M.A.F v. Ripon Unified School District ( 2010 )

FILED
NOT FOR PUBLICATION FEB 10 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
Z.F., a minor, by and through his parents No. 08-17708
M.A.F and J.F, et al.,
D.C. No. 2:08-cv-00855-GEB-
Plaintiffs - Appellants, JFM
v.
MEMORANDUM *
RIPON UNIFIED SCHOOL DISTRICT,
et al.,
Defendants - Appellees,
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Argued and Submitted January 11, 2010
San Francisco, California
Before: WALLACE, HUG and CLIFTON, Circuit Judges.
Plaintiffs appeal the district court’s dismissal of their suit for lack of subject
matter jurisdiction due to a failure to exhaust their administrative remedies under
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1482.
We affirm.
STANDARD OF REVIEW
In reviewing a Federal Rule of Civil Procedure 12(b)(1) motion to dismiss
for lack of subject matter jurisdiction, this court accepts the allegations in
Plaintiffs’ complaint as true and draws all reasonable inferences in their favor.
Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). Whether exhaustion is
required under the IDEA is a question of law that this court reviews de novo.
Kutasi v. Las Virgenes Unified Sch. Dist., 494 F.3d 1162, 1166 (9th Cir. 2007).
DISCUSSION
I. Exhaustion
The principal difficulty with Plaintiffs’ position on appeal is the IDEA’s
mandate that they exhaust their administrative remedies prior to filing a civil
action:
Nothing in this chapter shall be construed to restrict or limit the rights,
procedures, and remedies available under the Constitution, the
Americans with Disabilities Act of 1990 [42 U.S.C. § 12101 et seq.],
title V of the Rehabilitation Act of 1973 [29 U.S.C. § 791 et seq.], or
other Federal laws protecting the rights of children with disabilities,
except that before the filing of a civil action under such laws seeking
relief that is also available under this subchapter, the procedures under
subsections (f) and (g) shall be exhausted to the same extent as would be
required had the action been brought under this subchapter.
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20 U.S.C. § 1415(l) (emphasis added); see also Hoeft v. Tucson Unified Sch. Dist.,
967 F.2d 1298, 1302 (9th Cir. 1992) (“The IDEA . . . does provide administrative
appeal procedures to be pursued before seeking judicial review.”). Here, the only
processes completed before Plaintiffs filed this lawsuit were (1) a rejected joint
request for a due process hearing before the Office of Administrative Hearings and
(2) Z.F.’s complaint before the California Department of Education. [3 ER at 283-
285] The Office of Administrative Hearings was within its authority to reject the
joint due process request, as the IDEA contemplates only individual due process
hearings. See 20 U.S.C. § 1415(b)(6)(A) (mandating an opportunity to present a
complaint as to “the child”); § 1415(f)(1)(B)(i)(IV) (discussing resolution
involving “the parents of the child”).
Furthermore, filing a complaint with the California Department of Education
constitutes exhaustion when “the only purposes served by exhaustion are to notify
the state of local noncompliance and to afford it an opportunity to correct the
problem.” See Hoeft, 967 F.2d at 1308. In this case, where several plaintiffs have
now obtained relief from local agencies, local resolution of education matters is
demonstrably served by requiring Plaintiffs to pursue individual due process
procedures.
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In sum, because no plaintiff exhausted the IDEA’s administrative procedures
prior to filing suit, Plaintiffs have not exhausted their administrative remedies as
required by 20 U.S.C. § 1415(i)(2)(A) and 20 U.S.C. § 1415(l). Those plaintiffs
who exhausted their administrative remedies subsequent to the filing of this action,
by resolving all of the educational issues through settlements or completed
administrative hearings, may file a new action to pursue any remaining claims. See
Kutasi, 494 F.3d at 1169.
II. Excuses for Exhaustion
Plaintiffs have also failed to demonstrate they are entitled to bypass the
IDEA’s administrative procedures. Excuses for exhaustion include the following:
(1) it would be futile to use the due process procedures; (2) an agency has adopted
a policy or pursued a practice of general applicability that is contrary to the law;
(3) it is improbable that adequate relief can be obtained by pursuing administrative
remedies; and (4) a systemic or structural IDEA violation is at issue. See Doe v.
Ariz. Dep’t of Educ., 111 F.3d 678, 681-82 (9th Cir. 1997); Hoeft, 967 F.2d at
1303-04.
A. Futility
If a plaintiff seeks a remedy for an injury that could not be redressed by the
IDEA’s administrative procedures, exhaustion is unnecessary. Kutasi, 494 F.3d at
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1168. “On the other hand, if the injury could be redressed ‘to any degree’ by the
IDEA’s administrative procedures–or if the IDEA’s ability to remedy an injury is
unclear–then exhaustion is required.” Id. (quoting Robb v. Bethel Sch. Dist. No.
403, 308 F.3d 1047, 1050 (9th Cir. 2002)). The IDEA’s administrative procedures
are not futile in this case. Indeed, A.N., J.H., L.H., and Z.F. have already availed
themselves of these procedures and obtained favorable outcomes. As such, this
excuse for exhaustion does not apply.
B. Policy of General Applicability
The Plaintiffs are also not excused from exhaustion by asserting a policy of
general applicability. As stated in Hoeft, “Eligibility criteria and methodology are
classic examples of the kind of technical questions of educational policy best
resolved with the benefit of agency expertise and a fully developed administrative
record.” 967 F.2d at 1305. Here, where Plaintiffs challenge application of the
Early Intensive Behavioral Treatment Program Procedures and Guidelines’
eligibility criteria, their claims are subject to the IDEA’s administrative procedures.
C. Inadequate Relief
Plaintiffs also may not avail themselves of the inadequate relief excuse for
exhaustion. This court has generally limited this exception to cases of procedural
irregularities that deprive plaintiffs of access to the administrative process. See
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Hoeft, 967 F.2d at 1309. Claims that focus on the content and administration of a
program do not qualify for this exception. See id. Plaintiffs’ complaint does not
challenge the administrative process itself but rather focuses on how the Early
Intensive Behavioral Treatment Program Procedures and Guidelines affect the
provision of education. Accordingly, they have not shown administrative remedies
would be inadequate in this case.
D. Systemic Violation of the IDEA
Last, Plaintiffs do not allege systemic violations of the IDEA. Plaintiffs
challenge only the provision of one program of services through the Early
Intensive Behavioral Treatment Program Procedures and Guidelines. Moreover,
the benefits of exhaustion are not merely hypothetical in this case, as several
Plaintiffs have now received educational remedies. See Doe, 111 F.3d at 682(stating that a claim “is not ‘systemic’ if it involves only a substantive claim
having to do with limited components of a program, and if the administrative
process is capable of correcting the problem.”).
AFFIRMED.
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