                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAR 18 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

A. L., by and through her guardian, I. Lee,     No.    18-16669

                Plaintiff-Appellant,            D.C. No.
                                                1:17-cv-00358-AWI-SKO
 v.

CLOVIS UNIFIED SCHOOL DISTRICT;                 MEMORANDUM*
et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Eastern District of California
                   Anthony W. Ishii, District Judge, Presiding

                     Argued and Submitted February 11, 2020
                            San Francisco, California

Before: RAWLINSON and CALLAHAN, Circuit Judges, and BOLTON,**
District Judge.

      Appellant A.L. and her guardian appeal the district court’s dismissal of

claims brought under the Americans with Disabilities Act and the Rehabilitation

Act for failure to exhaust administrative remedies as required by the Individuals


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.
with Disabilities Education Act (“IDEA”). We have jurisdiction pursuant to 18

U.S.C. § 1291. We review de novo both a district court’s application of IDEA’s

exhaustion requirement and its grant of a motion to dismiss for the failure to state a

claim. Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1303 (9th Cir. 1992); In

re Nat’l Football League’s Sunday Ticket Antitrust Litig., 933 F.3d 1136, 1149

(9th Cir. 2019). We affirm.

      When the gravamen of a complaint is a request for relief for the denial of a

free and appropriate education (“FAPE”), a substantive right created by IDEA,

plaintiffs must exhaust IDEA administrative remedies before suing in federal court.

Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 754 (2017). Counts I and II (the

federal-law claims) of Appellants’ Second Amended Complaint request injunctive

relief requiring the school district to limit A.L.’s segregation from the school’s

general population and to change its policy of prohibiting aides from

communicating with parents. As the district court noted, integration into general

population classes and communication between a school and parents are topics

typically discussed when crafting a FAPE. Application of Fry’s clues indicate that

Appellants’ claims could only be brought in the context of a school setting. The

district court correctly concluded that the gravamen of Counts I and II is a request

for relief for the denial of a FAPE. See Fry, 137 S. Ct. at 756, 758.

      Appellants did not exhaust IDEA remedies because they settled their IDEA


                                          2                                     18-16669
claims without receiving an administrative decision on the merits. See Paul G. by

and through Steve G. v. Monterey Peninsula Unified Sch. Dist., 933 F.3d 1096,

1098 (9th Cir. 2019). Because Appellants’ decision to settle in lieu of pursuing

IDEA administrative remedies was “clear from the face of the complaint,”

dismissal under Rule 12(b)(6) was proper. See Albino v. Baca, 747 F.3d 1162,

1169 (9th Cir. 2014) (en banc) (“[I]n those rare cases where a failure to exhaust is

clear from the face of the complaint, a defendant may successfully move to dismiss

under Rule 12(b)(6) for failure to state a claim.”).

AFFIRMED.




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