FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WINDY PAYNE, individually and as 

guardian on behalf of D.P., a

minor child,

Plaintiff-Appellant,

v.

No. 07-35115

PENINSULA SCHOOL DISTRICT, a

D.C. No. municipal corporation; ARTONDALE  CV-05-05780-RBL ELEMENTARY SCHOOL, a municipal

corporation; JODI COY, in her OPINION

individual and official capacity;

JAMES COOLICAN, in his individual

and official capacity; JANE DOES 1-

10; and JOHN DOES 1-10,

Defendants-Appellees. 

Appeal from the United States District Court

for the Western District of Washington

Ronald B. Leighton, District Judge, Presiding

Argued and Submitted

December 15, 2010—Pasadena, California

Filed July 29, 2011

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.

9729

Case: 07-35115 07/29/2011 Page: 1 of 61 ID: 7836883 DktEntry: 65-1
Opinion by Judge Bybee;

Concurrence by Judge Callahan;

Partial Concurrence and Partial Dissent by Judge Bea

9730 PAYNE v. PENINSULA SCHOOL DISTRICT

Case: 07-35115 07/29/2011 Page: 2 of 61 ID: 7836883 DktEntry: 65-1
COUNSEL

Thomas B. Vertetis, Pfau Cochran Vertetis Kosnoff, PLLC,

Tacoma, Washington, for the plaintiff-appellant.

Michael A. Patterson, Patterson Buchanan Fobes Leitch &

Kalzer, Inc., P.S., Seattle, Washington, for the defendantsappellees.

Sasha Samberg-Champion, United States Department of Justice, Civil Rights Division, Washington, D.C.; and Lenore

Silverman, Fagen Friedman & Fulfrost, LLP, Oakland, California, for amici curiae.

PAYNE v. PENINSULA SCHOOL DISTRICT 9733

Case: 07-35115 07/29/2011 Page: 3 of 61 ID: 7836883 DktEntry: 65-1
OPINION

BYBEE, Circuit Judge:

We agreed to rehear this case en banc to clarify under what

circumstances the IDEA’s exhaustion requirement bars nonIDEA 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(l). 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 decision.

D.P. is a minor who was diagnosed with oral motor apraxia

and autism when he was five years old. During the 2003-04

school year, when D.P. was seven, he was placed in a contained special education classroom within Artondale Elementary School, part of the Peninsula School District. Defendant

Jodi Coy was his teacher that year. Coy employed a small

room about the size of a closet as a time-out room or “safe

room” for students who became “overly stimulated.”

9734 PAYNE v. PENINSULA SCHOOL DISTRICT

Case: 07-35115 07/29/2011 Page: 4 of 61 ID: 7836883 DktEntry: 65-1
At a meeting to discuss D.P.’s Individual Education Program (“IEP”)1

 and Behavior Assessment Plan, Coy requested

permission to use the time-out room while the IEP paperwork

was pending. The Paynes initially objected, claiming that their

son was unable to perceive a difference between positive and

negative reinforcement. They eventually gave limited consent

to the time-out room, specifying that they would agree to

allow Coy to use the room for time-out periods only (and not

punishment), but that the door had to remain open and that

D.P. was not to be left alone inside the room. According to

Payne, Coy nonetheless used the room to punish D.P. and

locked him in the closet a number of times without supervision. In some instances, D.P. responded by removing his

clothing and urinating or defecating on himself. Although the

Paynes repeatedly requested that Coy stop using her “aversive

therapy” techniques, Coy continued. Eventually, in January

2004, Coy refused to allow the Paynes to visit her classroom

or pick up their son directly from the classroom, insisting that

the Paynes might misinterpret what they observed.

The Paynes and the school district underwent mediation,

and they agreed that D.P. would transfer to another school in

the district. Later, the Paynes removed D.P. from the public

school system and began home schooling him. They never

underwent a formal due process hearing with the school district.

In 2005, Windy Payne filed the current complaint on behalf

of herself and her son, seeking relief under 42 U.S.C. § 1983

by alleging violations of the Fourth, Eighth, and Fourteenth

Amendments, and the IDEA. The complaint also advanced

negligence and outrage claims under Washington law. The

1States participating in the IDEA are required to provide students with

disabilities with an IEP in furtherance of the statute’s goal of providing

each such student with a “free appropriate public education.” 20 U.S.C.

§ 1412(a)(1)(A), (a)(4). The IEP must meet a number of requirements,

articulated in 20 U.S.C. § 1436(d). 

PAYNE v. PENINSULA SCHOOL DISTRICT 9735

Case: 07-35115 07/29/2011 Page: 5 of 61 ID: 7836883 DktEntry: 65-1
defendants moved for summary judgment, claiming that

Payne had failed to exhaust her remedies as required by 20

U.S.C. § 1415(l) by failing to go through the informal due

process hearing and appeal process established by 20 U.S.C.

§ 1415(f), (g). The district court dismissed Payne’s entire

case, citing our decision in Robb v. Bethel School District #

403, 308 F.3d 1047 (9th Cir. 2002), where we held that the

IDEA’s exhaustion requirement applied to any case in which

“a plaintiff has alleged injuries that could be redressed to any

degree by the IDEA’s administrative procedures and remedies.” Id. at 1048.

Payne timely appealed. In a divided decision, a panel of

this court affirmed the district court’s grant of summary judgment. Payne v. Peninsula Sch. Dist., 598 F.3d 1123 (9th Cir.

2010), reh’g en banc granted, 621 F.3d 1001 (9th Cir. 2010).

The majority began by noting that the applicability of

§ 1415(l) depended on whether each claim more closely

resembled the one in Robb, in which we held that exhaustion

was required, or the one in Witte v. Clark County School District, 197 F.3d 1271 (9th Cir. 1999), in which we held that

exhaustion was not required. Payne, 598 F.3d at 1126-27. The

panel concluded that “this case is more akin to Robb” because

Payne had failed to seek an impartial due process hearing

after mediation failed, was seeking redress for academic injuries “for which IDEA provides some relief,” and was “not

claiming physical injuries for D.P. within the meaning of

Witte.” Payne, 598 F.3d at 1127-28. Accordingly, the panel

concluded that “as an educational strategy (even if a misguided or misapplied one), [Coy’s use of the safe room] was

better addressed initially by the administrative process” and

affirmed the district court. Id. at 1128. Judge Noonan dissented on the ground that “[t]he facts in this case are closer

to those in [Witte] than in [Robb]” and that “full exhaustion

of the IDEA administrative processes [was not] required.” Id.

at 1128-29 (Noonan, J., dissenting).

On a vote of the majority of nonrecused active judges on

our court, we vacated the panel opinion and agreed to rehear

9736 PAYNE v. PENINSULA SCHOOL DISTRICT

Case: 07-35115 07/29/2011 Page: 6 of 61 ID: 7836883 DktEntry: 65-1
this case en banc. Payne v. Peninsula Sch. Dist., 621 F.3d

1001 (9th Cir. 2010) (order granting rehearing en banc).

II

We begin by clarifying the nature of the IDEA’s exhaustion

requirement. Adhering to this circuit’s precedent, the original

panel treated the requirement as a jurisdictional one, but questioned the soundness of this conclusion. See Payne, 598 F.3d

at 1124-25 & n.2. Indeed, the conclusion it reached was consistent with our precedent. See, e.g., Blanchard v. Morton Sch.

Dist., 420 F.3d 918, 920-21 (9th Cir. 2005) (“If a plaintiff is

required to exhaust administrative remedies but fails to do so,

the federal courts do not have jurisdiction to hear the plaintiff’s claim.”); Witte, 197 F.3d at 1274 (same). In light of a

spate of Supreme Court cases clarifying the difference

between provisions limiting our subject matter jurisdiction,

which cannot be waived and must be pled in the complaint,

and “claims processing provisions,” which must be pled as an

affirmative defense or forfeited, see, e.g., Henderson ex rel.

Henderson v. Shinseki, 131 S. Ct. 1197, 1202-07 (2011); Reed

Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237, 1243-48 (2010);

see also United States v. Jacobo Castillo, 496 F.3d 947 (9th

Cir. 2007) (en banc), we now overrule our previous treatment

of § 1415(l) and hold that the IDEA’s exhaustion requirement

is a claims processing provision that IDEA defendants may

offer as an affirmative defense.

Federal courts may only decide cases over which they have

both constitutional and statutory jurisdiction. See Ins. Corp. of

Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S.

694, 701-02 (1982). The Constitution grants federal courts

jurisdiction over “all Cases, in Law and Equity, arising under

this Constitution [and] the Laws of the United States.” U.S.

CONST. art. III, § 2, cl. 1. Here, Payne raised federal claims

under 42 U.S.C. § 1983 in addition to a number of state-law

claims. In cases such as this one, district courts have statutory

jurisdiction over federal claims, 28 U.S.C. § 1331, and supPAYNE v. PENINSULA SCHOOL DISTRICT 9737

Case: 07-35115 07/29/2011 Page: 7 of 61 ID: 7836883 DktEntry: 65-1
plemental jurisdiction over related state-law claims, 28 U.S.C.

§ 1367. Additionally, Congress has given us statutory authorization to hear “appeals from all final decisions of the district

courts of the United States.” 28 U.S.C. § 1291. It is clear,

then, that unless Congress has limited this jurisdiction further,

the federal courts have jurisdiction over IDEA-related matters.

[1] The IDEA’s exhaustion requirement provides: 

Nothing 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.

20 U.S.C. § 1415(l) (emphasis added). The Fourth and Eighth

Circuits share our earlier assumption that this language

creates a jurisdictional limitation. See, e.g., MM ex rel. DM v.

Sch. Dist. of Greenville Cnty., 303 F.3d 523, 536 (4th Cir.

2002) (“The failure of the Parents to exhaust their administrative remedies . . . deprives us of subject matter jurisdiction

over those claims . . . .”); Urban by Urban v. Jefferson Cnty.

Sch. Dist. R-1, 89 F.3d 720, 725 (10th Cir. 1996) (“We conclude that the district court correctly dismissed the [unexhausted] claims for lack of jurisdiction.”). By contrast, the

Seventh and Eleventh Circuits have treated the exhaustion

requirement as an affirmative defense, rather than a jurisdictional requirement. See, e.g., Mosely v. Bd. of Educ., 434 F.3d

527, 533 (7th Cir. 2006) (“A failure to exhaust is normally

considered to be an affirmative defense, and we see no reason

9738 PAYNE v. PENINSULA SCHOOL DISTRICT

Case: 07-35115 07/29/2011 Page: 8 of 61 ID: 7836883 DktEntry: 65-1
to treat it differently here.” (citation omitted)); N.B. by D.G.

v. Alachua Cnty. Sch. Bd., 84 F.3d 1376, 1379 (11th Cir.

1996) (per curiam) (“The exhaustion requirement . . . is not

jurisdictional . . . .”).

Last Term, the Supreme Court reminded us that “the word

‘jurisdiction’ has been used by courts . . . to convey ‘many,

too many, meanings’ ” and “cautioned . . . against profligate

use of the term.” Union Pac. R.R. Co. v. Bhd. of Locomotive

Eng’rs & Trainmen Gen. Comm. of Adjustment, Cent. Region,

130 S. Ct. 584, 596 (2009) (quoting Steel Co. v. Citizens for

a Better Env’t, 523 U.S. 83, 90 (1998)). “Accordingly, the

term ‘jurisdictional’ properly applies only to ‘prescriptions

delineating the classes of cases (subject-matter jurisdiction)

and the persons (personal jurisdiction)’ implicating [the

court’s adjudicatory] authority.” Reed Elsevier, 130 S. Ct. at

1243 (quoting Kontrick v. Ryan, 540 U.S. 443, 455 (2004)).

The Court confessed that “[w]hile perhaps clear in theory, the

distinction between jurisdictional conditions and claimprocessing rules can be confusing in practice,” that we should

“us[e] the term ‘jurisdictional’ only when it is apposite,” and

that we should “curtail . . . ‘drive-by jurisdictional rulings.’ ”

Id. at 1243-44 (quoting Steel Co., 523 U.S. at 91); see also

Henderson, 131 S. Ct. at 1202-07 (holding that a veteran’s

failure to file a notice of appeal within the required 120-day

period did not deprive the Court of Veterans Appeals of jurisdiction over his claim); Reed Elsevier, 130 S. Ct. at 1249

(holding that a copyright-registration requirement was not

jurisdictional); Union Pac. R.R., 130 S. Ct. at 598-99 (holding

that a settlement-conference requirement was not jurisdictional); Arbaugh v. Y & H Corp., 546 U.S. 500, 514-15 (2006)

(holding that a Title VII provision exempting employers with

fewer than 15 employees was not jurisdictional); Kontrick,

540 U.S. at 452-56 (holding that a bankruptcy rule governing

timely amendments was not jurisdictional); United States v.

Cotton, 535 U.S. 625, 630-31 (2002) (holding that sentencing

in excess of a statutory maximum did not deprive the sentencing court of jurisdiction). But see Bowles v. Russell, 551 U.S.

PAYNE v. PENINSULA SCHOOL DISTRICT 9739

Case: 07-35115 07/29/2011 Page: 9 of 61 ID: 7836883 DktEntry: 65-1
205, 209-10 (2007) (holding that the statutory time for the

taking of an appeal from a district court decision is jurisdictional).

Two cases recently decided by the Court are instructive. In

Reed Elsevier, the Court examined a provision of the Copyright Act providing that copyright holders must register their

works before bringing suit for copyright infringement. Section

41(a) of the Copyright Act provides that “no civil action for

infringement of the copyright in any United States work shall

be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.” 17

U.S.C. § 411(a). Holding that § 411(a) is not jurisdictional,

the Court pointed to three factors. First, the Court pointed out

that § 411(a) does not “ ‘clearly state[ ]’ that its registration

requirement is ‘jurisdictional.’ ” Reed Elsevier, 130 S. Ct. at

1245 (quoting Arbaugh, 546 U.S. at 515). Second, the Court

noted that § 411(a) was separate from other statutes that grant

subject matter jurisdiction and that neither 28 U.S.C. § 1331

nor 28 U.S.C. § 1338 — which is specific to copyright —

mentions the registration requirement. Id. at 1245-46. Finally,

the Court could not find “any other factor [that] suggest[s]

that 17 U.S.C. § 411(a)’s registration requirement can be read

to ‘speak in jurisdictional terms or refer in any way to the

jurisdiction of the district courts.’ ” Id. at 1246 (quoting

Arbaugh, 546 U.S. at 515); see also Henderson, 131 S. Ct. at

1202-07 (reaffirming and applying Reed Elsevier’s methodology).

In Jones v. Bock, 549 U.S. 199 (2007), the Court addressed

whether the Prison Litigation Reform Act’s (“PLRA”)

exhaustion requirement2 was a pleading requirement that the

2The PLRA exhaustion provision reads: 

No action shall be brought with respect to prison conditions

under section 1983 of this title, or any other Federal law, by a

prisoner confined in any jail, prison, or other correctional facility

until such administrative remedies as are available are exhausted.

42 U.S.C. § 1997e(a). 

9740 PAYNE v. PENINSULA SCHOOL DISTRICT

Case: 07-35115 07/29/2011 Page: 10 of 61 ID: 7836883 DktEntry: 65-1
prisoner must include in his complaint or an affirmative

defense that the defendant must raise. The Court held that

“failure to exhaust is an affirmative defense under the PLRA,

and that inmates are not required to specially plead or demonstrate exhaustion in their complaints.” Id. at 216. Although the

Court did not treat a heightened pleading requirement as

going to the jurisdiction of the federal courts, the Court’s conclusion — that PLRA defendants have the burden of pleading

non-exhaustion, and that PLRA plaintiffs need not specifically plead exhaustion in their initial complaints — is consonant with our discussion of jurisdictional versus claimprocessing requirements. If a requirement is jurisdictional,

then a federal plaintiff has the burden of pleading in her initial

complaint (however briefly) how that requirement has been

met. See Fed. R. Civ. P. 8(a)(1). In other words, even though

the Court did not state its result in such terms, it follows from

Jones that the PLRA’s exhaustion requirement is nonjurisdictional. See Reed Elsevier, 130 S. Ct. at 1246-47 & n.6

(citing Jones as an example of where the Court has “treated

as nonjurisdictional other types of threshold requirements”).

[2] With that background we return to the IDEA’s exhaustion requirement in § 1415(l) and to our prior statement that

“[i]f a plaintiff is required to exhaust administrative remedies,

but fails to, federal courts are without jurisdiction to hear the

plaintiff’s claim.” Witte, 197 F.3d at 1274; see also Dreher v.

Amphitheater Unified Sch. Dist., 22 F.3d 228, 231 (9th Cir.

1994) (suggesting, but not holding, that exhaustion was jurisdictional under the IDEA). First, we observe that nothing in

§ 1415 mentions the jurisdiction of the federal courts. In fact,

neither the word “courts” nor the word “jurisdication” appears

in § 1415(l). Section 1415 is written as a restriction on the

rights of plaintiffs to bring suit, rather than as a limitation on

the power of the federal courts to hear the suit. That textual

choice strongly suggests that the restriction may be enforced

by defendants but that the exhaustion requirement may be

waived or forfeited. See, e.g., Kontrick, 540 U.S. at 456

(“Characteristically, a court’s subject-matter jurisdiction canPAYNE v. PENINSULA SCHOOL DISTRICT 9741

Case: 07-35115 07/29/2011 Page: 11 of 61 ID: 7836883 DktEntry: 65-1
not be expanded to account for the parties’ litigation conduct;

a claim-processing rule, on the other hand, even if unalterable

on a party’s application, can nonetheless be forfeited if the

party asserting the rule waits too long to raise the point.”);

Jacobo Castillo, 496 F.3d at 952 (“Defects in procedural rules

may be waived or forfeited by parties who fail to object properly, whereas defects in our subject-matter jurisdiction go to

the inherent power of the court and cannot be waived or forfeited.” (footnote omitted)).

[3] Second, nothing in the relevant jurisdictional statutes

requires exhaustion under the IDEA. Section 1415(l) provides

that if the plaintiff is “seeking relief that is also available

under [the IDEA], the procedures under [20 U.S.C. § 1415(f),

(g)] shall be exhausted to the same extent as would be

required had the action been brought under this subchapter.”

Section 1415(i) describes the actions that can be brought

under the IDEA. A party who is “aggrieved by the findings

and decision” made under the IDEA’s procedures has “the

right to bring a civil action . . . in any State court of competent

jurisdiction or in a district court of the United States, without

regard to the amount in controversy.” 20 U.S.C.

§ 1415(i)(2)(A). There is no restriction in this section on the

subject matter jurisdiction of the federal courts. The only provision that arguably affects federal subject matter jurisdiction

is the provision specifying that there is no amount-incontroversy requirement, and it appears to expand, rather than

contract, federal jurisdiction. More to the point, the section

expressly provides that suit may be brought in state or federal

courts. As state courts are courts of general subject matter

jurisdiction, it is hard to think that Congress would permit

IDEA suits to be brought in state court but at the same time

restrict the subject matter jurisdiction of the federal courts.

Without clearer instruction from Congress, we are reluctant to

infer such a restriction where Congress has not made it

explicit. See Henderson, 131 S. Ct. at 1203 (“[Courts should]

look to see if there is any ‘clear’ indication that Congress

wanted the rule to be ‘jurisdictional.’ ”).

9742 PAYNE v. PENINSULA SCHOOL DISTRICT

Case: 07-35115 07/29/2011 Page: 12 of 61 ID: 7836883 DktEntry: 65-1
Finally, we can find no reason why § 1415(l) should be

read to make exhaustion a prerequisite to the exercise of federal subject matter jurisdiction. We can think of many good

reasons why it should not. As we discuss in the next section,

the exhaustion requirement in § 1415(l) is not a check-the-box

kind of exercise. As our cases demonstrate, determining what

has and what has not been exhausted under the IDEA’s procedures may prove an inexact science. See Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1302-03 (9th Cir. 1992)

(noting that the IDEA’s exhaustion requirement “is not a rigid

one, and is subject to certain exceptions,” determined by “the

general purposes of exhaustion and the congressional intent

behind the administrative scheme”). In other words, the

exhaustion requirement appears more flexible than a rigid

jurisdictional limitation — questions about whether administrative proceedings would be futile, or whether dismissal of a

suit would be consistent with the “general purposes” of

exhaustion, are better addressed through a fact-specific

assessment of the affirmative defense than through an inquiry

about whether the court has the power to decide the case at

all. If we were to hold that exhaustion was jurisdictional, the

question of exhaustion vel non would haunt the entire proceeding, including any appeals. We would have the obligation

to raise the issue sua sponte, a particularly frustrating exercise

for parties and courts when Congress has authorized the parties to file suit in state court in the first place. Congress may,

of course, override our concerns and make the IDEA’s

exhaustion requirement jurisdictional, but we would need a

clearer statement of its intent before we will impose such a

requirement.

[4] In sum, we hold that the exhaustion requirement in

§ 1415(l) is not jurisdictional. It “is not clearly labeled jurisdictional, is not located in a jurisdiction-granting provision,

and admits of congressionally authorized exceptions.” Reed

Elsevier, 130 S. Ct. at 1247. We overrule our statements to

the contrary in Blanchard, 420 F.3d at 920-21; Witte, 197

F.3d at 1274; and Dreher, 22 F.3d at 231, and join the SevPAYNE v. PENINSULA SCHOOL DISTRICT 9743

Case: 07-35115 07/29/2011 Page: 13 of 61 ID: 7836883 DktEntry: 65-1
enth and Eleventh Circuits. Mosely, 434 F.3d at 533; N.B. by

D.G., 84 F.3d at 1379; see also Coleman v. Newburgh

Enlarged City Sch. Dist., 503 F.3d 198, 203 (2d Cir. 2007)

(noting that the Second Circuit “ha[s] been equivocal in [its]

discussion of the IDEA’s exhaustion requirement, acknowledging [its] statement in [Polera v. Board of Education, 288

F.3d 478, 483, 488-90 (2d Cir. 2002),] that the failure to

exhaust IDEA administrative remedies deprives a court of

subject matter jurisdiction but also referring to the IDEA’s

exhaustion requirements as the defendants’ ‘non-exhaustion

defense.’ ” (internal quotation marks and alterations omitted)). Our prior statements were well-intentioned even if not

fully considered. We think our misstep well illustrates the

Supreme Court’s observation that “[c]ourts — including this

Court — have sometimes mischaracterized claim-processing

rules or elements of a cause of action as jurisdictional limitations, particularly when that characterization was not central

to the case, and thus did not require close analysis.” Reed

Elsevier, 130 S. Ct. at 1243-44.

III

We now turn to the merits. We hold that the IDEA’s

exhaustion provision applies only in cases where the relief

sought by a plaintiff in the pleadings is available under the

IDEA. Non-IDEA claims that do not seek relief available

under the IDEA are not subject to the exhaustion requirement,

even if they allege injuries that could conceivably have been

redressed by the IDEA. We overrule our previous cases to the

extent that they state otherwise and conclude that, although

the district court properly dismissed Payne’s IDEA-based

§ 1983 claim, it should not have dismissed her non-IDEA

claims on exhaustion grounds.

A

The IDEA was enacted to protect children with disabilities

and their parents by requiring participating states to provide

9744 PAYNE v. PENINSULA SCHOOL DISTRICT

Case: 07-35115 07/29/2011 Page: 14 of 61 ID: 7836883 DktEntry: 65-1
“a free appropriate public education [(‘FAPE’)] that emphasizes special education and related services designed to meet

[disabled students’] unique needs and prepare them for further

education, employment, and independent living.” 20 U.S.C.

§ 1400(d)(1)(A). Participating states must provide eligible

students with a “free appropriate public education,” id.

§ 1412(a)(1)(A), that, among other things, conforms to a

proper IEP, see id. §§ 1412(a)(4), 1436(d), and ensures that

disabled students “[t]o the maximum extent appropriate, . . .

are educated with children who are not disabled,” id.

§ 1412(a)(5)(A). Children with disabilities and their parents

are provided with the extensive procedural protections set out

in 20 U.S.C. § 1415. In particular, the statute requires states

to provide aggrieved parties with the opportunity to mediate

their disputes, id. § 1415(e), to secure an impartial due process hearing to resolve certain differences with state agencies,

id. § 1415(f), and to appeal any decision and findings to the

state educational agency, id. § 1415(g). As we have stated

above, the exhaustion provision requires parties to avail themselves of these procedures (and the corresponding local

appeals process) before resorting to the courts whenever they

“seek[ ] relief that is also available under [the IDEA].” Id.

§ 1415(l).

The exhaustion requirement is found in § 1415(l). This provision is worth quoting again, in full:

Nothing 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.A. § 12101 et seq.],

title V of the Rehabilitation Act of 1973 [29

U.S.C.A. § 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

PAYNE v. PENINSULA SCHOOL DISTRICT 9745

Case: 07-35115 07/29/2011 Page: 15 of 61 ID: 7836883 DktEntry: 65-1
required had the action been brought under this subchapter.

20 U.S.C. § 1415(l) (alterations in original). We begin with a

few observations. First, this provision is titled “Rule of construction.” Id. It thus provides us with a rule for harmonizing

the IDEA with overlapping “rights, procedures, and remedies” found in other laws. Second, the rule of construction

tells us in very plain terms that the IDEA must be construed

to coexist with other remedies, including remedies available

under the Constitution, the Americans with Disabilities Act

(“ADA”), the Rehabilitation Act, and “other Federal laws.”

The principal remedy available for violations of the Constitution is 42 U.S.C. § 1983, which creates an action in law or

suit in equity against any person who, acting under color of

state law, deprives the plaintiff of “any rights, privileges, or

immunities secured by the Constitution and laws.” Like the

IDEA, the ADA and the Rehabilitation Act create their own

private causes of action to enforce those acts, see 42 U.S.C.

§ 12117; 29 U.S.C. § 794a, although all three acts have been

enforced under § 1983 as well. See, e.g., Marie O. v. Edgar,

131 F.3d 610, 622 (7th Cir. 1997); K.M. ex rel. D.G. v. Hyde

Park Cent. Sch. Dist., 381 F. Supp. 2d 343, 361-63 (S.D.N.Y.

2005); BD v. DeBuono, 130 F. Supp. 2d 401, 427-29

(S.D.N.Y. 2000). But see Blanchard v. Morton Sch. Dist., 509

F.3d 934, 938 (9th Cir. 2007) (holding that § 1983 does not

authorize actions predicated on violations of the IDEA).

Third, the exhaustion provision in § 1415(l) is framed as an

exception to the general rule of construction that “[n]othing in

[the IDEA] shall be construed to restrict” the rights, procedures, and remedies available under § 1983, the ADA, or the

Rehabilitation Act. In other words, remedies available under

the IDEA, by rule, are in addition to the remedies parents and

students have under other laws. Indeed, § 1415 makes it clear

that Congress understood that parents and students affected by

the IDEA would likely have issues with schools and school

personnel that could be addressed — and perhaps could only

be addressed — through a suit under § 1983 or other federal

9746 PAYNE v. PENINSULA SCHOOL DISTRICT

Case: 07-35115 07/29/2011 Page: 16 of 61 ID: 7836883 DktEntry: 65-1
laws. Finally, we observe that § 1415(l) requires exhaustion

of IDEA remedies only when the civil action brought under

§ 1983, the ADA, the Rehabilitation Act, or other federal laws

“seek[s] relief that is also available” under the IDEA. Thus,

the “except” clause requires that parents and students exhaust

the remedies available to them under the IDEA before they

seek the same relief under other laws.

Our decision in Witte is consistent with these principles.

There, we recognized that the IDEA’s exhaustion provision

does not encompass every challenge concerning a school’s

treatment of a disabled student. The Wittes complained that

school officials forced their disabled child to eat oatmeal (to

which he was allergic) occasionally mixed with his own

vomit, choked him, and subjected him to “take-downs” and

other physical abuses. Witte, 197 F.3d at 1273. These actions

were punitive responses to the child’s bodily tics that resulted

from Tourette’s Syndrome. Id. The Wittes eventually agreed

with the school district to transfer their son to another school

in the same district and then sued for compensatory and punitive damages under 42 U.S.C. § 1983, the Rehabilitation Act,

the ADA, and state tort law. Id. at 1273-74. The district court

granted the defendants summary judgment on the ground that

the Wittes had failed to exhaust their administrative remedies

under the IDEA. Id. at 1274.

We reversed. We held that the IDEA’s exhaustion provision did not apply to plaintiffs who claimed that school officials had inflicted physical and emotional abuse on their child,

id. at 1273, when their complaint sought only retrospective

damages because the parties had already resolved their educational issues through “the remedies that are available under

the IDEA,” id. at 1276. We emphasized that because monetary damages were ordinarily unavailable under the IDEA, the

plaintiffs were “not seeking relief that is also available under

the IDEA.” Id.; see also id. at 1276 (“The remedies available

under the IDEA would not appear to be well-suited to

addressing past physical injuries adequately; such injuries

PAYNE v. PENINSULA SCHOOL DISTRICT 9747

Case: 07-35115 07/29/2011 Page: 17 of 61 ID: 7836883 DktEntry: 65-1
typically are remedied through an award of monetary damages.”). Accordingly, “under the plain words of the statute,

exhaustion of administrative remedies is not required.” Id. at

1275.

We subsequently took a more muscular view of § 1415(l)

in Robb, holding “that when a plaintiff has alleged injuries

that could be redressed to any degree by the IDEA’s administrative procedures and remedies, exhaustion of those remedies

is required.” Robb, 308 F.3d at 1048. Robb involved a student

who was diagnosed with cerebral palsy and was regularly

removed from her classroom “for extended ‘peer-tutoring’ by

junior high school and high school students without the supervision of a certified teacher.” Id. This tutoring took place on

the floor of a dim hallway without a chair or desk. Id. No

additional abuse was alleged. Taking guidance from Witte, the

Robbs limited their prayer for relief to money damages, but

specified that they were for “lost educational opportunities

and emotional distress, humiliation, embarrassment, and psychological injury.” Robb, 308 F.3d at 1048 (internal quotation

marks omitted). The district court held that the Robbs had not

exhausted their administrative remedies. Id.

We affirmed in a divided decision. The panel majority

expressed concern that parents might “be permitted to opt out

of the IDEA simply by making a demand for money or services the IDEA does not provide.” Id. at 1050. Noting that

there appeared to be a division of authority among the circuits

— the Third Circuit took the position that exhaustion was

unnecessary in a suit seeking only damages, while the First,

Sixth, Seventh, Tenth, and Eleventh Circuits held that limiting

requested relief to damages alone was not enough to avoid the

exhaustion requirement of the IDEA3 — we held “that a plain3Notably, it is no longer clear that there is a circuit split on this issue.

In A.W. v. Jersey City Pub. Schs., 486 F.3d 791 (3d Cir. 2007) (en banc),

the Third Circuit did not merely backtrack from its position that an IDEA

claim need not be exhausted if the plaintiff only sought money damages;

it went further and concluded that IDEA rights could not be vindicated

through a § 1983 suit at all. Id. at 798-99. In doing so, it overruled W.B.

v. Matula, 67 F.3d 484 (3d Cir. 1995), which we cited in Robb to demonstrate the circuit split. 

9748 PAYNE v. PENINSULA SCHOOL DISTRICT

Case: 07-35115 07/29/2011 Page: 18 of 61 ID: 7836883 DktEntry: 65-1
tiff cannot avoid the IDEA’s exhaustion requirement merely

by limiting a prayer for relief to money damages.” Id. at 1049.

We then adopted the rule that the IDEA’s exhaustion requirement applied to any case in which a plaintiff “alleged injuries

that could be redressed to any degree by the IDEA’s administrative procedures and remedies.” Id. at 1050 (emphasis added).4

In a number of subsequent cases, we have reaffirmed Robb’s

“injury-centered” approach. See, e.g., J.L. v. Mercer Island

Sch. Dist., 592 F.3d 938, 952 (9th Cir. 2010); Kutasi v. Las

Virgenes Unified Sch. Dist., 494 F.3d 1162, 1163-64 (9th Cir.

2007); Blanchard, 420 F.3d at 921. 

Furthermore, the Seventh and Tenth Circuits have adopted

“injury-centered” tests similar to the one we adopted in Robb.

See, e.g., McCormick v. Waukegan Sch. Dist. No. 60, 374

F.3d 564, 568-69 (7th Cir. 2004) (citing Robb, 308 F.3d at

1054, and holding that exhaustion can only be avoided “if the

plaintiff has alleged injuries that cannot be redressed to any

degree by the IDEA’s administrative procedures and remedies” (internal quotation marks omitted)); Cudjoe v. Indep.

Sch. Dist. # 12, 297 F.3d 1058, 1066 (10th Cir. 2002) (“[T]he

dispositive question generally is whether the plaintiff has

alleged injuries that could be redressed to any degree by the

IDEA’s administrative procedures and remedies. If so,

exhaustion of those remedies is required.” (alteration in original) (internal quotation marks omitted)).

Other circuits have generally agreed that plaintiffs cannot

evade the exhaustion requirement simply by limiting their

4

Judge Berzon dissented to emphasize that “the issue is whether the

relief plaintiffs seek is available” under the IDEA. Robb, 308 F.3d at 1056

(Berzon, J., dissenting). She expressed the view that “[i]nsofar as the

plaintiffs here are seeking relief that is not educationally-oriented (here,

compensation for past emotional harms) and is not present- or futurefocused, they are not seeking relief available under this statute. As this

court and others have made clear, damages to compensate for past pain

and suffering do not fit into the model of relief available under the IDEA’s

administrative remedies.” Id.

PAYNE v. PENINSULA SCHOOL DISTRICT 9749

Case: 07-35115 07/29/2011 Page: 19 of 61 ID: 7836883 DktEntry: 65-1
prayer for relief to a request for damages. See, e.g., Frazier

v. Fairhaven Sch. Comm., 276 F.3d 52, 64 (1st Cir. 2002)

(“[W]e hold that plaintiffs who bring an IDEA-based claim

under 42 U.S.C. § 1983, in which they seek only money damages, must exhaust the administrative process available under

the IDEA as a condition precedent to entering a state or federal court.”); Covington v. Knox Cnty. Sch. Sys., 205 F.3d

912, 917 (6th Cir. 2000) (“[W]e agree with those courts that

have decided that a mere claim for money damages is not sufficient to render exhaustion of administrative remedies unnecessary . . . .”); N.B. by D.G. v. Alachua Cnty. Sch. Bd., 84 F.3d

1376, 1379 (11th Cir. 1996) (holding that plaintiffs cannot

avoid the exhaustion requirement by limiting their requested

relief to money damages because otherwise, “future litigants

could avoid the exhaustion requirement simply by asking for

relief that administrative authorities could not grant”). However, these courts have not articulated a comprehensive standard for determining when exactly the exhaustion requirement

applies.

B

We now clarify and restate the proper method for resolving

IDEA exhaustion cases, and we overrule Robb to the extent

it is inconsistent with our decision. The IDEA’s exhaustion

requirement applies to claims only to the extent that the relief

actually sought by the plaintiff could have been provided by

the IDEA. In other words, we reject the “injury-centered”

approach developed by Robb and hold that a “relief-centered”

approach more aptly reflects the meaning of the IDEA’s

exhaustion requirement.

1

Relying on Robb, the panel majority focused its analysis on

the question of whether the injuries suffered by D.P. more

closely resembled the force-feeding and take-downs alleged

in Witte or the isolated peer tutoring alleged in Robb. Payne,

9750 PAYNE v. PENINSULA SCHOOL DISTRICT

Case: 07-35115 07/29/2011 Page: 20 of 61 ID: 7836883 DktEntry: 65-1
598 F.3d at 1127. In other words, the panel majority

employed an injury-centered approach and concluded that

because Payne was alleging misconduct that in theory could

have been redressed by resorting to administrative remedies

under the IDEA, she could not seek any redress for that misconduct in the courts until she had exhausted those administrative remedies. In a way, our approach in Robb treated

§ 1415(l) as a quasi-preemption provision, requiring administrative exhaustion for any case that falls within the general

“field” of educating disabled students.

[5] For reasons we have explained, this approach is inconsistent with the IDEA’s exhaustion provision. The statute

specifies that exhaustion is required “before the filing of a

civil action . . . seeking relief that is also available under [the

IDEA].” 20 U.S.C. § 1415(l) (emphasis added). This suggests

that whether a plaintiff could have sought relief available

under the IDEA is irrelevant — what matters is whether the

plaintiff actually sought relief available under the IDEA. In

other words, when determining whether the IDEA requires a

plaintiff to exhaust, courts should start by looking at a complaint’s prayer for relief and determine whether the relief

sought is also available under the IDEA. If it is not, then it is

likely that § 1415(l) does not require exhaustion in that case.

[6] We agree with much of the approach proposed by

amicus United States Department of Justice. Under a reliefcentered approach, § 1415(l) requires exhaustion in three situations. First, exhaustion is clearly required when a plaintiff

seeks an IDEA remedy or its functional equivalent. For example, if a disabled student files suit under the ADA and challenges the school district’s failure to accommodate his special

needs and seeks damages for the costs of a private school education, the IDEA requires exhaustion regardless of whether

such a remedy is available under the ADA, or whether the

IDEA is mentioned in the prayer for relief. Again, in that case

the “relief . . . is also available” under the IDEA, see 20

U.S.C. § 1412(a)(10), and the student must exhaust his IDEA

PAYNE v. PENINSULA SCHOOL DISTRICT 9751

Case: 07-35115 07/29/2011 Page: 21 of 61 ID: 7836883 DktEntry: 65-1
remedies before seeking parallel relief under the ADA. Second, the IDEA requires exhaustion in cases where a plaintiff

seeks prospective injunctive relief to alter an IEP or the educational placement of a disabled student. As with the previous

point, § 1415(l) bars plaintiffs from seeking relief that is

available to them under the IDEA, even if the plaintiffs have

urged the court to craft the remedy from a different federal

statute. Third, exhaustion is required in cases where a plaintiff

is seeking to enforce rights that arise as a result of a denial of

a free appropriate public education, whether pled as an IDEA

claim or any other claim that relies on the denial of a FAPE

to provide the basis for the cause of action (for instance, a

claim for damages under § 504 of the Rehabilitation Act of

1973, 29 U.S.C. § 794, premised on a denial of a FAPE).

Such claims arise under either the IDEA (if the IDEA violation is alleged directly) or its substantive standards (if a § 504

claim is premised on a violation of the IDEA), so the relief

follows directly from the IDEA and is therefore “available

under this subchapter.” 20 U.S.C. § 1415(l). We think that

these situations encompass cases in which “[b]oth the genesis

and the manifestations of the problem are educational.” Blanchard, 420 F.3d at 921 (quoting Charlie F. v. Bd. of Educ.,

98 F.3d 989, 993 (7th Cir. 1996)) (alteration in original).

This approach is consistent with our understanding that the

exhaustion provision is designed to “allow[ ] for the exercise

of discretion and educational expertise by state and local

agencies, afford[ ] full exploration of technical educational

issues, further[ ] development of a complete factual record,

and promote[ ] judicial efficiency by giving . . . agencies the

first opportunity to correct shortcomings in their educational

programs for disabled children.” Hoeft, 967 F.2d at 1303. The

exhaustion requirement is intended to prevent courts from acting as ersatz school administrators and making what should

be expert determinations about the best way to educate disabled students. At the same time, it is not intended to temporarily shield school officials from all liability for conduct that

violates constitutional and statutory rights that exist indepen9752 PAYNE v. PENINSULA SCHOOL DISTRICT

Case: 07-35115 07/29/2011 Page: 22 of 61 ID: 7836883 DktEntry: 65-1
dent of the IDEA and entitles a plaintiff to relief different

from what is available under the IDEA. Our decision reflects

this limited purpose of the IDEA’s exhaustion requirement.

2

The legislative history of 20 U.S.C. § 1415(l) supports our

understanding of its meaning. The exhaustion provision was

included as part of the Handicapped Children’s Protection Act

of 1986, Pub. L. No. 99-372, § 3, and followed the Supreme

Court’s decision in Smith v. Robinson, 468 U.S. 992 (1984).

See S. Rep. No. 99-112, at 2 (1985). In Smith, the Court held

that the Education of the Handicapped Act (“EHA”) — the

IDEA’s predecessor statute — served as “the exclusive avenue through which a plaintiff may assert an equal protection

claim to a publicly financed special education.” 468 U.S. at

1009. In doing so, the Court held that Congress intended to

eliminate a plaintiff’s ability to seek relief for that injury

under 42 U.S.C. § 1983. Id. at 1012-13. The language now

codified in § 1415(l) was enacted in response to that decision.

See Pub. L. No. 99-372, § 3 (1986). Congress specifically

sought to “make[ ] it clear that when parents choose to file

suit under another law that protects the rights of handicapped

children . . . , if that suit could have been filed under the EHA,

then parents are required to exhaust EHA administrative remedies.” S. Rep. No. 99-112, at 15 (1985) (emphasis added).

Indeed, a number of cases decided shortly after § 1415(l) was

enacted understood it to implement Congress’s will that the

provision “reaffirm . . . the viability of . . . other statutes as

separate vehicles for ensuring the rights of handicapped children.” Digre v. Roseville Schs. Indep. Dist. No. 623, 841 F.2d

245, 250 (8th Cir. 1988); see also Mrs. W. v. Tirozzi, 832 F.2d

748, 754 (2d Cir. 1987) (characterizing § 1415(l) as a “nonexclusivity provision”).

3

[7] The approach we have adopted yields a number of

implications. First, because our approach emphasizes the

PAYNE v. PENINSULA SCHOOL DISTRICT 9753

Case: 07-35115 07/29/2011 Page: 23 of 61 ID: 7836883 DktEntry: 65-1
relief sought rather than the types of injuries alleged, we find

no merit to the distinction we have previously drawn between

physical and non-physical injuries. See Robb, 308 F.3d at

1052. Although physical injuries might bolster a plaintiff’s

likelihood of success in a case, there is no reason to treat constitutional violations that do not result in physical injuries differently under the exhaustion provision. See Blanchard, 420

F.3d at 922 (holding that the IDEA does not require exhaustion when the plaintiff’s “emotional distress injuries . . . could

not be remedied through the educational remedies available

under the IDEA”).

[8] We also hold that in cases where a plaintiff is seeking

money damages, courts should not engage in the depth of

speculation we conducted in Robb. In that case, we inferred

that the Robbs sought money “[p]resumably at least in part to

pay for services (such as counseling and tutoring) that will

assist their daughter’s recovery of self-esteem and promote

her progress in school. Damages could be measured by the

cost of these services. Yet the school district may be able . . .

to provide these services in kind under the IDEA.” Robb, 308

F.3d at 1050. We no longer think that such speculation is

appropriate. Although we agree with the proposition that “a

plaintiff cannot avoid the IDEA’s exhaustion requirement

merely by limiting a prayer for relief to money damages,” id.

at 1049, we do not think, especially in the context of motions

to dismiss or summary judgment motions, that it is proper for

courts to assume that money damages will be directed toward

forms of relief that would be available under the IDEA.

[9] At the same time, plaintiffs cannot avoid exhaustion

through artful pleading. If the measure of a plaintiff’s damages is the cost of counseling, tutoring, or private schooling

— relief available under the IDEA — then the IDEA requires

exhaustion. In such a case, the plaintiffs are seeking the same

relief, even if they are willing to accept cash in lieu of services in kind. Accordingly, the exhaustion requirement would

also apply in cases where a plaintiff is arguing that a state’s

9754 PAYNE v. PENINSULA SCHOOL DISTRICT

Case: 07-35115 07/29/2011 Page: 24 of 61 ID: 7836883 DktEntry: 65-1
failure to provide specialized programs for disabled students

violates the Equal Protection Clause of the Fourteenth

Amendment and seeks damages to fund a private education

(without mentioning the IDEA). It would also apply to cases

in which the plaintiff requests damages to compensate for

costs associated with unilaterally altering a disabled student’s

educational placement, since such a request would also be

“seeking relief that is also available under” the IDEA. 20

U.S.C. § 1415(l). In other words, to the extent that a request

for money damages functions as a substitute for relief under

the IDEA, a plaintiff cannot escape the exhaustion requirement simply by limiting her prayer for relief to such damages.

However, to the extent that a plaintiff has laid out a plausible

claim for damages unrelated to the deprivation of a FAPE, the

IDEA does not require her to exhaust administrative remedies

before seeking them in court.

Finally, we do not believe that the exhaustion requirement

is triggered simply because the challenged conduct constitutes

“at least . . . an attempt at an educational program.” See

Payne, 598 F.3d at 1127 (quoting Robb, 308 F.3d at 1052

n.3). As amicus Department of Justice points out, whether a

school official’s action is a reasonable “attempt at an educational program” may comprise the very heart of a dispute

about the constitutionality of that action. Thus, for example,

if a student alleges a Fourth Amendment violation, the school

may answer that any search or seizure was reasonably related

to the school’s educational programs; but the student is not

deprived of a § 1983 remedy merely because the conduct took

place in the context of educating the disabled. Particularly in

contexts where courts are expected to draw inferences in

favor of plaintiffs, we do not think it is appropriate to make

what are essentially merits determinations in the context of

evaluating the need for exhaustion. Nothing in the IDEA protects a school from non-IDEA liability simply because it was

making a good-faith attempt to educate its disabled students.

If the school’s conduct constituted a violation of laws other

PAYNE v. PENINSULA SCHOOL DISTRICT 9755

Case: 07-35115 07/29/2011 Page: 25 of 61 ID: 7836883 DktEntry: 65-1
than the IDEA, a plaintiff is entitled to hold the school

responsible under those other laws.

4

The National School Boards Association (“NSBA”), as

amicus, suggests that our conclusion is at odds with the

Supreme Court’s decision in Booth v. Churner, 532 U.S. 731

(2001), a case in which the Court construed the exhaustion

requirement in the PLRA, 42 U.S.C. § 1997e(a). Indeed,

Booth’s language factored “strongly” in Robb’s conclusion,

since we noted in that case that “[t]he PLRA’s exhaustion

requirement is framed in language similar to the IDEA’s.”

Robb, 308 F.3d at 1050-51 (comparing “administrative remedies . . . available” under the PLRA, 42 U.S.C. § 1997e(a), to

“relief that is also available” under the IDEA, 20 U.S.C.

§ 1415(l)). In Booth, the Court concluded that the PLRA

“mandate[s] exhaustion . . . regardless of the relief offered

through administrative procedures.” 532 U.S. at 741. We held

in Robb that, applied to the IDEA, this language meant that

“a plaintiff must exhaust a mandatory administrative process

even if the precise form of relief sought is not available in the

administrative venue.” 308 F.3d at 1051. This wording suggests that even if a plaintiff has available non-IDEA forms of

relief in addition to potential relief under the IDEA, the plaintiff must exhaust administrative remedies before pursuing any

of them. While this conclusion was correct in Booth, there are

important differences between the PLRA and the IDEA, and

Robb incorrectly applied the same conclusion to the IDEA.

The PLRA’s exhaustion requirement specifies that “[n]o

action shall be brought . . . until such administrative remedies

as are available are exhausted.” 42 U.S.C. § 1997e(a) (emphasis added). The language is unequivocal and makes no reference to parallel forms of relief. Booth sensibly interpreted the

prohibition on bringing an action to mean that the PLRA

restricted unexhausted prisoner litigation altogether. By contrast, the IDEA’s exhaustion provision applies only to “the filing of a civil action . . . seeking relief that is also available

9756 PAYNE v. PENINSULA SCHOOL DISTRICT

Case: 07-35115 07/29/2011 Page: 26 of 61 ID: 7836883 DktEntry: 65-1
under [the IDEA]”; otherwise, the IDEA does not “restrict or

limit the rights, procedures, and remedies” available under

§ 1983, the ADA, the Rehabilitation Act, or other federal

laws. 20 U.S.C. § 1415(l). The difference between these two

statutes is critical — unlike the PLRA, the IDEA requires

exhaustion only from plaintiffs who are pursuing non-IDEA

claims that compel the same forms of relief as the IDEA.

The NSBA also appeals to the inevitability of parent-school

disputes and argues that “[r]elaxing the IDEA’s administrative exhaustion requirement does violence” to Congress’s

goal of expediting the resolution of these disputes. We are

mindful of “the general rule that parties exhaust prescribed

administrative remedies before seeking relief from the federal

courts.” McCarthy v. Madigan, 503 U.S. 140, 144-45 (1992).

The general rule is a salutary one allowing agencies to exercise their expertise, to correct their own errors, and to provide

relief that may be both swifter and more satisfactory than

relief available through more formal litigation. Even where

the parties ultimately file suit in federal court after exhausting

their administrative remedies, we may benefit from a process

that has developed the factual record and narrowed the issues

contested by the parties. 

The reasons for administrative exhaustion do not change

the fact that the IDEA’s exhaustion requirement is not as

broad as the NSBA urges. Moreover, the NSBA’s reading

would actually place disabled students in a disadvantaged

position relative to students without special needs. As Payne

accurately notes, a student who had no disability — and therefore had no need for an IEP — would be able to challenge the

constitutionality of his teacher’s confinement procedures

without first resorting to administrative procedures. The student could simply advance a § 1983 claim alleging violations

of his constitutional rights. No exhaustion would be required.

If a disabled student would be able to make out a similarly

meritorious constitutional claim — one that need not reference his disability at all — it is odd to suggest that the IDEA

PAYNE v. PENINSULA SCHOOL DISTRICT 9757

Case: 07-35115 07/29/2011 Page: 27 of 61 ID: 7836883 DktEntry: 65-1
would impose additional qualifications to sue, simply because

he had a disability.

C

We have carefully examined the criticism raised by the dissent and, with respect, do not think such criticism alters our

views.

1

The dissent argues that our approach “largely nullifies

§ 1415(l) by providing plaintiffs with an easy end-run around

the exhaustion requirement,” because exhaustion would not

be required “[s]o long as a complaint which seeks monetary

damages does not mention a specific provision of the IDEA,

or demand a remedy specifically provided by it.” Dissenting

Op. at 9779. Nothing in our analysis “nullifies” § 1415(l). If

a plaintiff does not seek relief based on an IDEA right, and

does not seek a remedy provided by the IDEA, then she is not

bound by the IDEA’s prerequisites for litigation. This does

not “nullif[y] § 1415(l)” — it simply limits the provision to

its intended scope.

Indeed, the dissent seems particularly concerned with the

fact that our approach “elevates the form of plaintiffs’ pleadings over their substance,” Dissenting Op. at 9777,5

 and facilitates “gamesmanship,” Dissenting Op. at 9772. But this worry

is misplaced. In each case where a defendant raises § 1415(l)

5The dissent contends that we improperly focus on the pleadings

because this appeal reaches us from a grant of summary judgment, in

which the district court considered the evidence presented by the parties.

Dissenting Op. at 9777-78 n.5. However, we focus on the pleadings

because initially they determine whether the plaintiff is actually “seeking

relief” available under the IDEA. Whether Payne can provide evidence

supporting her claim of entitlement to such relief is a separate question —

one that the district court did not address (because it had no need to) in

its order granting summary judgment. 

9758 PAYNE v. PENINSULA SCHOOL DISTRICT

Case: 07-35115 07/29/2011 Page: 28 of 61 ID: 7836883 DktEntry: 65-1
as a complete or partial defense, two possibilities arise. First,

a court might decide that a complaint states a facially meritorious claim that does not either rely on rights created by the

IDEA or seek remedies available under the IDEA. If a complaint can stand on its own without reference to the IDEA, it

is difficult to see why the IDEA should compel its dismissal.

It is hardly an “nullification of the congressionally mandated

exhaustion requirement,” Dissenting Op. at 9771, to say that

a complaint that presents sound claims wholly apart from the

IDEA need not comport with the IDEA’s requirements. Even

though such a case might “subject school districts to civil liability for money damages, without first giving school districts

the opportunity to remedy the plaintiff’s injuries under the

IDEA,” Dissenting Op. at 9772, this will only be because

some other governing law authorizes such liability. The dissent’s suggestion that this constitutes “gamesmanship” is puzzling. The fact that the plaintiff could have added IDEA

claims to an otherwise sound complaint (and thus subjected

themselves to the exhaustion requirement), but chose not to,

should not detract from the viability of that complaint.

Of course, a plaintiff might try to evade the exhaustion

requirement by relying on “artful” allegations. This is the situation the dissent appears to worry most about. But our

approach still requires exhaustion in these cases. For example,

the dissent provides the example of “a disabled child who

seeks monetary damages because a school district’s implementation of some educational program resulted in a claimed

failure to adequately instruct him in reading.” Dissenting Op.

at 9777-78. The dissent interprets our opinion as allowing

such a claim to proceed without exhaustion so long as the

complaint “does not mention a specific provision of the

IDEA.” Dissenting Op. at 9779. But where the claim arises

only as a result of a denial of a FAPE, whether under the

IDEA or the Rehabilitation Act, exhaustion is clearly required

no matter how the claim is pled. To use the dissent’s example,

a claim for failure to adequately instruct a student in reading

can arise only under the IDEA because there is no other fedPAYNE v. PENINSULA SCHOOL DISTRICT 9759

Case: 07-35115 07/29/2011 Page: 29 of 61 ID: 7836883 DktEntry: 65-1
eral cause of action for such a claim. See Plyler v. Doe, 457

U.S. 202, 221 (1982) (finding no enforceable federal constitutional right to a public education); cf. Blanchard v. Morton

Sch. Dist., 509 F.3d 934, 938 (9th Cir. 2007) (holding that

§ 1983 does not authorize suits for IDEA violations). The

claim asserted here — for knowing and intentional infliction

of excessive force — is cognizable under the Fourth Amendment and exists separate and apart from the denial of a FAPE,

irrespective of the fact that the alleged excessive punishment

took place in a special education classroom. See, e.g., Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175,

1181-82 (9th Cir. 2007) (holding that clearly established law

under the Fourth Amendment prohibits “excessive physical

abuse of schoolchildren”); Doe ex rel. Doe v. Haw. Dept. of

Educ., 334 F.3d 906, 909 (9th Cir. 2003). Although we would

not doubt, for example, that an unconstitutional beating might

interfere with a student enjoying the fruits of a FAPE, the

resulting excessive force claim is not, for that reason alone, a

claim that must be brought under the IDEA.

2

The dissent nonetheless contends that § 1415(l) requires

exhaustion whenever the IDEA’s administrative procedures

“may lead to the provision of curative or palliative ‘related

services.’ ” Dissenting Op. at 9774. Here, for example, the

dissent suggests that the school district could have provided

“intensive individualized tutoring” or “[p]sychological counseling” to correct both the past and ongoing aftereffects suffered by D.P. as a result of Coy’s use of the isolation room.

Dissenting Op. at 9775. The dissent therefore concludes that

because Payne is seeking damages “for the past and ongoing

academic and psychological aftereffects of D.P.’s claimed

mistreatment of the school district,” exhaustion is required.

Dissenting Op. at 9776 (emphasis omitted).

This approach misreads § 1415(l) and is at odds with Witte.

First, it is not clear that the IDEA actually authorizes relief

9760 PAYNE v. PENINSULA SCHOOL DISTRICT

Case: 07-35115 07/29/2011 Page: 30 of 61 ID: 7836883 DktEntry: 65-1
designed to correct the effects of misconduct by the school.

The dissent suggests that “the ‘related services’ provided

under the IDEA — academic services, psychological counseling and therapy — may cure, alleviate, or mitigate [injuries

caused by a school district’s wrongful act or omission].” Dissenting Op. at 9774. But the IDEA defines “related services”

to include “transportation, and such developmental, corrective, and other supportive services . . . as may be required to

assist a child with a disability to benefit from special education, and includes the early identification and assessment of

disabling conditions in children.” 20 U.S.C. § 1401(26)(A)

(emphasis added). In other words, it is far from clear that the

IDEA authorizes the provision of services designed to correct

injuries caused by the school’s past violation of other laws.

Furthermore, even if such services are available under the

IDEA, the dissent’s proposal is plainly too broad. For example, the student in Witte could plausibly have received some

psychological counseling and therapy that might have corrected or mitigated some of the harms resulting from the

abuse he suffered at school. See Witte, 197 F.3d 1272-73.

Under the dissent’s view, the fact that Witte sought remedies

only for physical injuries without seeking relief under the

IDEA could easily be characterized as “gamesmanship” that

should be set aside in favor of the exhaustion requirement.

The dissent’s approach would necessarily require such speculation, even in fact patterns identical to the one in Witte. The

dissent would hold that if psychological counseling could correct a student’s injuries, then exhaustion is required even if

the injuries were caused by a non-IDEA violation for which

federal law authorizes remedies apart from the IDEA.

We think such an approach would be mistaken. If a plaintiff can identify a school district’s violation of federal laws

other than the IDEA and can point to an authorized remedy

for that violation unavailable under the IDEA, then there is no

reason to require exhaustion under § 1415(l). The dissent’s

approach would effectively refashion § 1415(l) from a proviPAYNE v. PENINSULA SCHOOL DISTRICT 9761

Case: 07-35115 07/29/2011 Page: 31 of 61 ID: 7836883 DktEntry: 65-1
sion designed to facilitate the coexistence of the IDEA with

other forms of relief into one designed to preempt all cases

involving the mistreatment of disabled students by a school.

We do not think that the IDEA’s exhaustion requirement was

intended to penalize disabled students for their disability. This

is not what § 1415(l) says, and we think it is not what Congress intended.

IV

A

[10] We now apply our approach to Payne’s case and supply instructions for the district court. Payne alleged several

§ 1983 claims, as well as Washington state tort actions for

negligence and outrage. The district court did not specifically

address each claim and explain why exhaustion was required

for each. Relying on Robb, it simply stated that “because

plaintiffs’ injuries could be remedie[d] to some degree by the

IDEA’s administrative procedures and remedies, the plaintiffs

must exhaust those administrative remedies before filing

suit.” However, in light of the new standards announced in

this decision, the district court on remand should permit

Payne to amend her complaint in order to flesh out her specific claims and enable the court to determine which claims

require IDEA exhaustion and which do not.

[11] The district court should then provide the defendants

with an opportunity to seek dismissal of some or all of

Payne’s claims on the ground that they require administrative

exhaustion. The district court need not wait to consider the

applicability of the exhaustion requirement until the record is

complete and a motion for summary judgment has been filed.

We have previously held that a non-jurisdictional exhaustion

requirement can be cited defensively “as a matter in abatement, . . . subject to an unenumerated Rule 12(b) motion

rather than a motion for summary judgment.” Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) (collecting cases).

9762 PAYNE v. PENINSULA SCHOOL DISTRICT

Case: 07-35115 07/29/2011 Page: 32 of 61 ID: 7836883 DktEntry: 65-1
This is because, as a general matter, “summary judgment is on

the merits, whereas dismissal of an action on the ground of

failure to exhaust administrative remedies is not on the merits.” Id. Unlike a judgment on the merits, a plaintiff’s failure

to exhaust administrative remedies should result in a dismissal

without prejudice. See City of Oakland, Cal. v. Hotels.com

LP, 572 F.3d 958, 962 (9th Cir. 2009). Generally, in entertaining an unenumerated motion to dismiss, “the court may look

beyond the pleadings and decide disputed issues of fact.”

Wyatt, 315 F.3d at 1120. We see little reason to depart from

this rationale in the context of the IDEA. The defendants

should be permitted to challenge Payne’s claims under the

exhaustion provision in an unenumerated motion to dismiss,

in the context of which the court may decide disputed issues

of fact to the extent they are necessary to deciding whether

her claims require exhaustion and, if so, whether she has adequately exhausted available administrative remedies. 

[12] Because § 1415(l) focuses on the “relief” sought in an

action,6 it is conceivable that a district court, in entertaining

a motion to dismiss, might not initially conclude that exhaustion is required for certain claims, but might recognize subsequently that, in fact, the remedies being sought by a plaintiff

could have been provided by the IDEA. In such a case, we

think the defendants should be permitted to provide evidence

6Section 1415(l)’s emphasis on the relief sought by a plaintiff makes it

different from the provisions we have previously addressed. For example,

in Wyatt, we interpreted the exhaustion requirement of the PLRA, which,

as we have discussed, differs from § 1415(l) in that it restricts the filing

of all pre-exhaustion actions — regardless of the relief sought — by prisoners. See 42 U.S.C. § 1997e(a). Likewise, Wyatt’s predicate cases typically involved arbitration requirements in private contracts, which, again,

restricted the filing of entire actions, regardless of the relief sought. See,

e.g., Inlandboatmens Union of Pac. v. Dutra Grp., 279 F.3d 1075, 1077

(9th Cir. 2002) (interpreting an agreement that required arbitration over

“[a]ny dispute concerning . . . wages, working conditions, or any other

matters referred to in this [contract]” (emphasis added)); Ritza v. Int’l

Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 367 (9th Cir.

1988). 

PAYNE v. PENINSULA SCHOOL DISTRICT 9763

Case: 07-35115 07/29/2011 Page: 33 of 61 ID: 7836883 DktEntry: 65-1
showing that the relief being sought by that plaintiff was, in

fact, available under the IDEA. Because the line between

damages available under other remedial sources and relief

available under the IDEA is less than clear, the finder of fact

should, in assessing remedies, be permitted to assess the evidence and withhold those that are unexhausted and available

under the IDEA.

We recognize that this approach to exhaustion is somewhat

unconventional — it is anomalous to permit a party to raise

failure to exhaust as a defense in both a motion to dismiss and

at the fact-finding stage of a proceeding. But as we have

noted, § 1415(l) is itself an anomalous provision, since it does

not categorically preclude claims and instead requires a court

to examine the relief being sought by those claims and to

compare it to the relief available under the IDEA. Ultimately,

§ 1415(l) is designed to channel requests for a FAPE (and its

incidents) through IDEA-prescribed procedures. The procedure we have outlined, while somewhat unusual, faithfully

executes Congress’s design.

B

After Payne is given the opportunity to amend her complaint, the district court should examine each of Payne’s

requests for relief and determine whether the exhaustion

requirement applies to each. It may then dismiss any claims

that are governed by the exhaustion requirement, but it should

not dismiss any remaining claims.7 To provide additional

7The dissent contends that we should nonetheless affirm the district

court’s grant of summary judgment (perhaps after deciding to construe it

as an unenumerated motion to dismiss) because “all of the facts presented

to the district court indicated the Paynes were seeking at least some relief

that was ‘also available’ under the IDEA.” Dissenting Op. at 9784.

Although we agree that “at least some” of the relief being sought by Payne

does require exhaustion, we do not think this requires the court to dismiss

Payne’s entire case. We see no reason to adopt such a “total exhaustion

9764 PAYNE v. PENINSULA SCHOOL DISTRICT

Case: 07-35115 07/29/2011 Page: 34 of 61 ID: 7836883 DktEntry: 65-1
guidance concerning the new approach we have adopted, we

briefly discuss some of Payne’s federal claims in her current

complaint and the relief sought. We reiterate, of course, that

the district court should permit Payne to amend her complaint

before determining which aspects are barred by the exhaustion requirement.

[13] The easiest claim to address is Payne’s claim that the

defendants violated D.P.’s “statutory rights under the IDEA.”

This claim is plainly barred by § 1415(l) because any relief

that Payne could obtain for violations of the IDEA is “relief

that is also available under [the IDEA]” itself. Section 1415(l)

is explicit that Payne must exhaust her IDEA remedies “to the

same extent as would be required had the action been brought

under [the IDEA].”

[14] With respect to the remaining § 1983 claims —

alleged violations of the Fourth, Eighth, and Fourteenth

Amendments — the complaint does not explicitly link each

constitutional claim to a form of requested relief. Rather, the

complaint seeks declaratory relief and general, special, and

punitive damages. Accordingly, it will be the task of the district court on remand to determine whether the relief being

rule” similar to the one we apply in the context of habeas corpus. See Rose

v. Lundy, 455 U.S. 509, 522 (1982). The Supreme Court has observed that

“total exhaustion” is the exception rather than the rule. See Jones, 549

U.S. at 221 (holding that the PLRA’s exhaustion requirement did not

create a total exhaustion rule and noting that “[a]s a general matter, if a

complaint contains both good and bad claims, the court proceeds with the

good and leaves the bad. [O]nly the bad claims are dismissed; the complaint as a whole is not. If Congress meant to depart from this norm, we

would expect some indication of that, and we find none.” (alteration in

original) (internal quotation marks omitted)). 

Additionally, because we articulate a new standard today, it is appropriate to remand the case to the district court to apply that standard. On

remand, the district court should allow the parties to amend their pleadings

and take any other steps necessary to apply this new approach. 

PAYNE v. PENINSULA SCHOOL DISTRICT 9765

Case: 07-35115 07/29/2011 Page: 35 of 61 ID: 7836883 DktEntry: 65-1
sought is “also available under” the IDEA. For example,

Payne’s request for “general damages for extreme mental suffering and emotional distress” would not fall within the purview of § 1415(l) if such damages are intended to compensate

Payne for injuries resulting from Fourth or Eighth Amendment violations committed by school officials. Cf. Blanchard,

420 F.3d at 922 (holding that a request for damages for “emotional distress injuries” did not require exhaustion because

they “could not be remedied through the educational remedies

available under the IDEA”). If, however, the “emotional distress” stems from Payne’s concern that D.P. was not receiving

an adequate education, then exhaustion is required. 

To take a second example, the complaint alleges violations

of “procedural and substantive due process” under the Fourteenth Amendment. If Payne seeks damages for the school

district’s failure to provide procedural due process for rights

conferred by the IDEA, the claims must be exhausted because

the IDEA provides procedural due process rights, 20 U.S.C.

§ 1415(f)-(g), and Payne cannot simply claim damages in

place of the process available to her. Similarly, we cannot discern the contours of Payne’s current substantive due process

claim, but if, for example, the claim is for deprivation of a

“free and appropriate education,” see 20 U.S.C.

§ 1412(a)(1)(A), then Payne seeks relief that is also available

under the IDEA, and she must exhaust her statutory remedies.8

Finally, we emphasize that our holding only removes certain procedural barriers preventing Payne from litigating her

non-IDEA claims. We have not been asked to, and do not,

decide whether any of these claims are meritorious.

8We have no occasion here to opine on the existence or scope of such

a right, but even if there is such a right, Congress may require administrative exhaustion of constitutional claims. See United States v. Clintwood

Elkhorn Mining Co., 553 U.S. 1, 9 (2008); Aircraft & Diesel Equip. Corp.

v. Hirsch, 331 U.S. 752, 773-74 (1947). 

9766 PAYNE v. PENINSULA SCHOOL DISTRICT

Case: 07-35115 07/29/2011 Page: 36 of 61 ID: 7836883 DktEntry: 65-1
V

[15] We hold that 20 U.S.C. § 1415(l) gives IDEA defendants an opportunity to plead non-exhaustion as an affirmative defense without limiting federal jurisdiction. We affirm

the district court’s dismissal of Payne’s IDEA-based claim

under 42 U.S.C. § 1983. We reverse its dismissal of her other

§ 1983 claims and remand for reconsideration under the standards we have articulated.

Costs on appeal are awarded to Payne.

AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.

CALLAHAN, Circuit Judge, 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(l), 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 plaintiff’s 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.

PAYNE v. PENINSULA SCHOOL DISTRICT 9767

Case: 07-35115 07/29/2011 Page: 37 of 61 ID: 7836883 DktEntry: 65-1
This approach differs in its critical aspects from the concept

of mitigation. Although the statute states that an action may

not be filed until administrative proceedings have been

exhausted, it may not always be possible to determine, either

at the pleadings stage or on a motion for summary judgment,

whether some aspect of the alleged damages would have been

addressed, in whole or in part, in administrative proceedings.

Accordingly, lest the purpose of the exhaustion requirement

be evaded, we should recognize that the scope of the unexhausted administrative proceedings may only become clear

at trial. Of course, at that point in time it is impossible to literally enforce the exhaustion requirement. The lawsuit has been

filed and presumably some aspects of the alleged damages

would not have been addressed in the available administrative

proceedings (otherwise the court would have already dismissed the action). In such a situation, the intent of the statute

is best served by denying the plaintiff any recovery for any

aspect of the alleged damages that the defendant school district shows would have been addressed in the administrative

proceedings.

The school district has the burden of making the requisite

factual showing that an aspect of a damage claim would have

been addressed in the administrative proceedings, but it need

not show that the administrative proceedings would have produced a solution. Rather, if the school district shows, to the

requisite degree of certainty, that the administrative proceedings would have addressed an aspect of the plaintiff’s alleged

damages, the plaintiff may not recover for that aspect. In

essence, if the factfinder determines that an aspect of plaintiff’s claim for damages would have been addressed by the

administrative proceedings, the plaintiff has failed to exhaust

the administrative procedures for that aspect. Accordingly, to

enforce the exhaustion provision, the plaintiff should be

barred from seeking damages for that aspect of his or her

claim. This is not mitigation in the sense of reducing damages

based on a plaintiff’s failure to prevent the harm, rather it

enforces a statutory prerequisite to the entitlement to collect

9768 PAYNE v. PENINSULA SCHOOL DISTRICT

Case: 07-35115 07/29/2011 Page: 38 of 61 ID: 7836883 DktEntry: 65-1
the damages — engaging in the requisite pre-suit administrative proceedings.

The allegations in this case allow for an illustration of this

approach. D.P.’s confinement to the “safe room” arose out of

the parties relationship based on the IDEA. However, his confinement was also arguably a violation of D.P.’s constitutional

rights irrespective of the parties’ relationship under the IDEA.

Our focus, however, is not on whether the alleged injury

resulted from a violation of the IDEA or of the child’s constitutional rights, but whether the “relief sought is also available

under the IDEA.” Maj. Op. 9751; see also Maj. Op. 9747-48.

The difficulty in measuring damages, is implicitly admitted

in our direction to the district court to allow Payne “to amend

her complaint in order to flesh out her specific claims and

enable the court to determine which claims require IDEA

exhaustion and which do not.” Maj. Op. 9762. For example,

we recognize that Payne’s request for “general damages for

extreme mental suffering and emotional distress” might not

fall “within the purview of § 1415(l),” but will if “the ‘emotional distress’ stems from Payne’s concern that D.P. was not

receiving an adequate education.” Maj. Op. 9766. It is not

clear to what extent long term academic, psychological or

emotional harms, must be addressed in the administrative proceedings. The majority holds that “[t]he IDEA’s exhaustion

requirement applies to claims only to the extent that the relief

actually sought could have been provided by the IDEA.” Maj.

Op. p. 9750. It further holds that “exhaustion is required in

cases where a plaintiff is seeking to enforce rights that arise

as a result of a denial of a free appropriate public education.”

Maj. Op. p. 9752. Thus, although it may be “far from clear

that the IDEA authorizes the provision of services designed to

correct injuries caused by the school’s past violation of other

laws,” (Maj. Op. p. 9761, but see Bea Con. p. 9774-75), the

line between those aspects of damages which would have

been addressed in administrative proceedings, and those

PAYNE v. PENINSULA SCHOOL DISTRICT 9769

Case: 07-35115 07/29/2011 Page: 39 of 61 ID: 7836883 DktEntry: 65-1
which would not, may be a factual issue that will have to be

determined on a case by case basis. 

Here, as noted by Judge Bea, much of the relief or damages

Payne sought was arguably available under the IDEA. On the

other hand, as all admit, to the extent that plaintiffs seek monetary damages for compensation for past pain and suffering,

such relief is not available under the IDEA. See Maj. Op.

9765; Bea Con. pp. 9780-81 n.8. Furthermore, as the majority

notes, the complaint “does not explicitly link each constitutional claim to a form of requested relief.” Maj. Op. 9765.

Although we direct the district court to scrutinize the complaint, we implicitly admit that the line between damages that

are and are not addressable in IDEA administrative proceedings may not be clear. See Maj. Op. 9765-66. It follows that

the district court may be able to use the IDEA’s exhaustion

requirement to narrow the complaint at the pleading stage, but

may not be able to dispose of the case.

The danger is, as Judge Bea notes, that artful pleading may

enable plaintiffs to circumvent the exhaustion requirement.

See Bea Con. 9778-79. However, much of the incentive to do

so will be dissipated if, at trial, the defendant may present evidence showing that the administrative proceedings under the

IDEA, if utilized, would have addressed certain aspects of the

claimed damages. This also recognizes the exhaustion

requirement is akin to an affirmative defense, rather than a

jurisdictional bar to the lawsuit. 

Such an approach is consistent with the intent of the IDEA

to encourage the parties to take advantage of the administrative proceedings. At the same time, it recognizes that just

because a student is subject to the IDEA, he or she does not

forfeit his or her other constitutional and statutory rights.

Nonetheless, where (1) the alleged damages arise in the context of a relationship under the IDEA, (2) plaintiff did not

exhaust the administrative proceedings under the IDEA, and

(3) the measure of damages includes aspects that would have

9770 PAYNE v. PENINSULA SCHOOL DISTRICT

Case: 07-35115 07/29/2011 Page: 40 of 61 ID: 7836883 DktEntry: 65-1
been addressed in the administrative proceedings, then the

exhaustion requirement should be construed as denying plaintiff any recovery for those aspects of the claim that it is determined — under the applicable standard of proof and by the

appropriate factfinder — would have been addressed by the

administrative proceedings.

BEA, Circuit Judge, joined by SILVERMAN and

RAWLINSON, Circuit Judges, concurring in part and dissenting in part:

I respectfully dissent from what the majority calls its “clarification” of the “proper method for resolving IDEA exhaustion cases.”

1

 Maj. Op. at 9750. 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(l) (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

1

In light of Jones v. Bock, 549 U.S. 199 (2007), and Reed Elsevier, Inc.

v. Muchnick, 130 S. Ct. 1237 (2010), I concur in the majority’s determination that the IDEA’s exhaustion requirement is non-jurisdictional. I note,

however, that it was unnecessary to reach the jurisdictional issue in this

case. Here, defendants raised Payne’s failure to exhaust administrative

remedies as an affirmative defense in the district court. Therefore—

regardless whether the IDEA’s exhaustion requirement is jurisdictional or

must be raised as an affirmative defense—it is clear that the exhaustion

issue in this case was properly before the district court. Because this court

did reach the jurisdictional question, however, I concur in its analysis of

the issue. 

PAYNE v. PENINSULA SCHOOL DISTRICT 9771

Case: 07-35115 07/29/2011 Page: 41 of 61 ID: 7836883 DktEntry: 65-1
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 opportunity to remedy the plaintiff’s

injuries under the IDEA. 

Moreover, in remanding this case to the district court to

parse the Paynes’ complaint, the majority ignores the procedural posture of this case. This case comes to us on appeal of

the district court’s grant of summary judgment to the school

district. The school district presented evidence, in the form of

deposition testimony from plaintiff Windy Payne, which

proved the Paynes sought relief which was “also available”

under the IDEA—thus triggering the IDEA’s exhaustion

requirement. 20 U.S.C. § 1415(l). In contrast, the Paynes

presented no evidence at all to raise a triable issue of material

fact as to whether the relief they sought was not “also available” under the IDEA, nor any evidence at all that recourse

to the remedies provided in the IDEA would be futile. A moving party is entitled to summary judgment if the non-moving

party fails to present, by affidavits, depositions, answers to

interrogatories, or admissions “specific facts showing that

there is a genuine issue for trial.” Celotex Corp. v. Catrett,

477 U.S. 317, 324 (1986). I would not remand to the district

court to parse Paynes’ complaint for allegations of facts, evidence of which facts the Paynes themselves did not present in

their opposition to summary judgment. This is an appeal from

an order under Rule 56 of the Federal Rules of Civil Procedure, not an appeal from a 12(b)(6) order. I would affirm. For

these reasons, I dissent.

I.

With respect, the majority opinion begins by misreading

the IDEA’s exhaustion provision, codified at 20 U.S.C.

§ 1415(l). The majority reads § 1415(l)—which requires a

9772 PAYNE v. PENINSULA SCHOOL DISTRICT

Case: 07-35115 07/29/2011 Page: 42 of 61 ID: 7836883 DktEntry: 65-1
plaintiff to exhaust administrative remedies if the plaintiff is

“seeking relief that is also available under” the IDEA—to

mean that exhaustion is required only if a plaintiff specifically

alleges violations of substantive IDEA rights, or their “functional equivalent.” According to the majority, “whether a

plaintiff could have sought relief available under the IDEA is

irrelevant—what matters is whether the plaintiff actually

sought relief available under the IDEA.” Maj. Op. at 9751

(emphasis in original). Therefore, according to the majority,

courts charged with “determining whether the IDEA requires

a plaintiff to exhaust . . . should start by looking at a complaint’s prayer for relief and determine whether the relief

sought is also available under the IDEA. If it is not, then it is

likely that § 1415(l) does not require exhaustion.” Maj. Op. at

9751. The majority sees “relief that is available” under the

IDEA as restricted to three situations: 1) when a claim is

based upon alleged violations of a plaintiff’s substantive

IDEA right to a Free Appropriate Public Education (FAPE);

2) when a plaintiff seeks an IDEA remedy, or the “functional

equivalent of an IDEA remedy under a different law” (for

example, when a plaintiff seeks recompense for a private

school education under the Americans with Disabilities Act,

or explicitly measures its calculation of damages as the cost

of academic tutoring or psychological counseling); and 3)

when a plaintiff seeks injunctive relief to alter a child’s individualized education program (IEP) or educational placement.2

Maj. Op. at 9751-52. 

As an initial matter, the majority’s limited exhaustion

requirement is inconsistent with the plain text of § 1415(l).

Section 1415(l) does not state that exhaustion is required only

for relief that is premised upon an alleged violation of the

plaintiff’s substantive IDEA rights, seeks the functional

equivalent of an IDEA remedy, or seeks injunctive relief after

2An IEP is a document which sets educational goals and specifies an

instructional plan for disabled students. 34 C.F.R. § 300.320. An IEP must

be reviewed and renewed at least annually. Id. 

PAYNE v. PENINSULA SCHOOL DISTRICT 9773

Case: 07-35115 07/29/2011 Page: 43 of 61 ID: 7836883 DktEntry: 65-1
IDEA remedies have been effected. Rather, § 1415(l) simply

and broadly states that exhaustion is required if a plaintiff

seeks relief that is “also available” under the IDEA. The

IDEA requires public schools to provide disabled students

with a “free appropriate public education.” A “free appropriate public education” includes not just “an appropriate preschool, elementary school, or secondary school education,”

but also “related services” which include counseling and psychological services. See 20 USC § 1401(26). Thus, if a disabled student brings suit seeking monetary damages to

compensate him for his academic regression or psychological

injuries which he claims persist after the completion of a

school district’s claimed wrongful act or omission, relief for

those injuries is “also available” in kind under the IDEA,

because the “related services” provided under the IDEA—

academic services, psychological counseling and therapy—

may cure, alleviate, or mitigate such injuries. In such a case,

the plain text of § 1415(l) requires a plaintiff to exhaust the

IDEA’s administrative procedures which may lead to the provision of curative or palliative “related services” before filing

a civil suit.

The majority’s skepticism that the “IDEA actually authorizes relief designed to correct the effects of misconduct by

the school” is misplaced. Maj. Op. at 9760-61. The majority

notes that the IDEA defines “related services” as services

which “may be required to assist a child with a disability to

benefit from special education” id. (quoting 20 U.S.C.

§ 1401(26)(A)), and posits that the IDEA does not require

schools to alleviate academic and psychological damage to a

child which is caused by the school. Id. But this reading of the

IDEA makes little sense. The statute plainly holds that if a

child requires “related services” to benefit from special education, those services must be provided. Nothing in the statute

requires any inquiry as to why those services are required.

Thus, if a child suffers from crippling anxiety at school, and

that anxiety must be alleviated before he can learn (or, in the

words of the statute, “benefit from special education”), the

9774 PAYNE v. PENINSULA SCHOOL DISTRICT

Case: 07-35115 07/29/2011 Page: 44 of 61 ID: 7836883 DktEntry: 65-1
IDEA plainly requires psychological services be provided. It

makes no difference whether that anxiety was caused by the

school or whether it was caused by some external factor. 

Of course, § 1415(l) does not require IDEA exhaustion for

all lawsuits brought by disabled students who allege academic

or psychological injuries—only for those lawsuits seeking

relief for those injuries which may be cured or alleviated by

the “related services” provided through IDEA’s administrative process. As we held in Witte v. Clark County School District, 197 F.3d 1271 (9th Cir. 1999), plaintiffs need not

exhaust IDEA remedies if they seek damages for “retrospective” psychological injuries. Id. at 1276. For example, had the

Paynes sought monetary damages for the claimed past and

temporary emotional and psychological trauma D.P. suffered

while locked in the isolation room, IDEA exhaustion would

not have been required. This is so because when the damages

sought are for purely retrospective injuries, relief is not “also

available” under the IDEA: no amount of academic or counseling services could possibly alleviate the past, but temporary, fright D.P. might claim he felt inside the isolation room.

Neither could IDEA’s “related services” cure or alleviate the

pain and suffering D.P. might have suffered in the “isolation

room” and for a few days thereafter, had he sprained his ankle

while locked inside. As this court held in Witte, the “remedies

available under the IDEA would not appear to be well suited

to addressing past physical injuries adequately.” Id. at 1276.

On the other hand, when a plaintiff seeks monetary damages to compensate for the academic and psychological aftereffects of a school district’s wrongful act or omission in the

provision of education, relief is necessarily available under

the IDEA. Here, for example, intensive individualized tutoring might well have alleviated D.P.’s claimed academic

regression. Psychological counseling might also have eliminated the nightmares from which the Paynes contend D.P.

suffered as a result of the district’s use of the “isolation room”

in which it placed D.P. And relief for such academic regresPAYNE v. PENINSULA SCHOOL DISTRICT 9775

Case: 07-35115 07/29/2011 Page: 45 of 61 ID: 7836883 DktEntry: 65-1
sion and nightmares is “also available” under the IDEA if the

regression and nightmares are likely to continue.3 Here—as

discussed in further detail below—the Paynes sought damages

for the past and ongoing academic and psychological aftereffects of D.P.’s claimed mistreatement by the school district.

In such cases, the plain text of § 1415(l) requires a plaintiff

to exhaust the IDEA’s administrative procedures before filing

a civil suit.4

The majority expresses concern that this “muscular” view

of § 1415(l) “penalize[s] disabled students for their disability,” Maj. Op. at 9762, “preempt[s] all cases involving the mistreatment of disabled students by a school,” id., and

3Plaintiffs can also avoid the IDEA’s exhaustion requirement if they can

prove that recourse to the IDEA’s administrative procedures would have

been futile or inadequate. For example, parents who seek monetary damages as compensation for the out-of-pocket expenses they paid for a specialized form of private tutoring or private psychological counseling could

avoid the IDEA’s exhaustion requirement if they prove that such tutoring

or counseling was 1) necessary, and 2) could not have been provided by

the school district. The party alleging futility of IDEA procedures bears

the burden of proving its futility. Doe v. Arizona Dep’t of Educ., 111 F.3d

678, 681 (9th Cir. 1997). This exception to the exhaustion requirement

does not apply to the Paynes, as they presented no evidence of futility; of

course, neither did the school district. See infra at pages 9783-84. 

4The majority contends this plain reading of § 1415(l) is somehow

inconsistent with Witte, because the court in Witte could have speculated

that the child—who alleged only retrospective physical injuries—also

could have alleged ongoing psychological harm. See Maj. Op. at 9760-61.

This is wrong: § 1415(l) requires exhaustion only when a plaintiff is

“seeking relief that is also available under [the IDEA].” 20 U.S.C.

§ 1415(l) (emphasis added). If, as in Witte, a plaintiff does not allege academic or psychological injuries—and thus is not seeking academic or psychological relief—§ 1415(l) obviously does not permit a court to invent

such injuries for the plaintiff. Here, per the plaintiff’s own complaint and

deposition testimony, the only relief sought was academic and psychological relief which is “also available under the IDEA.” I would hold that

exhaustion is required only where academic or “related services” could

correct the injuries claimed by the plaintiff, not where such services could

also correct injuries which are purely conjectural. 

9776 PAYNE v. PENINSULA SCHOOL DISTRICT

Case: 07-35115 07/29/2011 Page: 46 of 61 ID: 7836883 DktEntry: 65-1
“temporarily shield[s]” school officials from liability for violations of constitutional and statutory rights. Id. at 9752. Not

at all. First, my reading of § 1415(l) does not preempt all

cases involving disabled students harmed by a school. Contrary to the majority’s assertion, I embrace Witte, which

eschews preemption in cases where plaintiffs seek compensation only for physical or retrospective injuries. See Witte, 197

F.3d at 1276. Moreover, any shield imposed by the exhaustion

requirement is of very limited duration. Due process complaints under the IDEA must be heard and decided within 45

days. 34 C.F.R. § 300.515(a). And so long as plaintiffs

exhaust their IDEA remedies, nothing prevents them from

subsequently bringing civil claims based upon violations of

constitutional or statutory rights. Thus, § 1415(l) does not

absolve school districts of civil liability for injuries which

could not be remedied or palliated by IDEA’s “related services.” Instead, it codifies a recognition that the education of

disabled children is a complex endeavor, calling for much

individual attention, and that a misjudgment in a child’s IEP

—or a mistake in execution of that plan—can result in unexpected academic and psychological injuries. For that reason,

in cases where “both the genesis and the manifestations of the

problem are educational,” Blanchard v. Morton Sch. Dist.,

420 F.3d 918, 921 (9th Cir. 2005), § 1415(l) requires potential

plaintiffs first to give school districts the opportunity to correct the effects of their claimed educational mistakes under

the IDEA’s administrative process, before recasting claims

arising from acts or omissions related to educational efforts as

violations of constitutional and statutory rights, with compensation sought in money damages. Far from penalizing disabled students, § 1415(l) provides a fast, efficient way to

redress such students’ academic and psychological injuries, as

an alternative to civil litigation which may drag on for years.

In contrast, the eviscerated exhaustion requirement articulated by the majority elevates the form of plaintiffs’ pleadings

over their substance.5 Consider, for example, a disabled child

5As discussed in greater detail below at pages 9773-74, for the majority

to thus frame the issue was especially incorrect here, since the issue here

PAYNE v. PENINSULA SCHOOL DISTRICT 9777

Case: 07-35115 07/29/2011 Page: 47 of 61 ID: 7836883 DktEntry: 65-1
who seeks monetary damages because a school district’s

implementation of some educational program resulted in a

claimed failure adequately to instruct him in reading.6 Such a

child could allege either: 1) the school district failed to provide a “free appropriate public education” as required by the

IDEA, 20 U.S.C. § 1401(9), or, as the plaintiffs here claim, 2)

the school district’s actions caused the child’s “academic

prowess and abilities” to be diminished, entitling the child to

general and special damages for his emotional and psychological pain and suffering. Although the facts underlying both of

these claims would be identical, the majority holds that the

IDEA requires exhaustion of administrative remedies only if

the plaintiff styles his complaint as a failure to provide a “free

appropriate public education” under the IDEA, or explicitly

measures damages as the cost of counseling, tutoring, or private schooling. Only then, according to the majority, is the

does not involve the adequacy of the plaintiffs’ pleadings, but the adequacy of the evidence adduced by the parties to establish or eliminate triable issues of material fact. The district court entertained and ruled on a

Rule 56 motion, not a Rule 12(b)(6) motion. 

6The majority contends that “a claim for failure to adequately instruct

a student in reading can arise only under the IDEA because there is no

other federal cause of action for such a claim.” Maj. Op. at 9759-60. With

respect, the majority underestimates the potential creativity of plaintiffs’

attorneys. Consider, for example, a child whose IEP provides that he

should spend 30 minutes each school day reading independently in a quiet

room by himself. If that child were to suffer anxiety and claustrophobia

while in the quiet room—leading to a regression in his reading scores—he

might sue the school district under § 1983 for improper detention in violation of the Fourth Amendment and seek compensation for his academic

injuries. Indeed, such a case would be largely analogous to the facts in

Robb v. Bethel School District #403, 308 F.3d 1047 (9th Cir. 2002), in

which the plaintiff sought monetary damages for academic injuries which

resulted from a child’s participation in “peer tutoring” sessions which took

place on the floor of a dimly-lit hallway. As I read the majority, so long

as an alleged violation is cast as a federal Constitutional or statutory

claim, the plaintiffs are not required to exhaust their administrative

remedies—regardless whether the claim is actually based upon the school

district’s failure adequately to instruct the child. 

9778 PAYNE v. PENINSULA SCHOOL DISTRICT

Case: 07-35115 07/29/2011 Page: 48 of 61 ID: 7836883 DktEntry: 65-1
claim based upon “either the IDEA . . . or its substantive standards.” See Maj. Op. at 9752. The majority opinion thus

effectively serves as a roadmap for plaintiffs who wish to

avoid § 1415(l)’s exhaustion requirement and any curative or

palliative services the school district could offer to eliminate

or reduce damages, but would rather obtain a money award in

a federal court. So long as a complaint which seeks monetary

damages does not mention a specific provision of the IDEA,

demand a remedy specifically provided by it, or seek injunctive relief to modify an implemented IEP, the majority holds

there is no need to exhaust administrative remedies which

could remedy the harm done to a disabled child through the

school’s mistakes in implementing the child’s education.

Thus, the majority largely nullifies § 1415(l) by providing

plaintiffs with an easy end-run around the exhaustion requirement. It does not take a crystal ball to foresee the result.

Would a plaintiff’s attorney rather 1) state a claim for the provision of in-kind services under the IDEA, and if successful,

be paid in court-supervised attorney’ fees, see 20 U.S.C.

§ 1415(i)(3)(B), or 2) seek monetary damages under a contingent fee contract with the parents? 

The majority incorrectly insists that our previous “injurycentered” approach to exhaustion was inconsistent with

§ 1415(l)’s requirement that plaintiffs exhaust administrative

remedies if a plaintiff is “seeking relief that is also available

under [the IDEA].” 20 U.S.C. § 1415(l) (emphasis added).

According to the majority, the phrase “seeking relief” suggests that “whether a plaintiff could have sought relief available under the IDEA is irrelevant—what matters is whether

the plaintiff actually sought relief available under the IDEA.”

Maj. Op. at 9751 (emphasis in original). But this interpretation of the phrase “seeking relief” is inconsistent with this

court’s prior determination that a plaintiff cannot circumvent

the IDEA’s exhaustion requirement by seeking only monetary

damages. Robb, 308 F.3d 1047 at 1050. Although monetary

damages are not ordinarily available under the IDEA, we have

joined at least five sister circuits to hold that a prayer for monPAYNE v. PENINSULA SCHOOL DISTRICT 9779

Case: 07-35115 07/29/2011 Page: 49 of 61 ID: 7836883 DktEntry: 65-1
etary damages does not automatically excuse the IDEA’s

exhaustion requirement. Id.; see also Frazier v. Fairhaven

Sch. Comm., 276 F.3d 52, 64 (1st Cir. 2002); Covington v.

Knox County Sch. Sys., 205 F.3d 912, 916 (6th Cir. 2000);

Padilla v. Sch. Dist. No. 1 in the City and County of Denver,

Colo., 233 F.3d 1268, 1274 (10th Cir. 2000); Charlie F. v. Bd.

of Educ. of Skokie Sch. Dist. 68, 98 F.3d 989, 993 (7th Cir.

1996); N.B. v. Alachua County Sch. Bd., 84 F.3d 1376, 1379

(11th Cir. 1996). Thus—because a plaintiff who includes an

education-related prayer for monetary damages necessarily

does not “actually” seek relief available under the IDEA—we,

and our sister circuits, have held that what “matters” for

exhaustion purposes is precisely whether a plaintiff “could

have” sought relief for the claimed injuries, which relief is

also available under the IDEA through in-kind services. The

majority opinion does not overturn this aspect of our IDEA jurisprudence;7

 this leaves us with a puzzling inconsistency. On

the one hand, as the majority holds today, the phrase “seeking

relief” requires courts to look solely at what form of relief the

plaintiff “actually sought.” On the other hand, courts will look

necessarily to what sort of relief a plaintiff “could have”

sought in complaints which seek damages measured in the

cost of services available in-kind under the IDEA, or which

seek monetary damages for claims which are explicitly based

upon alleged violations of a plaintiff’s substantive IDEA rights,8

Maj. Op. at 9751-52, 9754-55. 

7The majority holds that a plaintiff’s prayer for monetary damages does

not automatically excuse the IDEA’s exhaustion requirement. For example, if “the measure of a plaintiff’s [monetary] damages is the cost of

counseling, tutoring, or private schooling — relief available under the

IDEA — then the IDEA requires exhaustion.” Maj. Op. at 9754. The

majority holds the exhaustion requirement also applies if a plaintiff “seeks

damages to fund a private education (without mentioning the IDEA).” Id.

Because such claims explicitly seek the “functional equivalent” of an

IDEA remedy, the majority holds relief is “also available” under the

IDEA. I agree the exhaustion requirement applies in such cases; I do not,

however, read § 1415(l) so narrowly. 

8Consider, for example, one situation in which the majority holds that

“exhaustion is clearly required”: where a plaintiff files a claim for dam9780 PAYNE v. PENINSULA SCHOOL DISTRICT

Case: 07-35115 07/29/2011 Page: 50 of 61 ID: 7836883 DktEntry: 65-1
Finally, the majority opinion undermines the sound principles behind the exhaustion requirement. We have previously

held that the IDEA’s exhaustion requirement “recognizes the

traditionally strong state and local interest in education,

allows for the exercise of discretion and educational expertise

by state agencies, affords full exploration of technical educational issues, furthers development of a factual record and

promotes judicial efficiency by giving state and local agencies

the first opportunity to correct shortcomings.” Kutasi v. Las

Virgenes Unified Sch. Dist., 494 F.3d 1162, 1167 (9th Cir.

2007). In addition, because due process complaints under the

IDEA must be heard and decided within 45 days, 34 C.F.R.

§ 300.515(a), the IDEA’s expedited timetable encourages

quick and efficient resolution of disputes. Yet the majority’s

curtailment of the exhaustion requirement promotes none of

these goals. On the contrary, the weakened exhaustion

requirement will bode to flood federal courts with IDEA

cases, before a local agency has had an opportunity to resolve

the dispute. Federal judges and juries—not education experts

—will be asked to serve as “ersatz school administrators,”

Maj. Op. at 9752, and make determinations about what money

ages under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794,

premised on a denial of a plaintiff’s IDEA rights. See Maj. Op. at 9751-52.

If such a claim seeks only monetary damages, the plaintiff has not “actually sought relief available under the IDEA,” because the IDEA does not

provide for monetary damages. But in such a case, the majority (rightly)

requires exhaustion, because the substantive rights at issue are clearly

premised on the IDEA—and could have been resolved using the IDEA’s

administrative procedures. In that situation, the phrase “seeking relief”

does not bar courts from looking to whether the plaintiff “could have”

sought relief available under the IDEA. I am puzzled as to how the majority concludes that the same phrase bars courts from looking to whether a

plaintiff “could have” sought in-kind relief under the IDEA where, as

here, the plaintiffs claim only academic and psychological injuries which,

at least as to future academic and psychological injuries, could be eliminated, attenuated, or mitigated by IDEA-provided “related services.” Such

“related services” are indeed similar to those which plaintiff Windy Payne

testified had been effective to return her son to being a “happy boy.” See

infra at 9781-82 for further discussion. 

PAYNE v. PENINSULA SCHOOL DISTRICT 9781

Case: 07-35115 07/29/2011 Page: 51 of 61 ID: 7836883 DktEntry: 65-1
damage awards are necessary to prevent or alleviate academic, psychological, or emotional harm. And disabled children whose academic and psychological injuries might have

been quickly cured or mitigated by in-kind services supplied

by a school district under the IDEA may have to wait until the

resolution of a potentially lengthy civil lawsuit to receive a

monetary balm.

II.

Recognizing, perhaps, that its reading § 1415(l) could

financially burden school districts by requiring them to reimburse plaintiffs for palliative services the school districts

could have cost-effectively provided in-kind, the majority

rewrites § 1415(l)—an exhaustion statute—as a mitigation

statute. The majority concludes that after a court determines

exhaustion was not required, a defendant subsequently should

“be permitted to provide evidence showing that the relief

being sought by that plaintiff was, in fact, available under the

IDEA” and “withhold [remedies] that are unexhausted and

available under the IDEA.”

9

 Maj. Op. at 9764. I am puzzled

as to how the majority can so interpret § 1415(l). Section

1415(l) is not a “collateral source” doctrine which would permit defendant school districts to submit evidence proving a

plaintiff’s monetary damages would have been reduced had

plaintiffs availed themselves of remedies also available under

the IDEA. It is thus distinguishable from, for example, the

collateral source provision of California’s Medical Injury

9

Judge Callahan makes a nearly identical point in her concurrence, concluding that “the dismissal of an ambiguous complaint or cause of action

for failure to exhaust . . . may be complemented by allowing a defendant

school district to assert, even at trial, that an aspect of plaintiff’s 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.” Callahan Concurrence

at 9767. 

9782 PAYNE v. PENINSULA SCHOOL DISTRICT

Case: 07-35115 07/29/2011 Page: 52 of 61 ID: 7836883 DktEntry: 65-1
Compensation Reform Act (MICRA), Cal. Civ. Code

§ 3333.1. MICRA permits health care providers who are sued

for personal injuries allegedly caused by medical malpractice

to mitigate damages by “introduc[ing] evidence of any

amount payable to the plaintiff as a result of the personal injury” from outside sources, including the Social Security Act,

worker’s compensation schemes, and private insurance plans.

Cal. Civ. Code § 3333.1(a). In contrast, § 1415(l) does not

provide for the introduction of mitigating evidence at a hearing to assess damages. To the contrary, § 1415(l) very clearly

states:

“before the filing of a civil action under such laws

seeking relief that is also available under [the

IDEA],” the [administrative] procedures . . . shall be

exhausted to the same extent as would be required

had the action been brought under [the IDEA].”

20 U.S.C. § 1415(l) (emphasis added). 

The majority’s attempt to turn § 1415(l) into a mitigation

statute is thus belied by the plain text of the law. If the defendant is permitted at trial to “provide evidence showing that

the relief being sought by that plaintiff was, in fact, available

under the IDEA,” Maj. Op. at 9764-64, then such evidence

was “also available” before the action was filed. After all, evidence that the school district could have provided palliative

academic or psychological services under the IDEA is

relevant—for mitigation purposes—only if those services

could have reduced plaintiffs’ damages. To reduce plaintiffs’

damages, such services must have been “also available” to the

plaintiff. And if relief is “also available” to a plaintiff under

the IDEA, § 1415(l) requires a plaintiff to exhaust his remedies under the IDEA “before the filing of a civil action.” 20

U.S.C. § 1415(l) (emphasis added). There is not a word in

§ 1415(l) about mitigation, nor anything which permits a

school district to introduce evidence that relief was “also

PAYNE v. PENINSULA SCHOOL DISTRICT 9783

Case: 07-35115 07/29/2011 Page: 53 of 61 ID: 7836883 DktEntry: 65-1
available” under the IDEA at trial for the purpose of reducing

a monetary award to plaintiffs at trial. 

Indeed, contrary to the majority’s conclusions, Section

1415(l) creates a system quite different from a common-law

system of mitigation. Were common-law mitigation to apply,

the trier-of fact would determine what palliative academic or

psychological expenses—if any—could have been avoided by

using the school district’s “also available” services, and

reduce damages accordingly. But § 1415(l) does not leave that

determination to the trier-of-fact at trial. Instead, § 1415(l)

requires those “also available” services to have been solicited,

attempted, and used before any reimbursement is sought. The

purpose of § 1415(l) is to have the “also available” public services actually used, outside the courtroom, to produce their

practical effect on the disabled child. Section 1415(l) does not

provide for the monetary value of unused services to be determined as a hypothetical, debated in the courtroom. 

Thus, contrary to the majority’s conclusion, § 1415(l) does

not require a defendant school district to introduce evidence

of how the in-kind services plaintiffs chose not to pursue

could have mitigated a plaintiff’s injuries. Instead, in enacting

§ 1415(l), Congress was exceedingly clear: plaintiffs must

actually exhaust IDEA remedies before bringing a suit for

which relief is “also available” under the IDEA.

III.

In light of its newly-articulated, restricted exhaustion

requirement, the majority remands this case for the district

court to determine which “constitutional” claims in the

Paynes’ complaint need not be exhausted. But the majority’s

narrow focus on the Paynes’ complaint overlooks the fact that

this case is an appeal from a grant of summary judgment, and

that all of the facts presented to the district court indicated the

Paynes were seeking at least some relief that was “also available” under the IDEA—even under the majority’s narrow

9784 PAYNE v. PENINSULA SCHOOL DISTRICT

Case: 07-35115 07/29/2011 Page: 54 of 61 ID: 7836883 DktEntry: 65-1
reading of the phrase. Because the school district presented

evidence (mainly in the form of plaintiff adverse-party Windy

Payne’s deposition) that the Paynes sought relief that was

“also available” under the IDEA—and because the Paynes

presented no evidence to the contrary—the school district was

entitled to summary judgment as a matter of law. See Celotex,

477 U.S. at 324 (on a motion for summary judgment, nonmoving party must “designate specific facts showing that

there is a genuine issue for trial” (quoting Fed. R. Civ. P.

56(e)). 

In its motion for summary judgment, the school district

properly raised an affirmative defense which contended the

Paynes’ lawsuit should be dismissed because the Paynes

sought relief that was “also available” under the IDEA and

had not exhausted their administrative remedies.10 In support

of its motion for summary judgment, the school district produced a July 21, 2006 deposition of D.P.’s mother, Windy

Payne, in which she testified the Paynes were seeking monetary relief for D.P. not for the retrospective temporary emotional trauma D.P. experienced while in the isolation room,

but for 1) the expenses of private doctors and therapists who

had treated D.P. to right the wrongs done him by use of the

isolation room, and 2) for treatment and cure of past and

ongoing academic, psychological, and emotional difficulties

caused by use of the isolation room. Windy Payne testified

that she sought damages for the “lack of [D.P.’s] education,”

10The school district’s motion for summary judgment conceded that had

the Paynes sought retrospective relief for the school district’s alleged Constitutional violations, the Paynes’ failure to exhaust “would not be fatal”

under Witte v. Clark County School District, 197 F.3d 1271, 1276 (9th Cir.

1999). For example, had the Paynes sought monetary damages to recompense D.P. for the past and temporary emotional trauma he experienced

while locked inside the safe room, exhaustion would not have been

required, because the academic and psychological in-kind services provided for by the IDEA cannot remedy such past injuries, any more than

they could remedy the pain and suffering from the hypothetical now-cured

sprained ankle earlier mentioned. 

PAYNE v. PENINSULA SCHOOL DISTRICT 9785

Case: 07-35115 07/29/2011 Page: 55 of 61 ID: 7836883 DktEntry: 65-1
the “emotional trauma that [D.P.] and I have suffered, and the

impact that it has had on our lives and continues to have.”

(emphasis added). She stated that the damages sought were

for everything D.P.’s parents had done—including provision

of private doctors and therapists to make him a “happy boy

again.” Part of the measure for those damages, according to

Windy Payne, was the out-of-pocket expenses the Paynes had

paid “for lots of doctors and lots of therapy.” 

In other words, Windy Payne’s deposition established that

the Paynes sought money damages for the past and ongoing

academic and psychological aftereffects of the school district’s use of the isolation room. Windy Payne testified the

Paynes sought damages: 1) to compensate D.P. and his parents for the emotional trauma that required the Paynes to seek

professional psychological services (the private doctors and

therapists) and, 2) to provide treatment and services for D.P.’s

ongoing academic, emotional, and psychological injuries, and

the parents’ continued emotional trauma which derived from

those injuries. Relief from the academic and psychological

aftereffects of the school district’s use of the isolation room

was “also available” under the IDEA. The school district

could have provided—under the “related services” provision

of the IDEA, 20 U.S.C. § 1401(26)—the past psychological

counseling the Paynes purchased for D.P. on the private market. And the school district can now provide ongoing academic and psychological services to alleviate the damage

done to D.P. in the isolation room. Thus, unlike the plaintiffs

in Witte, 197 F.3d at 1276, Windy Payne’s testimony establishes that the Paynes were not seeking only retrospective

damages for injuries that the IDEA could not palliate. Windy

Payne did not, for example, testify that she sought monetary

compensation for the fright D.P. felt while locked in the isolation room—a completed retrospective injury no in-kind academic or psychological services could have remedied. Nor did

Windy Payne testify that she sought compensation for some

physical injuries which resulted from the school district’s use

of the isolation room. Instead, Windy Payne’s testimony

9786 PAYNE v. PENINSULA SCHOOL DISTRICT

Case: 07-35115 07/29/2011 Page: 56 of 61 ID: 7836883 DktEntry: 65-1
establishes the Paynes sought monetary compensation for the

academic and psychological aftereffects of the school district’s use of the isolation room—which aftereffects could

have been remediated or palliated by the in-kind services

specified in the IDEA. 

Moreover, the Paynes’ complaint itself supports the school

district’s contention—and the district court’s determination on

summary judgment—that the Paynes sought only relief which

had been and is “also available” in-kind, under the IDEA.11

The Paynes’ complaint specifically alleged the following injuries were sustained by their son as a result of his mistreatment: “significant regression in communicative and sensory

functions,” diminished “academic prowess and abilities,” and

“continue[d] . . . signs of emotional trauma.” (emphasis

added). The complaint further sought “general damages for

extreme mental suffering and emotional distress and special

damages in an amount to be proven at trial.” There was nothing in the complaint to indicate the Paynes sought damages

for anything other than the past and ongoing academic and

psychological aftereffects of D.P.’s time in the isolation room,

and the derivative trauma his parents experienced as a result.12

11In its motion for summary judgment, the school district did not quote

the portions of the Paynes’ complaint which dealt with D.P.’s injuries or

which put forward a prayer for relief. However, the district court explicitly

considered the language of the complaint in its order granting the school

district’s motion for summary judgment. The district court was within its

discretion to do so: Federal Rule of Civil Procedure 56(c)(1)(3) provides

that in considering a motion for summary judgment, a district court “need

consider only the cited materials, but it may consider other materials in the

record.” The Paynes’ complaint was admissible in evidence as the admission of a party litigant. Fed. R. Evid. 801(d)(2). Its allegations of fact supported the school district’s motion for summary judgment, because the

Paynes’ complaint supported the school district’s contention that the

Paynes sought only relief which was also available under the IDEA. 

12Moreover, even had the allegations in the complaint stated that the

Paynes sought relief for something other than the academic and psychological aftereffects of D.P.’s time in the isolation room, those allegations

PAYNE v. PENINSULA SCHOOL DISTRICT 9787

Case: 07-35115 07/29/2011 Page: 57 of 61 ID: 7836883 DktEntry: 65-1
In opposition to the school district’s motion for summary

judgment—and the evidence adduced by the school district in

its moving papers—the Paynes produced no declarations, affidavits, depositions, or other discovery material to attempt to

prove they sought relief for anything other than the past and

ongoing aftereffects of D.P.’s academic, emotional, and psychological injuries arising from the claimed education-related

mistreatment. Indeed, the Paynes did not even contend they

sought damages for injuries that could not be redressed in

kind under the IDEA. Instead, the Paynes relied solely on a

since-overruled Third Circuit case which held that an IDEA

claim need not be exhausted if it seeks monetary damages,13

see W.B. v. Matula, 67 F.3d 484, 496 (3d Cir. 1995)—a theory this court has squarely rejected, and continues (at least in

form) to reject. Robb, 308 F.3d 1047 at 1050; see Maj. Op.

at 9754-55. 

In addition, the Paynes contended IDEA exhaustion would

be futile, because they were not seeking any changes to D.P.’s

IEP, and because they did not raise any claim which sounded

specifically in the IDEA. But the Paynes had the burden of

proof to prove the futility or inadequacy of IDEA procedures,

would be trumped by Windy Payne’s deposition testimony to the contrary.

On a motion for summary judgment, depositions of a party trump the allegations of his or her complaint. See Fed. R. Civ. P. 56(c)(1)(A); Taylor v.

List, 800 F.3d 1040, 1045 (9th Cir. 1989) (nonmoving party cannot avoid

summary judgment by relying solely on allegations that are unsupported

by factual data); Dismore v. Aetna Casualty & Surety Co., 338 F.2d 568,

571 (7th Cir. 1964) (“allegations of the complaint are not controlling

where controverted by depositions”). Thus, on motion for summary judgment, the unverified complaint can provide only factual evidence—

admissions—against plaintiffs; never for plaintiffs. 

13The majority correctly notes that the Third Circuit case on which the

Paynes relied has been overruled by A.W. v. Jersey City Public Schools,

486 F.3d 791 (3d Cir. 2007), and that every other circuit to address the

issue has held that limiting requested relief to damages alone is not enough

to avoid the exhaustion requirement of the IDEA. See Maj. Op. at 9748

n. 3. 

9788 PAYNE v. PENINSULA SCHOOL DISTRICT

Case: 07-35115 07/29/2011 Page: 58 of 61 ID: 7836883 DktEntry: 65-1
Doe v. Arizona Dep’t of Educ., 111 F.3d 678, 681 (9th Cir.

1997), and the Paynes presented no evidence to prove it

would have been futile for them to pursue the academic and

counseling services the school district was required to provide, or that such services would have been useless to D.P.

Indeed, Windy Payne’s own deposition testimony—in which

she stated that the family had taken D.P. to therapists to alleviate his psychological injuries—suggests that D.P.’s injuries

were at least partially remedied by in-kind counseling services; counseling services which, for aught that appears, the

district was perfectly capable of providing through IDEA, had

the Paynes pursued the administrative remedies provided

under Sec. 1415(f) and (g). 

Thus, all of the evidence before the district court on the

motion for summary judgment showed that relief for what the

record evidence proved were D.P.’s injuries was “also available” in kind under the IDEA, and there was no proof—none

at all—that seeking relief through the administrative process

would have been futile. The school district could have remedied or mitigated D.P.’s injuries through tutoring, counseling,

or other educational or psychological remedies, much as

Windy Payne testified her doctors and therapists did in returning D.P. to being “a happy boy again.” And if D.P.’s underlying injuries—at least some of them—could have been

remedied or mitigated through the IDEA’s administrative process’s provision of services, so too could the pain and suffering arising from those injuries for which his parents now seek

recompense.14

14The majority opaquely suggests that exhaustion in this case would be

required if the Paynes’ “emotional distress stem[med] from Payne’s concern that D.P. was not receiving an adequate education.” Maj. Op. at 9766.

However, the majority further holds that exhaustion is not required if the

Paynes’ “emotional distress” stemmed from “injuries resulting from

Fourth or Eighth Amendment violations committed by school officials.”

Id. Here, the only injuries alleged with reference to facts—which factual

allegations are proof against the plaintiff per Federal Rule of Evidence

PAYNE v. PENINSULA SCHOOL DISTRICT 9789

Case: 07-35115 07/29/2011 Page: 59 of 61 ID: 7836883 DktEntry: 65-1
IV.

Before bringing this suit in federal court—and sparking this

protracted litigation which has now dragged on for six years

—the Paynes should first have exhausted their administrative

remedies and sought relief that was “also available” under the

IDEA, as required by the plain text of § 1415(l). Indeed, even

under the majority’s narrow reading of § 1415(l), the evidence

submitted by the parties supported the district court’s grant of

summary judgment to the school district. The majority holds

that “[i]f the measure of a plaintiff’s damages is the cost of

counseling, tutoring, or private schooling — relief available

under the IDEA — then the IDEA requires exhaustion.” Maj.

Op. at 9754. Here, Windy Payne has explicitly stated in her

deposition that she sought reimbursement for the cost of the

counseling and psychological services needed to make D.P. a

“happy boy again.” The Paynes submitted no evidence to suggest this was not a measure of the damages they sought. Thus,

even under the majority’s newly-articulated exhaustion

requirement, the district court’s grant of summary judgment

should be affirmed.15

801(d)(2)—by D.P. resulting from Fourth or Eighth Amendment violations were academic and psychological injuries, which could have been

redressed under the IDEA. The difficulty—if not impossibility—of distinguishing between “concern that a child was not receiving an adequate education” on the one hand, and concern over academic “injuries resulting

from Fourth or Eighth Amendment violations” on the other, is a further

reason I favor our previous exhaustion approach to the one articulated by

the majority. The concrete claims of injury carry greater weight, in making

decisions, than do abstract claims of constitutional violations. 

15Under § 1415(l), the district court could not simply hold that some

measures of damages must be exhausted and some measures need not be,

such that any final award of damages would be reduced by the unexhausted amount. Section 1415(l) specifically provides that IDEA exhaustion is required “before the filing of a civil action.” Thus, § 1415(l) serves

as an absolute bar to lawsuits which seek any relief that is “also available”

under the IDEA. Section 1415(l) is not a cap on damages, and does not,

by its terms, permit a court selectively to exclude recovery for any injury

9790 PAYNE v. PENINSULA SCHOOL DISTRICT

Case: 07-35115 07/29/2011 Page: 60 of 61 ID: 7836883 DktEntry: 65-1
Therefore, I would affirm the district court’s grant of summary judgment to the school district in its entirety. 

or harm that would have been covered by the administrative proceedings

under the IDEA. If there are any claims for relief made as to which no triable issue of fact exists but that the relief is “also available” under the

IDEA, the complaint must be dismissed as having been prematurely filed

before the required administrative exhaustion. 

PAYNE v. PENINSULA SCHOOL DISTRICT 9791

Case: 07-35115 07/29/2011 Page: 61 of 61 ID: 7836883 DktEntry: 65-1