                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 PAUL G., a conserved adult; by                  No. 18-16536
 and through his conservator
 Steve G.,                                        D.C. No.
              Plaintiff-Appellant,           5:16-cv-05582-BLF

                   v.
                                                   OPINION
 MONTEREY PENINSULA UNIFIED
 SCHOOL DISTRICT; CALIFORNIA
 DEPARTMENT OF EDUCATION,
         Defendants-Appellees.


        Appeal from the United States District Court
            for the Northern District of California
       Beth Labson Freeman, District Judge, Presiding

             Argued and Submitted June 13, 2019
                  San Francisco, California

                        Filed August 12, 2019

    Before: Mary M. Schroeder and Milan D. Smith, Jr.,
     Circuit Judges, and Jed S. Rakoff,* District Judge.

                  Opinion by Judge Schroeder

    *
      The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
2           PAUL G. V. MONTEREY PENINSULA USD

                            SUMMARY**


                           Education Law

    The panel affirmed the district court’s dismissal, for
failure to exhaust remedies under the Individuals with
Disabilities Education Act, of claims under the Americans
with Disabilities Act and § 504 of the Rehabilitation Act.

    A student’s parents sought damages under the ADA and
§ 504 on the basis that the residential placement he should
have received under the IDEA was not available in
California. Plaintiffs failed to exhaust because they settled
their IDEA case without receiving an administrative decision
on whether the lack of an in-state residential placement had
denied the student a free and appropriate public education.
The panel held that exhaustion was required because
plaintiffs sought relief that would also be available under the
IDEA. Agreeing with other circuits, the panel concluded that
the ADA and § 504 claims concerned whether the student
was provided appropriate educational services. The panel
held that plaintiffs’ claims did not fall under exhaustion
exceptions because they did not seek relief for a policy or
practice of general applicability, and exhaustion would not
have been futile or inadequate.




    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
          PAUL G. V. MONTEREY PENINSULA USD                  3

                         COUNSEL

Daniel R. Shaw (argued), Shaw Firm, San Luis Obispo,
California; Christian Knox, F. Richard Ruderman, and
Colleen A. Snyder, Ruderman and Knox LLP, Sacramento,
California; for Plaintiff-Appellant.

Leonard Bruce Garfinkel (argued), Deputy General Counsel;
Todd M. Smith and Edmundo R. Aguilar, Assistant General
Counsel; Amy Bisson Holloway, General Counsel; California
Department of Education, Sacramento, California; for
Defendants-Appellees.


                         OPINION

SCHROEDER, Circuit Judge:

    The parents of Paul G. (“Paul”), an autistic child, seek
damages because the placement they believe their child
should have received under the Individuals with Disabilities
Education Act (“IDEA”) is not available in California. They
filed this action under the Americans with Disabilities Act
(“ADA”) and Section 504 of the Rehabilitation Act of 1973.
The district court dismissed their complaint for failure to
exhaust their administrative remedies under the IDEA. We
affirm. Plaintiffs failed to exhaust because they settled their
IDEA case without receiving an administrative decision on
whether Paul needed the placement they now assert was
required for him to receive a free and appropriate public
education (“FAPE”).

  Paul is an adult student whose family resides near
Monterey, California. His is a sad story of failed attempts to
4         PAUL G. V. MONTEREY PENINSULA USD

place him in an appropriate educational facility. During
elementary school and early high school, Paul was enrolled
as a special education student in the Monterey Peninsula
Unified School District. During his junior year in high school
(2014–15), he began having episodes of violent and
threatening behavior towards the school staff and fellow
students. After unsuccessful efforts to provide instruction at
home and in the local library, the school district in July of
2015 held an Individualized Education Plan (“IEP”) meeting
and offered to place Paul in a residential facility. Because he
was by then 18 years old, however, no residential facility in
the state would accept him. Paul subsequently enrolled in a
residential facility in Kansas, but became homesick and
returned to California.

    Paul’s counsel initiated IDEA administrative proceedings
in August 2015, seeking a due process hearing with the
California Office of Administrative Hearings (OAH). His
complaint alleged he had been denied a FAPE guaranteed
under the IDEA. He sought a residential placement in
California, monetary damages, and an order directing the
California Department of Education (“CDE”) and the school
district to develop in-state residential placements for adult
students like Paul.

    OAH dismissed the claims against the state, ruling that
the agency did not have jurisdiction to order the creation of
facilities for students over l8, and that the school district, not
the state, was responsible for education decisions affecting
Paul. Paul then entered into a settlement agreement with the
school district in which OAH dismissed the case without ever
ruling on his claim that the lack of an in-state residential
facility had denied him a FAPE.
          PAUL G. V. MONTEREY PENINSULA USD                 5

    Paul filed this action in federal court in September 2016,
following the settlement with the school district. His
complaint alleged that CDE violated the Rehabilitation Act
and the ADA. The gravamen of his complaint was that to
receive a FAPE he required a residential placement, and the
state had failed to provide him one in California. He sought
monetary damages and an injunction.

   The complaint did not and could not allege that Paul’s
IEP required a placement in California; he had not obtained
such a decision from the OAH. The CDE therefore moved to
dismiss on the ground that Paul could not pursue claims
against the CDE for failure to provide a FAPE when he had
no IEP requiring an in-state placement. The district court
dismissed for failure to exhaust administrative remedies as
required by the IDEA. See 20 U.S.C. § 1415(l).

    Paul’s district court complaint alleged discrimination in
violation of the Rehabilitation Act and the ADA; it did not
allege a violation of the IDEA. The IDEA is nevertheless key
in this case because it is that federal law that guarantees
individually-tailored educational services for children with
special educational needs. See id. §§ 1400(d)(1)(A),
1401(29). It provides for a FAPE that must conform to a
student’s IEP, which is a program detailing the student’s
abilities, educational goals, and specific services that are
designed to achieve those goals within a designated time
frame. See id. §§ 1412(a)(4), 1436(d).

    The IDEA also contains procedural protections for the
resolution of disputes over what services must be provided.
There must be an opportunity for mediation, an impartial due
process hearing, and an appeals process.           See id.
§ 1415(e)–(g). In California, the CDE contracts with the
6         PAUL G. V. MONTEREY PENINSULA USD

OAH to provide these remedies. See Cal. Educ. Code
§ 56504.5(a). The OAH decision is a final administrative
decision, see 20 U.S.C. § 1415(i)(1)(A), and either the parent
or the public agency may seek judicial review by filing a civil
action in district court within 90 days, see id. § 1415(i)(2).
The statute provides that where the relief sought under other
statutes is also available under the IDEA, the IDEA’s
administrative procedures must have been exhausted:

        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, title
        V of the Rehabilitation Act of 1973, 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).

    This Court, however, has identified certain exceptions to
the exhaustion rule. In the seminal case, Hoeft v. Tucson
Unified School District, 967 F.2d 1298 (9th Cir. 1992), we
held that exhaustion is not required when (1) use of the
administrative process would be “futile,” (2) the claim arises
from a policy or practice “of general applicability that is
contrary to law,” or (3) it is “improbable that adequate relief
can be obtained by pursuing administrative remedies (e.g. the
hearing officer lacks the authority to grant the relief sought).”
          PAUL G. V. MONTEREY PENINSULA USD                 7

Id. at 1303–04 (citing H.R. Rep. No. 296 99th Cong, 1st Sess.
7 (1985)).

    Paul’s position is that California has unlawfully
discriminated against him by not providing a residential
educational facility for adult students in the state who, like
Paul, require such a facility in order to receive a FAPE. He
argues he need not exhaust because his claims seek relief for
disability discrimination and that even if his claims do
involve denial of a FAPE, they fall under the exhaustion
exceptions.

    The fundamental problem with Paul’s position in the view
of the district court, and in ours, is that he has no IEP that
requires such an in-state placement. He settled his claim with
the school district that had sought such an IEP. His existing
IEP provides only for a residential placement. The district
court therefore properly dismissed for failure to exhaust
administrative remedies.

    On appeal, he stresses that he is not claiming any
violation of the IDEA. Instead, he brought suit under the
ADA and Rehabilitation Act. The Supreme Court has
recently provided guidance as to when there must be
administrative exhaustion in a case purportedly invoking
statutes other than the IDEA. See Fry v. Napoleon Cmty.
Sch., 137 S. Ct. 743 (2017). The Court instructed us to
determine whether “the gravamen of the plaintiff’s suit is
something other than the denial of the IDEA’s core guarantee
— . . . ‘a free appropriate public education.’” Id. at 748
(quoting § 1412(a)(1)(A)). In Fry the suit alleged the ADA
and the Rehabilitation Act’s discrimination provisions were
violated when a young girl disabled by cerebral palsy was not
permitted to bring her service dog to school. Id. at 751.
8         PAUL G. V. MONTEREY PENINSULA USD

Looking to the gravamen of the suit, the Court concluded that
the plaintiff’s suit did not concern the denial of a FAPE. Id.
at 758. It held that the case instead concerned the denial of
access to public facilities. See id. Relief was therefore not
available under the IDEA. Exhaustion therefore was not
required.

    The crucial issue is therefore whether the relief sought
would be available under the IDEA. See 20 U.S.C. § 1415(l).
The Court provided clues for courts to decide that question,
including “whether the plaintiff could have brought
essentially the same claim if the alleged conduct had occurred
at a public facility that was not a school, and . . . whether an
adult at the school could have pressed essentially the same
grievance.” Fry, 137 S. Ct. at 756. The Court also said that
one good indication that the plaintiff is seeking relief for
denial of a FAPE is whether the plaintiff previously invoked
administrative remedies. Id. at 757. Since a dog would not
be among the services a school district would ordinarily
provide in a FAPE, and the plaintiff in that case had never
invoked administrative remedies to obtain such a FAPE, the
gravamen of the Fry complaint was not an IDEA claim.

    In this case, Paul could not have brought the same claims
against a public facility that was not a school, nor could an
adult employee or visitor present the same grievance, because
the relief Paul seeks is fundamentally educational — access
to a particular kind of school as required by his IEP. See id.
at 756 (claims are based on the IEP when access is “adequacy
of special education” and not “equality of access to public
facilities”). Further, Paul pursued remedies under IDEA and
after settlement switched gears to turn to other remedies.
This is almost precisely the scenario the Supreme Court in
Fry described as an indicator of an IDEA claim requiring
          PAUL G. V. MONTEREY PENINSULA USD                   9

exhaustion. As the Court explained, an initial decision to
pursue the administrative process and a later shift to judicial
proceedings prior to full exhaustion is a strong indication that
the plaintiff is making “strategic calculations about how to
maximize the prospects of such a remedy.” Id. at 757.

    The district court understood that because Paul’s claim is
that an in-state residential institution is necessary for him to
receive the education guaranteed under the IDEA, he must
exhaust his administrative remedies for an IEP. Applying
Fry, the district court held that the “alleged denial to provide
an in-state residential treatment facility applies solely in a
school setting” and the fact that Paul “previously pursued an
IDEA administrative proceeding based on identical or similar
allegations supports the conclusion that his claims are
premised on a denial of a FAPE.” We agree with that
conclusion.

    Other circuit decisions since Fry have reached similar
conclusions. In Wellman v. Bulter Area School District, the
Third Circuit concluded that the student’s “grievances all
stem from the alleged failure to accommodate his condition
and fulfill his educational needs” and dismissed the complaint
because the student released all claims related to the FAPE
denial in a settlement agreement with the school district.
877 F.3d 125, 133 (3d Cir. 2017). In Nelson v. Charles City
Community School District, the Eighth Circuit affirmed the
district court’s conclusion that the student’s complaint sought
relief available under the IDEA because the denial of the
student’s request for online classes was directly related to the
student’s IEP. 900 F.3d 587, 595 (8th Cir. 2018). In
Durbrow v. Cobb County School District, a student with
Attention Deficit Hyperactivity Disorder filed a due process
complaint alleging the school district failed to evaluate him
10        PAUL G. V. MONTEREY PENINSULA USD

for disabilities. 887 F.3d 1182, 1187 (11th Cir. 2018). The
Eleventh Circuit concluded the gravamen of the student’s
§ 504 and ADA claims in the district court was denial of a
FAPE because the claims focused on the adequacy of the
educational program the school district afforded the student.
Id. at 1190. Exhaustion was required. Here, like our sister
circuits, we conclude Paul was required to exhaust the IDEA
procedural process because his § 504 and ADA claims
concern whether he was provided appropriate educational
services.

     Paul argues that even if his claims do concern the denial
of a FAPE, they fall under all three exhaustion exceptions:
(1) the administrative process would be “futile,” (2) the claim
arises from a policy or practice “of general applicability that
is contrary to law,” or (3) it is improbable “that adequate
relief can be obtained by pursuing administrative remedies
(e.g. the hearing officer lacks the authority to grant the relief
sought).” Hoeft, 967 F.2d at 1303–04.

    Paul suggests that he seeks relief for “a policy or practice
of general applicability that is contrary to the law” because
CDE failed to provide residential placements for disabled
students over the age of eighteen. A claim is systemic, and
therefore entitled to the general applicability exception, if it
concerns “the integrity or reliability of the IDEA dispute
resolution procedures themselves, or requires restructuring
the education system itself in order to comply with the
dictates of the Act.” Doe ex rel. Brockhuis v. Ariz. Dep’t of
Educ., 111 F.3d 678, 682 (9th Cir. 1997). Here, however,
Paul seeks relief related to only one component of the school
district’s special education program — in-state residential
facilities for adult students. See id.; see also Hoeft, 967 F.2d
at 1308.
          PAUL G. V. MONTEREY PENINSULA USD                   11

    Paul also contends exhaustion would have been futile and
inadequate because, when he filed his due process
administrative complaint against the school district and the
CDE, the OAH dismissed the CDE on the ground that it could
not order the state to create a whole new facility. The OAH
concluded it lacked jurisdiction to order “structural and
systemic statewide relief.” Paul then settled the claim against
the school district without obtaining any decision on his claim
that the lack of in-state placement denied him a FAPE. He
now argues it would have been futile to pursue the IDEA
claim because the state could not be required to provide the
facility.

    A principle purpose of requiring administrative
exhaustion, however, is to ensure the agency has had an
opportunity to rule on a claim before a plaintiff goes to court.
See Payne v. Peninsula Sch. Dist., 653 F.3d 863, 875–76 (9th
Cir. 2011). Thus, if the plaintiff is claiming a violation of the
IDEA, the plaintiff must take that claim through the
administrative process. The Supreme Court in Fry reiterated
the principle in clear terms. Fry, 137 S. Ct. at 756–57. In
this case, Paul is claiming that the state must provide him
with an in-state residential placement and must pay damages
for failing to do so. The only basis for such a claim is that
such a placement is required under the IDEA. The agency’s
dismissal of the state does not excuse Paul’s failure to pursue
the claim against the school district, because that was the only
way to obtain an administrative ruling on his claim that he
was denied a FAPE. Thus, as the district court correctly
concluded, Paul may not maintain this action after he failed
to seek a final administrative decision regarding his alleged
need for in-state residential education.

    AFFIRMED.
