FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

P A UL G ., a conserved adult; by and through his conservator Steve G., Plaintiff-Appellant
,

v

.

M ON T E R

EY P E N I N S ULA U

N I F I E D S C H O O L D I S T R

I C T ; C AL I F O R

N I A D E P A R T ME N T O F E D U C A T I ON , Defendants-Appellees. No. 18-16536

D.C. No. 5:16-cv-05582-BLF

OPINION

Appeal from

the United States District Court for the Northern District of California Beth Labson Freem an, District Judge, Presiding

Argued and Subm itted June 13, 2019 San Francisco, California

F iled August 12, 2019

B efore: Mary M. Schroeder and Milan D. Sm ith, Jr., Circuit Judges, and Jed S. Rakoff, * District Judge.

Opinion by Judge Schroeder

* The Honorable Jed S. Rakoff, Unite d St a tes District Judge for the Southern District of New York, sitting by designation.P A UL G. V

. M ON T E R

EY P E N I N S ULA USD 2

SUMMARY * *

Education Law

The panel affirm ed the district co urt’s dism issal, for failure to exhaust rem edies under the Individual s with Disabilitie s Education Act, of claim s under the Am ericans with Disabilities Act and § 504 of the Rehabilitation Act.

A student’s parents sought d am ages under the ADA and § 504 on the basis tha t t he residential placem ent he should have received u n d e r the IDEA was n ot available in California. Plaintiffs failed to exhaust be c au s e they settled their IDEA case without receiving an adm inistrative decision

on whether the lac k o f an in-state residential placem ent h ad denied the student a free and appropriate public edu c a ti on. The panel held that exhaustion was r e quired because plaintiffs sought relief that would also be available under the IDEA. Agreeing with other circuits, the panel concluded that the ADA and § 504 claim s con c e rn e d whether the student

was provided appropriate educational se rvices. The panel held that plaintiffs’ clai m s did not fall under exhaustion exception s because they did not seek relief for a policy o r pra c tice of general applicability, and exhaustion would not have been futile or inadequate.

** This summ ary constitutes no part o f the opinion of the court. It h as been prepared by court staff for the convenience of the reader.P A UL G. V

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EY P E N I N S ULA USD 3

C OUNSEL

Daniel R. S haw (argued), Shaw Firm
, San Luis Obispo, Cal i fo rnia; Christian Knox, F. Richard Ruderm an, and Colleen A. Sny de r, Ruderm an and Knox LLP, Sacram ento, California; for Plaintiff-Appellant.

Leonard Bruce Garfinkel (argued), D eputy General Counsel; Todd M. Sm ith and Edm

undo R. Aguilar, Assistant General C o un sel; Am

y B isso n H o llo w ay , G en eral Counsel; California De p artm ent of Education, Sacram ento, California; for Defendants-Appellees.

OPINION

SCHROEDER, Circuit Judge:

The parents of Paul G. (“Paul”), an au t i s tic child, seek dam ages because the p lacem ent they believe their child should h ave received under the Individuals with D isabilities Education Act (“IDEA”) is not available in California. They filed this acti o n u n d er the A m ericans with Disabilities A ct (“ADA”) and Section 504 of the Rehabilitation Act of 1973. The district court dism issed their com plaint for failure to exhaust their adm inistrative rem edies under the IDEA. W e affirm

. Plaintiffs failed to exhaust because they settled their IDEA case w ithout receiving an adm inistrative decis i o n on whether Paul needed the placem ent the y now assert was

r e quired f

o r him to receive a free and appropriate publ ic education (“FAPE”).

Paul is a n adult student whose fam ily resides near Monterey, California. His is a sad story of failed attem pts toP A UL G. V

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EY P E N I N S ULA USD 4

place him in an appropriate educational facility. During elem entary school and early high school, Paul was enr o l l e d

as a special education student in the Mo n terey Peninsula Unified School District. During his junior year in high school (20 14–15), he began having episodes of v iolent and
t h reatening behavior towards the school staff and fello w students. After unsuccessful efforts to provide instruction at hom e and in the l o c a l library, the school district in July o f 2015 held an Individualized Education Plan (“IEP”) m eeting and offered to place Paul in a residential facility. B ecause he

was by then 18 years old, however, n o r e s idential facility in the state w ould accept h im

. Paul subsequen tly enrolled in a residential facility in Ka n sas, but becam e hom esick and returned to California.

Pau l’s co un sel initiated IDEA adm inistrative proceedings in August 2 0 1 5
, seeking a due process hearing w ith the California O ffi c e of Adm inistrative Hearings (OAH). His

com plaint alleged he had been denied a FAPE g uaranteed under the IDEA. H e sought a residential placem ent in California, m onetary dam ages, and an order d irecting the California Departm ent of Education (“CDE”) and the school district to develop in-state residential placem ents for adult students like Paul.

OAH dism issed the claim s against the state, ru l ing that
t h e agency did not h ave jurisdiction to order the creati o n of facilities for students over l8, and that the school district, not the state, was responsible f o r education decisions affe cting Paul. Paul then entered into a settlem ent agreem ent with the school district in which OAH dism issed the case without ever ruling on his claim tha t the lack of an in-state residential facility had denied hima FAPE.P A UL G. V

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EY P E N I N S ULA USD 5

Paul filed this action in federal court in Septem ber 2016, following the settlem ent with the school district. His

com plaint alleged that CDE violated the Rehabilitat i o n Act and the A DA. The g ravam en o f his com plaint was that to receive a FAPE he required a residential placem ent, and the
state had failed to provide him one in California. H e sought

m onetary dam ages and an injunction.

The comp l aint did not and could not allege that Paul’s IEP required a plac e m e n t in California; he h ad not o b tained such a decision from the O AH. The CDE therefore m oved to dism iss on the ground that Paul could not p ursue claim s agains t t he CDE for failure to provide a FAPE when he h ad

no IEP requiring an in-state placem ent. The district c ourt dism issed for failure to exhaust adm inistrative r emedies as required by the IDEA. See 20 U.S.C. § 1415( l).

Paul’s district court com

plaint alleged discrim ination in violation of the R ehabil it a t ion A ct and the A DA; it did not allege a violation of the IDEA. The IDEA is nevertheless k ey in this case be c ause it is that federal law that guarantees individually-tailored educational services for children with special educational n eeds. See id

. §§ 1400(d)(1)(A), 1401(29). It provides f

or a FAPE that m

ust conform to a student’s IEP, which is a prog r am detailing the student’s abilities, educational g o a ls, and specific services that are designed to ac h i e ve those goals within a designated tim e fram e. S ee id . §§ 1412(a)(4), 1436(d).

The IDEA also contains procedural protec t i o n s for the resolution o f d isputes over what services m ust be provided. There m ust be an opportunity for m ediation, an im p artial d ue process hearing, and an appeals process. S e e i d

. § 1415(e)–(g). In California, the CDE contracts with theP A UL G. V

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OAH to provide these rem edies. S ee Cal. Educ. Code § 56504.5(a). The O AH d ecision is a final adm inistrative decision, see 2 0 U.S.C. § 1415(i)(1)(A), and either the parent

or the public agency m ay seek judicial review by filing a civil actio n i n d i s trict court within 90 days, see id

. § 1415(i)(2). The statute provides that where the relief sought under other
statutes is also available under the IDEA, the IDEA’s adm inistrative procedures m u st have been exhausted:

Nothi n g in this chapter shall be construed to restrict or lim it the r ig h t s, procedures, and

rem edies available under the Constitution, the Am ericans with D isabilities Act o f 1990, title V of the Rehabilitation Act of 1973, o r other Federal laws p rotecting the rights of children wit h d isabilities, except that before the filing of a civil action under such laws seeking relief that is also a v a ilable under this subchapter,
t h e p rocedures under subsections (f) and (g) shall be exhausted to the sam e extent as would be required had the action b een brought under this subchapter.

20 U.S.C. § 1415( l).

This Court, however, h as identified certain exceptions to the e x haustion rule. In the sem inal case, Hoeft v. Tucson Un ified S chool District
, 967 F .2d 1 298 (9th Cir. 1992), we held that exhaustion is n o t required when (1) use of the adm inistrative process w ould be “futile,” (2) the claim arises from a p olicy or practice “of general applicability that is contrary to law,” or (3) it is “im probable that adequate relief

can be obtained by p ursuing adm inistrative rem edies (e.g. the hearing officer lacks the authority to grant the relief sought).”P A UL G. V

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Id. at 1303–04 (citing H .R. R ep. No. 296 99th Cong, 1st Sess. 7 (1985)).

Paul’s position is that California has unlawfully discrim inated against him b y n ot providing a residential educational facility f

o r adult students in the st a te who, like Paul, require such a f

acility i n o rder to receive a FAPE. He
argues he need not exhaust because h is claim s seek relief for disability discri mination and that even if his claim s do involve denial of a FAPE, th ey fall under the exhaustion exceptions.

The fundam ental problem with Paul’s positio n in th e view of the district court, and in o u r s, is that he has no IEP that requires such an in-state placem ent. He settled his claim with the school district that had sought such an IEP. His existing IEP provides only f

or a residential placem ent. The d i s t r i ct court therefore properly dism issed f or failure to exhaust adm inistrative rem edies.

On appeal, he stresses that h e is n o t claim ing any violation of t h e I DEA. Instead, he brought suit under the ADA and Rehabilitation Act. The Suprem e Co u rt has recently provided g uid ance as to when there m ust be

a dministrative exhaustion in a case purportedly invoking
statute s o ther than the IDEA. See Fry v. Napoleon Cmty. Sch.
, 137 S. Ct. 743 (2017). The C ourt instructed u s to determ ine whether “the gravam en of the plaintiff’s suit is

som ething other than the denial of the IDEA’s core guarantee

— . . . ‘a free ap p r o p r i a t e public education.’” Id. at 748 (quoting § 1412(a)(1)(A)). In Fry the suit alleged the ADA and t h e Rehabilitation A ct’s discrim ination provisions were violated when a young girl disabled by cerebral palsy was not perm itted to bring her service dog to school. I d

. a t 7 51.P A UL G. V

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Looking to the gravam en of the suit, the Court concluded that the plaintiff’s suit did not concern the denial of a FAPE. Id.
at 758. It held that the case instead co n c e rn ed the denial o f

access to public facilities. See id. Relief was therefore not available under the IDEA. Exhaustion therefore was n ot required.

The crucial issue is therefore whether the relief sought would be available under the IDEA. See 20 U.S.C. § 1415( l). The C ourt provided clues for courts to decide that question, including “whether the plaintiff could ha ve brought essentially the sam e claim if the alleged conduct had occurred
at a public f

acility that was not a school, and . . . whether an adult at the school could have pressed essentially the sam e grievance.” Fry
, 137 S. Ct. at 756. T he Court also said that

one g o o d indication that the plaintiff is seeking relief for denial of a FAPE is whether the plaintiff previously invoked adm inistrative rem edies. Id

. at 757. Sinc e a d o g would not be am o ng the services a school district would ordinarily provide in a FAPE, a n d t h e plaintiff in that case had never invoked adm inistrative rem edies to obtain such a FAPE, the
gravam en of the Fry com p laint was not an IDEA claim

.

In this case, Paul could not have brought the sam e claim s against a public facili t y t hat was not a school, nor could an adult em ployee or visitor present the sam e grievance, because the relief Paul seeks is fundam enta lly educational — access to a particular kind of school as required by h is IEP. See id

. at 756 (claim s are based on the IEP when access is “adequacy of special education” and not “equality of access to public facilities”). Further, Paul pursued rem edies under IDEA and after settlem ent switched gears to turn to other rem edies. This is alm o st precisely the scenario the Suprem e Co u rt in Fr y d escribed as an indicator of an IDEA claim requirin gP A UL G. V

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EY P E N I N S ULA USD 9

exhaustion. As the Court explained, an initial d ecision to pursue the adm inistrative process and a later shift to judicial proceedings prior to full exhaustion is a strong indication that the plaintiff is m aking “strategic calculations about how to

m axim ize the prospects of such a rem edy.” Id . at 757.

The district court understood that because Paul’s claim is that an in-state residential institution is necessary for him to receive the educa tion guaranteed under the IDEA, he m ust

e x h au st his adm inistrative rem edies for an IEP. Applying Fry
, the district court held that the “alleged denial to provide

an in-state residential treatm ent facility applies solely in a school setting” and the fact that P aul “previously pursued an IDEA adm inistrative proceeding based on identical or sim ilar allegations supports the conclusion that hi s c laim s are prem ise d o n a denial of a FAPE.” W e agree with that conclusion.

Other circuit decisions since Fry h ave r eached sim ilar conclusions. In Wellman v. Bulter Area School District
, the Third Circuit c o n c l uded that the student’s “grievances all
stem from the alleged f

ailure to accomm odate his condition

an d fulfill h is educational needs” and dism issed the co m p lain t because the student released all claim s related to th e FAPE denial i n a settlem ent agreem ent with the school district. 877 F.3d 125, 133 (3d Cir. 2 017). In Nelson v. Charles City Commu nity School District
, the Eighth Circuit affirm ed the district court’s conclusion that the student’s com plaint sought relief available under the IDEA becaus e the denial of the student’s request for online classes w as directly related to the student’s IEP. 900 F.3d 587, 595 (8th C ir. 2 0 18). In Durbr o w v

. Cobb County S chool District
, a student with Attention Deficit Hyperactivity Disorder filed a due process

com plaint alleging t h e s chool district failed to evaluate himP A UL G. V

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for disabilities. 887 F.3d 1182, 1187 (11th Cir. 2018 )

. Th e Eleventh Circuit concluded the gravam en o f the student’s § 5 04 and ADA claim s in the d istrict court was deni a l o f a FAPE because the claim s focused on the adequa c y of the educational program the school district afforded the student. Id

. at 1190. Exhaustion was required. Here, like our sister circuits, w e conclude Paul was required to exhaust the IDEA procedural pro c es s b ecause his § 504 and ADA claim s

concern whether he was provided approp r i a te educational services.

Paul argues that even if his claim s d o concern the denial

o f a FAPE, they fall under all three exhaustion exceptions: (1) the adm inistrative p rocess would be “futile,” (2) the claim arises from a policy o r practice “of general applicability that is contrary to law,” or (3) it is im probab l e “that adequate relief can be obtained b y pursuing adm inistrative rem edies (e.g. the hearing officer lacks the authority to grant the relief sought).” H

oeft , 967 F.2d at 1303–04.

Paul suggests that he seeks relief for “a policy or practice of g e neral applicability that is contrary to the law” because CDE failed to provide resi dential placem ents for disabled students over the age of eighteen. A claim i s system ic, and therefore entitle d to the general applicability exception, if it

conce rn s “the integrity or reliability of the IDEA dispute resolution procedures them selves, o r requires restructuring the educ a t ion system itself in order to com ply w ith the dictate s o f the Act.” Doe ex rel. Brockhuis v. Ariz. D ep’t of Educ.
, 111 F.3d 6 78, 682 (9th Cir. 1997)

. Here, h owever, Paul seeks relief related to only one com ponent of the school distr ict’s special education program — in-state residential facilities for adult students. See id .; see also Hoeft
, 967 F.2d at 1308.P A UL G. V

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EY P E N I N S ULA USD 11

Paul also contends exhaustion would have been f utile and inadequate becaus e, when he filed his due process adm inistrativ e c o mplaint against the school district and the CDE, the OAH dism issed the CDE on the ground that it could not order the state to create a whole new facility. The OAH concluded it lacked jurisdiction to order “struct u r a l and system ic statewide relief.” Paul then settled the claim against the school d istrict without obtaining any decision on his claim that the lack o f in-state placem ent den ie d h i m a FAPE. He

now argues it would have been futile to pursue the IDEA

c laim because the state could n ot be required to p rov id e t h e facility.

A principle purpos e of requiring adm inistrative exhaustion, however, is to ensure the agenc y h a s h ad an opportunity to rule on a claim before a p laintiff g oes to court. See Payne v. Peninsula Sch. Dist.
, 653 F.3d 863, 875–76 (9th Cir. 2011). T hus, if the plaintiff is claim ing a violation of the IDEA, the p laintiff m

ust take that claim through the adm inistrative process. The Suprem e Court in Fry reiterated the principle in c l e a r te rm s. Fry
, 137 S. Ct. at 756–57. In this c ase, P aul is claim ing that the state m ust p rovide him with an in-state residential placem ent and m ust pay d am ages for failing to do so. The only bas is fo r s u ch a claim is that such a placem ent is required under the IDEA. The agency’s dism issal of the state does n ot excuse Paul’s failure to pursue the claim against the school district, because that was the only
way to obtain an adm inistrati v e ru l i ng on his claim that he

was denied a FAPE. Thus, as the distr i c t court correctly concluded, Paul m ay n ot m aintain this actio n after he failed
t o s eek a final adm inistrative d ecision regarding h is alleged need for in-state residential education.

AFFIRMED.