Anisha Washington v. California Department of Education

dissenting.

Because I do not agree that this case was appropriately dismissed for failure to exhaust, I must respectfully dissent.

Washington’s underlying claim in this case is that the State of California has failed to make in-state residential treatment available to emotionally-disturbed IDEA-eligible students who, like Washington, are between the ages of 18 and 22. According to the plaintiff, California’s failure to make such services available to her constitutes a violation of the IDEA. The plaintiffs claim arises from a regulation promulgated by the California Department of Social Services (“CDSS”), 22 Cal.Code Regs. § 84022(b)(2)(E), which requires California-certified residential facilities to discharge students upon reaching age eighteen. The regulation is based upon language in the California Health and Safety Code that prohibits the housing of minors with adults. Washington asserts that “students ages eighteen through twenty-one are regularly denied residential placements in the state of California based on these licensing restrictions, even when required by their IEPs.”

*647 Washington has alleged that those local agencies most recently responsible for her…

*646 MEMORANDUM **

Appellant Anisha Washington appeals the district court’s dismissal of her claims — brought under the Individuals with Disabilities Education Act (“IDEA”) and the Rehabilitation Act — for failure to exhaust administrative remedies. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

The district court concluded that Washington’s failure to exhaust deprived the court of subject matter jurisdiction. After that decision, our en banc court overturned prior circuit precedent and held that the IDEA’S exhaustion requirement is not jurisdictional. Payne v. Peninsula School Dist., 653 F.3d 863 (9th Cir.2011) (en banc), cert. denied, — U.S.-, 132 S.Ct. 1540 , 182 L.Ed.2d 161 (Feb. 21, 2012). But Payne made clear that IDEA defendants could challenge claims for failure to exhaust in an unenumerated motion to dismiss. 653 F.3d at 881 . We may affirm on any ground supported by the record, Ove v. Gwinn, 264 F.3d 817, 821 (9th Cir.2001), and we conclude that the district court properly dismissed the claims for failure to exhaust.

Washington settled her initial administrative due process complaint with various school district and local agency defendants, who…

FILED

NOT FOR PUBLICATION APR 05 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

ANISHA WASHINGTON, No. 10-17629

Plaintiff - Appellant, D.C. No. 2:10-cv-00186-FCD-

KJM

v.

CALIFORNIA DEPARTMENT OF MEMORANDUM *

EDUCATION; CALIFORNIA

DEPARTMENT OF MENTAL HEALTH;

CALIFORNIA DEPARTMENT OF

SOCIAL SERVICES, Community Care and Licensing Division; JACK O'CONNELL, Superintendent of CA Dept. of Education; STEPHEN W. MAYBERG, Director of CA Dept. of Mental Health; JOHN A. WAGNER, Director of CA Dept. of Social Services,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of California Franµ C. Damrell, Senior District Judge, Presiding

Argued and Submitted December 7, 2011 San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Before: TROTT and BEA, Circuit Judges, and STAFFORD, Senior District Judge.**

Appellant Anisha Washington appeals the district court's…