                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAY 09 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


STEVEN D. MARSHALL,                              No. 13-36104

              Plaintiff - Appellant,             D.C. No. 3:12-cv-01550-BR

 v.
                                                 MEMORANDUM*
GORDON TRUCKING, INC., a foreign
corporation,

              Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Oregon
                     Anna J. Brown, District Judge, Presiding

                              Submitted May 5, 2016**
                                 Portland, Oregon

Before: TALLMAN and HURWITZ, Circuit Judges and BATTAGLIA,*** District
Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Anthony J. Battaglia, United States District Judge for
the Southern District of California, sitting by designation.
      Steven Marshall appeals a district court order dismissing his claims under

the Americans with Disabilities Act for failure to exhaust administrative remedies.

We have jurisdiction under 28 U.S.C § 1291, and we reverse.

      1. The district court understandably treated Defendant Gordon Trucking’s

summary judgment motion as an “unenumerated Rule 12(b) motion” under Wyatt

v. Terhune, 315 F.3d 1108 (9th Cir. 2003). Six months after the district court’s

order, we overruled Wyatt in Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) (en

banc). In Albino, we held that failure to exhaust is an affirmative defense that

should normally be raised thorough a summary judgment motion. Id. at 1166.

Without the benefit of Albino, the district court erred in treating Gordon Trucking’s

motion as a motion to dismiss and not as a summary judgment motion.

      2. The district court also erred in holding that it lacked subject matter

jurisdiction over Marshall’s claims because he failed to exhaust remedies available

under Department of Transportation (“DOT”) regulations. We have “rarely found

exhaustion statutes to be a jurisdictional bar.” McBride Cotton & Cattle Corp. v.

Veneman, 290 F.3d 973, 978 (9th Cir. 2002). Rather, “we have found the failure to

exhaust administrative remedies to be a bar to federal subject matter jurisdiction

where the exhaustion statute explicitly limits the grant of subject matter

jurisdiction.” Id. at 979. The DOT regulations at issue here never mention the


                                          2
court’s jurisdiction. See 49 C.F.R. §§ 386.13, 386.67, 391.47. Thus, the district

court erred in holding that exhaustion under the DOT regulations is jurisdictional.

       On remand, the district court should apply the Albino framework and resolve

any disputed material facts relevant to exhaustion in this case. See Albino, 747

F.3d at 1170-71. The district court should also consider whether to exercise its

discretion to excuse exhaustion or to invoke the doctrine of primary jurisdiction.

See Rodrigues v. Donovan, 769 F.2d 1344, 1349 (9th Cir. 1985) (remanding for

district court to exercise its discretion “in the first instance”); Syntek

Semiconductor Co. v. Microchip Tech. Inc., 307 F.3d 775, 780-81 (9th Cir. 2002)

(summarizing primary jurisdiction and noting factors traditionally considered in

the court’s discretion).

       Costs are awarded to appellant.

       REVERSED and REMANDED.




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