               Case: 13-10901    Date Filed: 11/14/2013   Page: 1 of 8




                                                              [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-10901
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket No. 5:12-cv-00299-RS-EMT



A.L.,
By P.L.B,
P.L.B.,
For Herself,

                                                  Plaintiffs - Appellants,

versus

JACKSON COUNTY SCHOOL BOARD,

                                                  Defendant - Appellee.

                          ________________________

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

                                (November 14, 2013)
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Before HULL, WILSON and JORDAN, Circuit Judges.

PER CURIAM:

       Appellants A.L., a minor, and his mother, P.L.B., appeal the district court’s

dismissal of their claims for injunctive relief (Count I), declaratory relief (Count

II), denial of a free appropriate public education (FAPE) under the Individuals with

Disabilities Education Act (IDEA), 20 U.S.C. § 1400 (Count III), discrimination

under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794a (Count IV), and

retaliation under the IDEA and § 504 (Count V).1 The district court dismissed

Appellants’ complaint based on their failure to exhaust administrative remedies

under the IDEA. We review the district court’s dismissal for failure to exhaust the

IDEA’s administrative remedies de novo. See Babicz v. School Bd. of Broward

Cnty., 135 F.3d 1420, 1421 (11th Cir. 1998) (per curiam). After careful review, we

affirm.

                                               I.




       1
         In their complaint, Appellants also sought a petition for a writ of mandamus (Count VI).
This count is not addressed in Appellants’ initial brief to this court or in their reply brief.
Consequently, we do not address it on appeal. See Access Now, Inc. v. Sw. Airlines Co., 385
F.3d 1324, 1330 (11th Cir. 2004) (holding that a “legal claim or argument that has not been
briefed before the court is deemed abandoned and its merits will not be addressed”).
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       Given the complicated procedural history, we recount it here. In total, the

parties to this appeal have been involved in three due process hearings. 2 We refer

to those hearings as “AL I,” “AL II,” and “AL III,” respectively.

       On June 7 and 21, 2010, an Individualized Education Program (IEP) was

developed for A.L. A new IEP was later developed on November 17, 2010. On

November 24, 2010, prior to the implementation of the November 17, 2010 IEP,

Appellants initiated AL I, the first of the three due process hearings, and raised

various issues regarding A.L.’s right to FAPE and A.L.’s November 17, 2010 IEP.

As a consequence, the November IEP did not take effect and the June IEP became

the stay-put IEP for A.L. pursuant to the automatic stay provisions of the IDEA.

See 20 U.S.C. § 1415(j). After numerous hearings, a final order in favor of the

Jackson County School Board (JCSB) was entered on December 27, 2012.

       Appellants then initiated AL II in April 2012. AL II concerned many of the

same concerns as were challenged in AL I: that A.L. was denied FAPE and that a

new IEP had not been implemented since June 2010. In addition, Appellants

alleged that JCSB retaliated and discriminated against them. AL II was dismissed




       2
         Under IDEA, disputes between the parents and school boards are resolved through due
process proceedings. 20 U.S.C. § 1415(f)(1)(A). A request for a hearing may be made by either
the school board or the parents. 20 U.S.C. §§ 1415(b)(6), (f)(1)(A). In Florida, these hearings
are conducted by an Administrative Law Judge (ALJ) of the Florida Division of Administrative
Hearings (DOAH). See Fla. Admin. Code Ann. r. 6A-6.03311.
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without an evidentiary hearing. The final order was filed in June 2012. This final

order is the subject of the instant appeal.

       The final due process hearing, AL III, was initiated by JCSB in July 2012.

JCSB initiated this hearing to resolve Appellants’ challenges to A.L.’s FAPE and

because Appellants wanted to record A.L.’s IEP meetings. Appellants

counterclaimed for retaliation. A final order in favor of JCSB was entered in

February 2013.3

       Appellants filed their complaint with regard to AL II in federal court on

September 13, 2012. On October 18, 2012, they amended their federal court

complaint. At that time, there had been no final order in either AL I or AL III.

JCSB moved to dismiss Appellants’ federal court complaint because: (1)

Appellants had not exhausted their administrative remedies as required under the

IDEA, and (2) for failure to state a claim upon which relief may be granted. The

district court granted JCSB’s motion to dismiss.

       Now on appeal, Appellants argue that it was error for the district court to

grant JCSB’s motion to dismiss because they had complied with the IDEA’s


       3
          JCSB has requested that we take judicial notice of the pleadings from this due process
hearing (AL III). Federal Rule of Evidence 201(b) provides that “[t]he court may judicially
notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the
trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.” The pleadings from AL III are pleadings and
orders filed with the Clerk of the Florida DOAH. As such, the facts “can be accurately and
readily determined from sources whose accuracy cannot reasonably be questioned.” See Fed. R.
Evid. 201(b). JCSB’s request for judicial notice is GRANTED.
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exhaustion requirements. JCSB argues that we should affirm the district court

because Appellants failed to exhaust their administrative remedies as their federal

court complaint was filed prior to the entry of a final order in either AL I or AL III.

While it is true that there were three separate due process hearings, the claims in

AL I and AL III were substantially similar to those in AL II. As such, JCSB

argues, by failing to exhaust their administrative remedies in AL I and AL III,

Appellants failed to comply with the IDEA and dismissal of AL II was therefore

appropriate.

                                          II.

      The IDEA guarantees that disabled students receive a FAPE through the

provision of various special education services, including an IEP as defined in 20

U.S.C. § 1414(d). See Loren F. ex rel. Fisher v. Atlanta Indep. Sch. Sys., 349 F.3d

1309, 1311–12 (11th Cir. 2003). A parent who wishes to challenge an IEP, or any

matter relating to the provision of a FAPE, may request an “impartial due process

hearing” before an ALJ. 20 U.S.C. § 1415(f).

      Once the administrative proceedings are complete, the IDEA provides that

either party may challenge those proceedings in state or federal court. See 20

U.S.C. § 1415(i)(2)(A). In order to bring such a challenge, however, the IDEA

requires that a plaintiff first exhaust administrative remedies: “before the filing of a

civil action under such laws seeking relief that is also available under this


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subchapter, the procedures under subsections (f) and (g) of this section 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). 4 “The 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.” N.B. v. Alachua Cnty. Sch. Bd., 84 F.3d 1376, 1378 (11th Cir. 1996)

(per curiam) (internal quotation marks omitted).

       We have interpreted the IDEA’s exhaustion requirement as applying to a

“broad” spectrum of claims. See M.T.V., 446 F.3d at 1158. In M.T.V., we found

that M.T.V.’s parents’ claims based on past retaliation, which included allegations

of harassment at IEP meetings, intimidating letters, and needless and intrusive

testing of M.T.V., were “related to” M.T.V.’s education within the meaning of the

IDEA and therefore subject to the exhaustion requirement. Id. at 1158–59; see also

20 U.S.C. § 1415(o) (“Nothing in this section shall be construed to preclude a

parent from filing a separate due process complaint on an issue separate from a due

process complaint already filed.”).

                                               III.



       4
         The exhaustion requirement applies to claims asserting the rights of disabled children
under not only the IDEA, but also the Americans with Disabilities Act (ADA), § 504 of the
Rehabilitation Act of 1973, and the Constitution. See M.T.V. v. Dekalb Cnty. Sch. Dist., 446
F.3d 1153, 1157–58 (11th Cir. 2006).
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      Here, the district court dismissed A.L.’s claims for failure to exhaust

administrative remedies. We agree that the issues raised in Counts I-V of

Appellants’ amended complaint were substantially similar to those issues raised in

AL I and AL III. At the time Appellants filed their amended complaint, neither AL

I nor AL III had concluded as the ALJ had not yet entered a final order on either

matter. Consequently, Appellants failed to exhaust their administrative remedies

before bringing this matter to federal court, and therefore it was correctly

dismissed.

      AFFIRMED.




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JORDAN, Circuit Judge, concurring.


      Had the issues raised by the appellants in AL II been separate and distinct

from the issues raised in AL I, I would agree with the appellants that they could

file a federal action once the ALJ entered a final order in AL II. But, as the Court

correctly notes, the appellants filed AL II while AL I was pending, and the issues

they raised in AL II were largely the same as those presented in AL I. In other

words, AL II was duplicative of AL I and was dismissed by the ALJ on that basis.

Under the circumstances, the appellants did not exhaust their administrative

remedies as to the common issues raised in AL II until the ALJ entered a final

order in AL I on December 27, 2012.




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