                                       PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
               ______________

                     No. 15-3394
                   ______________

             ROBERT WELLMAN, JR.,
                           Appellant

                           v.

        BUTLER AREA SCHOOL DISTRICT,
     DR. JOHN WYLLIE, Individually, and in his
  capacity as principal of the Butler Area High School
                    ______________

     Appeal from the United States District Court
      for the Western District of Pennsylvania
              (D.C. No. 2-13-cv-00616)
        District Judge: Hon. Mark R. Hornak
                   ______________

              Argued: November 7, 2017
                  ______________

Before: SMITH, Chief Judge, JORDAN and SHWARTZ,
                   Circuit Judges.

              (Filed: December 12, 2017)
                      ______________

                OPINION OF THE COURT
                    ______________


Edward A. Olds, Esq.    [ARGUED]
Olds Russ & Associates
1007 Mount Royal Boulevard
Pittsburgh, PA 15223

              Counsel for Appellants


Thomas E. Breth, Esq.   [ARGUED]
Dillon McCandless King Coulter & Graham
128 West Cunningham Street
Butler, PA 16001

              Counsel for Appellees

SHWARTZ, Circuit Judge.

        Robert Wellman, Jr., appeals the District Court’s order
dismissing his complaint without prejudice for lack of subject
matter jurisdiction because he failed to exhaust his
administrative remedies under the Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. He
contends that the Court erred because none of his claims seek
relief under the IDEA and, in any event, exhaustion would be
futile.




                              2
        The outcome of this appeal is largely dictated by the
Supreme Court’s recent opinion in Fry v. Napoleon
Community Schools, 137 S. Ct. 743 (2017), which requires
that we consider the “crux”—the “gravamen”—of the
complaint to determine whether a plaintiff seeks relief for
“denial of the IDEA’s core guarantee [of] . . . a free and
appropriate education [FAPE,]” id. at 748 (quotation marks
omitted); if so, then the plaintiff must exhaust his
administrative remedies under the IDEA. Because the
gravamen of each count in Wellman’s complaint seeks relief
for the denial of a FAPE, Wellman would typically be required
to exhaust his claims. Wellman concedes, however, that he
released all claims seeking relief based on the denial of a
FAPE, and thus, he has no claims to exhaust. As a result, we
will vacate the District Court’s order dismissing the complaint
without prejudice and remand with instructions to dismiss the
complaint with prejudice.




                              3
                               I1

       Wellman attended high school in the Butler Area
School District (“the School District”). He suffered a head
injury while playing flag football in his freshman physical
education class. After school that day, Wellman attended
football practice, where he suffered additional head injuries.
The following day, Wellman saw his doctor and later
underwent a CT scan, which revealed that he had sustained a
concussion. Wellman suffered “pain” and experienced
“staring spells, trouble sleeping, and difficulty concentrating.”
App. 126.

        Wellman returned to school, but his mother asked the
school to assist him until his concussion healed. Wellman’s
mother requested that Wellman be taken out of his German and
physical education classes, that he be given extra study halls,
and that the football coach not allow him to engage in any
unsuitable physical activity. Rather than allow him to rest
during his extra study halls, however, the teachers required him
to take make-up exams. Wellman alleges that the school’s
indifference to his need for accommodations increased his
stress and aggravated his cognitive problems.




       1
          The facts are taken from the Second Amended
Complaint. Because this appeal involves a facial challenge to
the existence of subject matter jurisdiction under Federal Rule
of Civil Procedure 12(b)(1), we accept as true the facts alleged
in the complaint and construe them in favor of the nonmoving
party. Constitution Party of Pa. v. Acihele, 757 F.3d 347, 357
n.12 (3d Cir. 2014).




                               4
        After performing an EEG test, Wellman’s doctor wrote
a letter asking the school to provide Wellman with academic
accommodations, specifically tutors and more time to
complete his assignments. The school ignored these requests.

       A few weeks later, Wellman attended a high school
football game. Before the game, Wellman’s mother told the
football coach that Wellman had a concussion, was not cleared
to participate in the game, and should not be exposed to any
possibility of physical contact. Despite this conversation, the
football coach asked Wellman to hold one of the markers on
the sidelines. Wellman was not wearing any protective gear.
During the game, a player in full uniform ran into Wellman and
knocked him over, causing another head injury.

        After this incident, Wellman’s concussion symptoms
worsened, and he experienced severe headaches, problems
focusing, and exhaustion. A CT scan revealed that he had post-
concussive syndrome. Wellman began to miss school because
of his symptoms and medical appointments, and when he was
able to attend school, his teachers refused to provide
accommodations for him. As a result, Wellman suffered
significant stress, embarrassment, and anxiety.

       Wellman and his mother met with the principal
regarding his teachers’ failure to accommodate him, 2 but the
principal was dismissive of his problems. Because the School
District would not accommodate him, Wellman requested and
received homebound instruction but claimed that the teachers

      2
        The Complaint states that Wellman’s teachers ignored
his doctor’s request for accommodations and were “giving
Wellman too much work.” App. 131.




                              5
who provided the instruction were generally apathetic.
Wellman attempted to return to school, but again his teachers
denied his requests for accommodations, 3 and he quickly
returned to homebound instruction for the remainder of the
2009-10 academic year.

       Wellman attempted to return to school for the 2010-11
academic year but was overwhelmed by severe anxiety. To
reduce his anxiety, Wellman and his mother asked that he be
allowed to switch his lunch period so that he could eat lunch
with his friends, but the request was denied. Wellman had
panic attacks at the thought of returning to school, and he
returned to homebound instruction.

       In October 2010, Wellman’s mother requested that he
be evaluated for an Individualized Education Plan (“IEP”). 4
The school determined that Wellman was not eligible for an
IEP.     However, Wellman underwent an independent
evaluation, which concluded that he met the criteria for anxiety

       3
           It is not clear from the complaint which
accommodations were requested and denied during this time
period.
        4
          The state administers a FAPE by developing an IEP
for every child with disabilities. 20 U.S.C. § 1414(d). Once a
child is identified as having special needs, “[a] school district
provides a FAPE by designing and implementing an
individualized instructional program set forth in an [IEP],
which must be reasonably calculated to enable the child to
receive meaningful educational benefits in light of the
student’s intellectual potential.” G.L. v. Ligonier Valley Sch.
Dist. Auth., 802 F.3d 601, 607 (3d Cir. 2015) (citations and
internal quotation marks omitted).




                               6
disorder and cognitive disorder due to a medical condition.
Thereafter, Wellman’s mother, his therapists, and school
officials met. The school proposed a “Chapter 15/504 plan” 5
to help Wellman return to school, but the parties could not
reach an agreement on its implementation. App. 134. Four
months later, they met again to discuss a Chapter 15/504 plan,
but school officials appeared uninterested in giving Wellman
“any sort of accommodations.” Id. Wellman finished his
sophomore year in cyber school. The following year, he
enrolled in private school, from which he eventually graduated.

       Wellman and his parents filed a due process complaint
with the Pennsylvania Department of Education against the
School District, requesting a hearing, an IEP, compensatory


       5
         Chapter 15 of the Pennsylvania Code implements the
statutory and regulatory requirements of § 504 of the
Rehabilitation Act, 29 U.S.C. § 794, 22 Pa. Code § 15.1(a).
Section 504 requires schools to provide “a free appropriate
public education,” defined in the Rehabilitation Act as “the
provision of regular or special education and related aids and
services that (i) are designed to meet individual educational
needs of [students with disabilities] as adequately as the needs
of [nondisabled students] are met and (ii) are based upon
adherence to procedures that satisfy the requirements of §
104.34 [least restrictive setting], § 104.35 [evaluation and
placement], and § 104.36 [procedural safeguards].” 34 C.F.R.
§ 104.33(b)(1). “Section 504 defines disability more broadly
than the IDEA, and thus, some students covered by Section 504
are not covered under the IDEA.” Batchelor v. Rose Tree
Media Sch. Dist., 759 F.3d 266, 269 n.4 (3d Cir. 2014)
(citations omitted).




                               7
education for two years, and payment of Wellman’s private
school tuition. Wellman and the School District eventually
entered into a Settlement and Release Agreement (“the
Settlement Agreement”) with respect to the claims in the due
process case. Under the Settlement Agreement, the Wellmans
released the School District and its employees

       from all rights, claims, causes of action, and
       damages of any nature including, but not limited
       to, any claim for legal fees and/or costs, which
       were pursued in the above-referenced case or
       which could have been pursued in the above-
       referenced case, pursuant to the [IDEA], as
       amended; the Americans with Disabilities Act
       (ADA); or any other Federal or State statute,
       including    the     regulations    promulgated
       thereunder.

App. 101.

       Wellman thereafter filed suit in the United States
District Court for the Western District of Pennsylvania against
the School District and the high school’s principal. In the
operative complaint, Wellman alleges that the School District
and principal: (1) violated the Rehabilitation Act, 29 U.S.C. §
794, and the ADA, 42 U.S.C. § 12132, by refusing to
accommodate Wellman and treating him as if his injuries were
fabricated or exaggerated; (2) violated the Rehabilitation Act
and ADA by insisting that Wellman hold the marker on the
football field, even though the School District was aware that
he had a concussion and should not have been exposed to
unnecessary physical risk; and (3) sought relief under 42
U.S.C. § 1983 for a violation of Wellman’s equal protection




                              8
rights by failing to accommodate him, retaliating against him
because he requested accommodations, and treating him
differently from other disabled students.

       The School District and principal filed a motion to
dismiss the complaint pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). The District Court initially
dismissed the claim against the principal in his official capacity
but allowed all other claims to proceed. After this Court
decided Batchelor v. Rose Tree Media School District, 759
F.3d 266 (3d Cir. 2014), which held that exhaustion under the
IDEA was a jurisdictional requirement, the District Court
concluded that it lacked subject matter jurisdiction and
dismissed the Complaint without prejudice, because (1) each
of Wellman’s claims were related to the provision of a FAPE,
and he failed to exhaust his claims before a special education
hearing officer; (2) the Settlement Agreement did not render
the claims exhausted because it did not serve the key purpose
of developing an underlying factual record; and (3) no
exception to exhaustion was applicable to the case, given that
no underlying factual record was developed, there were no
allegations of an emergency situation requiring immediate
resolution, and Wellman’s claims all principally related to his
education. Wellman appeals.

                                II

        We first address whether we have appellate jurisdiction
over the challenged order.         The District Court’s order
dismissed the complaint without prejudice for failing to
exhaust administrative remedies. Wellman contends that
exhaustion would be futile, and so he has chosen not to present
the claims in his complaint to an administrative hearing officer.




                                9
“[A]n appellant who does not attempt to avail himself of the
administrative process, but who instead files an appeal raising
the argument that exhaustion would be futile, ‘effectively
stands on his original complaint’ and that in such cases we may
exercise jurisdiction over an order dismissing a complaint
without prejudice.” Ghana v. Holland, 226 F.3d 175, 180–81
(3d Cir. 2000) (quoting Nyhuis v. Reno, 204 F.3d 65, 68 n.2
(3d Cir. 2000)).

       Wellman has filed an appeal and argued that
administrative exhaustion would be futile, and thus, he has
effectively decided to stand on his complaint. We will
therefore treat the order dismissing the complaint without
prejudice as a final order and exercise appellate jurisdiction
pursuant to 28 U.S.C. § 1291. See Booth v. Churner, 206 F.3d
289, 293 n.3 (3d Cir. 2000) (“[A] plaintiff can appeal from a
dismissal without prejudice when he declares his intention to
stand on his complaint or when he cannot cure the defect in his
complaint.”), aff’d, 532 U.S. 731 (2001).

                              III

        We next address whether we have subject matter
jurisdiction. Wellman invoked federal question jurisdiction
pursuant to 28 U.S.C. § 1331 by raising claims under several
federal statutes. The School District contends that the federal
court lacks subject matter jurisdiction over the complaint
because Wellman’s claims seek relief under the IDEA and 20
U.S.C. § 1415(l) requires such claims be presented to an
administrative hearing officer, which Wellman failed to do. In
Batchelor, this Court held that exhaustion of the IDEA
administrative process is normally required for a District Court
to exercise subject matter jurisdiction. 759 F.3d at 272 (citing




                              10
Komninos v. Upper Saddle River Bd. of Educ., 13 F.3d 775,
778 (3d Cir. 1994)). While we have some doubts as to whether
IDEA exhaustion is a jurisdictional requirement, 6 we are
bound by this precedent. Moreover, we need not wrestle with
whether exhaustion is jurisdictional because the School

       6
          There appears to be some tension in our precedent as
to whether a jurisdictional exhaustion requirement could be
subject to a futility exception. Compare Wilson v. MVM, Inc.,
475 F.3d 166, 174 (3d Cir. 2007) (discussing the difference
between “prudential exhaustion” and “jurisdictional
exhaustion,” and explaining that a prudential exhaustion
requirement can be bypassed under certain circumstances,
including futility, but that a jurisdictional exhaustion
requirement “is a prerequisite to a court’s subject matter
jurisdiction. Regardless of whether there is a compelling
reason a plaintiff failed to exhaust, a court is without subject
matter jurisdiction to hear the plaintiff's claim”), and Nyhuis v.
Reno, 204 F.3d 65, 69 (3d Cir. 2000) (noting that a
jurisdictional exhaustion requirement “by definition cannot be
subject to a futility exception” (emphasis in original)), with
D.E. v. Cent. Dauphin Sch. Dist., 765 F.3d 260, 274-75 (3d
Cir. 2014) (noting that exhaustion is a prerequisite to a district
court’s subject matter jurisdiction, but stating that there are
four exceptions to the exhaustion requirement, including
futility, and explaining that “[a]bsent the existence of any of
those exceptions, failure to exhaust will deprive a federal court
of subject matter jurisdiction”).          Here, the exhaustion
requirement can be excused, for example, if it is futile or if
there are emergent circumstances that justify coming directly
to federal court. The fact that the exhaustion requirement has
exceptions suggests that it is not a jurisdictional prerequisite to
our authority to hear an IDEA case.




                                11
District insists exhaustion is required for Wellman to proceed.
We must therefore address the School District’s contention that
exhaustion is required, regardless of whether it is a prerequisite
for us to exercise subject matter jurisdiction. See, e.g., J.B. ex
rel. Bailey v. Avilla R-XIII Sch. Dist., 721 F.3d 588, 593 n.2
(8th Cir. 2013) (“Because the District has not waived the
exhaustion argument and we conclude the Plaintiffs were
required to exhaust their administrative remedies, we need not
reach this issue.”); Muskrat v. Deer Creek Pub. Sch., 715 F.3d
775, 783 (10th Cir. 2013) (“Ultimately, however, for purposes
of this case[,] IDEA exhaustion’s status as a jurisdictional
prerequisite is not at issue. Had defendants failed to raise
IDEA exhaustion below or failed to renew that question here,
then our obligation to do so independently would turn on its
jurisdictional or nonjurisdictional nature.” (citation omitted)).
Thus, we will next examine whether Wellman’s claims are
subject to § 1415(l)’s exhaustion requirement.

                               IV

        The IDEA requires participating states to provide
disabled children with a FAPE, 20 U.S.C. § 1412(a)(1)(A), and
sets forth an administrative mechanism for resolving disputes
concerning whether a school has complied, id. § 1415. The
IDEA provides for an impartial due process hearing conducted
by the state or local educational agency, id. § 1415(f), and the
right to appeal the results to the state educational agency if the
due process hearing was conducted by the local educational
agency, id. §1415(g). The IDEA also requires parties to use
these procedures whenever they seek relief “available under
this subchapter” even if they are pursuing relief under other
federal laws. Id. § 1415 (l). Specifically, the IDEA provides
that:




                               12
       [n]othing in this chapter shall be construed to
       restrict or limit the rights, procedures, and
       remedies available under the Constitution, the
       Americans with Disabilities Act of 1990 [42
       U.S.C. § 12101 et seq.], title V of the
       Rehabilitation Act of 1973 [29 U.S.C. § 791 et
       seq.], or other Federal laws protecting the rights
       of children with disabilities, except that before
       the filing of a civil action under such laws
       seeking relief that is also available under this
       subchapter, the procedures under subsections (f)
       and (g) shall be exhausted to the same extent as
       would be required had the action been brought
       under this subchapter.

Id. § 1415(l). Thus, a plaintiff who seeks relief available under
the IDEA must exhaust his administrative remedies before
filing a lawsuit, even if he relies on laws other than the IDEA.

       Courts of Appeals have disagreed about how this
provision applied to non-IDEA claims, such as claims under
the ADA, Rehabilitation Act, and § 1983. The Supreme Court
weighed in on this issue in Fry v. Napoleon Community
Schools. In Fry, the plaintiffs alleged that their daughter’s
school district discriminated against her in violation of the
ADA, the Rehabilitation Act, and state law when it barred her
from bringing her service dog to school to assist her with
mobility and balance problems. 137 S. Ct. at 750-52. The
Court of Appeals for the Sixth Circuit held that Fry was
required to exhaust her IDEA remedies, even though she filed
non-IDEA claims. Id. at 752. The Supreme Court reversed,
holding that “exhaustion is not necessary when the gravamen




                               13
of the plaintiff’s suit is something other than the denial of the
IDEA’s core guarantee—what the Act calls a ‘free appropriate
public education.’”         Id. at 748 (quoting 20 U.S.C.
§ 1412(a)(1)(A)). In reaching this conclusion, the Court noted
that the IDEA requires exhaustion only where the plaintiff
“‘seek[s] relief that is also available’ under the IDEA.” Id. at
752 (quoting 20 U.S.C. § 1415(l)). “[T]o meet that statutory
standard, a suit must seek relief for the denial of a FAPE,
because that is the only ‘relief’ the IDEA makes ‘available.’”
Id. The Court explained that “in determining whether a suit
indeed ‘seeks’ relief for such a denial, a court should look to
the substance, or gravamen, of the plaintiff’s complaint.” Id. 7

        In determining whether the gravamen of a plaintiff’s
complaint is the denial of a FAPE, the Court directed courts to
consider one “clue” in the form of two hypothetical questions:
“First, could the plaintiff have brought essentially the same
claim if the alleged conduct had occurred at a public facility
that was not a school—say, a public theater or library? And
second, could an adult at the school—say, an employee or
visitor—have pressed essentially the same grievance?” Id. at
756 (emphasis in original). The Court explained that if the

       7
         The Court declined to decide whether exhaustion
would be required if a plaintiff complained of the denial of a
FAPE but sought remedies which were not available under the
IDEA (e.g., money damages). Fry, 137 S. Ct. at 752 n.4.
Under our precedent, however, a plaintiff’s request for
remedies not available under the IDEA does not remove the
claim from being subject to exhaustion. Batchelor, 759 F.3d at
276-78. Thus, Wellman’s request for damages unavailable
under the IDEA or in the administrative forum does not exempt
his claims from the exhaustion requirement.




                               14
answer to both of these questions is yes, then it is unlikely that
the complaint is about the denial of a FAPE. Id. By contrast,
when the answer to both of these questions is no, then the
complaint probably concerns a FAPE. Id.

      In addition to these two questions, the Court identified
one additional consideration:

       A further sign that the gravamen of a suit is the
       denial of a FAPE can emerge from the history of
       the proceedings. In particular, a court may
       consider that a plaintiff has previously invoked
       the IDEA’s formal procedures to handle the
       dispute . . . . A plaintiff’s initial choice to pursue
       that process may suggest that she is indeed
       seeking relief for the denial of a FAPE—with the
       shift to judicial proceedings prior to full
       exhaustion reflecting only strategic calculations
       about how to maximize the prospects of such a
       remedy. Whether that is so depends on the facts
       . . . . [b]ut prior pursuit of the IDEA’s
       administrative remedies will often provide
       strong evidence that the substance of a plaintiff’s
       claim concerns the denial of a FAPE, even if the
       complaint never explicitly uses that term.

Id. at 757.

        Thus, under Fry, we must focus on the “gravamen of the
plaintiff’s suit.” Fry, 137 S. Ct. at 748; see also id. at 752 (“[A]
court should look to the substance, or gravamen, of the
plaintiff’s complaint.”); id. at 755 (“What matters is the crux—
or, in legal speak, the gravamen—of the plaintiff’s complaint .




                                15
. . .”). Black’s Law Dictionary defines gravamen as “[t]he
substantial point or essence of a claim, grievance, or
complaint.”      Black’s Law Dictionary (10th ed. 2014).
Although the Supreme Court’s language spoke in terms of the
“complaint,” which could mean that the Court was not
endorsing a claim-by-claim approach, this is not how we
understand the opinion. The word “gravamen” bespeaks
concern with both individual claims as well as the collection of
claims called a complaint. See id. To apply the Fry test
without consideration of the actual claims could result in
situations where claims that are included in a complaint
because they involve the same parties or course of events but
do not involve the provision of a FAPE get swept up and forced
into administrative proceedings with claims that are seeking
redress for a school’s failure to provide a FAPE. Although
these administrative proceedings ensure that FAPE claims are
first reviewed by agencies with the appropriate subject matter
expertise, these agencies do not employ similar expertise when
it comes to claims that do not involve the provision of a FAPE.
For example, if a student who was challenging the sufficiency
of her IEP also happened to be physically assaulted on the bus
going to school, one could envision the plaintiff bringing a
single complaint with different claims arising from her school
experience, one of which seeks relief for physical injuries
sustained while on the school bus and which has nothing to do
with her access to a FAPE and IDEA relief. Surely the Court
would not have envisioned that such a claim would be subject
to the IDEA’s procedural requirements, nor would subjecting
such a claim to these procedural requirements necessarily
result in any benefit to either the parties or court reviewing the
matter at a later date. Put differently, claims related to the
implementation of an IEP involve the provision of a FAPE and
are subject to exhaustion, see J.M. v. Francis Howell Sch. Dist.,




                               16
850 F.3d 944, 951 (8th Cir. 2017) (“[Plaintiff] also claims the
administrative process would not have addressed all her
claims. This, however, does not excuse exhaustion. Although
the administrative process may not address all claims, this
court has held [that] exhaustion is not futile because it would
allow the agency to develop the record for judicial review and
apply its expertise to the plaintiff’s claims to the extent those
claims are related to implementation of the IEP.” (citations and
internal quotation marks omitted)), but claims that go beyond
the student’s educational experience are not, see J.S. III v.
Houston Cty. Bd. of Educ., No. 15-14306, 2017 WL 4351313,
at *4-5 (11th Cir. Oct. 2, 2017) (isolation of a severely disabled
and cognitively impaired student could give rise to a FAPE
claim for failing to follow his IEP but isolating him for no
educational purpose is a form of discrimination similar to the
type that could be brought by an institutionalized adult and thus
is cognizable as an ADA claim and not “merely a FAPE
violation under the IDEA”). In short, under Fry, a court must
review both the entire complaint and each claim to determine
if the plaintiff seeks relief for the denial of a FAPE.

       Application of the Fry framework to Wellman’s entire
complaint and each of his claims shows that his grievances all
stem from the alleged failure to accommodate his condition
and fulfill his educational needs. A review of his detailed
factual allegations shows that the conduct about which he
complains would not have occurred outside the school setting
and that a nonstudent could not (and would not) have “pressed
essentially the same grievance.” Fry, 137 S. Ct. at 756. Most
of the more than thirty paragraphs within the section of the
complaint entitled “Statement of Facts” set forth Wellman’s
requests for specific accommodations to help him achieve the
level of learning expected from him, such as removing him




                               17
from his German and physical education classes, providing
him with extra study halls, tutors, and additional time to
complete assignments, and conveying to the teachers and
football coach that he not engage in any unsuitable activity that
might aggravate his symptoms and condition. Wellman alleges
that, rather than being provided with these accommodations,
he was taken out of study hall so he could take exams, given
too much work and denied extra time to complete it, had
apathetic homebound instructors, and was not given support to
address the impact of his concussive condition on his ability to
learn.

       These factual allegations are expressly incorporated by
reference into each count of the complaint, and each count
includes additional allegations. In Count I, which seeks relief
under the ADA and Rehabilitation Act, Wellman reiterates the
allegation that the school did not make accommodations for his
educational and physical activities while at school and he
specifically asserts that “[t]he failure to provide
accommodations made [his] inability to survive in the school
inevitable” and that he was “effectively excluded from school.”
App. 138, 39. In short, in this count, he complains about the
educational experience that he had while in the School
District. 8 This is not the sort of claim that would be brought
by a nonstudent against a non-school facility. Thus, under Fry,


       8
         At oral argument, Plaintiff’s counsel essentially
acknowledged that Count I concerns the denial of a FAPE.
Oral Arg. Recording at 2:00-3:30, Wellman v. Butler Area Sch.
Dist., No. 15-3394 (3d Cir. Nov. 7, 2017), available at
www2.ca3.uscourts.gov/oralargument/audio/15-3394
WellmanJrv.ButlerAreaSchooletal.mp3.




                               18
this claim seeks relief under the IDEA and is subject to
exhaustion.

        Count II is also subject to exhaustion. Count II seeks
relief under the ADA and Rehabilitation Act due to the
school’s alleged failure to ensure that Wellman was not
exposed to danger after the initial head injury he sustained
during physical education class but was still permitted to
participate in school activities. In this regard, the complaint
alleges that Wellman’s mother asked that Wellman be given
the accommodations of not being required to “suit[] up or [be]
exposed to danger of playing conditions, but was still allowed
to attend the [football] game.” App. 140. Thus, football was
an extracurricular school activity that Wellman’s mother
wanted him to experience safely. 9 While there could be a
scenario in which these events may not relate to a FAPE, as
pleaded, it appears that the failure to ensure that Wellman was
not placed in a dangerous situation at an extracurricular activity
was offered as another example of how the school failed to
accommodate him so that he could benefit from his educational
experience. App. 142 (alleging that “[a]s a consequence of the
deliberate indifference of the School District to Wellman’s
need for accommodations, Wellman was exposed to an
extremely dangerous situation for a young man trying to
recover from a concussion. . . . The [concussion he suffered
while on the sidelines was] due to the deliberate indifference
of the School District to Wellman’s need for
accommodations”). Because these factual allegations are

       9
         His mother also complained about how the school
treated students who suffered sports-related injuries and that
the players were pressured to ignore their injuries and to
participate.




                               19
intertwined with his complaints about the school’s failure to
accommodate his educational needs, which include his
participation in extracurricular activities, see S.H. v. State-
Operated Sch. Dist. of Newark, 336 F.3d 260, 264 (3d Cir.
2003) (observing that an IEP “must detail those special
education services [that] . . . allow the child to progress in both
the general curriculum and participate in extracurricular
activities . . .” (citing 20 U.S.C. 1414(d)(1)(A)(iii))), and
because such allegations could not be brought by a nonstudent
or outside the school setting, the claim set forth in Count II
seeks relief for failing to provide a FAPE and is subject to
exhaustion.

        Count III, which alleges a claim under § 1983, also
seeks relief for failing to provide a FAPE. It incorporates all
of the factual allegations within the complaint and further
asserts that the School District’s special education department
refused to provide Wellman services, and that the school
treated him differently because his claim for such services was
based upon the concussions he sustained during school
activities, which the principal did not view as a disabling
condition. Again, his grievance is that he was unable to access
educational services, which is something only a student at
school can seek. Thus, this is not a claim that could have been
brought outside a school setting or by a nonstudent and, as a
result, it is a claim that also seeks relief for failing to provide a
FAPE and is subject to exhaustion.

       In summary, both the entire pleading and each
individual count show that Wellman seeks relief because the
School District failed to provide him with academic
accommodations that would have allowed him to succeed and
remain enrolled in the school despite his injury. These




                                 20
allegations concern the denial of a FAPE, see Fry, 137 S. Ct.
at 753-54 (explaining that the FAPE requirement entitles a
child to “meaningful access to education based on her
individual needs” (citation and internal quotation marks
omitted)), and foreclose the conclusion that Wellman could
have brought the same complaint against another public
facility or that an adult at the school could have brought the
same complaint.

       The history of the proceedings also show that the
gravamen of Wellman’s suit seeks relief for the denial of a
FAPE. As the Fry Court noted, “prior pursuit of the IDEA’s
administrative remedies will often provide strong evidence that
the substance of a plaintiff’s claim concerns the denial of a
FAPE, even if the complaint never explicitly uses that term.”
137 S. Ct. at 757. Here, Wellman’s parents filed a due process
complaint against the School District requesting a hearing, an
IEP, and compensatory education for two years based upon the
same conduct alleged in the instant complaint. Under Fry,
Wellman’s pursuit of administrative remedies is further
evidence that his complaint concerns the denial of a FAPE.

       Therefore, considering Wellman’s complaint, including
each count therein, and the history of the proceedings, we
conclude that the gravamen of Wellman’s complaint is the
denial of a FAPE and that the District Court correctly
concluded that Wellman’s complaint is the type that would
ordinarily require administrative exhaustion.

      Here, however, Wellman’s parents signed a settlement
agreement that explicitly released all claims that were or could
have been pursued in the due process proceeding pursuant to
the IDEA or any other federal or state statute. Wellman




                              21
concedes that he released all claims within the jurisdiction of
the administrative hearing officer. All of his claims for relief
were based upon the denial of a FAPE. 10 As a result, since his
complaint seeks relief for the denial of a FAPE, and he has
conceded that he released all claims related to the denial of a
FAPE, he has no claims to present to an administrative hearing
officer and thus no claims to exhaust. Wellman therefore has
no basis upon which relief can be granted, and so his complaint
must be dismissed with prejudice.

       10
           Even if we did not conclude that all of the claims in
his complaint seek relief under the IDEA, the language of the
release seems to convey a general release and would have
released the claims that did not seek relief for failing to provide
a FAPE. The Settlement Agreement states that the Wellmans
“release[d], relinquish[ed], and discharge[d] the Butler School
District . . . from all causes of action, and damages of any
nature, . . . which were pursued in the above-referenced case or
which could have been pursued in the above reference case,
pursuant to . . . any . . . Federal or State statute . . . .” App. 101.
While Wellman could try to argue that he could not have
brought a claim for damages under the ADA, Rehabilitation
Act, and § 1983 in the administrative case, it is unlikely he
would succeed in making such an argument since all of the
injuries he claims to have suffered, such as anxiety, severe
emotional distress, embarrassment, and mental illness stem
from educational deprivations that were or could have been the
subject of the administrative proceedings and hence his ability
to seek damages for those injuries has been released. And, as
stated previously, the fact that he could not recover the
compensatory damages he now seeks in this lawsuit as part of
the administrative proceedings does not convert his claims into
non-IDEA claims. See Batchelor, 759 F.3d at 276-78.




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                             V

       For the foregoing reasons, we will vacate the District
Court’s order dismissing the complaint without prejudice and
remand with instructions to dismiss the complaint with
prejudice.




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