PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 15-3394

______________

ROBERT WELLMAN, JR.,

Appellant

v.

BUTLER AREA SCHOOL DISTRICT,

DR. JOHN WYLLIE, Individually, and in his 

capacity as principal of the Butler Area High School

______________

Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 2-13-cv-00616)

District Judge: Hon. Mark R. Hornak

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Argued: November 7, 2017 

______________

Before: SMITH, Chief Judge, JORDAN and SHWARTZ,

Circuit Judges.

(Filed: December 12, 2017)
2

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OPINION OF THE COURT

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Edward A. Olds, Esq. [ARGUED]

Olds Russ & Associates

1007 Mount Royal Boulevard

Pittsburgh, PA 15223

Counsel for Appellants

Thomas E. Breth, Esq. [ARGUED]

Dillon McCandless King Coulter & Graham

128 West Cunningham Street

Butler, PA 16001

Counsel for Appellees

SHWARTZ, Circuit Judge.

Robert Wellman, Jr., appeals the District Court’s order 

dismissing his complaint without prejudice for lack of subject 

matter jurisdiction because he failed to exhaust his 

administrative remedies under the Individuals with Disabilities 

Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. He 

contends that the Court erred because none of his claims seek 

relief under the IDEA and, in any event, exhaustion would be 

futile. 
3

The outcome of this appeal is largely dictated by the 

Supreme Court’s recent opinion in Fry v. Napoleon 

Community Schools, 137 S. Ct. 743 (2017), which requires 

that we consider the “crux”—the “gravamen”—of the 

complaint to determine whether a plaintiff seeks relief for 

“denial of the IDEA’s core guarantee [of] . . . a free and 

appropriate education [FAPE,]” id. at 748 (quotation marks 

omitted); if so, then the plaintiff must exhaust his 

administrative remedies under the IDEA. Because the 

gravamen of each count in Wellman’s complaint seeks relief 

for the denial of a FAPE, Wellman would typically be required 

to exhaust his claims. Wellman concedes, however, that he 

released all claims seeking relief based on the denial of a 

FAPE, and thus, he has no claims to exhaust. As a result, we 

will vacate the District Court’s order dismissing the complaint 

without prejudice and remand with instructions to dismiss the 

complaint with prejudice. 
4

I1

Wellman attended high school in the Butler Area 

School District (“the School District”). He suffered a head 

injury while playing flag football in his freshman physical 

education class. After school that day, Wellman attended 

football practice, where he suffered additional head injuries. 

The following day, Wellman saw his doctor and later 

underwent a CT scan, which revealed that he had sustained a 

concussion. Wellman suffered “pain” and experienced 

“staring spells, trouble sleeping, and difficulty concentrating.” 

App. 126. 

Wellman returned to school, but his mother asked the 

school to assist him until his concussion healed. Wellman’s 

mother requested that Wellman be taken out of his German and 

physical education classes, that he be given extra study halls,

and that the football coach not allow him to engage in any 

unsuitable physical activity. Rather than allow him to rest 

during his extra study halls, however, the teachers required him 

to take make-up exams. Wellman alleges that the school’s 

indifference to his need for accommodations increased his

stress and aggravated his cognitive problems. 

 

 1 The facts are taken from the Second Amended 

Complaint. Because this appeal involves a facial challenge to 

the existence of subject matter jurisdiction under Federal Rule

of Civil Procedure 12(b)(1), we accept as true the facts alleged 

in the complaint and construe them in favor of the nonmoving 

party. Constitution Party of Pa. v. Acihele, 757 F.3d 347, 357

n.12 (3d Cir. 2014). 
5

After performing an EEG test, Wellman’s doctor wrote 

a letter asking the school to provide Wellman with academic 

accommodations, specifically tutors and more time to 

complete his assignments. The school ignored these requests. 

 

A few weeks later, Wellman attended a high school

football game. Before the game, Wellman’s mother told the 

football coach that Wellman had a concussion, was not cleared 

to participate in the game, and should not be exposed to any 

possibility of physical contact. Despite this conversation, the 

football coach asked Wellman to hold one of the markers on 

the sidelines. Wellman was not wearing any protective gear. 

During the game, a player in full uniform ran into Wellman and 

knocked him over, causing another head injury. 

After this incident, Wellman’s concussion symptoms 

worsened, and he experienced severe headaches, problems

focusing, and exhaustion. A CT scan revealed that he had postconcussive syndrome. Wellman began to miss school because 

of his symptoms and medical appointments, and when he was 

able to attend school, his teachers refused to provide 

accommodations for him. As a result, Wellman suffered 

significant stress, embarrassment, and anxiety. 

Wellman and his mother met with the principal 

regarding his teachers’ failure to accommodate him,

2 but the 

principal was dismissive of his problems. Because the School 

District would not accommodate him, Wellman requested and

received homebound instruction but claimed that the teachers

 2 The Complaint states that Wellman’s teachers ignored 

his doctor’s request for accommodations and were “giving 

Wellman too much work.” App. 131. 
6

who provided the instruction were generally apathetic. 

Wellman attempted to return to school, but again his teachers 

denied his requests for accommodations,3 and he quickly 

returned to homebound instruction for the remainder of the 

2009-10 academic year. 

Wellman attempted to return to school for the 2010-11 

academic year but was overwhelmed by severe anxiety. To 

reduce his anxiety, Wellman and his mother asked that he be 

allowed to switch his lunch period so that he could eat lunch 

with his friends, but the request was denied. Wellman had 

panic attacks at the thought of returning to school, and he 

returned to homebound instruction. 

In October 2010, Wellman’s mother requested that he 

be evaluated for an Individualized Education Plan (“IEP”).4

 

The school determined that Wellman was not eligible for an 

IEP. However, Wellman underwent an independent 

evaluation, which concluded that he met the criteria for anxiety 

 3 It is not clear from the complaint which 

accommodations were requested and denied during this time 

period. 

4 The state administers a FAPE by developing an IEP 

for every child with disabilities. 20 U.S.C. § 1414(d). Once a 

child is identified as having special needs, “[a] school district 

provides a FAPE by designing and implementing an 

individualized instructional program set forth in an [IEP], 

which must be reasonably calculated to enable the child to 

receive meaningful educational benefits in light of the 

student’s intellectual potential.” G.L. v. Ligonier Valley Sch.

Dist. Auth., 802 F.3d 601, 607 (3d Cir. 2015) (citations and 

internal quotation marks omitted).
7

disorder and cognitive disorder due to a medical condition. 

Thereafter, Wellman’s mother, his therapists, and school 

officials met. The school proposed a “Chapter 15/504 plan”5

to help Wellman return to school, but the parties could not 

reach an agreement on its implementation. App. 134. Four 

months later, they met again to discuss a Chapter 15/504 plan, 

but school officials appeared uninterested in giving Wellman 

“any sort of accommodations.” Id. Wellman finished his 

sophomore year in cyber school. The following year, he 

enrolled in private school, from which he eventually graduated. 

Wellman and his parents filed a due process complaint 

with the Pennsylvania Department of Education against the 

School District, requesting a hearing, an IEP, compensatory 

 5 Chapter 15 of the Pennsylvania Code implements the 

statutory and regulatory requirements of § 504 of the 

Rehabilitation Act, 29 U.S.C. § 794, 22 Pa. Code § 15.1(a). 

Section 504 requires schools to provide “a free appropriate 

public education,” defined in the Rehabilitation Act as “the 

provision of regular or special education and related aids and 

services that (i) are designed to meet individual educational 

needs of [students with disabilities] as adequately as the needs 

of [nondisabled students] are met and (ii) are based upon 

adherence to procedures that satisfy the requirements of § 

104.34 [least restrictive setting], § 104.35 [evaluation and 

placement], and § 104.36 [procedural safeguards].” 34 C.F.R. 

§ 104.33(b)(1). “Section 504 defines disability more broadly 

than the IDEA, and thus, some students covered by Section 504 

are not covered under the IDEA.” Batchelor v. Rose Tree 

Media Sch. Dist., 759 F.3d 266, 269 n.4 (3d Cir. 2014)

(citations omitted).
8

education for two years, and payment of Wellman’s private 

school tuition. Wellman and the School District eventually 

entered into a Settlement and Release Agreement (“the 

Settlement Agreement”) with respect to the claims in the due 

process case. Under the Settlement Agreement, the Wellmans 

released the School District and its employees 

from all rights, claims, causes of action, and 

damages of any nature including, but not limited 

to, any claim for legal fees and/or costs, which 

were pursued in the above-referenced case or 

which could have been pursued in the abovereferenced case, pursuant to the [IDEA], as 

amended; the Americans with Disabilities Act 

(ADA); or any other Federal or State statute, 

including the regulations promulgated 

thereunder.

App. 101. 

Wellman thereafter filed suit in the United States 

District Court for the Western District of Pennsylvania against 

the School District and the high school’s principal. In the 

operative complaint, Wellman alleges that the School District

and principal: (1) violated the Rehabilitation Act, 29 U.S.C. § 

794, and the ADA, 42 U.S.C. § 12132, by refusing to 

accommodate Wellman and treating him as if his injuries were 

fabricated or exaggerated; (2) violated the Rehabilitation Act 

and ADA by insisting that Wellman hold the marker on the 

football field, even though the School District was aware that 

he had a concussion and should not have been exposed to 

unnecessary physical risk; and (3) sought relief under 42 

U.S.C. § 1983 for a violation of Wellman’s equal protection 
9

rights by failing to accommodate him, retaliating against him 

because he requested accommodations, and treating him 

differently from other disabled students. 

The School District and principal filed a motion to 

dismiss the complaint pursuant to Federal Rules of Civil 

Procedure 12(b)(1) and 12(b)(6). The District Court initially 

dismissed the claim against the principal in his official capacity 

but allowed all other claims to proceed. After this Court 

decided Batchelor v. Rose Tree Media School District, 759 

F.3d 266 (3d Cir. 2014), which held that exhaustion under the 

IDEA was a jurisdictional requirement, the District Court 

concluded that it lacked subject matter jurisdiction and 

dismissed the Complaint without prejudice, because (1) each 

of Wellman’s claims were related to the provision of a FAPE,

and he failed to exhaust his claims before a special education 

hearing officer; (2) the Settlement Agreement did not render 

the claims exhausted because it did not serve the key purpose 

of developing an underlying factual record; and (3) no 

exception to exhaustion was applicable to the case, given that 

no underlying factual record was developed, there were no 

allegations of an emergency situation requiring immediate 

resolution, and Wellman’s claims all principally related to his 

education. Wellman appeals.

II

We first address whether we have appellate jurisdiction 

over the challenged order. The District Court’s order 

dismissed the complaint without prejudice for failing to 

exhaust administrative remedies. Wellman contends that 

exhaustion would be futile, and so he has chosen not to present 

the claims in his complaint to an administrative hearing officer. 
10

“[A]n appellant who does not attempt to avail himself of the 

administrative process, but who instead files an appeal raising 

the argument that exhaustion would be futile, ‘effectively 

stands on his original complaint’ and that in such cases we may 

exercise jurisdiction over an order dismissing a complaint 

without prejudice.” Ghana v. Holland, 226 F.3d 175, 180–81 

(3d Cir. 2000) (quoting Nyhuis v. Reno, 204 F.3d 65, 68 n.2 

(3d Cir. 2000)).

Wellman has filed an appeal and argued that 

administrative exhaustion would be futile, and thus, he has 

effectively decided to stand on his complaint. We will 

therefore treat the order dismissing the complaint without 

prejudice as a final order and exercise appellate jurisdiction

pursuant to 28 U.S.C. § 1291. See Booth v. Churner, 206 F.3d 

289, 293 n.3 (3d Cir. 2000) (“[A] plaintiff can appeal from a 

dismissal without prejudice when he declares his intention to 

stand on his complaint or when he cannot cure the defect in his 

complaint.”), aff’d, 532 U.S. 731 (2001). 

III

We next address whether we have subject matter 

jurisdiction. Wellman invoked federal question jurisdiction 

pursuant to 28 U.S.C. § 1331 by raising claims under several 

federal statutes. The School District contends that the federal 

court lacks subject matter jurisdiction over the complaint 

because Wellman’s claims seek relief under the IDEA and 20 

U.S.C. § 1415(l) requires such claims be presented to an 

administrative hearing officer, which Wellman failed to do. In

Batchelor, this Court held that exhaustion of the IDEA 

administrative process is normally required for a District Court 

to exercise subject matter jurisdiction. 759 F.3d at 272 (citing 
11

Komninos v. Upper Saddle River Bd. of Educ., 13 F.3d 775, 

778 (3d Cir. 1994)). While we have some doubts as to whether 

IDEA exhaustion is a jurisdictional requirement,6 we are

bound by this precedent. Moreover, we need not wrestle with 

whether exhaustion is jurisdictional because the School 

 6 There appears to be some tension in our precedent as 

to whether a jurisdictional exhaustion requirement could be 

subject to a futility exception. Compare Wilson v. MVM, Inc., 

475 F.3d 166, 174 (3d Cir. 2007) (discussing the difference 

between “prudential exhaustion” and “jurisdictional 

exhaustion,” and explaining that a prudential exhaustion 

requirement can be bypassed under certain circumstances, 

including futility, but that a jurisdictional exhaustion 

requirement “is a prerequisite to a court’s subject matter 

jurisdiction. Regardless of whether there is a compelling 

reason a plaintiff failed to exhaust, a court is without subject 

matter jurisdiction to hear the plaintiff's claim”), and Nyhuis v. 

Reno, 204 F.3d 65, 69 (3d Cir. 2000) (noting that a 

jurisdictional exhaustion requirement “by definition cannot be 

subject to a futility exception” (emphasis in original)), with

D.E. v. Cent. Dauphin Sch. Dist., 765 F.3d 260, 274-75 (3d 

Cir. 2014) (noting that exhaustion is a prerequisite to a district 

court’s subject matter jurisdiction, but stating that there are 

four exceptions to the exhaustion requirement, including 

futility, and explaining that “[a]bsent the existence of any of 

those exceptions, failure to exhaust will deprive a federal court 

of subject matter jurisdiction”). Here, the exhaustion 

requirement can be excused, for example, if it is futile or if 

there are emergent circumstances that justify coming directly 

to federal court. The fact that the exhaustion requirement has 

exceptions suggests that it is not a jurisdictional prerequisite to 

our authority to hear an IDEA case. 
12

District insists exhaustion is required for Wellman to proceed. 

We must therefore address the School District’s contention that

exhaustion is required, regardless of whether it is a prerequisite 

for us to exercise subject matter jurisdiction. See, e.g., J.B. ex 

rel. Bailey v. Avilla R-XIII Sch. Dist., 721 F.3d 588, 593 n.2

(8th Cir. 2013) (“Because the District has not waived the 

exhaustion argument and we conclude the Plaintiffs were 

required to exhaust their administrative remedies, we need not 

reach this issue.”); Muskrat v. Deer Creek Pub. Sch., 715 F.3d 

775, 783 (10th Cir. 2013) (“Ultimately, however, for purposes 

of this case[,] IDEA exhaustion’s status as a jurisdictional

prerequisite is not at issue. Had defendants failed to raise 

IDEA exhaustion below or failed to renew that question here, 

then our obligation to do so independently would turn on its 

jurisdictional or nonjurisdictional nature.” (citation omitted)). 

Thus, we will next examine whether Wellman’s claims are 

subject to § 1415(l)’s exhaustion requirement. 

IV

The IDEA requires participating states to provide 

disabled children with a FAPE, 20 U.S.C. § 1412(a)(1)(A), and

sets forth an administrative mechanism for resolving disputes 

concerning whether a school has complied, id. § 1415. The 

IDEA provides for an impartial due process hearing conducted 

by the state or local educational agency, id. § 1415(f), and the 

right to appeal the results to the state educational agency if the 

due process hearing was conducted by the local educational 

agency, id. §1415(g). The IDEA also requires parties to use 

these procedures whenever they seek relief “available under 

this subchapter” even if they are pursuing relief under other 

federal laws. Id. § 1415 (l). Specifically, the IDEA provides 

that: 
13

[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 et seq.], title V of the 

Rehabilitation Act of 1973 [29 U.S.C. § 791 et 

seq.], or other Federal laws protecting the rights 

of children with disabilities, except that before 

the filing of a civil action under such laws 

seeking relief that is also available under this 

subchapter, the procedures under subsections (f) 

and (g) shall be exhausted to the same extent as 

would be required had the action been brought 

under this subchapter.

Id. § 1415(l). Thus, a plaintiff who seeks relief available under 

the IDEA must exhaust his administrative remedies before 

filing a lawsuit, even if he relies on laws other than the IDEA.

Courts of Appeals have disagreed about how this 

provision applied to non-IDEA claims, such as claims under 

the ADA, Rehabilitation Act, and § 1983. The Supreme Court 

weighed in on this issue in Fry v. Napoleon Community 

Schools. In Fry, the plaintiffs alleged that their daughter’s 

school district discriminated against her in violation of the 

ADA, the Rehabilitation Act, and state law when it barred her 

from bringing her service dog to school to assist her with 

mobility and balance problems. 137 S. Ct. at 750-52. The 

Court of Appeals for the Sixth Circuit held that Fry was 

required to exhaust her IDEA remedies, even though she filed 

non-IDEA claims. Id. at 752. The Supreme Court reversed, 

holding that “exhaustion is not necessary when the gravamen 
14

of the plaintiff’s suit is something other than the denial of the 

IDEA’s core guarantee—what the Act calls a ‘free appropriate 

public education.’” Id. at 748 (quoting 20 U.S.C. 

§ 1412(a)(1)(A)). In reaching this conclusion, the Court noted 

that the IDEA requires exhaustion only where the plaintiff 

“‘seek[s] relief that is also available’ under the IDEA.” Id. at 

752 (quoting 20 U.S.C. § 1415(l)). “[T]o meet that statutory 

standard, a suit must seek relief for the denial of a FAPE, 

because that is the only ‘relief’ the IDEA makes ‘available.’” 

Id. The Court explained that “in determining whether a suit 

indeed ‘seeks’ relief for such a denial, a court should look to 

the substance, or gravamen, of the plaintiff’s complaint.” Id.7

In determining whether the gravamen of a plaintiff’s 

complaint is the denial of a FAPE, the Court directed courts to 

consider one “clue” in the form of two hypothetical questions: 

“First, could the plaintiff have brought essentially the same 

claim if the alleged conduct had occurred at a public facility 

that was not a school—say, a public theater or library? And 

second, could an adult at the school—say, an employee or 

visitor—have pressed essentially the same grievance?” Id. at 

756 (emphasis in original). The Court explained that if the 

 7 The Court declined to decide whether exhaustion 

would be required if a plaintiff complained of the denial of a 

FAPE but sought remedies which were not available under the 

IDEA (e.g., money damages). Fry, 137 S. Ct. at 752 n.4. 

Under our precedent, however, a plaintiff’s request for 

remedies not available under the IDEA does not remove the 

claim from being subject to exhaustion. Batchelor, 759 F.3d at 

276-78. Thus, Wellman’s request for damages unavailable 

under the IDEA or in the administrative forum does not exempt 

his claims from the exhaustion requirement. 
15

answer to both of these questions is yes, then it is unlikely that 

the complaint is about the denial of a FAPE. Id. By contrast, 

when the answer to both of these questions is no, then the 

complaint probably concerns a FAPE. Id. 

In addition to these two questions, the Court identified 

one additional consideration:

A further sign that the gravamen of a suit is the 

denial of a FAPE can emerge from the history of 

the proceedings. In particular, a court may 

consider that a plaintiff has previously invoked 

the IDEA’s formal procedures to handle the 

dispute . . . . A plaintiff’s initial choice to pursue 

that process may suggest that she is indeed 

seeking relief for the denial of a FAPE—with the 

shift to judicial proceedings prior to full 

exhaustion reflecting only strategic calculations 

about how to maximize the prospects of such a 

remedy. Whether that is so depends on the facts

. . . . [b]ut prior pursuit of the IDEA’s 

administrative remedies will often provide 

strong evidence that the substance of a plaintiff’s 

claim concerns the denial of a FAPE, even if the 

complaint never explicitly uses that term. 

Id. at 757. 

Thus, under Fry, we must focus on the “gravamen of the 

plaintiff’s suit.” Fry, 137 S. Ct. at 748; see also id. at 752 (“[A] 

court should look to the substance, or gravamen, of the 

plaintiff’s complaint.”); id. at 755 (“What matters is the crux—

or, in legal speak, the gravamen—of the plaintiff’s complaint . 
16

. . .”). Black’s Law Dictionary defines gravamen as “[t]he 

substantial point or essence of a claim, grievance, or 

complaint.” Black’s Law Dictionary (10th ed. 2014). 

Although the Supreme Court’s language spoke in terms of the 

“complaint,” which could mean that the Court was not 

endorsing a claim-by-claim approach, this is not how we 

understand the opinion. The word “gravamen” bespeaks 

concern with both individual claims as well as the collection of 

claims called a complaint. See id. To apply the Fry test 

without consideration of the actual claims could result in 

situations where claims that are included in a complaint 

because they involve the same parties or course of events but 

do not involve the provision of a FAPE get swept up and forced 

into administrative proceedings with claims that are seeking 

redress for a school’s failure to provide a FAPE. Although 

these administrative proceedings ensure that FAPE claims are 

first reviewed by agencies with the appropriate subject matter 

expertise, these agencies do not employ similar expertise when 

it comes to claims that do not involve the provision of a FAPE. 

For example, if a student who was challenging the sufficiency 

of her IEP also happened to be physically assaulted on the bus 

going to school, one could envision the plaintiff bringing a 

single complaint with different claims arising from her school 

experience, one of which seeks relief for physical injuries 

sustained while on the school bus and which has nothing to do 

with her access to a FAPE and IDEA relief. Surely the Court 

would not have envisioned that such a claim would be subject 

to the IDEA’s procedural requirements, nor would subjecting 

such a claim to these procedural requirements necessarily 

result in any benefit to either the parties or court reviewing the 

matter at a later date. Put differently, claims related to the 

implementation of an IEP involve the provision of a FAPE and 

are subject to exhaustion, see J.M. v. Francis Howell Sch. Dist., 
17

850 F.3d 944, 951 (8th Cir. 2017) (“[Plaintiff] also claims the 

administrative process would not have addressed all her 

claims. This, however, does not excuse exhaustion. Although 

the administrative process may not address all claims, this 

court has held [that] exhaustion is not futile because it would 

allow the agency to develop the record for judicial review and 

apply its expertise to the plaintiff’s claims to the extent those 

claims are related to implementation of the IEP.” (citations and 

internal quotation marks omitted)), but claims that go beyond 

the student’s educational experience are not, see J.S. III v. 

Houston Cty. Bd. of Educ., No. 15-14306, 2017 WL 4351313, 

at *4-5 (11th Cir. Oct. 2, 2017) (isolation of a severely disabled 

and cognitively impaired student could give rise to a FAPE 

claim for failing to follow his IEP but isolating him for no 

educational purpose is a form of discrimination similar to the 

type that could be brought by an institutionalized adult and thus 

is cognizable as an ADA claim and not “merely a FAPE 

violation under the IDEA”). In short, under Fry, a court must 

review both the entire complaint and each claim to determine 

if the plaintiff seeks relief for the denial of a FAPE. 

Application of the Fry framework to Wellman’s entire 

complaint and each of his claims shows that his grievances all 

stem from the alleged failure to accommodate his condition 

and fulfill his educational needs. A review of his detailed 

factual allegations shows that the conduct about which he 

complains would not have occurred outside the school setting

and that a nonstudent could not (and would not) have “pressed

essentially the same grievance.” Fry, 137 S. Ct. at 756. Most 

of the more than thirty paragraphs within the section of the 

complaint entitled “Statement of Facts” set forth Wellman’s

requests for specific accommodations to help him achieve the 

level of learning expected from him, such as removing him
18

from his German and physical education classes, providing

him with extra study halls, tutors, and additional time to 

complete assignments, and conveying to the teachers and 

football coach that he not engage in any unsuitable activity that 

might aggravate his symptoms and condition. Wellman alleges 

that, rather than being provided with these accommodations, 

he was taken out of study hall so he could take exams, given 

too much work and denied extra time to complete it, had

apathetic homebound instructors, and was not given support to 

address the impact of his concussive condition on his ability to 

learn. 

These factual allegations are expressly incorporated by 

reference into each count of the complaint, and each count 

includes additional allegations. In Count I, which seeks relief 

under the ADA and Rehabilitation Act, Wellman reiterates the 

allegation that the school did not make accommodations for his 

educational and physical activities while at school and he 

specifically asserts that “[t]he failure to provide 

accommodations made [his] inability to survive in the school 

inevitable” and that he was “effectively excluded from school.”

App. 138, 39. In short, in this count, he complains about the 

educational experience that he had while in the School 

District.

8 This is not the sort of claim that would be brought 

by a nonstudent against a non-school facility. Thus, under Fry, 

 8 At oral argument, Plaintiff’s counsel essentially 

acknowledged that Count I concerns the denial of a FAPE. 

Oral Arg. Recording at 2:00-3:30, Wellman v. Butler Area Sch. 

Dist., No. 15-3394 (3d Cir. Nov. 7, 2017), available at

www2.ca3.uscourts.gov/oralargument/audio/15-3394 

WellmanJrv.ButlerAreaSchooletal.mp3.
19

this claim seeks relief under the IDEA and is subject to 

exhaustion.

Count II is also subject to exhaustion. Count II seeks 

relief under the ADA and Rehabilitation Act due to the 

school’s alleged failure to ensure that Wellman was not 

exposed to danger after the initial head injury he sustained 

during physical education class but was still permitted to 

participate in school activities. In this regard, the complaint 

alleges that Wellman’s mother asked that Wellman be given 

the accommodations of not being required to “suit[] up or [be]

exposed to danger of playing conditions, but was still allowed 

to attend the [football] game.” App. 140. Thus, football was 

an extracurricular school activity that Wellman’s mother 

wanted him to experience safely.

9

 While there could be a 

scenario in which these events may not relate to a FAPE, as 

pleaded, it appears that the failure to ensure that Wellman was 

not placed in a dangerous situation at an extracurricular activity 

was offered as another example of how the school failed to 

accommodate him so that he could benefit from his educational 

experience. App. 142 (alleging that “[a]s a consequence of the 

deliberate indifference of the School District to Wellman’s 

need for accommodations, Wellman was exposed to an 

extremely dangerous situation for a young man trying to 

recover from a concussion. . . . The [concussion he suffered 

while on the sidelines was] due to the deliberate indifference 

of the School District to Wellman’s need for 

accommodations”). Because these factual allegations are 

 9 His mother also complained about how the school 

treated students who suffered sports-related injuries and that 

the players were pressured to ignore their injuries and to 

participate. 
20

intertwined with his complaints about the school’s failure to 

accommodate his educational needs, which include his 

participation in extracurricular activities, see S.H. v. StateOperated Sch. Dist. of Newark, 336 F.3d 260, 264 (3d Cir. 

2003) (observing that an IEP “must detail those special 

education services [that] . . . allow the child to progress in both 

the general curriculum and participate in extracurricular 

activities . . .” (citing 20 U.S.C. 1414(d)(1)(A)(iii))), and 

because such allegations could not be brought by a nonstudent

or outside the school setting, the claim set forth in Count II

seeks relief for failing to provide a FAPE and is subject to 

exhaustion.

Count III, which alleges a claim under § 1983, also 

seeks relief for failing to provide a FAPE. It incorporates all 

of the factual allegations within the complaint and further 

asserts that the School District’s special education department 

refused to provide Wellman services, and that the school 

treated him differently because his claim for such services was 

based upon the concussions he sustained during school 

activities, which the principal did not view as a disabling 

condition. Again, his grievance is that he was unable to access 

educational services, which is something only a student at 

school can seek. Thus, this is not a claim that could have been 

brought outside a school setting or by a nonstudent and, as a 

result, it is a claim that also seeks relief for failing to provide a 

FAPE and is subject to exhaustion.

In summary, both the entire pleading and each 

individual count show that Wellman seeks relief because the 

School District failed to provide him with academic 

accommodations that would have allowed him to succeed and 

remain enrolled in the school despite his injury. These 
21

allegations concern the denial of a FAPE, see Fry, 137 S. Ct. 

at 753-54 (explaining that the FAPE requirement entitles a 

child to “meaningful access to education based on her 

individual needs” (citation and internal quotation marks 

omitted)), and foreclose the conclusion that Wellman could 

have brought the same complaint against another public 

facility or that an adult at the school could have brought the 

same complaint. 

The history of the proceedings also show that the 

gravamen of Wellman’s suit seeks relief for the denial of a 

FAPE. As the Fry Court noted, “prior pursuit of the IDEA’s 

administrative remedies will often provide strong evidence that 

the substance of a plaintiff’s claim concerns the denial of a 

FAPE, even if the complaint never explicitly uses that term.” 

137 S. Ct. at 757. Here, Wellman’s parents filed a due process 

complaint against the School District requesting a hearing, an 

IEP, and compensatory education for two years based upon the 

same conduct alleged in the instant complaint. Under Fry, 

Wellman’s pursuit of administrative remedies is further 

evidence that his complaint concerns the denial of a FAPE.

Therefore, considering Wellman’s complaint, including 

each count therein, and the history of the proceedings, we 

conclude that the gravamen of Wellman’s complaint is the 

denial of a FAPE and that the District Court correctly 

concluded that Wellman’s complaint is the type that would 

ordinarily require administrative exhaustion.

Here, however, Wellman’s parents signed a settlement 

agreement that explicitly released all claims that were or could 

have been pursued in the due process proceeding pursuant to 

the IDEA or any other federal or state statute. Wellman 
22

concedes that he released all claims within the jurisdiction of 

the administrative hearing officer. All of his claims for relief 

were based upon the denial of a FAPE.

10 As a result, since his 

complaint seeks relief for the denial of a FAPE, and he has 

conceded that he released all claims related to the denial of a 

FAPE, he has no claims to present to an administrative hearing 

officer and thus no claims to exhaust. Wellman therefore has 

no basis upon which relief can be granted, and so his complaint 

must be dismissed with prejudice.

 10 Even if we did not conclude that all of the claims in 

his complaint seek relief under the IDEA, the language of the 

release seems to convey a general release and would have 

released the claims that did not seek relief for failing to provide 

a FAPE. The Settlement Agreement states that the Wellmans 

“release[d], relinquish[ed], and discharge[d] the Butler School 

District . . . from all causes of action, and damages of any 

nature, . . . which were pursued in the above-referenced case or 

which could have been pursued in the above reference case, 

pursuant to . . . any . . . Federal or State statute . . . .” App. 101. 

While Wellman could try to argue that he could not have 

brought a claim for damages under the ADA, Rehabilitation 

Act, and § 1983 in the administrative case, it is unlikely he 

would succeed in making such an argument since all of the 

injuries he claims to have suffered, such as anxiety, severe 

emotional distress, embarrassment, and mental illness stem 

from educational deprivations that were or could have been the 

subject of the administrative proceedings and hence his ability 

to seek damages for those injuries has been released. And, as 

stated previously, the fact that he could not recover the 

compensatory damages he now seeks in this lawsuit as part of 

the administrative proceedings does not convert his claims into 

non-IDEA claims. See Batchelor, 759 F.3d at 276-78. 
23

V

For the foregoing reasons, we will vacate the District 

Court’s order dismissing the complaint without prejudice and 

remand with instructions to dismiss the complaint with 

prejudice.