                Case: 14-12892     Date Filed: 04/28/2015     Page: 1 of 7


                                                                  [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                   No. 14-12892
                               Non-Argument Calendar
                             ________________________

                         D.C. Docket No. 5:11-cv-04038-CLS

LAURA A.,
individually and as grandmother and next friend of J.O., a minor,

                                                       Plaintiff - Appellant,

versus

LIMESTONE COUNTY BOARD OF EDUCATION,

                                                       Defendant - Appellee.

                             ________________________

                     Appeal from the United States District Court
                        for the Northern District of Alabama
                            ________________________

                                    (April 28, 2015)

Before HULL, MARCUS and ROSENBAUM, Circuit Judges.

PER CURIAM:

         Plaintiff-Appellant Laura A. appeals from the district court’s order granting

summary judgment in her case asserting claims as the grandmother and next friend

of J.O., a minor, against the Limestone County, Alabama, Board of Education,
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pursuant to the Individuals With Disabilities Education Act, 20 U.S.C. §1400 et

seq. (“IDEA”), and § 504 of the Rehabilitation Act of 1973, 29 U.S.C. §

79Limestone County4 (the “Rehabilitation Act”).            The complaint alleges that

Limestone County violated IDEA by determining that J.O. was no longer eligible

for special education, and violated § 504 of the Rehabilitation Act by failing to

provide J.O. with a non-discriminatory public education program. On appeal, Ms.

A. argues that the district court erred in concluding that she failed to exhaust

administrative remedies for her § 504 claim. After thorough review, we affirm.

      We review a grant of summary judgment de novo. Weeks v. Harden Mfg.

Corp., 291 F.3d 1307, 1311 (11th Cir. 2002). Summary judgment is proper if the

evidence, viewed in the light most favorable to the nonmovant, raises no genuine

issue of material fact and compels judgment as a matter of law. Fed.R.Civ.P.

56(a). We also review de novo legal questions involved in the interpretation of

statutes. CP v. Leon Cnty. Sch. Bd. Fla., 483 F.3d 1151, 1156 (11th Cir. 2007).

      IDEA seeks to provide a “free appropriate public education” (“FAPE”) to

students qualifying for special education and related services under one of IDEA’s

thirteen eligibility classifications.   20 U.S.C. § 1401(9).      Section 504 of the

Rehabilitation Act, on the other hand, is anti-discrimination legislation aimed at

providing federally-financed services to individuals with disabilities. 29 U.S.C. §

794(a) (“No otherwise qualified individual with a disability in the United States . . .


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shall, solely by reason of her or his disability, be excluded from the participation

in, be denied the benefits of, or be subjected to discrimination under any program

or activity receiving Federal financial assistance.”). Section 504 applies to all

public schools that receive federal financial assistance. Id. § 794(b)(2). While

IDEA recognizes thirteen categories of disability, § 504 defines individuals with

disabilities to include anyone with a condition that substantially limits a major life

activity, as well as those with a history of disability and those perceived to have a

disability. Id. § 705(20).

      In this case, the Board argues that Ms. A.’s § 504 claim should be dismissed

because she failed to exhaust her administrative remedies.            The exhaustion

requirement for § 504 is found in IDEA, and provides:

      Nothing in this chapter [pertaining to IDEA] 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.A. § 12101 et seq.],
      title V of the Rehabilitation Act of 1973 [29 U.S.C.A. § 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.

20 U.S.C. § 1415(l).         “Thus, whether claims asserting the rights of disabled

children are brought pursuant to the IDEA, the ADA, Section 504, or the

Constitution, they must first be exhausted in state administrative proceedings.”

M.T.V. v. DeKalb Cnty. Sch. Dist., 446 F.3d 1153, 1158 (11th Cir. 2006).


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      In M.T.V., the parents of a child eligible for IDEA services claimed that a

school district retaliated against them for advocating for their son. Prior to suit, the

parents had requested a due process hearing seeking reimbursement from

Limestone County for M.T.V’s vision therapy, and the County had requested a due

process hearing to enforce its right to evaluate M.T.V. by an expert of its choice.

The parents had raised their retaliation claims at these due process hearings, but

had never requested a due process hearing on the retaliation claims. Id. at 1159.

      In rejecting the notion that raising these claims at earlier due process

hearings was sufficient for exhaustion, our Court quoted from the IDEA, which

says that “any party aggrieved by the findings and decision [made by an ALJ]

under this subsection shall have the right to bring a civil action with respect to the

complaint presented pursuant to this section.”             Id. (quoting 20 U.S.C. §

1415(i)(2)(A)). Relying on this “plain language,” we held that M.T.V.’s parents

were required “to file a separate administrative complaint to raise [the retaliation]

issue and exhaust all administrative remedies regarding that complaint before filing

a judicial action.” Id. As we explained, “[t]he philosophy of the IDEA is that

plaintiffs are required to utilize the elaborate administrative scheme established by

the IDEA before resorting to the courts to challenge the actions of the local school

authorities.” Id. at 1158 (quotation omitted). We thus concluded that M.T.V.’s

parents had not exhausted administrative remedies for the retaliation claim.


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      In Babicz v. Sch. Bd. of Broward Cnty., 135 F.3d 1420 (11th Cir. 1998),

parents sought relief for their children under § 504 and the ADA, but not under

IDEA. They had not requested a due process hearing, and argued that because

they had not sought IDEA relief they did not need to comply with its exhaustion

requirements.     The Court rejected this argument, and -- though we did not

expressly hold that the plaintiff’s children fell within the ambit of IDEA --

concluded that IDEA exhaustion cannot be avoided simply by seeking relief not

available under IDEA. Id. at 1422 n.10.

      In this case, Ms. A.’s letter requesting a due process hearing under IDEA

challenged Limestone County’s decision that J.O. was no longer eligible for IDEA

services, alleging that Limestone County had failed to comprehensively evaluate

J.O. and had improperly denied him a FAPE, as required by IDEA. She did not

mention § 504 other than to say that Limestone County had found him eligible for

§ 504 services. Under the plain language of IDEA, before a civil action may be

brought under § 504, “the procedures under subsections (f) and (g) [of § 1415]

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 IDEA further provides

that an aggrieved individual has the “right to bring a civil action with respect to the

complaint presented pursuant to this section.” 20 U.S.C. § 1415(i)(2)(A). Thus,

whether Ms. A.’s claims are brought pursuant to IDEA, the ADA, § 504 or the


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Constitution, they must first be exhausted in state administrative proceedings.

Indeed, it would subvert the purposes of the exhaustion requirement to allow

exhaustion of an IDEA claim to also suffice for a Rehabilitation Act claim seeking

some of the same relief, when the claims have different elements, the proof

required under both statutes is different, and the Rehabilitation Act claim was not

addressed at all during the administrative proceedings. See Association for

Retarded Citizens of Alabama, Inc. v. Teague, 830 F.2d 158, 160 (11th Cir. 1987)

(holding that the purposes behind the exhaustion requirement include: “(1)

permitting the exercise of agency discretion and expertise on issues requiring these

characteristics; (2) allowing the full development of technical issues and a factual

record prior to court review; (3) preventing deliberate disregard and circumvention

of agency procedures established by Congress; and (4) avoiding unnecessary

judicial decisions by giving the agency the first opportunity to correct any error”).

Since Ms. A. did not seek a due process hearing for her § 504 claims, she cannot

now pursue a civil action for those claims.

      Contrary to Ms. A.’s argument, we need not decide whether IDEA

exhaustion is required even if an individual is not eligible for relief under IDEA.

As the record shows, Ms. A. pursued relief under IDEA and instituted an IDEA

hearing; thus, she was not claiming that IDEA did not apply to J.O. Moreover, our

case law bars her argument that it would have been futile to raise her § 504 claims


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in the due process hearing. See N.B. v. Alachua County Sch. Bd., 84 F.3d 1376,

1379 (11th Cir. 1996) (holding litigants cannot “avoid the exhaustion requirement

simply by asking for relief that administrative authorities [cannot] grant,” such as

money damages or relief from a former school district). In any event, IDEA

provides that “[t]he party requesting the due process hearing shall not be allowed

to raise issues at the due process hearing that were not raised in the notice filed

under subsection (b)(7), unless the other party agrees otherwise.” 20 U.S.C. §

1415(f)(3)(B). She did not give notice of her § 504 claim in her IDEA notice, and

therefore could not have pursued her § 504 claim at the hearing no matter what the

hearing officer had jurisdiction over. As a result, she has not demonstrated futility.

See M.T.V., 446 F.3d at 1159 & n.4 (“The burden of demonstrating futility is on

the party seeking exemption from the exhaustion requirement.”).

      AFFIRMED.




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