                                                                             FILED
                      UNITED STATES COURT OF APPEALS                          AUG 23 2012

                                                                         MOLLY C. DWYER, CLERK
                              FOR THE NINTH CIRCUIT                        U .S. C O U R T OF APPE ALS




H. W. et al.,                                     No. 11-55595

                Plaintiffs - Appellants,          D.C. No. 2:10-cv-07015-SJO-E
                                                  Central District of California,
  v.                                              Los Angeles

LONG BEACH UNIFIED SCHOOL
DISTRICT,                                         ORDER

                Defendant - Appellee.



                     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)
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.
