UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SHANNON AIELLO, a minor by her
parents and next friends; MARK
AIELLO; CHRISTINE AIELLO,
Plaintiffs-Appellants,

v.

NANCY S. GRASMICK, (officially)
                                      No. 97-1389
State Superintendent of Schools;
MARYLAND STATE DEPARTMENT OF
EDUCATION; CAROL S. PARHAM,
(officially) Superintendent; ANNE
ARUNDEL COUNTY BOARD OF
EDUCATION,
Defendants-Appellees.

LAURA GREIF, a minor by her
parents and next friends; SUSAN
GREIF; PETER GREIF,
Plaintiffs-Appellants,

and

AVIVA BENSIMON, a minor, by her
parents and next friends, Simon and
                                      No. 97-1400
Helen Bensimon; SIMON BENSIMON;
HELEN BENSIMON; GABRIEL
ZAMALLOA, a minor, by his parents
and next friends, Lorena and Edgar
Zamalloa; LORENA ZAMALLOA;
EDGAR ZAMALLOA,
Plaintiffs,
v.

NANCY S. GRASMICK, in her official
capacity; MARYLAND STATE
DEPARTMENT OF EDUCATION; PAUL
VANCE, in his official capacity,
Superintendent; MONTGOMERY
COUNTY PUBLIC SCHOOLS,
Defendants-Appellees.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CA-96-3323-MJG, CA-94-3313-MJG)

Argued: October 3, 1997

Decided: June 9, 1998

Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge,
and HERLONG, United States District Judge for the
District of South Carolina, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Gary P. Peller, GEORGETOWN UNIVERSITY LAW
CENTER, Washington, D.C., for Appellants. Jo Ann Grozuczak Goe-
dert, Assistant Attorney General, Baltimore, Maryland; Eric Charles
Brousaides, LAW OFFICE OF RICHARD EKSTRAND, Greenbelt,
Maryland, for Appellees. ON BRIEF: Matthew B. Bogin, Michael J.
Eig, BOGIN & EIG, Washington, D.C., for Appellants. J. Joseph Cur-
ran, Jr., Assistant Attorney General, Baltimore, Maryland; P. Tyson

                   2
Bennett, REESE & CARNEY, Annapolis, Maryland; Zvi Greismann,
MONTGOMERY PUBLIC SCHOOLS, Rockville, Maryland, for
Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The plaintiffs, disabled children and their parents, appeal the dis-
trict court's dismissal of their lawsuit for lack of Article III standing.
The plaintiffs sued on the novel theory that they were denied a "due
process" right guaranteed to them by the Individuals with Disabilities
Education Act (IDEA) when the defendants retroactively imple-
mented a new statute that revised Maryland's system for administra-
tive review of special education placements. We hold that the
procedure the plaintiffs claim they were due under the IDEA, a local
hearing formerly provided for by Maryland law, was not incorporated
into the IDEA. Since local hearings are not an IDEA-given right, the
denial of the plaintiffs' pending local hearings did not raise federal
retroactivity concerns and the plaintiffs' claim is without merit. How-
ever, this claim was not so insubstantial as to warrant a dismissal for
lack of standing. Accordingly, we affirm the district court's judgment
of dismissal, but we do so on the ground that the plaintiffs failed to
state a claim upon which relief can be granted.

I.

As the Supreme Court has said, the IDEA, 20 U.S.C.§ 1400-1485
(1994),1 is "an ambitious federal effort," funded by grants, "to assist
_________________________________________________________________
1 Unless otherwise specified, we refer to the IDEA as in effect at the
time relevant to this lawsuit, that is, prior to the effective date of the Indi-
viduals with Disabilities Education Act Amendments for 1997, Pub. L.
No. 105-17, 111 Stat. 37.

                     3
state[s] . . . in educating [disabled] children." Board of Educ. v.
Rowley, 

, 179 (1982). To qualify for federal special edu-
cation funding under the IDEA, a state must have a policy that assures
disabled children a "free appropriate public education" (FAPE). See
20 U.S.C. § 1412(1). The "State educational agency" (the state's
department or board of education) is responsible for distributing
IDEA funds to "local educational agencies" (local boards of education
or school districts). See 20 U.S.C. § 1411(c). For a local educational
agency to receive these funds, it must establish an"individualized
education program" (IEP) for each disabled child at the beginning of
each school year. See 20 U.S.C. § 1414(a)(5).

To ensure that parents have the opportunity to participate in the
development of their child's IEP, the IDEA requires state and local
educational agencies (that receive funding under the Act) to establish
several procedural safeguards. See 20 U.S.C.§ 1415(a). For example,
educational agencies receiving IDEA funds must provide the parents
of a disabled child the right to examine all relevant records with
respect to the child's educational program. These agencies must give
parents written notice of any proposal to change (or of any refusal to
change) the child's program. See § 1415(b)(1)(A), (C). A disabled
child's parents must also be given the opportunity to obtain an inde-
pendent educational evaluation for their child. See § 1415(b)(1)(A).
Further, IDEA-funded educational agencies must provide parents with
"an opportunity to present complaints with respect to any matter relat-
ing to . . . the provision of a [FAPE]" for the child. § 1415(b)(1)(E).

Whenever such a complaint is made, "the parents or guardian shall
have an opportunity for an impartial due process hearing."
§ 1415(b)(2). The hearing "shall be conducted by the State educa-
tional agency or by the local educational agency . .., as determined
by State law or by the State educational agency." 

a local agency to hold the hearing must provide "any party
aggrieved by the findings and decision rendered in such a hearing"
with an opportunity for impartial state level review of the decision
rendered in the local hearing. § 1415(c). Finally, "any party aggrieved
by the findings and decision" at the state level hearing "shall have the
right to bring a civil action with respect to the complaint" in state or
federal court. § 1415(e)(2).

                    4
In this case plaintiffs Shannon Aiello and Laura Greif are two dis-
abled children who attend school in Maryland, in Anne Arundel
County and Montgomery County, respectively. Under the IDEA,
defendant Maryland State Department of Education (MSDE) is the
state educational agency and defendants Anne Arundel County Board
of Education and the Montgomery County Public Schools are the
local educational agencies. It is undisputed that the IDEA requires the
MSDE and the pertinent local agency to provide Shannon Aiello and
Laura Greif with a FAPE.

This dispute began when the parents of Shannon Aiello and the
parents of Laura Greif made separate claims that their children had
been denied a FAPE because school officials did not place their chil-
dren in appropriate special education settings. Each set of parents reg-
istered a complaint and requested a due process hearing. The Aiellos
filed their request with Anne Arundel County on November 3, 1995,
and the Greifs filed theirs with Montgomery County on June 13,
1996. Both requests were filed in compliance with the requirements
of the MSDE's procedures then existing for challenging special edu-
cation placements.

At the time the Greifs and Aiellos requested due process hearings,
Maryland had in place a two-tiered system for review of special edu-
cation placements. The first tier consisted of a local hearing by an
impartial hearing officer or hearing board. See Md. Code Ann., Educ.
§ 8-415(a)(2)(I)-(ii) (Michie, 1995 Supp.) (current version at Md.
Code Ann., Educ. § 8-413(c)-(d) (Michie 1997)). The second tier
involved state level review by an impartial three-person panel, con-
sisting of one administrative law judge (ALJ) from the Maryland
Office of Administrative Hearings (OAH) and two hearing officers.
See § 8-415(b)(5).

In April 1996 the Maryland General Assembly amended section 8-
415. This amendment, effective July 1, 1996, eliminated the local
hearing and replaced the state level panel with a single ALJ from
OAH. See Act effective July 1, 1996, ch. 190, 1996 Md. Laws 310
(repealing and reenacting section 8-415, with changes, as section 8-
413). At the time of the amendment neither Laura Greif nor Shannon
Aiello had received a local hearing. The Greifs had not yet requested
a hearing; the Aiello hearing had been convened on April 14, 1996,

                    5
but was continued by consent of both sides before any testimony was
taken.

In May 1996 the MSDE promulgated a policy to apply the new,
one-tiered review system to disabled children who, like Laura Greif,
had requested but not received hearings as of July 1. The policy also
required the transfer to an OAH judge of cases, such as Shannon Aiel-
lo's, in which local hearings were convened before July 1 but in
which no testimony had been taken. The Greifs and Aiellos were noti-
fied of the transfer of their cases to the OAH on June 17 and July 2,
1996, respectively.

The Aiellos and Greifs refused to participate in the new one-tiered
system. Instead, they sued the state (MSDE) and local agencies (and
the superintendent of each agency) in district court. The two families
(in separate complaints) alleged that: (1) the defendants had failed to
provide the children with a FAPE as required by the IDEA ("the
FAPE claim") and (2) the defendants had denied them the two-tiered
review process they were due under the IDEA ("the IDEA due pro-
cess claim").2 The FAPE claim was based on § 1415(e)(2) of the
IDEA, and the IDEA due process claim was based on§ 1415(e)(2)
and 42 U.S.C. § 1983. In a pendent state law claim the plaintiffs
asserted a violation of Maryland's Administrative Procedure Act ("the
Maryland APA claim").

For their IDEA due process claim, the Aiellos and Greifs argued
that forcing them into Maryland's new, one-tiered review system was
an impermissible retroactive application of the new section 8-413,
because they had "invoked their right to" local hearings before the
new law's July 1 effective date. The plaintiffs argued further that they
could bring this claim in federal court without first seeking relief
under Maryland's new one-tiered review system because the ALJ
from OAH lacked the authority to grant them local hearings. The
plaintiffs contended that exhaustion of their FAPE claim was also
unnecessary because any submission of that claim to the new single-
_________________________________________________________________
2 The plaintiffs did not claim that application of the new one-tiered
review process to them violated the Due Process Clause of the United
States Constitution. Instead, they claimed a right that, according to them,
flows from the "due process" component of the IDEA.

                    6
tiered (state level) review system would moot their requests for local
hearings.

The plaintiffs sought several forms of relief in their complaints in
district court. Each set of parents asked the district court to order that
their child be placed at a specific private school, that the particular
local educational agency fund the placement, and that the agency
reimburse them for the cost of tuition at that school for the 1995-96
school year. The plaintiffs also asked for a declaration that consign-
ment of their pending cases to the new one-tiered system was a viola-
tion of the IDEA and for an injunction ordering the local agencies to
provide them with local review hearings.

The district court dismissed each of the plaintiffs' claims. In con-
sidering the IDEA due process claim, the court said that exhaustion
of that claim would be futile (and was therefore unnecessary) because
the ALJ from OAH had no power to change Maryland's new review
system. See Aiello v. Grasmick, No. 96-3323, mem. op. at 8 (D. Md.
Feb. 28, 1997). The court then concluded that the procedures afforded
to the plaintiffs by the new, one tiered review system did not violate
any provision of the IDEA. See 

conclusion led the
court to hold that the plaintiffs had no standing to challenge the
revised system in federal court because their concerns did not "rise to
the level of `injury in fact.'" See 

the court dis-
missed the plaintiffs' IDEA due process claim for lack of subject mat-
ter jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1). See 

the district court decided that the plaintiffs did not have a
right under the IDEA to a local hearing, it turned to the claim that the
defendants had failed to provide the children with a FAPE. The FAPE
claim was dismissed because the plaintiffs had not exhausted their
administrative remedies under the new, single-tiered system of
review. See 

court next invoked the doctrine of sovereign
immunity to dismiss the Maryland APA claim against the MSDE. See

this state statutory claim against the local defen-
dants was then dismissed because no federal claims remained. See 

28 U.S.C. § 1367(c)(3) (1994)).

The Aiellos and Greifs appealed, and their cases were consolidated.

                     7
II.

We first consider whether the district court erred in dismissing the
plaintiffs' IDEA due process claim for lack of subject matter jurisdic-
tion, specifically, for lack of standing. This is a question of law, so
we review it de novo. See Marshall v. Meadows, 

, 905-
06 (4th Cir. 1997).

The subject matter jurisdiction of federal courts is limited by Arti-
cle III of the Constitution to "Cases" or"Controversies." U.S. Const.
Art. III, § 2, cl. 1. The doctrine of standing is an essential component
of the case or controversy requirement. See Allen v. Wright, 

, 750-51 (1984); 

. For there to be Article
III standing, the plaintiffs must show (1) they have suffered "injury
in fact" that (2) was caused by the conduct they challenge and (3) can
be remedied by a favorable judicial decision. See Lujan v. Defenders
of Wildlife, 

, 560-61 (1992); Suhre v. Haywood County,

, 1085 (4th Cir. 1997). Only the first element of stand-
ing, injury in fact, is at issue here.

Injury in fact is defined as "an invasion of a legally protected inter-
est which is (a) concrete and particularized, and (b) actual or immi-
nent, not conjectural or hypothetical." Lujan , 504 U.S. at 560 (internal
citations and quotations omitted). In many cases the issue of whether
the plaintiffs assert injury in fact turns on whether they have a suffi-
cient "personal stake in the outcome of the controversy" to give them
the incentive to be vigorous advocates in the litigation. See Baker v.
Carr, 

, 204 (1962). When plaintiffs assert their own
rights there is "ordinarily little question" that they have claimed a suf-
ficient personal stake in the outcome to claim injury in fact and there-
fore gain standing. 

.

Sometimes, however, the injury in fact question turns not on
whether the plaintiffs have a sufficient personal stake in the outcome
but on whether the injury they assert is legally protected under federal
law. This happens in cases where the plaintiffs assert a novel claim
of federal right and contend that the deprivation of that right is the
"legally protected interest" to which they have suffered "injury in
fact." This is such a case. The Aiellos and Greifs allege that they suf-
fered an injury to a right protected by the IDEA when they were

                     8
denied local hearings and allowed only state level hearings because
(they assert) this denial was retroactive. This would be a personalized
injury, but the question for standing purposes is whether it is legally
protected.

Here, the district court dismissed the Aiellos' and Greifs' IDEA
due process claim for lack of standing, concluding that they had "`no
legally protected interest' on which to base their claim." Aiello v.
Grasmick, No. 96-3323, mem. op. at 9 (D. Md. Feb 28, 1997). The
court reached this conclusion after squarely deciding that Maryland's
new, one-tiered review system did not violate any provision of the
IDEA. See 

we ultimately conclude that the plain-
tiffs do not state a claim upon which relief can be granted (see part
III), they do have standing.

When a court assesses whether a plaintiff has a legal interest suffi-
cient to gain standing, it simply asks whether the federal claim is
"wholly insubstantial and frivolous." Bell v. Hood, 

, 682-
83 (1946); see also Oneida Indian Nation v. County of Oneida, 

, 666 (1974) (the test for standing is whether the plaintiffs
claim is "so insubstantial, implausible, foreclosed by prior decisions
of [the Supreme] Court, or otherwise completely devoid of merit as
not to involve a federal controversy"). This test"is a rigorous one
against the [movant]," Ridenour v. Andrews Fed. Credit Union, 

, 719 (4th Cir. 1990), and federal jurisdiction exists if there
is "any foundation of plausibility to the claim," 13B C. Wright, et al.,
Federal Practice and Procedure § 3564, at 71 (2d ed. 1984). Even a
non-frivolous assertion that a claim may be implied from a federal
statute is sufficient for jurisdiction. See 

.

The Aiellos and Greifs allege that the defendants violated the
IDEA's due process requirement by denying them local hearings. No
language in the IDEA requires states to provide disabled children with
local hearings, and in fact the statute explicitly gives states the option
of providing either a state level hearing or a local hearing with state
level review, see 20 U.S.C. § 1415(b)(2)(c). The plaintiffs acknowl-
edge this. Nevertheless, they contend that: (1) when states provide
procedural protections like local hearings that are consistent with the
IDEA's goals (but not required by the Act's language), the IDEA
implicitly incorporates these procedures into federal law, and (2) all

                     9
of the IDEA's procedural protections, including state procedures
incorporated into the Act, are substantive federal entitlements. As we
explain in part III, these two contentions form the basis for the plain-
tiffs' claim that even though the text of the IDEA makes local place-
ment review hearings optional, once Maryland provided for local
hearings and the plaintiffs requested them, the MSDE's decision to
transfer their cases to the OAH for state level hearings constituted the
retroactive denial of a substantive, IDEA-given right.

This is a unique claim. However, no precedent in the Supreme
Court or any circuit explicitly forecloses it, and the two bases asserted
to support the claim stem from non-frivolous readings of federal
authorities. First, because the IDEA mandates that a disabled child's
IEP meet any state educational standards that provide for a greater
educational benefit than the IDEA itself requires, see Burke County
Bd. of Educ. v. Denton, 

, 982-83 (4th Cir. 1990), the
plaintiffs argue that the IDEA also incorporates any state procedure
adopted to further the goals of the IDEA, even though the procedure
goes beyond what the IDEA's text requires. Second, because the
Supreme Court has emphasized the importance of the IDEA's proce-
dural protections, see Board of Educ. v. Rowley , 

, 205-
06 (1982), the plaintiffs argue that all of the IDEA's procedural pro-
tections (including incorporated state procedures) rise to the level of
substantive entitlements. Although we ultimately reject the plaintiffs'
first argument (we do not reach the second), we find neither to be
completely lacking in plausibility. As a result, the claim derived from
these arguments -- that once a state decides to implement local
review hearings, the IDEA gives disabled children a federal right to
these hearings -- is not wholly insubstantial or frivolous. Therefore,
the Aiellos and Greifs had Article III standing, and the district court
erred in dismissing their claim for lack of subject matter jurisdiction.

III.

Because there is federal subject matter jurisdiction, we will con-
sider whether the plaintiffs have stated a claim upon which relief can
be granted. We are comfortable in deciding this issue because the dis-
trict court actually looked at the merits of the IDEA due process claim
in the course of assessing its jurisdiction. See Brewster of Lynchburg,
Inc. v. Dial Corp., 

, 361 n.3 (4th Cir. 1994) ("We have

                     10
consistently recognized that even though we disagree with the reason-
ing of the district court, we may affirm the result on different grounds
if fully supported by the record."); see, e.g., Karnak Educ. Trust v.
Bowen, 

, 1520 (11th Cir. 1987) (affirming a Rule
12(b)(1) dismissal on Rule 12(b)(6) grounds). Also, the issue was
fully briefed and argued to us. Further, the defendants do not contest
(and thus we need not address) the district court's ruling that the
plaintiffs did not have to exhaust their state administrative remedies
before proceeding to federal court because exhaustion would have
been futile.

As we have explained, the Aiellos and Greifs claim that they were
denied a statutory "due process" right guaranteed by the IDEA when
the defendants implemented Maryland's new, one-tiered special edu-
cation placement review system. The plaintiffs do not claim that the
IDEA generally requires that disabled children be provided with local
placement review hearings. Since § 1415(b)(2) explicitly allows states
to implement either a one- or two-tiered placement review system, the
plaintiffs concede that states may opt not to provide disabled children
with local review hearings. However, the plaintiffs argue, once a state
offers disabled children the opportunity for such hearings, the state
may not retroactively revoke that opportunity; if a state changes its
law to do away with local hearings, it may do so only prospectively.

Here, the plaintiffs claim, the MSDE's implementation of the new
Maryland Code, Education section 8-413 (and the one-tiered review
system the statute created) did not violate the IDEA when MSDE
denied local hearing requests made after section 8-413's July 1, 1996,
effective date. That, the plaintiffs claim, was prospective implementa-
tion of section 8-413. The MSDE's mistake, the plaintiffs say, was
applying the new statute to the Aiellos' and Greifs' hearing requests,
which were filed before July 1. The application of section 8-413 to
these pending hearing requests (and the transfer of the pending com-
plaints to OAH for state level hearings) was retroactive, the plaintiffs
argue.

Of course, it would have been improper for the MSDE to imple-
ment section 8-413's new one-tiered review system in a way that
resulted in the retroactive revocation of the plaintiffs' local review
hearings. New statutes are presumed not to apply retroactively absent

                    11
clear legislative intent to the contrary. See Landgraf v. USI Film
Products, 

, 265, 280 (1994).3 However, the plaintiffs'
claim that the MSDE retroactively revoked their local hearings
merely begs the question of whether denying pending local hearing
requests (as occurred in Laura Greif's case) or canceling scheduled
local hearings (as occurred in Shannon Aiello's case) is, in fact, retro-
active. Yet, whether the denial of already requested or already sched-
uled local hearings is retroactive depends entirely on whether disabled
children have an enforceable federal right to local review hearings in
the first place. This is so for two reasons.

First, a new statute is not retroactive simply because it is applied
in a case arising from conduct that occurred prior to its enactment.
See 

a statute is retroactive only when it "attaches
new legal consequences to events completed before its enactment."

is to say, application of a new statute in a pending
case is retroactive if the statute impairs existing rights, creates new
duties, increases liability for past conduct, see 

changes
existing procedures in a way that is fundamentally unfair to the liti-
gants, see 

Therefore, a statute is not retroactive unless
it adversely affects a substantive federal right or changes procedures
in a way that does injustice to litigants in the case at hand.4

Second, the rule against retroactivity is a rule of federal statutory
interpretation, not a constitutional prohibition. Retroactive state stat-
utes are of no federal concern so long as they otherwise comport with
the Constitution. See 

retroactive application
of a state statute might violate the state's own rules of statutory inter-
pretation (that is, state retroactivity law), any lawsuit brought on such
_________________________________________________________________
3 The defendants do not argue that the relevant legislative body
intended that the new Maryland Code, Education section 8-413 be
applied to pending local hearing requests. Therefore, we need not address
this issue.
4 We reject the plaintiffs' contention that the denial of their local
review hearings caused them injustice. The plaintiffs have not claimed
that their ability to obtain the ultimate relief they seek -- tuition reim-
bursement for the defendants' alleged failure to provide Shannon Aiello
and Laura Greif with a FAPE -- would be hampered by the change from
a one-tiered review system to a two-tiered review system.

                     12
a theory would not implicate federal retroactivity law. The only way
a state statute's implementation would raise federal retroactivity con-
cerns is if the state law is itself enforceable under federal law because
it has been incorporated into federal law.

From the foregoing it should be clear that the Aiellos' and Greifs'
claim that they were retroactively denied local review hearings is just
another way of arguing that they had a substantive federal right to
local review hearings when they made their hearing requests. This
puts the plaintiffs right back where they started. They are faced with
the obvious problem that no language in the IDEA gives them a sub-
stantive federal right to a local review hearing.

Realizing this, the Aiellos and Greifs argue that they did indeed
have a substantive federal right to local review hearings. This argu-
ment is founded on the two propositions we discussed briefly in part
II. First, the plaintiffs contend that the IDEA implicitly incorporates
state procedures that expand on the minimum procedural protections
stated in the IDEA. As a result, they argue, the IDEA turns state pro-
cedural rights into federal procedural rights. This would mean that a
state's violation of its own IDEA-related procedures would violate the
IDEA itself, even when (as here) the IDEA does not require the state
to implement those procedures in the first place. Second, the plaintiffs
contend that the IDEA is a special statute that transforms all proce-
dural protections implemented under its auspices (like local review
hearings) into substantive rights. As a result, they claim that although
Maryland law created their right to local review hearings, the IDEA
made that right enforceable against the defendants. If both these con-
tentions are correct, then the IDEA guaranteed Shannon Aiello and
Laura Greif a substantive federal right to the local review hearings
provided for by Maryland law.

We turn to the plaintiffs' first proposition, that the IDEA incorpo-
rated the old law which provided for local review hearings, Maryland
Code, Education section 8-415. We begin, as we must, with the
IDEA's plain language. With regard to local review hearings, the
plain language of the IDEA is precisely that, plain. The relevant sec-
tion of the IDEA states that whenever a disabled child's parents (or
guardian) files a complaint relating to any aspect of the child's educa-
tion, "the parents or guardian shall have an opportunity for an impar-

                     13
tial due process hearing." 20 U.S.C.§ 1415(b)(2) (emphasis added).
This language indicates that federal law entitles the parents or guard-
ian of a disabled student to one due process hearing, not two. Section
1415(b)(2) goes on to explain that the required due process hearing
"shall be conducted by the State educational agency or by the local
educational agency . . ., as determined by State law or by the State
educational agency." 

language makes it
quite clear that state law, not federal law, governs the question of
whether due process hearings will be held at the state or local level.
That being so, the denial of local hearings implicates state law, not
the IDEA.5

The Aiellos and Greifs argue that this is an over-simplified reading
of § 1415. That section, they claim, only sets forth the minimum pro-
cedural protections that states must provide to the parents of disabled
children. Section 1415, they say, does not prohibit state efforts to pro-
vide additional procedural protections for parents under the auspices
of the IDEA, as long as these procedures are consistent with the Act's
guarantee of a FAPE. Moreover, the plaintiffs urge, whenever a state
creates additional procedural protections that are consistent with the
IDEA, § 1415 makes these procedures part of the IDEA insofar as
they comply with the policies of the IDEA. This, the plaintiffs argue,
is the plain meaning of the language in § 1415(b)(1), which states that
"the procedures required by this section shall include, but shall not
be limited to" the procedures listed therein.§ 1415 (b)(1) (emphasis
added).

We agree that this "the procedures required . . . shall not be limited
to" language suggests that states may be required (not just allowed)
to provide certain procedures not set forth in § 1415 once the state has
opted to provide them. However, we reject the plaintiffs' interpreta-
tion of this language as incorporating into the IDEA all state-created
procedural protections. Even if the "shall not be limited to" language
federalizes some state-created procedures that are not required in the
_________________________________________________________________
5 Of course, if the state opts for a two-tiered hearing system, the local
hearing must be conducted by an impartial hearing officer, and the state
agency must provide any aggrieved party with impartial review. See
§ 1415(b)(2), (c). These are federal rights.

                     14
first instance by the IDEA, it does so only in limited circumstances.6
The "shall not be limited to" language appears only in subsection
(b)(1) of § 1415 (which sets forth the procedural safeguards that states
must provide in order to involve parents in the cooperative process of
creating the disabled child's IEP). However, this language does not
appear in the subsection we are directly concerned with in this case,
subsection (b)(2) (which provides for an adversarial due process hear-
ing, so that parents may receive impartial review of their child's IEP
when they cannot otherwise settle their differences with educators).
If Congress had intended for the "shall not be limited to" language to
apply to subsection (b)(2), it could have manifested its intention by
repeating that language in subsection (b)(2). But it did not. We think
Congress did not include that language in subsection (b)(2) for a rea-
son. Subsection (b)(2) is written to indicate that it is immaterial to
Congress whether a state opts to provide for a local hearing. In our
opinion, Congress would not implicitly incorporate into federal law
a procedure it explicitly made optional. Accordingly, if the "shall not
be limited to" language in subsection (b)(1) indicates that the IDEA
may incorporate some state-created procedures that go above and
beyond what the IDEA itself requires, then it does so only for those
procedures implemented under the auspices of subsection (b)(1). The
language therefore does not apply to subsection (b)(2).7

We also find no support for the plaintiffs' incorporation claim in
cases like Burke County Bd. of Educ. v. Denton , 

, 982-
_________________________________________________________________
6 Since § 1415(b)(1) does not indicate where the incorporated proce-
dures are to originate, it is not at all clear that the "shall not be limited
to" language refers to state-created procedures. This reference may be a
simple reminder to states that the United States Department of Education
is authorized to promulgate regulations to implement the IDEA, see, e.g.,
Due Process Procedures for Parents and Children, 34 C.F.R.
§§ 300.500-300.515 (1998), with which states receiving IDEA funds
must comply. Cf. Beth V. v. Carroll, 

, 82, 84-88 (3d Cir. 1996)
(citing the "shall not be limited to" language and holding that the IDEA
provides plaintiffs with a cause of action to challenge a state's noncom-
pliance with federal regulations implementing the IDEA).
7 In any event, we note that future IDEA plaintiffs will not be able to
rely on this language for support. Congress omitted the "shall not be lim-
ited to" language when it recently amended the IDEA. See Pub. L. No.
105-17, 111 Stat. 37, 88.

                    15
83 (4th Cir. 1990), where we recognized that the IDEA incorporates
state educational standards that exceed those minimum goals envi-
sioned by the IDEA itself. This is because the IDEA explicitly incor-
porates all state educational standards into the IDEA, see 20 U.S.C.
§ 1401(18)(B), but does not explicitly incorporate local hearings into
federal law.

In sum, we hold that the IDEA did not incorporate Maryland Code,
Education section 8-415, the law that formerly provided for local
review hearings. Because the plaintiffs cannot establish the first prop-
osition necessary to their IDEA due process claim, we need not con-
sider the second proposition. The plaintiffs' IDEA due process claim
must be rejected for failure to state a claim upon which relief may be
granted.

IV.

Since we reject the Aiellos' and Greifs' IDEA due process claim
on the merits, we also must dismiss their FAPE claim for failure to
exhaust state administrative remedies. In their briefs the plaintiffs
argued that exhaustion of the FAPE claim was unnecessary because
it was closely intertwined with their IDEA due process claim (which,
they argued, they did not have to exhaust). At oral argument, how-
ever, the plaintiffs' lawyer conceded that they would have to exhaust
state administrative review of their FAPE claim if we rejected their
due process claim.8 Therefore, we uphold the lower court's dismissal
of the FAPE claim.

We also affirm the district court's dismissal of the plaintiffs' Mary-
land APA claim against the local educational agencies and the indi-
vidual defendants.9 Normally, we would remand this state law claim,
because the presence of federal jurisdiction over the plaintiffs' IDEA
due process claim renders the district court's dismissal for lack of
_________________________________________________________________
8 As a result, we need not address the question the plaintiffs originally
posed to us, whether plaintiffs may bring exhaustible IDEA claims
directly to district court when they also allege an inexhaustible IDEA
claim over which the court has jurisdiction.
9 The plaintiffs have not appealed the district court's grant of summary
judgment for the MSDE on sovereign immunity grounds.

                    16
supplemental jurisdiction permissive rather than mandatory. Compare
28 U.S.C. § 1367(a) (1994) (district courts have supplemental juris-
diction over related state law claims in cases where they otherwise
have original jurisdiction) with 

may
decline to exercise supplemental jurisdiction in cases where they have
dismissed all other federal claims); see also Davis v. Pak, 

, 651 (4th Cir. 1988) ("the difference between dismissing a weak
federal claim via Fed. R. Civ. P. 12(b)(6) or in dismissing it for lack
of jurisdiction" is that "[i]f a court disposes of the claim on the merits,
it retains the power to decide any . . . pendent state law claims" but
if it dismisses for lack of jurisdiction, "the court is also without juris-
diction to decide any state issues."). However, remand is unnecessary
here because the district court has already indicated in dicta that it
would exercise its discretion under § 1367(c)(3) to dismiss the plain-
tiffs' state law claims once their IDEA claims were dismissed. See
Aiello v. Grasmick, No. 96-3323, mem. op. at 12 (D. Md. Feb. 28,
1997). Therefore, the district court's orders dismissing the plaintiffs'
complaints are

AFFIRMED.

                     17