                                                                               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                             NOT FOR PUBLICATION                                FEB 10 2010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.


                                        2
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.




                                           3
      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


                                           4
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


                                           5
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.




                                           6
