                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



  T.H., et al.,

                          Plaintiffs,

                  v.                                           Civil Action No. 17-0196 (ESH)

  DISTRICT OF COLUMBIA,

                          Defendant.




                          MEMORANDUM OPINION AND ORDER

       T.H. is a 16-year-old student who attends Woodrow Wilson High School in the District

of Columbia. T.H.’s parents (“plaintiffs”) filed this lawsuit against the District on behalf of

T.H., alleging discrimination under Section 504 of the Rehabilitation Act of 1973 (“Section

504”), 29 U.S.C. § 794, and the District of Columbia Human Rights Act of 1977 (“DCHRA”),

D.C. Code § 2-1401.01 et seq., and claiming intentional infliction of emotional distress.

(Compl., ECF No. 21-2, at 7–9.)

       The District now moves pursuant to Fed. R. Civ. P. 12(c) for judgment on the pleadings,

arguing that (1) plaintiffs’ claims are subject to the administrative-exhaustion requirement of the

Individuals with Disabilities in Education Act (“IDEA”), 20 U.S.C. § 1415(l), even though

plaintiffs did not file suit under IDEA, and (2) plaintiffs’ failure to exhaust those administrative

remedies deprives this Court of jurisdiction. (Def.’s Mot. for J. on the Pleadings (“Def.’s Mot.”),

April 26, 2017, ECF No. 17, at 5–10.) Plaintiffs respond that their claims are not subject to

IDEA’s administrative-exhaustion requirement. (Pls.’ Mem. in Opp’n to Def.’s Mot. (“Pls.’

Opp’n”), May 3, 2017, ECF No. 21, at 6–8.)
        Even assuming arguendo that IDEA’s administrative-exhaustion requirement applies to

plaintiffs’ claims, the District’s motion will be denied. The Court concludes that administrative

exhaustion under IDEA is not a jurisdictional prerequisite to suit. Rather, the failure to exhaust

IDEA’s administrative remedies is an affirmative defense that the District must plead and prove.

The District has failed to carry its burden on its affirmative defense, given that plaintiffs’ failure

to exhaust IDEA’s administrative remedies is not clear on the face of the complaint.

                                          BACKGROUND

        Plaintiffs filed this lawsuit in D.C. Superior Court on December 12, 2016. (Compl. at 1.)

On January 31, 2017, the District removed the matter to federal district court. (Notice of

Removal, ECF No. 1.) As the specific factual allegations of the District’s acts and omissions are

not relevant to resolving the present motion, the Court provides only a brief overview of

plaintiffs’ claims.

        Plaintiffs allege that T.H. is entitled to reasonable accommodations at her public high

school pursuant to Section 504 because she suffers from an anxiety disorder. (Compl. at 3–4.)

Accommodations provided to students with disabilities under Section 504 are generally

memorialized in a “504 plan.” According to plaintiffs, T.H.’s 504 plan was inadequate because

the District failed to pursue appropriate psychological testing, and the school failed to properly

implement T.H.’s 504 plan. (Id. at 2.) Plaintiffs further contend that T.H.’s Geometry teacher

discriminated against her, in violation of DCHRA, by excluding T.H. from class for wearing too

much perfume. (Id. at 4.) On the basis of the school’s conduct, plaintiffs also claim intentional

infliction of emotional distress. (Id. at 9.) T.H. and her parents seek declaratory relief,

injunctive relief, and damages. (Id. at 9–10.)

        The District filed its answer to the complaint on February 3, 2017, asserting among its

“affirmative defense[s],” that plaintiffs “fail[ed] to exhaust administrative remedies.” (Answer,
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ECF No. 5, at 5.) On April 26, 2017, the District filed the present motion, arguing that the

lawsuit should be dismissed for plaintiffs’ failure to exhaust the administrative remedies

available under IDEA. Importantly, plaintiffs make no allegations in their complaint with

respect to pursuing or exhausting administrative remedies under IDEA or otherwise. (See

Compl. at 1–10.)

                                             ANALYSIS

    I.      LEGAL STANDARD

         Moving under Rule 12(c), the District raises a jurisdictional challenge on the basis of

plaintiffs’ failure to administratively exhaust their claims. Typically, a 12(b)(1) motion to

dismiss for lack of subject-matter jurisdiction is the appropriate vehicle to lodge jurisdictional

challenges. However, because the Court concludes that administrative exhaustion under IDEA is

a non-jurisdictional affirmative defense, it will not construe the present motion as one having

properly been brought under Rule 12(b)(1).

         Under Rule 12(c), “[a]fter the pleadings are closed–but early enough not to delay trial–a

party may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). Courts review a motion

for judgment on the pleadings under the same standard that they would review a motion to

dismiss for failure to state a claim under Rule 12(b)(6). Maniaci v. Georgetown Univ., 510 F.

Supp. 2d 50, 58 (D.D.C. 2007) (citations omitted). “To survive a motion to dismiss [for failure

to state a claim under Rule 12(b)(6)], a complaint must contain sufficient factual matter, accepted

as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (quotation marks and citation omitted). Courts may grant a defendant’s motion to

dismiss on the basis of an affirmative defense “when the facts that give rise to the defense are

clear from the face of the complaint.” Smith-Haynie v. Dist. of Columbia, 155 F.3d 575, 578

(D.C. Cir. 1998).
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   II.       ANALYSIS

         In its motion for judgment on the pleadings, the District argues that this Court lacks

subject-matter jurisdiction, reasoning that plaintiffs’ claims are subject to IDEA’s administrative

exhaustion requirement and that plaintiffs failed to exhaust those administrative procedures. The

District’s unstated premise in making this argument is that administrative exhaustion under

IDEA is a jurisdictional prerequisite to filing suit.

         As it turns out, whether IDEA’s administrative-exhaustion provision is jurisdictional is a

dispositive legal issue here. Thus, for purposes of resolving this motion, the Court assumes

arguendo that IDEA’s administrative-exhaustion provision applies to plaintiffs’ claims.1 As

explained below, this Court concludes that IDEA’s administrative exhaustion requirement is not

jurisdictional, and that the District therefore carries the burden of pleading and proving plaintiffs’

failure to exhaust. But, the District has failed to carry its burden, for the failure to exhaust

IDEA’s administrative remedies is not clear on the face of the complaint.

         Broadly speaking, Congress may impose two types of procedural rules that require

litigants to exhaust the available administrative remedies under a given federal law: jurisdictional

rules and claim-processing rules. See Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428,



         1
           Plaintiffs do not argue that the exhaustion of IDEA’s administrative remedies is a
claim-processing rule, as opposed to a jurisdictional rule. Instead, they oppose the motion on the
grounds that IDEA’s exhaustion provision does not apply to their claims at all. (See Pls.’ Opp’n
at 6–8.) The Court need not resolve this issue here, but it notes that IDEA’s administrative-
exhaustion provision applies to actions brought under similar laws, like the Rehabilitation Act,
when the suit “seek[s] relief that is also available” under IDEA. 20 U.S.C. § 1415(l). In Fry v.
Napoleon Cmty. Schs. et al., 137 S. Ct. 743 (2017), the Supreme Court held that a litigant is
subject to IDEA’s administrative-exhaustion provision if “the substance, or gravamen, of the
plaintiff’s complaint” seeks relief for the denial of a free appropriate public education–IDEA’s
“core guarantee.” Id. at 748, 752. The Court, however, did not resolve the issue presented by
plaintiffs here–whether a party seeking a remedy not available under IDEA, i.e., money
damages, could still be “seeking relief . . . also available” under an IDEA such that exhaustion of
IDEA’s administrative procedures would be required. See id. at 752 n.4.
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435 (2011). This distinction “is not merely semantic but one of considerable practical

importance for judges and litigants.” Id. at 434. Jurisdictional rules, which govern a court’s

ability to hear the case at all, “alter[] the normal operation of our adversarial system.” Id. If an

exhaustion requirement is jurisdictional, courts must independently raise the issue of whether the

claims have been administratively exhausted, and jurisdictional challenges cannot be waived and

may be raised at any time in the litigation. Id. By contrast, claim-processing rules–“rules that

seek to promote the orderly progress of litigation by requiring that the parties take certain

procedural steps at certain specified times”–are considered by a court only if raised by a litigant

and are waived if they are not timely raised. Id. at 435.

       Of particular relevance to this motion, the distinction between jurisdictional and non-

jurisdictional exhaustion rules determines which party bears the burden of showing compliance

or lack of compliance with the available administrative procedures. If IDEA’s administrative-

exhaustion provision is jurisdictional, a plaintiff subject to those requirements would have the

initial burden of pleading administrative exhaustion in his or her complaint. See Fed. R. Civ. P.

8(a)(1) (“A pleading that states a claim for relief must contain a short and plain statement of the

grounds for the court’s jurisdiction.”); Moms Against Mercury v. FDA, 483 F.3d 824, 828

(D.C. Cir. 2007). However, if the administrative-exhaustion provision is a claim-processing rule,

the failure to pursue the required administrative remedies would be an affirmative defense, which

the defendant would have the burden of pleading and proving. Cf. Jones v. Bock, 549 U.S. 199,

212 (2007) (holding that the exhaustion requirement of the Prison Litigation Reform Act of 1995

(“PLRA”), 42 U.S.C. § 1997e(a), is an affirmative defense that the defendant must plead and

prove). Because of the implications of labeling a procedural rule as jurisdictional, the Supreme




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Court has recently attempted to “bring some discipline to the use of this term.” Henderson, 562

U.S. at 435.

        “To ward off profligate use of the term ‘jurisdiction,’” the Supreme Court has “adopted a

‘readily administrable bright line’ for determining whether to classify a statutory limitation as

jurisdictional.” Sebelius v. Auburn Reg'l Med. Ctr., 133 S. Ct. 817, 824 (2013) (quoting Arbaugh

v. Y&H Corp., 546 U.S. 500, 516 (2006)). Under this analysis, courts “inquire whether Congress

has ‘clearly state[d]’ that the rule is jurisdictional,” and “absent such a clear statement, . . .

‘courts should treat the restriction as nonjurisdictional in character.’” Id. (quoting Arbaugh, 546

U.S. at 515–516).

        Although the D.C. Circuit has not ruled on whether IDEA’s exhaustion requirement is

jurisdictional, this Court is persuaded by the reasoning of the Ninth Circuit in Payne v. Peninsula

Sch. Dist., 653 F.3d 863 (9th Cir. 2011) (en banc), overruled on other grounds by Albino v.

Baca, 747 F.3d 1162 (9th Cir. 2014) (en banc). Although the Ninth Circuit had previously

considered IDEA’s exhaustion requirement to be a jurisdictional bar, it reexamined its prior

decisions “in light of a spate of Supreme Court cases clarifying the difference between

provisions limiting [courts’] subject-matter jurisdiction . . . and ‘claims processing provisions.’”

Id. at 867 (citations omitted). The Ninth Circuit held that IDEA’s exhaustion requirement is not

jurisdictional because it “is not clearly labeled jurisdictional, is not located in a jurisdiction-

granting provision, and admits of congressionally authorized exceptions.” Id. at 870–71 (quoting

Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 166 (2010)). The court further noted that the

burden of showing the failure to exhaust would fall on the defendant, analogizing to the PLRA’s

exhaustion requirement, which the Supreme Court had determined was an affirmative defense

that the defendant carried the burden of pleading and proving. Id. at 869 (citing Jones, 549 U.S.



                                                    6
at 216). Under the Ninth Circuit’s approach, a defendant generally should raise a plaintiff’s

failure to exhaust IDEA’s administrative remedies in a Rule 56 motion for summary judgment.

Albino, 747 F.3d at 1169.2 At that juncture, a court would have to determine whether IDEA’s

exhaustion requirement applies to the lawsuit and whether, on the basis of the undisputed facts,

the defendant is entitled to judgment on the affirmative defense of failure to exhaust IDEA’s

administrative remedies.

        At least two district courts within the D.C. Circuit have treated as jurisdictional IDEA’s

administrative-exhaustion requirement when considering motions to dismiss on the basis that

IDEA exhaustion applies to claims arising under similar laws. See Douglas v. Dist. of Columbia,

65 F. Supp. 3d 225, 228 (D.D.C. 2014); Douglass v. Dist. of Columbia, 750 F. Supp. 2d 57, 59

(D.D.C. 2010). While Douglass may be in conflict with this Court’s legal conclusion here, the

issue was not presented to the Douglass court, and that case was decided before the Supreme

Court’s ruling in Henderson and the Ninth Circuit’s decision in Payne. See Muskrat v. Deer

Creek Pub. Schs., 715 F.3d 775, 784 (10th Cir. 2013) (“It appears that only the Ninth Circuit [in

Payne] has evaluated the question at any length.”). In Douglas, decided after Payne, the court

based its finding that the plaintiff had failed to administratively exhaust his claims on the

plaintiff’s allegations: the plaintiff filed the complaint in district court only ten days after he

alleged that he filed his administrative complaint and before he alleged that his administrative



        2
         In Payne, the Ninth Circuit indicated that lower courts could consider the affirmative
defense of exhaustion on an “unenumerated Rule 12(b) motion rather than on a motion for
summary judgment.” Id. at 881 (quoting Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.
2003)). However, in Albino, the Ninth Circuit overruled Payne insofar as it approved of the
“unenumerated 12(b) motion” procedure. 747 F.3d at 1171. The Ninth Circuit held that a
defendant invoking non-jurisdictional exhaustion can only do so on a motion to dismiss in the
“rare” case where the “failure to exhaust [is] clear from the face of the complaint.” Id. at 1169.
As a general matter, an exhaustion affirmative defense should be raised in a Rule 56 motion for
summary judgment. Id. at 1171.
                                                   7
hearing was scheduled to take place. 750 F. Supp. 2d at 228. In other words, the plaintiff’s

failure to exhaust in that case was clear on the face of the complaint.

       In sum, because this Court concludes that IDEA’s administrative-exhaustion requirement

is not jurisdictional, the District carries the burden of pleading and proving plaintiffs’ failure to

exhaust. In order to prevail on the present motion, the District must show–on the face of the

complaint–that plaintiffs failed to exhaust IDEA’s administrative remedies. In this case, unlike

Douglas, plaintiffs do not make any factual allegations related to IDEA’s administrative

procedures. The factual predicates of the exhaustion defense are therefore not present on the

face of the complaint. Given that the District carries the burden on its affirmative defense, the

fact that plaintiffs did not make any allegations with respect to exhaustion is fatal to the District’s

motion, not plaintiffs’ lawsuit.

                                          CONCLUSION

       Accordingly, and for the reasons stated above, it is hereby ORDERED that the District’s

motion for judgment on the pleadings pursuant to Rule 12(c) is DENIED.

       SO ORDERED.



                                                       /s/ Ellen Segal Huvelle
                                                       ELLEN SEGAL HUVELLE
                                                       United States District Judge


Date: June 9, 2017




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