UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
August 23, 2012
H. W. ET AL., PLAINTIFFS - APPELLANTS,
LONG BEACH UNIFIED SCHOOL DISTRICT, DEFENDANT - APPELLEE.
Appeal from the United States District Court for the Central District of California S. James Otero, District Judge, Presiding D.C. No. 2:10-cv-07015-SJO-E Central District of California, Los Angeles
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
Argued and Submitted August 7, 2012 Pasadena, California
Before: REINHARDT, SILVERMAN, and WARDLAW, Circuit Judges.
We remand this case to the district court in light of Payne v. Peninsula School District, 653 F.3d 863 (9th Cir. 2011), a decision issued after the district court entered its order. We held in Payne that the Individuals with Disabilities Education Act's exhaustion requirement, 20 U.S.C. § 1415(l), is not jurisdictional and set forth a new relief-based approach, as opposed to an injury-based approach, for determining whether a claim is subject to the exhaustion requirement. In conformity with Payne, the Defendant may file an unenumerated Rule 12(b) motion for failure to exhaust in place of its motion to dismiss for lack of jurisdiction. Plaintiffs shall be afforded the opportunity to respond to Defendant's motion.
IT IS SO ORDERED.
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