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Ms. S. v. Regional School Unit 72

United States Court of Appeals, First Circuit

February 15, 2019

MS. S., individually and as parent and legal guardian of B.S., a minor, Plaintiff, Appellee,
v.
REGIONAL SCHOOL UNIT 72, Defendant, Appellant, MAINE DEPARTMENT OF EDUCATION, Defendant. MS. S., individually and as parent and legal guardian of B.S., a minor, Plaintiff, Appellee,
v.
MAINE DEPARTMENT OF EDUCATION, Defendant, Appellant, REGIONAL SCHOOL UNIT 72, Defendant.

          APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. Jon D. Levy, U.S. District Judge]

          Eric R. Herlan, with whom Drummond Woodsum & MacMahon were on brief, for appellant, Regional School Unit 72.

          Sarah A. Forster, Assistant Attorney General, with whom Thomas A. Knowlton, Assistant Attorney General, Of Counsel, and Phyllis Gardiner, Assistant Attorney General, were on brief, for appellant, Maine Department of Education.

          Richard L. O'Meara, with whom Murray, Plumb & Murray was on brief, for appellee.

          Before Lynch, Selya, and Lipez, Circuit Judges.

          LYNCH, CIRCUIT JUDGE.

         These appeals stem from a complaint filed by Ms. S. with the Maine Department of Education ("MDOE") in May 2013 alleging violations of the Individuals with Disabilities Education Act ("IDEA"). The state due process hearing officer dismissed as untimely Ms. S.'s claims about her son B.S.'s education in school years 2009-2010 and 2010-2011 and found no violations as to school years 2011-2012 and 2012-2013.

         In this second decision from this court, we hold that Maine has established a two-year statute of limitations for due process complaints and that it has done so to align its statute of limitations with the IDEA's. Ms. S.'s claims about 2009-2010 and 2010-2011 are thus time barred. More specifically, we reverse the district court's ruling that our earlier decision in Ms. S. v. Regional School Unit 72 (Ms. S. I), 829 F.3d 95 (1st Cir. 2016), foreclosed this interpretation of Maine's Unified Special Education Regulation ("MUSER"), as well as the district court's judgment that Ms. S.'s claims were timely. See MS. S. v. Reg'l Sch. Unit 72, No. 2:13-CV-453-JDL, 2017 WL 5565206, at *7-11 (D. Me. Nov. 20, 2017). And we reject Ms. S's proposed construction of MUSER, her waiver argument, and her contention that Regional School Unit 72 ("RSU 72") misled her. We remand with instructions to dismiss her action with prejudice.

         I. A. Legal Background

         1. The IDEA

         The IDEA requires states receiving federal special education funds to provide eligible children with a free appropriate public education, or FAPE. 20 U.S.C. § 1412(a)(1). Parents concerned that their child is not receiving a FAPE can request a due process hearing before a "State educational agency" in accordance with procedures "determined by State law or by the State educational agency." Id. § 1415(f)(1)(A). State procedures must be consistent with the IDEA's guidelines, which are laid out at 20 U.S.C. § 1415. See Burlington v. Dep't of Educ. for the Comm. of Mass., 736 F.2d 773, 783-85 (1st Cir. 1984).

         Section 1415 did not initially include a statute of limitations, but when Congress reauthorized the IDEA in 2004, it addressed the timeline for due process hearings in three provisions. First, at § 1415(b)(6)(B), in a subsection covering various "[t]ypes of procedures," the IDEA states that a party may file a complaint that:

sets forth an alleged violation that occurred not more than 2 years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for presenting such a complaint under this subchapter, in such time as the State law allows, except that the exceptions to the timeline described in subsection (f)(3)(D) shall apply to the timeline described in this subparagraph.

20 U.S.C. § 1415(b)(6)(B) (emphasis added).

         Second, § 1415 describes due process hearings with particularity, at § 1415 (f). Section 1415(f)(3)(C) provides:

A parent or agency shall request an impartial due process hearing within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for requesting such a hearing under this subchapter, in such time as the State law allows.

Id. § 1415(f)(3)(C) (emphasis added).

         Third, the statute outlines the "[e]xceptions to the timeline" referenced at § 1415(b)(6)(B). One exception applies where "the parent was prevented from requesting the hearing due to . . . specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint." Id. § 1415(f)(3)(D).

         In 2015, the Third Circuit held in G.L. v. Ligonier Valley School District Authority, 802 F.3d 601, 604-05 (3d Cir. 2015), that "§ 1415(b)(6)(B) is simply an inartful attempt to mirror § 1415(f)(3)(C)'s two-year statute of limitations." In 2017, the Ninth Circuit concluded the same. See Avila v. Spokane Sch. Dist. 81, 852 F.3d 936, 937 (9th Cir. 2017).

         2. MUSER

         In 2007, Maine enacted a state-specific time limitation, which is provided in MUSER. MUSER mirrors the language of the IDEA. First, MUSER § XVI.5.A(2) tracks the language of 20 U.S.C. § 1415(b)(6)(B) and states:

The due process hearing request must allege a violation that occurred not more than two years before the date the parent . . . knew or should have known about the alleged action that forms the basis of the due process hearing request.

Me. Code R. 05-071, Ch. 101 ("MUSER") § XVI.5.A(2) (emphasis added). Second, MUSER § XVI.13.E tracks the language of 20 U.S.C. § 1415(f)(3)(C) and reads:

A parent . . . must request an impartial hearing on their due process hearing request within two years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the due process hearing request.

Id. § XVI.13.E (emphasis added). Third, at § XVI.13.F, MUSER describes the "[e]xceptions to the timeline" provided at § 1415(f)(3)(D) of the IDEA. Id. § XVI.13.F. B. Procedural Background

         Our decision in Ms. S. I offers background on B.S.'s education. See 829 F.3d at 100-02. Here, we give the relevant procedural facts.

         Ms. S. filed a due process hearing request in May 2013 alleging that B.S. had not received a FAPE in his four years of high school, from 2009 through 2013. The Maine hearing officer dismissed as untimely the claims about B.S.'s ninth and tenth grade years because they had been filed more than two years after Ms. S. knew or should have known of any IDEA violations. On B.S.'s eleventh and twelfth grade years, the hearing officer determined that B.S. had received a FAPE, except during a short period when he was between schools.

         Ms. S. sought judicial review in federal district court. She did not contest that the ninth and tenth grade claims had been filed more than two years after the reasonable discovery date. Instead, she challenged MUSER's two-year statute of limitations as invalid under the Maine Administrative Procedure Act ("MAPA"). The time periods at MUSER §§ XVI.5.A(2) and XVI.13.E had been changed from four to two years in a 2010 rulemaking. Ms. S. alleged that procedural errors during that rulemaking invalidated the change in the time period at § XVI.13.E. About § XVI.5.A(2), she argued not that the change was invalid but that it was irrelevant: § XVI.5.A(2), she said, established not a statute of limitations but a separate "look-back term" restricting relief to violations that occurred up to two years before the reasonable discovery date.

         The district court ruled that the revision of the statute of limitations to two years was valid and that Ms. S. could not bring her claims about B.S.'s ninth and tenth grade years under the specific misrepresentation exception. The district court also agreed with the hearing officer's FAPE determination. Ms. S. appealed. The school district, as appellee, defended against her claims of error.

         Our first decision in Ms. S. I affirmed the district court's FAPE judgment. 829 F.3d at 113-15. The decision vacated and remanded on the timing issue after finding errors in the district court's application of MAPA. Id. at 100. Ms. S. I did not rule on the statute of limitations issue. Holding that the record was "insufficient," we remanded to the district court for further factfinding and reevaluation. Id.

         On remand, the district court immediately granted MDOE leave to intervene, limited to the issue of whether MUSER had a valid two-year statute of limitations.[1] MDOE was ordered to "compile a record of relevant administrative and legislative proceedings," and it later submitted over 500 pages of materials. In her briefing, Ms. S. maintained that the change at § XVI.13.E was void under MAPA. MDOE and RSU 72 offered a reworking of their view of the legal framework: the two MUSER provisions, they argued, mirror the IDEA and, like that statute, establish a single statute of limitations, not a statute of limitations and a "look-back term." Rejecting MDOE and RSU 72's reading as foreclosed by Ms. S. I, the district court agreed with Ms. S.'s MAPA arguments and held that her claims were timely. RSU 72 and MDOE both appealed to this court.

         II.

         We address two threshold arguments before turning to the timing limitations question. A. Law of the Case

         "The law of the case doctrine 'posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.'" United States v. Moran, 393 F.3d 1, 7 (1st Cir. 2004) (quoting Arizona v. California, 460 U.S. 605, 618 (1983), supplemented by 466 U.S. 144 (1984)). One form of the doctrine, known as the mandate rule, prohibits a trial court from reopening issues decided by an earlier appellate ruling in the same case. Id. According to the district court, Ms. S. I "viewed the MUSER Look-Back Term and Filing Limitation rules as separate, 'unambiguous' provisions." Ms. S., 2017 WL 5565206, at *6. That "construction of the MUSER rules in this case, as the law of the case, is controlling," the district court held. Id. at *7. The application of the law of the case doctrine is a question of law, which we review de novo. Buntin v. City of Boston, 857 F.3d 69, 72 (1st Cir. 2017).

         Another form of the doctrine binds successor appellate panels to holdings of earlier appellate panels. Id. This branch of the doctrine is "flexible," and has its exceptions. Ellis v. United States, 313 F.3d 636, 646 (1st Cir. 2002); see also Bryan Garner et al., The Law of Judicial Precedent § 59 (2016) (detailing exceptions). The parties spar over whether Ms. S. I bars us from considering the theory that the two provisions of MUSER, §§ XVI.5.A(2) and XVI.13.E, contain a single statute of limitations.

         For the law of the case doctrine to be a bar in either form, the issue must have been "'actually considered and decided by the appellate court,' or a decision on the issue must be 'necessarily inferred from the disposition on appeal.'" Fieldv.Mans, 157 F.3d 35, 40 (1st Cir. 1998) (quoting Commercial Union Ins. Co.v.Walbrook Ins. Co., Ltd., 41 F.3d 764, 770 (1st Cir. 1994)). In short, "[p]rior holdings, ...


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