653 F.3d 863 (9th Cir. 2011), 07-35115, Payne v. Peninsula School Dist.

Docket Nº:07-35115.
Citation:653 F.3d 863
Opinion Judge:BYBEE, Circuit Judge:
Party Name:Windy PAYNE, individually and as guardian on behalf of D.P., a minor child, Plaintiff-Appellant, v. PENINSULA SCHOOL DISTRICT, a municipal corporation; Artondale Elementary School, a municipal corporation; Jodi Coy, in her individual and official capacity; James Coolican, in his individual and official capacity; Jane Does 1-10; and John Does 1-10,
Attorney:Thomas B. Vertetis, Pfau Cochran Vertetis Kosnoff, PLLC, Tacoma, WA, for the plaintiff-appellant. Michael A. Patterson, Patterson Buchanan Fobes Leitch & Kalzer, Inc., P.S., Seattle, WA, for the defendants-appellees. Sasha Samberg-Champion and Mark L. Gross, United States Department of Justice, C...
Judge Panel: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. Opinion by Judge BYBEE; Concurrence by Judge ...
Case Date:July 29, 2011
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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653 F.3d 863 (9th Cir. 2011)

Windy PAYNE, individually and as guardian on behalf of D.P., a minor child, Plaintiff-Appellant,

v.

PENINSULA SCHOOL DISTRICT, a municipal corporation; Artondale Elementary School, a municipal corporation; Jodi Coy, in her individual and official capacity; James Coolican, in his individual and official capacity; Jane Does 1-10; and John Does 1-10, Defendants-Appellees.

No. 07-35115.

United States Court of Appeals, Ninth Circuit

July 29, 2011

Argued and Submitted Dec. 15, 2010.

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[Copyrighted Material Omitted]

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Thomas B. Vertetis, Pfau Cochran Vertetis Kosnoff, PLLC, Tacoma, WA, for the plaintiff-appellant.

Michael A. Patterson, Patterson Buchanan Fobes Leitch & Kalzer, Inc., P.S., Seattle, WA, for the defendants-appellees.

Sasha Samberg-Champion and Mark L. Gross, United States Department of Justice, Civil Rights Division, Washington, D.C.; and Lenore Silverman, Fagen Friedman & Fulfrost, LLP, Oakland, CA, for amici curiae.

Appeal from the United States District Court for the Western District of Washington, Ronald B. Leighton, District Judge, Presiding. D.C. No. CV-05-05780-RBL.

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.

Opinion by Judge BYBEE; Concurrence by Judge CALLAHAN; Partial Concurrence and Partial Dissent by Judge BEA.

OPINION

BYBEE, Circuit Judge:

We agreed to rehear this case en banc to clarify under what circumstances the IDEA's exhaustion requirement bars non-IDEA 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."

At a meeting to discuss D.P.'s Individual Education Program (" IEP" ) 1 and Behavior

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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 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).

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On a vote of the majority of nonrecused active judges on our court, we vacated the panel opinion and agreed to rehear 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, __ U.S. __, 131 S.Ct. 1197, 1202-07, 179 L.Ed.2d 159 (2011); Reed Elsevier, Inc. v. Muchnick, __ U.S. __, 130 S.Ct. 1237, 1243-48, 176 L.Ed.2d 18 (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, 102 S.Ct. 2099, 72 L.Ed.2d 492 (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 supplemental 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.

The IDEA's exhaustion requirement provides:

Nothing in this chapter shall be construed...

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