J.F., a minor, by et al. v. SAN DIEGO UNIFIED SCHOOL DISTRICT, a government entity

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

J.F., a minor, by and through Guardians Ad
Litem Aron Feiles and Alexandra Feiles,
individually on and on behalf of the
proposed class,

Plaintiff-Appellant,

v.

SAN DIEGO UNIFIED SCHOOL
DISTRICT, a government entity,

Defendant-Appellee.

No. 20-55376

D.C. No. 3:19-cv-02495-CAB-LL

MEMORANDUM
*

Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding

Submitted December 11, 2020
**

Pasadena, California

Before: GOULD and R. NELSON, Circuit Judges, and COGAN
***
, District Judge.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 Brian M. Cogan, United States District Judge of the
United States District Court for the Eastern District of New York, sitting by
designation.
FILED

DEC 15 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Student J.F. appeals the district court’s dismissal without leave to amend his
First Amended Complaint (“FAC”) in a class action under the Individuals with
Disabilities Education Act (“IDEA”) against San Diego Unified School District
(“SDU”). We have jurisdiction under 28 U.S.C. § 1291. We affirm in part,
reverse in part, and remand with instructions to grant J.F. leave to amend.
1. The district court properly dismissed the action because J.F. should have
first exhausted the administrative process. “Judicial review under the IDEA is
ordinarily available only after the plaintiff exhausts administrative remedies.” Doe
ex rel. Brockhuis v. Ariz. Dep’t of Educ., 111 F.3d 678, 680–81 (9th Cir. 1997); see
20 U.S.C. § 1415(l). But exhaustion can be excused where (1) using “the
administrative process would be futile,” or (2) “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).” See Paul G. ex rel. Steve G. v. Monterey
Peninsula Unified Sch. Dist., 933 F.3d 1096, 1100 (9th Cir. 2019) (internal
quotation marks and citation omitted).
Here, the inadequacy and futility exceptions to IDEA’s exhaustion
requirement do not apply to J.F.’s failure to exhaust administrative remedies.
Specifically, exhaustion was not inadequate because J.F.’s claims are not systemic.
Doe, 111 F.3d at 682. Rather, J.F. seeks relief only as to one component of SDU’s
special education program—the provision of one-to-one aides—for only some

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periods of time. See Paul G., 933 F.3d at 1102. And the 2017 examples that J.F.
alleges support a finding of futility have no real connection to SDU’s alleged
failure, beginning in 2018, to provide aides in accordance with J.F. and the class’
individualized education plans.
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Thus, even taking the factual allegations in J.F.’s
complaint as true, Hoeft v. Tuscon Unified Sch. Dist., 967 F.2d 1298, 1301 n.2 (9th
Cir. 1992), exhaustion would not be futile because SDU could comply with an
administrative order to provide the one-to-one aides. Requiring J.F. to exhaust
would also serve exhaustion’s purposes by giving SDU the “opportunity to
correct” the aide problem before the issue is brought to federal court. Id. at 1303.
2. The district court abused its discretion in denying leave to amend. The
“denial of an opportunity to amend is within the discretion of the District Court,
but outright refusal to grant the leave without any justifying reason appearing for
the denial is not an exercise of discretion; it is merely abuse of that discretion and
inconsistent with the spirit of the Federal Rules.” Sharkey v. O’Neal, 778 F.3d
767, 774 (9th Cir. 2015) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).
And “where the record does not clearly dictate the district court’s denial, we have

1
Similarly, J.F.’s allegations of staff and budget concerns are a far cry from the
budget concerns in Kerr Center Parents Ass’n v. Charles, 897 F.2d 1463 (9th Cir.
1990) that made exhaustion futile. In Kerr, the school district specifically denied
plaintiffs’ requested due process hearing and said it would not provide the funds
necessary for plaintiffs’ education. Id. at 1470. In contrast, J.F. alleges
generalized funding problems reported by old news articles that have little
connection to his claims and are thus insufficient to render the administrative
process futile.

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been unwilling to affirm absent written findings, and have reversed findings that
were merely conclusory.” Klamath–Lake Pharm. Ass’n v. Klamath Med. Serv.
Bureau, 701 F.2d 1276, 1292–93 (9th Cir. 1983) (internal citations omitted).
When dismissing J.F.’s FAC without leave to amend, the district court
recited the relevant standard, but did not actually apply that standard or give any
reason for denying leave to amend. Instead, it merely concluded, “Plaintiff’s FAC
is DISMISSED without leave to amend.” Moreover, the record does not clearly
dictate denying leave to amend on futility grounds because J.F. could have alleged
new facts excusing the exhaustion requirement. See United States v. Corinthian
Colls., 655 F.3d 984, 995 (9th Cir. 2011). The district court did not appear to
know about or inquire into J.F.’s reasons for requesting leave to amend. But J.F.
alleges he could have truthfully added an allegation that other students tried to file
administrative complaints on the aide issue, but SDU told them, through their
attorneys, something to the effect of “please stop filing; we know we don’t have
aides, and we can’t do anything about it.” This new allegation does not contradict
J.F.’s pleadings. See id. And importantly, it bears on whether J.F.’s claims are
systemic by hinting at the inadequacy of the IDEA’s dispute resolution procedure.
See Doe, 111 F.3d at 682–83. Because J.F. might have added allegations with the
potential to excuse exhaustion, amendment was not futile as a matter of law and
the district court’s lack of written findings was an abuse of discretion. See

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Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002). J.F. is therefore entitled
to leave to amend.
AFFIRMED in part, REVERSED in part, and REMANDED.