Such "related aspect alleged damages, addressed an services” are indeed similar to those which plaintiff any recovery would be denied plaintiff Windy Payne testified had been effec- aspect portion because that of his claim being tive to "happy boy.” return her son to is unexhausted.” Callahan Concurrence at at 892-93 for further discussion. infra added). It sis There not word the IDEA. is thus under available also 1415(2) anything § col- nor from, mitigation, about example, distinguishable of to permits California’s a school district introduce source lateral Act Compensation Reform “also Injury that relief was available” Medical evidence § MI- (MICRA), Civ.Code 3333.1. at for the of purpose Cal. IDEA trial providers who health care permits monetary plaintiffs to reducing CRA award injuries allegedly personal are sued for trial. mitigate malpractice to by medical caused Indeed, contrary majority’s con- to any by “introducing] evidence of 1415(2) clusions, system creates a Section result as a payable amount to system quite from a common-law different personal injury” from outside mitigation. mitiga- common-law Were Act, Security sources, including the Social fact would deter- apply, tion to the trier-of schemes, pri- compensation

worker’s psycho- palliative mine what academic or plans. Cal. Civ.Code vate insurance any expenses logical —could —if 1415(2) 3333.1(a). contrast, § does § school district’s “also by using avoided mitigat- introduction provide for the not services, available” and reduce dam- hearing at a assess ing evidence 1415(2) §But does not leave accordingly. 1415(2) § very contrary, To the ages. that determination to the trier-of-fact clearly states: 1415(2) Instead, those trial. under a civil action filing “before services have been solic- “also available” is also laws such ited, attempted, and used reim- before IDEA], the [admin- under [the sought. purpose The bursement be ex- shall istrative] 1415(2) “also is to have the available” extent as would be hausted to same used, actually public services outside brought required had the action been courtroom, produce practical their effect [the IDEA].” 1415(2) child. disabled Section added). 1415(2)(emphasis monetary value of does 1415(2) majority’s attempt to turn unused services be determined as mitigation statute is thus belied into a courtroom. debated hypothetical, law. If the defendant plain text of the Thus, majority’s conclu- contrary “provide evidence permitted at trial 1415(2) sion, require does defen- being sought by the relief showing that to introduce evidence dant school district fact, was, in available under chose of how the in-kind services IDEA,” Maj. Op. at then mitigated a pursue plain- to could have the available” before evidence was “also Instead, enacting injuries. tiffs all, filed. After evidence that action was 1415(2), exceedingly Congress was clear: pal- provided could have the school district actually exhaust IDEA plaintiffs must psychological academic or services liative for bringing a suit which remedies mitiga- relevant —for under the IDEA is before IDEA. is “also available” under the relief if purposes only those services could tion — To plaintiffs’ damages. have re- reduced III. damages, such services plaintiffs’ duce newly-articulated, light of its restrict- “also available” to the must have been majority requirement, the ed exhaustion And relief is “also available” to plaintiff. to for the district court 1415(2) remands case IDEA, § the re- a claims in determine “constitutional” to exhaust his remedies quires complaint need not be ex- Paynes’ the filing of “before 1415(2) focus majority’s narrow hausted. But (empha- civil action.” 2) room, Paynes’ complaint on the lation overlooks for treatment and cure appeal academic, is an of past ongoing psychologi- fact that this case cal, grant summary judgment, and that all of and emotional difficulties caused of court of the presented Windy Payne the facts district use isolation room. Paynes sought damages indicated the were at least testified she for the education,” some that was “also available” under “lack of [D.P.’s] relief the “emotional majority’s suffered, the IDEA —even under the nar- trauma that I [D.P.] reading phrase. impact row of the that it Because has had on our lives added). (mainly presented (emphasis school district evidence and continues to have.” form of plaintiff adverse-party She stated that sought were Windy Payne’s deposition) Paynes that the for everything parents D.P.’s had done— un- including provision private relief was “also available” doctors and Paynes der the therapists IDEA—and because him a “happy boy make presented contrary— no again.” evidence to the Part of the measure those summary damages, district was entitled according Windy Payne, school Celotex, as a judgment out-of-pocket matter of law. expenses Paynes had (on paid U.S. 106 S.Ct. 2548 “for lots of doctors and lots of thera- summary judgment, motion for py” non-mov-

ing party “designate specific must facts words, Windy Payne’s In other deposi- showing genuine that there is a issue tion Paynes sought established that trial”) 56(e)). (quoting Fed.R.Civ.P. money damages past for the and ongoing summary judgment, In its motion for academic and psychological aftereffects district properly school raised an affir- the school district’s use the isolation mative defense which contended the Windy Payne Paynes room. testified the Paynes’ 1) lawsuit should be dismissed be- sought damages: compensate D.P. Paynes sought cause the parents that was and his for the emotional trauma “also available” Paynes under the IDEA and had profes- seek (the exhausted their psychological administrative reme- sional services private 2) dies.10 In support and, of its motion for sum- doctors and therapists) mary judgment, pro- the school district treatment and services for ongoing D.P.’s July academic, emotional, duced deposition D.P.’s psychological in- mother, Windy Payne, juries, in which parents’ she testi- and the continued emo- Paynes fied the were seeking monetary tional trauma which derived from those D.P. not for the retrospective injuries. Relief from the academic and temporary emotional trauma experi- D.P. psychological aftereffects of the school room, enced while in the isolation but for district’s use of the isolation room was 1) the expenses private doctors and “also available” under the IDEA. The therapists right who had treated D.P. to provided district could have —under done wrongs him use of iso- the “related services” 10. The summary temporary experienced school district's motion for emotional trauma he judgment room, Paynes conceded that had the while locked inside the safe sought retrospective relief for the required, school dis would not have been because the violations, alleged trict’s psychological Constitutional the and academic in-kind services Paynes' provided by failure exhaust "would not fa remedy for the IDEA cannot County tal” under Witte v. past injuries, Clark School Dis more than could reme- trict, 1271, (9th Cir.1999). dy pain suffering F.3d hypotheti- For the and from the example, Paynes sought monetary had the sprained now-cured cal ankle earlier men- damages recompense past D.P. for the and tioned. Moreover, Paynes’ 1401(26) complaint past the IDEA, 20 U.S.C. —the itself Paynes pur- school district’s contention— counseling supports the the psychological market. private the for D.P. on determination on chased and the district court’s provide can now district Paynes And the school summary judgment —that psychological ser- ongoing academic sought only relief which had been and D.P. damage done to vices to alleviate in-kind, IDEA.11 “also available” Thus, unlike isolation room. in the Paynes’ complaint specifically alleged The Witte, 197 F.3d at following injuries were sustained testimony establishes Windy Payne’s a result of his mistreatment: their son as only retro- Paynes were regression in communicative “significant injuries for spective functions,” sensory diminished “aca- Windy Payne palliate. IDEA could abilities,” and “contin- prowess demic not, testify that she example, did for (em- trauma.” signs of emotional ue[d] for the sought monetary compensation added). further phasis complaint in the iso- fright D.P. felt while locked sought damages for “general extreme in- retrospective completed lation room—a suffering mental and emotional distress psychological in-kind academic or jury no in an amount to be special remedied. Nor did could have services nothing There was in the proven trial.” com- testify sought that she Windy Payne Paynes sought to indicate the complaint injuries which physical for some pensation anything past other than the damages for use of from the school district’s resulted academic and ongoing psychological Instead, Windy isolation room. of D.P.’s time in the isolation aftereffects testimony Paynes establishes the Payne’s room, trauma his par- and the derivative for the ac- sought monetary compensation experienced as result.12 ents aftereffects psychological ademic and district’s mo- opposition to the school the isolation district’s use of summary judgment the evi- tion for could have been room—which aftereffects —and by the school district in its dence adduced in-kind palliated ser- remediated Paynes produced no moving papers in the IDEA. specified vices —the Moreover, allegations summary judgment, the even had 11. In its motion for quote portions complaint Paynes school district did not that the stated Paynes' complaint dealt with D.P.'s something other than the academic and for put prayer forward or which psychological time in the aftereffects D.P.’s However, explicitly court the district relief. room, allegations those would be isolation complaint language of considered Windy Payne's deposition trumped by testi granting its the school district’s motion order contrary. On a for sum mony to the motion judgment. court summary The district party trump depositions mary judgment, its do so: Federal within discretion to allegations complaint. of his or her 56(c)(l)(3) provides Rule of Civil Procedure List, 56(c)(1)(A); Taylor Fed.R.Civ.P. summary considering motion for Cir.1989) (9th (nonmoving F.2d judgment, “need consider a district court judgment by party summary re cannot avoid materials, but it consider other the cited solely allegations unsupport lying Paynes’ com- materials in the record.” The data); Casualty v. Aetna ed factual Dismore the ad- plaint in evidence as was admissible Co., Surety Cir. & litigant. party Fed.R.Evid. mission of 1964) (“allegations complaint are not 801(d)(2). allegations supported fact Its by deposi controlling where controverted summary district's motion the school Thus, tions”). summary judg on motion for sup- Paynes' complaint judgment, because the ment, complaint can the unverified ported that the the school district’s contention admissions—against only factual sought only was also Paynes relief which evidence— plaintiffs; plaintiffs. never under the IDEA. for affidavits, declarations, Indeed, depositions, oth to Windy been useless D.P. discovery attempt prove Payne’s material to to own deposition testimony er —in they sought anything family for other than which she stated that the taken relief had past ongoing therapists aftereffects of D.P.’s D.P. to his psycho- to alleviate academic, emotional, psychological inju- in logical injuries suggests that D.P.’s — juries arising partially from the education- at claimed ries were least remedied in- Indeed, services; Paynes counseling counseling related mistreatment. kind ser- which, they not aught appears, did even contend vices injuries that could not be was perfectly capable providing redressed district of Instead, through kind under Paynes pursued IDEA. had the Paynes solely relied on a provided since-overruled the administrative remedies un- 1415(f) (g). Third case that an Sec. Circuit which held der IDEA claim need not if it be exhausted Thus, all of the evidence before the dis- monetary damages,13 seeks see W.B. v. trict court summary on the motion for (3d Cir.1995)-a Matulo, 67 F.3d judgment showed that relief for what the theory rejected, squarely court has proved inju- record evidence were D.P.’s (at form) reject. and continues least ries was “also available” kind under the Robb, 1050; Maj. Op. 308 F.3d 1047 see IDEA, and proof there was no —none at 876-77. all—that through the admin- addition, Paynes contended IDEA process istrative would have been futile. futile, they exhaustion would be because The school district could have remedied or seeking any changes mitigated were not injuries D.P.’s D.P.’s through tutoring, IEP, and because counseling, did not raise or other or psycho- educational remedies, claim which specifically sounded logical Windy Payne much as IDEA. But the Paynes had the burden of her testified doctors and therapists did in proof to prove futility inadequacy returning of D.P. “a being happy boy IDEA procedures, Doe v. Dep’t again.” Arizona And if underlying inju- D.P.’s Educ., Cir.1997), least ries—at some them —could have Paynes presented and the no evidence to or mitigated through been remedied prove it would have been futile them to process’s provision pursue services, the academic counseling ser too pain so could the suf- vices the school required fering district was arising from those for which provide, or that such services would parents have his recompense.14 now seek majority correctly 13. The required notes that the Paynes’ Third haustion is not if the "emo- Paynes Circuit case on which the relied "injuries has tional distress” stemmed from re- Jersey City been overruled sulting A.W. v. Public Eighth from Fourth or Amendment Schools, (3d Cir.2007), 486 F.3d 791 and that violations committed school officials.” Id. every Here, other circuit to address the issue has only injuries alleged with reference limiting held requested allegations proof factual facts—which enough alone is not to avoid the exhaustion against plaintiff per Federal Rule Evi- Maj. Op. IDEA. See at 873 801(d)(2) by resulting dence D.P. from — 3.n. Eighth Fourth or Amendment violations were psychological injuries, academic and majority opaquely suggests 14. The could have ex- been redressed under the IDEA. difficulty impossibility haustion in this case would be if the distin- —if —of Paynes' guishing "emotional distress between "concern that a child stem[med] Payne's receiving receiving adequate concern that D.P. was not an education” hand, adequate Maj. Op. “inju- education.” at 883. one and concern over academic However, majority resulting further ex- Eighth holds that ries from Fourth or Amend- Therefore, affirm the I would district

IV. summary judgment to grant of court’s suit in federal bringing this Before entirety. in its school district litiga- sparking protracted this court—and for six dragged has now on

tion which ex- Paynes first have should

years —the administrative remedies their

hausted un- that was “also available” relief

sought IDEA, required by plain as

der 1415(2). Indeed, even under the text of Joseph Cristopher YOUNG, Joseph aka 1415(2), reading of majority’s narrow Young, Petitioner, Christopher by sup- the parties submitted the evidence grant of district court’s sum- ported the Attorney Jr., H. Eric HOLDER to the school district. mary judgment General, Respondent. of a the measure majority “[i]f holds counsel- No. 07-70949. damages is the cost of plaintiff’s schooling tutoring, private ing, —relief Appeals, States Court United IDEA —then Ninth Circuit. Maj. atOp. exhaustion.” July 2011. Here, explicitly Windy Payne has 877. deposition in her she stated Holtzman, Leung, H. Victor Rob- Jenna counsel- for the cost reimbursement Perrin, LLP, Latham & ert W. Watkins services needed ing psychological CA, for Petitioner. Angeles, Los boy again.” The “happy D.P. a make Beier, Bryan Litigation Stuart Senior suggest no Paynes submitted evidence Counsel, Bernal, Di- David V. Assistant a measure of the was not Molina, Jr., rector, Horacio Es- Ernesto Thus, majori- sought. even under the Counsel, Litigation Siu P. quire, Senior require- ty’s newly-articulated exhaustion Trial, Depart- Wong, Esquire, DOJ-U.S. ment, grant of sum- DC, the district court’s Justice, Washington, Chief ment of Ice, of the Chief Counsel be affirmed.15 Counsel Office mary judgment should Thus, other, filing a civil action." a further on the ment violations” fore 1415(1) ap- previous as an absolute bar to law- serves reason I favor our any by majority. avail- suits which relief that "also proach to the one articulated seek 1415(1) greater injury carry able” under the IDEA. Section The concrete claims of decisions, not, terms, weight, making cap damages, than do abstract and does its selectively recovery permit of constitutional violations. a court exclude claims any injury or harm would have been proceedings un- 1415(1), covered the administrative district court could Under any If der the IDEA. there are claims of dam- simply hold that some measures of fact made to which no triable issue ages measures must be exhausted some be, is "also available” exists but that final award need not such that complaint must dis- unexhaust- would be reduced 1415(1) prematurely having filed be- specifically pro- missed as amount. Section ed required administrative exhaustion. required "be- fore the vides that IDEA exhaustion

Case Details

Case Name: Payne Ex Rel. D.P. v. Peninsula School District

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 29, 2011

Citation: 653 F.3d 863

Docket Number: 07-35115

Court Abbreviation: 9th Cir.