          United States Court of Appeals
                     For the Eighth Circuit
                 ___________________________

                         No. 12-1112
                 ___________________________

J.B., by and through his next friends Kevin Bailey and Laurie Bailey;
                    Kevin Bailey; Laurie Bailey

               lllllllllllllllllllll Plaintiffs - Appellants

                                    v.

                    Avilla R-XIII School District

                lllllllllllllllllllll Defendant - Appellee
                  ___________________________

                         No. 12-1113
                 ___________________________

A.L.A., by and through his next friend Laura Liberty; Laura Liberty

               lllllllllllllllllllll Plaintiffs - Appellants

                                    v.

                    Avilla R-XIII School District

                lllllllllllllllllllll Defendant - Appellee
                               ____________

              Appeal from United States District Court
            for the Western District of Missouri - Joplin
                          ____________

                    Submitted: January 16, 2013
                       Filed: July 24, 2013
                         ____________
Before BYE, MELLOY, and SMITH, Circuit Judges.
                           ____________

BYE, Circuit Judge.

       J.B., by and through his parents, Kevin and Laurie Bailey, J.B.’s parents
themselves, A.L.A., by and through his guardian, Laura Liberty, and Laura Liberty
herself (collectively “Plaintiffs”) filed suit against the Avilla R-XIII School District
(“District”), alleging violations of the Americans with Disabilities Act (ADA), Title
42 U.S.C. § 12131 et seq., and section 504 of the Rehabilitation Act of 1973
(“Rehabilitation Act”), 29 U.S.C. §§ 706 and 794a. The District moved for summary
judgment. The district court,1 concluding the Plaintiffs had failed to exhaust their
administrative remedies, granted the motion. The Plaintiffs now appeal. We affirm.

                                           I

       At all times pertinent to this case, J.B. and A.L.A. attended schools in the
District. J.B. and A.L.A. each have a disability. Both also had an individualized
education program (“IEP”). J.B.’s parents participated in the design of J.B.’s IEP.
A.L.A.’s guardian similarly participated in the design of A.L.A.’s IEP. Both J.B.’s
parents and A.L.A.’s guardian, however, had ongoing disputes with the District over
the manner in which the District implemented the IEPs.

       While the disputes were ongoing, J.B.’s parents filed a complaint with the
United States Department of Education Office of Civil Rights (“OCR”) about the
District’s disability discrimination grievance resolution process, averring the process
was inadequate for addressing parents’ complaints about IEP issues. Appellants’ App.
18. The OCR investigated and found the process adequate for addressing IEP-related

      1
        The Honorable Sarah H. Hays, United States Magistrate Judge for the Western
District of Missouri, to whom the case was referred for final disposition by consent
of the parties pursuant to 28 U.S.C. § 636(c).

                                          -2-
complaints, but inadequate to handle complaints regarding other forms of disability
discrimination. Id. at 23.

       Under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C.
§§ 1400-1491, a parent dissatisfied with the manner in which an IEP is implemented
may file a due process complaint with the local state agency. 20 U.S.C. § 1415(i)(2).
The Plaintiffs, however, did not file IDEA due process complaints and instead jointly
filed suit in district court. They filed two disability discrimination claims alleging the
District had discriminated against J.B. and A.L.A. in violation of the ADA and the
Rehabilitation Act, by failing to adequately implement each child’s IEP or establish
an adequate grievance resolution process for disability discrimination complaints.
Appellants’ Supplemental App. 3. As relief for those claims, the Plaintiffs seek
compensatory education, compensatory damages, and attorney’s fees. Id. at 4. The
Plaintiffs also filed two claims alleging J.B.’s parents and A.L.A.’s guardian had paid
and would continue to pay education-related expenses for materials and services
which should have been borne by the District, for which they seek money damages
and attorneys’ fees. Id. at 5-6. Upon the District’s motion, the district court severed
the claims of J.B. and J.B.’s parents from those of A.L.A. and A.L.A.’s guardian.

       The District moved for summary judgment in each case, which the district court
granted. The district court concluded all of the claims related to the implementation
of IEPs. As such, the district court dismissed the claims, further concluding the
Plaintiffs had been required to go through the IDEA due process complaint procedures
before filing suit under the ADA and the Rehabilitation Act. The Plaintiffs appealed
and the cases were reconsolidated.

                                            II

      The central issue in these reconsolidated cases is whether the Plaintiffs were
required to exhaust their administrative remedies under the IDEA before filing their
ADA and Rehabilitation Act claims in district court. We review de novo the grant of
a motion for summary judgment and the underlying issue of whether exhaustion of

                                           -3-
administrative remedies was required. Brown v. J.B. Hunt Transp. Servs., Inc., 586
F.3d 1079, 1083 n.4 (8th Cir. 2009) (citing Hutson v. Wells Dairy, Inc., 578 F.3d 823,
825 (8th Cir. 2009)).

       In the IDEA, Congress established procedural safeguards to ensure individuals
with disabilities will have the opportunity to obtain a free appropriate public education
(FAPE). 20 U.S.C. § 1415(a). The primary tool for implementing the aims of the
IDEA is the IEP, which “tailor[s] the statutorily required ‘free appropriate public
education’ to each child’s unique needs.” Honig v. Doe, 484 U.S. 305, 311 (1988)
(quoting 20 U.S.C. § 1414(a)(5)). The other safeguards “include . . . an opportunity
to present complaints concerning any aspect of the local agency’s provision of a free
appropriate public education; and an opportunity for ‘an impartial due process
hearing’ with respect to any such complaints.” Id. at 311-12 (quoting 20 U.S.C.
§§ 1415(b)(1), (2)). A party aggrieved by the outcome of an IDEA due process
hearing may challenge the outcome before the state educational review agency. 20
U.S.C. § 1415(g)(1). The outcome of the administrative review hearing may then be
disputed in district court. 20 U.S.C. § 1415(i)(2)(A). However, before parties may
bring a claim in district court under a different statute for which they seek relief which
is also available under the IDEA, the parties must first exhaust the administrative
remedies under the IDEA. 20 U.S.C. § 1415(l). Section 1415(l) of the IDEA sets
forth:

      Nothing 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.A. § 12101 et seq.],
      title V of the Rehabilitation Act of 1973 [29 U.S.C.A. § 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) of this section shall be exhausted to the same
      extent as would be required had the action been brought under this
      subchapter.

20 U.S.C. § 1415(l) (emphasis added).

                                           -4-
       The Plaintiffs did not go through the IDEA due process complaint procedures
before filing their ADA and Rehabilitation Act claims in the district court.
Accordingly, the only questions are whether they seek relief available under the IDEA
and, if so, whether an exception to the IDEA’s exhaustion requirement applies.

                                           A

      The Plaintiffs first contend their claims are not subject to the exhaustion
requirement of 20 U.S.C. § 1415(l) because they do not seek relief which is available
under the IDEA.2 We find this contention to be without merit.

       The Plaintiffs seek relief available under the IDEA for their disability
discrimination claims. Although the Plaintiffs base those claims on allegations the
District failed to develop an adequate disability discrimination grievance resolution
process, they also allege the District failed to adequately implement J.B.’s and
A.L.A.’s IEPs as a basis for the claims. For those claims, the Plaintiffs seek attorneys’
fees, compensatory education, and compensatory damages. Compensatory damages
are not available through the IDEA. Heidemann v. Rother, 84 F.3d 1021, 1033 (8th
Cir. 1996). Compensatory education, however, is. Birmingham v. Omaha Sch. Dist.,
220 F.3d 850, 856 (8th Cir. 2000). As are attorneys’ fees. 20 U.S.C. § 1415 (i)(3)(B).


      2
        For the first time on appeal, the Plaintiffs urge us to adopt a “relief-centered”
test to determine whether claims are subject to the IDEA exhaustion requirement,
assert claims of psychological harm, and characterize their claims as constitutional
violations. We do not address these issues in this opinion. See, e.g., Lopez v. Tyson
Foods, Inc., 690 F.3d 869, 875 (8th Cir. 2012) (holding issues not raised before the
district court are not preserved for appeal). They also argue the court should rule
whether the IDEA’s exhaustion requirement is jurisdictional or a claims-processing
rule. 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. See Muskrat v. Deer Creek Pub. Sch., 715 F.3d 775, 784-85 (10th
Cir. 2013) (noting the court’s obligation to independently consider waiver of the
IDEA’s exhaustion requirement depends on whether it is jurisdictional in nature and
does not arise where exhaustion was raised below and on appeal).

                                          -5-
        The Plaintiffs also seek relief available under the IDEA for their claims based
on payment of education-related materials and services. In School Committee of
Burlington, Massachusetts v. Department of Education of Massachusetts, 471 U.S.
359, 370-71 (1985), the Supreme Court considered whether the potential relief
available under the Education of the Handicapped Act (EHA), the predecessor to the
IDEA, “includes reimbursement to parents for private school tuition and related
expenses.” Id. at 367. The Court noted that a court reviewing the outcome of EHA
administrative proceedings was authorized to award the relief it deemed appropriate.
Id. at 369; see also 20 U.S.C. § 1415(i)(2)(C)(iii). Reasoning reimbursement did not
constitute money damages for the purposes of the EHA as it was merely the payment
of expenses the school district should have paid all along, the Court held
reimbursement to be an available form of relief under the EHA. Burlington, 471 U.S.
at 370-71.

        Notably, Burlington concerned a claim only for reimbursement of tuition paid
at a private institution and related expenses. Id. at 367. However, other circuits which
have considered the issue post-Burlington have held reimbursement available for
private educational services beyond tuition at a private institution. See Payne v.
Peninsula Sch. Dist., 653 F.3d 863, 877 (9th Cir. 2011) (“If the measure of a plaintiff's
damages is the cost of counseling, tutoring, or private schooling—relief available
under the IDEA—then the IDEA requires exhaustion.”), cert. denied, 132 S. Ct. 1540
(2012); Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 124 (1st Cir. 2003)
(“[E]quitable remedies that involve the payment of money, such as reimbursements
to parents for expenses incurred on private educational services to which their child
was later found to have been entitled, remain available[.]”); Polera v. Bd. of Educ. of
Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002) (holding
reimbursement for private tutoring available under the IDEA). We agree with these
circuits that reimbursement for private educational services, to which a student is
entitled under the IDEA and which should have been borne by a school district, is a
form of relief available under the IDEA.




                                          -6-
     The Plaintiffs seek relief available under the IDEA for each of their claims.
Accordingly, they were required to first exhaust the administrative remedies of the
IDEA unless an exception to the requirement applies.

                                           B

       “Courts recognize only three exceptions to the exhaustion requirement,
including futility, inability of the administrative remedies to provide adequate relief,
and the establishment of an agency policy or practice of general applicability that is
contrary to law.” Blackmon ex rel. Blackmon v. Springfield R-XII Sch. Dist., 198
F.3d 648, 656 (8th Cir. 1999) (quoting Urban ex rel. Urban v. Jefferson Cnty. Sch.
Dist. R-1, 89 F.3d 720, 724 (10th Cir. 1996)).

       “[A]pplication of the exhaustion doctrine is ‘intensely practical.’” Bowen v.
City of New York, 476 U.S. 467, 484 (1986) (quoting Mathews v. Eldridge, 424 U.S.
319, 331 n.11 (1976)). A court deciding whether to waive exhaustion should be
“guided by the policies underlying the exhaustion requirement.” Id. Regarding those
policies, the Supreme Court explained:

      Exhaustion is generally required as a matter of preventing premature
      interference with agency processes, so that the agency may function
      efficiently and so that it may have an opportunity to correct its own
      errors, to afford the parties and the courts the benefit of its experience
      and expertise, and to compile a record which is adequate for judicial
      review.

Id. (quoting Weinberger v. Salfi, 422 U.S. 749, 765 (1975)). “[J]udges are not trained
educators,” E.S. v. Indep. Sch. Dist. No. 196, 135 F.3d 566, 569 (8th Cir. 1998), and
we are cautioned not to substitute our “own notions of sound educational policy for
those of the school authorities which [we] review.” Bd. of Educ. v. Rowley, 458 U.S.
176, 205-06 (1982).




                                          -7-
                                      1. Futility

       The Plaintiffs first contend exhaustion would have been futile, arguing the
adequacy of the District’s disability discrimination grievance resolution process could
not have been addressed in an IDEA due process hearing. Although the
administrative venue may not have been able to address the grievance resolution
process, we disagree exhaustion would have been futile. Exhaustion would have
allowed the agency to develop the record for judicial review and apply its expertise
to the Plaintiffs’ claims to the extent those claims are related to implementation of
J.B.’s and A.L.A.’s IEPs, what kind of compensatory education, if any, would have
been appropriate, and whether the services for which the Plaintiffs seek
reimbursement are those to which J.B. and A.L.A. are entitled under the IDEA.

                               2. Inadequate Remedy

      The Plaintiffs next contend IDEA remedies are inadequate, arguing the
Missouri statute of limitations for special education claims has now expired and they
could not have received the compensatory damages they seek through the IDEA due
process complaint procedures.

       The Plaintiffs’ statute of limitations argument is unavailing. We have
previously held that for an individual showing no reason why claims could not be
brought within the statutory limitations period, the expiration of the period reflects
only on the individual’s choice and not the adequacy of the remedy. See United States
v. Lurie, 207 F.3d 1075, 1077-78 (8th Cir. 2000) (considering a 28 U.S.C. § 2255
petition). Here, the Plaintiffs have shown no reason why they could not have filed
IDEA due process complaints within the limitations period. Accordingly, the
Plaintiffs’ failure to timely avail themselves of the IDEA due process complaint
procedures does not render the relief available in those procedures inadequate.

       The Plaintiffs’ compensatory damages argument is also unavailing in this case.
It is worth noting the Plaintiffs seek compensatory education, reimbursement for IEP-

                                         -8-
related expenses, and attorneys’ fees in addition to compensatory damages. We have
not previously addressed the specific issue of whether a plaintiff is excused from
exhausting IDEA administrative remedies when asserting a claim based on both the
denial of a FAPE and other grounds, for which some of the sought relief is unavailable
under the IDEA. We have, however, previously noted (albeit in dicta) that “the
IDEA’s exhaustion requirement remains the general rule, regardless of whether the
administrative process offers the particular type of relief that is being sought.” M.P.
ex rel. K. v. Indep. Sch. Dist. No. 721, 326 F.3d 975, 980 (8th Cir. 2003). In addition,
we have previously required the exhaustion of administrative remedies with regard to
other statutes, even where the precise form of relief sought by the plaintiff was not
available in the administrative venue. See King v. Iowa Dep’t of Corr., 598 F.3d
1051, 1052 (8th Cir. 2010) (concerning § 1983 claims); Foulk v. Charrier, 262 F.3d
687, 695 (8th Cir. 2001) (concerning claims under the Prison Litigation Reform Act).
There may be other circumstances in which this exception applies to a plaintiff
seeking relief both available and unavailable under the IDEA for a claim based on
grounds both related and unrelated to the denial of a FAPE. On this record, however,
where some of the relief the Plaintiffs seek is available under the IDEA and
exhaustion would not be futile, the inadequate remedy exception to the exhaustion
requirement does not apply.

                             3. Practice Contrary to Law

      The Plaintiffs finally contend they should be excused from exhausting the
IDEA’s administrative remedies because the District’s disability discrimination
grievance resolution process is contrary to law. The Plaintiffs focus on the OCR’s
finding that the grievance resolution process was inadequate for addressing disability
discrimination complaints unrelated to implementing IEPs. Appellants’ App. 23.

       We do not automatically excuse exhaustion whenever a claimant challenges the
validity of agency proceedings. Bowen, 476 U.S. at 485. A plaintiff must also show
the alleged infirmity in the proceedings is such that it would not further the underlying
purposes of exhaustion to require it. Ass’n for Cmty. Living in Colorado v. Romer,

                                          -9-
992 F.2d 1040, 1044 (10th Cir. 1993) (“The plaintiffs must still show that the policy
is contrary to law and that the underlying purposes of exhaustion would not be
served.”); Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1304 (9th Cir. 1992).

      Here, the Plaintiffs have failed to show exhaustion of their IDEA remedies
would not have served the purposes of the requirement. Two of those purposes are
to develop the factual record and obtain the benefit of the agency’s expertise with
regard to IEP-related claims. The OCR report gives no indication the District’s
grievance resolution process was inadequate for addressing IEP-related claims.
Accordingly, the “practice contrary to law” exception also does not apply.

                                            C

       At the last, the Plaintiffs urge us to dismiss those of their claims which required
exhaustion and remand the remaining claims to the district court. That is not an
option here. The Plaintiffs, as masters of the complaint, have pled their claims such
that each claim required exhaustion of the IDEA’s administrative remedies.

                                           III

      The judgment of the district court is affirmed.
                     ______________________________




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