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

                                                                            FILED
                                                                           April 17, 2008

                                     No. 07-30959                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


CHRISTY PAPANIA-JONES, Individually and on behalf of B.J.;RICHARD
CHRISTOPHER JONES, Individually and on behalf of B.J.

                                                  Plaintiffs-Appellants
v.

NICHOLE DUPREE; STATE OF LOUISIANA, on behalf of Department of
Health and Hospitals

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:07-CV-1092


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Plaintiffs-Appellants Christy Papania-Jones and Richard Christopher
Jones on behalf of their son B.J. (the “Jones family”) appeal the District Court
order granting the motion to dismiss filed by Defendants-Appellees State of
Louisiana and Nichole Dupree (together “State”). 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                       No. 07-30959

       The Jones family requested occupational therapy for their developmentally
delayed son through the State’s Early Steps Program.                    Early Steps is an
intervention program under Part C of the Individuals with Disabilities
Education Act (“IDEA”) administered by the Department of Health and
Hospitals (“DHH”) and managed by Nichole Dupree (“Dupree”). The State
provided the occupational therapy for a time, but ceased providing the therapy
on a consistent basis when B.J.’s therapist resigned. The Jones family filed two
formal, written complaints in compliance with the State’s “initiating formal
complaint” process. The State responded to the Jones family’s complaint,
maintaining it had not violated the IDEA. The Jones family should have
requested a due process hearing next,1 but instead they sued the State under the
IDEA, 42 U.S.C. § 1983, 42 U.S.C. § 1988, the Fourteenth Amendment, the
Louisiana Children with Exceptionalities Act, and the Louisiana Constitution.
       The District Court dismissed the Jones family’s claims, finding that the
Jones family had failed to exhaust administrative remedies as required by the
IDEA. Thus, the District Court held that it lacked jurisdiction over the case.
The District Court declined to exercise supplemental jurisdiction over the Jones
family’s state law claims, and also held that no independent jurisdictional basis
supported the remaining federal law claims. The sole issue in this appeal is
whether the District Court erred in granting the State’s motion to dismiss,
finding that the Jones family failed to exhaust the IDEA’s administrative
remedies.




       1
          After a party files a formal, written complaint with a local or state educational
agency, as did the Jones family, the next procedural step is to request an impartial due process
hearing if the party is not satisfied with the response to their complaint. See 20 U.S.C. §
1415(f). If the party is dissatisfied with the results of the impartial due process hearing, the
next procedural step is to appeal the results of the hearing to the state educational agency for
an impartial review. Id. § 1415(g). Only after the party exhausts these administrative
remedies may the aggrieved party bring a civil action in state or federal court. Id. § 1415(I).

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      We review a District Court decision dismissing a case under to Rule 12(b)
for failure to exhaust administrative remedies de novo. Pacheco v. Mineta, 448
F.3d 783, 788 (5th Cir. 2006) (reviewing de novo a District Court determination
of whether employees had exhausted administrative remedies in an employment
discrimination action). “In our de novo review . . . we apply the same standard
as [did] the [D]istrict [C]ourt: [A] claim may not be dismissed unless it appears
certain that the plaintiff cannot prove any set of facts in support of her claim
which would entitle her to relief.” Bombardier Aerospace Employee Welfare
Benefits Plan v. Ferrer, Poirot, and Wansbrough, 354 F.3d 348, 351 (5th Cir.
2003) (citation omitted). Accordingly, we will affirm only if the Jones family
cannot prove any set of facts to support their claim which would entitle them
relief. See id.
      The Jones family first argues that they were unaware of the exhaustion
requirement because the information provided by the State regarding the
complaint process merely indicated that a party may initiate a due process
hearing but did not mandate that such a hearing was required before filing suit.2
The Jones family’s contention that they did not know of the IDEA’s requirement
to exhaust all its administrative remedies is not a valid excuse. See Ashton v.
United States, 404 F.2d 95, 95-96 (8th Cir. 1968) (stating “failure to exhaust
administrative remedies under the Selective Service Act . . . cannot be lightly
discarded by a simple plea of procedural ignorance”); Castro v. Crawfoot, 102
Fed. Appx. 852, 854 (5th Cir. 2004) (per curiam) (unpublished opinion)
(“[I]gnorance of the law will not relieve Castro of his obligation to exhaust the
available administrative remedies.”). Therefore, we reject the Jones family’s
first argument. See id.



      2
        The Jones family does not dispute the fact that they failed to exhaust the IDEA’s
administrative remedies prior to filing this lawsuit.

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        The Jones family also contends that even if they had known of the
exhaustion requirement, it would have been futile for them to exhaust the
remaining IDEA administrative remedies: requesting a due process hearing,
and if dissatisfied with the results, appealing the hearing to the state
educational agency. See 20 U.S.C. § 1415(f)-(g). “It is true that judicial review
is normally not available under [the IDEA] until all administrative proceedings
are completed, but as [the Supreme Court] previously [has] noted, parents may
bypass the administrative process where exhaustion would be futile or
inadequate.” Honig v. Doe, 484 U.S. 305, 326-27 (1988). The Jones family bears
the burden of proving that administrative review would be futile or inadequate.
See Gardner v. Sch. Bd. Caddo Parish, 958 F.2d 108, 111-12 (5th Cir. 1992).
Even if the Jones family could prove that a portion of the required
administrative review would be futile, i.e. the due process hearing, they must
prove that an appeal of the hearing to the state administrative agency would be
futile as well. See id.
      The Jones family has not met their burden to prove their futility
argument. The Jones family failed to request an impartial due process hearing
and hinges their futility argument on their dissatisfaction with the State’s
response to their two formal, written complaint letters. IDEA allows us to
review the administrative proceedings, including the evidentiary due process
hearing, but does not provide for us to act as the first hearing body. 20 U.S.C.
§ 1415(i)(2)(C). We agree with the District Court in this case that the state
education agency is best situated to hear and resolve IDEA complaints. By
failing to exhaust the IDEA’s administrative remedies, the Jones family did not
give the State an appropriate opportunity to resolve their complaints prior to
filing suit against the State. See Marvin H. v. Indep. Sch. Dist., 714 F.2d 1348,
1358 (5th Cir. 1983) (noting the procedural frameworks set out in the IDEA’s
predecessor, the EAHCA, allows parents and educators an opportunity to make

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joint decisions regarding a disabled child’s education and focuses on a non-
judicial resolution of conflicts).
      The Second Circuit considered this same futility issue and found that
exhaustion may be bypassed in situations with systematic violations that a
hearing officer would have no power to correct. J.S. ex rel. N.S. v. Attica Cent.
Sch., 386 F.3d 107, 113 (2d Cir. 2004). In J.S., six students alleged special
education deprivations such as: failure to provide an adequate Individualized
Education Programs; access to certain areas of the school such as the cafeteria,
music room, computer room, nurse’s office, and swimming pool; and numerous
other systematic violations. Id. at 111-12.         The Second Circuit concluded
exhaustion would be futile in this situation because of Attica’s “total failure to
prepare and implement Individualized Education Programs.”            Id. at 115.
Therefore, the Court found this situation could not be remedied by a hearing
officer in a due process hearing, and noted that if each Plaintiff were required
to exhaust IDEA’s administrative remedies, it could lead to inconsistent results.
See id. at 114.
      The Jones family has not proffered sufficient evidence to support their
futility argument and bypass the important administrative review process We
find the analysis of the Second Circuit in J.S. to be instructive. See J.S., 386
F.3d at 115; see also Crawford v. Pittman, 708 F.2d 1028, 1033 n.17 (5th Cir.
1983) (stating that although the parties failed to exhaust their administrative
remedies, even the state conceded resort to such remedies would have been futile
because of the state’s settled policy of disallowing special education programs
longer than 180 days). Unlike the Plaintiffs in J.S., the Jones family produced
no evidence that they experienced a systematic violation when B.J. failed to
receive his occupational therapy on a consistent basis. See J.S., 386 F.3d at 115.
The Jones family also failed to show that a hearing officer would have been
powerless to correct the alleged IDEA violation had they requested a due process

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hearing. See id. at 114. Finally, the Jones family does not challenge a settled
state policy that could not be addressed through the IDEA’s administrative
remedies. See Crawford, 708 F.2d at 1033 n.17. Therefore, we hold the Jones
family does not fall within the futility exception, and, because they failed to
exhaust all the IDEA’s administrative remedies, the District Court properly
dismissed their case without prejudice. See J.S., 386 F.3d at 115; Crawford, 708
F.2d at 1033 n.17.
      For the above reasons, we AFFIRM the decision of the District Court.
AFFIRMED.




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