Batchelor Ex Rel. R.B. v. Rose Tree Media School District

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________

No. 13-2192
______________

JANET BATCHELOR,
individually and on behalf of her
son; R.B., A Minor,
Appellants
v.

ROSE TREE MEDIA SCHOOL
DISTRICT; THE BOARD OF
SCHOOL DIRECTORS OF THE
ROSE TREE MEDIA SCHOOL
DISTRICT; LINDA
BLUEBELLO, Director of Pupil
Services of Rose Tree Media
School District; ERIC BUCCI,
Assistant Principal of Penncrest
High School; NORMAN
HARRISON, Assistant Principal
of Penncrest High School;
RICHARD GREGG, Principal of
Penncrest High School; KAREN
WALKER; PATRICIA BARTA
______________

1
 APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA
(Case No. 2-11-cv-06733)
District Judge: Hon. C. Darnell Jones, II
______________

Argued: January 14, 2014
______________

Before: AMBRO, HARDIMAN, and GREENAWAY, JR.,
Circuit Judges.

(Opinion Filed: July 17, 2014)
______________

OPINION
______________

Frank Schwartz, Esq., ARGUED
Lamm Rubenstone
3600 Horizon Boulevard
Suite 150
Trevose, PA 19053
Counsel for Appellants

Craig D. Ginsburg, Esq., ARGUED
Michael I. Levin, Esq.
Levin Legal Group
1800 Byberry Road
1301 Masons Mill Business Park
Huntingdon Valley, PA 19006
Counsel for Appellees

2
GREENAWAY, JR., Circuit Judge.

Janet Batchelor (“Ms. Batchelor”), individually and on
behalf of her son, Ryan Batchelor (“Ryan”) (collectively
“Appellants”) filed suit against the Rose Tree Media School
District (“District”), and six individual District employees1
(“Individual Appellees”) (collectively “Appellees”)2,
asserting their entitlement to the statutory protections of the
Individuals with Disabilities Education Act (“IDEA”), 20
U.S.C. §§ 1400-1482, the Rehabilitation Act, 29 U.S.C. §
794(a) (“Section 504”), and the Americans with Disabilities
Act (“ADA”), 42 U.S.C. §§ 12101-12213. The District Court
dismissed Appellants’ federal claims pursuant to Fed. R. Civ.
P. 12(b)(1) for lack of subject matter jurisdiction because
Appellants intentionally failed to exhaust the administrative
remedies under the IDEA. This appeal followed.
1
Individual Appellees include: (1) Linda Bluebello, the
District’s Director of Pupil Services; (2) Richard Gregg, the
Principal of Penncrest High School; (3) Eric Bucci, an
Assistant Principal of Penncrest High School; (4) Ralph
Harrison, an Assistant Principal of Penncrest High School; (5)
Patricia Barta, the Director of Special Education for the
District; and (6) Karen Walker, a special education teacher at
Penncrest High School. (Second Amended Complaint
(“Complaint” or “Compl.” ¶¶ 6-11) (Mar. 5, 2012.))
2
Appellants’ Complaint originally included the District’s
Board of School Directors as a Defendant, but Appellants
voluntarily withdrew them.

3
 On appeal, Appellants argue that the District Court
erred in concluding that their federal claims are subject to the
IDEA’s exhaustion requirement. Alternatively, they argue
that their claims are exempt from exhaustion. For the reasons
provided below, we determine that Appellants’ federal claims
indeed fall within the ambit of the IDEA and require
exhaustion, and further, that no exception to the IDEA’s
exhaustion requirement applies under the facts presented. We
will therefore affirm the District Court’s dismissal of
Appellants’ federal claims pursuant to Fed. R. Civ. P.
12(b)(1) for lack of subject matter jurisdiction.

I. BACKGROUND

A. Factual Background
Because we are reviewing the District Court’s grant of
a motion to dismiss for lack of subject matter jurisdiction
under Fed. R. Civ. P. 12(b)(1), it is appropriate to draw the
facts from the allegations contained in the Complaint, and to
accept them as true. See Taliaferro v. Darby Twp. Zoning
Bd., 458 F.3d 181, 188 (3d Cir. 2006).

1. Ryan’s Freshman (2008-2009) and Sophomore Years
(2009-2010)

In December 2008, during his freshman year at
Penncrest High School, Ryan was diagnosed with Attention
Deficit Hyperactivity Disorder, which is designated as a
disability within the meaning of Section 504. (Compl. ¶ 20.)
The District developed and implemented a written 504 Plan
(“504 Plan”) for Ryan, pursuant to which the District placed
Ryan in an achievement center for support and provided Ryan

4
with counseling and tutoring.3 These services continued
throughout Ryan’s freshman year; however, in October 2009,
Ms. Batchelor learned that Ryan’s guidance counselor had
failed to schedule Ryan for placement in the achievement
center for his sophomore year. More important, Ryan’s
teachers did not receive a copy of his 504 Plan. (Id. at ¶¶ 22-
25.) Despite Ryan’s subsequent assignment to the
achievement center, in December 2009 and again in March
2010, Ryan’s guidance counselor reported to Ms. Batchelor
that Ryan was failing his classes. (Id. at ¶ 27.)

On March 15, 2010, Ms. Batchelor met with Vice
Principal Harrison to discuss Ryan’s struggles, and informed
him that the District was not providing Ryan with the support
services required by the 504 Plan. (Id. at ¶ 28.) Appellants
allege that Mr. Harrison was hostile and offensive during the
meeting, and, at its conclusion, Ms. Batchelor informed Mr.
Harrison she would be contacting an attorney. (Id.)

The next month, in April 2010, Ms. Batchelor and her
attorney met with District representatives to discuss the
District’s failure to implement Ryan’s 504 Plan. (Id. at ¶ 36.)
After this meeting, the District assigned Ryan to a resource
room, provided tutoring, and, in an effort to better identify the
nature of Ryan’s learning disability, administered additional
testing and evaluations. (Id. at ¶ 37.) Following testing,
which evidenced that Ryan had an additional math disability,
an Individualized Education Plan (“IEP”) meeting was held

3
The parties did not provide the Court with a copy of Ryan’s
504 Plan.

5
with the District and Ms. Batchelor, and subsequently, the
District developed an IEP for Ryan.4 (Id. at ¶ 38.)

As a result of the April 2010 meeting, the District
offered Appellants a settlement whereby Ms. Batchelor would
waive all claims under the IDEA, Section 504, and the ADA,
and the District would provide compensatory education
services to Ryan. (Id. at ¶ 39.) Specifically, the settlement
agreement (the “Settlement Agreement”) required the District
to “establish a[] fund for compensatory education consisting
of one hundred sixty hours of tutoring . . . .” Defs.’ Mem. of
Law in Opp’n to Pls.’ Mot. for a TRO and Imposition of a
Prelim. Inj. Ex. 3, Ryan Batchelor, et al. v. Rose Tree Media
School District, et al., Case No. 2:11-cv-06733-CDJ (E.D. Pa.
Nov. 9, 2011), ECF No. 6-3. The Settlement Agreement
became effective at the beginning of Ryan’s junior year, on
September 24, 2010. (Compl. ¶¶ 39-40.)

2. Ryan’s Junior Year (2010-2011)

The District failed to reimburse Ms. Batchelor for the
costs of private tutoring incurred between January and April

4
The parties also did not provide the Court with a copy of
Ryan’s IEP. We relay the limited information concerning its
contents provided in the Complaint. We presume that Ryan
became IEP eligible upon being diagnosed with a math
disability because Section 504 defines disability more broadly
than the IDEA, and thus, some students covered by Section
504 are not covered under the IDEA. Compare 20 U.S.C. §
1401(3) with 42 U.S.C. § 12102(1) (incorporated by reference
in 29 U.S.C. § 705(9)(B)).

6
2011, despite its obligations to do so under the Settlement
Agreement. Consequently, Ms. Batchelor filed a breach of
contract action, which resulted in the District partially
reimbursing her for the tutoring costs. Nevertheless, the
District refused to reimburse Ms. Batchelor for the cost of
tutoring services incurred thereafter. (Id. at ¶ 62.)

Appellants allege that, in addition to failing to
implement the Settlement Agreement, during Ryan’s junior
year the District engaged in retaliatory acts against them. (Id.
at ¶¶ 42-50). For example, Appellants allege that, in an act of
retaliation, the District changed Ryan’s math tutor from a
teacher he had worked well with to a tutor who was sarcastic,
impatient, and mean, causing Ryan to “feel badly about
himself.” (Id. at ¶ 43.) In another example of retaliation,
Appellants allege that the District assigned Ryan to a teacher
whom they knew Ryan considered to be a bully. Indeed, on
Ryan’s first day of class, he was wrongly disciplined and
humiliated. (Id. at ¶ 57.)

3. Ryan’s Senior Year (2011-2012)

Due to the District’s failure to implement the terms of
the Settlement Agreement and Ryan’s IEP, as well as the
continuing acts of bullying and retaliation Ryan and Ms.
Batchelor suffered, Ryan withdrew from Penncrest for his
senior year and enrolled in Twenty First Century Cyber
Charter School. (Id. at ¶ 66.) In another act of alleged
retaliation, the District refused to allow Ryan to participate in
Penncrest’s choir and dance teams during his senior year even
though he remained a District resident. (Id. at ¶ 67.)

7
 Appellants allege that, collectively, the District’s
retaliatory actions were severely detrimental to Ryan’s
educational achievement and health.

B. Procedural History

On October 27, 2011, Appellants filed the Initial
Complaint, and on March 5, 2012, filed the Complaint at
issue here. In the Complaint, Appellants make three federal
claims: (1) retaliation/failure to provide a free appropriate
public education (“FAPE”) in violation of the IDEA, 20
U.S.C. § 1401(9) (Count II, Appellants v. District); (2)
retaliation in violation of Section 504 of the Rehabilitation
Act, 29 U.S.C. § 794(a) (Count III, Appellants v. District);
and (3) retaliation in violation of the ADA, 42 U.S.C. § 12203
(Count IV, Appellants v. District & Individual Appellees).5
Appellants seek compensatory damages, statutory damages,
reasonable attorney’s fees, and “such other further relief as
this court deems just and appropriate.” (Compl. ¶¶ 82, 92,
101.)

Appellees filed a motion to dismiss, which Judge
Sitarski granted pursuant to Fed. R. Civ. P. 12(b)(1) for lack
of subject matter jurisdiction, on the ground that Appellants

5
Appellants initially included claims for discrimination as part
of Counts II, III, and IV, but those claims were voluntarily
dismissed. (App. 138a.) Additionally, the Complaint
contained three state law claims (Counts I, V, and VI), but
Magistrate Judge Lynne A. Sitarski dismissed those claims by
declining to exercise supplemental jurisdiction. (Pls.’ Opp’n
Mot. Dismiss at 2; App. 138a.) The dismissal of these state
law claims is not before us on appeal.

8
failed to exhaust their administrative remedies under the
IDEA. See Magistrate Judge Sitarski’s Report &
Recommendation, Batchelor v. Rose Tree Media School Dist.,
11-cv-6733, 2012 WL 7990542, at *3 (E.D. Pa. Oct. 2, 2012)
(hereinafter R&R). Judge C. Darnell Jones, II of the United
States District Court for the Eastern District of Pennsylvania
adopted Judge Sitarski’s Report and Recommendation.

On appeal, Appellants argue that the District Court
erred in concluding that their claims are subject to the IDEA’s
exhaustion requirement. (Appellants’ Br. 10.) Alternatively,
Appellants argue that their claims are exempt from the
IDEA’s exhaustion requirement because: (1) they seek only
monetary damages, which are unavailable under the IDEA
(id. at 13-15); (2) the implementation exception applies (id. at
15-19); and/or (3) the futility exception applies. (Id. at 19-
20.)

II. JURISDICTION & STANDARD OF REVIEW

The District Court had jurisdiction over Appellants’
IDEA claims under 28 U.S.C. § 1331. We have appellate
jurisdiction over an appeal from a dismissal for lack of
subject matter jurisdiction under 28 U.S.C. § 1291.

We exercise plenary review over a district court’s
order dismissing a complaint for lack of subject matter
jurisdiction. Taliaferro, 458 F.3d at 188. Because Appellees
made a facial challenge to the District Court’s subject matter
jurisdiction under Rule 12(b)(1), that is, they contested the
sufficiency of the pleadings, “we review only whether the
allegations on the face of the complaint, taken as true, allege

9
facts sufficient to invoke the jurisdiction of the district court.”
Id. (internal quotation marks omitted).6

III. ANALYSIS

A. The IDEA Statutory Scheme

The purpose of the IDEA is to “ensure that all children
with disabilities have available to them a free appropriate
public education that emphasizes special education and
related services designed to meet their unique needs . . . .” 20
U.S.C. § 1400(d)(1)(A). Under the IDEA, a state is eligible
for federal funding if it complies with several requirements,
all aimed at protecting the rights of students with disabilities
and their parents. The main requirement is that states make
available a FAPE to children with disabilities. Id. §
1412(a)(1).7 States must comply with detailed procedures for

6
Judge Sitarski determined, and the parties do not disagree,
that Appellees made a facial attack on subject matter
jurisdiction. (R&R at *3.)
7
The state administers a FAPE by developing an IEP for
every child with disabilities. 20 U.S.C. § 1414(d); see also
Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley,
458 U.S. 176, 181-82 (1982). Although the IDEA does not
set forth definite guidelines for the formulation of an IEP,
Rowley, 458 U.S. at 189, at a minimum, “[t]he IEP must be
reasonably calculated to enable the child to receive
meaningful educational benefits in light of the student’s
intellectual potential.” Shore Reg’l High Sch. Bd. of Educ. v.
P.S., 381 F.3d 194, 198 (3d Cir. 2004) (internal quotation
marks and citation omitted).

10
identifying, evaluating, and making placements for students
with disabilities, as well as procedures for developing IEPs.
They must also implement specified procedural safeguards to
ensure children with disabilities and their parents are
provided with due process. These safeguards, known
collectively as the IDEA’s administrative process, provide
parents with an avenue to file a complaint and to participate
in an impartial due process hearing with respect to “any
matter relating to the identification, evaluation, or educational
placement of the[ir] child, or the provision of a free
appropriate public education to such child . . . .” Id. §
1415(b)(6)(A); see also id. § 1415(f)(1)(A) (parents who have
filed a complaint “shall have an opportunity for an impartial
due process hearing . . . .” ). The IDEA’s administrative
process is conducted in compliance with state procedures. 20
U.S.C. § 1415(f)(1)(A).8

Following completion of the IDEA’s administrative
process, i.e., exhaustion, the IDEA affords “[a]ny party
aggrieved by the findings and decisions” made during or
pursuant to the impartial due process hearing an opportunity
for judicial review. 20 U.S.C. § 1415(i)(2)(A); Komninos v.
Upper Saddle River Bd. of Educ., 13 F.3d 775, 778 (3d Cir.

Note that the Rowley decision refers to the Education
of the Handicapped Act. 458 U.S. at 188. Congress changed
the name of the statute to the Individuals with Disabilities
Education Act (“IDEA”) in 1990. See Pub.L. No. 101-476,
104 Stat. 1141 (1990). To avoid confusion, we refer to the
statute throughout this opinion as the IDEA.
8
In Pennsylvania, an impartial hearing officer presides over
the due process hearing. See 22 Pa. Code § 14.162(f).

11
1994). In the normal case, exhausting the IDEA’s
administrative process is required in order for the statute to
“grant[] subject matter jurisdiction to the district court[].”
Komninos, 13 F.3d at 778 (“[I]t is clear from the language of
the Act that Congress intended plaintiffs to complete the
administrative process before resorting to federal court.”); see
also 20 U.S.C. § 1415(i)(3)(A). After examining the
administrative record and hearing additional evidence at the
request of either party, the reviewing court is authorized to
grant “such relief as [it] determines is appropriate” based on
the preponderance of the evidence. 20 U.S.C. §
1415(i)(2)(C)(i)-(iii). These remedies include, inter alia,
“attorneys’ fees, reimbursement for a private educational
placement, and compensatory education.” Chambers v. Sch.
Dist. of Phila. Bd. of Educ., 587 F.3d 176, 185 (3d Cir. 2009)
(internal quotation marks omitted).

Exhaustion of the IDEA’s administrative process is
also required in non-IDEA actions where the plaintiff seeks
relief that can be obtained under the IDEA. Congress
provided an express “[r]ule of construction” in section
1415(l), which states:

[n]othing in this chapter shall be construed to
restrict or limit the rights, procedures, and
remedies available under the Constitution, the
Americans with Disabilities Act of 1990 [42
U.S.C. § 12101-12213], title V of the
Rehabilitation Act of 1973 [29 U.S.C. § 791-
794f], 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

12
 this subchapter, the [IDEA administrative
process] 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). “This provision bars plaintiffs from
circumventing [the] IDEA’s exhaustion requirement by
taking claims that could have been brought under IDEA and
repackaging them as claims under some other statute—e.g.,
section 1983, section 504 of the Rehabilitation Act, or the
ADA.” Jeremy H. v. Mount Lebanon Sch. Dist., 95 F.3d 272,
281 (3d Cir. 1996) (finding plaintiffs properly exhausted
ADA and Section 504 Act claims by participating in an IDEA
due process hearing). Thus, determining if the IDEA’s
administrative process must be exhausted before bringing
claims in federal court turns on whether the parties could
have asserted the claims under the IDEA. Intertwined with
this inquiry is whether the claim could have been remedied by
the IDEA’s administrative process. This means that, absent
the application of any exceptions, all of Appellants’ claims
made pursuant to the IDEA require exhaustion, as do any
claims asserted under Section 504 and the ADA, if they seek
relief that is available under the IDEA.9 As set forth below,
9
Appellants concede, and the record confirms, that they did
not exhaust IDEA administrative remedies before filing the
Complaint at issue here. (Appellants’ Br. 6) (“[P]laintiffs
have not exhausted their administrative remedies . . . .’”)
(quoting App. 43a).) Appellants do not assert they have filed
a complaint pursuant to Section 1415(b), or participated in an
impartial due process hearing under Section 1415(f). Thus,
they do not come before this Court as an “aggrieved” party.
20 U.S.C. § 1415(i).

13
all of Appellants’ claims require exhaustion of the IDEA’s
administrative process, and thus, the District Court did not err
in dismissing them. Appellants’ failure to exhaust
administrative remedies forestalled the District Court from
properly asserting subject matter jurisdiction over the federal
claims.

B. Applicability of the IDEA’s Exhaustion
Requirement

At the outset, we reject Appellants’ argument that “this
action is exempt from the requirement to exhaust
administrative remedies pursuant to the IDEA” because “[t]he
issues presented . . . are not educational issues[;] [r]ather they
are issues of civil rights resulting from Defendants’
retaliatory conduct.” (Appellants’ Br. 6, 10-13.) To review,
Count II asserts “retaliation/failure to provide [a] FAPE in
violation of [the] IDEA[.]” (Compl. ¶¶ 73-82.) Count III
asserts “retaliation in violation of Section 504”. (Id. at ¶¶ 83-
92.) Last, Count IV asserts “retaliation in violation of the
ADA”. (Id. at ¶¶ 93- 101.) We address each of these claims
in turn.

Count II of the Complaint squarely falls within those
claims subject to the IDEA’s exhaustion requirement. See 20
U.S.C. § 1415(i). Indeed, Count II asserts a claim against the
District under the stricture of the IDEA itself. (Compl. ¶¶ 73-
82.) Moreover, Appellants assert that as a result of the
District’s failure to provide Ryan with a FAPE and to
implement Ryan’s IEP, as is required under the IDEA, “Ryan
has suffered and continues to suffer great harm to his level of
educational achievement and personal well being.” (Id. at ¶
81.) It is plain that Count II falls within the ambit of §
1415(i) and requires exhaustion: Appellants claim that the

14
IDEA has been violated, they allege educational harms, and
the IDEA’s statutory scheme is able to provide an appropriate
remedy.

It is less clear however, if exhaustion is required for
Counts III & IV of the Complaint, which allege retaliation in
violation of Section 504 of the Rehabilitation Act and the
ADA. (Compl. ¶¶ 83-92, 93-101.) We must decide, as a
matter of first impression, whether a claim that a school
district retaliated against a child and/or the child’s parents for
enforcing the child’s rights under the IDEA could be brought
under, and remedied by, the IDEA. Appellants urge that it
cannot.10 We disagree. Appellants’ retaliation claims are
related to the provision of FAPE under 20 U.S.C. §
1415(b)(6) and, as such, must be exhausted.

The question at hand requires statutory interpretation
in the first instance. “Our goal when interpreting a statute is
to effectuate Congress’s intent. Because we presume that
Congress’s intent is most clearly expressed in the text of the
statute, we begin our analysis with an examination of the
plain language of the relevant provision.” Hagans v. Comm’r
of Soc. Sec., 694 F.3d 287, 295 (3d Cir. 2012) (citation and
internal quotation marks omitted). The IDEA affords parents
of a disabled child the opportunity to present a complaint

10
Under Appellants’ approach, parties would be exempt from
exhaustion if they plead retaliation claims. Such a holding
would significantly lower the threshold to bring a claim in
court. This would be a radical departure from current
practice.

15
“with respect to any matter relating to the identification,
evaluation, or educational placement of the child, or the
provision of a free appropriate public education to such child .
. . .” 20 U.S.C. § 1415(b)(6)(A) (emphasis added).

Focusing on the claims asserted here, it is plain that
Appellants’ retaliation claims palpably “relate” to the
District’s provision of a FAPE to Ryan. Specifically,
Appellants contend that the District retaliated against Ms.
Batchelor and Ryan “for their advocacy with respect to
Ryan’s legally protected rights[.]” (Compl. ¶ 89.) They
allege that the District, inter alia, bullied, intimidated, and
further harassed Ms. Batchelor at meetings regarding Ryan’s
progress (id. at ¶¶ 28-29, 89), failed to timely reimburse Ms.
Batchelor for the cost of private tutors (id.), replaced a tutor
with whom Ryan worked well, with another, presumably less
effective tutor (id. at ¶ 89), refused to implement the terms of
Ryan’s IEP (id. at ¶¶ 80, 89), placed Ryan in a class taught by
Mr. Doyle, a teacher Ryan identified as being a bully (id. at
¶¶ 46-49, 89), and refused to permit Ryan to participate in
extracurricular activities during his senior year while enrolled
in a charter school. (Id. at ¶¶ 66-67, 89.) Among other
injuries, Appellants allege the District’s conduct deprived
Ryan of a FAPE and caused “great harm to his level of
educational achievement and personal well being.” (Id. at ¶¶
81, 92, 101.) In accord with two of our sister circuits who
require IDEA exhaustion of retaliation claims, we conclude
that Appellants’ retaliation claims asserted under Section 504
of the Rehabilitation Act and ADA “relate unmistakably” to
the provision of a FAPE to Ryan, and are thus subject to the
IDEA’s exhaustion requirement. Rose v. Yeaw, 214 F.3d 206,
210 (1st Cir. 2000) (finding that retaliation claims “relate
unmistakably to the evaluation and educational placement of

16
[a student], . . . and to the provision of a free appropriate
education . . . .”); see also M.T.V. v. DeKalb Cnty. Sch. Dist.,
446 F.3d 1153, 1158-59 (11th Cir. 2006) (“[R]etaliation
claims clearly relate to [the disabled student’s] evaluation and
education, and, therefore, are subject to the [IDEA’s]
exhaustion requirement.”).

In M.T.V. v. DeKalb County School District, the
Eleventh Circuit found claims of retaliation to be “related” to
the disabled student’s evaluation and education, so as to
require IDEA exhaustion, where “the [s]chool [d]istrict
harassed the student’s parents at IEP meetings, wrote them
intimidating letters in response to their educational demands,
and subjected the student to needless and intrusive testing.”
446 F.3d at 1158-59. Similarly, the First Circuit held in Rose
v. Yeaw, that a claim of a school district’s retaliation “against
[a student] in response to the [parents’] efforts to enforce his
educational rights . . . relate[s] unmistakably to the evaluation
and educational placement of [the student], . . . and to the
provision of a free appropriate education . . . .” 214 F.3d at
210.

We are satisfied that the plain language of the IDEA
required exhaustion here, as there is a logical path to be
drawn from the Appellants’ claims of retaliation to the
District’s failure to provide, and Ms. Batchelor’s effort to
obtain for, Ryan “a free appropriate public education”. 20
U.S.C. § 1415(b)(6)(A); see also Park ‘N Fly, Inc. v. Dollar
Park & Fly, Inc., 469 U.S. 189, 194 (1985) (“[T]he ordinary
meaning of that language accurately expresses the legislative
purpose . . . .”).

17
 Besides the mandates of statutory interpretation, there
is a strong policy reason requiring exhaustion of remedies
available under the IDEA. Komninos, 13 F.3d at 778.
Exhaustion serves the purpose of developing the record for
review on appeal, S.H. v. State-Operated Sch. Dist. of City of
Newark, 336 F.3d 260, 269-70 (3d Cir. 2003) (discussing the
importance of fact-finding in IDEA cases), encouraging
parents and the local school district to work together to
formulate an IEP for a child’s education, Komninos, 13 F.3d
at 778, and allowing the education agencies to apply their
expertise and correct their own errors. Cf. McKart v. United
States, 395 U.S. 185, 193 (1969) (explaining the doctrine of
exhaustion of administrative remedies, and noting its
application “to specific cases requires an understanding of
[the statute’s] purpose[] and of the particular administrative
scheme involved”); see also Polera v. Bd. of Educ. of the
Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 487 (2d
Cir. 2002) (“The IDEA’s exhaustion requirement was
intended to channel disputes related to the education of
disabled children into an administrative process that could
apply administrators’ expertise in the area and promptly
resolve grievances.”) Indeed we have previously recognized
that:

[t]he advantages of awaiting completion of the
administrative hearings are particularly weighty
in Disabilities Education Act cases. That
process offers an opportunity for state and local
agencies to exercise discretion and expertise in
fields in which they have substantial
experience. These proceedings thus carry out
congressional intent and provide a means to
develop a complete factual record. Smith v.

18
 Robinson, 468 U.S. [992, 1011 (1984)]
(Congress made express efforts to place primary
responsibility for fulfilling the needs of
handicapped children on local and state
education agencies). The administrative
hearings generally will produce facts and
opinions relevant to the very same issues
presented to the court by plaintiffs.

Komninos, 13 F.3d at 779. These policy concerns weigh
heavily in favor of requiring exhaustion, even where the
complaint contains claims of retaliation. Considering the
parties’ failure to provide even the most basic of
documentation in support of their positions, i.e., Ryan’s 504
Plan and IEP, exhaustion will be particularly helpful in
developing a factual record.

Given the plain language and structure of the IDEA, in
addition to the purpose of the IDEA’s exhaustion requirement
and the policy concerns supporting it, we now hold that
retaliation claims related to the enforcement of rights under
the IDEA must be exhausted before a court may assert subject
matter jurisdiction.11

11
It is also notable that special education hearing officers in
Pennsylvania have addressed retaliation claims under the
Rehabilitation Act in the past. See Pennsylvania Special
Education Hearing Officer Decision, Case No. 9629/08-09
(Nov. 10, 2009), at 21, available at
http://204.186.159.23/odr/HearingOfficerDecisions/9629-08-
09.pdf. Moreover, a guidebook for parents issued by the
Pennsylvania Office for Dispute Resolution notes that, in
addition to IDEA claims, due process hearings regularly

19
C. Exceptions to the IDEA’s Exhaustion Requirement

Appellants argue that even if the Court finds that their
claims fall within the scope of the IDEA’s exhaustion
requirement, those claims are exempt because: (1) they seek
only monetary damages, which are unavailable under the
IDEA (Appellants’ Br. 13-15); (2) the implementation
exception applies (id. at 15-19); and/or (3) the futility
exception applies. (Id. at 19-20.) These arguments all fail.

1. Monetary Damages not Available Under the IDEA

Appellants argue that their claims are exempt from the
IDEA’s exhaustion requirement because the remedies they
seek are unavailable under the IDEA. (Appellants’ Br. 13.)
While such an exception does exist generally, Komninos, 13
F.3d at 778, it is inapplicable in the instant case.

Appellants seek compensatory and punitive damages,
which, as they correctly point out, “are not available under
the IDEA and cannot be awarded in the context of a Due
Process hearing.” (Appellant Br. 14) (citing Chambers, 587
F.3d at 186). This is not dispositive, however, for several
reasons.

First, Appellants do not exclusively seek compensatory
and punitive damages. Indeed, despite Appellants’ assertion

address claims made under Section 504 of the Rehabilitation
Act. Understanding Special Education Due Process
Hearings: A Guide For Parents, Pennsylvania Office for
Dispute Resolution (2012), at 28, available at http://odr-
pa.org/2012-parent-guide/.

20
on appeal that “[t]he only remedy sought . . . is the payment
of monetary damages” (Appellants’ Br. 14), the Complaint
requests, in addition to compensatory damages and punitive
damages, statutory damages, reasonable attorney’s fees, and
“such other further relief as this court deems just and
appropriate”. (Compl. ¶¶ 82, 92, 101.) Thus, it is untenable
for Appellants to maintain that all of the remedies they seek
are unavailable under the IDEA.

Second, in reviewing Appellants’ IDEA-related
claims, the District Court is not constrained in the relief it is
authorized to grant by the remedies sought in the Appellants’
Complaint. On the contrary, the nature of Appellants’ claims
and the governing law determine the relief, regardless of
Appellants’ demands. See Fed. R. Civ. P. 54(c) (“Every other
final judgment should grant the relief to which each party is
entitled, even if the party has not demanded that relief in its
pleadings.”). Applying this to § 1415(f), “the theory behind
the grievance may activate the IDEA’s process, even if the
plaintiff wants a form of relief that the IDEA does not
supply.” Charlie F. v. Bd. of Educ. of Skokie Sch. Dist. 68, 98
F.3d 989, 992 (7th Cir. 1996).

In Charlie F. v. Board of Education of Skokie School
District 68, plaintiff sued for monetary damages under the
ADA, Section 504, 42 U.S.C. § 1983, and state tort law. Id.
Although plaintiff did not bring claims directly under the
IDEA, the Seventh Circuit still required exhaustion of the
IDEA’s administrative process. Id. at 991-93. The court
emphasized that parents “cannot ignore remedies available
under the IDEA and insist on those of their own devising;
under the IDEA, educational professionals are supposed to
have at least the first crack at formulating a plan to overcome
the consequences of educational shortfalls.” Id. at 992.

21
Under similar circumstances, the Second Circuit came to the
same result. See Polera, 288 F.3d at 478, 488 (requiring
exhaustion of the IDEA’s administrative process even though
plaintiffs did not bring an IDEA claim and only sought
monetary damages). The Second and Seventh Circuits’
reasoning for requiring exhaustion of the IDEA’s
administrative process applies with even more force in the
instant case, as Appellants asserted claims directly under the
IDEA.

Rather than being constrained by the remedies sought
in the Appellants’ Complaint, the IDEA authorizes the
District Court to grant Appellants “such relief as [it]
determines is appropriate”. 20 U.S.C. § 1415(i)(2)(C)(iii).
See also A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 802
(3d Cir. 2007) (en banc).12 As we noted in D.F. v.
Collingwood Borough Board of Education,

12
Relief under Section 1415(i)(2)(C)(iii) is “appropriate” if it
furthers the purpose of the IDEA. Sch. Comm. of Burlington
v. Dep’t of Educ., 471 U.S. 359, 369 (1985). We have
interpreted this provision “broad[ly]” to include attorneys’
fees, reimbursement for a private educational placement, and
compensatory education. Chambers, 587 F.3d at 185
(collecting cases). See e.g., Forest Grove Sch. Dist. v. T.A.,
557 U.S. 230, 246 (2009) (reimbursement for private school
tuition); Collingswood, 694 F.3d at 499 (suggesting the
school district could contract with a local provider to provide
tutoring, counseling, or other support services); Ferren C.,
612 F.3d at 712 (creation of compensatory education fund);
Shore Reg’l, 381 F.3d at 198 (payment for out-of-district
tuition and related costs, including the student’s reasonable
attorneys’ fees); Bucks Cnty. Dep’t of Mental Health/Mental

22
 [a]ppropriate remedies under the IDEA are
determined on a case-by-case basis. “In each
case, a court will evaluate the specific type of
relief that is appropriate to ensure that a student
is fully compensated for a school district’s past
violations of his or her rights under the IDEA
and develop an appropriate equitable award.”

694 F.3d 488, 498-99 (3d Cir. 2012) (quoting Ferren C. v.
Sch. Dist. of Phila., 612 F.3d 712, 720 (3d Cir. 2010)). Thus,
despite their plea to the contrary, the remedies that Appellants
seek do not dictate the applicability of the IDEA to their
claims.

Third, even though a monetary award is not available
to Appellants during the IDEA administrative process as
compensatory and punitive damages,13 such an award may
nevertheless be granted as reimbursement for certain
expenses incurred. Indeed, “Congress meant to include

Retardation v. Pennsylvania, 379 F.3d 61, 69 (3d Cir. 2004)
(reimbursement to parent for the time she personally spent
working with her disabled daughter, even though parent had
no actual out-of-pocket expenses).
13
As per our holding in Chambers, Appellants’ request for
compensatory damages on their IDEA claims fail,
irrespective of exhaustion, as such damages are unavailable.
587 F.3d at 186. In Chambers, we stressed that “Congress
intended to ensure that disabled children receive a FAPE
under appropriate circumstances, not to create a mechanism
for compensating disabled children and their families . . .
where a FAPE is not provided.” Id.

23
retroactive reimbursement to parents as an available remedy
in a proper case.” Sch. Comm. of Burlington, 471 U.S. at 370.
For instance, if parents have paid for a disabled child’s
education because the public schools were failing to provide a
FAPE, the reimbursement of such expenses constitutes
appropriate relief under the IDEA. Forest Grove Sch. Dist.,
557 U.S. at 246; Sch. Comm. of Burlington, 471 U.S. at 370;
Lester H. v. Gilhool, 916 F.2d 865, 869-70 (3d Cir. 1990).
This reasoning applies with equal force with respect to
reimbursement for inadequate tutoring services. See D.F.,
694 F.3d at 498-99 (compensatory education can take the
form of summer school and tutoring). Accord Adams v. State
of Oregon, 195 F.3d 1141, 1150-51 (9th Cir. 1999) (parents
are entitled to reimbursement for appropriate private
tutoring).

Appellants’ argument that their action “does not
present any issue within the scope of § 1415(b)(6)” is further
undermined by their claims that as a result of the District’s
bad behavior, which included its failure to provide Ryan with
a FAPE, “Ryan has suffered great harm to his educational
achievement . . . .” (Compl. ¶¶ 92, 101.) It is clear that
“[b]oth the genesis and the manifestations of the problem[s]
are educational . . . .” Charlie F., 98 F.3d at 993. The “IDEA
offers comprehensive educational solutions . . .” to directly
address educational harms,14 id., and, in addition, provides

14
Here, compensatory education is available even though
Ryan has since graduated from high school. Ferren C., 612
F.3d at 717. Under the IDEA, a school district’s obligation to
provide a FAPE terminates when the child reaches the age of
twenty-one. 20 U.S.C. § 1412(a)(1)(A); Ferren C., 612 F.3d
at 717. In appropriate cases however, relief under the IDEA

24
reimbursement for certain financial losses that occur as a
result of the educational harms. See Ferren C., 612 F.3d at
712 (compensatory education); Bucks Cnty. Dep’t of Mental
Health/Mental Retardation, 279 F.3d at 69 (financial
reimbursement). Thus, the District Court correctly concluded
that despite being unable to award compensatory damages, if
Appellants had prevailed at the due process hearing, the
special education hearing officer would have been able to
provide them with appropriate relief.15

may be awarded beyond a student’s twenty-first birthday.
Ferren C., 612 F.3d at 717 (awarding non-monetary award of
compensatory education to twenty-four year old student).
Here, Ryan’s age is unknown, and relief may still be available
to him under the IDEA. As is alleged in the Complaint itself,
Ryan “continues to suffer great harm to his level of
educational achievement,” and thus compensatory education
may be an appropriate remedy. (Compl. ¶¶ 81, 92, 101.)
15
This is not to say that Appellants will not be entitled to
compensatory damages for their retaliation claims after they
exhaust the IDEA administrative process. As Appellees’
counsel recognized at oral argument, after the administrative
hearing officer issues a decision, the IDEA authorizes “any
party aggrieved by the findings and decision” to appeal to a
federal district court. See 20 U.S.C. § 1415(i). In such an
action, the court reviews the records of the administrative
proceedings, hears additional evidence at the request of a
party, and grants such relief as may be appropriate. 20 U.S.C.
§ 1415(i)(2)(C); see also Komninos, 13 F.3d at 778. At that
point, so long as the aggrieved party has exhausted the
IDEA’s administrative process, they may seek relief, such as
compensatory damages, that is not otherwise available during

25
 Holding that Appellants must exhaust the IDEA’s
administrative process before seeking judicial relief ensures
that the purpose of the IDEA remains intact. In response to a
school district’s alleged bad behavior, the educational harms
suffered by children with disabilities will be addressed first
and foremost during the IDEA’s administrative process.
Once these educational deficiencies have been addressed,
victims may seek further remedy in court pursuant to
statutory schemes allowing for compensatory and punitive
damages, such as Section 504 and the ADA provide.

2. Implementation Exception to the IDEA Exhaustion
Requirement

Appellants also argue that their claims are exempt
from the IDEA’s exhaustion requirement because an
implementation exception applies. (Appellants’ Br. 15-19.)
According to Appellants, the exception applies where the
parties challenge only the implementation of a student’s IEP
and not its adequacy or content. (Id. at 16.)

There is no binding appellate precedent requiring this
Court to recognize the implementation exception. Instead,
Appellants urge us to consider two cases from the Ninth and
Second Circuits, as well as six district court cases from

the administrative proceeding. This means that, after
exhaustion, Appellants may very well file a complaint
containing virtually identical claims as asserted in the
Complaint before us today.

26
Pennsylvania. (Id. at 15-19; see also Appellant Reply 1-4.)
These cases are inapposite.

The Ninth Circuit held in Porter v. Board of Trustees
of Manhattan Beach Unified School District, 307 F.3d 1064,
1071 (9th Cir. 2002), that since the parents exhausted the
IDEA’s administrative process and obtained an order for a
compensatory education program for their child, they were
not required to again exhaust the IDEA’s administrative
process or to comply with the state’s complaint resolution
procedure16 before they could sue in federal court for failure

16
As the Seventh Circuit explained:

Distinct from the IDEA’s due process
requirements, the U.S. Department of Education
promulgated regulations pursuant to its general
rulemaking authority requiring each recipient of
federal funds, including funds provided through
the IDEA, to put in place a complaint resolution
procedure (“CRP”). 34 C.F.R. §§ 300.660-
300.662 (citing 20 U.S.C. § 1221e-3 as
authority for rules); Lucht v. Molalla River Sch.
Dist., 225 F.3d 1023, 1029 (9th Cir. 2000). The
regulations require each state education agency
to adopt written procedures for “[r]esolving any
complaint” regarding the education of a child
with a disability. 34 C.F.R. § 300.660(a). . . .
The regulations do not, however, state that a
parent must exhaust the CRP to enforce a due
process decision in court.

Porter, 307 F.3d at 1067; accord Jeremy H., 95 F.3d at 281.

27
to implement the program. Id. The facts of Porter are
materially different from the case at hand, as Appellants here
have not invoked the IDEA’s administrative process in the
past. Moreover, although the parties entered into the binding
Settlement Agreement, as a threshold matter that is not a final
decision issued by a hearing officer that they can argue the
District failed to implement. See 20 U.S.C. 1415(i)(1)(A) (“A
decision made in a [due process hearing] . . . shall be final . . .
.”); id. § 1415(i)(2) (“Any party aggrieved by the findings and
decision made under this subsection . . . shall have the right to
bring a civil action with respect to the complaint presented
pursuant to this section . . . .”) (emphasis added).

In dicta, the Second Circuit has also acknowledged an
implementation exception where the only issue presented is
that “a school [] failed to implement services that were
specified or otherwise clearly stated in an IEP”. Polera, 288
F.3d at 489.17 Ultimately, however, the Polera court declined

17
In recognizing this exception, the court relied on the
following statement of Senator Paul Simon, a co-sponsor of
two of the acts that formed the foundation of the IDEA:

“It is important to note that there are certain
situations in which it is not appropriate to
require the exhaustion of [IDEA] administrative
remedies before filing a civil law suit. These
include complaints that . . . an agency has failed
to provide services specified in the child’s
individualized educational program.”

Id. at 489 (quoting 131 Cong. Rec. § 10396-01 (1985)).

28
from applying the exception because implementation of the
IEP was not the only issue presented. Id. at 489. To the
contrary, the IEPs at issue “did not clearly state the
obligations of the school”, and instead, their terms required
the court’s interpretation. Id.18 As an initial matter, looking
at the record before us, it is impossible to adopt this exception
as the parties have not appended a copy of Ryan’s IEP.
Therefore, we do not know if Appellants’ claims
“encompass[] both a failure to provide services and a
significant underlying failure to specify what services were to
be provided”. Id. However, even if Appellants had provided
Ryan’s IEP, we would not have occasion to adopt this
exception because the implementation of the IEP is not the
sole issue in dispute. Rather, unlike the plaintiffs in Polera,
Appellants here make substantive claims under the IDEA for
failure to provide a FAPE, in addition to claims for

18
Rather, the IEPs in contention:

include[d] long lists of abstract goals (for
example, “will successfully accomplish the
required language arts skills necessary to
complete the grade 12 curriculum”) but [were]
virtually silent as to what materials or services
the school should provide.

Id. The court noted that, “[i]n order to identify those services
(for example, to ascertain the content of a ‘curriculum’), we
are left either to speculation or to reliance on extrinsic
evidence . . . .” Id.

29
retaliation. In accord, it would be inappropriate to apply an
implementation exception in the case at bar.19

3. Futility Exception to the IDEA Exhaustion
Requirement

Lastly, Appellants attempt to save their claims from
dismissal by arguing that the futility exception to the IDEA’s
exhaustion requirement applies. (Appellants’ Br. 19-20.)
Their theory is that because “Ms. Batchelor had to sue the
District not once but twice to enforce previous awards of
compensatory education services, it is clear that a third resort
to the IDEA’s administrate procedures to obtain further
compensatory education would have been an exercise in
futility.” (Id.)

The District’s alleged past failure to implement Ryan’s
Section 504 Plan and IEP is an insufficient basis to excuse the
exhaustion requirement. (Appellees’ Br. 22.) That said,
Appellants’ position does have traction in case law. See
Komninos, 13 F.3d at 778; W.B. v. Matula, 67 F.3d 484, 493
(3d Cir. 1995), abrogated on other grounds by Jersey City
Pub. Schs., 486 F.3d at 799 (overruling Matula insofar as it
held that money damages are available in a § 1983 action
based on an IDEA violation).

In Matula, we employed the futility exception to
excuse exhaustion, but notably, in that case, plaintiffs had

19
Appellants also cite to six district court cases from
Pennsylvania that excuse exhaustion under an implementation
exception, but for the reasons provided in Section C. III,
infra, they do not persuade us. (Appellants’ Reply Br. 2.)

30
previously participated in hearings in front of an
administrative law judge to resolve the student’s classification
and placement, and, in addition, the factual record was fully
developed. 67 F.3d at 496. Under those circumstances, we
determined that “an action seeking compensation for the
alleged IDEA violations is [] ripe for judicial resolution.” Id.
Also, in Komninos, we recognized that the IDEA’s legislative
history advises that exhaustion is not necessary when “an
emergency situation exists (e.g., the failure to take immediate
action will adversely affect a child’s mental or physical
health).” 13 F.3d at 778 (quoting H.R. Rep. No. 99-296, at 7
(1985)).

District courts in this circuit have followed suit,
implementing the futility exception where the plaintiff had
previously exhausted administrative remedies, and where the
factual record was sufficiently developed. The district courts
have also expanded this rule to situations where the plaintiff
sought remedies unavailable under the IDEA, and where the
court was not presented with educational issues to be
resolved. See Derrick F. v. Red Lion Area Sch. Dist., 586 F.
Supp. 2d 282, 295 (M.D. Pa. 2008) (further exhaustion would
be futile where plaintiffs previously exhausted the
administrative process); Adam C. v. Scranton Sch. Dist., 07-
CV-0532, 2008 U.S. Dist. LEXIS 72903, at *6 (M.D. Pa.
Sept. 23, 2008) (same); James S. v. Sch. Dist. of Phila., 559 F.
Supp. 2d 600, 619 (E.D. Pa. 2008) (exhaustion would be
futile where there had been “extensive administrative fact-
finding”); Vicky M. v. Northeastern Educ. Intermediate Unit
19, 486 F. Supp. 2d 437, 452-53 (M.D. Pa. 2007) (exhaustion
would be futile where plaintiffs sought damages for physical
abuse and where no other educational issues needed
resolution).

31
 The instant case does not present any of the
circumstances warranting the application of the futility
exception: Appellants have not previously utilized the IDEA
administrative process, the factual record is not developed
and evidentiary issues are not resolved, the only remaining
issue is not a measure of damages, and the IDEA
administrative process is in fact able to provide a suitable
remedy for the harms alleged.20 We therefore decline to
excuse the exhaustion requirement under the futility
exception here.21

20
Instead, in the case at hand, the Complaint challenges, inter
alia, the District’s provision of a FAPE to Ryan, the adequacy
of tutoring and class instruction provided, and its denial of
Ryan’s participation in extracurricular activities, (Compl. ¶¶
52-55, 66), all of which have “an educational source the
administrative process may resolve.” (App. 20a.)
21
In Rose v. Yeaw, the First Circuit rejected a similar non-
cooperation theory to the one asserted by the Appellants here.
214 F.3d at 208-09. In that case, a school district withdrew
its request for a due process hearing on two occasions after
the child’s IEP was amended to provide temporary placement.
The First Circuit held that the school district’s withdrawal
“did not render the administrative process futile” because the
“IDEA specifically grants parents the right to unilaterally
initiate a due process hearing.” Id. at 212 (citing 20 U.S.C. §
1415(f)(1)).

District courts in the this Circuit have also declined to
apply the futility exception in almost identical factual
scenarios. See e.g., Falzett v. Pocono Mountain School Dist.,
150 F. Supp. 2d 699, 703 (M.D. Pa. 2001); M.M. v.

32
IV. CONCLUSION

Appellants have not exhausted the IDEA’s
administrative process and fail to demonstrate that an
exception applies. Accordingly, we hold that the District
Court was correct in dismissing the Complaint for want of
subject matter jurisdiction. For these reasons, we will affirm
the District Court’s dismissal of Counts II, III, and IV of the
Complaint for lack of subject matter jurisdiction under Rule
12(b)(1) of the Federal Rules of Civil Procedure.

Tredyffrin/Easttown Sch. Dist., Civ- 06-1966, 2006 WL
2561242, at *7 (E.D. Pa. 2006). In M.M. v.
Tredyffrin/Easttown Sch. Dist., the district court rejected
plaintiffs’ assertion that resorting to the IDEA administrative
process would be futile because they previously participated
in one resolution conference and one Section 504 conference,
which resulted in “one empty promise after another.” 2006
WL 2561242, at *7. See also Kuszewski v. Chippewa Valley
Schs., 51 F. Supp. 2d 812, 815 (E.D. Mich. 1999) (growing
animosity between the parties was not sufficient to find that
the administrative process would be futile).

33