FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAUL G., a conserved adult; by

and through his conservator

Steve G.,

Plaintiff-Appellant,

v.

MONTEREY PENINSULA UNIFIED

SCHOOL DISTRICT; CALIFORNIA

DEPARTMENT OF EDUCATION,

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 Freeman, District Judge, Presiding

Argued and Submitted June 13, 2019

San Francisco, California

Filed August 12, 2019

Before: Mary M. Schroeder and Milan D. Smith, Jr.,

Circuit Judges, and Jed S. Rakoff,* District Judge.

Opinion by Judge Schroeder

* The Honorable Jed S. Rakoff, United States District Judge for the

Southern District of New York, sitting by designation.
2 PAUL G. V. MONTEREY PENINSULA USD

SUMMARY**

 Education Law

The panel affirmed the district court’s dismissal, for

failure to exhaust remedies under the Individuals with

Disabilities Education Act, of claims under the Americans

with Disabilities Act and § 504 of the Rehabilitation Act.

A student’s parents sought damages under the ADA and

§ 504 on the basis that the residential placement he should

have received under the IDEA was not available in

California. Plaintiffs failed to exhaust because they settled

their IDEA case without receiving an administrative decision

on whether the lack of an in-state residential placement had

denied the student a free and appropriate public education. 

The panel held that exhaustion was required because

plaintiffs sought relief that would also be available under the

IDEA. Agreeing with other circuits, the panel concluded that

the ADA and § 504 claims concerned whether the student

was provided appropriate educational services. The panel

held that plaintiffs’ claims did not fall under exhaustion

exceptions because they did not seek relief for a policy or

practice of general applicability, and exhaustion would not

have been futile or inadequate.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
PAUL G. V. MONTEREY PENINSULA USD 3

COUNSEL

Daniel R. Shaw (argued), Shaw Firm, San Luis Obispo,

California; Christian Knox, F. Richard Ruderman, and

Colleen A. Snyder, Ruderman and Knox LLP, Sacramento,

California; for Plaintiff-Appellant.

Leonard Bruce Garfinkel (argued), Deputy General Counsel;

Todd M. Smith and Edmundo R. Aguilar, Assistant General

Counsel; AmyBisson Holloway, General Counsel; California

Department of Education, Sacramento, California; for

Defendants-Appellees.

OPINION

SCHROEDER, Circuit Judge:

The parents of Paul G. (“Paul”), an autistic child, seek

damages because the placement they believe their child

should have received under the Individuals with Disabilities

Education Act (“IDEA”) is not available in California. They

filed this action under the Americans with Disabilities Act

(“ADA”) and Section 504 of the Rehabilitation Act of 1973. 

The district court dismissed their complaint for failure to

exhaust their administrative remedies under the IDEA. We

affirm. Plaintiffs failed to exhaust because they settled their

IDEA case without receiving an administrative decision on

whether Paul needed the placement they now assert was

required for him to receive a free and appropriate public

education (“FAPE”).

Paul is an adult student whose family resides near

Monterey, California. His is a sad story of failed attempts to
4 PAUL G. V. MONTEREY PENINSULA USD

place him in an appropriate educational facility. During

elementary school and early high school, Paul was enrolled

as a special education student in the Monterey Peninsula

Unified School District. During his junior year in high school

(2014–15), he began having episodes of violent and

threatening behavior towards the school staff and fellow

students. After unsuccessful efforts to provide instruction at

home and in the local library, the school district in July of

2015 held an Individualized Education Plan (“IEP”) meeting

and offered to place Paul in a residential facility. Because he

was by then 18 years old, however, no residential facility in

the state would accept him. Paul subsequently enrolled in a

residential facility in Kansas, but became homesick and

returned to California.

Paul’s counsel initiated IDEA administrative proceedings

in August 2015, seeking a due process hearing with the

California Office of Administrative Hearings (OAH). His

complaint alleged he had been denied a FAPE guaranteed

under the IDEA. He sought a residential placement in

California, monetary damages, and an order directing the

California Department of Education (“CDE”) and the school

district to develop in-state residential placements for adult

students like Paul.

OAH dismissed the claims against the state, ruling that

the agency did not have jurisdiction to order the creation of

facilities for students over l8, and that the school district, not

the state, was responsible for education decisions affecting 

Paul. Paul then entered into a settlement agreement with the

school district in which OAH dismissed the case without ever

ruling on his claim that the lack of an in-state residential

facility had denied him a FAPE.
PAUL G. V. MONTEREY PENINSULA USD 5

Paul filed this action in federal court in September 2016,

following the settlement with the school district. His

complaint alleged that CDE violated the Rehabilitation Act

and the ADA. The gravamen of his complaint was that to

receive a FAPE he required a residential placement, and the

state had failed to provide him one in California. He sought

monetary damages and an injunction.

The complaint did not and could not allege that Paul’s

IEP required a placement in California; he had not obtained

such a decision from the OAH. The CDE therefore moved to

dismiss on the ground that Paul could not pursue claims

against the CDE for failure to provide a FAPE when he had

no IEP requiring an in-state placement. The district court

dismissed for failure to exhaust administrative remedies as

required by the IDEA. See 20 U.S.C. § 1415(l).

Paul’s district court complaint alleged discrimination in

violation of the Rehabilitation Act and the ADA; it did not

allege a violation of the IDEA. The IDEA is nevertheless key

in this case because it is that federal law that guarantees

individually-tailored educational services for children with

special educational needs. See id. §§ 1400(d)(1)(A),

1401(29). It provides for a FAPE that must conform to a

student’s IEP, which is a program detailing the student’s

abilities, educational goals, and specific services that are

designed to achieve those goals within a designated time

frame. See id. §§ 1412(a)(4), 1436(d).

The IDEA also contains procedural protections for the

resolution of disputes over what services must be provided. 

There must be an opportunity for mediation, an impartial due

process hearing, and an appeals process. See id.

§ 1415(e)–(g). In California, the CDE contracts with the
6 PAUL G. V. MONTEREY PENINSULA USD

OAH to provide these remedies. See Cal. Educ. Code

§ 56504.5(a). The OAH decision is a final administrative

decision, see 20 U.S.C. § 1415(i)(1)(A), and either the parent

or the public agency may seek judicial review by filing a civil

action in district 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

administrative procedures must have been exhausted:

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, title

V of the Rehabilitation Act of 1973, 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).

This Court, however, has identified certain exceptions to

the exhaustion rule. In the seminal case, Hoeft v. Tucson

Unified School District, 967 F.2d 1298 (9th Cir. 1992), we

held that exhaustion is not required when (1) use of the

administrative process would be “futile,” (2) the claim arises

from a policy or practice “of general applicability that is

contrary to law,” or (3) it is “improbable that adequate relief

can be obtained by pursuing administrative remedies (e.g. the

hearing officer lacks the authority to grant the relief sought).” 
PAUL G. V. MONTEREY PENINSULA USD 7

Id. at 1303–04 (citing H.R. Rep. No. 296 99th Cong, 1st Sess.

7 (1985)).

Paul’s position is that California has unlawfully

discriminated against him by not providing a residential

educational facility for adult students in the state who, like

Paul, require such a facility in order to receive a FAPE. He

argues he need not exhaust because his claims seek relief for

disability discrimination and that even if his claims do

involve denial of a FAPE, they fall under the exhaustion

exceptions.

The fundamental problemwith Paul’s position in the view

of the district court, and in ours, is that he has no IEP that

requires such an in-state placement. He settled his claim with

the school district that had sought such an IEP. His existing

IEP provides only for a residential placement. The district

court therefore properly dismissed for failure to exhaust

administrative remedies.

On appeal, he stresses that he is not claiming any

violation of the IDEA. Instead, he brought suit under the

ADA and Rehabilitation Act. The Supreme Court has

recently provided guidance as to when there must be

administrative exhaustion in a case purportedly invoking

statutes other than the IDEA. See Fry v. Napoleon Cmty.

Sch., 137 S. Ct. 743 (2017). The Court instructed us to

determine whether “the gravamen of the plaintiff’s suit is

something other than the denial of the IDEA’s core guarantee

— . . . ‘a free appropriate public education.’” Id. at 748

(quoting § 1412(a)(1)(A)). In Fry the suit alleged the ADA

and the Rehabilitation Act’s discrimination provisions were

violated when a young girl disabled by cerebral palsy was not

permitted to bring her service dog to school. Id. at 751. 
8 PAUL G. V. MONTEREY PENINSULA USD

Looking to the gravamen 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 concerned the denial of

access to public facilities. See id. Relief was therefore not

available under the IDEA. Exhaustion therefore was not

required.

The crucial issue is therefore whether the relief sought

would be available under the IDEA. See 20 U.S.C. § 1415(l). 

The Court provided clues for courts to decide that question,

including “whether the plaintiff could have brought

essentially the same claimif the alleged conduct had occurred

at a public facility that was not a school, and . . . whether an

adult at the school could have pressed essentially the same

grievance.” Fry, 137 S. Ct. at 756. The Court also said that

one good indication that the plaintiff is seeking relief for

denial of a FAPE is whether the plaintiff previously invoked

administrative remedies. Id. at 757. Since a dog would not

be among the services a school district would ordinarily

provide in a FAPE, and the plaintiff in that case had never

invoked administrative remedies to obtain such a FAPE, the

gravamen of the Fry complaint was not an IDEA claim.

In this case, Paul could not have brought the same claims

against a public facility that was not a school, nor could an

adult employee or visitor present the same grievance, because

the relief Paul seeks is fundamentally educational — access

to a particular kind of school as required by his IEP. See id.

at 756 (claims are based on the IEP when access is “adequacy

of special education” and not “equality of access to public

facilities”). Further, Paul pursued remedies under IDEA and

after settlement switched gears to turn to other remedies. 

This is almost precisely the scenario the Supreme Court in

Fry described as an indicator of an IDEA claim requiring
PAUL G. V. MONTEREY PENINSULA USD 9

exhaustion. As the Court explained, an initial decision to

pursue the administrative process and a later shift to judicial

proceedings prior to full exhaustion is a strong indication that

the plaintiff is making “strategic calculations about how to

maximize the prospects of such a remedy.” 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 education guaranteed under the IDEA, he must

exhaust his administrative remedies for an IEP. Applying

Fry, the district court held that the “alleged denial to provide

an in-state residential treatment facility applies solely in a

school setting” and the fact that Paul “previously pursued an

IDEA administrative proceeding based on identical or similar

allegations supports the conclusion that his claims are

premised on a denial of a FAPE.” We agree with that

conclusion.

Other circuit decisions since Fry have reached similar

conclusions. In Wellman v. Bulter Area School District, the

Third Circuit concluded that the student’s “grievances all

stem from the alleged failure to accommodate his condition

and fulfill his educational needs” and dismissed the complaint

because the student released all claims related to the FAPE

denial in a settlement agreement with the school district. 

877 F.3d 125, 133 (3d Cir. 2017). In Nelson v. Charles City

Community School District, the Eighth Circuit affirmed the

district court’s conclusion that the student’s complaint sought

relief available under the IDEA because the denial of the

student’s request for online classes was directly related to the

student’s IEP. 900 F.3d 587, 595 (8th Cir. 2018). In

Durbrow v. Cobb County School District, a student with

Attention Deficit Hyperactivity Disorder filed a due process

complaint alleging the school district failed to evaluate him
10 PAUL G. V. MONTEREY PENINSULA USD

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

Eleventh Circuit concluded the gravamen of the student’s

§ 504 and ADA claims in the district court was denial of a

FAPE because the claims focused on the adequacy of the

educational program the school district afforded the student. 

Id. at 1190. Exhaustion was required. Here, like our sister

circuits, we conclude Paul was required to exhaust the IDEA

procedural process because his § 504 and ADA claims

concern whether he was provided appropriate educational

services.

Paul argues that even if his claims do concern the denial

of a FAPE, they fall under all three exhaustion exceptions:

(1) the administrative process would be “futile,” (2) the claim

arises from a policy or practice “of general applicability that

is contrary to law,” or (3) it is improbable “that adequate

relief can be obtained by pursuing administrative remedies

(e.g. the hearing officer lacks the authority to grant the relief

sought).” Hoeft, 967 F.2d at 1303–04.

Paul suggests that he seeks relief for “a policy or practice

of general applicability that is contrary to the law” because

CDE failed to provide residential placements for disabled

students over the age of eighteen. A claim is systemic, and

therefore entitled to the general applicability exception, if it

concerns “the integrity or reliability of the IDEA dispute

resolution procedures themselves, or requires restructuring

the education system itself in order to comply with the

dictates of the Act.” Doe ex rel. Brockhuis v. Ariz. Dep’t of

Educ., 111 F.3d 678, 682 (9th Cir. 1997). Here, however,

Paul seeks relief related to only one component of the school

district’s special education program — in-state residential

facilities for adult students. See id.; see also Hoeft, 967 F.2d

at 1308.
PAUL G. V. MONTEREY PENINSULA USD 11

Paul also contends exhaustion would have been futile and

inadequate because, when he filed his due process

administrative complaint against the school district and the

CDE, the OAH dismissed 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 “structural and

systemic statewide relief.” Paul then settled the claim against

the school district without obtaining any decision on his claim

that the lack of in-state placement denied him a FAPE. He

now argues it would have been futile to pursue the IDEA

claim because the state could not be required to provide the

facility.

A principle purpose of requiring administrative

exhaustion, however, is to ensure the agency has had an

opportunity to rule on a claim before a plaintiff goes to court. 

See Payne v. Peninsula Sch. Dist., 653 F.3d 863, 875–76 (9th

Cir. 2011). Thus, if the plaintiff is claiming a violation of the

IDEA, the plaintiff must take that claim through the

administrative process. The Supreme Court in Fry reiterated

the principle in clear terms. Fry, 137 S. Ct. at 756–57. In

this case, Paul is claiming that the state must provide him

with an in-state residential placement and must pay damages

for failing to do so. The only basis for such a claim is that

such a placement is required under the IDEA. The agency’s

dismissal of the state does not excuse Paul’s failure to pursue

the claimagainst the school district, because that was the only

way to obtain an administrative ruling on his claim that he

was denied a FAPE. Thus, as the district court correctly

concluded, Paul may not maintain this action after he failed

to seek a final administrative decision regarding his alleged

need for in-state residential education.

AFFIRMED.