     Case: 10-40976     Document: 00511677588         Page: 1     Date Filed: 11/28/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                        November 28, 2011

                                       No. 10-40976                        Lyle W. Cayce
                                                                                Clerk

M. L., as next friend of minor; B. L., as next friend of minor; Z. L., a minor,


                                                  Plaintiffs-Appellants

v.

FRISCO INDEPENDENT SCHOOL DISTRICT,


                                                  Defendant-Appellee




                   Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 4:09-CV-392


JONES, Chief Judge, and STEWART and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        The district court concluded that a student and his representatives failed
to exhaust administrative remedies under the Individuals with Disabilities
Education Act (IDEA). Consequently, the court dismissed their suit. We
AFFIRM.


        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 10-40976

      In August 2008, the plaintiffs requested a due process hearing with the
Texas Education Agency pursuant to the IDEA. 20 U.S.C. § 1400 et seq. The
Agency initiated proceedings. Soon afterwards, the hearing officer sought to
resolve whether any exceptions to Texas’s one year statute of limitation applied.
The hearing officer ordered the parties to submit evidentiary materials on the
limitations issue. The plaintiffs submitted briefing but no evidence. The
defendant responded with a brief and evidence. The hearing officer concluded
that no exceptions to the statute of limitations applied and narrowed the scope
of the hearing to events at the school occurring one year prior to the request for
a hearing. In her order of January 26, 2009, the hearing officer indicated an
openness to the presentation of more evidence on the limitations issue.
      Additional orders and conferences followed prior to the filing of the present
suit. The hearing officer’s final expression of a willingness to receive further
evidence on the limitations issue was in a telephone conference of April 22, 2009.
The due process hearing was scheduled to begin on August 26, 2009, then was
rescheduled to commence on September 21, 2009.
      On August 11, 2009, the plaintiffs filed a complaint in the U.S. District
Court for the Eastern District of Texas. The claim was that the hearing officer
was improperly limiting the due process hearing. A declaratory judgment was
sought that the hearing officer had abused her discretion regarding the statute
of limitations issue. The hearing officer postponed the due process hearing until
after the litigation was concluded. That hearing still has not occurred.
      Because there was never a final ruling by the hearing officer on the claims
the plaintiffs had brought under IDEA, the district court dismissed for failure
to exhaust administrative remedies. The dismissal was said to be for lack of
jurisdiction. The plaintiffs timely appealed.
      There is no question that the student and parents failed to pursue the
administrative process to conclusion.       The parties dispute whether the

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                                   No. 10-40976

exhaustion requirement presents a jurisdictional bar or acts as a claims
processing rule. Under either operation of IDEA’s exhaustion requirement, the
parties dispute whether any exceptions to exhaustion apply.
       The obligation to exhaust the administrative process before filing a suit in
federal court arises from the IDEA itself. One section contains a lengthy set of
procedural guidelines for the due process hearing. 20 U.S.C. § 1415(f). Texas
does not provide for further review within the state administrative process. 19
Tex. Admin. Code § 89.1151(b). Thus, once a party is “aggrieved by the findings
and decision made” by the hearing officer, it has the right to bring suit in district
court. 20 U.S.C. § 1415(i)(2)(A). There is no statutory provision for a suit
seeking interlocutory review of preliminary findings and decisions of the hearing
officer.
       The plaintiffs somewhat imaginatively styled their pleading as an
“Original Complaint and Request for Declaratory Judgment.” The jurisdiction
asserted was under IDEA as an “interlocutory appeal,” for being aggrieved by
“pre-hearing orders” entered in the administrative process. The plaintiffs also
claimed jurisdiction in the district court was proper under the Declaratory
Judgment Act and Federal Rule of Civil Procedure 57. 28 U.S.C. § 2201. The
Declaratory Judgment Act is procedural only and is not an independent basis of
jurisdiction in federal courts.   Vaden v. Discover Bank, 129 S. Ct. 1262, 1278
n.19 (2009) (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240 (1937)).
The plaintiffs have waived any argument about the impact of the declaratory
nature of this action on the jurisdictional analysis by failing to raise it in their
brief. ANR Pipeline Co. v. La. Tax Comm’n, 646 F.3d 940, 949 (5th Cir. 2011).
       The plaintiffs claim that further process would have been futile because
the hearing officer allegedly had rejected their statute of limitations arguments.
The district court was unconvinced by this argument. It dismissed the suit for
lack of jurisdiction, holding that the administrative rulings were not even final

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                                  No. 10-40976

because the hearing officer indicated a willingness to consider additional
evidence. Moreover, there was no right to an interlocutory “appeal” of pre-
hearing rulings in the IDEA administrative process.
      Because the ruling was based on an absence of jurisdiction, the Supreme
Court’s recent warnings become relevant about using the jurisdictional label too
readily. The Court has cautioned “that a rule should not be referred to as
jurisdictional unless it governs a court’s adjudicatory capacity, that is, its
subject-matter or personal jurisdiction. Other rules, even if important and
mandatory . . . should not be given the jurisdictional brand.” Henderson ex rel.
Henderson v. Shinseki, 131 S. Ct. 1197, 1202-03 (2011) (citations omitted).
      The Ninth Circuit recently addressed a similar question. See Payne v.
Peninsula Sch. Dist., 653 F.3d 863, 870-71 (9th Cir. 2011) (en banc). There, no
due process hearing was ever held. Id. at 866. There had been a plan developed
for the student’s education under the structures of IDEA, and the parents
became dissatisfied with the manner in which that plan was being implemented.
Id. at 865-66. They brought suit under Section 1983 for violations of the child’s
rights under the Constitution and under IDEA. Id. at 866. The jurisdictional
argument was based on the failure of the plaintiffs to use the administrative
processes available to them prior to bringing suit. Id. The Ninth Circuit
interpreted the meaning of this specific exhaustion requirement in IDEA:
      before the filing of a civil action under such laws seeking relief that
      is also available under this subchapter, the procedures under
      subsections (f) [due process hearing] and (g) [administrative appeal,
      when available] shall be exhausted to the same extent as would be
      required had the action been brought under this subchapter.

20 U.S.C. § 1415(l). The court held that this statutory exhaustion obligation did
not present a jurisdictional bar because the statute did not clearly indicate
Congress’s intent for this section to be jurisdictional. Payne, 653 F.3d at 870-71.



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                                  No. 10-40976

      We need not decide whether the Ninth Circuit applied the right label to
the procedural issue it faced.     The only issues before us are whether the
plaintiffs failed to exhaust and, since they did fail, whether they have
demonstrated futility. The Supreme Court has held that futility in pursuing
administrative relief is an exception to exhaustion under IDEA. Honig v. Doe,
484 U.S. 305, 327 (1988). We conclude that futility was not proven, as we will
later explain. Therefore, purely as a matter of district court discretion, there
was no obligation to allow the suit to continue even were exhaustion not
jurisdictional. Exhaustion serves vital interests, many of which were thwarted
by the premature filing of this litigation and the multi-year delay in having the
due process hearing for this child.
      So we turn to the futility argument. The court reviews de novo dismissals
for failure to exhaust administrative remedies. Pacheco v. Mineta, 448 F.3d 783,
788 (5th Cir. 2006).
      The IDEA requires that states receiving federal funding provide for a “free
appropriate public education” for all children with disabilities. 20 U.S.C. §
1400(d)(1)(A). In order to vindicate the statutory rights, the IDEA provides a
mechanism to challenge the education being provided. 20 U.S.C. § 1415(b)(6)(A).
A challenge under the IDEA proceeds through a state administrative process
consisting of a due process hearing conducted by a hearing officer. 20 U.S.C. §
1415(f)(1)(A).   At the end of the administrative process, either party may
challenge the result in federal district court. 20 U.S.C. § 1415(i) (2). The IDEA
requires administrative exhaustion prior to instituting an action in federal court.
20 U.S.C. § 1415(l). The exhaustion requirement seeks to ensure that parties
resolve all “educational issues underlying their claims.” Kutasi v. Las Virgenes
Unified Sch. Dist., 494 F.3d 1162, 1169 (9th Cir. 2007). Exhaustion is required
so long as a plaintiff is seeking some remedy under the IDEA. See id. at 1168.



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                                  No. 10-40976

      Generally, a party required to pursue administrative relief may refuse to
engage in or complete such process “where exhaustion would be futile or
inadequate.”    Honig, 484 at 327.          The plaintiffs bear the burden of
demonstrating futility. Gardner v. Sch. Bd. Caddo Parish, 958 F.2d 108, 112
(5th Cir. 1992). The plaintiffs argue that exhaustion would be futile because
they would not be able to make a complete record prior to bringing their case to
the district court. “To show futility, a plaintiff must demonstrate that adequate
remedies are not reasonably available or that the wrongs alleged could not or
would not have been corrected by resort to the administrative hearing process.”
Coleman v. Newburgh Enlarged City Sch. Dist., 503 F.3d 198, 205 (2d Cir. 2007)
(quotation marks and citation omitted). A complaint that the plaintiffs may not
have been able to present a full factual record is premature when there is no
record of actual limitations placed on the plaintiffs’ evidentiary presentation.
      The plaintiffs should have exhausted their administrative remedies prior
to seeking judicial review.
      The plaintiffs argue in the alternative that the hearing officer’s orders are
collateral orders that are appealable prior to administrative exhaustion. See
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). “To fall within
Cohen’s collateral order doctrine, an order must (1) conclusively determine the
disputed question, (2) resolve an important issue completely separate from the
merits of the action, and (3) be effectively unreviewable on appeal from a final
judgment.” Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 171 (5th Cir.
2009) (quotation marks and citation omitted).
      The elements of the collateral order doctrine do not exist here.             A
determination that a certain limitations period applies does not conclusively
resolve an underlying issue and is not separate from the merits of a case. Aldy
v. Valmet Paper Mach., 74 F.3d 72, 75 (5th Cir. 1996). The plaintiffs have
expressed concern about the limited evidentiary presentation the hearing officer

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                                 No. 10-40976

seemingly would have allowed them to make on the statute of limitations issue
at the due process hearing. The fact that they filed this suit before the due
process hearing occurred means there is no record of actual limitations imposed
on their evidentiary presentation. The error the plaintiffs allege – limitations
on an evidentiary presentation – does not present a risk of harm to a substantial
public interest that is effectively unreviewable on appeal. Will v. Hallock, 546
U.S. 345, 353 (2006).
      In light of our conclusions, all pending motions are denied.
      AFFIRMED.




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