FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WINDY PAYNE, individually and as
guardian on behalf of D.P., a
minor child,
Plaintiff-Appellant,
v.
No. 07-35115
PENINSULA SCHOOL DISTRICT, a
municipal corporation; ARTONDALE D.C. No.
CV-05-05780-RBL
ELEMENTARY SCHOOL, a municipal
corporation; JODI COY, in her OPINION
individual and official capacity;
JAMES COOLICAN, in his individual
and official capacity; JANE DOES 1-
10; and JOHN DOES 1-10,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted
December 15, 2010—Pasadena, California
Filed July 29, 2011
Before: Alex Kozinski, Chief Judge,
Diarmuid F. O’Scannlain, Barry G. Silverman,
Susan P. Graber, M. Margaret McKeown,
Raymond C. Fisher, Johnnie B. Rawlinson, Jay S. Bybee,
Consuelo M. Callahan, Carlos T. Bea, and
Milan D. Smith, Jr., Circuit Judges.
9729
9730 PAYNE v. PENINSULA SCHOOL DISTRICT
Opinion by Judge Bybee;
Concurrence by Judge Callahan;
Partial Concurrence and Partial Dissent by Judge Bea
PAYNE v. PENINSULA SCHOOL DISTRICT 9733
COUNSEL
Thomas B. Vertetis, Pfau Cochran Vertetis Kosnoff, PLLC,
Tacoma, Washington, for the plaintiff-appellant.
Michael A. Patterson, Patterson Buchanan Fobes Leitch &
Kalzer, Inc., P.S., Seattle, Washington, for the defendants-
appellees.
Sasha Samberg-Champion, United States Department of Jus-
tice, Civil Rights Division, Washington, D.C.; and Lenore
Silverman, Fagen Friedman & Fulfrost, LLP, Oakland, Cali-
fornia, for amici curiae.
9734 PAYNE v. PENINSULA SCHOOL DISTRICT
OPINION
BYBEE, Circuit Judge:
We agreed to rehear this case en banc to clarify under what
circumstances the IDEA’s exhaustion requirement bars non-
IDEA federal or state law claims.
Appellant Windy Payne, on behalf of herself and her son,
D.P., appeals the district court’s grant of summary judgment
to the defendants. The district court dismissed her claim for
lack of subject matter jurisdiction because Payne did not ini-
tially seek relief in a due process hearing and therefore failed
to comply with one of the exhaustion-of-remedies require-
ment of the Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. § 1415(l). We hold that (1) the IDEA’s
exhaustion requirement is not jurisdictional, and (2) Payne’s
non-IDEA federal and state-law claims are not subject to the
IDEA’s exhaustion requirement. We therefore reverse.
I
The facts in this case, and the inferences to be drawn from
them, are vigorously contested by the parties. Because Payne
is appealing an adverse grant of summary judgment, we
review this case de novo and state the facts in the light most
favorable to her case, Olsen v. Idaho State Bd. of Med., 363
F.3d 916, 922 (9th Cir. 2004), although we outline only the
facts material to our decision.
D.P. is a minor who was diagnosed with oral motor apraxia
and autism when he was five years old. During the 2003-04
school year, when D.P. was seven, he was placed in a con-
tained special education classroom within Artondale Elemen-
tary School, part of the Peninsula School District. Defendant
Jodi Coy was his teacher that year. Coy employed a small
room about the size of a closet as a time-out room or “safe
room” for students who became “overly stimulated.”
PAYNE v. PENINSULA SCHOOL DISTRICT 9735
At a meeting to discuss D.P.’s Individual Education Pro-
gram (“IEP”)1 and Behavior Assessment Plan, Coy requested
permission to use the time-out room while the IEP paperwork
was pending. The Paynes initially objected, claiming that their
son was unable to perceive a difference between positive and
negative reinforcement. They eventually gave limited consent
to the time-out room, specifying that they would agree to
allow Coy to use the room for time-out periods only (and not
punishment), but that the door had to remain open and that
D.P. was not to be left alone inside the room. According to
Payne, Coy nonetheless used the room to punish D.P. and
locked him in the closet a number of times without supervi-
sion. In some instances, D.P. responded by removing his
clothing and urinating or defecating on himself. Although the
Paynes repeatedly requested that Coy stop using her “aversive
therapy” techniques, Coy continued. Eventually, in January
2004, Coy refused to allow the Paynes to visit her classroom
or pick up their son directly from the classroom, insisting that
the Paynes might misinterpret what they observed.
The Paynes and the school district underwent mediation,
and they agreed that D.P. would transfer to another school in
the district. Later, the Paynes removed D.P. from the public
school system and began home schooling him. They never
underwent a formal due process hearing with the school dis-
trict.
In 2005, Windy Payne filed the current complaint on behalf
of herself and her son, seeking relief under 42 U.S.C. § 1983
by alleging violations of the Fourth, Eighth, and Fourteenth
Amendments, and the IDEA. The complaint also advanced
negligence and outrage claims under Washington law. The
1
States participating in the IDEA are required to provide students with
disabilities with an IEP in furtherance of the statute’s goal of providing
each such student with a “free appropriate public education.” 20 U.S.C.
§ 1412(a)(1)(A), (a)(4). The IEP must meet a number of requirements,
articulated in 20 U.S.C. § 1436(d).
9736 PAYNE v. PENINSULA SCHOOL DISTRICT
defendants moved for summary judgment, claiming that
Payne had failed to exhaust her remedies as required by 20
U.S.C. § 1415(l) by failing to go through the informal due
process hearing and appeal process established by 20 U.S.C.
§ 1415(f), (g). The district court dismissed Payne’s entire
case, citing our decision in Robb v. Bethel School District #
403, 308 F.3d 1047 (9th Cir. 2002), where we held that the
IDEA’s exhaustion requirement applied to any case in which
“a plaintiff has alleged injuries that could be redressed to any
degree by the IDEA’s administrative procedures and reme-
dies.” Id. at 1048.
Payne timely appealed. In a divided decision, a panel of
this court affirmed the district court’s grant of summary judg-
ment. Payne v. Peninsula Sch. Dist., 598 F.3d 1123 (9th Cir.
2010), reh’g en banc granted, 621 F.3d 1001 (9th Cir. 2010).
The majority began by noting that the applicability of
§ 1415(l) depended on whether each claim more closely
resembled the one in Robb, in which we held that exhaustion
was required, or the one in Witte v. Clark County School Dis-
trict, 197 F.3d 1271 (9th Cir. 1999), in which we held that
exhaustion was not required. Payne, 598 F.3d at 1126-27. The
panel concluded that “this case is more akin to Robb” because
Payne had failed to seek an impartial due process hearing
after mediation failed, was seeking redress for academic inju-
ries “for which IDEA provides some relief,” and was “not
claiming physical injuries for D.P. within the meaning of
Witte.” Payne, 598 F.3d at 1127-28. Accordingly, the panel
concluded that “as an educational strategy (even if a mis-
guided or misapplied one), [Coy’s use of the safe room] was
better addressed initially by the administrative process” and
affirmed the district court. Id. at 1128. Judge Noonan dis-
sented on the ground that “[t]he facts in this case are closer
to those in [Witte] than in [Robb]” and that “full exhaustion
of the IDEA administrative processes [was not] required.” Id.
at 1128-29 (Noonan, J., dissenting).
On a vote of the majority of nonrecused active judges on
our court, we vacated the panel opinion and agreed to rehear
PAYNE v. PENINSULA SCHOOL DISTRICT 9737
this case en banc. Payne v. Peninsula Sch. Dist., 621 F.3d
1001 (9th Cir. 2010) (order granting rehearing en banc).
II
We begin by clarifying the nature of the IDEA’s exhaustion
requirement. Adhering to this circuit’s precedent, the original
panel treated the requirement as a jurisdictional one, but ques-
tioned the soundness of this conclusion. See Payne, 598 F.3d
at 1124-25 & n.2. Indeed, the conclusion it reached was con-
sistent with our precedent. See, e.g., Blanchard v. Morton Sch.
Dist., 420 F.3d 918, 920-21 (9th Cir. 2005) (“If a plaintiff is
required to exhaust administrative remedies but fails to do so,
the federal courts do not have jurisdiction to hear the plain-
tiff’s claim.”); Witte, 197 F.3d at 1274 (same). In light of a
spate of Supreme Court cases clarifying the difference
between provisions limiting our subject matter jurisdiction,
which cannot be waived and must be pled in the complaint,
and “claims processing provisions,” which must be pled as an
affirmative defense or forfeited, see, e.g., Henderson ex rel.
Henderson v. Shinseki, 131 S. Ct. 1197, 1202-07 (2011); Reed
Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237, 1243-48 (2010);
see also United States v. Jacobo Castillo, 496 F.3d 947 (9th
Cir. 2007) (en banc), we now overrule our previous treatment
of § 1415(l) and hold that the IDEA’s exhaustion requirement
is a claims processing provision that IDEA defendants may
offer as an affirmative defense.
Federal courts may only decide cases over which they have
both constitutional and statutory jurisdiction. See Ins. Corp. of
Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S.
694, 701-02 (1982). The Constitution grants federal courts
jurisdiction over “all Cases, in Law and Equity, arising under
this Constitution [and] the Laws of the United States.” U.S.
CONST. art. III, § 2, cl. 1. Here, Payne raised federal claims
under 42 U.S.C. § 1983 in addition to a number of state-law
claims. In cases such as this one, district courts have statutory
jurisdiction over federal claims, 28 U.S.C. § 1331, and sup-
9738 PAYNE v. PENINSULA SCHOOL DISTRICT
plemental jurisdiction over related state-law claims, 28 U.S.C.
§ 1367. Additionally, Congress has given us statutory authori-
zation to hear “appeals from all final decisions of the district
courts of the United States.” 28 U.S.C. § 1291. It is clear,
then, that unless Congress has limited this jurisdiction further,
the federal courts have jurisdiction over IDEA-related mat-
ters.
[1] The IDEA’s exhaustion requirement provides:
Nothing in this chapter shall be construed to restrict
or limit the rights, procedures, and remedies avail-
able under the Constitution, the Americans with Dis-
abilities Act of 1990 [42 U.S.C. § 12101 et seq.],
title V of the Rehabilitation Act of 1973 [29 U.S.C.
§ 791 et seq.], or other Federal laws protecting the
rights of children with disabilities, except that before
the filing of a civil action under such laws seeking
relief that is also available under this subchapter,
the procedures under subsections (f) and (g) shall be
exhausted to the same extent as would be required
had the action been brought under this subchapter.
20 U.S.C. § 1415(l) (emphasis added). The Fourth and Eighth
Circuits share our earlier assumption that this language
creates a jurisdictional limitation. See, e.g., MM ex rel. DM v.
Sch. Dist. of Greenville Cnty., 303 F.3d 523, 536 (4th Cir.
2002) (“The failure of the Parents to exhaust their administra-
tive remedies . . . deprives us of subject matter jurisdiction
over those claims . . . .”); Urban by Urban v. Jefferson Cnty.
Sch. Dist. R-1, 89 F.3d 720, 725 (10th Cir. 1996) (“We con-
clude that the district court correctly dismissed the [unex-
hausted] claims for lack of jurisdiction.”). By contrast, the
Seventh and Eleventh Circuits have treated the exhaustion
requirement as an affirmative defense, rather than a jurisdic-
tional requirement. See, e.g., Mosely v. Bd. of Educ., 434 F.3d
527, 533 (7th Cir. 2006) (“A failure to exhaust is normally
considered to be an affirmative defense, and we see no reason
PAYNE v. PENINSULA SCHOOL DISTRICT 9739
to treat it differently here.” (citation omitted)); N.B. by D.G.
v. Alachua Cnty. Sch. Bd., 84 F.3d 1376, 1379 (11th Cir.
1996) (per curiam) (“The exhaustion requirement . . . is not
jurisdictional . . . .”).
Last Term, the Supreme Court reminded us that “the word
‘jurisdiction’ has been used by courts . . . to convey ‘many,
too many, meanings’ ” and “cautioned . . . against profligate
use of the term.” Union Pac. R.R. Co. v. Bhd. of Locomotive
Eng’rs & Trainmen Gen. Comm. of Adjustment, Cent. Region,
130 S. Ct. 584, 596 (2009) (quoting Steel Co. v. Citizens for
a Better Env’t, 523 U.S. 83, 90 (1998)). “Accordingly, the
term ‘jurisdictional’ properly applies only to ‘prescriptions
delineating the classes of cases (subject-matter jurisdiction)
and the persons (personal jurisdiction)’ implicating [the
court’s adjudicatory] authority.” Reed Elsevier, 130 S. Ct. at
1243 (quoting Kontrick v. Ryan, 540 U.S. 443, 455 (2004)).
The Court confessed that “[w]hile perhaps clear in theory, the
distinction between jurisdictional conditions and claim-
processing rules can be confusing in practice,” that we should
“us[e] the term ‘jurisdictional’ only when it is apposite,” and
that we should “curtail . . . ‘drive-by jurisdictional rulings.’ ”
Id. at 1243-44 (quoting Steel Co., 523 U.S. at 91); see also
Henderson, 131 S. Ct. at 1202-07 (holding that a veteran’s
failure to file a notice of appeal within the required 120-day
period did not deprive the Court of Veterans Appeals of juris-
diction over his claim); Reed Elsevier, 130 S. Ct. at 1249
(holding that a copyright-registration requirement was not
jurisdictional); Union Pac. R.R., 130 S. Ct. at 598-99 (holding
that a settlement-conference requirement was not jurisdic-
tional); Arbaugh v. Y & H Corp., 546 U.S. 500, 514-15 (2006)
(holding that a Title VII provision exempting employers with
fewer than 15 employees was not jurisdictional); Kontrick,
540 U.S. at 452-56 (holding that a bankruptcy rule governing
timely amendments was not jurisdictional); United States v.
Cotton, 535 U.S. 625, 630-31 (2002) (holding that sentencing
in excess of a statutory maximum did not deprive the sentenc-
ing court of jurisdiction). But see Bowles v. Russell, 551 U.S.
9740 PAYNE v. PENINSULA SCHOOL DISTRICT
205, 209-10 (2007) (holding that the statutory time for the
taking of an appeal from a district court decision is jurisdic-
tional).
Two cases recently decided by the Court are instructive. In
Reed Elsevier, the Court examined a provision of the Copy-
right Act providing that copyright holders must register their
works before bringing suit for copyright infringement. Section
41(a) of the Copyright Act provides that “no civil action for
infringement of the copyright in any United States work shall
be instituted until preregistration or registration of the copy-
right claim has been made in accordance with this title.” 17
U.S.C. § 411(a). Holding that § 411(a) is not jurisdictional,
the Court pointed to three factors. First, the Court pointed out
that § 411(a) does not “ ‘clearly state[ ]’ that its registration
requirement is ‘jurisdictional.’ ” Reed Elsevier, 130 S. Ct. at
1245 (quoting Arbaugh, 546 U.S. at 515). Second, the Court
noted that § 411(a) was separate from other statutes that grant
subject matter jurisdiction and that neither 28 U.S.C. § 1331
nor 28 U.S.C. § 1338 — which is specific to copyright —
mentions the registration requirement. Id. at 1245-46. Finally,
the Court could not find “any other factor [that] suggest[s]
that 17 U.S.C. § 411(a)’s registration requirement can be read
to ‘speak in jurisdictional terms or refer in any way to the
jurisdiction of the district courts.’ ” Id. at 1246 (quoting
Arbaugh, 546 U.S. at 515); see also Henderson, 131 S. Ct. at
1202-07 (reaffirming and applying Reed Elsevier’s methodol-
ogy).
In Jones v. Bock, 549 U.S. 199 (2007), the Court addressed
whether the Prison Litigation Reform Act’s (“PLRA”)
exhaustion requirement2 was a pleading requirement that the
2
The PLRA exhaustion provision reads:
No action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are exhausted.
42 U.S.C. § 1997e(a).
PAYNE v. PENINSULA SCHOOL DISTRICT 9741
prisoner must include in his complaint or an affirmative
defense that the defendant must raise. The Court held that
“failure to exhaust is an affirmative defense under the PLRA,
and that inmates are not required to specially plead or demon-
strate exhaustion in their complaints.” Id. at 216. Although the
Court did not treat a heightened pleading requirement as
going to the jurisdiction of the federal courts, the Court’s con-
clusion — that PLRA defendants have the burden of pleading
non-exhaustion, and that PLRA plaintiffs need not specifi-
cally plead exhaustion in their initial complaints — is conso-
nant with our discussion of jurisdictional versus claim-
processing requirements. If a requirement is jurisdictional,
then a federal plaintiff has the burden of pleading in her initial
complaint (however briefly) how that requirement has been
met. See Fed. R. Civ. P. 8(a)(1). In other words, even though
the Court did not state its result in such terms, it follows from
Jones that the PLRA’s exhaustion requirement is non-
jurisdictional. See Reed Elsevier, 130 S. Ct. at 1246-47 & n.6
(citing Jones as an example of where the Court has “treated
as nonjurisdictional other types of threshold requirements”).
[2] With that background we return to the IDEA’s exhaus-
tion requirement in § 1415(l) and to our prior statement that
“[i]f a plaintiff is required to exhaust administrative remedies,
but fails to, federal courts are without jurisdiction to hear the
plaintiff’s claim.” Witte, 197 F.3d at 1274; see also Dreher v.
Amphitheater Unified Sch. Dist., 22 F.3d 228, 231 (9th Cir.
1994) (suggesting, but not holding, that exhaustion was juris-
dictional under the IDEA). First, we observe that nothing in
§ 1415 mentions the jurisdiction of the federal courts. In fact,
neither the word “courts” nor the word “jurisdication” appears
in § 1415(l). Section 1415 is written as a restriction on the
rights of plaintiffs to bring suit, rather than as a limitation on
the power of the federal courts to hear the suit. That textual
choice strongly suggests that the restriction may be enforced
by defendants but that the exhaustion requirement may be
waived or forfeited. See, e.g., Kontrick, 540 U.S. at 456
(“Characteristically, a court’s subject-matter jurisdiction can-
9742 PAYNE v. PENINSULA SCHOOL DISTRICT
not be expanded to account for the parties’ litigation conduct;
a claim-processing rule, on the other hand, even if unalterable
on a party’s application, can nonetheless be forfeited if the
party asserting the rule waits too long to raise the point.”);
Jacobo Castillo, 496 F.3d at 952 (“Defects in procedural rules
may be waived or forfeited by parties who fail to object prop-
erly, whereas defects in our subject-matter jurisdiction go to
the inherent power of the court and cannot be waived or for-
feited.” (footnote omitted)).
[3] Second, nothing in the relevant jurisdictional statutes
requires exhaustion under the IDEA. Section 1415(l) provides
that if the plaintiff is “seeking relief that is also available
under [the IDEA], the procedures under [20 U.S.C. § 1415(f),
(g)] shall be exhausted to the same extent as would be
required had the action been brought under this subchapter.”
Section 1415(i) describes the actions that can be brought
under the IDEA. A party who is “aggrieved by the findings
and decision” made under the IDEA’s procedures has “the
right to bring a civil action . . . in any State court of competent
jurisdiction or in a district court of the United States, without
regard to the amount in controversy.” 20 U.S.C.
§ 1415(i)(2)(A). There is no restriction in this section on the
subject matter jurisdiction of the federal courts. The only pro-
vision that arguably affects federal subject matter jurisdiction
is the provision specifying that there is no amount-in-
controversy requirement, and it appears to expand, rather than
contract, federal jurisdiction. More to the point, the section
expressly provides that suit may be brought in state or federal
courts. As state courts are courts of general subject matter
jurisdiction, it is hard to think that Congress would permit
IDEA suits to be brought in state court but at the same time
restrict the subject matter jurisdiction of the federal courts.
Without clearer instruction from Congress, we are reluctant to
infer such a restriction where Congress has not made it
explicit. See Henderson, 131 S. Ct. at 1203 (“[Courts should]
look to see if there is any ‘clear’ indication that Congress
wanted the rule to be ‘jurisdictional.’ ”).
PAYNE v. PENINSULA SCHOOL DISTRICT 9743
Finally, we can find no reason why § 1415(l) should be
read to make exhaustion a prerequisite to the exercise of fed-
eral subject matter jurisdiction. We can think of many good
reasons why it should not. As we discuss in the next section,
the exhaustion requirement in § 1415(l) is not a check-the-box
kind of exercise. As our cases demonstrate, determining what
has and what has not been exhausted under the IDEA’s proce-
dures may prove an inexact science. See Hoeft v. Tucson Uni-
fied Sch. Dist., 967 F.2d 1298, 1302-03 (9th Cir. 1992)
(noting that the IDEA’s exhaustion requirement “is not a rigid
one, and is subject to certain exceptions,” determined by “the
general purposes of exhaustion and the congressional intent
behind the administrative scheme”). In other words, the
exhaustion requirement appears more flexible than a rigid
jurisdictional limitation — questions about whether adminis-
trative proceedings would be futile, or whether dismissal of a
suit would be consistent with the “general purposes” of
exhaustion, are better addressed through a fact-specific
assessment of the affirmative defense than through an inquiry
about whether the court has the power to decide the case at
all. If we were to hold that exhaustion was jurisdictional, the
question of exhaustion vel non would haunt the entire pro-
ceeding, including any appeals. We would have the obligation
to raise the issue sua sponte, a particularly frustrating exercise
for parties and courts when Congress has authorized the par-
ties to file suit in state court in the first place. Congress may,
of course, override our concerns and make the IDEA’s
exhaustion requirement jurisdictional, but we would need a
clearer statement of its intent before we will impose such a
requirement.
[4] In sum, we hold that the exhaustion requirement in
§ 1415(l) is not jurisdictional. It “is not clearly labeled juris-
dictional, is not located in a jurisdiction-granting provision,
and admits of congressionally authorized exceptions.” Reed
Elsevier, 130 S. Ct. at 1247. We overrule our statements to
the contrary in Blanchard, 420 F.3d at 920-21; Witte, 197
F.3d at 1274; and Dreher, 22 F.3d at 231, and join the Sev-
9744 PAYNE v. PENINSULA SCHOOL DISTRICT
enth and Eleventh Circuits. Mosely, 434 F.3d at 533; N.B. by
D.G., 84 F.3d at 1379; see also Coleman v. Newburgh
Enlarged City Sch. Dist., 503 F.3d 198, 203 (2d Cir. 2007)
(noting that the Second Circuit “ha[s] been equivocal in [its]
discussion of the IDEA’s exhaustion requirement, acknowl-
edging [its] statement in [Polera v. Board of Education, 288
F.3d 478, 483, 488-90 (2d Cir. 2002),] that the failure to
exhaust IDEA administrative remedies deprives a court of
subject matter jurisdiction but also referring to the IDEA’s
exhaustion requirements as the defendants’ ‘non-exhaustion
defense.’ ” (internal quotation marks and alterations omit-
ted)). Our prior statements were well-intentioned even if not
fully considered. We think our misstep well illustrates the
Supreme Court’s observation that “[c]ourts — including this
Court — have sometimes mischaracterized claim-processing
rules or elements of a cause of action as jurisdictional limita-
tions, particularly when that characterization was not central
to the case, and thus did not require close analysis.” Reed
Elsevier, 130 S. Ct. at 1243-44.
III
We now turn to the merits. We hold that the IDEA’s
exhaustion provision applies only in cases where the relief
sought by a plaintiff in the pleadings is available under the
IDEA. Non-IDEA claims that do not seek relief available
under the IDEA are not subject to the exhaustion requirement,
even if they allege injuries that could conceivably have been
redressed by the IDEA. We overrule our previous cases to the
extent that they state otherwise and conclude that, although
the district court properly dismissed Payne’s IDEA-based
§ 1983 claim, it should not have dismissed her non-IDEA
claims on exhaustion grounds.
A
The IDEA was enacted to protect children with disabilities
and their parents by requiring participating states to provide
PAYNE v. PENINSULA SCHOOL DISTRICT 9745
“a free appropriate public education [(‘FAPE’)] that empha-
sizes special education and related services designed to meet
[disabled students’] unique needs and prepare them for further
education, employment, and independent living.” 20 U.S.C.
§ 1400(d)(1)(A). Participating states must provide eligible
students with a “free appropriate public education,” id.
§ 1412(a)(1)(A), that, among other things, conforms to a
proper IEP, see id. §§ 1412(a)(4), 1436(d), and ensures that
disabled students “[t]o the maximum extent appropriate, . . .
are educated with children who are not disabled,” id.
§ 1412(a)(5)(A). Children with disabilities and their parents
are provided with the extensive procedural protections set out
in 20 U.S.C. § 1415. In particular, the statute requires states
to provide aggrieved parties with the opportunity to mediate
their disputes, id. § 1415(e), to secure an impartial due pro-
cess hearing to resolve certain differences with state agencies,
id. § 1415(f), and to appeal any decision and findings to the
state educational agency, id. § 1415(g). As we have stated
above, the exhaustion provision requires parties to avail them-
selves of these procedures (and the corresponding local
appeals process) before resorting to the courts whenever they
“seek[ ] relief that is also available under [the IDEA].” Id.
§ 1415(l).
The exhaustion requirement is found in § 1415(l). This pro-
vision is worth quoting again, in full:
Nothing in this chapter shall be construed to restrict
or limit the rights, procedures, and remedies avail-
able under the Constitution, the Americans with Dis-
abilities Act of 1990 [42 U.S.C.A. § 12101 et seq.],
title V of the Rehabilitation Act of 1973 [29
U.S.C.A. § 791 et seq.], or other Federal laws pro-
tecting the rights of children with disabilities, except
that before the filing of a civil action under such
laws seeking relief that is also available under this
subchapter, the procedures under subsections (f) and
(g) shall be exhausted to the same extent as would be
9746 PAYNE v. PENINSULA SCHOOL DISTRICT
required had the action been brought under this sub-
chapter.
20 U.S.C. § 1415(l) (alterations in original). We begin with a
few observations. First, this provision is titled “Rule of con-
struction.” Id. It thus provides us with a rule for harmonizing
the IDEA with overlapping “rights, procedures, and reme-
dies” found in other laws. Second, the rule of construction
tells us in very plain terms that the IDEA must be construed
to coexist with other remedies, including remedies available
under the Constitution, the Americans with Disabilities Act
(“ADA”), the Rehabilitation Act, and “other Federal laws.”
The principal remedy available for violations of the Constitu-
tion is 42 U.S.C. § 1983, which creates an action in law or
suit in equity against any person who, acting under color of
state law, deprives the plaintiff of “any rights, privileges, or
immunities secured by the Constitution and laws.” Like the
IDEA, the ADA and the Rehabilitation Act create their own
private causes of action to enforce those acts, see 42 U.S.C.
§ 12117; 29 U.S.C. § 794a, although all three acts have been
enforced under § 1983 as well. See, e.g., Marie O. v. Edgar,
131 F.3d 610, 622 (7th Cir. 1997); K.M. ex rel. D.G. v. Hyde
Park Cent. Sch. Dist., 381 F. Supp. 2d 343, 361-63 (S.D.N.Y.
2005); BD v. DeBuono, 130 F. Supp. 2d 401, 427-29
(S.D.N.Y. 2000). But see Blanchard v. Morton Sch. Dist., 509
F.3d 934, 938 (9th Cir. 2007) (holding that § 1983 does not
authorize actions predicated on violations of the IDEA).
Third, the exhaustion provision in § 1415(l) is framed as an
exception to the general rule of construction that “[n]othing in
[the IDEA] shall be construed to restrict” the rights, proce-
dures, and remedies available under § 1983, the ADA, or the
Rehabilitation Act. In other words, remedies available under
the IDEA, by rule, are in addition to the remedies parents and
students have under other laws. Indeed, § 1415 makes it clear
that Congress understood that parents and students affected by
the IDEA would likely have issues with schools and school
personnel that could be addressed — and perhaps could only
be addressed — through a suit under § 1983 or other federal
PAYNE v. PENINSULA SCHOOL DISTRICT 9747
laws. Finally, we observe that § 1415(l) requires exhaustion
of IDEA remedies only when the civil action brought under
§ 1983, the ADA, the Rehabilitation Act, or other federal laws
“seek[s] relief that is also available” under the IDEA. Thus,
the “except” clause requires that parents and students exhaust
the remedies available to them under the IDEA before they
seek the same relief under other laws.
Our decision in Witte is consistent with these principles.
There, we recognized that the IDEA’s exhaustion provision
does not encompass every challenge concerning a school’s
treatment of a disabled student. The Wittes complained that
school officials forced their disabled child to eat oatmeal (to
which he was allergic) occasionally mixed with his own
vomit, choked him, and subjected him to “take-downs” and
other physical abuses. Witte, 197 F.3d at 1273. These actions
were punitive responses to the child’s bodily tics that resulted
from Tourette’s Syndrome. Id. The Wittes eventually agreed
with the school district to transfer their son to another school
in the same district and then sued for compensatory and puni-
tive damages under 42 U.S.C. § 1983, the Rehabilitation Act,
the ADA, and state tort law. Id. at 1273-74. The district court
granted the defendants summary judgment on the ground that
the Wittes had failed to exhaust their administrative remedies
under the IDEA. Id. at 1274.
We reversed. We held that the IDEA’s exhaustion provi-
sion did not apply to plaintiffs who claimed that school offi-
cials had inflicted physical and emotional abuse on their child,
id. at 1273, when their complaint sought only retrospective
damages because the parties had already resolved their educa-
tional issues through “the remedies that are available under
the IDEA,” id. at 1276. We emphasized that because mone-
tary damages were ordinarily unavailable under the IDEA, the
plaintiffs were “not seeking relief that is also available under
the IDEA.” Id.; see also id. at 1276 (“The remedies available
under the IDEA would not appear to be well-suited to
addressing past physical injuries adequately; such injuries
9748 PAYNE v. PENINSULA SCHOOL DISTRICT
typically are remedied through an award of monetary dam-
ages.”). Accordingly, “under the plain words of the statute,
exhaustion of administrative remedies is not required.” Id. at
1275.
We subsequently took a more muscular view of § 1415(l)
in Robb, holding “that when a plaintiff has alleged injuries
that could be redressed to any degree by the IDEA’s adminis-
trative procedures and remedies, exhaustion of those remedies
is required.” Robb, 308 F.3d at 1048. Robb involved a student
who was diagnosed with cerebral palsy and was regularly
removed from her classroom “for extended ‘peer-tutoring’ by
junior high school and high school students without the super-
vision of a certified teacher.” Id. This tutoring took place on
the floor of a dim hallway without a chair or desk. Id. No
additional abuse was alleged. Taking guidance from Witte, the
Robbs limited their prayer for relief to money damages, but
specified that they were for “lost educational opportunities
and emotional distress, humiliation, embarrassment, and psy-
chological injury.” Robb, 308 F.3d at 1048 (internal quotation
marks omitted). The district court held that the Robbs had not
exhausted their administrative remedies. Id.
We affirmed in a divided decision. The panel majority
expressed concern that parents might “be permitted to opt out
of the IDEA simply by making a demand for money or ser-
vices the IDEA does not provide.” Id. at 1050. Noting that
there appeared to be a division of authority among the circuits
— the Third Circuit took the position that exhaustion was
unnecessary in a suit seeking only damages, while the First,
Sixth, Seventh, Tenth, and Eleventh Circuits held that limiting
requested relief to damages alone was not enough to avoid the
exhaustion requirement of the IDEA3 — we held “that a plain-
3
Notably, it is no longer clear that there is a circuit split on this issue.
In A.W. v. Jersey City Pub. Schs., 486 F.3d 791 (3d Cir. 2007) (en banc),
the Third Circuit did not merely backtrack from its position that an IDEA
claim need not be exhausted if the plaintiff only sought money damages;
it went further and concluded that IDEA rights could not be vindicated
through a § 1983 suit at all. Id. at 798-99. In doing so, it overruled W.B.
v. Matula, 67 F.3d 484 (3d Cir. 1995), which we cited in Robb to demon-
strate the circuit split.
PAYNE v. PENINSULA SCHOOL DISTRICT 9749
tiff cannot avoid the IDEA’s exhaustion requirement merely
by limiting a prayer for relief to money damages.” Id. at 1049.
We then adopted the rule that the IDEA’s exhaustion require-
ment applied to any case in which a plaintiff “alleged injuries
that could be redressed to any degree by the IDEA’s adminis-
trative procedures and remedies.” Id. at 1050 (emphasis added).4
In a number of subsequent cases, we have reaffirmed Robb’s
“injury-centered” approach. See, e.g., J.L. v. Mercer Island
Sch. Dist., 592 F.3d 938, 952 (9th Cir. 2010); Kutasi v. Las
Virgenes Unified Sch. Dist., 494 F.3d 1162, 1163-64 (9th Cir.
2007); Blanchard, 420 F.3d at 921.
Furthermore, the Seventh and Tenth Circuits have adopted
“injury-centered” tests similar to the one we adopted in Robb.
See, e.g., McCormick v. Waukegan Sch. Dist. No. 60, 374
F.3d 564, 568-69 (7th Cir. 2004) (citing Robb, 308 F.3d at
1054, and holding that exhaustion can only be avoided “if the
plaintiff has alleged injuries that cannot be redressed to any
degree by the IDEA’s administrative procedures and reme-
dies” (internal quotation marks omitted)); Cudjoe v. Indep.
Sch. Dist. # 12, 297 F.3d 1058, 1066 (10th Cir. 2002) (“[T]he
dispositive question generally is whether the plaintiff has
alleged injuries that could be redressed to any degree by the
IDEA’s administrative procedures and remedies. If so,
exhaustion of those remedies is required.” (alteration in origi-
nal) (internal quotation marks omitted)).
Other circuits have generally agreed that plaintiffs cannot
evade the exhaustion requirement simply by limiting their
4
Judge Berzon dissented to emphasize that “the issue is whether the
relief plaintiffs seek is available” under the IDEA. Robb, 308 F.3d at 1056
(Berzon, J., dissenting). She expressed the view that “[i]nsofar as the
plaintiffs here are seeking relief that is not educationally-oriented (here,
compensation for past emotional harms) and is not present- or future-
focused, they are not seeking relief available under this statute. As this
court and others have made clear, damages to compensate for past pain
and suffering do not fit into the model of relief available under the IDEA’s
administrative remedies.” Id.
9750 PAYNE v. PENINSULA SCHOOL DISTRICT
prayer for relief to a request for damages. See, e.g., Frazier
v. Fairhaven Sch. Comm., 276 F.3d 52, 64 (1st Cir. 2002)
(“[W]e hold that plaintiffs who bring an IDEA-based claim
under 42 U.S.C. § 1983, in which they seek only money dam-
ages, must exhaust the administrative process available under
the IDEA as a condition precedent to entering a state or fed-
eral court.”); Covington v. Knox Cnty. Sch. Sys., 205 F.3d
912, 917 (6th Cir. 2000) (“[W]e agree with those courts that
have decided that a mere claim for money damages is not suf-
ficient to render exhaustion of administrative remedies unnec-
essary . . . .”); N.B. by D.G. v. Alachua Cnty. Sch. Bd., 84 F.3d
1376, 1379 (11th Cir. 1996) (holding that plaintiffs cannot
avoid the exhaustion requirement by limiting their requested
relief to money damages because otherwise, “future litigants
could avoid the exhaustion requirement simply by asking for
relief that administrative authorities could not grant”). How-
ever, these courts have not articulated a comprehensive stan-
dard for determining when exactly the exhaustion requirement
applies.
B
We now clarify and restate the proper method for resolving
IDEA exhaustion cases, and we overrule Robb to the extent
it is inconsistent with our decision. The IDEA’s exhaustion
requirement applies to claims only to the extent that the relief
actually sought by the plaintiff could have been provided by
the IDEA. In other words, we reject the “injury-centered”
approach developed by Robb and hold that a “relief-centered”
approach more aptly reflects the meaning of the IDEA’s
exhaustion requirement.
1
Relying on Robb, the panel majority focused its analysis on
the question of whether the injuries suffered by D.P. more
closely resembled the force-feeding and take-downs alleged
in Witte or the isolated peer tutoring alleged in Robb. Payne,
PAYNE v. PENINSULA SCHOOL DISTRICT 9751
598 F.3d at 1127. In other words, the panel majority
employed an injury-centered approach and concluded that
because Payne was alleging misconduct that in theory could
have been redressed by resorting to administrative remedies
under the IDEA, she could not seek any redress for that mis-
conduct in the courts until she had exhausted those adminis-
trative remedies. In a way, our approach in Robb treated
§ 1415(l) as a quasi-preemption provision, requiring adminis-
trative exhaustion for any case that falls within the general
“field” of educating disabled students.
[5] For reasons we have explained, this approach is incon-
sistent with the IDEA’s exhaustion provision. The statute
specifies that exhaustion is required “before the filing of a
civil action . . . seeking relief that is also available under [the
IDEA].” 20 U.S.C. § 1415(l) (emphasis added). This suggests
that whether a plaintiff could have sought relief available
under the IDEA is irrelevant — what matters is whether the
plaintiff actually sought relief available under the IDEA. In
other words, when determining whether the IDEA requires a
plaintiff to exhaust, courts should start by looking at a com-
plaint’s prayer for relief and determine whether the relief
sought is also available under the IDEA. If it is not, then it is
likely that § 1415(l) does not require exhaustion in that case.
[6] We agree with much of the approach proposed by
amicus United States Department of Justice. Under a relief-
centered approach, § 1415(l) requires exhaustion in three situ-
ations. First, exhaustion is clearly required when a plaintiff
seeks an IDEA remedy or its functional equivalent. For exam-
ple, if a disabled student files suit under the ADA and chal-
lenges the school district’s failure to accommodate his special
needs and seeks damages for the costs of a private school edu-
cation, the IDEA requires exhaustion regardless of whether
such a remedy is available under the ADA, or whether the
IDEA is mentioned in the prayer for relief. Again, in that case
the “relief . . . is also available” under the IDEA, see 20
U.S.C. § 1412(a)(10), and the student must exhaust his IDEA
9752 PAYNE v. PENINSULA SCHOOL DISTRICT
remedies before seeking parallel relief under the ADA. Sec-
ond, the IDEA requires exhaustion in cases where a plaintiff
seeks prospective injunctive relief to alter an IEP or the edu-
cational placement of a disabled student. As with the previous
point, § 1415(l) bars plaintiffs from seeking relief that is
available to them under the IDEA, even if the plaintiffs have
urged the court to craft the remedy from a different federal
statute. Third, exhaustion is required in cases where a plaintiff
is seeking to enforce rights that arise as a result of a denial of
a free appropriate public education, whether pled as an IDEA
claim or any other claim that relies on the denial of a FAPE
to provide the basis for the cause of action (for instance, a
claim for damages under § 504 of the Rehabilitation Act of
1973, 29 U.S.C. § 794, premised on a denial of a FAPE).
Such claims arise under either the IDEA (if the IDEA viola-
tion is alleged directly) or its substantive standards (if a § 504
claim is premised on a violation of the IDEA), so the relief
follows directly from the IDEA and is therefore “available
under this subchapter.” 20 U.S.C. § 1415(l). We think that
these situations encompass cases in which “[b]oth the genesis
and the manifestations of the problem are educational.” Blan-
chard, 420 F.3d at 921 (quoting Charlie F. v. Bd. of Educ.,
98 F.3d 989, 993 (7th Cir. 1996)) (alteration in original).
This approach is consistent with our understanding that the
exhaustion provision is designed to “allow[ ] for the exercise
of discretion and educational expertise by state and local
agencies, afford[ ] full exploration of technical educational
issues, further[ ] development of a complete factual record,
and promote[ ] judicial efficiency by giving . . . agencies the
first opportunity to correct shortcomings in their educational
programs for disabled children.” Hoeft, 967 F.2d at 1303. The
exhaustion requirement is intended to prevent courts from act-
ing as ersatz school administrators and making what should
be expert determinations about the best way to educate dis-
abled students. At the same time, it is not intended to tempo-
rarily shield school officials from all liability for conduct that
violates constitutional and statutory rights that exist indepen-
PAYNE v. PENINSULA SCHOOL DISTRICT 9753
dent of the IDEA and entitles a plaintiff to relief different
from what is available under the IDEA. Our decision reflects
this limited purpose of the IDEA’s exhaustion requirement.
2
The legislative history of 20 U.S.C. § 1415(l) supports our
understanding of its meaning. The exhaustion provision was
included as part of the Handicapped Children’s Protection Act
of 1986, Pub. L. No. 99-372, § 3, and followed the Supreme
Court’s decision in Smith v. Robinson, 468 U.S. 992 (1984).
See S. Rep. No. 99-112, at 2 (1985). In Smith, the Court held
that the Education of the Handicapped Act (“EHA”) — the
IDEA’s predecessor statute — served as “the exclusive ave-
nue through which a plaintiff may assert an equal protection
claim to a publicly financed special education.” 468 U.S. at
1009. In doing so, the Court held that Congress intended to
eliminate a plaintiff’s ability to seek relief for that injury
under 42 U.S.C. § 1983. Id. at 1012-13. The language now
codified in § 1415(l) was enacted in response to that decision.
See Pub. L. No. 99-372, § 3 (1986). Congress specifically
sought to “make[ ] it clear that when parents choose to file
suit under another law that protects the rights of handicapped
children . . . , if that suit could have been filed under the EHA,
then parents are required to exhaust EHA administrative rem-
edies.” S. Rep. No. 99-112, at 15 (1985) (emphasis added).
Indeed, a number of cases decided shortly after § 1415(l) was
enacted understood it to implement Congress’s will that the
provision “reaffirm . . . the viability of . . . other statutes as
separate vehicles for ensuring the rights of handicapped chil-
dren.” Digre v. Roseville Schs. Indep. Dist. No. 623, 841 F.2d
245, 250 (8th Cir. 1988); see also Mrs. W. v. Tirozzi, 832 F.2d
748, 754 (2d Cir. 1987) (characterizing § 1415(l) as a “nonex-
clusivity provision”).
3
[7] The approach we have adopted yields a number of
implications. First, because our approach emphasizes the
9754 PAYNE v. PENINSULA SCHOOL DISTRICT
relief sought rather than the types of injuries alleged, we find
no merit to the distinction we have previously drawn between
physical and non-physical injuries. See Robb, 308 F.3d at
1052. Although physical injuries might bolster a plaintiff’s
likelihood of success in a case, there is no reason to treat con-
stitutional violations that do not result in physical injuries dif-
ferently under the exhaustion provision. See Blanchard, 420
F.3d at 922 (holding that the IDEA does not require exhaus-
tion when the plaintiff’s “emotional distress injuries . . . could
not be remedied through the educational remedies available
under the IDEA”).
[8] We also hold that in cases where a plaintiff is seeking
money damages, courts should not engage in the depth of
speculation we conducted in Robb. In that case, we inferred
that the Robbs sought money “[p]resumably at least in part to
pay for services (such as counseling and tutoring) that will
assist their daughter’s recovery of self-esteem and promote
her progress in school. Damages could be measured by the
cost of these services. Yet the school district may be able . . .
to provide these services in kind under the IDEA.” Robb, 308
F.3d at 1050. We no longer think that such speculation is
appropriate. Although we agree with the proposition that “a
plaintiff cannot avoid the IDEA’s exhaustion requirement
merely by limiting a prayer for relief to money damages,” id.
at 1049, we do not think, especially in the context of motions
to dismiss or summary judgment motions, that it is proper for
courts to assume that money damages will be directed toward
forms of relief that would be available under the IDEA.
[9] At the same time, plaintiffs cannot avoid exhaustion
through artful pleading. If the measure of a plaintiff’s dam-
ages is the cost of counseling, tutoring, or private schooling
— relief available under the IDEA — then the IDEA requires
exhaustion. In such a case, the plaintiffs are seeking the same
relief, even if they are willing to accept cash in lieu of ser-
vices in kind. Accordingly, the exhaustion requirement would
also apply in cases where a plaintiff is arguing that a state’s
PAYNE v. PENINSULA SCHOOL DISTRICT 9755
failure to provide specialized programs for disabled students
violates the Equal Protection Clause of the Fourteenth
Amendment and seeks damages to fund a private education
(without mentioning the IDEA). It would also apply to cases
in which the plaintiff requests damages to compensate for
costs associated with unilaterally altering a disabled student’s
educational placement, since such a request would also be
“seeking relief that is also available under” the IDEA. 20
U.S.C. § 1415(l). In other words, to the extent that a request
for money damages functions as a substitute for relief under
the IDEA, a plaintiff cannot escape the exhaustion require-
ment simply by limiting her prayer for relief to such damages.
However, to the extent that a plaintiff has laid out a plausible
claim for damages unrelated to the deprivation of a FAPE, the
IDEA does not require her to exhaust administrative remedies
before seeking them in court.
Finally, we do not believe that the exhaustion requirement
is triggered simply because the challenged conduct constitutes
“at least . . . an attempt at an educational program.” See
Payne, 598 F.3d at 1127 (quoting Robb, 308 F.3d at 1052
n.3). As amicus Department of Justice points out, whether a
school official’s action is a reasonable “attempt at an educa-
tional program” may comprise the very heart of a dispute
about the constitutionality of that action. Thus, for example,
if a student alleges a Fourth Amendment violation, the school
may answer that any search or seizure was reasonably related
to the school’s educational programs; but the student is not
deprived of a § 1983 remedy merely because the conduct took
place in the context of educating the disabled. Particularly in
contexts where courts are expected to draw inferences in
favor of plaintiffs, we do not think it is appropriate to make
what are essentially merits determinations in the context of
evaluating the need for exhaustion. Nothing in the IDEA pro-
tects a school from non-IDEA liability simply because it was
making a good-faith attempt to educate its disabled students.
If the school’s conduct constituted a violation of laws other
9756 PAYNE v. PENINSULA SCHOOL DISTRICT
than the IDEA, a plaintiff is entitled to hold the school
responsible under those other laws.
4
The National School Boards Association (“NSBA”), as
amicus, suggests that our conclusion is at odds with the
Supreme Court’s decision in Booth v. Churner, 532 U.S. 731
(2001), a case in which the Court construed the exhaustion
requirement in the PLRA, 42 U.S.C. § 1997e(a). Indeed,
Booth’s language factored “strongly” in Robb’s conclusion,
since we noted in that case that “[t]he PLRA’s exhaustion
requirement is framed in language similar to the IDEA’s.”
Robb, 308 F.3d at 1050-51 (comparing “administrative reme-
dies . . . available” under the PLRA, 42 U.S.C. § 1997e(a), to
“relief that is also available” under the IDEA, 20 U.S.C.
§ 1415(l)). In Booth, the Court concluded that the PLRA
“mandate[s] exhaustion . . . regardless of the relief offered
through administrative procedures.” 532 U.S. at 741. We held
in Robb that, applied to the IDEA, this language meant that
“a plaintiff must exhaust a mandatory administrative process
even if the precise form of relief sought is not available in the
administrative venue.” 308 F.3d at 1051. This wording sug-
gests that even if a plaintiff has available non-IDEA forms of
relief in addition to potential relief under the IDEA, the plain-
tiff must exhaust administrative remedies before pursuing any
of them. While this conclusion was correct in Booth, there are
important differences between the PLRA and the IDEA, and
Robb incorrectly applied the same conclusion to the IDEA.
The PLRA’s exhaustion requirement specifies that “[n]o
action shall be brought . . . until such administrative remedies
as are available are exhausted.” 42 U.S.C. § 1997e(a) (empha-
sis added). The language is unequivocal and makes no refer-
ence to parallel forms of relief. Booth sensibly interpreted the
prohibition on bringing an action to mean that the PLRA
restricted unexhausted prisoner litigation altogether. By con-
trast, the IDEA’s exhaustion provision applies only to “the fil-
ing of a civil action . . . seeking relief that is also available
PAYNE v. PENINSULA SCHOOL DISTRICT 9757
under [the IDEA]”; otherwise, the IDEA does not “restrict or
limit the rights, procedures, and remedies” available under
§ 1983, the ADA, the Rehabilitation Act, or other federal
laws. 20 U.S.C. § 1415(l). The difference between these two
statutes is critical — unlike the PLRA, the IDEA requires
exhaustion only from plaintiffs who are pursuing non-IDEA
claims that compel the same forms of relief as the IDEA.
The NSBA also appeals to the inevitability of parent-school
disputes and argues that “[r]elaxing the IDEA’s administra-
tive exhaustion requirement does violence” to Congress’s
goal of expediting the resolution of these disputes. We are
mindful of “the general rule that parties exhaust prescribed
administrative remedies before seeking relief from the federal
courts.” McCarthy v. Madigan, 503 U.S. 140, 144-45 (1992).
The general rule is a salutary one allowing agencies to exer-
cise their expertise, to correct their own errors, and to provide
relief that may be both swifter and more satisfactory than
relief available through more formal litigation. Even where
the parties ultimately file suit in federal court after exhausting
their administrative remedies, we may benefit from a process
that has developed the factual record and narrowed the issues
contested by the parties.
The reasons for administrative exhaustion do not change
the fact that the IDEA’s exhaustion requirement is not as
broad as the NSBA urges. Moreover, the NSBA’s reading
would actually place disabled students in a disadvantaged
position relative to students without special needs. As Payne
accurately notes, a student who had no disability — and there-
fore had no need for an IEP — would be able to challenge the
constitutionality of his teacher’s confinement procedures
without first resorting to administrative procedures. The stu-
dent could simply advance a § 1983 claim alleging violations
of his constitutional rights. No exhaustion would be required.
If a disabled student would be able to make out a similarly
meritorious constitutional claim — one that need not refer-
ence his disability at all — it is odd to suggest that the IDEA
9758 PAYNE v. PENINSULA SCHOOL DISTRICT
would impose additional qualifications to sue, simply because
he had a disability.
C
We have carefully examined the criticism raised by the dis-
sent and, with respect, do not think such criticism alters our
views.
1
The dissent argues that our approach “largely nullifies
§ 1415(l) by providing plaintiffs with an easy end-run around
the exhaustion requirement,” because exhaustion would not
be required “[s]o long as a complaint which seeks monetary
damages does not mention a specific provision of the IDEA,
or demand a remedy specifically provided by it.” Dissenting
Op. at 9779. Nothing in our analysis “nullifies” § 1415(l). If
a plaintiff does not seek relief based on an IDEA right, and
does not seek a remedy provided by the IDEA, then she is not
bound by the IDEA’s prerequisites for litigation. This does
not “nullif[y] § 1415(l)” — it simply limits the provision to
its intended scope.
Indeed, the dissent seems particularly concerned with the
fact that our approach “elevates the form of plaintiffs’ plead-
ings over their substance,” Dissenting Op. at 9777,5 and facili-
tates “gamesmanship,” Dissenting Op. at 9772. But this worry
is misplaced. In each case where a defendant raises § 1415(l)
5
The dissent contends that we improperly focus on the pleadings
because this appeal reaches us from a grant of summary judgment, in
which the district court considered the evidence presented by the parties.
Dissenting Op. at 9777-78 n.5. However, we focus on the pleadings
because initially they determine whether the plaintiff is actually “seeking
relief” available under the IDEA. Whether Payne can provide evidence
supporting her claim of entitlement to such relief is a separate question —
one that the district court did not address (because it had no need to) in
its order granting summary judgment.
PAYNE v. PENINSULA SCHOOL DISTRICT 9759
as a complete or partial defense, two possibilities arise. First,
a court might decide that a complaint states a facially merito-
rious claim that does not either rely on rights created by the
IDEA or seek remedies available under the IDEA. If a com-
plaint can stand on its own without reference to the IDEA, it
is difficult to see why the IDEA should compel its dismissal.
It is hardly an “nullification of the congressionally mandated
exhaustion requirement,” Dissenting Op. at 9771, to say that
a complaint that presents sound claims wholly apart from the
IDEA need not comport with the IDEA’s requirements. Even
though such a case might “subject school districts to civil lia-
bility for money damages, without first giving school districts
the opportunity to remedy the plaintiff’s injuries under the
IDEA,” Dissenting Op. at 9772, this will only be because
some other governing law authorizes such liability. The dis-
sent’s suggestion that this constitutes “gamesmanship” is puz-
zling. The fact that the plaintiff could have added IDEA
claims to an otherwise sound complaint (and thus subjected
themselves to the exhaustion requirement), but chose not to,
should not detract from the viability of that complaint.
Of course, a plaintiff might try to evade the exhaustion
requirement by relying on “artful” allegations. This is the situ-
ation the dissent appears to worry most about. But our
approach still requires exhaustion in these cases. For example,
the dissent provides the example of “a disabled child who
seeks monetary damages because a school district’s imple-
mentation of some educational program resulted in a claimed
failure to adequately instruct him in reading.” Dissenting Op.
at 9777-78. The dissent interprets our opinion as allowing
such a claim to proceed without exhaustion so long as the
complaint “does not mention a specific provision of the
IDEA.” Dissenting Op. at 9779. But where the claim arises
only as a result of a denial of a FAPE, whether under the
IDEA or the Rehabilitation Act, exhaustion is clearly required
no matter how the claim is pled. To use the dissent’s example,
a claim for failure to adequately instruct a student in reading
can arise only under the IDEA because there is no other fed-
9760 PAYNE v. PENINSULA SCHOOL DISTRICT
eral cause of action for such a claim. See Plyler v. Doe, 457
U.S. 202, 221 (1982) (finding no enforceable federal constitu-
tional right to a public education); cf. Blanchard v. Morton
Sch. Dist., 509 F.3d 934, 938 (9th Cir. 2007) (holding that
§ 1983 does not authorize suits for IDEA violations). The
claim asserted here — for knowing and intentional infliction
of excessive force — is cognizable under the Fourth Amend-
ment and exists separate and apart from the denial of a FAPE,
irrespective of the fact that the alleged excessive punishment
took place in a special education classroom. See, e.g., Pre-
schooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175,
1181-82 (9th Cir. 2007) (holding that clearly established law
under the Fourth Amendment prohibits “excessive physical
abuse of schoolchildren”); Doe ex rel. Doe v. Haw. Dept. of
Educ., 334 F.3d 906, 909 (9th Cir. 2003). Although we would
not doubt, for example, that an unconstitutional beating might
interfere with a student enjoying the fruits of a FAPE, the
resulting excessive force claim is not, for that reason alone, a
claim that must be brought under the IDEA.
2
The dissent nonetheless contends that § 1415(l) requires
exhaustion whenever the IDEA’s administrative procedures
“may lead to the provision of curative or palliative ‘related
services.’ ” Dissenting Op. at 9774. Here, for example, the
dissent suggests that the school district could have provided
“intensive individualized tutoring” or “[p]sychological coun-
seling” to correct both the past and ongoing aftereffects suf-
fered by D.P. as a result of Coy’s use of the isolation room.
Dissenting Op. at 9775. The dissent therefore concludes that
because Payne is seeking damages “for the past and ongoing
academic and psychological aftereffects of D.P.’s claimed
mistreatment of the school district,” exhaustion is required.
Dissenting Op. at 9776 (emphasis omitted).
This approach misreads § 1415(l) and is at odds with Witte.
First, it is not clear that the IDEA actually authorizes relief
PAYNE v. PENINSULA SCHOOL DISTRICT 9761
designed to correct the effects of misconduct by the school.
The dissent suggests that “the ‘related services’ provided
under the IDEA — academic services, psychological counsel-
ing and therapy — may cure, alleviate, or mitigate [injuries
caused by a school district’s wrongful act or omission].” Dis-
senting Op. at 9774. But the IDEA defines “related services”
to include “transportation, and such developmental, correc-
tive, and other supportive services . . . as may be required to
assist a child with a disability to benefit from special educa-
tion, and includes the early identification and assessment of
disabling conditions in children.” 20 U.S.C. § 1401(26)(A)
(emphasis added). In other words, it is far from clear that the
IDEA authorizes the provision of services designed to correct
injuries caused by the school’s past violation of other laws.
Furthermore, even if such services are available under the
IDEA, the dissent’s proposal is plainly too broad. For exam-
ple, the student in Witte could plausibly have received some
psychological counseling and therapy that might have cor-
rected or mitigated some of the harms resulting from the
abuse he suffered at school. See Witte, 197 F.3d 1272-73.
Under the dissent’s view, the fact that Witte sought remedies
only for physical injuries without seeking relief under the
IDEA could easily be characterized as “gamesmanship” that
should be set aside in favor of the exhaustion requirement.
The dissent’s approach would necessarily require such specu-
lation, even in fact patterns identical to the one in Witte. The
dissent would hold that if psychological counseling could cor-
rect a student’s injuries, then exhaustion is required even if
the injuries were caused by a non-IDEA violation for which
federal law authorizes remedies apart from the IDEA.
We think such an approach would be mistaken. If a plain-
tiff can identify a school district’s violation of federal laws
other than the IDEA and can point to an authorized remedy
for that violation unavailable under the IDEA, then there is no
reason to require exhaustion under § 1415(l). The dissent’s
approach would effectively refashion § 1415(l) from a provi-
9762 PAYNE v. PENINSULA SCHOOL DISTRICT
sion designed to facilitate the coexistence of the IDEA with
other forms of relief into one designed to preempt all cases
involving the mistreatment of disabled students by a school.
We do not think that the IDEA’s exhaustion requirement was
intended to penalize disabled students for their disability. This
is not what § 1415(l) says, and we think it is not what Con-
gress intended.
IV
A
[10] We now apply our approach to Payne’s case and sup-
ply instructions for the district court. Payne alleged several
§ 1983 claims, as well as Washington state tort actions for
negligence and outrage. The district court did not specifically
address each claim and explain why exhaustion was required
for each. Relying on Robb, it simply stated that “because
plaintiffs’ injuries could be remedie[d] to some degree by the
IDEA’s administrative procedures and remedies, the plaintiffs
must exhaust those administrative remedies before filing
suit.” However, in light of the new standards announced in
this decision, the district court on remand should permit
Payne to amend her complaint in order to flesh out her spe-
cific claims and enable the court to determine which claims
require IDEA exhaustion and which do not.
[11] The district court should then provide the defendants
with an opportunity to seek dismissal of some or all of
Payne’s claims on the ground that they require administrative
exhaustion. The district court need not wait to consider the
applicability of the exhaustion requirement until the record is
complete and a motion for summary judgment has been filed.
We have previously held that a non-jurisdictional exhaustion
requirement can be cited defensively “as a matter in abate-
ment, . . . subject to an unenumerated Rule 12(b) motion
rather than a motion for summary judgment.” Wyatt v. Ter-
hune, 315 F.3d 1108, 1119 (9th Cir. 2003) (collecting cases).
PAYNE v. PENINSULA SCHOOL DISTRICT 9763
This is because, as a general matter, “summary judgment is on
the merits, whereas dismissal of an action on the ground of
failure to exhaust administrative remedies is not on the mer-
its.” Id. Unlike a judgment on the merits, a plaintiff’s failure
to exhaust administrative remedies should result in a dismissal
without prejudice. See City of Oakland, Cal. v. Hotels.com
LP, 572 F.3d 958, 962 (9th Cir. 2009). Generally, in entertain-
ing an unenumerated motion to dismiss, “the court may look
beyond the pleadings and decide disputed issues of fact.”
Wyatt, 315 F.3d at 1120. We see little reason to depart from
this rationale in the context of the IDEA. The defendants
should be permitted to challenge Payne’s claims under the
exhaustion provision in an unenumerated motion to dismiss,
in the context of which the court may decide disputed issues
of fact to the extent they are necessary to deciding whether
her claims require exhaustion and, if so, whether she has ade-
quately exhausted available administrative remedies.
[12] Because § 1415(l) focuses on the “relief” sought in an
action,6 it is conceivable that a district court, in entertaining
a motion to dismiss, might not initially conclude that exhaus-
tion is required for certain claims, but might recognize subse-
quently that, in fact, the remedies being sought by a plaintiff
could have been provided by the IDEA. In such a case, we
think the defendants should be permitted to provide evidence
6
Section 1415(l)’s emphasis on the relief sought by a plaintiff makes it
different from the provisions we have previously addressed. For example,
in Wyatt, we interpreted the exhaustion requirement of the PLRA, which,
as we have discussed, differs from § 1415(l) in that it restricts the filing
of all pre-exhaustion actions — regardless of the relief sought — by pris-
oners. See 42 U.S.C. § 1997e(a). Likewise, Wyatt’s predicate cases typi-
cally involved arbitration requirements in private contracts, which, again,
restricted the filing of entire actions, regardless of the relief sought. See,
e.g., Inlandboatmens Union of Pac. v. Dutra Grp., 279 F.3d 1075, 1077
(9th Cir. 2002) (interpreting an agreement that required arbitration over
“[a]ny dispute concerning . . . wages, working conditions, or any other
matters referred to in this [contract]” (emphasis added)); Ritza v. Int’l
Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 367 (9th Cir.
1988).
9764 PAYNE v. PENINSULA SCHOOL DISTRICT
showing that the relief being sought by that plaintiff was, in
fact, available under the IDEA. Because the line between
damages available under other remedial sources and relief
available under the IDEA is less than clear, the finder of fact
should, in assessing remedies, be permitted to assess the evi-
dence and withhold those that are unexhausted and available
under the IDEA.
We recognize that this approach to exhaustion is somewhat
unconventional — it is anomalous to permit a party to raise
failure to exhaust as a defense in both a motion to dismiss and
at the fact-finding stage of a proceeding. But as we have
noted, § 1415(l) is itself an anomalous provision, since it does
not categorically preclude claims and instead requires a court
to examine the relief being sought by those claims and to
compare it to the relief available under the IDEA. Ultimately,
§ 1415(l) is designed to channel requests for a FAPE (and its
incidents) through IDEA-prescribed procedures. The proce-
dure we have outlined, while somewhat unusual, faithfully
executes Congress’s design.
B
After Payne is given the opportunity to amend her com-
plaint, the district court should examine each of Payne’s
requests for relief and determine whether the exhaustion
requirement applies to each. It may then dismiss any claims
that are governed by the exhaustion requirement, but it should
not dismiss any remaining claims.7 To provide additional
7
The dissent contends that we should nonetheless affirm the district
court’s grant of summary judgment (perhaps after deciding to construe it
as an unenumerated motion to dismiss) because “all of the facts presented
to the district court indicated the Paynes were seeking at least some relief
that was ‘also available’ under the IDEA.” Dissenting Op. at 9784.
Although we agree that “at least some” of the relief being sought by Payne
does require exhaustion, we do not think this requires the court to dismiss
Payne’s entire case. We see no reason to adopt such a “total exhaustion
PAYNE v. PENINSULA SCHOOL DISTRICT 9765
guidance concerning the new approach we have adopted, we
briefly discuss some of Payne’s federal claims in her current
complaint and the relief sought. We reiterate, of course, that
the district court should permit Payne to amend her complaint
before determining which aspects are barred by the exhaus-
tion requirement.
[13] The easiest claim to address is Payne’s claim that the
defendants violated D.P.’s “statutory rights under the IDEA.”
This claim is plainly barred by § 1415(l) because any relief
that Payne could obtain for violations of the IDEA is “relief
that is also available under [the IDEA]” itself. Section 1415(l)
is explicit that Payne must exhaust her IDEA remedies “to the
same extent as would be required had the action been brought
under [the IDEA].”
[14] With respect to the remaining § 1983 claims —
alleged violations of the Fourth, Eighth, and Fourteenth
Amendments — the complaint does not explicitly link each
constitutional claim to a form of requested relief. Rather, the
complaint seeks declaratory relief and general, special, and
punitive damages. Accordingly, it will be the task of the dis-
trict court on remand to determine whether the relief being
rule” similar to the one we apply in the context of habeas corpus. See Rose
v. Lundy, 455 U.S. 509, 522 (1982). The Supreme Court has observed that
“total exhaustion” is the exception rather than the rule. See Jones, 549
U.S. at 221 (holding that the PLRA’s exhaustion requirement did not
create a total exhaustion rule and noting that “[a]s a general matter, if a
complaint contains both good and bad claims, the court proceeds with the
good and leaves the bad. [O]nly the bad claims are dismissed; the com-
plaint as a whole is not. If Congress meant to depart from this norm, we
would expect some indication of that, and we find none.” (alteration in
original) (internal quotation marks omitted)).
Additionally, because we articulate a new standard today, it is appropri-
ate to remand the case to the district court to apply that standard. On
remand, the district court should allow the parties to amend their pleadings
and take any other steps necessary to apply this new approach.
9766 PAYNE v. PENINSULA SCHOOL DISTRICT
sought is “also available under” the IDEA. For example,
Payne’s request for “general damages for extreme mental suf-
fering and emotional distress” would not fall within the pur-
view of § 1415(l) if such damages are intended to compensate
Payne for injuries resulting from Fourth or Eighth Amend-
ment violations committed by school officials. Cf. Blanchard,
420 F.3d at 922 (holding that a request for damages for “emo-
tional distress injuries” did not require exhaustion because
they “could not be remedied through the educational remedies
available under the IDEA”). If, however, the “emotional dis-
tress” stems from Payne’s concern that D.P. was not receiving
an adequate education, then exhaustion is required.
To take a second example, the complaint alleges violations
of “procedural and substantive due process” under the Four-
teenth Amendment. If Payne seeks damages for the school
district’s failure to provide procedural due process for rights
conferred by the IDEA, the claims must be exhausted because
the IDEA provides procedural due process rights, 20 U.S.C.
§ 1415(f)-(g), and Payne cannot simply claim damages in
place of the process available to her. Similarly, we cannot dis-
cern the contours of Payne’s current substantive due process
claim, but if, for example, the claim is for deprivation of a
“free and appropriate education,” see 20 U.S.C.
§ 1412(a)(1)(A), then Payne seeks relief that is also available
under the IDEA, and she must exhaust her statutory remedies.8
Finally, we emphasize that our holding only removes cer-
tain procedural barriers preventing Payne from litigating her
non-IDEA claims. We have not been asked to, and do not,
decide whether any of these claims are meritorious.
8
We have no occasion here to opine on the existence or scope of such
a right, but even if there is such a right, Congress may require administra-
tive exhaustion of constitutional claims. See United States v. Clintwood
Elkhorn Mining Co., 553 U.S. 1, 9 (2008); Aircraft & Diesel Equip. Corp.
v. Hirsch, 331 U.S. 752, 773-74 (1947).
PAYNE v. PENINSULA SCHOOL DISTRICT 9767
V
[15] We hold that 20 U.S.C. § 1415(l) gives IDEA defen-
dants an opportunity to plead non-exhaustion as an affirma-
tive defense without limiting federal jurisdiction. We affirm
the district court’s dismissal of Payne’s IDEA-based claim
under 42 U.S.C. § 1983. We reverse its dismissal of her other
§ 1983 claims and remand for reconsideration under the stan-
dards we have articulated.
Costs on appeal are awarded to Payne.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.
CALLAHAN, Circuit Judge, concurring:
I concur in the opinion, but write separately because I share
the concern expressed by Judge Bea in his separate concur-
rence and dissent that our clarification of IDEA’s exhaustion
requirement, 20 U.S.C. § 1415(l), may be used to circumvent
the requirement. Even under the “relief-centered” approach
we adopt, it is not always possible to determine whether the
alleged damages are separate and distinct from those covered
by the IDEA. The solution to this dilemma may not lie solely
in the dismissal of an ambiguous complaint or cause of action
for failure to exhaust, but may be complemented by allowing
a defendant school district to assert, even at trial, that an
aspect of plaintiff’s claim of damages would have been
addressed in the administrative proceedings. Then, to the
extent that the defendant meets its burden of demonstrating
that the administrative processes would have addressed an
aspect of the alleged damages, plaintiff would be denied any
recovery for that aspect because that portion of his claim is
unexhausted.
9768 PAYNE v. PENINSULA SCHOOL DISTRICT
This approach differs in its critical aspects from the concept
of mitigation. Although the statute states that an action may
not be filed until administrative proceedings have been
exhausted, it may not always be possible to determine, either
at the pleadings stage or on a motion for summary judgment,
whether some aspect of the alleged damages would have been
addressed, in whole or in part, in administrative proceedings.
Accordingly, lest the purpose of the exhaustion requirement
be evaded, we should recognize that the scope of the un-
exhausted administrative proceedings may only become clear
at trial. Of course, at that point in time it is impossible to liter-
ally enforce the exhaustion requirement. The lawsuit has been
filed and presumably some aspects of the alleged damages
would not have been addressed in the available administrative
proceedings (otherwise the court would have already dis-
missed the action). In such a situation, the intent of the statute
is best served by denying the plaintiff any recovery for any
aspect of the alleged damages that the defendant school dis-
trict shows would have been addressed in the administrative
proceedings.
The school district has the burden of making the requisite
factual showing that an aspect of a damage claim would have
been addressed in the administrative proceedings, but it need
not show that the administrative proceedings would have pro-
duced a solution. Rather, if the school district shows, to the
requisite degree of certainty, that the administrative proceed-
ings would have addressed an aspect of the plaintiff’s alleged
damages, the plaintiff may not recover for that aspect. In
essence, if the factfinder determines that an aspect of plain-
tiff’s claim for damages would have been addressed by the
administrative proceedings, the plaintiff has failed to exhaust
the administrative procedures for that aspect. Accordingly, to
enforce the exhaustion provision, the plaintiff should be
barred from seeking damages for that aspect of his or her
claim. This is not mitigation in the sense of reducing damages
based on a plaintiff’s failure to prevent the harm, rather it
enforces a statutory prerequisite to the entitlement to collect
PAYNE v. PENINSULA SCHOOL DISTRICT 9769
the damages — engaging in the requisite pre-suit administra-
tive proceedings.
The allegations in this case allow for an illustration of this
approach. D.P.’s confinement to the “safe room” arose out of
the parties relationship based on the IDEA. However, his con-
finement was also arguably a violation of D.P.’s constitutional
rights irrespective of the parties’ relationship under the IDEA.
Our focus, however, is not on whether the alleged injury
resulted from a violation of the IDEA or of the child’s consti-
tutional rights, but whether the “relief sought is also available
under the IDEA.” Maj. Op. 9751; see also Maj. Op. 9747-48.
The difficulty in measuring damages, is implicitly admitted
in our direction to the district court to allow Payne “to amend
her complaint in order to flesh out her specific claims and
enable the court to determine which claims require IDEA
exhaustion and which do not.” Maj. Op. 9762. For example,
we recognize that Payne’s request for “general damages for
extreme mental suffering and emotional distress” might not
fall “within the purview of § 1415(l),” but will if “the ‘emo-
tional distress’ stems from Payne’s concern that D.P. was not
receiving an adequate education.” Maj. Op. 9766. It is not
clear to what extent long term academic, psychological or
emotional harms, must be addressed in the administrative pro-
ceedings. The majority holds that “[t]he IDEA’s exhaustion
requirement applies to claims only to the extent that the relief
actually sought could have been provided by the IDEA.” Maj.
Op. p. 9750. It further holds that “exhaustion is required in
cases where a plaintiff is seeking to enforce rights that arise
as a result of a denial of a free appropriate public education.”
Maj. Op. p. 9752. Thus, although it may be “far from clear
that the IDEA authorizes the provision of services designed to
correct injuries caused by the school’s past violation of other
laws,” (Maj. Op. p. 9761, but see Bea Con. p. 9774-75), the
line between those aspects of damages which would have
been addressed in administrative proceedings, and those
9770 PAYNE v. PENINSULA SCHOOL DISTRICT
which would not, may be a factual issue that will have to be
determined on a case by case basis.
Here, as noted by Judge Bea, much of the relief or damages
Payne sought was arguably available under the IDEA. On the
other hand, as all admit, to the extent that plaintiffs seek mon-
etary damages for compensation for past pain and suffering,
such relief is not available under the IDEA. See Maj. Op.
9765; Bea Con. pp. 9780-81 n.8. Furthermore, as the majority
notes, the complaint “does not explicitly link each constitu-
tional claim to a form of requested relief.” Maj. Op. 9765.
Although we direct the district court to scrutinize the com-
plaint, we implicitly admit that the line between damages that
are and are not addressable in IDEA administrative proceed-
ings may not be clear. See Maj. Op. 9765-66. It follows that
the district court may be able to use the IDEA’s exhaustion
requirement to narrow the complaint at the pleading stage, but
may not be able to dispose of the case.
The danger is, as Judge Bea notes, that artful pleading may
enable plaintiffs to circumvent the exhaustion requirement.
See Bea Con. 9778-79. However, much of the incentive to do
so will be dissipated if, at trial, the defendant may present evi-
dence showing that the administrative proceedings under the
IDEA, if utilized, would have addressed certain aspects of the
claimed damages. This also recognizes the exhaustion
requirement is akin to an affirmative defense, rather than a
jurisdictional bar to the lawsuit.
Such an approach is consistent with the intent of the IDEA
to encourage the parties to take advantage of the administra-
tive proceedings. At the same time, it recognizes that just
because a student is subject to the IDEA, he or she does not
forfeit his or her other constitutional and statutory rights.
Nonetheless, where (1) the alleged damages arise in the con-
text of a relationship under the IDEA, (2) plaintiff did not
exhaust the administrative proceedings under the IDEA, and
(3) the measure of damages includes aspects that would have
PAYNE v. PENINSULA SCHOOL DISTRICT 9771
been addressed in the administrative proceedings, then the
exhaustion requirement should be construed as denying plain-
tiff any recovery for those aspects of the claim that it is deter-
mined — under the applicable standard of proof and by the
appropriate factfinder — would have been addressed by the
administrative proceedings.
BEA, Circuit Judge, joined by SILVERMAN and
RAWLINSON, Circuit Judges, concurring in part and dissent-
ing in part:
I respectfully dissent from what the majority calls its “clari-
fication” of the “proper method for resolving IDEA exhaus-
tion cases.”1 Maj. Op. at 9750. Rather than a clarification, I
see it as a nullification of the congressionally mandated
exhaustion requirement. The majority opinion clashes with
the clear language of the IDEA, which requires administrative
exhaustion “before the filing of a civil action . . . seeking
relief that is also available under [the IDEA].” 20 U.S.C.
§ 1415(l) (emphasis added). The majority’s approach is also
inconsistent with the core purposes of IDEA exhaustion:
allowing state and local agencies “the exercise of discretion
and education expertise,” giving agencies “the first opportu-
nity to correct shortcomings in their educational programs for
disabled children,” and allowing “full exploration of technical
1
In light of Jones v. Bock, 549 U.S. 199 (2007), and Reed Elsevier, Inc.
v. Muchnick, 130 S. Ct. 1237 (2010), I concur in the majority’s determina-
tion that the IDEA’s exhaustion requirement is non-jurisdictional. I note,
however, that it was unnecessary to reach the jurisdictional issue in this
case. Here, defendants raised Payne’s failure to exhaust administrative
remedies as an affirmative defense in the district court. Therefore—
regardless whether the IDEA’s exhaustion requirement is jurisdictional or
must be raised as an affirmative defense—it is clear that the exhaustion
issue in this case was properly before the district court. Because this court
did reach the jurisdictional question, however, I concur in its analysis of
the issue.
9772 PAYNE v. PENINSULA SCHOOL DISTRICT
educational issues.” Hoeft v. Tucson Unified Sch. Dist., 967
F.2d 1298, 1303 (9th Cir. 1992). Finally, the newly-restricted
exhaustion requirement will allow plaintiffs—through games-
manship and cleverly-crafted pleadings—to subject school
districts to civil liability for money damages, without first giv-
ing school districts the opportunity to remedy the plaintiff’s
injuries under the IDEA.
Moreover, in remanding this case to the district court to
parse the Paynes’ complaint, the majority ignores the proce-
dural posture of this case. This case comes to us on appeal of
the district court’s grant of summary judgment to the school
district. The school district presented evidence, in the form of
deposition testimony from plaintiff Windy Payne, which
proved the Paynes sought relief which was “also available”
under the IDEA—thus triggering the IDEA’s exhaustion
requirement. 20 U.S.C. § 1415(l). In contrast, the Paynes
presented no evidence at all to raise a triable issue of material
fact as to whether the relief they sought was not “also avail-
able” under the IDEA, nor any evidence at all that recourse
to the remedies provided in the IDEA would be futile. A mov-
ing party is entitled to summary judgment if the non-moving
party fails to present, by affidavits, depositions, answers to
interrogatories, or admissions “specific facts showing that
there is a genuine issue for trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986). I would not remand to the district
court to parse Paynes’ complaint for allegations of facts, evi-
dence of which facts the Paynes themselves did not present in
their opposition to summary judgment. This is an appeal from
an order under Rule 56 of the Federal Rules of Civil Proce-
dure, not an appeal from a 12(b)(6) order. I would affirm. For
these reasons, I dissent.
I.
With respect, the majority opinion begins by misreading
the IDEA’s exhaustion provision, codified at 20 U.S.C.
§ 1415(l). The majority reads § 1415(l)—which requires a
PAYNE v. PENINSULA SCHOOL DISTRICT 9773
plaintiff to exhaust administrative remedies if the plaintiff is
“seeking relief that is also available under” the IDEA—to
mean that exhaustion is required only if a plaintiff specifically
alleges violations of substantive IDEA rights, or their “func-
tional equivalent.” According to the majority, “whether a
plaintiff could have sought relief available under the IDEA is
irrelevant—what matters is whether the plaintiff actually
sought relief available under the IDEA.” Maj. Op. at 9751
(emphasis in original). Therefore, according to the majority,
courts charged with “determining whether the IDEA requires
a plaintiff to exhaust . . . should start by looking at a com-
plaint’s prayer for relief and determine whether the relief
sought is also available under the IDEA. If it is not, then it is
likely that § 1415(l) does not require exhaustion.” Maj. Op. at
9751. The majority sees “relief that is available” under the
IDEA as restricted to three situations: 1) when a claim is
based upon alleged violations of a plaintiff’s substantive
IDEA right to a Free Appropriate Public Education (FAPE);
2) when a plaintiff seeks an IDEA remedy, or the “functional
equivalent of an IDEA remedy under a different law” (for
example, when a plaintiff seeks recompense for a private
school education under the Americans with Disabilities Act,
or explicitly measures its calculation of damages as the cost
of academic tutoring or psychological counseling); and 3)
when a plaintiff seeks injunctive relief to alter a child’s indi-
vidualized education program (IEP) or educational placement.2
Maj. Op. at 9751-52.
As an initial matter, the majority’s limited exhaustion
requirement is inconsistent with the plain text of § 1415(l).
Section 1415(l) does not state that exhaustion is required only
for relief that is premised upon an alleged violation of the
plaintiff’s substantive IDEA rights, seeks the functional
equivalent of an IDEA remedy, or seeks injunctive relief after
2
An IEP is a document which sets educational goals and specifies an
instructional plan for disabled students. 34 C.F.R. § 300.320. An IEP must
be reviewed and renewed at least annually. Id.
9774 PAYNE v. PENINSULA SCHOOL DISTRICT
IDEA remedies have been effected. Rather, § 1415(l) simply
and broadly states that exhaustion is required if a plaintiff
seeks relief that is “also available” under the IDEA. The
IDEA requires public schools to provide disabled students
with a “free appropriate public education.” A “free appropri-
ate public education” includes not just “an appropriate pre-
school, elementary school, or secondary school education,”
but also “related services” which include counseling and psy-
chological services. See 20 USC § 1401(26). Thus, if a dis-
abled student brings suit seeking monetary damages to
compensate him for his academic regression or psychological
injuries which he claims persist after the completion of a
school district’s claimed wrongful act or omission, relief for
those injuries is “also available” in kind under the IDEA,
because the “related services” provided under the IDEA—
academic services, psychological counseling and therapy—
may cure, alleviate, or mitigate such injuries. In such a case,
the plain text of § 1415(l) requires a plaintiff to exhaust the
IDEA’s administrative procedures which may lead to the pro-
vision of curative or palliative “related services” before filing
a civil suit.
The majority’s skepticism that the “IDEA actually autho-
rizes relief designed to correct the effects of misconduct by
the school” is misplaced. Maj. Op. at 9760-61. The majority
notes that the IDEA defines “related services” as services
which “may be required to assist a child with a disability to
benefit from special education” id. (quoting 20 U.S.C.
§ 1401(26)(A)), and posits that the IDEA does not require
schools to alleviate academic and psychological damage to a
child which is caused by the school. Id. But this reading of the
IDEA makes little sense. The statute plainly holds that if a
child requires “related services” to benefit from special educa-
tion, those services must be provided. Nothing in the statute
requires any inquiry as to why those services are required.
Thus, if a child suffers from crippling anxiety at school, and
that anxiety must be alleviated before he can learn (or, in the
words of the statute, “benefit from special education”), the
PAYNE v. PENINSULA SCHOOL DISTRICT 9775
IDEA plainly requires psychological services be provided. It
makes no difference whether that anxiety was caused by the
school or whether it was caused by some external factor.
Of course, § 1415(l) does not require IDEA exhaustion for
all lawsuits brought by disabled students who allege academic
or psychological injuries—only for those lawsuits seeking
relief for those injuries which may be cured or alleviated by
the “related services” provided through IDEA’s administra-
tive process. As we held in Witte v. Clark County School Dis-
trict, 197 F.3d 1271 (9th Cir. 1999), plaintiffs need not
exhaust IDEA remedies if they seek damages for “retrospec-
tive” psychological injuries. Id. at 1276. For example, had the
Paynes sought monetary damages for the claimed past and
temporary emotional and psychological trauma D.P. suffered
while locked in the isolation room, IDEA exhaustion would
not have been required. This is so because when the damages
sought are for purely retrospective injuries, relief is not “also
available” under the IDEA: no amount of academic or coun-
seling services could possibly alleviate the past, but tempo-
rary, fright D.P. might claim he felt inside the isolation room.
Neither could IDEA’s “related services” cure or alleviate the
pain and suffering D.P. might have suffered in the “isolation
room” and for a few days thereafter, had he sprained his ankle
while locked inside. As this court held in Witte, the “remedies
available under the IDEA would not appear to be well suited
to addressing past physical injuries adequately.” Id. at 1276.
On the other hand, when a plaintiff seeks monetary dam-
ages to compensate for the academic and psychological after-
effects of a school district’s wrongful act or omission in the
provision of education, relief is necessarily available under
the IDEA. Here, for example, intensive individualized tutor-
ing might well have alleviated D.P.’s claimed academic
regression. Psychological counseling might also have elimi-
nated the nightmares from which the Paynes contend D.P.
suffered as a result of the district’s use of the “isolation room”
in which it placed D.P. And relief for such academic regres-
9776 PAYNE v. PENINSULA SCHOOL DISTRICT
sion and nightmares is “also available” under the IDEA if the
regression and nightmares are likely to continue.3 Here—as
discussed in further detail below—the Paynes sought damages
for the past and ongoing academic and psychological afteref-
fects of D.P.’s claimed mistreatement by the school district.
In such cases, the plain text of § 1415(l) requires a plaintiff
to exhaust the IDEA’s administrative procedures before filing
a civil suit.4
The majority expresses concern that this “muscular” view
of § 1415(l) “penalize[s] disabled students for their disabili-
ty,” Maj. Op. at 9762, “preempt[s] all cases involving the mis-
treatment of disabled students by a school,” id., and
3
Plaintiffs can also avoid the IDEA’s exhaustion requirement if they can
prove that recourse to the IDEA’s administrative procedures would have
been futile or inadequate. For example, parents who seek monetary dam-
ages as compensation for the out-of-pocket expenses they paid for a spe-
cialized form of private tutoring or private psychological counseling could
avoid the IDEA’s exhaustion requirement if they prove that such tutoring
or counseling was 1) necessary, and 2) could not have been provided by
the school district. The party alleging futility of IDEA procedures bears
the burden of proving its futility. Doe v. Arizona Dep’t of Educ., 111 F.3d
678, 681 (9th Cir. 1997). This exception to the exhaustion requirement
does not apply to the Paynes, as they presented no evidence of futility; of
course, neither did the school district. See infra at pages 9783-84.
4
The majority contends this plain reading of § 1415(l) is somehow
inconsistent with Witte, because the court in Witte could have speculated
that the child—who alleged only retrospective physical injuries—also
could have alleged ongoing psychological harm. See Maj. Op. at 9760-61.
This is wrong: § 1415(l) requires exhaustion only when a plaintiff is
“seeking relief that is also available under [the IDEA].” 20 U.S.C.
§ 1415(l) (emphasis added). If, as in Witte, a plaintiff does not allege aca-
demic or psychological injuries—and thus is not seeking academic or psy-
chological relief—§ 1415(l) obviously does not permit a court to invent
such injuries for the plaintiff. Here, per the plaintiff’s own complaint and
deposition testimony, the only relief sought was academic and psychologi-
cal relief which is “also available under the IDEA.” I would hold that
exhaustion is required only where academic or “related services” could
correct the injuries claimed by the plaintiff, not where such services could
also correct injuries which are purely conjectural.
PAYNE v. PENINSULA SCHOOL DISTRICT 9777
“temporarily shield[s]” school officials from liability for vio-
lations of constitutional and statutory rights. Id. at 9752. Not
at all. First, my reading of § 1415(l) does not preempt all
cases involving disabled students harmed by a school. Con-
trary to the majority’s assertion, I embrace Witte, which
eschews preemption in cases where plaintiffs seek compensa-
tion only for physical or retrospective injuries. See Witte, 197
F.3d at 1276. Moreover, any shield imposed by the exhaustion
requirement is of very limited duration. Due process com-
plaints under the IDEA must be heard and decided within 45
days. 34 C.F.R. § 300.515(a). And so long as plaintiffs
exhaust their IDEA remedies, nothing prevents them from
subsequently bringing civil claims based upon violations of
constitutional or statutory rights. Thus, § 1415(l) does not
absolve school districts of civil liability for injuries which
could not be remedied or palliated by IDEA’s “related ser-
vices.” Instead, it codifies a recognition that the education of
disabled children is a complex endeavor, calling for much
individual attention, and that a misjudgment in a child’s IEP
—or a mistake in execution of that plan—can result in unex-
pected academic and psychological injuries. For that reason,
in cases where “both the genesis and the manifestations of the
problem are educational,” Blanchard v. Morton Sch. Dist.,
420 F.3d 918, 921 (9th Cir. 2005), § 1415(l) requires potential
plaintiffs first to give school districts the opportunity to cor-
rect the effects of their claimed educational mistakes under
the IDEA’s administrative process, before recasting claims
arising from acts or omissions related to educational efforts as
violations of constitutional and statutory rights, with compen-
sation sought in money damages. Far from penalizing dis-
abled students, § 1415(l) provides a fast, efficient way to
redress such students’ academic and psychological injuries, as
an alternative to civil litigation which may drag on for years.
In contrast, the eviscerated exhaustion requirement articu-
lated by the majority elevates the form of plaintiffs’ pleadings
over their substance.5 Consider, for example, a disabled child
5
As discussed in greater detail below at pages 9773-74, for the majority
to thus frame the issue was especially incorrect here, since the issue here
9778 PAYNE v. PENINSULA SCHOOL DISTRICT
who seeks monetary damages because a school district’s
implementation of some educational program resulted in a
claimed failure adequately to instruct him in reading.6 Such a
child could allege either: 1) the school district failed to pro-
vide a “free appropriate public education” as required by the
IDEA, 20 U.S.C. § 1401(9), or, as the plaintiffs here claim, 2)
the school district’s actions caused the child’s “academic
prowess and abilities” to be diminished, entitling the child to
general and special damages for his emotional and psycholog-
ical pain and suffering. Although the facts underlying both of
these claims would be identical, the majority holds that the
IDEA requires exhaustion of administrative remedies only if
the plaintiff styles his complaint as a failure to provide a “free
appropriate public education” under the IDEA, or explicitly
measures damages as the cost of counseling, tutoring, or pri-
vate schooling. Only then, according to the majority, is the
does not involve the adequacy of the plaintiffs’ pleadings, but the ade-
quacy of the evidence adduced by the parties to establish or eliminate tri-
able issues of material fact. The district court entertained and ruled on a
Rule 56 motion, not a Rule 12(b)(6) motion.
6
The majority contends that “a claim for failure to adequately instruct
a student in reading can arise only under the IDEA because there is no
other federal cause of action for such a claim.” Maj. Op. at 9759-60. With
respect, the majority underestimates the potential creativity of plaintiffs’
attorneys. Consider, for example, a child whose IEP provides that he
should spend 30 minutes each school day reading independently in a quiet
room by himself. If that child were to suffer anxiety and claustrophobia
while in the quiet room—leading to a regression in his reading scores—he
might sue the school district under § 1983 for improper detention in viola-
tion of the Fourth Amendment and seek compensation for his academic
injuries. Indeed, such a case would be largely analogous to the facts in
Robb v. Bethel School District #403, 308 F.3d 1047 (9th Cir. 2002), in
which the plaintiff sought monetary damages for academic injuries which
resulted from a child’s participation in “peer tutoring” sessions which took
place on the floor of a dimly-lit hallway. As I read the majority, so long
as an alleged violation is cast as a federal Constitutional or statutory
claim, the plaintiffs are not required to exhaust their administrative
remedies—regardless whether the claim is actually based upon the school
district’s failure adequately to instruct the child.
PAYNE v. PENINSULA SCHOOL DISTRICT 9779
claim based upon “either the IDEA . . . or its substantive stan-
dards.” See Maj. Op. at 9752. The majority opinion thus
effectively serves as a roadmap for plaintiffs who wish to
avoid § 1415(l)’s exhaustion requirement and any curative or
palliative services the school district could offer to eliminate
or reduce damages, but would rather obtain a money award in
a federal court. So long as a complaint which seeks monetary
damages does not mention a specific provision of the IDEA,
demand a remedy specifically provided by it, or seek injunc-
tive relief to modify an implemented IEP, the majority holds
there is no need to exhaust administrative remedies which
could remedy the harm done to a disabled child through the
school’s mistakes in implementing the child’s education.
Thus, the majority largely nullifies § 1415(l) by providing
plaintiffs with an easy end-run around the exhaustion require-
ment. It does not take a crystal ball to foresee the result.
Would a plaintiff’s attorney rather 1) state a claim for the pro-
vision of in-kind services under the IDEA, and if successful,
be paid in court-supervised attorney’ fees, see 20 U.S.C.
§ 1415(i)(3)(B), or 2) seek monetary damages under a contin-
gent fee contract with the parents?
The majority incorrectly insists that our previous “injury-
centered” approach to exhaustion was inconsistent with
§ 1415(l)’s requirement that plaintiffs exhaust administrative
remedies if a plaintiff is “seeking relief that is also available
under [the IDEA].” 20 U.S.C. § 1415(l) (emphasis added).
According to the majority, the phrase “seeking relief” sug-
gests that “whether a plaintiff could have sought relief avail-
able under the IDEA is irrelevant—what matters is whether
the plaintiff actually sought relief available under the IDEA.”
Maj. Op. at 9751 (emphasis in original). But this interpreta-
tion of the phrase “seeking relief” is inconsistent with this
court’s prior determination that a plaintiff cannot circumvent
the IDEA’s exhaustion requirement by seeking only monetary
damages. Robb, 308 F.3d 1047 at 1050. Although monetary
damages are not ordinarily available under the IDEA, we have
joined at least five sister circuits to hold that a prayer for mon-
9780 PAYNE v. PENINSULA SCHOOL DISTRICT
etary damages does not automatically excuse the IDEA’s
exhaustion requirement. Id.; see also Frazier v. Fairhaven
Sch. Comm., 276 F.3d 52, 64 (1st Cir. 2002); Covington v.
Knox County Sch. Sys., 205 F.3d 912, 916 (6th Cir. 2000);
Padilla v. Sch. Dist. No. 1 in the City and County of Denver,
Colo., 233 F.3d 1268, 1274 (10th Cir. 2000); Charlie F. v. Bd.
of Educ. of Skokie Sch. Dist. 68, 98 F.3d 989, 993 (7th Cir.
1996); N.B. v. Alachua County Sch. Bd., 84 F.3d 1376, 1379
(11th Cir. 1996). Thus—because a plaintiff who includes an
education-related prayer for monetary damages necessarily
does not “actually” seek relief available under the IDEA—we,
and our sister circuits, have held that what “matters” for
exhaustion purposes is precisely whether a plaintiff “could
have” sought relief for the claimed injuries, which relief is
also available under the IDEA through in-kind services. The
majority opinion does not overturn this aspect of our IDEA juris-
prudence;7 this leaves us with a puzzling inconsistency. On
the one hand, as the majority holds today, the phrase “seeking
relief” requires courts to look solely at what form of relief the
plaintiff “actually sought.” On the other hand, courts will look
necessarily to what sort of relief a plaintiff “could have”
sought in complaints which seek damages measured in the
cost of services available in-kind under the IDEA, or which
seek monetary damages for claims which are explicitly based
upon alleged violations of a plaintiff’s substantive IDEA rights,8
Maj. Op. at 9751-52, 9754-55.
7
The majority holds that a plaintiff’s prayer for monetary damages does
not automatically excuse the IDEA’s exhaustion requirement. For exam-
ple, if “the measure of a plaintiff’s [monetary] damages is the cost of
counseling, tutoring, or private schooling — relief available under the
IDEA — then the IDEA requires exhaustion.” Maj. Op. at 9754. The
majority holds the exhaustion requirement also applies if a plaintiff “seeks
damages to fund a private education (without mentioning the IDEA).” Id.
Because such claims explicitly seek the “functional equivalent” of an
IDEA remedy, the majority holds relief is “also available” under the
IDEA. I agree the exhaustion requirement applies in such cases; I do not,
however, read § 1415(l) so narrowly.
8
Consider, for example, one situation in which the majority holds that
“exhaustion is clearly required”: where a plaintiff files a claim for dam-
PAYNE v. PENINSULA SCHOOL DISTRICT 9781
Finally, the majority opinion undermines the sound princi-
ples behind the exhaustion requirement. We have previously
held that the IDEA’s exhaustion requirement “recognizes the
traditionally strong state and local interest in education,
allows for the exercise of discretion and educational expertise
by state agencies, affords full exploration of technical educa-
tional issues, furthers development of a factual record and
promotes judicial efficiency by giving state and local agencies
the first opportunity to correct shortcomings.” Kutasi v. Las
Virgenes Unified Sch. Dist., 494 F.3d 1162, 1167 (9th Cir.
2007). In addition, because due process complaints under the
IDEA must be heard and decided within 45 days, 34 C.F.R.
§ 300.515(a), the IDEA’s expedited timetable encourages
quick and efficient resolution of disputes. Yet the majority’s
curtailment of the exhaustion requirement promotes none of
these goals. On the contrary, the weakened exhaustion
requirement will bode to flood federal courts with IDEA
cases, before a local agency has had an opportunity to resolve
the dispute. Federal judges and juries—not education experts
—will be asked to serve as “ersatz school administrators,”
Maj. Op. at 9752, and make determinations about what money
ages under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794,
premised on a denial of a plaintiff’s IDEA rights. See Maj. Op. at 9751-52.
If such a claim seeks only monetary damages, the plaintiff has not “actu-
ally sought relief available under the IDEA,” because the IDEA does not
provide for monetary damages. But in such a case, the majority (rightly)
requires exhaustion, because the substantive rights at issue are clearly
premised on the IDEA—and could have been resolved using the IDEA’s
administrative procedures. In that situation, the phrase “seeking relief”
does not bar courts from looking to whether the plaintiff “could have”
sought relief available under the IDEA. I am puzzled as to how the major-
ity concludes that the same phrase bars courts from looking to whether a
plaintiff “could have” sought in-kind relief under the IDEA where, as
here, the plaintiffs claim only academic and psychological injuries which,
at least as to future academic and psychological injuries, could be elimi-
nated, attenuated, or mitigated by IDEA-provided “related services.” Such
“related services” are indeed similar to those which plaintiff Windy Payne
testified had been effective to return her son to being a “happy boy.” See
infra at 9781-82 for further discussion.
9782 PAYNE v. PENINSULA SCHOOL DISTRICT
damage awards are necessary to prevent or alleviate aca-
demic, psychological, or emotional harm. And disabled chil-
dren whose academic and psychological injuries might have
been quickly cured or mitigated by in-kind services supplied
by a school district under the IDEA may have to wait until the
resolution of a potentially lengthy civil lawsuit to receive a
monetary balm.
II.
Recognizing, perhaps, that its reading § 1415(l) could
financially burden school districts by requiring them to reim-
burse plaintiffs for palliative services the school districts
could have cost-effectively provided in-kind, the majority
rewrites § 1415(l)—an exhaustion statute—as a mitigation
statute. The majority concludes that after a court determines
exhaustion was not required, a defendant subsequently should
“be permitted to provide evidence showing that the relief
being sought by that plaintiff was, in fact, available under the
IDEA” and “withhold [remedies] that are unexhausted and
available under the IDEA.”9 Maj. Op. at 9764. I am puzzled
as to how the majority can so interpret § 1415(l). Section
1415(l) is not a “collateral source” doctrine which would per-
mit defendant school districts to submit evidence proving a
plaintiff’s monetary damages would have been reduced had
plaintiffs availed themselves of remedies also available under
the IDEA. It is thus distinguishable from, for example, the
collateral source provision of California’s Medical Injury
9
Judge Callahan makes a nearly identical point in her concurrence, con-
cluding that “the dismissal of an ambiguous complaint or cause of action
for failure to exhaust . . . may be complemented by allowing a defendant
school district to assert, even at trial, that an aspect of plaintiff’s claim of
damages would have been addressed in the administrative proceedings.
Then, to the extent that the defendant meets its burden of demonstrating
that the administrative processes would have addressed an aspect of the
alleged damages, plaintiff would be denied any recovery for that aspect
because that portion of his claim is unexhausted.” Callahan Concurrence
at 9767.
PAYNE v. PENINSULA SCHOOL DISTRICT 9783
Compensation Reform Act (MICRA), Cal. Civ. Code
§ 3333.1. MICRA permits health care providers who are sued
for personal injuries allegedly caused by medical malpractice
to mitigate damages by “introduc[ing] evidence of any
amount payable to the plaintiff as a result of the personal inju-
ry” from outside sources, including the Social Security Act,
worker’s compensation schemes, and private insurance plans.
Cal. Civ. Code § 3333.1(a). In contrast, § 1415(l) does not
provide for the introduction of mitigating evidence at a hear-
ing to assess damages. To the contrary, § 1415(l) very clearly
states:
“before the filing of a civil action under such laws
seeking relief that is also available under [the
IDEA],” the [administrative] procedures . . . shall be
exhausted to the same extent as would be required
had the action been brought under [the IDEA].”
20 U.S.C. § 1415(l) (emphasis added).
The majority’s attempt to turn § 1415(l) into a mitigation
statute is thus belied by the plain text of the law. If the defen-
dant is permitted at trial to “provide evidence showing that
the relief being sought by that plaintiff was, in fact, available
under the IDEA,” Maj. Op. at 9764-64, then such evidence
was “also available” before the action was filed. After all, evi-
dence that the school district could have provided palliative
academic or psychological services under the IDEA is
relevant—for mitigation purposes—only if those services
could have reduced plaintiffs’ damages. To reduce plaintiffs’
damages, such services must have been “also available” to the
plaintiff. And if relief is “also available” to a plaintiff under
the IDEA, § 1415(l) requires a plaintiff to exhaust his reme-
dies under the IDEA “before the filing of a civil action.” 20
U.S.C. § 1415(l) (emphasis added). There is not a word in
§ 1415(l) about mitigation, nor anything which permits a
school district to introduce evidence that relief was “also
9784 PAYNE v. PENINSULA SCHOOL DISTRICT
available” under the IDEA at trial for the purpose of reducing
a monetary award to plaintiffs at trial.
Indeed, contrary to the majority’s conclusions, Section
1415(l) creates a system quite different from a common-law
system of mitigation. Were common-law mitigation to apply,
the trier-of fact would determine what palliative academic or
psychological expenses—if any—could have been avoided by
using the school district’s “also available” services, and
reduce damages accordingly. But § 1415(l) does not leave that
determination to the trier-of-fact at trial. Instead, § 1415(l)
requires those “also available” services to have been solicited,
attempted, and used before any reimbursement is sought. The
purpose of § 1415(l) is to have the “also available” public ser-
vices actually used, outside the courtroom, to produce their
practical effect on the disabled child. Section 1415(l) does not
provide for the monetary value of unused services to be deter-
mined as a hypothetical, debated in the courtroom.
Thus, contrary to the majority’s conclusion, § 1415(l) does
not require a defendant school district to introduce evidence
of how the in-kind services plaintiffs chose not to pursue
could have mitigated a plaintiff’s injuries. Instead, in enacting
§ 1415(l), Congress was exceedingly clear: plaintiffs must
actually exhaust IDEA remedies before bringing a suit for
which relief is “also available” under the IDEA.
III.
In light of its newly-articulated, restricted exhaustion
requirement, the majority remands this case for the district
court to determine which “constitutional” claims in the
Paynes’ complaint need not be exhausted. But the majority’s
narrow focus on the Paynes’ complaint overlooks the fact that
this case is an appeal from a grant of summary judgment, and
that all of the facts presented to the district court indicated the
Paynes were seeking at least some relief that was “also avail-
able” under the IDEA—even under the majority’s narrow
PAYNE v. PENINSULA SCHOOL DISTRICT 9785
reading of the phrase. Because the school district presented
evidence (mainly in the form of plaintiff adverse-party Windy
Payne’s deposition) that the Paynes sought relief that was
“also available” under the IDEA—and because the Paynes
presented no evidence to the contrary—the school district was
entitled to summary judgment as a matter of law. See Celotex,
477 U.S. at 324 (on a motion for summary judgment, non-
moving party must “designate specific facts showing that
there is a genuine issue for trial” (quoting Fed. R. Civ. P.
56(e)).
In its motion for summary judgment, the school district
properly raised an affirmative defense which contended the
Paynes’ lawsuit should be dismissed because the Paynes
sought relief that was “also available” under the IDEA and
had not exhausted their administrative remedies.10 In support
of its motion for summary judgment, the school district pro-
duced a July 21, 2006 deposition of D.P.’s mother, Windy
Payne, in which she testified the Paynes were seeking mone-
tary relief for D.P. not for the retrospective temporary emo-
tional trauma D.P. experienced while in the isolation room,
but for 1) the expenses of private doctors and therapists who
had treated D.P. to right the wrongs done him by use of the
isolation room, and 2) for treatment and cure of past and
ongoing academic, psychological, and emotional difficulties
caused by use of the isolation room. Windy Payne testified
that she sought damages for the “lack of [D.P.’s] education,”
10
The school district’s motion for summary judgment conceded that had
the Paynes sought retrospective relief for the school district’s alleged Con-
stitutional violations, the Paynes’ failure to exhaust “would not be fatal”
under Witte v. Clark County School District, 197 F.3d 1271, 1276 (9th Cir.
1999). For example, had the Paynes sought monetary damages to recom-
pense D.P. for the past and temporary emotional trauma he experienced
while locked inside the safe room, exhaustion would not have been
required, because the academic and psychological in-kind services pro-
vided for by the IDEA cannot remedy such past injuries, any more than
they could remedy the pain and suffering from the hypothetical now-cured
sprained ankle earlier mentioned.
9786 PAYNE v. PENINSULA SCHOOL DISTRICT
the “emotional trauma that [D.P.] and I have suffered, and the
impact that it has had on our lives and continues to have.”
(emphasis added). She stated that the damages sought were
for everything D.P.’s parents had done—including provision
of private doctors and therapists to make him a “happy boy
again.” Part of the measure for those damages, according to
Windy Payne, was the out-of-pocket expenses the Paynes had
paid “for lots of doctors and lots of therapy.”
In other words, Windy Payne’s deposition established that
the Paynes sought money damages for the past and ongoing
academic and psychological aftereffects of the school dis-
trict’s use of the isolation room. Windy Payne testified the
Paynes sought damages: 1) to compensate D.P. and his par-
ents for the emotional trauma that required the Paynes to seek
professional psychological services (the private doctors and
therapists) and, 2) to provide treatment and services for D.P.’s
ongoing academic, emotional, and psychological injuries, and
the parents’ continued emotional trauma which derived from
those injuries. Relief from the academic and psychological
aftereffects of the school district’s use of the isolation room
was “also available” under the IDEA. The school district
could have provided—under the “related services” provision
of the IDEA, 20 U.S.C. § 1401(26)—the past psychological
counseling the Paynes purchased for D.P. on the private mar-
ket. And the school district can now provide ongoing aca-
demic and psychological services to alleviate the damage
done to D.P. in the isolation room. Thus, unlike the plaintiffs
in Witte, 197 F.3d at 1276, Windy Payne’s testimony estab-
lishes that the Paynes were not seeking only retrospective
damages for injuries that the IDEA could not palliate. Windy
Payne did not, for example, testify that she sought monetary
compensation for the fright D.P. felt while locked in the isola-
tion room—a completed retrospective injury no in-kind aca-
demic or psychological services could have remedied. Nor did
Windy Payne testify that she sought compensation for some
physical injuries which resulted from the school district’s use
of the isolation room. Instead, Windy Payne’s testimony
PAYNE v. PENINSULA SCHOOL DISTRICT 9787
establishes the Paynes sought monetary compensation for the
academic and psychological aftereffects of the school dis-
trict’s use of the isolation room—which aftereffects could
have been remediated or palliated by the in-kind services
specified in the IDEA.
Moreover, the Paynes’ complaint itself supports the school
district’s contention—and the district court’s determination on
summary judgment—that the Paynes sought only relief which
had been and is “also available” in-kind, under the IDEA.11
The Paynes’ complaint specifically alleged the following inju-
ries were sustained by their son as a result of his mistreat-
ment: “significant regression in communicative and sensory
functions,” diminished “academic prowess and abilities,” and
“continue[d] . . . signs of emotional trauma.” (emphasis
added). The complaint further sought “general damages for
extreme mental suffering and emotional distress and special
damages in an amount to be proven at trial.” There was noth-
ing in the complaint to indicate the Paynes sought damages
for anything other than the past and ongoing academic and
psychological aftereffects of D.P.’s time in the isolation room,
and the derivative trauma his parents experienced as a result.12
11
In its motion for summary judgment, the school district did not quote
the portions of the Paynes’ complaint which dealt with D.P.’s injuries or
which put forward a prayer for relief. However, the district court explicitly
considered the language of the complaint in its order granting the school
district’s motion for summary judgment. The district court was within its
discretion to do so: Federal Rule of Civil Procedure 56(c)(1)(3) provides
that in considering a motion for summary judgment, a district court “need
consider only the cited materials, but it may consider other materials in the
record.” The Paynes’ complaint was admissible in evidence as the admis-
sion of a party litigant. Fed. R. Evid. 801(d)(2). Its allegations of fact sup-
ported the school district’s motion for summary judgment, because the
Paynes’ complaint supported the school district’s contention that the
Paynes sought only relief which was also available under the IDEA.
12
Moreover, even had the allegations in the complaint stated that the
Paynes sought relief for something other than the academic and psycho-
logical aftereffects of D.P.’s time in the isolation room, those allegations
9788 PAYNE v. PENINSULA SCHOOL DISTRICT
In opposition to the school district’s motion for summary
judgment—and the evidence adduced by the school district in
its moving papers—the Paynes produced no declarations, affi-
davits, depositions, or other discovery material to attempt to
prove they sought relief for anything other than the past and
ongoing aftereffects of D.P.’s academic, emotional, and psy-
chological injuries arising from the claimed education-related
mistreatment. Indeed, the Paynes did not even contend they
sought damages for injuries that could not be redressed in
kind under the IDEA. Instead, the Paynes relied solely on a
since-overruled Third Circuit case which held that an IDEA
claim need not be exhausted if it seeks monetary damages,13
see W.B. v. Matula, 67 F.3d 484, 496 (3d Cir. 1995)—a the-
ory this court has squarely rejected, and continues (at least in
form) to reject. Robb, 308 F.3d 1047 at 1050; see Maj. Op.
at 9754-55.
In addition, the Paynes contended IDEA exhaustion would
be futile, because they were not seeking any changes to D.P.’s
IEP, and because they did not raise any claim which sounded
specifically in the IDEA. But the Paynes had the burden of
proof to prove the futility or inadequacy of IDEA procedures,
would be trumped by Windy Payne’s deposition testimony to the contrary.
On a motion for summary judgment, depositions of a party trump the alle-
gations of his or her complaint. See Fed. R. Civ. P. 56(c)(1)(A); Taylor v.
List, 800 F.3d 1040, 1045 (9th Cir. 1989) (nonmoving party cannot avoid
summary judgment by relying solely on allegations that are unsupported
by factual data); Dismore v. Aetna Casualty & Surety Co., 338 F.2d 568,
571 (7th Cir. 1964) (“allegations of the complaint are not controlling
where controverted by depositions”). Thus, on motion for summary judg-
ment, the unverified complaint can provide only factual evidence—
admissions—against plaintiffs; never for plaintiffs.
13
The majority correctly notes that the Third Circuit case on which the
Paynes relied has been overruled by A.W. v. Jersey City Public Schools,
486 F.3d 791 (3d Cir. 2007), and that every other circuit to address the
issue has held that limiting requested relief to damages alone is not enough
to avoid the exhaustion requirement of the IDEA. See Maj. Op. at 9748
n. 3.
PAYNE v. PENINSULA SCHOOL DISTRICT 9789
Doe v. Arizona Dep’t of Educ., 111 F.3d 678, 681 (9th Cir.
1997), and the Paynes presented no evidence to prove it
would have been futile for them to pursue the academic and
counseling services the school district was required to pro-
vide, or that such services would have been useless to D.P.
Indeed, Windy Payne’s own deposition testimony—in which
she stated that the family had taken D.P. to therapists to alle-
viate his psychological injuries—suggests that D.P.’s injuries
were at least partially remedied by in-kind counseling ser-
vices; counseling services which, for aught that appears, the
district was perfectly capable of providing through IDEA, had
the Paynes pursued the administrative remedies provided
under Sec. 1415(f) and (g).
Thus, all of the evidence before the district court on the
motion for summary judgment showed that relief for what the
record evidence proved were D.P.’s injuries was “also avail-
able” in kind under the IDEA, and there was no proof—none
at all—that seeking relief through the administrative process
would have been futile. The school district could have reme-
died or mitigated D.P.’s injuries through tutoring, counseling,
or other educational or psychological remedies, much as
Windy Payne testified her doctors and therapists did in return-
ing D.P. to being “a happy boy again.” And if D.P.’s underly-
ing injuries—at least some of them—could have been
remedied or mitigated through the IDEA’s administrative pro-
cess’s provision of services, so too could the pain and suffer-
ing arising from those injuries for which his parents now seek
recompense.14
14
The majority opaquely suggests that exhaustion in this case would be
required if the Paynes’ “emotional distress stem[med] from Payne’s con-
cern that D.P. was not receiving an adequate education.” Maj. Op. at 9766.
However, the majority further holds that exhaustion is not required if the
Paynes’ “emotional distress” stemmed from “injuries resulting from
Fourth or Eighth Amendment violations committed by school officials.”
Id. Here, the only injuries alleged with reference to facts—which factual
allegations are proof against the plaintiff per Federal Rule of Evidence
9790 PAYNE v. PENINSULA SCHOOL DISTRICT
IV.
Before bringing this suit in federal court—and sparking this
protracted litigation which has now dragged on for six years
—the Paynes should first have exhausted their administrative
remedies and sought relief that was “also available” under the
IDEA, as required by the plain text of § 1415(l). Indeed, even
under the majority’s narrow reading of § 1415(l), the evidence
submitted by the parties supported the district court’s grant of
summary judgment to the school district. The majority holds
that “[i]f the measure of a plaintiff’s damages is the cost of
counseling, tutoring, or private schooling — relief available
under the IDEA — then the IDEA requires exhaustion.” Maj.
Op. at 9754. Here, Windy Payne has explicitly stated in her
deposition that she sought reimbursement for the cost of the
counseling and psychological services needed to make D.P. a
“happy boy again.” The Paynes submitted no evidence to sug-
gest this was not a measure of the damages they sought. Thus,
even under the majority’s newly-articulated exhaustion
requirement, the district court’s grant of summary judgment
should be affirmed.15
801(d)(2)—by D.P. resulting from Fourth or Eighth Amendment viola-
tions were academic and psychological injuries, which could have been
redressed under the IDEA. The difficulty—if not impossibility—of distin-
guishing between “concern that a child was not receiving an adequate edu-
cation” on the one hand, and concern over academic “injuries resulting
from Fourth or Eighth Amendment violations” on the other, is a further
reason I favor our previous exhaustion approach to the one articulated by
the majority. The concrete claims of injury carry greater weight, in making
decisions, than do abstract claims of constitutional violations.
15
Under § 1415(l), the district court could not simply hold that some
measures of damages must be exhausted and some measures need not be,
such that any final award of damages would be reduced by the unex-
hausted amount. Section 1415(l) specifically provides that IDEA exhaus-
tion is required “before the filing of a civil action.” Thus, § 1415(l) serves
as an absolute bar to lawsuits which seek any relief that is “also available”
under the IDEA. Section 1415(l) is not a cap on damages, and does not,
by its terms, permit a court selectively to exclude recovery for any injury
PAYNE v. PENINSULA SCHOOL DISTRICT 9791
Therefore, I would affirm the district court’s grant of sum-
mary judgment to the school district in its entirety.
or harm that would have been covered by the administrative proceedings
under the IDEA. If there are any claims for relief made as to which no tri-
able issue of fact exists but that the relief is “also available” under the
IDEA, the complaint must be dismissed as having been prematurely filed
before the required administrative exhaustion.