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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-14083
Non-Argument Calendar
____________________
KIMBERLY POWELL,
as next of kin and on behalf of J.T.A. a minor,
themselves and all others similarly situated,
YVONNE WOLFE,
as next of kin and on behalf of C.L., a minor,
LYNETTE CLEWS,
as next of kin and on behalf of M.A.R., a minor,
ELICIA RODRIGUEZ,
as next of kin and on behalf of A.J.R., a minor,
MORGAN RICHARDS,
as next of kin and on behalf of D.R.R., a minor, et al.,
Plaintiffs-Appellants.
versus
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2 Opinion of the Court 22-14083
SCHOOL BOARD OF VOLUSIA COUNTY, FLORIDA,
a Political subdivision of the state of Florida,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:21-cv-01791-CEM-EJK
____________________
Before ROSENBAUM, JILL PRYOR, and ABUDU, Circuit Judges.
PER CURIAM:
Kimberly Powell, as next of kin and on behalf of a minor,
J.T.A., and all similarly situated minors (“Appellants”), filed a class
action lawsuit against the School Board of Volusia County, Florida
for allegedly violating the minors’ rights to a free appropriate pub-
lic education (“FAPE”) in violation of the Individuals with Disabil-
ities Education Act (“IDEA”) and the Americans with Disabilities
Act (“ADA”). The Appellants appeal the district court’s order dis-
missing their amended complaint for failure to exhaust administra-
tive remedies under the IDEA.
Given the Supreme Court’s recent intervening decision in
Perez v. Sturgis Public Schools,
143 S. Ct. 859, 865 (2023), which di-
rectly applies to the Appellants’ case, we vacate the district court’s
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22-14083 Opinion of the Court 3
order of dismissal and remand the case for further proceedings con-
sistent with the holding in Perez.
A.
Appellants’ amended complaint alleged claims under § 504
of the Rehabilitation Act of 1973,
29 U.S.C. § 794(a), and Title II of
the ADA, and sought injunctive relief, compensatory damages, and
punitive damages. Specifically, Appellants alleged that the School
Board routinely excluded students with disabilities from classroom
instruction through the use of informal tactics, such as sending chil-
dren home early, instructing parents to keep their children home
even if they were not suspended, and otherwise removing them
from the classroom and, thus, depriving them of an education. Ap-
pellants also alleged instances when the School Board would im-
properly suspend students or institute other formal disciplinary ac-
tions, as well as initiate procedures under the Baker Act,
Fla. Stat.
§ 394.459 (2023). Appellants’ overall contention is that the School
Board systemically discriminated against students with disabilities
by “relying on overtly punitive disciplinary tactics and law enforce-
ment to address behaviors that are known, or should be known,
manifestations of the students’ disabilities.”
B.
Congress promulgated the IDEA with the purpose of ensur-
ing “that all children with disabilities have available to them a
[FAPE] . . .”
20 U.S.C. § 1400(d)(1)(A); Cory D. ex rel. Diane D. v.
Burke Cnty. Sch. Dist.,
285 F.3d 1294, 1298 (11th Cir. 2002) (“The
fundamental objective of the IDEA is to empower disabled
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4 Opinion of the Court 22-14083
children to reach their fullest potential by providing a free educa-
tion tailored to meet their individual needs.”). To receive federal
funds pursuant to the IDEA, states must comply with the statute’s
requirements.
20 U.S.C. § 1412(a). The IDEA contains an exhaus-
tion requirement for certain claims, like the ones in this action,
brought under statutes that may overlap with the IDEA, including
the ADA and the Rehabilitation Act:
Nothing in [the IDEA] shall be construed to restrict
or limit the rights, procedures, and remedies available
under the Constitution, the [ADA], title V of the Re-
habilitation Act of 1973 [including § 504], or other
Federal laws protecting the rights of children with dis-
abilities, except that before the filing of a civil action
under such laws seeking relief that is also available un-
der [the IDEA], the [IDEA’s administrative proce-
dures] shall be exhausted to the same extent as would
be required had the action been brought under [the
IDEA].
20 U.S.C. § 1415(l).
When Appellants filed this appeal, Eleventh Circuit prece-
dent applied this exhaustion requirement even to suits seeking
remedies unavailable under the IDEA, such as compensatory dam-
ages. See, e.g., M.T.V. v. DeKalb Cnty. Sch. Dist.,
446 F.3d 1153, 1157–
58 (11th Cir. 2006) (concluding that claims based on § 1983, the
ADA, the Rehabilitation Act, and the First Amendment were all
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22-14083 Opinion of the Court 5
subject to the IDEA’s exhaustion requirement); see also N.B. by D.G.
v. Alachua Cnty. Sch. Bd.,
84 F.3d 1376, 1379 (11th Cir. 1996) (same).
Relying on Alachua County, the district court held that the Appel-
lants were required to exhaust the IDEA’s administrative process
before pursuing their Rehabilitation Act and ADA claims because
the gravamen of their amended complaint was a denial of a FAPE.
The district court dismissed both claims for failure to satisfy the
IDEA’s exhaustion requirement.
We review de novo the dismissal of a complaint for failure to
exhaust administrative remedies. Babicz v. Sch. Bd. of Broward Cnty.,
135 F.3d 1420, 1421 (11th Cir. 1998). As an initial matter, Appellee
contends that Appellants have failed to meet the standard articu-
lated in United States v. Durham,
795 F.3d 1329 (11th Cir. 2015) (en
banc), for raising a new theory on appeal.
Durham held:
[W]here there is an intervening decision of the Su-
preme Court on an issue that overrules either a deci-
sion of that Court or a published decision of this
Court that was on the books when the appellant’s
opening brief was filed, and that provides the appel-
lant with a new claim or theory, the appellant will be
allowed to raise that new claim or theory in a supple-
mental or substitute brief provided that he files a mo-
tion to do so in a timely fashion after (or, as in this
case, before) the new decision is issued. This new rule
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6 Opinion of the Court 22-14083
applies in all direct appeals currently pending before
us that involve an intervening Supreme Court deci-
sion and in all future direct appeals that do.
Id. at 1331.
This Court’s September 14, 2023, Order directed the parties
to file supplemental briefing discussing the impact of Perez on this
appeal. Both parties responded to the Court’s query, thus obviat-
ing the need of Appellants to file additional supplemental briefing.
Moreover, Appellee contends “Appellants ha[ve] not pre-
served any contention that exhaustion of the administrative reme-
dies provided by [IDEA] was excused because they solely sought
remedies not available under the IDEA.” Appellants, of course, had
no obligation to raise this specific argument below because the law
at the time did not support such a contention. Indeed, Perez, which
issued after the parties completed initial briefing, changed the law.
The Supreme Court clarified that § 1415(l) does not require exhaus-
tion of the administrative processes under the IDEA “where a
plaintiff brings a suit under another federal law for compensatory
damages—a form of relief [the] IDEA does not provide.” 143 S. Ct.
at 864; id. at 865 (“[A] suit admittedly premised on the past denial
of a [FAPE] may nonetheless proceed without exhausting IDEA’s
administrative processes if the remedy a plaintiff seeks is not one
IDEA provides.”). Here, Appellants seek compensatory and puni-
tive damages. The IDEA provides neither. Thus, applying Perez to
this case, Appellants can proceed without attempting to exhaust
administrative remedies that do not exist under the IDEA.
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22-14083 Opinion of the Court 7
Appellee also argues that this Court should affirm the district
court’s order because Powell’s amended complaint fails to unam-
biguously allege monetary compensatory damages. In other
words, Appellee contends that it is unclear whether Plaintiffs are
seeking compensatory education, which is a form of relief under
the IDEA, or monetary damages which the IDEA does not provide.
However, the first paragraph in the “General Allegations” section
of the complaint expressly states: “This is a Class Action for both
damages in excess of $50,000,000 including attorney’s fee[s] and all
allowable costs.” Therefore, Appellants unambiguously sought
compensatory monetary damages under the ADA and not compen-
satory education under the IDEA. Consequently, in light of Perez,
the Appellants should have been allowed to proceed with their
claims regardless of the IDEA’s exhaustion requirements.
CONCLUSION
We VACATE the district court’s order and REMAND this
case for further proceedings consistent with the Supreme Court’s
intervening Perez decision.
