                                                                   FILED
                                                       United States Court of Appeals
                                                               Tenth Circuit

                                   PUBLISH                 September 15, 2015
                                                           Elisabeth A. Shumaker
                   UNITED STATES COURT OF APPEALS              Clerk of Court

                                 TENTH CIRCUIT


 A.F., by and through her parent and
 next friend, CHRISTINE B.,

       Plaintiff - Appellant,

 v.
                                                     No. 14-2139
 ESPAÑOLA PUBLIC SCHOOLS;
 BOARD OF EDUCATION FOR THE
 ESPAÑOLA PUBLIC SCHOOL
 DISTRICT,

       Defendants - Appellees.


                 Appeal from the United States District Court
                        for the District of New Mexico
                    (D.C. No. 1:12-CV-01166-RB-KBM)


Nancy L. Simmons of Law Offices of Nancy L. Simmons, P.C., Albuquerque,
New Mexico, for Plaintiff-Appellant.

Elizabeth L. German (Mary Keleher Castle, with her on the brief), German &
Associates, LLC, Albuquerque, New Mexico, for Defendants-Appellees.


Before BRISCOE, Chief Judge, MURPHY and GORSUCH, Circuit Judges.


GORSUCH, Circuit Judge.
      The Individuals with Disabilities Education Act requires public school

districts that accept federal funding to furnish a “free appropriate public

education” to their disabled students. 20 U.S.C. § 1412(a)(1). Sometimes, of

course, disputes arise over whether the school district is doing the job it’s agreed

to do. This is one of those cases. Christine B., the mother of a student known in

these proceedings as A.F., contends that the school district failed to address

appropriately her daughter’s disabilities in the educational program it formulated

for her.

      When a dispute like this emerges, the parent and student must file an

administrative complaint with local school officials. See id. § 1415(b)(6),

(f)(1)(A). Then the parties are instructed by statute to hold a “[p]reliminary

meeting” with an eye toward talking through the grievance and trying for an early

resolution. Id. § 1415(f)(1)(B)(i). They can also choose to resolve their

differences through mediation. Id. § 1415(e). But if no settlement satisfactory to

both sides comes to pass, the parties must proceed to a sort of trial, what IDEA

calls an “[i]mpartial due process hearing.” Id. § 1415(f). If the hearing still

doesn’t satisfy parent and student, an administrative appeal may follow. Id.

§ 1415(g)(1). If the parent and student still remain “aggrieved by the findings

and decision made” after this appeal process, they may then (and only then)

“bring a civil action” in federal court. Id. § 1415(i)(2)(A). At the same time, if

the state fails to provide an appeals process, a party who is aggrieved by the

                                          2
findings and decision in the subsection (f) trial-like proceeding may also proceed

to court. Id. Plainly in all this, Congress sought to ensure access to courts for

IDEA claims but only failing the success of the many alternative dispute

opportunities it provided.

      This case ended almost before it began. Christine B. filed her

administrative complaint, just as she had to. But before any hearing could be

held, she sought to mediate her dispute. And the choice proved fruitful, for in the

end the parties signed a settlement agreement. Indeed, as a result of the

settlement, Christine B. asked the administrative agency to dismiss her IDEA

claims with prejudice, something the agency duly did.

      But after ending her suit she sought to begin it again. Despite the

satisfactory result she received through mediation, Christine B. later took to mind

the thought she might sue — and she did. To be sure, her lawsuit didn’t seek to

press a claim under IDEA, itself a tacit acknowledgment that her mediated

settlement precluded that option. Instead, she sued under the Americans with

Disabilities Act, the Rehabilitation Act, and 42 U.S.C. § 1983, though the

allegations in her federal court complaint and those in her original IDEA

administrative complaint are nearly identical: both allege that A.F. suffers from

the same disabilities and both contend that the school district failed to take her

disabilities into account in her educational program. Agreeing with the school

district that Christine B. failed to exhaust available administrative remedies, the

                                          3
district court dismissed her lawsuit and it is this result she now asks us to

overturn.

      There’s no doubt that it’s often possible to pursue claims under IDEA and

other federal statutes seriatim just as Christine B. wishes to do. Indeed, Congress

expressly guaranteed as much, stating that IDEA’s promises and procedures don’t

necessarily extinguish one’s “rights . . . and remedies” under other federal laws

like the ADA and Rehabilitation Act. 20 U.S.C. § 1415(l). In fact, Congress

added this language to clarify its disagreement with the Supreme Court’s

suggestion in Smith v. Robinson, 468 U.S. 992 (1984), that a claim under IDEA

(or, really, its predecessor statute, the Education of the Handicapped Act) should

be the exclusive federal statutory remedy for any education-related complaint by

disabled public school students.

      But Congress didn’t stop there. After emphasizing that IDEA doesn’t

always preclude relief under laws like the ADA and Rehabilitation Act, Congress

added this caveat:

      except that before the filing of a civil action under such laws seeking relief
      that is also available under [IDEA], the procedures under subsections (f)
      and (g) shall be exhausted to the same extent as would be required had the
      action been brought under [IDEA].

20 U.S.C. § 1415(l). So it is that, to bring a lawsuit under federal law that

“seek[s] relief that is also available under” IDEA, you first must exhaust the

procedures set forth in subsections (f) and (g) “to the same extent as would be


                                           4
required had the action been brought under” IDEA. And, as we’ve seen, to “bring

a civil action” under IDEA you must be “aggrieved by the findings and decision

made” after the administrative appeals process (or trial process if no appeal

process is provided). Id. § 1415(i)(2)(A).

      It’s here where Christine B. faces a problem, just as the district court

recognized. She accepts that her current lawsuit “seek[s] relief that is also

available under” IDEA and thus triggers subsection (l)’s exhaustion requirement.

To be sure, her lawsuit seeks damages — a remedy that’s “ordinarily unavailable

in administrative [IDEA] hearings.” Cudjoe v. Indep. Sch. Dist. No. 12, 297 F.3d

1058, 1066 (10th Cir. 2002). But some time ago this court held that the

“dispositive question” when assessing the applicability of subsection (l)’s

exhaustion requirement isn’t whether the plaintiff seeks damages or some other

particular remedy, but “whether the plaintiff has alleged injuries that could be

redressed to any degree by the IDEA’s administrative procedures and remedies.”

Padilla ex rel. Padilla v. Sch. Dist. No. 1, 233 F.3d 1268, 1274 (10th Cir. 2000)

(emphasis added). Neither does Christine B. ask us to revisit Padilla or otherwise

dispute that the injuries she seeks to redress in her lawsuit are indeed capable of

being redressed to some degree by IDEA’s administrative procedures. And with

that, with an admission of subsection (l)’s applicability, it’s very hard to see how

she can satisfy it. Subsection (l) required her to exhaust the procedures set forth

in subsections (f) and (g) to the same extent necessary to bring a civil action

                                          5
under IDEA itself. And to bring such an action she must be able to show that

she’s “aggrieved by the findings and decision” of the administrative trial

authorities described in subsection (f) or the administrative appellate authorities

described in subsection (g). Something she manifestly is not.

      Coming at the point from a different angle, Christine B.’s problem is that

there’s only one exhaustion rule for IDEA claims and other federal claims seeking

relief also available under IDEA. It’s clear Christine B. cannot bring an IDEA

lawsuit in federal court after choosing to settle her IDEA claims and agreeing to

their dismissal with prejudice. She even tacitly concedes this by declining any

attempt to raise them here. And from this it follows ineluctably that an ADA or

Rehabilitation Act or § 1983 lawsuit seeking the same relief is also barred.

      Christine B. responds this way. She notes that subsection (f) permits the

parties to opt out of the trial-like administrative process and pursue mediation

under subsection (e). See id. § 1415(f)(1)(B)(i). So by mediating her IDEA claim

under subsection (e), she says, she necessarily satisfied the procedures described

in subsection (f). And given that no appeal is necessary or even available after a

mediated settlement, subsection (g) is beside the point. It’s in this way, she

argues, that she exhausted the administrative procedures available to her. Our

dissenting colleague seems to adopt this same line of reasoning too.

      The problem is this vision of exhaustion just isn’t the one embodied in the

plain text of the statute. If subsection (l) said that to bring a federal lawsuit under

                                           6
the ADA or Rehabilitation Act or Section 1983 you merely had to “satisfy the

administrative procedures under subsection (f),” we might be able to say that,

because subsection (f) references subsection (e) and its provision of mediation as

an alternative means of dispute resolution, Christine B. is free and clear to pursue

her lawsuit. But that’s not what subsection (l) says. It says that to bring a civil

action under federal law seeking the same relief IDEA supplies, you must exhaust

the procedures in subsections (f) and (g) “to the same extent” as you must to

bring a civil action under IDEA itself. And to earn the right to bring a civil

action under IDEA, it’s just an implacable fact that you must qualify under

subsection (i) as a party “aggrieved by the findings and decision” of

administrative trial or appellate authorities. And neither Christine B. nor the

dissent even attempts to suggest she qualifies as that.

      Without statutory text to help her, Christine B. urges us to examine

precedent. And it’s true enough that otherwise unlikely statutory interpretations

sometimes look more attractive when backed by the force of precedent we’re

obliged to obey. But that’s just not the case here either. Christine B. directs us

first to Ellenberg ex rel. S.E. v. New Mexico Military Institute, 478 F.3d 1262

(10th Cir. 2007). But Ellenberg held that subsection (l)’s exhaustion requirement

didn’t apply to the plaintiff’s federal claims there precisely because IDEA could

“offer[] no relief” for the particular wrongs the plaintiff asserted. Id. at 1280-81.

Here again and by contrast, Christine B. accepts that subsection (l)’s exhaustion

                                           7
requirements apply to all of her federal claims and argues only that she’s satisfied

those requirements — an argument that, as we’ve seen, the statutory text just

can’t bear. Had she contested the applicability of subsection (l) to her case, or

perhaps asked us to revisit Padilla’s expansive view of subsection (l)’s reach, we

might have had a different case. Indeed, there are notes in the dissent that could

be read to suggest arguments along just those lines. But Christine B. has made no

such argument for herself either in the district court or this one.

      Neither does Christine B.’s citation to Muskrat ex rel. J.M. v. Deer Creek

Public Schools, 715 F.3d 775 (10th Cir. 2013), prove more helpful to her cause.

There the parents filed suit under various statutes seeking damages for

“continuing medical consequences” arising from the school district’s alleged

abuse of a “timeout” room. Id. at 785. This court proceeded on the premise that

IDEA could supply some remedial help to address the parents’ concerns and so,

under Padilla, subsection (l)’s exhaustion requirement did apply. But the court

then observed that the parents, through an agreement with the school, had

obtained all the relief IDEA could possibly provide. See id. at 785-86. Given

this, the court held, requiring them to walk through the remaining IDEA

administrative processes — when no more relief could possibly be won under the

statute — would be “futile.” Id. at 786. In doing so, the court accepted that

IDEA’s administrative exhaustion requirement is subject to a traditional futility

exception. See Honig v. Doe, 484 U.S. 305, 327 (1988) (noting in the context of

                                           8
the Education of the Handicapped Act, IDEA’s predecessor, that “parents may

bypass the administrative process where exhaustion would be futile or

inadequate”).

      Quite unlike the parents in Muskrat, however, Christine B. never attempted

a futility argument in this case before the district court issued its final judgment.

Instead (and again) she contended only that she had actually and successfully

exhausted every administrative avenue IDEA specifies for cases like hers. To be

sure, after the district court entered final judgment Christine B. sought to reopen

her case so she could introduce a futility argument. But the district court could

find no justifiable reason for her failure to present the argument before final

judgment and denied the motion to reopen on that basis (among others). See

generally Fed. R. Civ. P. 60(b) (requiring parties to show excusable neglect or the

like). Maybe the result in this case might have been different if the argument had

been presented earlier. Certainly our dissenting colleague seems to take the view

that requiring further administrative litigation in these circumstances would be a

waste of time and effort. See Dissent at 15. But neither Christine B. nor the

dissent offers any ground on which we might reverse the district court, for even

now they do not offer a colorable reason why she failed to present a futility

argument before judgment or attempt to suggest how the district court’s original

judgment committed plain error by failing to address such an argument.




                                          9
      Beyond text and precedent, Christine B. appeals to policy, asserting that by

following the statute’s plain terms we risk “thwart[ing]” the very idea of IDEA, at

least as she conceives of it. In her view it’s simply unimaginable that Congress

might have wanted to compel a claimant to choose between accepting an early

mediated resolution or foregoing that relief in hope of obtaining fuller relief

through federal court litigation months or years later. Our dissenting colleague

voices much the same argument. The problem is that where, as here, “the terms

of the statute are clear and unambiguous, the inquiry ends and we simply give

effect to the plain language of the statute.” United States v. Sprenger, 625 F.3d

1305, 1307 (10th Cir. 2010) (internal quotation mark omitted). Indeed, it is and

ought to be a very rare and highly unusual thing for courts to dismiss the results

dictated by Congress’s plain statutory command on the ground they are

implausible as a matter of “policy.” Yes, there’s scrivener’s error doctrine. See,

e.g., U.S. Nat. Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 462

(1993). But we hardly have anything like that here and neither Christine B. nor

the dissent identifies any recognized doctrine that might allow us to disregard the

plain terms of IDEA’s exhaustion requirement.

      Even beyond this fundamental problem lies another for there is nothing

remotely implausible about the “policy” result the plain language dictates. After

Smith, Congress in subsection (l) surely indicated that it does not regard IDEA as

the sole federal statutory tool available to remedy education-related wrongs. But,

                                          10
as we’ve seen, in responding to Smith Congress also expressly chose to link IDEA

claims to other federal claims through 20 U.S.C. § 1415(l)’s exhaustion

requirement. Christine B. and the dissent may wish this linkage didn’t exist and

we can imagine a rational Congress choosing to sever it. But neither do we find it

hard to imagine a rational Congress choosing to do just what the Supreme Court

in Smith thought Congress had done, funneling all education-related federal

lawsuits into IDEA exclusively. And we can easily imagine a rational Congress

doing exactly what it did after Smith, taking one of many possible intermediate

positions by requiring those who wish to forego a mediated IDEA settlement to

exhaust (or prove futile) all of the administrative grievance processes available to

them before bringing any related federal lawsuit. While we readily admit many

different plausible, indeed respectable, policy choices could be made in this field,

no one has given us any reason to think the policy decision embodied in the text

adopted by Congress is anything less than those things as well. And it’s simply

not our place to displace Congress’s plain and plainly rational directions with our

own.

       Indeed, like most legislation, we don’t doubt that IDEA sought to balance a

number of competing purposes in a whole array of areas (like seeking to help

children and respect local educational authorities) and it’s hardly beyond the pale

to think it did just that here (by allowing for litigation in extreme cases and

encouraging settlement or administrative resolution in most). To permit a litigant

                                          11
to invoke the supposedly “‘plain purpose[s]’ of legislation at the expense of the

terms of the statute itself” risks doing no more “in the end [than] prevent[ing] the

effectuation of congressional intent” by replacing Congress’s compromise with

another of our own devise. Bd. of Governors of the Fed. Reserve Sys. v.

Dimension Fin. Corp., 474 U.S. 361, 373-74 (1986); see also In re Dawes, 652

F.3d 1236, 1243 (10th Cir. 2011) (“[D]eparting from a precise statutory text may

do no more than disturb a carefully wrought legislative compromise.” (internal

quotation mark omitted)).

      Failing all else, Christine B. suggests we should at least remand this case

for further factual development (read: discovery) on the exhaustion question. She

says the district court acted too quickly in dismissing the case in response to the

defendants’ motion for judgment on the pleadings and committed error when it

declined to reopen the case in response to her post-judgment motions seeking time

for further factual development. But like the district court, we see no profit in

this course because it’s clear as a matter of law that she cannot prove exhaustion

given the pleadings she filed in the proceedings below and the arguments she

presented when challenged and given a full and fair chance to respond. And it’s

settled law in this circuit, as elsewhere, that the question whether a party

exhausted administrative remedies may be decided on a motion for judgment on

the pleadings and incorporated materials where the failure to exhaust is clear as a

matter of law. See Allen v. Zavaras, 568 F.3d 1197, 1202 (10th Cir. 2009).


                                          12
      In the end, this is one of those cases where bad argument risks bad law.

It’s possible Christine B. could have won this case without depending on an

argument that calls on this court to mangle plain statutory terms. Maybe

Christine B. could have argued that subsection (l) was inapplicable to her claims.

Maybe she could have argued the futility of further exhaustion. But any potential

argument along lines like those was abandoned long ago. And what argument

that’s left runs headlong into an unambiguous textual command, a command that

yields an entirely plausible policy result, a result that may not be Christine B.’s

first choice or the dissent’s but that no one can (or has even tried to) call absurd

or somehow otherwise unworthy of our respect. And it cannot be the case that the

failure of one party in one case to press potentially winning arguments should

induce this or any court to rewrite Congress’s clear statutory directions for all

cases to come.

      Affirmed.




                                          13
No. 14-2139, A.F. v. Espanola Public Schools, et al.

BRISCOE, Chief Judge, dissenting.

      In this case of first impression, the majority misreads 20 U.S.C. § 1415(l)

to require a litigant, such as plaintiff A.F., to forgo any resolution of her claim

under the Individuals with Disabilities Education Act (IDEA) in order to preserve

the ability to seek remedies in federal court under acts other than the IDEA.

More specifically, a claimant under the IDEA must now, in order to later be able

to file suit in federal court under other related statutes, refuse to settle her IDEA

claim during the preliminary meeting required by 20 U.S.C. § 1415(f)(1)(B) or

the mediation process described in 20 U.S.C. § 1415(e), and must also lose in

both the due process hearing outlined in 20 U.S.C. § 1415(f)(1)(A) and the

subsequent administrative appeal outlined in 20 U.S.C. § 1415(g). This was

clearly not the intent of Congress and, ironically enough, harms the interests of

the children that IDEA was intended to protect. As a result, I respectfully dissent.

                                           I

                                Factual background

      The following facts are derived from A.F.’s complaint. A.F., born on June

2, 1996, suffers from a learning disorder that she identifies as dyslexia. From the

time she was old enough to attend school until the summer of 2012, A.F. attended

the Espanola Public Schools (EPS). When she was in elementary school, A.F.

participated in EPS’s Title I program (focused on educationally at-risk students),

but nevertheless made only minimal progress in reading and spelling. In middle
school, A.F. continued to struggle academically, particularly with language arts,

math, and life science. Indeed, A.F. failed half of her classes during both her

seventh and eighth grade years.

      At the beginning of the 2010-2011 school year, A.F., though old enough to

attend high school, was retained by EPS in the eighth grade and directed to attend

middle school. At the end of the first semester of the 2010-2011 school year, EPS

reconsidered its decision, despite A.F. having failed two courses during the fall

semester, and directed her to attend Espanola Valley High School (EVHS) as a

ninth-grader during the spring semester. When A.F. began attending EVHS, she

and her mother were instructed by EPS that she would attend a segregated credit

recovery class during the morning and would then need to be picked up at noon

each day. When A.F.’s mother objected, EPS agreed to allow A.F. to stay in the

EVHS library until she could ride the bus home at the end of the school day.

During the time that A.F. spent in the EVHS library, she was not provided with

instruction or attention from school staff. At some point during the spring

semester of 2011, EPS changed A.F.’s afternoon schedule and placed her in

additional classes. A.F., however, ultimately failed all but one of those classes.

      A.F. continued to attend EVHS during the 2011-2012 school year.

Although A.F.’s mother asked EPS to evaluate and help A.F., EPS advised her

that it could be between three and six months before A.F. would be evaluated.




                                         2
During the fall semester of 2011, A.F. failed four of six classes and received Ds

in the other two classes.

      In the summer of 2012, A.F., due to the difficulties she encountered with

EPS, transferred to a private school named Victory Faith Christian Academy.

                            A.F.’s due process complaint

      On February 10, 2012, while she was still attending EVHS, A.F. filed with

the New Mexico Public Education Department (NMPED) a special education due

process hearing complaint. The complaint alleged, in pertinent part, that EPS

“ha[d] not evaluated or identified [A.F.] under either the IDEA or Section 504 of

the Rehabilitation Act.” App. at 73. The complaint further alleged that EPS

violated the IDEA by failing to “timely and comprehensively evaluate [A.F.] in

all areas of suspected disability and need from August 2009 to the present,”

“failing to identify [A.F.] as eligible for special education and related services

under the IDEA from August 2009 to the present,” “failing to develop and

implement an IEP [(individualized education program)] for [A.F.] from August

2009 to the present,” and “failing to provide [A.F.’s mother] with information

required in connection with her evaluation requests, including prior written notice

and IDEA procedural safeguards, since the 2008 to 2009 school year.” Id. at 74.

The complaint sought “prospective relief” in the form of “an order requiring the

[EPS]” to (1) “identify [A.F.] as a student eligible for special education,” (2)

“develop an interim IEP for [A.F.],” (3) “obtain comprehensive evaluation(s) of


                                           3
[A.F.] . . . in all areas of need including academic development, emotional

functioning and attentional issues,” (4) “retain an independent Facilitator to

facilitate development of an IEP for [A.F.] and to include independent evaluators

and [A.F.’s] attorney in the FIEP [(final individualized education program)] at

[EPS] expense,” and (5) provide A.F. with “compensatory education and related

services to address areas of need identified by the evaluations and credit

recovery.” Id.

      On May 16, 2012, A.F. and EPS resolved the due process hearing complaint

by entering into a written mediation agreement. Contrary to the majority’s

interpretation of the mediation agreement, it purported to “resolve all claims

under the [IDEA].” Id. at 76. As part of the mediation agreement, EPS agreed to

“identify [A.F.] as a child with Specific Learning Disabilities in the areas of

reading comprehension, written expression, and math calculation,” id., and “to

make [a] compensatory education program . . . available to [A.F.] for so long as

[she] enrolled in Victory Faith and resid[ed] within the geographical boundaries

of the [EPS],” id. at 77. EPS also agreed to pay a portion of the costs associated

with A.F. attending Victory Faith, and to provide her with transportation to and

from Victory Faith.

      On May 18, 2012, two days after the parties entered in the mediation

agreement, A.F. filed a motion with the NMPED to dismiss her due process




                                          4
hearing complaint with prejudice. The motion was granted by the NMPED that

same day.

                            The federal court proceedings

      On August 23, 2012, A.F., by and through her parent and next friend,

Christine B., filed suit against defendants in the First Judicial District Court for

the County of Santa Fe, New Mexico, asserting “causes of action for (1) violation

of federal disability discrimination laws, pursuant to Section 504 of the

Rehabilitation Act (‘Section 504’) and the Americans with Disabilities Act

(‘ADA’), as actionable pursuant to such Acts and pursuant to 42 U.S.C. §§ 1983

and 1988, and (2) violation of her Fourteenth Amendment rights to procedural

Due Process, as actionable pursuant to 42 U.S.C. §§ 1983 and 1988.” Id. at 21.

      A.F.’s combined Section 504 and ADA claim (the first cause of action in

her complaint) alleged that EPS discriminated against her on the basis of her

learning disability and was deliberately indifferent to federal disability laws

requiring it to take her disability into account in the delivery of her education, “as

evidenced by [its] failure to accommodate her need for identification, evaluation,

and assistance as a student with learning disabilities affecting major areas of her

life.” Id. at 31. The claim further alleged that, “[a]s a direct and proximate result

of [EPS’s] violations of federal disability laws, A.F. suffered loss of educational

opportunities, emotional distress and mental anguish, damage to her self-esteem,




                                           5
and potentially irremediable developmental delays, entitling A.F. to compensatory

damages in an amount to be proven at trial.” Id.

      A.F.’s § 1983 due process claim (the second cause of action in her

complaint) alleged that A.F. had “a protected liberty and property interest in her

public school education and the wide array of benefits and services that should

have been made available to her, including an interest in identification,

evaluation, and assistance as a child with learning disabilities.” Id. at 32. The

claim in turn alleged that EPS personnel “personally participated as [EPS]

policymakers in the decisions to deny [her] some or all of these benefits and

services and caused the violations to occur.” Id. The claim alleged several

alternative theories of liability, including “supervisory liability,” id., “failure of

[EPS] to train [its] employees,” id., and EPS’s “establish[ment] [of] a de facto

course of conduct of denying disabled students the rights and liberty and property

interests to which they were entitled,” id. at 33. The claim further alleged that

EPS’s “actions and deliberate indifference denied A.F. the procedural protections

of federal and state law by denying her a public education and special education

on an arbitrary and capricious basis,” and that “[n]o post-deprivation hearing was

adequate to remedy these violations of procedural Due Process.” Id. at 34.

Lastly, the claim alleged that, “[a]s a direct and proximate result of [EPS’s]

conduct, A.F. suffered emotional distress and mental anguish, damage to her self-




                                            6
esteem, and potentially irremediable developmental delays, entitling A.F. to

compensatory damages in an amount to be proven at trial.” Id. at 35.

      On November 13, 2012, defendants removed the complaint to federal

district court, asserting jurisdiction based on the existence of a federal question

under 28 U.S.C. § 1331. Id. at 16-18.

      On April 8, 2013, defendants moved for judgment on the pleadings,

arguing, in pertinent part, that A.F. had failed to exhaust her administrative

remedies as required by 20 U.S.C. § 1415(l). Attached to defendants’ motion

were copies of the due process hearing complaint that A.F. filed with the

NMPED, the mediation agreement between A.F. and EPS settling that complaint,

and A.F.’s motion to dismiss her due process hearing complaint with prejudice.

      On December 6, 2013, the district court issued a memorandum opinion and

order granting defendants’ motion for judgment on the pleadings. In doing so, the

district court first concluded that “[a]ll of [A.F.]’s claims require[d] exhaustion,

because the relief she s[ought] [wa]s also available under the IDEA.” Id. at 247.

“The entirety of [A.F.]’s Complaint,” the district court noted, “center[ed] on the

dispute over [EPS’s] efforts to accommodate A.F.’s educational needs,” and her

“discrimination and Section 1983 claims [we]re part and parcel of her

educationally based grievance.” Id. at 249. The district court in turn

“determine[d] that the Mediation Agreement . . . d[id] not satisfy [A.F.]’s

obligation to exhaust her administrative remedies under the IDEA.” Id. More

                                           7
specifically, the district court concluded that “the IDEA’s exhaustion requirement

. . . is not satisfied when parties enter into a mediated settlement agreement,” and

that, instead, “there must be, at the very least, a state-level impartial due process

hearing before the aggrieved party can file a civil action in federal court.” Id. at

251. Although the district court acknowledged that “[e]xhaustion is not required

where (1) it would be futile, (2) it would fail to provide adequate relief, or (3) an

agency has adopted a policy or pursued a practice of general applicability that is

contrary to the law,” it noted that A.F. had failed to “address whether any of

the[se] . . . exceptions to the exhaustion requirement appl[ied] to [her] case.” Id.

(internal quotation marks omitted).

       On January 2, 2014, A.F. filed a motion to alter or amend the judgment. Id.

at 254. In that motion, A.F. conceded that she was required under the IDEA to

exhaust her administrative remedies, but she argued that the dismissal of her due

process hearing complaint, pursuant to the mediation agreement, constituted

exhaustion. A.F. also argued “that the mediated settlement of [her] educational

relief claims ma[d]e[] further exhaustion of administrative remedies futile.” Id. at

266.

       On July 8, 2014, the district court issued a memorandum opinion and order

denying A.F.’s motion to alter or amend judgment. The district court reaffirmed

its conclusion that “a mediated settlement agreement does not satisfy the




                                           8
exhaustion requirement of 1415(l).” Id. at 362. The district court also rejected

A.F.’s assertion that exhaustion would be futile.

                                         II

                                Standard of review

      “We review a district court’s grant of a motion for judgment on the

pleadings de novo, using the same standard that applies to a Rule 12(b)(6)

motion.” Park Univ. Enters. v. Am. Cas. Co. of Reading, PA, 442 F.3d 1239,

1244 (10th Cir. 2006).

               What does § 1415(l) require in terms of exhaustion?

      IDEA’s administrative exhaustion provision provides as follows:

      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) 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).

      “Our first step in interpreting a statute is to determine whether the language

at issue has a plain and unambiguous meaning with regard to the particular

dispute in the case.” Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). “Our

inquiry must cease if the statutory language is unambiguous and the statutory

scheme is coherent and consistent.” Id. (internal quotation marks omitted). “The

                                         9
plainness or ambiguity of statutory language is determined by reference to the

language itself, the specific context in which that language is used, and the

broader context of the statute as a whole.” Id. at 341.

      The majority in this case concludes that the above-highlighted language of

§ 1415(l) unambiguously requires a litigant, such as A.F., to “qualify under

subsection [1415](i) as a party ‘aggrieved by the findings and decision’ of

administrative trial and appellate authorities.” Maj. Op. at 7. In other words, the

majority interprets the highlighted language as unambiguously requiring a

litigant, in order to proceed in federal court under a statute other than IDEA, to

forgo resolution of her claim by way of a preliminary meeting or mediation and to

lose at both the administrative trial and appellate levels.

      I submit, however, that the highlighted language is “‘capable of being

understood’” in another, and indeed more reasonable, “‘way[].’” Chickasaw

Nation v. United States, 534 U.S. 84, 90 (2001) (quoting Webster’s Ninth New

Collegiate Dictionary 77 (1985)). In order to explain this alternative

interpretation, it is necessary to review how an IDEA complaint is filed and

resolved, including a close examination of the procedures that Congress made

available under §§ 1415(f) and (g).

      Section 1415(a) requires “[a]ny State educational agency, State agency, or

local educational agency that receives assistance under this subchapter” to

“establish and maintain” a variety of procedures “to ensure that children with


                                          10
disabilities and their parents are guaranteed procedural safeguards with respect to

the provision of a free appropriate public education by such agencies.” 20 U.S.C.

§ 1415(a). Of relevance here is “[a]n opportunity . . . to present a complaint.” Id.

§ 1415(b)(6).

      The “opportunity . . . to present a complaint” referred to in § 1415(b)(6) is

fleshed out in greater detail in §§ 1415(f) and (g). To begin with, the process

anticipates that “parents” may file a complaint and in turn be afforded “an

opportunity for an impartial due process hearing, which shall be conducted by the

State educational agency or by the local educational agency, as determined by

State law or by the State educational agency.” Id. § 1415(f)(1)(A). Prior to a due

process hearing being conducted, however, and within fifteen days of the receipt

of the complaint, “the local educational agency” must “convene a [preliminary]

meeting with the parents and the relevant member or members of the IEP Team

who have specific knowledge of the facts identified in the complaint.” Id. §

1415(f)(1)(B)(i). The intended purpose of this “preliminary meeting” is to allow

the “the parents of the child [to] discuss their complaint, and the facts that form

the basis of the complaint,” and to afford “the local educational agency . . . the

opportunity to resolve the complaint.” Id.

      The only exception to this preliminary meeting requirement is if “the

parents and the local educational agency agree in writing to waive such meeting,

or agree to use the mediation process described in subsection (e).” Id. The


                                          11
opportunity for mediation, which is detailed in § 1415(e), is intended “to allow

parties to disputes involving any matter . . . to resolve such disputes through a

mediation process.” Id. § 1415(e). Notably, this process anticipates that

“complaint[s]” may be “resolve[d]” through the mediation process by way of “a

legally binding [written] agreement.” Id. § 1415(e)(2)(F).

      “If the local educational agency has not resolved the complaint to the

satisfaction of the parents within 30 days of the receipt of the complaint” (by way

of the preliminary meeting or mediation), “the due process hearing may occur.”

Id. § 1415(f)(1)(B)(ii). The outcome of such a hearing is “a decision made by a

hearing officer . . . on substantive grounds based on a determination of whether

the child received a free appropriate public education.” Id. § 1415(f)(3)(E).

      Subsection (g) affords, in certain circumstances, a right of administrative

appeal. Specifically, “[i]f the hearing required by subsection (f) is conducted by

a local educational agency, any party aggrieved by the findings and decision

rendered in such a hearing may appeal such findings and decisions to the State

educational agency.” Id. § 1415(g)(1). “The State educational agency,” in turn,

is required to “conduct an impartial review of the findings and decision appealed”

and “make an independent decision upon completion of such review.” Id. §

1415(g)(2).

      With this statutory framework in mind, I now return to the language of §

1415(l) and submit that it can reasonably, and indeed should, be interpreted as


                                          12
merely requiring a claimant to make full use of the procedures outlined in §§

1415(f) and (g) to attempt to resolve her IDEA claim. Under this interpretation, a

mediated resolution of an IDEA claim would be considered sufficient to

constitute exhaustion for purposes of § 1415(l). That is not only because the

statutory framework anticipates, and in fact encourages, resolution of IDEA

claims by way of mediation, but also because a mediated resolution leaves

nothing to be decided at a due process hearing or in an administrative appeal.

         The interpretation of § 1415(l) adopted by the majority is, in my view,

inconsistent with the overall statutory framework developed by Congress. Indeed,

why would Congress, after creating a framework that quite clearly encourages

resolution of IDEA claims by various means, force a claimant to avoid resolution

of her claim by mediation or preliminary meeting and lose at both the due process

hearing and administrative appeal stages? Doing so would effectively render

superfluous the mediation and preliminary meeting provisions of the statute.

Further, precisely how could a claimant ensure a loss in both the due process

hearing and the administrative appeal, yet later present a viable claim in federal

court?

         The majority’s interpretation is also, in my view, inconsistent with

Congress’s more specific purpose in enacting § 1415(l). Congress added this

statutory language to clarify its disagreement with the majority opinion, and to

effectively codify Justice Brennan’s dissenting opinion, in Smith v. Robinson,


                                           13
468 U.S. 992 (1984). The key sentence in Justice Brennan’s dissent, for our

purposes, is this:

      The natural resolution of the conflict between the EHA [the
      predecessor to the IDEA], on the one hand, and §§ 504 and 1983, on
      the other, is to require the plaintiff with a claim covered by the EHA
      to pursue relief through the administrative channels established by
      that Act before seeking redress in the courts under § 504 or § 1983.

468 U.S. at 1024. Nothing in this statement suggests that a plaintiff must forgo

mediation and unsuccessfully pursue relief through the statute’s administrative

channels before proceeding to federal court on his or her other related claims.

Consequently, it makes little sense to say that Congress intended the opposite

result in enacting § 1415(l).

      Finally, the majority’s interpretation is inconsistent with the very purpose

of IDEA. It forces a claimant to choose between mediating a resolution to her

IDEA claim (even if the local educational agency were willing to admit and

correct the alleged errors) and thereby obtaining some or all of the relief sought

under IDEA (in this case, for example, the creation of a compensatory education

program, the payment of costs associated with attending another school, and

transportation to and from that school), or forgoing any relief at all and waiting

(while the child ages and potentially continues to receive something other than

the requisite “free appropriate public education”) in hopes of later filing suit and

obtaining relief under both IDEA and other statutes. That, I again submit, could

not have been the intent of Congress in adopting § 1415(l).


                                          14
                  The other rationales offered by the district court

      The district court in this case purported to “adopt[] the First Circuit’s

interpretation of the IDEA’s exhaustion requirement” outlined in Weber v.

Cranston Sch. Comm., 212 F.3d 41 (1st Cir. 2000). App. at 251. According to

the district court, in that case “the First Circuit addressed the issue of what

constitutes exhaustion under the IDEA and found that mediation is insufficient.”

Id. at 250 (citing 212 F.3d at 53). A review of Weber, however, indicates that the

First Circuit’s holding was not that broad. The parent/plaintiff in Weber argued

that she complied with § 1415(l)’s exhaustion requirement “through the numerous

administrative complaints that she filed” prior to initiating her civil lawsuit. 212

F.3d at 53. In rejecting this argument, the First Circuit stated as follows:

      Although Weber filed three CRP complaints with the Rhode Island
      Department of Elementary and Secondary Education, two complaints
      with the Office of Equity and Access, and participated in a mediation
      on the issue of declassification, she never initiated the due process
      hearing described in IDEA. IDEA’s mandate is explicit: plaintiffs
      must exhaust IDEA’s impartial due process hearing procedures in
      order to bring a civil action under subchapter II of IDEA or any
      “such law[] seeking relief that is also available” under subchapter II
      of IDEA. 20 U.S.C. § 1415(l).

Id. Thus, although the plaintiff/parent in Weber “participated in a mediation” on

a single issue, there is no indication that the mediation was successful, i.e., that

she actually resolved that issue (or any of the administrative complaints) by way

of a written mediation agreement. Consequently, the Weber decision did not

address the question at issue in this case, i.e., whether the resolution of a due


                                          15
process hearing complaint by way of a written mediation agreement is sufficient

to constitute exhaustion of the procedures outlined in subsections (f) and (g).

       The district court also asserted that its “determination that a settlement does

not meet the exhaustion requirements [wa]s supported by the policy rationales

requiring exhaustion.” App. at 251. These policy rationales, the district court

asserted, include “(1) permitting the exercise of agency discretion and expertise

on issues requiring these characteristics; (2) allowing the full development of

technical issues and a factual record prior to court review; (3) preventing

deliberate disregard and circumvention of agency procedures established by

Congress; and (4) avoiding unnecessary judicial decisions by giving the agency

the first opportunity to correct any error.” Id. at 251-52 (quoting Ass’n for Cmty.

Living v. Romer, 992 F.2d 1040, 1044 (10th Cir. 1993). And, according to the

district court, “allowing the settlement in this case to constitute exhaustion would

permit plaintiffs to proceed with their claims without developing a factual record,

allowing the educational system to exercise its expertise in resolving this conflict,

or providing the parties a full opportunity to avoid excessive litigation.” Id. at

252.

       The district court’s analysis was wrong. To be sure, the use of a written

mediation agreement eliminates the need for a due process hearing under §

1415(f), and, as a result, there is no administrative record that can be reviewed in

any subsequent civil action. But resolving a due process complaint by mediation


                                          16
otherwise appears to serve the purposes of IDEA, and in an arguably more

efficient fashion than by way of a due process hearing and subsequent

administrative appeal. In particular, it allows the local educational agency that is

the subject of the complaint to exercise its discretion and expertise in order to

immediately correct any errors that may have occurred. Further, by preventing

the need for a due process hearing and subsequent administrative appeal, it spares

resources of local and State educational agencies. And, most importantly, it best

serves the interests of the child at issue by promptly resolving the pending issues.

                                          III

      In sum, I conclude that resolution of a due process complaint by way of a

written mediation agreement constitutes exhaustion for purposes of § 1415(l).

Because the district court concluded otherwise, I would reverse the judgment of

the district court and remand for further proceedings.




                                          17
