Payne

We agreed to rehear this case en banc to clarify under what circumstances the IDEA’S exhaustion requirement bars non-IDEA federal or state law claims.

Appellant Windy Payne, on behalf of herself and her son, D.P., appeals the district court’s grant of summary judgment to the defendants. The district court dismissed her claim for lack of subject matter jurisdiction because Payne did not initially seek relief in a due process hearing and therefore failed to comply with one of the exhaustion-of-remedies requirement of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415 (Z). We hold that (1) the IDEA’S exhaustion requirement is not jurisdictional, and (2) Payne’s non-IDEA federal and state-law claims are not subject to the IDEA’S exhaustion requirement. We therefore reverse.

I

The facts in this case, and the inferences to be drawn from them, are vigorously contested by the parties. Because Payne is appealing an adverse grant of summary judgment, we review this case de novo and state the facts in the light most favorable to her case, Olsen v. Idaho State Bd. of Med., 363 F.3d 916 , 922 (9th Cir.2004), although we outline only the facts material to our…

concurring:

I concur in the opinion, but write separately because I share the concern expressed by Judge Bea in his separate concurrence and dissent that our clarification of IDEA’S exhaustion requirement, 20 U.S.C. § 1415 (Z), may be used to circumvent the requirement. Even under the “relief-centered” approach we adopt, it is not always possible to determine whether the alleged damages are separate and distinct from those covered by the IDEA. The solution to this dilemma may not lie solely in the dismissal of an ambiguous complaint or cause of action for failure to exhaust, but may be complemented by allowing a defendant school district to assert, even at trial, that an aspect of plaintiffs claim of damages would have been addressed in the administrative proceedings. Then, to the extent that the defendant meets its burden of demonstrating that the administrative processes would have addressed an aspect of the alleged damages, plaintiff would be denied any recovery for that aspect because that portion of his claim is unexhausted.

This approach differs in its critical aspects from the concept of mitigation. Although the statute states that an action may not be filed until…

joined by

I respectfully dissent from what the majority calls its “clarification” of the “proper method for resolving IDEA exhaustion cases.” 1 Maj. Op. at 874. Rather than a clarification, I see it as a nullification of the congressionally mandated exhaustion requirement. The majority opinion clashes with the clear language of the IDEA, which requires administrative exhaustion “before the filing of a civil action ... seeking relief that is also available under [the IDEA].” 20 U.S.C. § 1415 (1) (emphasis added). The majority’s approach is also inconsistent with the core purposes of IDEA exhaustion: allowing state and local agencies “the exercise of discretion and education expertise,” giving agencies “the first opportunity to correct shortcomings in their educational programs for disabled children,” and allowing “full exploration of technical educational issues.” Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298 , 1303 (9th Cir.1992). Finally, the newly-restricted exhaustion requirement will allow plaintiffs — through gamesmanship and cleverly-crafted pleadings — to subject school districts to civil liability for money damages, without first giving school districts the…

Thomas B. Vertetis, Pfau Cochran Vertetis Kosnoff, PLLC, Tacoma, WA, for the plaintiff-appellant.

Michael A. Patterson, Patterson Buchanan Fobes Leitch & Kalzer, Inc., P.S., Seattle, WA, for the defendants-appellees.

Sasha Samberg-Champion and Mark L. Gross, United States Department of Justice, Civil Rights Division, Washington, D.C.; and Lenore Silverman, Fagen Friedman & Fulfrost, LLP, Oakland, CA, for amici curiae.

Before: ALEX KOZINSKI, Chief Judge, DIARMUID F. O'SCANNLAIN, BARRY G. SILVERMAN, SUSAN P. GRABER, M. MARGARET McKEOWN, RAYMOND C. FISHER, JOHNNIE B. RAWLINSON, JAY S. BYBEE, CONSUELO M. CALLAHAN, CARLOS T. BEA, and MILAN D. SMITH, JR., Circuit Judges.

Opinion by Judge BYBEE; Concurrence by Judge CALLAHAN; Partial Concurrence and Partial Dissent by Judge BEA.

BYBEE, Circuit Judge:

We agreed to rehear this case en banc to clarify under what circumstances the IDEA's exhaustion requirement bars non-IDEA federal or state law claims.

Appellant Windy Payne, on behalf of herself and her son, D.P., appeals the district court's grant of summary judgment to the defendants. The district court dismissed her claim for lack of subject matter jurisdiction because Payne did…