Danielle Martinez v. Gavin Newsom

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

Danielle Howard Martinez; D. P., a No. 20-56404
minor, by his Guardian ad Litem
Erica Wedlow; K. P., a minor, by his D.C. No.
Guardian ad Litem Brittany 5:20-cv-01796-
Williams; T. W., a minor by his SVW-AFM
Guardian ad Litem Dahl Johnson; P.
C., a minor by her Guardian ad
Litem Raven Campbell; LASHONDA OPINION
HUBBARD; AMBER WOOD,
Plaintiffs-Appellants,

v.

GAVIN NEWSOM, Governor; STATE
OF CALIFORNIA; CALIFORNIA STATE
BOARD OF EDUCATION; CALIFORNIA
DEPARTMENT OF PUBLIC HEALTH;
CALIFORNIA HEALTH AND HUMAN
SERVICES; SANDRA SHEWRY, State
Public Health Officer and
Department of Public Health
Director; CALIFORNIA DEPARTMENT
OF EDUCATION; TONY THURMOND,
State Superintendent of Public
Education; CALIFORNIA SCHOOL FOR
THE DEAF, Fremont and Riverside;
CALIFORNIA SCHOOL FOR THE BLIND
DIAGNOSTIC CENTER, Northern
California, Central California
2 MARTINEZ V. NEWSOM

Southern California; FREMONT
UNIFIED SCHOOL DISTRICT;
OAKLAND UNIFIED SCHOOL
DISTRICT; MT. DIABLO UNIFIED
SCHOOL DISTRICT; SAN RAMON
VALLEY UNIFIED SCHOOL DISTRICT;
WEST CONTRA COSTA UNIFIED
SCHOOL DISTRICT; CUPERTINO
UNION SCHOOL DISTRICT; HAYWARD
UNIFIED SCHOOL DISTRICT; SAN
JUAN UNIFIED SCHOOL DISTRICT;
SBE LATITUDE 37.8 HIGH SCHOOL;
LONG BEACH UNIFIED SCHOOL
DISTRICT; SOUTH PASADENA
UNIFIED SCHOOL DISTRICT;
CAPISTRANO UNIFIED SCHOOL
DISTRICT; SANTA ANA UNIFIED
SCHOOL DISTRICT; RIVERSIDE
UNIFIED SCHOOL DISTRICT; CHAFFEY
JOINT UNION HIGH SCHOOL
DISTRICT; MILPITAS UNIFIED
SCHOOL DISTRICT; GARDEN GROVE
UNIFIED SCHOOL DISTRICT; IRVINE
UNIFIED SCHOOL DISTRICT;
CORONA-NORCO UNIFIED SCHOOL
DISTRICT; MORENO VALLEY UNIFIED
SCHOOL DISTRICT; ETIWANDA
ELEMENTARY SCHOOL DISTRICT;
SAN BERNARDINO CITY UNIFIED
SCHOOL DISTRICT; SAN FRANCISCO
UNIFIED SCHOOL DISTRICT; LOS
ANGELES UNIFIED SCHOOL DISTRICT;
SAN JOSE UNIFIED SCHOOL
DISTRICT; SBC - HIGH TECH HIGH
 MARTINEZ V. NEWSOM 3

SCHOOL DISTRICT,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding

Argued and Submitted December 6, 2021
Submission Vacated March 7, 2022
Resubmitted August 17, 2022
Pasadena, California

Filed August 24, 2022

Before: MILAN D. SMITH, JR., KENNETH K. LEE, and
DANIELLE J. FORREST, Circuit Judges

Opinion by Judge Milan D. Smith, Jr.;
Concurrence by Judge Lee
4 MARTINEZ V. NEWSOM

SUMMARY *

Individuals with Disabilities Education Act

The panel affirmed in part and vacated in part the district
court’s dismissal of claims brought by a group of students
and parents who alleged that every school district in
California failed to adequately accommodate special needs
students after California public school transitioned to remote
instruction in March 2020 in response to the COVID-19
pandemic.

In this putative class action, plaintiffs alleged that
defendants violated the Individuals with Disabilities
Education Act and the Fourteenth Amendment, and they
sought declaratory and injunctive relief. The district court
dismissed plaintiffs’ claims for failure to exhaust
administrative remedies under the IDEA.

The panel held that plaintiffs lacked standing to sue
school districts in which they were not enrolled and the State
Special Schools, which they did not attend, because they did
not allege that those defendants injured them personally.
The panel held that, even if the “juridical link” doctrine,
providing an exception to the rule that a named plaintiff who
has not been harmed by a defendant is generally an
inadequate and atypical class representative for purposes of
Fed. R. Civ. P. 23, ever applies outside of the Rule 23
context, it would not apply here.

*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 MARTINEZ V. NEWSOM 5

The panel held that the California public schools’ return
to in-person instruction mooted plaintiffs’ claims against the
California Department of Education and the State
Superintendent of Public Education, as well as their claims
against other defendants seeking injunctions requiring a
return to in-person instruction or reassessment and services
until students return to in-person instruction. Surviving were
plaintiffs’ claims against the school districts in which they
were enrolled seeking compensatory education, a
declaratory judgment, and attorneys’ fees and costs.

The panel held that under the IDEA, plaintiffs were
required to exhaust administrative remedies before filing
their claims against their school districts, seeking relief for
the denial of a free and appropriate public education (FAPE)
during the time they were receiving remote instruction. The
panel held inapplicable exceptions to the exhaustion
requirement for when plaintiffs seek systemic or structural
relief, when it is improbable that adequate relief can be
obtained by pursuing administrative remedies, or when
exhaustion would be futile. For the systemic exception,
plaintiffs did not satisfy the requirement that they identify an
agency decision, regulation, or other binding policy that
caused their injury. The inadequacy exception did not apply
because even though some of their claims were based on the
Fourteenth Amendment, plaintiffs sought relief for the
denial of a FAPE, and unnamed class members were not
required to exhaust. The panel declined to consider for the
first time on appeal plaintiffs’ argument regarding the futility
exception. The panel also declined to consider an argument
regarding exhaustion of a claim for breach of a settlement
agreement because such a claim was not included in the
complaint.
6 MARTINEZ V. NEWSOM

The panel vacated the district court’s judgment
dismissing on the merits the claims that plaintiffs lacked
standing to bring and remanded with instruction to dismiss
those claims for lack of subject-matter jurisdiction. The
panel vacated the district court’s judgment as to the claims
against the California Department of Education and the State
Superintendent of Public Education, which were moot, and
remanded with instructions to dismiss those claims. The
panel affirmed the district court’s dismissal of the claims
against plaintiffs’ school districts for failure to exhaust
administrative remedies.

Concurring, Judge Lee wrote separately to urge laying to
rest a potential “juridical link” exception to Article III
standing. Judge Lee wrote that the majority opinion declined
to address whether the juridical link doctrine could ever be
viable, reasoning that plaintiffs lacked standing here even if
the panel assumed the doctrine applied. Judge Lee wrote
that he would prefer extinguishing the remaining embers of
any such misguided exception to constitutional standing.

COUNSEL

Maxwell V. Pritt (argued) and Erica Nyborg-Burch (argued),
Boies Schiller Flexner LLP, San Francisco, California;
Diana Renteria, Law Offices of Sheila C. Bayne, Newport
Beach, California; for Plaintiffs-Appellants.

Len Garfinkel (argued), Deputy General Counsel; Amy
Bisson Holloway, General Counsel; California Department
of Education, Sacramento, California; for Defendants-
Appellees California Department of Education, Tony
Thurmond, California School for the Deaf, and California
School for the Blind Diagnostic Center.
 MARTINEZ V. NEWSOM 7

S. Daniel Harbottle (argued), Sydney J. Blaauw, and Tracy
Petznick Johnson, Harbottle Law Group, Irvine, California,
for Defendants-Appellees Corona-Norco Unified School
District, Garden Grove Unified School District, Irvine
Unified School District, and Moreno Valley Unified School
District.

Marlon C. Wadlington (argued), Scott D. Danforth, and
Kristin M. Meyers, Atkinson Andelson Loya Ruud & Roma,
Cerritos, California, for Defendants-Appellees Chaffey Joint
Union High School District, Capistrano Unified School
District, Long Beach Unified School District, Riverside
Unified School District, Santa Ana Unified School District,
South Pasadena Unified School District, and Milpitas
Unified School District.

Kirin K. Gill, Deputy Attorney General, Rob Bonta,
Attorney General; Office of the Attorney General,
Sacramento, California; for Defendants-Appellees Gavin
Newsom, State of California, California State Board of
Education, California Department of Public Health,
California Health and Human Services, and Sandra Shewry.

Seth Gordon and Louis Leone, Leone Alberts & Duus APC,
Concord, California, for Defendants-Appellants Fremont
Unified School District, Oakland Unified School District,
Mt. Diablo Unified School District, San Ramon Valley
Unified School District, West Contra Costa Unified School
District, and Cupertino Union School District.

Lynn A. Garcia and Domenic D. Spinelli, Spinelli Donald &
Nott, Sacramento, California, for Defendants-Appellees
Hayward Unified School District and San Juan Unified
School District.
8 MARTINEZ V. NEWSOM

Katherine C. Den Bleyker, Lewis Brisbois Bisgaard & Smith
LLP, Los Angeles, California, for SBE Latitude 37.8 High
School.

Edward Kang and Thomas Madruga, Olivarez Madruga Law
Organization LLP, Los Angeles, California, for Defendants-
Appellees Etiwanda Elementary School District and San
Bernardino City Unified School District.

Mark Saul Posard, Gordon Rees LLP, San Francisco,
California, for Defendant-Appellee San Francisco Unified
School District.

Sue Ann Evans, Managing Senior Counsel, Dannis Woliver
Kelley, Long Beach, California, for Defendants-Appellees
Los Angeles Unified School District and San Jose Unified
School District

Kevin S. Wattles, Soltman Levitt Flaherty & Wattles LLP,
Thousand Oaks, California, for Defendant-Appellee SBC -
High Tech High School District.
 MARTINEZ V. NEWSOM 9

OPINION

M. SMITH, Circuit Judge:

A group of students and parents allege that every school
district in California failed to adequately accommodate
special needs students after California public schools
transitioned to remote instruction in March 2020 in response
to the COVID-19 pandemic. To address appellants’ claims,
we examine whether Plaintiffs were required to exhaust
administrative remedies pursuant to the Individuals with
Disabilities in Education Act (IDEA), 20 U.S.C. § 1400 et
seq., before filing their lawsuit. We hold that exhaustion was
required.

I

Plaintiffs are four students enrolled in the Etiwanda and
Chaffey Joint Union High School Districts as well as their
parents. They allege that when California public schools
transitioned to remote instruction in March 2020, every
school district in the state failed to determine “what changes
needed to be made to [special needs students’]
individualized education programs (‘IEP’) to account for the
differences in distance learning compared to in-person
instruction.” They allege that their IEPs were not updated to
account for remote instruction, they were not offered
sufficient accommodations after the transition, and they
were denied a free and appropriate public education (FAPE)
during the time they were receiving remote instruction.

Plaintiffs filed a putative class action lawsuit on behalf
of “all special needs students and their parents in California.”
They sued hundreds of defendants, including, but not limited
to: (1) the California Department of Education (CDE);
(2) California Superintendent of Public Instruction Tony
10 MARTINEZ V. NEWSOM

Thurmond; (3) every school district in the state of California;
and (4) the California School for the Deaf, the California
School for the Blind, and the Diagnostic Centers of
California (the State Special Schools). 1

Plaintiffs’ claims against the school districts are
straightforward: they allege that the districts failed to
adequately accommodate special needs students after the
transition to remote instruction, thereby denying them—and
every other special needs student in the state—a FAPE.
Plaintiffs’ claims against the CDE and Superintendent
Thurmond are more complicated. During the transition to
remote instruction, the CDE issued guidance that
encouraged the school districts to “[w]ork with each family
. . . to determine what [a] FAPE looks like . . . during
COVID-19,” “[e]nsure children with disabilities are
included in all offerings of school education models by using
the IEP process,” and “[u]se [the] annual IEP to plan for [a]
traditional school year and while not required, it is suggested
LEAs include distance learning plans or addendums to
address distance learning needs during immediate or future
school site closures.” Plaintiffs allege that because this
guidance “encouraged, but did not require, the state’s school
districts” to take these measures, the CDE and
Superintendent Thurmond either dissuaded or prohibited
school districts from updating special needs students’ IEPs
and from offering adequate accommodations. At oral

1
Plaintiffs also sued the following defendants but voluntarily
dismissed their claims against them: (1) the state of California,
(2) California Governor Gavin Newsom, (3) California’s State Board of
Education, (4) the California Health and Human Services Agency,
(5) the California Department of Public Health, and (6) the Director of
the California Department of Public Health.
 MARTINEZ V. NEWSOM 11

argument, Plaintiffs characterized this guidance as “a policy
of inaction” and “a blanket decision not to act.”

Plaintiffs allege that Defendants violated the IDEA and
the Fourteenth Amendment, and seek declaratory and
injunctive relief. 2 Specifically, Plaintiffs request (1) a
declaration that Defendants violated the IDEA, (2) an
injunction requiring them “to immediately reassess . . .
special needs students assigned to engage in distance
learning” or return them to in-person instruction, and (3) an
injunction ordering them to provide special needs students
with various educational services “until such time as
appropriate accommodations are made . . . or they are
returned to in-person instruction.” Plaintiffs also request
“compensatory education” from the school districts to make
up “for [special needs students’] loss of a basic minimum
education.”

After some Defendants moved to dismiss, the district
court dismissed Plaintiffs’ claims against all Defendants for
failure to exhaust, denied Plaintiffs leave to amend, and
dismissed the case. Plaintiffs timely appealed. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we review de
novo whether the IDEA requires exhaustion in these

2
The district court understood Plaintiffs to also allege that
Defendants violated the Americans with Disabilities Act and the
Rehabilitation Act. We do not read the complaint the same way. The only
reference to these statutes in the complaint is Plaintiffs’ allegation that
the school districts are “subject to state and federal law, including but
not limited to the IDEA, Section 504 of the Rehabilitation Act of 1973
(29 U.S.C. §794 as amended), and Title II of the Americans with
Disabilities Act of 1990 (‘ADA’); 29 U.S.C. § 794, et seq.” But alleging
that a defendant is “subject to” a particular statute is not sufficient to state
a claim for a violation of that statute. See Fed. R. Civ. P. 8(a)(2).
12 MARTINEZ V. NEWSOM

circumstances. Doe ex rel. Brockhuis v. Ariz. Dep’t of Educ.,
111 F.3d 678, 681 (9th Cir. 1997).

II

Before analyzing exhaustion, we first address two
jurisdictional issues. 3 See Henderson ex rel. Henderson v.
Shinseki, 562 U.S. 428, 434 (2011). First, Plaintiffs sued
hundreds of school districts in which they are not enrolled,
and the State Special Schools, which they do not attend,
without alleging that those defendants harmed them
personally. Accordingly, we consider whether Plaintiffs
have standing to pursue their claims against these defendants
in federal court. Second, California public schools have
returned to in-person instruction since Plaintiffs filed their
complaint, providing Plaintiffs with much of the relief they
seek. See generally Brach v. Newsom, 38 F.4th 6 (9th Cir.
2022) (en banc). We thus also consider whether the return to
in-person instruction moots any of Plaintiffs’ claims.

A

To have standing to sue a particular defendant, a plaintiff
must have experienced an injury in fact that is fairly
traceable to the challenged action of that defendant. Lujan v.
Defs. of Wildlife, 504 U.S. 555, 560 (1992). “That a suit may
be a class action . . . adds nothing to the question of standing,
for even named plaintiffs who represent a class ‘must allege

3
In the district court, the parties appeared to assume that exhaustion
is a jurisdictional issue, but it is not. See Payne v. Peninsula Sch. Dist.,
653 F.3d 863, 865, 867 (9th Cir. 2011) (en banc) (“IDEA’s exhaustion
requirement is not jurisdictional”; it “is a claims processing provision
that IDEA defendants may offer as an affirmative defense.”), overruled
on other grounds by Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014)
(en banc).
 MARTINEZ V. NEWSOM 13

and show that they personally have been injured, not that
injury has been suffered by other, unidentified members of
the class to which they belong and which they purport to
represent.’” Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26,
40 n.20 (1976) (quoting Warth v. Seldin, 422 U.S. 490, 502
(1975)). Accordingly, named plaintiffs generally lack
standing to sue defendants that have not injured them
personally, even if they allege that those defendants injured
absent class members. See Easter v. Am. W. Fin., 381 F.3d
948, 961–62 (9th Cir. 2004) (holding that class action
plaintiffs lacked standing to sue trust companies that “never
held a named plaintiff’s loan”). Plaintiffs do not allege that
the districts in which they are not enrolled or the State
Special Schools, which they do not attend, have injured them
personally. Therefore, Plaintiffs lack standing to sue those
defendants in federal court.

Citing our opinion in La Mar v. H & B Novelty & Loan
Company, 489 F.2d 461 (9th Cir. 1973), Plaintiffs argue that
we have recognized a “juridical link” exception to these
ordinary rules of standing, and that it applies here. We
disagree. In La Mar, we held that a named plaintiff who has
not been harmed by a defendant is generally an inadequate
and atypical class representative for purposes of Federal
Rule of Civil Procedure 23. Id. at 465–66. However, we
recognized an exception when “all defendants are juridically
related in a manner that suggests a single resolution of the
dispute would be expeditious.” Id. at 466. In elaborating on
this exception, we distinguished the case before us from one
in which “all the defendants were officials of a single state
and its subordinate units of government” who applied a
“common rule.” Id. at 470.

We did not address Article III standing in La Mar.
Instead, we concluded that it was unnecessary to address
14 MARTINEZ V. NEWSOM

standing because the plaintiffs’ claims failed under Rule 23
even assuming they had standing. Id. at 464. The Supreme
Court has since disapproved of our practice of assuming
standing, so we cannot make the same assumption in this
case. See Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 93–102 (1998). But we need not decide whether the
juridical link doctrine ever allows a named plaintiff to sue a
defendant that did not harm him personally because
Plaintiffs’ claims fall outside the juridical link doctrine. In
other words, Plaintiffs lack standing even if the juridical link
doctrine were to apply outside of the Rule 23 context.

In La Mar, we confined the juridical link exception to
plaintiffs suing “officials of a single state and its subordinate
units of government” who applied a “common rule.”
489 F.2d at 470. We cited as examples (1) a suit by inmates
seeking to enjoin Alabama prison officials from enforcing a
Pennsylvania law that required Alabama jails to be
segregated by race, (2) a suit by plaintiffs that had been
arrested pursuant to Alabama’s vagrancy statute seeking to
enjoin Alabama officials from enforcing it, and (3) a suit by
female students seeking to enjoin a state regulation that
required them to pay higher tuition based on their husbands’
out-of-state residence, even though the students resided in
Pennsylvania. See id. at 469–70 (citing Washington v. Lee,
263 F. Supp. 327 (M.D. Ala. 1966); Broughton v. Brewer,
298 F. Supp. 260 (S.D. Ala. 1969); and Samuel v. Univ. of
Pittsburgh, 56 F.R.D. 435 (W.D. Pa. 1972)). All of these
suits involved state officials enforcing mandatory rules.

The guidance Plaintiffs cite, by contrast, does not require
the school districts to do anything. Indeed, Plaintiffs admit
that it “encouraged, but did not require, the state’s school
districts” to take certain measures to accommodate special
needs students during remote instruction. Elsewhere in the
 MARTINEZ V. NEWSOM 15

complaint Plaintiffs attempt to construe this guidance as a
mandatory rule prohibiting school districts from
accommodating special needs students during remote
instruction, and at oral argument Plaintiffs characterized it
as “a policy of inaction.” But “we are not required to accept
as true conclusory allegations which are contradicted by
documents referred to in the complaint,” Steckman v. Hart
Brewing, Inc., 143 F.3d 1293, 1295–96 (9th Cir. 1998), and
the guidance contradicts Plaintiffs’ claims: it encourages
districts to “[w]ork with each family . . . to determine what
[a] FAPE looks like . . . during COVID-19,” “[e]nsure
children with disabilities are included in all offerings of
school education models by using the IEP process,” and
“[u]se annual IEP to plan for traditional school year and . . .
include distance learning plans or addendums to address
distance learning needs during immediate or future school
site closures.” In other words, the CDE offered suggestions
about how to accommodate special needs students during
remote instruction, but ultimately left each district with
discretion to decide how to do so. It did not set forth a
“common rule” every district was required to follow.
Therefore, Plaintiffs’ claims against the State Special
Schools and the school districts in which they are not
enrolled do not fall within the juridical link doctrine, and
Plaintiffs lack standing to pursue their claims against these
defendants in federal court even if the juridical link doctrine
were to exempt Plaintiffs from ordinary principles of Article
III standing.

B

We now address whether any of Plaintiffs’ claims are
moot. Plaintiffs filed this lawsuit in August 2020, when most
California public schools were holding classes remotely due
to the COVID-19 pandemic. Since then, the California
16 MARTINEZ V. NEWSOM

public schools have returned to in-person instruction.
Accordingly, we next address how the return to in-person
instruction affects Plaintiffs’ claims.

We recently held in Brach that a similar challenge to
California’s pandemic school closure orders was moot. In
that case, a group of parents and a student challenged
California’s 2020–21 Reopening Framework, which
allowed schools “to permanently reopen once the rate of
COVID-19 transmission in their local areas stabilized.”
Brach, 38 F.4th at 9–10. These plaintiffs argued that the
federal Constitution required California to reopen schools
immediately. Id. at 11. Between the summer of 2020, when
the suit was filed, and June 2022, when we issued our
opinion, much had changed. As vaccines were distributed
and COVID-19 transmission declined, California’s school
closure orders “expired by their own terms” and schools
reopened. See id. at 10–12. They have remained open for
more than a year, despite “the surge of the Omicron COVID-
19 variant.” See id. at 13–14. In addition, California has
“‘unequivocally renounce[d]’ the use of school closure
orders in the future.” Id. at 13 (quoting Am. Diabetes Ass’n
v. U.S. Dep’t of the Army, 938 F.3d 1147, 1153 (9th Cir.
2019) (alternation in original)). Under these circumstances,
we held the plaintiffs’ claims were moot. Id. at 15.

We requested supplemental briefing on the impact of
Brach on this case. The parties agree that California public
schools have returned to in-person instruction, but Plaintiffs
argue that “this case is not moot” because they have not
received two forms of relief they seek: (1) a declaration that
Defendants violated the IDEA and (2) an injunction
requiring compensatory education for students who were not
adequately accommodated during remote instruction.
Plaintiffs do not contest that their other requests for
 MARTINEZ V. NEWSOM 17

injunctive relief, such as their request for a return to in-
person instruction, are moot.

We agree that Plaintiffs’ request for compensatory
education means that some of their claims are not moot. If
Plaintiffs were to prevail on the claims for which they
requested compensatory education, the district court could
award this relief despite the return to in-person instruction.
But Plaintiffs requested compensatory education only from
the school districts. They did not request compensatory
education from the CDE and Superintendent Thurmond.
Therefore, we next consider whether Plaintiffs’ claims
against the CDE and Superintendent Thurmond are moot.

Plaintiffs seek three forms of relief from these
defendants: (1) the now-moot injunctive relief described
above, (2) a declaratory judgment stating that these
defendants violated the IDEA, and (3) attorneys’ fees and
costs. Since Plaintiffs’ requests for injunctive relief against
these defendants are moot, we turn to Plaintiffs’ requests for
a declaratory judgment and for attorneys’ fees and costs.
Neither form of relief, standing alone, can save Plaintiffs’
claims. See California v. Texas, 141 S. Ct. 2104, 2115 (2021)
(“The Declaratory Judgment Act, 28 U.S.C. § 2201, alone
does not provide a court with jurisdiction.”); Bayer v.
Neiman Marcus Grp., 861 F.3d 853, 866–67 (9th Cir. 2017)
(holding that an “interest in attorney fees and legal costs
associated with [the] action . . . standing alone are
insufficient to confer Article III jurisdiction”). The plaintiffs
in Brach were equally curious to learn whether California’s
school closures were unlawful, but we held that we could not
offer an opinion on the matter in light of the schools’
reopening. The same is true here. See also, e.g., N.Y. State
Rifle & Pistol Ass’n v. City of New York, 140 S. Ct. 1525,
1526 (2020) (holding that claims seeking “declaratory and
18 MARTINEZ V. NEWSOM

injunctive relief against enforcement” of New York City rule
were moot after the rule had been amended).

We thus hold that Plaintiffs’ claims against the CDE and
Superintendent Thurmond are moot, as are Plaintiffs’ claims
against the other defendants seeking injunctions requiring a
return to in-person instruction or reassessment and services
until students return to in-person instruction. Accordingly, to
this point in our analysis, Plaintiffs’ claims against the
school districts in which they are enrolled seeking
compensatory education, a declaratory judgment, and
attorneys’ fees and costs survive.

III

We now turn to Plaintiffs’ only remaining claims: those
against the Etiwanda and Chaffey Joint Union High School
Districts.

The IDEA requires states accepting certain federal funds
to provide students with disabilities a FAPE and to maintain
an administrative process students, parents, and educational
agencies can use to resolve disputes about whether an
educational agency is meeting its obligations. 20 U.S.C.
§§ 1412(a)(1), 1415(a); see also Fry v. Napoleon Cmty.
Schs., 580 U.S. 154, 157–59 (2017). A plaintiff seeking
relief for the denial of a FAPE ordinarily must exhaust the
administrative process before filing a lawsuit, even if the
plaintiff asserts claims arising under the Constitution or a
federal statute other than the IDEA. See 20 U.S.C.
§ 1415(i)(2)(A), (l); Fry, 580 U.S. at 165.

The IDEA sets forth a general framework for the dispute
resolution process but allows states to promulgate the
details. See 20 U.S.C. § 1415. In California, the
administrative process begins with a complaint, which
 MARTINEZ V. NEWSOM 19

triggers a “resolution meeting” between a student’s parents
and relevant local educational officials. Cal. Educ. Code
§§ 56500.2, 56501.5(a). The parties may also mediate their
dispute. Id. § 56500.3. If the resolution meeting and/or
mediation do not resolve the dispute, the parties may proceed
to a “due process hearing” before an administrative law
judge at the state Office of Administrative Hearings (OAH).
Id. §§ 56501.5(c), 56504.5(a). 4 A party unsatisfied with the
OAH’s resolution of the dispute may file a lawsuit in state
or federal court. 20 U.S.C. § 1415(i)(2).

Plaintiffs admit in their complaint that they did not
exhaust this administrative process before filing this lawsuit.
They argue that they were not required to do so because their
claims fall within an exception to the exhaustion
requirement. We have held that IDEA plaintiffs are not
required to exhaust administrative remedies in three
circumstances: (1) when they seek systemic or structural
relief, (2) when “it is improbable that adequate relief can be
obtained by pursuing administrative remedies (e.g., the
hearing officer lacks the authority to grant the relief
sought),” and (3) when exhaustion would be futile. Hoeft v.
Tucson Unified Sch. Dist., 967 F.2d 1298, 1303–04 (9th Cir.
1992). Plaintiffs argue that all three exceptions apply.

A

The systemic exception to the IDEA’s exhaustion
requirement is something of an enigma. We first recognized
the exception 30 years ago, but “no published opinion in this
4
Section 56504.5(a) requires the CDE to contract with “another
state agency or . . . a nonprofit organization or entity to conduct
mediation conferences and due process hearings.” Plaintiffs allege, and
the CDE agrees, that the CDE has contracted with the OAH to provide
these services.
20 MARTINEZ V. NEWSOM

circuit has ever found that a challenge was ‘systemic’ and
exhaustion not required.” Student A ex rel. Parent A v. S.F.
Unified Sch. Dist., 9 F.4th 1079, 1084 (9th Cir. 2021). After
canvassing our precedent, we conclude that to fall within the
systemic exception, a plaintiff must, at a minimum, identify
an “agency decision, regulation, or other binding policy” that
caused his or her injury. Doe, 111 F.3d at 684. Because
Plaintiffs do not satisfy this requirement, their claims do not
fall within the systemic exception.

In Hoeft, we held that exhaustion is not required when
“an agency has adopted a policy or pursued a practice of
general applicability that is contrary to the law.” 967 F.2d
at 1303–04 (quoting legislative history). Five years later, a
group of plaintiffs alleged that the Arizona Department of
Education adopted “a policy or practice of not complying
with the IDEA” because the Department did not monitor
whether juveniles were present at the Pima County Jail and
therefore did not provide the juveniles that were present with
a FAPE. Doe, 111 F.3d at 684. We held that the plaintiffs
were required to exhaust because the Department of
Education’s failure to provide educational services was the
result of “inadvertent neglect” rather than an “agency
decision, regulation, or other binding policy.” Id.

More recently, a group of plaintiffs filed a class action
lawsuit alleging that the San Francisco Unified School
District was “failing its responsibilities to students under the
IDEA by not timely identifying evaluating students with
disabilities, and, after identifying them, by providing them
with insufficiently individualized, ‘cookie-cutter’
accommodations and services.” Student A, 9 F.4th at 1081.
The plaintiffs argued that they were not required to exhaust
because their claims were systemic. Id. We disagreed. We
first explained that “describing problems as broad and far-
 MARTINEZ V. NEWSOM 21

reaching is not enough to meet the standard; a policy or
practice is not necessarily ‘systemic’ or ‘of general
applicability’ simply because it ‘applie[s] to all students’ or
because ‘the complaint is structured as a class action seeking
injunctive relief.’” Id. at 1084 (quoting Hoeft, 967 F.2d at
1304, 1308). We then held that the plaintiffs’ claims were
not systemic because the plaintiffs failed to “identif[y] any
policy, much less one of general applicability that the
administrative process could not address,” id., and their
allegations were “of bad results, not descriptions of unlawful
policies or practices,” id. at 1085. Considering the facts of
the case, we concluded that the plaintiffs were not seeking
“anything other than increased funding and greater
adherence to existing policies.” Id. at 1085.

These cases demonstrate that to fall within the systemic
exception, the injury the plaintiff complains of must “result[]
from an agency decision, regulation, or other binding
policy.” Doe, 111 F.3d at 684. A plaintiff cannot rely on the
systemic exception simply by reframing an act of
inadvertence or negligence as a policy or practice of not
complying with the IDEA. See Student A, 9 F.4th at 1085
(holding that plaintiffs were required to exhaust because they
were unable to identify the “unlawful policies or practices”
that caused them harm and appeared to base their claims on
the district’s failure to adhere to existing policies); Doe, 111
F.3d at 684 (holding that plaintiffs were required to exhaust
because their injuries were caused by “inadvertent neglect”
rather than “an agency decision, regulation, or other binding
policy”). But that is exactly what Plaintiffs attempt to do
here. Essentially, Plaintiffs assert a negligence claim: they
allege that the districts failed to adequately accommodate
special needs students after the transition to remote
instruction. Plaintiffs’ attempts to reframe this claim as a
22 MARTINEZ V. NEWSOM

policy or practice of not complying with the IDEA does not
allow them to evade the exhaustion requirement.

B

Plaintiffs next argue that their claims fall within the
inadequacy exception because OAH cannot resolve
constitutional claims, “cannot hear class actions,” and “lacks
the authority to issue injunctions.” Plaintiffs further argue
that requiring all 800,000 special needs students in
California to exhaust would overwhelm the administrative
process so that it would be impossible to exhaust these
claims in a timely manner. None of these arguments is
persuasive.

First, the Supreme Court held in Fry that would-be
plaintiffs must exhaust administrative remedies whenever
they “seek relief for the denial of a FAPE,” 580 U.S. at 165,
even if they bring claims “under the Constitution, the
Americans with Disabilities Act of 1990, title V of the
Rehabilitation Act of 1973, or other Federal laws protecting
the rights of children with disabilities,” 20 U.S.C. § 1415(l);
Fry, 580 U.S. at 161. That rule applies here because
Plaintiffs seek relief for the denial of a FAPE. They allege
that “Defendant Districts have . . . denied . . . Plaintiffs and
the members of the Proposed Class a FAPE,” and they seek
remedies designed to compensate for the denial of a FAPE:
“compensatory education, including related services to
correct for the denial of a FAPE.” Because Plaintiffs seek
relief for the denial of a FAPE, they are required to exhaust
administrative remedies, even though some of their claims
are based on the Fourteenth Amendment.

Second, “the mere fact the complaint is structured as a
class action seeking injunctive relief, without more, does not
excuse exhaustion.” Hoeft, 967 F.2d at 1308. Third,
 MARTINEZ V. NEWSOM 23

Plaintiffs’ fears about 800,000 students overwhelming the
administrative process are unfounded because unnamed
class members need not exhaust. Id. at 1309–10.

C

Plaintiffs argue that pursuing administrative remedies
would be futile because after the district court dismissed the
complaint one of the named plaintiffs initiated the
administrative process and the OAH dismissed his claim.
But our review is limited to “the original papers and exhibits
filed in the district court,” Fed. R. App. P. 10(a)(1), and the
documents Plaintiffs submitted for the first time on appeal
are not part of the record. Kirshner v. Uniden Corp. of Am.,
842 F.2d 1074, 1077 (9th Cir. 1988); cf. Jespersen v.
Harrah’s Operating Co., 444 F.3d 1104, 1110 (9th Cir.
2006) (“[A] plaintiff may not cure her failure to present the
trial court with facts sufficient to establish the validity of her
claim by requesting that this court take judicial notice of
such facts.”). Therefore, we express no opinion regarding
whether this named plaintiff’s attempt to exhaust would
satisfy the futility exception to IDEA’s exhaustion
requirement if it were properly presented.

D

Finally, Plaintiffs argue that they are not required to
exhaust because one of the named plaintiffs is entitled to
services from the Etiwanda School District pursuant to a
settlement agreement, and plaintiffs seeking to enforce
IDEA settlement agreements are not required to exhaust
because these claims are simply breach of contract claims.

We need not address this issue because Plaintiffs did not
include a claim for a breach of this settlement agreement in
their complaint. See Chafin v. Chafin, 568 U.S. 165, 172
24 MARTINEZ V. NEWSOM

(2013) (“Federal courts may not . . . give ‘opinion[s]
advising what the law would be upon a hypothetical state of
facts.’”) (quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472,
477 (1990)); Riggs v. Prober & Raphael, 681 F.3d 1097,
1104 (9th Cir. 2012) (“A plaintiff may not try to amend her
complaint through her arguments on appeal.”). The 64-page
complaint references the settlement agreement only twice,
and only amid the factual allegations. Although the
complaint includes several counts listing Plaintiffs’ causes
of action, it never asserts a breach of contract claim. Indeed,
the word “breach” does not appear anywhere in the
complaint. The absence of such a claim is unsurprising
because it would make little sense to bring a class action on
behalf of every special education student in the state of
California based on a settlement agreement that sets forth the
particular services to which a single student is entitled.
Accordingly, Plaintiffs did not assert a claim based on an
alleged breach of a settlement agreement, and we decline to
issue an advisory opinion regarding whether such a claim
must be exhausted.

IV

The district court lacked jurisdiction to resolve
Plaintiffs’ claims against the school districts in which they
are not enrolled and the State Special Schools, which they
do not attend. We therefore vacate the district court’s
judgment dismissing those claims on the merits and remand
with instructions to dismiss them for lack of subject-matter
jurisdiction. 5 Further, in light of the California public

5
The district court also erred in dismissing Plaintiffs’ claims against
many of these defendants on the merits when the defendants were not
parties to the case because they had not been served. See Omni Cap. Int’l
v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987) (“Before a federal court
 MARTINEZ V. NEWSOM 25

schools’ return to in-person instruction, Plaintiffs’ claims
against the CDE and Superintendent Thurmond are moot.
We therefore vacate the district court’s judgment and
remand with instructions to dismiss Plaintiffs’ claims against
those defendants. Finally, we affirm the district court’s
dismissal of Plaintiffs’ claims against the Etiwanda and
Chaffey Joint Union High School Districts for failure to
exhaust administrative remedies.

AFFIRMED IN PART, VACATED IN PART, AND
REMANDED. 6

LEE, Circuit Judge, concurring:

I concur with Judge Smith’s excellent opinion, but I
write separately to urge laying to rest a potential “juridical
link” exception to Article III standing that our court hinted
at in La Mar v. H & B Novelty & Loan Company, 489 F.2d
461 (9th Cir. 1973). In that case, we observed that a plaintiff
who was not harmed by the defendant obviously cannot

may exercise personal jurisdiction over a defendant, the procedural
requirement of service of summons must be satisfied.”); West v. United
States, 853 F.3d 520, 524 (9th Cir. 2017) (“It was clear error for the
district court to dismiss the claims against Gordwin, who wasn’t a party
to the case because he hadn’t been served and the time for service had
not expired.”). We have held, however, that a district court may dismiss
claims for lack of subject-matter jurisdiction even if the defendants
against whom they are asserted have not been served. See Franklin v.
State of Or., State Welfare Div., 662 F.2d 1337, 1342 (9th Cir. 1981).
Therefore, on remand, the district court need not wait for Plaintiffs to
serve these defendants before dismissing Plaintiffs’ claims against them
for lack of subject-matter jurisdiction.
6
Appellants shall bear costs.
26 MARTINEZ V. NEWSOM

serve as a class representative under Rule 23. Id. at 464–66.
But we also recognized a potential exception if “all
defendants are juridically related in a manner that suggests a
single resolution of the dispute would be expeditious.” Id.
at 466. The La Mar court, however, did not address Article
III standing.

Relying on La Mar, Plaintiffs argue that this supposed
juridical link exception allows them to sue districts in which
they are not enrolled and schools that they do not attend. The
majority opinion declines to address whether the juridical
link doctrine could ever be viable, reasoning that Plaintiffs
lack standing here even if we assume it applied. I would
prefer extinguishing the remaining embers of any misguided
“juridical link” exception. I fail to see how a plaintiff’s
injury resulting from one defendant’s conduct gives him or
her standing to sue other defendants who caused no harm,
even if the defendants are state officials enforcing mandatory
rules that injured other parties.

* * * * *

When this court decided Lar Mar, there were competing
approaches to standing. 13A Charles Alan Wright & Arthur
R. Miller Federal Practice and Procedure § 3531.1 (3d ed.
2022). The Supreme Court’s decisions from the late 1960s
to the early 1970s alluringly offered courts the opportunity
to issue sweeping decisions, even if the plaintiffs seemingly
suffered little or no concrete harm. The Court had “greatly
expanded the types of ‘personal stake(s)’ which are capable
of conferring standing on a potential plaintiff.” Linda R.S.
v. Richard D., 410 U.S. 614, 616–617 (1973); see Baker v.
Carr, 369 U.S. 186, 204–08 (1962) (individual voters have
standing to challenge state apportionment); Flast v. Cohen,
392 U.S. 83, 85–86, 99–101 (1968) (taxpayers have standing
 MARTINEZ V. NEWSOM 27

to challenge use of federal funds to support instructional
activities and materials in religious and sectarian schools).

At the same time, however, the Court was also reviving
a restrictive approach to standing, in part, by requiring
plaintiffs to show personal injury. See Sierra Club v.
Morton, 405 U.S. 727, 734–35 (1972) (“[T]he ‘injury in fact’
test requires more than an injury to a cognizable interest. It
requires that the party seeking review be himself among the
injured.”); Linda R.S., 410 U.S. at 617 (“Although the law of
standing has been greatly changed in the last 10 years, we
have steadfastly adhered to the requirement that, at least in
the absence of a statute expressly conferring standing,
federal plaintiffs must allege some threatened or actual
injury resulting from the putatively illegal action before a
federal court may assume jurisdiction.”).

A few years after La Mar, the Supreme Court addressed
the relationship between standing doctrine and class-action
litigation. In Simon v. Eastern Kentucky Welfare Rights
Organization, the Court held that class representatives
cannot gain standing through injuries to class members.
426 U.S. 26, 40–46 (1976). Named plaintiffs must show
personal injury. Id. at 40 n.20 (“That a suit may be a class
action . . . adds nothing to the question of standing). And if
the named plaintiff is an organization, it may seek
“associational standing,” and must demonstrate that “its
members would otherwise have standing to sue in their own
right.” Hunt v. Wash. State Apple Advert. Com’n, 432 U.S.
333, 343 (1977).

We thus measure a class representative’s standing by the
test set forth for individual plaintiffs in Lujan v. Defenders
of Wildlife, 504 U.S. 555 (1992). 1 William B. Rubenstein,
Newberg and Rubenstein on Class Actions § 2:4 (6th ed.
2022); see Lierboe v. State Farm Mut. Auto. Ins. Co.,
28 MARTINEZ V. NEWSOM

350 F.3d 1018, 1022–1023 (9th Cir. 2003). Named
plaintiffs must allege that the defendant they chose to sue has
wronged them in a legally cognizable way. Lujan, 504 U.S.
at 560–61; see Easter v. Am. W. Fin., 381 F.3d 948, 961 (9th
Cir. 2004) (requiring a named plaintiff in a class action
“allege a distinct and palpable injury to himself” that arises
from the defendant’s actions). That conduct must be “fairly
. . . trace[able] to the challenged action of the defendant, and
not . . . th[e] result [of] the independent action of some third
party not before the court.” Lujan, 504 U.S. at 563
(alterations is original) (citation omitted). Importantly, “a
plaintiff who has been subject to injurious conduct of one
kind [does not] possess by virtue of that injury the necessary
stake in litigating conduct of another kind, although similar,
to which he has not been subject.” Blum v. Yaretsky,
457 U.S. 991, 999 (1982).

We conduct this analysis at the claim level. See
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 335 (2006)
(“[A] plaintiff must demonstrate standing for each claim he
seeks to press.”); Lewis v. Casey, 518 U.S. 343, 358 n.6
(1996) (“[S]tanding is not dispensed in gross.”). For each
asserted claim, the named plaintiff “must always have
suffered a distinct and palpable injury to himself.”
Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91, 100
(1979) (internal quotation marks omitted). So if no class
representative has standing to bring a challenge against a
defendant’s actions, then the claim fails—even if those
defendants have allegedly injured other class members. See
Lewis, 518 U.S. at 357. Put another way: “Standing cannot
be acquired through the back door of a class action.” Allee
v. Medrano, 416 U.S. 802, 829 (1974) (Burger, C.J.,
concurring in part and dissenting in part).
 MARTINEZ V. NEWSOM 29

Given these developments in standing doctrine, it is hard
to imagine a juridical link exception to Article III standing
could exist in any form. See Mahon v. Ticor Title Ins. Co.,
683 F.3d 59, 62–65 (2d Cir. 2012) (rejecting the juridical
link exception to standing); contra Payton v. Conty. of Kane,
308 F.3d 673, 680–82 (7th Cir.2002), cert. denied sub nom.,
Carroll Conty. v. Payton, 540 U.S. 812, 124 (2003) (holding
that a court should decide class certification first and treat
the class as the relevant entity for Article III purposes).
Standing doctrine “assures that ‘there is a real need to
exercise the power of judicial review in order to protect the
interests of the complaining party.’” Summers v. Earth
Island Inst., 555 U.S. 488, 493 (2009) (citation omitted).
“Where that need does not exist, allowing courts to oversee
legislative or executive action ‘would significantly alter the
allocation of power . . . away from a democratic form of
government.’” Id. (alteration in original) (citation omitted).

In short, post-La Mar decisions from the Supreme Court
have unequivocally closed the books on any potential
“juridical link” exception to Article III standing.