UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

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9772 PAYNE v. PENINSULA SCHOOL DISTRICT 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
PAYNE v. PENINSULA SCHOOL DISTRICT 9773 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 2 An 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.
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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

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