NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 15-1277
                                   ________________

     M.S., Minor Child through next best friend Marialisa Shihadeh; MARIALISA
                      SHIHADEH; RAYMOND SHIHADEH,

                                        Appellants

                                             v.

    MARPLE NEWTOWN SCHOOL DISTRICT; MARPLE NEWTOWN SCHOOL
                 DISTRICT BOARD OF DIRECTORS


                                   ________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                              (D. C. Civ. No. 2-11-cv-05857)
                     District Judge: Honorable Luis Felipe Restrepo
                                   ________________

                       Submitted under Third Circuit LAR 34.1(a)
                                  on October 5, 2015

              Before: FUENTES, SMITH and NYGAARD, Circuit Judges

                               (Filed: December 22, 2015)

                                   ________________

                                       OPINION*
                                   ________________


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
FUENTES, Circuit Judge.

       Appellants challenge the District Court’s dismissal of their claims for lack of

subject matter jurisdiction. For the following reasons, we will affirm the District Court’s

judgment in part, vacate in part, and remand for further proceedings.

                                             I.

       According to the Complaint in this action, minor child M.S.’s sister was sexually

assaulted by B.C., a boy from M.S.’s high school. Over the course of three years, and

despite repeated requests to the contrary, the high school placed M.S. in classes with B.C.

and his brother J.C., both of whom subjected M.S. to verbal and psychological

harassment. While in high school, M.S. was diagnosed with anxiety disorder and post-

traumatic stress syndrome. The school nonetheless refused to assign M.S. and her

harassers to different classrooms, and M.S. eventually transferred to homebound

instruction to avoid contact with the brothers.

       M.S. and her family (Appellants here) brought claims against the school district

and its board (collectively, the “School District”) under Section 504 of the Rehabilitation

Act of 1973, 29 U.S.C. § 794 (“Section 504”) and the Americans with Disabilities Act,

42 U.S.C. § 12132 (“ADA”). Appellants alleged that the School District failed to

accommodate M.S.’s disabilities and retaliated against her family for asserting their

Section 504 and ADA rights. The District Court dismissed the Complaint with prejudice

for lack of subject matter jurisdiction because Appellants failed to exhaust their




                                             2
administrative remedies under the Individuals with Disabilities Education Act, 20 U.S.C.

§§ 1400-1482 (“IDEA”).1

                                              II.

         Congress enacted the IDEA to ensure that children with disabilities get access to a

free appropriate public education (“FAPE”).2 The IDEA permits parents who believe

their child is being denied a FAPE to file a complaint and obtain a hearing with respect to

“any matter relating to the identification, evaluation, or educational placement of the[ir]

child, or the provision of a free appropriate public education to such child . . . .”3 After

completing—i.e., exhausting—this administrative hearing process, an aggrieved party

may seek judicial review in federal court.4 A plaintiff’s failure to exhaust administrative

remedies under the IDEA deprives federal courts of subject matter jurisdiction.5

         Section 1415(l) of the IDEA requires plaintiffs to exhaust IDEA’s administrative

process not only in actions brought directly under the statute, but also “in non-IDEA

actions where the plaintiff seeks relief that can be obtained under the IDEA.”6 This

provision “‘bars plaintiffs from circumventing the IDEA’s exhaustion requirement by

taking claims that could have been brought under IDEA and repackaging them as claims


1
  We have jurisdiction pursuant to 28 U.S.C. § 1291, and exercise plenary review over
the District Court’s decision to dismiss the Complaint under Rule 12(b)(1). Free Speech
Coal., Inc. v. Att’y Gen., 

, 530 (3d Cir. 2012).
2
    20 U.S.C. § 1400(d)(1)(A).
3
    

4
    

5
    Batchelor v. Rose Tree Media Sch. Dist., 

, 272 (3d Cir. 2014).
6
    Id.; 20 U.S.C. § 1415(l).

                                              3
under some other statute—e.g., section 1983, section 504 of the Rehabilitation Act, or the

ADA.’”7 A non-IDEA claim is subject to the IDEA’s exhaustion requirement if it

“relates[s] to the identification, evaluation, or educational placement of the child, or the

provision of a free appropriate public education to such child.”8

                                             III.

         The Complaint asserts two claims under Section 504 and the ADA: (1) an

accommodation claim based on the School District’s failure to separate M.S. from her

harassers, and (2) a retaliation claim based on the School District’s response to

complaints from M.S.’s mother. Appellants concede that they did not pursue

administrative remedies under the IDEA prior to bringing suit, and the Complaint does

not plead exhaustion under Fed. R. Civ. P. 8(a)(1). What the Complaint does establish,

however, is that Appellants’ claims could have been remedied through the IDEA

administrative process because they relate to the “educational placement” of M.S. or to

“the provision of a free appropriate public education” to M.S.

         Appellants’ first claim is that the School District failed to accommodate M.S.’s

disabilities and denied her the benefits of the school’s educational programs by refusing

to place M.S. and her antagonists in separate classrooms.9 This claim intrinsically


7
 

(quoting Jeremy H. v. Mount Lebanon Sch. Dist., 

, 281 (3d Cir. 1996)).
8
    

(quoting 20 U.S.C. § 1415(b)(6)(A)).
9
  See Compl. ¶ 45 (District “fail[ed] to accommodate M.S.’s disability by separating M.S.
from J.C. and B.C.”); 

(District “interfered with, discriminated against, or denied
M.S.’s participation in or receipt of benefits, services, or opportunities in the school’s
programs” by “failing to separate M.S. from B.C. and J.C.”).

                                              4
concerns M.S.’s “educational placement.” The complained-of conduct is the School

District’s physical placement of M.S. in particular school classrooms; the remedy, by

Appellants’ own admission, would have been for the School District to place M.S. in

different classrooms. Appellants’ accommodation claim therefore “relates to” the

“educational placement of the child” under Section 1415 of the IDEA, and could have

been remedied through the IDEA administrative process.10 Likewise, the allegations that

the School District “excluded” M.S. from participating in the school’s education program

or denied her the benefits and opportunities of the program all relate to the School

District’s provision of an “appropriate public education” to M.S. under Section 1415 and

could have been raised during the IDEA administrative process. Accordingly, the School

District Court properly dismissed Appellants’ accommodation claim.

         Appellants’ retaliation claim is likewise barred. In Batchelor v. Rose Tree Media

Sch. Dist., we held that “retaliation claims related to the enforcement of rights under the

IDEA must be exhausted before a court may assert subject matter jurisdiction.”11 The

Complaint alleges that M.S.’s mother “stridently campaigned to convince the district to

separate M.S. from J.C. and B.C.”—that is, advocated for changes in M.S.’s “educational

placement” and for improvements in the school’s provision of a “free appropriate public


10
   See Drinker by Drinker v. Colonial Sch. Dist., 

, 865 (3d Cir. 1996)
(“educational placement” under Section 1415 encompasses physical setting in which
student receives education); D.M. v. N.J. Dep’t of Educ., 

, 215 (3d Cir.
2015) (term “educational placement” is read expansively to encompass situations which,
if altered, would likely “affect in some significant way the child’s learning experience”
(internal quotation omitted)).

.

                                              5
education.”12 The School District allegedly retaliated by disciplining M.S. at school,

circulating an investigation report with private details about M.S. and her sister, and

refusing to separate M.S. from J.C. Because there is a “logical path to be drawn” from

Appellants’ claims of retaliation to the School District’s failure to provide, and M.S.’s

mother’s efforts to obtain, a satisfactory “educational placement” and “free appropriate

public education” for M.S., the retaliation claims required exhaustion.13

         Appellants offer several arguments against dismissal, none convincing. First, they

urge us to overrule or in some way amend the holding in Batchelor. But a panel of this

Court may not overrule another panel’s decision.14 Second, Appellants rely on the

Supreme Court’s decision in Chevron Oil Co. v. Huson, 

(1971), to argue that

Batchelor should not be “retroactively” applied to this case on equitable grounds.

Chevron Oil has been overruled, and the modern retroactivity rule is that a newly-

announced federal rule applies to all open, non-final cases pending in the district courts

or on appeal.15

         Appellants also argue that this case is distinguishable from Batchelor because the

child in that case had an Individualized Education Plan pursuant to 20 U.S.C. § 1414(d)

that dictated the terms of his FAPE, while M.S. did not. Appellants do not explain why

this distinction should matter, and nothing in Batchelor suggests that the exhaustion

12
     Compl. ¶¶ 22, 55.
13
     See 

.
14
     Pa. Pharmacists Ass’n v. Houstoun, 

, 534 (3d Cir. 2002).
15
  See Atl. Coast Demolition & Recycling v. Bd. of Chosen Freeholders, 

,
672 (3d Cir. 1997) (citing Reynoldsville Casket Co. v. Hyde, 

(1995)).

                                              6
requirement extends only to claimants who have already availed themselves of IDEA

safeguards. Rather, Batchelor makes clear that any plaintiff raising claims that could be

remedied through the IDEA’s administrative process must exhaust them before filing

suit.16 Appellants next argue that Batchelor applies only to retaliation claims and not

direct accommodation claims. This reads Batchelor too narrowly: the general rule

announced in Batchelor is that any non-IDEA claim is subject to the exhaustion

requirement if it “relates to” the “identification, evaluation, or educational placement of

the child, or the provision of a free appropriate public education to such child.”17

          Finally, Appellants argue that their accommodation claim could not have been

redressed through the IDEA administrative process because it targets the school’s failure

to prevent peer-to-peer bullying, rather than any particular shortfalls in M.S.’s education.

This assertion is belied by the specific allegations in the Complaint. Appellants do not

claim that the School District failed to discipline the harassers or intercede in the

harassment as it was happening. Rather, as noted above, Appellants’ specific complaint

is that the school failed to place M.S. in particular classroom settings, thereby

exacerbating her post-traumatic stress syndrome and anxiety disorder. Such a claim

“relates to” the “educational placement” of a disabled, IDEA-eligible child, and could

.
17
     

.

                                              7
have been remedied through an IDEA hearing.18 It therefore required exhaustion under

Batchelor.

                                            IV.

       For the reasons set forth above, the District Court properly determined that the

Complaint should be dismissed for lack of subject matter jurisdiction. But it was

incorrect for the District Court to dismiss the case with prejudice. Since the District

Court lacked jurisdiction over the action, it had no power to render a judgment on the

merits.19 We will therefore vacate the District Court’s January 5, 2015 order to the

limited extent that it dismissed Appellants’ claims with prejudice, and remand for the

District Court to enter an appropriate order.




18
  See 20 U.S.C. § 1414(d)(1)(A)(i)(VII) (formulation of individualized education
program for disabled student must identify the specific locations at which the child is to
receive special education).
19
  See Gambocz v. Yelencsics, 

, 840 (3d Cir. 1972) (“Dismissal with
prejudice constitutes an adjudication of the merits as fully and completely as if the order
had been entered after trial.”); Christopher v. Stanley-Bostitch, Inc., 

, 100 (1st
Cir. 2001) (“When a federal court concludes that it lacks subject matter jurisdiction over
a case, it is precluded from rendering any judgments on the merits of the case.”). For the
same reason, the District Court’s alternative conclusion that the School District was
entitled to summary judgment on Appellants’ Section 504 and ADA claims was not a
valid ground for entering judgment in the School District’s favor.

                                                8