B. v. NW Indep Sch Dist, et al

United States Court of Appeals
for the Fifth Circuit

No. 19-11115

T. B., by and through his next friend and mother Jenny Bell,

Plaintiff—Appellant,

versus

Northwest Independent School District; Kenneth
Burt; Laura Adams,

Defendants—Appellees.

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:18-CV-984

Before Jones, Elrod, and Higginson, Circuit Judges.
Jennifer Walker Elrod, Circuit Judge:
T.B. appeals the district court’s dismissal of his discrimination claims under
the Americans with Disabilities Act and the Rehabilitation Act. Because T.B. failed
to exhaust his administrative remedies, we AFFIRM the district court’s judgment
dismissing the case without prejudice.
I.
Northwest Independent School District (“the District”) is a school district
in North Texas that lies in Denton, Tarrant, and Wise counties. T.B. is a student
in the District diagnosed with Autism Spectrum Disorder and Attention Deficit
United States Court of Appeals
Fifth Circuit
FILED
November 23, 2020

Lyle W. Cayce
Clerk
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Hyperactivity Disorder. As a result of these conditions, T.B. sometimes exhibited
significant behavioral issues that required him to be removed from class or
otherwise restrained.
This case arises out of an incident on April 4, 2017 that began with then-10-
year-old T.B. calling his mother to come pick him up from school. At some point,
T.B.’s teacher got on the call and told T.B.’s mother that she was “losing patience”
with T.B. Soon thereafter, T.B. climbed on a table in an effort to avoid his teacher
who then allegedly “knocked him to the ground, dragged him through two
classrooms, and climbed on top of him” before kicking him in the chest when he
began to run around the room. Over a year after learning of this incident, T.B.’s
mother filed a request for a special education due process hearing that was
dismissed because it was not made within the applicable statute of limitations. See
19 Tex. Admin. Code § 89.1151(c) (prescribing a 1-year statute of limitations).
T.B. appealed that decision and filed a complaint asserting claims against
the District, his teacher, and a school paraprofessional on the exact same day.
1
In
his complaint, T.B. asserted that the District “failed to provide T.B. a safe and non-
hostile educational environment.” As a result of the District’s conduct, T.B.
claimed to have suffered the “[l]oss of equal educational opportunities as those
afforded non-disabled students.”
The District moved to dismiss under Rule 12(b)(1). Specifically, the
District argued that T.B.’s complaint failed to properly exhaust his administrative
remedies under the Individuals with Disabilities Education Act (“IDEA”) and,
thus, the court lacked subject matter jurisdiction.
In response, T.B. filed an amended complaint that was essentially the same
as the original except that it dropped the claims against the paraprofessional. The
District again moved to dismiss on the same grounds as before. T.B.’s response did

1
The Northern District of Texas has since affirmed the due process hearing
dismissal. See T.B. v. Nw. Indep. Sch. Dist., No. 4:18-CV-00985-BJ (N.D. Tex. June 2,
2020).
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not address the District’s exhaustion arguments on their merits. Instead, T.B.
argued that a 12(b)(1) motion to dismiss may only be adjudicated on the face of the
pleadings and that T.B.’s amended complaint lacks any language that specifically
mentions the IDEA or his status as a student receiving special education services.
The district court granted the District’s motion, agreeing that the court
lacked subject matter jurisdiction over T.B.’s claims because of T.B.’s failure to
first exhaust his administrative remedies. T.B. filed a “motion for reconsideration”
under Rule 59(e) and a motion for leave to file a second amended complaint. The
district court denied both. T.B. appealed.
II.
This court reviews a district court’s grant of a 12(b)(1) motion to dismiss for
lack of subject matter jurisdiction de novo, just as we would a dismissal under Rule
12(b)(6).
2
McDonnel Grp., L.L.C. v. Great Lakes Ins. SE, 923 F.3d 427, 430 (5th

2
This circuit has not yet determined whether exhaustion under the IDEA is a
jurisdictional requirement. See, e.g., Gardner v. Sch. Bd. Caddo Par., 958 F.2d 108, 112 (5th
Cir. 1992) (“We do not decide whether exhaustion [of IDEA claim] is a jurisdictional
requirement.”); Doe v. Harlandale Indep. Sch. Dist., No. SA-20-CV-00960-JKP, 2020 WL
6566854, at *2 (W.D. Tex. Nov. 9, 2020) (noting that “the Fifth Circuit has not directly
addressed the point” of whether a plaintiff’s failure to exhaust administrative remedies
under the IDEA deprives the court of subject matter jurisdiction.”). We note, however,
that the Supreme Court has recently held that Title VII’s administrative exhaustion
requirement is not jurisdictional but is, instead, a mandatory claim-processing rule. Fort
Bend Cty., Texas v. Davis, 139 S. Ct. 1843, 1851 (2019).
In this case, it does not matter. The District timely raised the plaintiff’s failure to
exhaust and argued that the district court should dismiss the plaintiff’s claims under both
Fed. R. Civ. P. 12(b)(1) and 12(b)(6). The district court analyzed the failure-to-exhaust
argument solely as a jurisdictional claim and dismissed it on that basis. But even if failure
to exhaust is not jurisdictional—an issue that was not briefed and that we do not decide
here—the plaintiff’s failure to exhaust is still fatal to his claims. Moreover, we may
“affirm the district court’s judgment on any grounds supported by the record.” U.S. ex rel.
Farmer v. City of Houston, 523 F.3d 333, 338 n. 8 (5th Cir. 2008) (quoting Sobranes Recovery
Pool I, LLC v. Todd & Hughes Constr. Corp., 509 F.3d 216, 221 (5th Cir. 2007)).
We note that we have traditionally affirmed dismissals without prejudice for failure
to exhaust administrative remedies required by the IDEA. See, e.g., Flores v. Sch. Bd. of
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Cir. 2019); Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008). We take “the
well-pled factual allegations of the complaint as true and view them in the light most
favorable to the plaintiff.” Lane, 529 F.3d at 557.
Rule 59(e) of the Federal Rules of Civil Procedure does not expressly
recognize a “motion for reconsideration.” See Fed. R. Civ. P. 59. However,
“motions for reconsideration or rehearing are typically treated as Fed. R. Civ. P.
59(e) motions . . . .” In re Stangel, 68 F.3d 857, 859 (5th Cir. 1995). “[A] motion to
alter or amend the judgment under Rule 59(e) ‘must clearly establish either a
manifest error of law or fact or must present newly discovered evidence’ and
‘cannot be used to raise arguments which could, and should, have been made before
the judgment issued.’” Rosenzweig v. Azurix Corp., 332 F.3d 854, 863–64 (5th Cir.
2003) (quoting Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990)).
This court reviews a district court’s denial of a Rule 59(e) motion to alter or
amend the judgement for abuse of discretion. Trevino v. City of Fort Worth, 944
F.3d 567, 570 (5th Cir. 2019). Likewise, this court reviews a district court’s denial
of a request to amend a complaint for abuse of discretion as well. Word of Faith
World Outreach Ctr. Church, Inc. v. Sawyer, 90 F.3d 118, 124 (5th Cir. 1996).
III.
A.
The IDEA is meant to ensure that children with disabilities receive needed
special education services. See 20 U.S.C. § 1400. It offers federal funds to states
in exchange for their commitment to furnish a “free appropriate public education”
(“FAPE”) to all children with certain physical and intellectual disabilities. Id.
§ 1412(a)(1)(A).

It also establishes formal procedures for resolving disputes
between parents and school representatives. Id. § 1415(e). Under the IDEA, a
plaintiff must exhaust these administrative procedures before filing a claim under

DeSoto Par., 116 F. App’x 504, 511–12 (5th Cir. 2004) (affirming dismissal without
prejudice for failure to exhaust); Doe v. E. Baton Rouge Par. Sch. Bd., No. 96-31115,
1997
WL 450173 (5th Cir. 1997) (unpublished) (same).
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similar laws when and only when the plaintiff’s suit “seek[s] relief that is also
available” under the IDEA. Id. § 1415(l).
The Supreme Court addressed the scope of this exhaustion requirement in
Fry v. Napoleon Community Schools. 137 S. Ct. 743 (2017). Specifically, the Court
held that the IDEA’s “exhaustion rule hinges on whether a lawsuit seeks relief for
the denial of a [FAPE].” Id. at 754. “If a lawsuit charges such a denial, the plaintiff
cannot escape [exhaustion] merely by bringing her suit under a statute other than
the IDEA.” Id. Likewise, in a suit brought under a different statute, the exhaustion
of the IDEA’s procedures is not required if the remedy sought is not for the denial
of a FAPE. Id.
However, a court cannot simply look for the use or non-use of particular
words or labels to determine whether a plaintiff’s complaint seeks relief for the
denial of a FAPE. Id. at 755. “What matters is the crux—or in legal-speak, the
gravamen—of the plaintiff’s complaint, setting aside any attempts at artful
pleading.” Id.
The Court offered two “clues” as to how district courts may determine the
gravamen of a complaint. Id. at 756–57. The first clue consists of two hypotheticals:
First, could the plaintiff have brought essentially the same claim if
the alleged conduct had occurred at a public facility that was not a
school—say, a public theater or library? And second, could an adult
at the school—say, an employee or visitor—have pressed essentially
the same grievance?
Id. at 756. Where a court answers both of those questions in the affirmative, the
claim is not rooted in the denial of a FAPE, and the exhaustion of the IDEA’s
administrative remedies is not required. Id. Alternatively, where a court answers
“no” to both, “then the complaint probably does concern a FAPE, even if it does
not explicitly say so . . . .” Id.
However, the answers to these hypotheticals are not entirely dispositive.
See Doe v. Dallas Indep. Sch. Dist., 941 F.3d 224, 229 (5th Cir. 2019) (“[T]he Court
did not limit analysis of this question to answering those two illustrative
hypotheticals.”). The second clue the Court offered was to look to the history of
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the proceedings, particularly whether “a plaintiff has previously invoked the
IDEA’s formal procedures to handle the dispute,” as another possible indicator
that the gravamen of the suit is in the denial of a FAPE. Fry, 137 S. Ct. at 757.
“[P]rior pursuit of the IDEA’s administrative remedies will often provide strong
evidence that the substance of a plaintiff’s claim concerns the denial of a FAPE,
even if the complaint never explicitly uses that term.” Id.
Here, T.B.’s resort to the IDEA’s administrative procedures before filing
suit is a strong indicator that the gravamen of his complaint is in the denial of a
FAPE even if the complaint makes no specific mention of a FAPE or the IDEA.
3

The application of the two Fry hypotheticals is less clear. However, the
District argued in its motion to dismiss that the answer to both questions is “no”
because, in a special education setting, the use of physical force by T.B.’s teacher is
properly characterized as a “restraint” based on that term’s definition in
§ 37.0021(b)(1) of the Texas Education Code and § 89.1053(b)(2) of the Texas
Administrative Code, both of which define restraint as “the use of physical force or
a mechanical device to significantly restrict the free movement of all or a portion of
the student’s body.” The District reasoned that school districts do not restrain
adult employees or visitors, nor do school districts restrain students outside of the
school setting. Therefore, the District argued, the gravamen of T.B.’s claim was
more likely to be the denial of a FAPE and, thus, subject to exhaustion of the
IDEA’s administrative remedies.
We do not agree with the District’s assertion that all physical force used in
a special education setting is necessarily a “restraint.” However, T.B.’s response

3
The dissenting opinion proceeds as if the “history of the proceedings” clue
always raises a fact issue. However, in this case, we see no reason not to accept the
procedural history on its face. No party has alleged facts or made arguments in any
pleadings or briefings that would indicate an alternative interpretation, and we need not
invent them. See McMillen v. New Caney Indep. Sch. Dist., 939 F.3d 640, 646 (5th Cir. 2019)
(considering the plaintiff’s previous complaint—containing allegations of IDEA
violations—on its face as indication that the gravamen of the plaintiff’s suit was the denial
of a FAPE), cert. denied, 140 S. Ct. 2803 (2020).
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to the District’s motion to dismiss did not address the District’s “restraint”
argument or Fry analysis on their merits. Instead, T.B. first argued that a 12(b)(1)
motion to dismiss may only be adjudicated on the face of the pleadings. This is not
so. See Morris v. Thompson, 852 F.3d 416, 419 (5th Cir. 2017) (“When ruling on the
[12(b)(1)] motion, the district court may rely on the complaint, undisputed facts in
the record, and the court’s resolution of disputed facts.” (citing Ramming v. United
States, 281 F.3d 158, 161 (5th Cir. 2001))).
T.B. also argued that his amended complaint lacked any language that
specifically mentions the IDEA or his status as a student receiving special education
services. This is exactly the sort of “magic words” argument Fry seeks to avoid.
See 137 S. Ct. at 755 (“[A] ‘magic words’ approach would make [the IDEA’s]
exhaustion rule too easy to bypass.”).
We determine that, on the record before us, T.B.’s complaint seeks redress
for denial of a FAPE. Therefore, under the IDEA he was required to exhaust his
administrative remedies before bringing this claim to the district court. We agree
with the district court that he has failed to do so. Thus, his complaint was properly
dismissed.
4

B.
After the case had already been dismissed, T.B. eventually raised arguments
against the District’s “restraint” argument and Fry analysis in his motion to
reconsider. The district court declined to take up those arguments, correctly noting

4
We disagree with the dissent that Fry requires or indeed says anything about a
claim-by-claim approach for conducting an IDEA-exhaustion analysis, and we do not see
occasion in this case to adopt such a requirement. Although the issue was not briefed, we
note that Fry directs courts to analyze the plaintiff’s “suit” or “complaint” but does not
direct that courts conduct that analysis on a claim-by-claim basis. See Fry, 137 S. Ct. at 748
(“We hold that exhaustion is not necessary when the gravamen of the plaintiff’s suit is
something other than the denial of the IDEA’s core guarantee”); id. at 752 (“[A] court
should look to the substance, or gravamen, of the plaintiff’s complaint.”); id. at
755 (“What matters is the crux—or, in legal speak, the gravamen—of the plaintiff’s
complaint . . . .”).
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that such motions under Rule 59(e) “cannot be used to raise arguments which
could, and should, have been made before the judgment issued.” Schiller v.
Physicians Res. Grp. Inc., 342 F.3d 563, 567 (5th Cir. 2003) (internal quotations
omitted). This decision, as well as the district court’s denial of leave to file a second
amended complaint, falls squarely within the discretion of the district court. We do
not disturb it here.
* * *
T.B. failed to exhaust his administrative remedies, as required under the
IDEA. Likewise, the district court did not abuse its discretion in denying T.B.’s
motion to reconsider or request to amend. Therefore, we AFFIRM the judgment
of the district court, dismissing this case without prejudice for failure to exhaust
administrative remedies.

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Stephen A. Higginson, Circuit Judge, dissenting:
This case requires the court to determine the limits of the IDEA’s
administrative exhaustion requirement in the context of an allegation of school-
based assault. The majority concludes that the plaintiff’s previous invocation of the
IDEA’s grievance process—paired with language in the complaint that appears to
challenge the adequacy of T.B.’s education—provide sufficient grounds to
conclude that T.B. was required to exhaust his administrative remedies before filing
suit in federal court.
I dissent both because the district court did not rely on T.B.’s invocation of
the administrative process when it entered its 12(b)(1) dismissal and also, more
importantly, because the district court erred by overlooking several important legal
principles stated by the Supreme Court in Fry v. Napoleon Community Schools, 137
S. Ct. 743 (2017), and in caselaw requiring a claim-by-claim consideration of
exhaustion under Fry.
I. Administrative Exhaustion Overview
The Individuals with Disabilities Education Act (“IDEA”) offers federal
funds to states “in exchange for a commitment: to furnish a ‘free appropriate public
education’—more concisely known as a FAPE—to all children with certain
physical or intellectual disabilities.” Fry, 137 S. Ct. at 748. The statute establishes a
set of collaborative procedures by which parents and school districts jointly develop
individualized education programs, or IEPs, for students with disabilities. Id. at 749;
see also 20 U.S.C. § 1414. In the event that a parent is unhappy with the school’s
IEP or its implementation, “the IDEA establishes formal procedures for resolving
disputes.” Fry, 137 S. Ct. at 749. These procedures allow a dissatisfied parent to
seek a due process hearing before an impartial hearing officer. Id. The hearing
officer’s decision may be appealed to the state educational agency. See 20 U.S.C.
§ 1415(g)(2).
Because hearing officers and the state education department have unique
expertise in special education, the statute requires parties to use these procedures
before they may bring an action in federal court. See id. § 1415(i)(2). The IDEA also
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acknowledges, however, that other related laws—including the Rehabilitation Act
and the Americans with Disabilities Act—may provide relief for similar violations.
Thus, the statute contains an exhaustion clause explaining that parents may make
use of these statutes, but they may not “fil[e] . . . a civil action under such laws
seeking relief that is also available under [the IDEA]” unless they first “exhaust[]
[their claims] to the same extent as would be required had the action been brought
under [the IDEA].” Id. § 1415(l) (emphasis added).
The Supreme Court recently addressed the scope of the IDEA’s exhaustion
clause in its unanimous decision, Fry v. Napoleon Community Schools. The Court
began by noting that the obligation to provide a FAPE is the “principal purpose” of
the IDEA. 137 S. Ct. at 753. As a result, the IDEA’s administrative procedures are
primarily concerned with determining “whether a school has met that obligation.”
Id. at 754. Thus, the Court explained that the statute’s administrative exhaustion
rule “hinges on whether a lawsuit seeks relief for the denial of a [FAPE].” Id. If so,
a plaintiff may not escape the exhaustion requirement “merely by bringing her suit
under a statute other than the IDEA.” Id. However, if a suit is brought under a
statute other than the IDEA and “the remedy sought is not for the denial of a FAPE,
. . . exhaustion of the IDEA’s procedures is not required.” Id. The Court clarified
that this allows a plaintiff seeking a remedy for a violation other than the denial of a
FAPE to sue in federal court “even when the suit arises directly from a school’s
treatment of a child with a disability—and so could be said to relate in some way to
her education.” Id.
In Fry, the Court explained that determining whether a suit seeks relief for
the denial of a FAPE requires an analysis of the “substance, not surface” of the
plaintiff’s complaint. Id. at 755. As the majority today acknowledges, the ultimate
question is whether “the gravamen of a complaint seeks redress for a school’s
failure to provide a FAPE, even if not phrased or framed in precisely that way.” Id.
The Supreme Court provided two helpful “clue[s]” that can assist a court in
answering this question:
First, could the plaintiff have brought essentially the same claim if
the alleged conduct had occurred at a public facility that was not a
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school—say, a public theater or library? And second, could an adult
at the school—say, an employee or visitor—have pressed essentially
the same grievance? When the answer to those questions is yes, a
complaint that does not expressly allege the denial of a FAPE is also
unlikely to be truly about that subject[.]
Id. at 756. The Court did not suggest that these questions are necessarily dispositive
to the exhaustion analysis, nor are they the only questions that may be relevant.
Instead, the Court described the analysis as fact-bound and nuanced, dependent on
a careful consideration of the plaintiff’s claims. See id. at 757 (remanding for the
Court of Appeals to conduct the analysis “just set forward”); see also id. at 759
(Alito, J., concurring in part) (explaining that the “clues” are just “for the purpose
of assisting lower courts,” and should not be dispositive). Likewise, in Doe v. Dallas
Independent School District, 941 F.3d 224 (5th Cir. 2019), our court recently
explained that the Supreme Court’s decision in Fry “did not limit analysis of [the
exhaustion] question to answering those two illustrative hypotheticals.” Id. at 229.
Since Fry, our court has addressed the IDEA’s exhaustion requirement on
just a handful of occasions. Notably, in McMillen v. New Caney Independent School
District, 939 F.3d 640 (5th Cir. 2019), the court answered a question left open by
Fry: “whether the exhaustion requirement applies when a plaintiff is seeking
remedies not available under the IDEA.” Id. at 647. The court answered in the
affirmative, joining the other circuits that have reached this question. Id. (citing
cases in the First, Second, Third, Fourth, Seventh, Eighth, Tenth, and Eleventh
Circuits). Therefore, the fact that a plaintiff seeks traditional compensatory
damages, which are not available under the IDEA, does not relieve a plaintiff from
exhausting a claim that challenges the denial of a FAPE. Id. at 648.
II. Fry’s Footnote Nine: The Physical Abuse Exception
In Fry, the Supreme Court cited with approval an example provided by the
school district to help identify the types of claims that are not subject to the
exhaustion requirement. The Court explained that if a “teacher, acting out of
animus or frustration, strikes a student with a disability,” the student’s claims
arising out of that event are “unlikely to involve the adequacy of special
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education—and thus [are] unlikely to require exhaustion.” Fry, 137 S. Ct. at 756
n.9. This is true even though “the suit could be said to relate, in both genesis and
effect, to the child’s education.” Id.
In its order dismissing this case, the district court did not engage with this
footnote—nor did it mention its existence. T.B. argues on appeal that his claims
match the hypothetical situation described in footnote 9: he sues to challenge a
teacher’s actions in “knock[ing] him to the ground, dragg[ing] him through two
classrooms, and climb[ing] on top of him.” Though he is a student with a disability,
he does not argue that the teacher’s physical response to his disobedience was a
misguided attempt to utilize inappropriate “restraints” that were authorized in his
IEP; instead, he alleges that his teacher’s actions were not connected to a legitimate
disciplinary purpose, and amounted instead to an unprovoked physical assault,
resulting from animus or frustration. See K.L. v. Scranton Sch. Dist., No. 3:19-cv-
0670, 2020 WL 42723, at *4 (M.D. Pa. Jan. 3, 2020) (holding that plaintiff was not
required to exhaust claims of intentional discrimination and negligence where the
parties do not state “whether an IEP contains language regarding the restraint” of
the student and where “the allegations in the complaint do not identify any
disagreement . . . regarding [the student’s] rights to a FAPE or his IEP”).
In cases before and after Fry, circuit courts across the country have similarly
held that claims alleging abuse, assault, and harassment—even when suffered by a
student with a disability in the school environment—do not require exhaustion. In
F.H. ex rel. Hall v. Memphis City Schools, 764 F.3d 638 (6th Cir. 2014), for example,
the Sixth Circuit held that a plaintiff who alleged “a litany of specific allegations of
physical, sexual, and verbal abuse” by school aides was not required to exhaust
those claims before seeking relief in federal court. Id. at 641. The court noted that
these injuries are “non-educational” in nature, and “cannot be redressed by any
remedy available under the IDEA.” Id. at 643. To require otherwise “would create
an additional administrative barrier not present for non-disabled children.” Id. at
644. In an emphatic concurrence, Judge Kethledge echoed this conclusion,
explaining that it would “belittle” the plaintiff’s injuries to call them
“educational.” Id. at 646 (Kethledge, J., concurring) (“The gravamen of
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[plaintiff’s] claim is not that the conduct described in his complaint might reduce
his SAT scores. The gravamen of his claim, rather, is that this conduct was an attack
upon F.H.’s dignity as a human being.”); see also Muskrat v. Deer Creek Pub. Schs.,
715 F.3d 775, 785 (10th Cir. 2013) (“No authority holds that Congress meant to
funnel isolated instances of common law torts into the IDEA exhaustion regime.”);
McCormick v. Waukegan Sch. Dist. No. 60, 374 F.3d 564, 569 (7th Cir. 2004) (“[N]o
change to his IEP could remedy, even in part, the damage done to [plaintiff’s]
body.”); Padilla ex rel. Padilla v. Sch. Dist. No. 1, 233 F.3d 1268, 1274 (10th Cir.
2000) (holding that plaintiff who suffered “fractured skull and other physical
injuries” did not have to exhaust because she “makes no complaints regarding her
current educational situation”).
Most recently, in Doe v. Dallas Independent School District, our court held
that a plaintiff alleging sexual assault and rape at school was not required to exhaust
her claims before filing suit in federal court. 941 F.3d at 227–28. Though the
plaintiff mentioned that she had a disability, the gravamen of her complaint was
about the school’s discrimination, which allegedly gave rise to her assault—not the
denial of a FAPE. Id. Because a student without a disability could have brought the
same “allegation that the school was indifferent to her sexual abuse,” the court
concluded that the plaintiff was not required to exhaust her claims using the IDEA’s
due process procedures. Id. at 229.
The school district does not argue that this footnote or the related caselaw
are irrelevant to the analysis, but rather asserts that any arguments based on the
footnote have been waived by the plaintiff. It is true that T.B. failed to cite footnote
9 or any of these cases in his response to the defendant’s motion to dismiss. The
first time that T.B. apparently brought up this argument was in a motion for
reconsideration. At that point, the district court refused to consider the argument,
holding that Rule 59(e) motions “cannot be used to raise arguments which could,
and should, have been made before the judgment issued.”
I agree that T.B.’s timing was flawed, but I’m not convinced that it is fatal.
Though T.B.’s argument based on footnote nine is new, it is a legal argument based
on binding legal precedent. Our court has explained that an appeals court can
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consider a new argument raised for the first time on appeal “when the issue
involved is a pure question of law and a miscarriage of justice would result from our
failure to consider it.” N. Alamo Water Supply Corp. v. City of San Juan, 90 F.3d
910, 916 (5th Cir. 1996), overruled on other grounds by Green Valley Special Util. Dist.
v. City of Schertz, 969 F.3d 460 (5th Cir. 2020). A similar rule could well apply to
the district court’s consideration of a legal argument in the context of a
reconsideration motion. Though the district court relies on Schiller v. Physicians
Resource Group Inc., 342 F.3d 563 (5th Cir. 2003), to argue that new arguments
cannot be raised in a Rule 59(e) motion, the plaintiff in that case attempted to
introduce new factual allegations—not legal arguments. Id. at 568; see also Jefferson
v. Sewon Am., Inc., 891 F.3d 911, 923 (11th Cir. 2018) (“[P]arties cannot waive the
application of the correct law or stipulate to an incorrect legal test.”).
In this case, the district court’s decision not to consider footnote nine is
especially problematic because the court was clearly aware of Fry. Indeed, Fry and
the Supreme Court’s two hypotheticals formed the basis for the district court’s
conclusions. A court should not selectively address portions of binding law, above
all not a unanimous, on-point Supreme Court decision cited by the parties. Even if
the district court ultimately concludes that footnote nine does not alter its
assessment, I would remand so that that court engages with Supreme Court
precedent in full, as applied to T.B.’s claims.
III. Historic Invocation of the Administrative Process
Remand is further appropriate because the Supreme Court in Fry provided
an additional “clue” to the exhaustion inquiry, also overlooked in the district
court’s dismissal order albeit comprehensively discussed by the majority. The
Supreme Court explained that “the history of the proceedings” can provide a
“further sign that the gravamen of a suit is the denial of a FAPE.” Fry, 137 S. Ct. at
757. If a plaintiff has “previously invoked the IDEA’s formal procedures to handle
the dispute,” that fact may be persuasive evidence that the plaintiff’s claims stem
from the denial of a FAPE. Id. The Court explained, however, that the analysis
remains fact-dependent: “a court may conclude, for example, that the move to a
courtroom came from a late-acquired awareness that the school had fulfilled its
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FAPE obligation and that the grievance involves something else entirely.” Id. Thus,
the fact that a plaintiff previously invoked the administrative process is not
necessarily dispositive. Id.
As the majority describes, before T.B. filed his suit in federal court, T.B.
filed a complaint for a due process hearing with an impartial hearing officer. The
complaint was dismissed as time-barred, and that determination has been affirmed.
See T.B. v. Nw. Indep. Sch. Dist., No. 4:18-CV-00985-BJ (N.D. Tex. June 2, 2020).
I agree with the majority that invoking the administrative process is an important
indicator of the gravamen of the complaint. However, given the Supreme Court’s
explanation that the history of the suit requires a fact-based determination, I am not
persuaded that T.B.’s previous invocation of the IDEA’s administrative
procedures necessarily means that he should have exhausted. See Fry, 137 S. Ct. at
759 (Alito, J., concurring in part) (“It is easy to imagine circumstances under which
parents might start down the IDEA road and then change course and file an action
under the ADA or the Rehabilitation Act that seeks relief that the IDEA cannot
provide.”). Moreover, even if T.B.’s claims were not outside of the IDEA statute
of limitations, a hearing officer could have dismissed T.B.’s claims if the officer
concluded that they were not capable of resolution by the IDEA’s procedures. See
id. at 754 (explaining that, if a complaint is not alleging the denial of a FAPE, “the
plaintiff could not get any relief from [the IDEA’s] procedures,” and the hearing
officer “would have to send her away empty-handed”).
Our court has addressed this “clue” in Fry on one occasion. In McMillen,
the court held that the plaintiff’s earlier allegation of an IDEA violation provided
further evidence that the gravamen of his complaint was the denial of a FAPE.
McMillen, 939 F.3d at 646. The McMillen court did not suggest that the prior history
of the case was the only factor relevant to the exhaustion analysis; rather, this history
was just one of many indicators that the plaintiff should have exhausted. Id.
McMillen is also not directly on point, because the court considered previous
versions of the plaintiff’s federal complaint—not a previous invocation of the
administrative process. Id.
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Importantly, the district court did not rely upon—nor even mention—the
fact that T.B. had previously initiated this complaint as an administrative
proceeding, so the court did not make any factual conclusions about the meaning of
T.B.’s previous invocation. Given the fact-bound analysis urged by Fry and the
limited caselaw on this portion of Fry, I would remand this issue for the district
court to consider.
IV. Definition of “Gravamen”: Claim by Claim Approach
The third reason I respectfully dissent and would remand to the district
court is because that court’s exhaustion analysis focused on T.B.’s complaint as a
whole, rather than on a claim-by-claim basis. At least two circuit courts—the Third
Circuit and the First Circuit—have held that Fry requires a court to separate each
claim of a plaintiff’s complaint, determining whether each claim stems from an
alleged denial of a FAPE. Earlier caselaw in this circuit and elsewhere also supports
this conclusion. Because a claim-by-claim analysis might reveal that only some of
T.B.’s claims are subject to the IDEA’s exhaustion provision, I further think that
remand is prudent.
In Wellman v. Butler Area School District, 877 F.3d 125 (3d Cir. 2017), the
Third Circuit held that Fry requires a “claim-by-claim approach” to the exhaustion
question. Id. at 132. The court acknowledged that “the Supreme Court’s language
spoke in terms of the ‘complaint,’” but held that this language did not require a
blanket approach to exhaustion. Id. It relied on the Black’s Law Dictionary
definition of “gravamen”: “[t]he substantial point or essence of a claim, grievance,
or complaint.” Id. (emphasis added). Thus, because the term “gravamen”
“bespeaks concern with both individual claims as well as the collection of claims
called a complaint,” courts must consider “the actual claims” before making an
exhaustion determination. Id. To hold otherwise, the court observed, “could result
in situations where claims that are included in a complaint because they involve the
same parties or course of events but do not involve the provision of a FAPE get
swept up and forced into administrative proceedings with claims that are seeking
redress for a school’s failure to provide a FAPE.” Id. Such an outcome would not
vindicate the expertise of IDEA hearing officers, since education agencies “do not
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employ . . . expertise when it comes to claims that do not involve the provision of a
FAPE.” Id.
Recently, in Doucette v. Georgetown Public Schools, 936 F.3d 16 (1st Cir.
2019), the First Circuit adopted the Wellman formulation and applied “the Fry
framework to each of the [plaintiff’s] claims.” Id. at 24. In Doucette, Judge Selya
dissented from the majority’s analysis, but explained that he agreed with the
majority’s adoption of Wellman. He provided a relevant anecdote to bolster his
reasoning, explaining that even if “a complaint includes FAPE denial allegations,
an entirely distinct claim that in no way concerns the denial of a FAPE (like an
allegation of physical assault on a school bus) would fall outside the IDEA’s
exhaustion requirement.” Id. at 35 (Selya, J., dissenting).
Though our court does not seem to have reached this question since Fry,
earlier cases demonstrate that we engage in a claim-by-claim approach to
exhaustion. In Flores v. School Board of DeSoto Parish, 116 F. App’x 504 (5th Cir.
2004), for example, the court held that a plaintiff’s IDEA claims must be exhausted,
but did not require exhaustion of the plaintiff’s Section 1983 claims, including her
claim for excessive force. Id. at 509–11. Other courts have employed similar
methods, applying a claim-by-claim analysis to determine whether exhaustion was
required. See Muskrat, 715 F.3d at 785–87; P.G. ex rel. R.G. v. Rutherford Cty. Bd. of
Educ., 313 F. Supp. 3d 891, 899 (M.D. Tenn. 2018) (applying Wellman to examine
“each of Plaintiff’s claims individually”).
Here, the district court did not individually consider each of the claims in
T.B.’s complaint when analyzing the exhaustion requirement. T.B. asserts claims
for violations of several laws: the Americans with Disabilities Act, Section 504 of
the Rehabilitation Act, the Fourth Amendment, and the Fourteenth Amendment.
Instead, the district court’s conclusion focused on one allegation in T.B.’s
complaint, which alleged that the school district failed to provide appropriate
responses to T.B.’s emotional injuries in the aftermath of the alleged assault,
including “a psychological assessment; school-based counseling services; an aide
or shadow to observe the Student at the school or social skills training.” Though
this allegation may support the conclusion that at least some of T.B.’s claims should
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have been exhausted, it is not clear that it requires exhaustion of those claims
seeking relief for the assault itself—as opposed to the lingering effects of the assault
and the school’s alleged failure to appropriately address them. See, e.g., McCormick,
374 F.3d at 566 (suggesting that a claim alleging “ongoing or continuing emotional
damages” may require exhaustion, while one based on the precipitating physical
injury does not).
Ultimately, the district court may reach the same conclusion upon engaging
in a claim-by-claim analysis, or it may conclude that T.B.’s earlier invocation of the
administrative process demonstrates the necessity of exhaustion. But, because the
district court’s order did not engage with these significant legal points, I would
remand this matter so that the district court can conduct this analysis in the first
instance.

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