NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_______________ No. 17

- 3600

_______________ E.R.; I.R., SR., individually and as parents and natural guardians of I.R., JR., a minor, Appellants

v. STROUDSBURG AREA SCHOOL DISTRICT; COLONIAL INTERMEDIATE UNIT 20; SUZANNE DELLORUSSO

_______________ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 3

- 16

- cv - 01593 ) District Judge: Honorable Malachy E. Mannion

_______________ Submitted Und er Third Circuit L.A.R. 34.1(a)

on September 6, 2018 Before: HARDIMAN, KRAUSE, and BIBAS, Circuit Judges

( Opinion Filed: December 5, 2018 )

_______________ OPINION 

______________

 This disposition is not an opinion of the full Court and, under I.O.P. 5.7, does not constitute bindi ng precedent.2

BIBAS, Circuit Judge

. A litigant need exhaust only the claim he appeals , not all claims that arise out of thesame conduct. Here, student I.R., through his parents, challenges an Individualized Education Program issued by the Str oudsburg Area School District in June 2 0 15. The parents
argue that the Program does not provide a free and appropriate education, as the Individuals with Disabilities Education Act requires. They first brought this claim in a state agency. But when the agency upheld the P rogram, they sought judicial review in federal D istrict
C ourt. The parents also tacked on two federal claims that they had not brought before the
agency. The District Court dismissed their entire complaint, holding that they had failed to exhaust their administrative remedy. But the parents did exhaust their claim as to the June 2015 Program ; t he agency decided that it suffic ed under the Act

. And they properly appealed t hat challenge to the District Court. So we will reverse in part

. I. B ACKGROUND A. Facts
I.R. has an intellectual disability, a speech impairment, and an autism

- spectrum disorder. After his family moved to Stroudsburg , he started fourth grade in a special

- needs classroom at Colonial Intermediate Unit 20

. His transition was rough. I.R. has a history of behaving aggressive ly in school. He has bitten, kicked, and scratched both teachers and peers. But at Colonial, it was a teacher who harmed him. Suzanne Dellorusso pushed, choked, dragged, slapped, and improp erly restrained I.R . Through October and much of November 2014, she responded to his misbehavior with force.3

A few months later, Dellorusso was criminally charged with abusing I.R. Once I.R.’ s parents learned of the abuse, they removed him from the classro om where it occurred and agreed to transfer him to another school in the Stroudsburg Dis trict . And because they worried that any forcible restraint could trigger traumatic memories of his abuse, they worked with Stroudsburg to craft a Program that would mi nimize physical contact.Between April and October 2015, I.R.’s parents and District officials refined this Program more than a dozen times. His last Program was issued in June 2015 and is the subject of this appeal. It strictly limited physical contact be tween I.R. and the school’s staff. It created procedures to de

- escalate dangerous behavior without touching. And it authorized restraint only as a last resort, when necessary for the safety of I. R. or others

. But I.R. still misbehaved, so educators continu ed to restrain him. Concerned that such restraint would harm him psychological ly , his parents pulled him out of school. He has not attended school since.
B. The administrative hearing The Individuals with Disabilities Education Act requires schools to give children with disabilities a free and appropriate public education. 20 U.S.C. § 1412(a)(1)(A). Under the Act, educators work with parents to develop programs for special

- needs student s. These programs set goals for the academic year. They give teachers detailed instructions. And they are iterative: both sides work to refine them over time. But parents and educators can disagree about what the Act requires . So either side can ask for an administrative hearing to determine whether a school is fulfilling its obligations. Stroudsburg did just that: a fter his parents pulled I.R. out of school, it asked for a hearing4

before Pennsylvania’s Office of Dispute Resolution. The agency’s hearing officer investigated whether the June 2015 Program satisfied the Act’s requirements. He found that it did.
C. The District Court Any party “aggrieved by the findings and decision” of the agency can seek review in federal district court. 20 U.S.C. § 1415(i)(2) (A). So I.R.’s parents appealed their claim under the Act . They also brought two other federal claims : one under the Fourteenth Amendment and another under the Rehabilitation Act

. These latter claims ar i se out of Dellorusso’s conduct in 2014 ; they are unrelated to the June 2015 Program

. T hey added several state

law claims as well. The District Court focused on whether the parents had properly exhausted their federal claims

. If a plaintiff appeals a challenge under the Act and tacks on other f ederal claims, those latter claims usually are also subject to the Act’s exhaustion requirement. See 20 U.S.C. § 1415( l ). So the District Court held that all three federal claims were not exhausted. The Court reasoned that the agency considered only the sufficiency of the June 2015 Program, while the federal claims focused on Dellorusso ’s abuse in 2014. Because the latter issue was not “s ubstantively raised and addressed at the due process hearing , ” the parents had to take their feder al claims back to the agency. App. 168. And after the Court dismissed all federal claims in the case, it declined to exercise supplemental jurisdiction over the remaining state

- law claims. The parents asked the District Court to reinstate their claim under the Act . They did not challenge the dismissal of their other federal or state claims. But they pointed out that the5

Court’s dismissal denied them judicial review of the agency’s decision on the June 2015 Program

. The D istrict C ourt denied their motion , even though that was the only claim that the agency considered . It again reasoned that the complaint centered on Dellorusso ’s behavior, while the hearing officer addressed only the June 2015 Program. The parents now appeal. Administrative exhaustion is a j urisdictional requirement. D.E. v. Cent. Dauphin Sch.
Dist. , 765 F.3d 260, 275 (3d Cir. 2014). So the District Court dismissed the parents’ complaint for lack of subject

- matter jurisdiction. We review such dismissals de novo. Batchelor v. Rose Tree Media S

ch. Dist. , 759 F.3d 266, 271 (3d Cir. 2014). All parties agree that Colonial and Dellorusso are unrelated to the June 2015 Program. The District Court dismissed all claims against them, and the parents concede that was proper. So we will affirm those dism issals. And the parents do not challenge the dismissal of their state

- law claims

. So that issue is waived

. Nagle v. Alspach , 8 F.3d 141, 143 (3d Cir. 1993).
II. T HE C HALLENGE TO THE J UNE 2015 P ROGRAM I S P ROPERLY B EFORE U S The sole issue before us is whether the parents exhausted all administrative remedies before appealing their challenge to the June 2015 P rogram. They did. In response to Stroudsburg’s request for declaratory relief, t he agency conducted an extensive hearing

. After considering tes timony from both sides and a plethora of documents, it found that the June 2015 Program provided a free and appropriate public education. So the agency found that Stroudsburg had met its burden under the Act. Once the agency issued that decision, the parents had no other administrative recourse

.6

They could only appeal to federal district court under 20 U.S.C. § 1415(i)(2)(A). And they did so. Still, the District Court held that the parents had failed to exhaust their administrative remedies as to their challenge under the Act and their other two federal causes of action. Whether the District Court properly applied the Act’s exhaustion requirement to those
two other federal claims is not at issue

. See Fry v. Napoleon Cmty. Schs. , 137 S. Ct. 743 , 752 (2017) ( the Act’s exhaustion requirement applies to other federal claims only if the plaintiff’s free

- and

- appropriate

- education challenge is the “gravamen ” of his complaint)

. Instead, the parents challenge only the District Court’s determination that thei r claim under the Act required further exhaustion

. It did not. The District Court hung its hat on a temporal distinction: w hile the agency addressed the “appropriateness of the [ Program ] put in place” in 2015, the “plaintiffs’ complaint was premised on spe cial educa tion services” rendered in 2014

. App. 186

- 87. That misses the point. To be sure, the agency hearing and the complaint turn on Dellorusso ’s actions

. But the parents invoke events from 2014 only as background to the June 2015 Program

. What’s past is prologue. One cannot understand the parents’ challenge without first understanding Dellorusso ’s abuse of I.R. ; the trauma she inflicted in 2014 bear s on how the June 2015 Program authorizes physical restraint. The District Court confused the agency’s di scussion of the 2014 events with its decision on the June 2015 Program. The parents did not exhaust all claims relating to 2014

. Nor do they contend that they did

. They appeal only the dismissal of their 2015 challenge , and they exhausted that claim.
Strou dsburg concedes that the parents are right. It admits that “the proceedings before7

and opinion of the Hearing Officer exhausted the IDEA claim concerning [the June 2015Program].” Stroudsburg Supp. Ltr. 1. Even the District Court acknowledged that the hearing officer addressed the Act’s application to the June 2015 Program. App. 168. So that claim was properly exhausted and ripe for district

- cou rt review.
It is also irrelevant that Stroudsburg , and not the parents, asked for the administrative hearing. The District Court relied on this distinction to dismiss the parents’ challenge . But it cited no authority for this proposition , and we can find n one. We have never required a party to bring a claim in order to exhaust it. And if a school wins a declaratory

- judgment action, there is no reason to make the losing parents file a duplicative agency action of their
own; the earlier ruling would preclude the second action

.

* * * * * Though the prologue to the parents’ claim starts in 2014, the substance is about the June 2015 Program. The parents’ challenge to that Program was exhausted before the hearing officer. So we will reverse in part and remand for further proceedings on the challenge under the Act to the June 2015 Program

. We will affirm in all other respects.