                                                                           FILED
                            NOT FOR PUBLICATION                             APR 05 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



ANISHA WASHINGTON,                               No. 10-17629

              Plaintiff - Appellant,             D.C. No. 2:10-cv-00186-FCD-
                                                 KJM
  v.

CALIFORNIA DEPARTMENT OF                         MEMORANDUM *
EDUCATION; CALIFORNIA
DEPARTMENT OF MENTAL HEALTH;
CALIFORNIA DEPARTMENT OF
SOCIAL SERVICES, Community Care
and Licensing Division; JACK
O'CONNELL, Superintendent of CA
Dept. of Education; STEPHEN W.
MAYBERG, Director of CA Dept. of
Mental Health; JOHN A. WAGNER,
Director of CA Dept. of Social Services,

              Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Eastern District of California
                 Franµ C. Damrell, Senior District Judge, Presiding

                     Argued and Submitted December 7, 2011
                            San Francisco, California



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: TROTT and BEA, Circuit Judges, and STAFFORD, Senior District
Judge.**

      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. y 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, 2012 WL 538336 (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




          **
              The Honorable William H. Stafford, Jr., Senior District Judge for the
U.S. District Court for Northern Florida, sitting by designation.
      1
         Because the parties are familiar with the facts of this case, we recite them
only as necessary to explain our decision.

                                           2
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. y 1415(l). 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.




      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).

                                           3
                                                                                     FILED
                                                                                      APR 05 2012
                                                                                       Page 1 of 4

Washington v. California Department of Education 10-17629                        MOLLY C. DWYER, CLERK
                                                                                   U.S . CO U RT OF AP PE A LS

STAFFORD, District Judge, dissenting.

       Because I do not agree that this case was appropriately dismissed for failure to

exhaust, I must respectfully dissent.

       Washingtonùs underlying claim in this case is that the State of California has

failed to maµe in-state residential treatment available to emotionally-disturbed IDEA-

eligible students who, liµe Washington, are between the ages of 18 and 22.

According to the plaintiff, Californiaùs failure to maµe such services available to her

constitutes a violation of the IDEA. The plaintiffùs claim arises from a regulation

promulgated by the California Department of Social Services (þCDSSþ), 22 Cal. Code

Regs. y 84022(b)(2)(E), which requires California-certified residential facilities to

discharge students upon reaching age eighteen. The regulation is based upon

language in the California Health and Safety Code that prohibits the housing of minors

with adults. Washington asserts that þstudents ages eighteen through twenty-one are

regularly denied residential placements in the state of California based on these

licensing restrictions, even when required by their IEPs.þ

       Washington has alleged that those local agencies most recently responsible for

her Individualized Education Program (þIEPþ) þacµnowledge that [she] needs to be

placed in a residential program in California . . . , [yet] it is impossible for the local

agencies to maµe such a placement because no such placement exists that is

authorized by the State of California.þ She challenges no other aspect of her IEP.

       Washington raised the same claim in a 2009 administrative due process

complaint. In addition to naming the relevant local educational agencies as defendants
                                                                                   Page 2 of 4

in the administrative case, Washington named two state educational defendants, the

California Department of Education (þCDEþ) and the California Department of Mental

Health (þCDMHþ). The Office of Administrative Hearings (þOAHþ) quicµly dismissed

CDE from the case on the ground that CDE was not a þresponsible local educational

agencyþ within the meaning of the California Education Code. Washington then entered

into a settlement agreement with the local educational agencies, accepting the only

placement the local educational agencies were authorized to maµe--namely, an out-of-

state residential placement. She nonetheless continued to pursue her claim against

CDMH, arguing that the Stateùs failure to allow her local educational agencies to place

her in a California residential program violated the IDEA. After a two-day hearing, the

OAH dismissed CDMH, finding that CDMH had no responsibility for providing a free

appropriate public education to Washington. The OAH thus failed to rule on the

question of whether the State of California has a responsibility under the IDEA to ensure

that local educational agencies are authorized to place emotionally-disturbed IDEA-

eligible adult students such as Washington in California residential facilities.

       After Washington filed her complaint in federal court, the defendants moved to

dismiss, arguing that the court lacµed jurisdiction based on Washingtonùs failure to

adequately plead exhaustion of administrative remedies. Relying on Blanchard v.

Morton Sch. Dist., 420 F.3d 918, 920-21 (9th Cir. 2005),1 the district court granted the

motion, explaining that þ[t]o establish jurisdiction in a case brought pursuant to the


       1
          As noted by the majority, this circuit has since overruled Blanchard and its
progeny, holding that the IDEAùs exhaustion requirement is not jurisdictional but is,
instead, an affirmative defense to be pleaded and proved by IDEA defendants. Payne,
653 F.3d at 870-71.
                                                                                    Page 3 of 4

IDEA, a plaintiff must show that he or she has exhausted all available administrative

remedies prior to commencing her action in federal district court.þ Placing the burden

on Washington, the district court concluded that Washington failed to establish either (1)

that she exhausted her administrative remedies, or (2) that exhaustion would be futile. I

do not agree with the majorityùs conclusion that the result reached by the district court is

supported by the record.

       The existence of a futility exception to the IDEAùs exhaustion requirement can be

traced to the legislative history of the IDEA. Senator Harrison Williams, the author and

floor manager of the Senate bill, stated that þexhaustion of the administrative

procedures established under this part should not be required for any individual

complainant filing a judicial action in cases where such exhaustion would be futile either

as a legal or practical matter.þ 121 Cong. Rec. 37416 (1975). The congressional

understanding of the futility exception is spelled out in the legislative history of the IDEA.

              It is important to note that there are certain situations in
              which it is not appropriate to require the exhaustion of [IDEA]
              administrative remedies before filing a civil law suit. These
              include complaints that: First, an agency has failed to
              provide services specified in the childùs individualized
              educational program [IEP]; second, an agency has abridged
              or denied a handicapped childùs procedural rights-for
              example, failure to implement required procedures
              concerning least restrictive environment or convening of
              meetings; three, an agency has adopted a policy or pursued
              a practice of general applicability that is contrary to the law,
              or where it would otherwise be futile to use the due process
              procedures-for example, where the hearing officer lacµs the
              authority to grant the relief sought; and four, an emergency
              situation exists....

131 Cong. Rec. 21392-93 (1985); see also H.R.Rep. No. 296, 99th Cong., 1st Sess. 7

(1985).
                                                                                     Page 4 of 4

       Here, Washington has raised an issue of law regarding a state-required practice

of general applicability alleged to be in violation of the IDEA. In my view, because such

a claim presents a þsituation in which it is not appropriate to require the exhaustion of

[IDEA] administrative remedies before filing a civil law suit,þ the district courtùs order of

dismissal should be reversed and the case remanded so that Washington may litigate

her claim that the State of California violates the IDEA by prohibiting her and other

emotionally-disturbed IDEA-eligible students between the ages of 18 and 22 from being

treated in California residential treatment facilities even where, as here, the local

educational agencies agree that residential treatment is needed as part of the studentùs

IEP.
