H. W. v. Long Beach Unified School District

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
H. W. et al.,
Plaintiffs - Appellants,
v.
LONG BEACH UNIFIED SCHOOL
DISTRICT,
Defendant - Appellee.
No. 11-55595
D.C. No. 2:10-cv-07015-SJO-E
Central District of California,
Los Angeles
ORDER
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted August 7, 2012
Pasadena, California
Before: REINHARDT, SILVERMAN, and WARDLAW, Circuit Judges.
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(l), 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)
FILED
AUG 23 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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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.

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