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PAYNE v. PENINSULA SCHOOL DIST.

No. 07-35115.

653 F.3d 863 (2011)

Windy PAYNE, individually and as guardian on behalf of D.P., a minor child, Plaintiff-Appellant, v. PENINSULA SCHOOL DISTRICT, a municipal corporation; Artondale Elementary School, a municipal corporation; Jodi Coy, in her individual and official capacity; James Coolican, in his individual and official capacity; Jane Does 1-10; and John Does 1-10, Defendants-Appellees.

United States Court of Appeals, Ninth Circuit.

Filed July 29, 2011.

Attorney(s) appearing for the Case

Thomas B. Vertetis , Pfau Cochran Vertetis Kosnoff, PLLC, Tacoma, WA, for the plaintiff-appellant.

Michael A. Patterson , Patterson Buchanan Fobes Leitch & Kalzer, Inc., P.S., Seattle, WA, for the defendants-appellees.

Sasha Samberg-Champion and Mark L. Gross , United States Department of Justice, Civil Rights Division, Washington, D.C.; and Lenore Silverman , Fagen Friedman & Fulfrost, LLP, Oakland, CA, for amici curiae.

Opinion by Judge BYBEE; Concurrence by Judge CALLAHAN; Partial Concurrence and Partial Dissent by Judge BEA.

OPINION

BYBEE, Circuit Judge:

We agreed to rehear this case en banc to clarify under what circumstances the IDEA's exhaustion requirement bars non-IDEA federal or state law claims.

Appellant Windy Payne, on behalf of herself and her son, D.P., appeals the district court's grant of summary judgment to the defendants. The district court dismissed her claim for lack of subject matter jurisdiction because Payne did not initially seek relief in a due...

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