FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEBRUARY 27, 2007

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-13525

Non-Argument Calendar

________________________

D. C. Docket No. 05-02918-CV-JTC-1

J.P., a minor by his next friend Martin Pope his father, 

MARTIN POPE,

Plaintiffs-Appellants,

versus

CHEROKEE COUNTY BOARD OF EDUCATION, 

DR. FRANK R. PETRUZIELO, 

individually and as Superintendent of Cherokee County School District, 

SARAH HOSKINS, individually and as Special Education Director, 

HAM KIMZEY, individually, and as former Special Education Director, 

SHERRY GREEN, individually and as SpecialEducation Supervisor, et al.,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(February 27, 2007)

Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
Given the still-pending nature of the administrative proceedings, we DENY Appellees’ 1

motion to dismiss this appeal as moot. Cf. DeSimone v. Linford, 494 F.2d 1186 (5th Cir. 1974)

(appeal from denial of preliminary injunction pending administrative appeal was moot after

completion of administrative appeal).

2

Plaintiffs J.P., a minor, and his father, Martin Pope, appeal the district court’s

dismissal of their claims for violations of the Individuals with Disabilities Education

Act (“IDEA”), 20 U.S.C. §§ 1400 et seq.; § 504 of the Rehabilitation Act of 1973,

29 U.S.C. § 794a; the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101

et seq.; 42 U.S.C. § 1983; and various provisions of Georgia law. Plaintiffs sued the

Cherokee County School District, Superintendent Frank Petruzielo, and several other

employees of the School District for monetary damages resulting from physical,

emotional, and educational injuries Plaintiffs allege J.P. suffered at the hands of the

Defendants in November 2003, while he was attending an after-school program at

Chapman Intermediate School. The district court dismissed the complaint based on

Plaintiffs’ failure to exhaust administrative remedies under the IDEA before bringing

this lawsuit. 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

County, 135 F.3d 1420, 1421 (11th Cir. 1998). After careful review, we affirm.1

The parties are familiar with the relevant facts, which the district court

enumerated in its dismissal order, and we do not recount them here. The IDEA
 In Georgia, these hearings are conducted by the Office of State Administrative Hearings. 2

See Ga. Comp. R. & Regs. 160-4-7-.18(1)(e).

The exhaustion requirement applies to claims asserting the rights of disabled children under 3

not only the IDEA, but also the ADA, § 504 of the Rehabilitation Act of 1973, and the Constitution.

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

3

guarantees that disabled students receive a “free and appropriate public education”

(“FAPE”) through the provision of various special education services, including an

“individualized education program” (“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 (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.2

See 20 U.S.C. § 1415(f); 34 C.F.R. § 300.403(b). 

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 court 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 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). “The philosophy of the IDEA is that plaintiffs are required to 3

utilize the elaborate administrative scheme established by the IDEA before resorting
4

to the courts to challenge the actions of the local school authorities.” N.B. v. Alachua

County Sch. Bd., 84 F.3d 1376, 1378 (11th Cir. 1996) (quotation omitted) (emphasis

added). Thus, because exhaustion is a prerequisite to the civil action contemplated

by § 1415(l), a parent’s failure to exhaust administrative remedies by requesting and

participating in a due-process hearing will result in dismissal of the civil action. Id.;

see also Ass’n for Retarded Citizens of Ala. v. Teague, 830 F.2d 158, 160 (11th Cir.

1987). 

Consistent with the unambiguous statutory language, which provides that “any

matter relating to the identification, evaluation, or educational placement of the child,

or the provision of a [FAPE] to such child,” 20 U.S.C. § 1415(b)(6) (emphasis

added), we have interpreted the IDEA’s exhaustion requirement as applying to a

“broad” spectrum of claims. M.T.V., 446 F.3d at 1158. Thus, M.T.V.’s parents’

claims based on past retaliation, which included allegations of harassment at IEP

meetings, intimidating letters, and needless and instructive 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. See also Babicz, 135 F.3d at 1420.

Here, the district court dismissed Plaintiffs’ claims because they related to the

FAPE provided to J.P. pursuant to the requirements of the IDEA. It was undisputed

that the only request for a due-process hearing relating to J.P.’s FAPE occurred in
Neither the § 504 committee meeting in the month following the November incident, nor 4

the two IEP meetings in January and February 2004 constitute (or can be construed as the functional

equivalent of) a request for a due-process hearing, within the meaning of the IDEA. While one

provision of the IDEA provides for a parent’s participation in certain meetings concerning his or her

child’s FAPE, 20 U.S.C. § 1415(b)(1), a completely different section addresses, and lays out the

requirements for, the administrative hearings that must take place upon the filing of a request for a

due-process hearing, id. §§ 1415(f), (i)(2). In short, we are unpersuaded by Plaintiffs’ argument that

attendance at § 1415(b)(1) meetings satisfies the IDEA’s “due process hearing” requirement for

administrative exhaustion.

We have considered, and are unpersuaded by, Plaintiffs’ argument that exhaustion of 5

administrative remedies would be futile because the money damages they seek relate to only past

injuries. See N.B., 84 F.3d at 1379 (rejecting IDEA plaintiff’s argument that exhaustion of

administrative remedies would be futile because the defendant school districts lack authority to grant

the relief requested, namely money damages). In N.B., we observed that “if the plaintiff’s argument

is to be accepted, then future litigants could avoid the exhaustion requirement simply by asking for

relief that administrative authorities could not grant. This goes against the very reason that we have

the exhaustion requirement, which is ‘[to prevent] deliberate disregard and circumvention of agency

procedures established by Congress.’” Id. (quoting Teague, 830 F.2d at 160). 

5

proceedings that took place in 2001 and resulted in a settlement agreement as to the

claims asserted in the 2001 complaint. The instant claims, by contrast, concern 4

whether Defendants’ actions in November 2003 violated the IDEA and constituted

a breach of the provisions of the settlement agreement. The district court noted that

the instant dispute “[a]t its heart, . . . is about a failure to sufficiently provide a

[FAPE] to [J.P.] and the adverse educational consequences of that failure.” Because

J.P.’s alleged injuries primarily relate to the provision of his FAPE, and thus

constitute educational injuries (as opposed to physical injuries), Plaintiffs were

required to exhaust administrative remedies before filing this court action. The 5

district court properly dismissed the matter since it lacked subject matter jurisdiction.
6

AFFIRMED.