H.W. v. Long Beach Unified School District

487 F. App'x 350

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 23, 2012
• Docket: No. 11-55595
• Status: Published

Opinion

ORDER

We remand this case to the district court in light of Payne v. Peninsula School District, 653 F.3d 863 (9th Cir.2011), a decision issued after the district court entered its order. We held in Payne that the Individuals with Disabilities Education Act’s exhaustion requirement, 20 U.S.C. § 1415(i), is not jurisdictional and set forth a new relief-based approach, as opposed to an injury-based approach, for determining whether a claim is subject to the exhaustion requirement. In conformity with Payne, the Defendant may file an unenumerated Rule 12(b) motion for failure to exhaust in place of its motion to dismiss for lack of jurisdiction. Plaintiffs shall be afforded the opportunity to respond to Defendant’s motion.

REMANDED.

IT IS SO ORDERED.