Anisha Washington v. California Department of Education

472 F. App'x 645

Opinions

MEMORANDUM

Footnotes

•

**

Appellant Anisha Washington appeals the district court’s dismissal of her claims — brought under the Individuals with Disabilities Education Act (“IDEA”) and the Rehabilitation Act — for failure to exhaust administrative remedies. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.¹

The district court concluded that Washington’s failure to exhaust deprived the court of subject matter jurisdiction. After that decision, our en banc court overturned prior circuit precedent and held that the IDEA’S exhaustion requirement is not jurisdictional. Payne v. Peninsula School Dist., 653 F.3d 863 (9th Cir.2011) (en banc), cert. denied, — U.S.-, 132 S.Ct. 1540, 182 L.Ed.2d 161 (Feb. 21, 2012). But Payne made clear that IDEA defendants could challenge claims for failure to exhaust in an unenumerated motion to dismiss. 653 F.3d at 881. We may affirm on any ground supported by the record, Ove v. Gwinn, 264 F.3d 817, 821 (9th Cir.2001), and we conclude that the district court properly dismissed the claims for failure to exhaust.²

Washington settled her initial administrative due process complaint with various school district and local agency defendants, who agreed to place her in a residential treatment facility in Colorado. She voluntarily discharged herself from the Colorado facility, and subsequently brought a complaint in federal district court. Washington did not first avail herself of the IDEA’S administrative procedures, as required by 20 U.S.C. § 1415(2). Further, Washington has not demonstrated that exhaustion would be futile or that any other exception to exhaustion applies. Hoeft v. Tucson Unified School Dist., 967 F.2d 1298, 1303-04 (9th Cir.1992). She does not show that the administrative process cannot address her claims — namely, whether she is entitled to in-state residential treatment.

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.

1

. Because the parties are familiar with the facts of this case, we recite them only as necessary to explain our decision.

2

. Dismissals of IDEA claims for failure to exhaust are without prejudice. Kutasi v. Las Virgenes Unified School Dist., 494 F.3d 1162, 1170 (9th Cir.2007).