MS. S., individually and as parent and legal guardian of B.S., a minor, Plaintiff, Appellee,
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,
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]
R. Herlan, with whom Drummond Woodsum & MacMahon were on
brief, for appellant, Regional School Unit 72.
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.
Lynch, Selya, and Lipez, Circuit Judges.
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.
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.
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).
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
20 U.S.C. § 1415(b)(6)(B) (emphasis added).
§ 1415 describes due process hearings with
particularity, at § 1415 (f). Section 1415(f)(3)(C)
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).
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).
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).
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
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
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
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
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.
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.
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
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.
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.
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. 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.
address two threshold arguments before turning to the timing
limitations question. A. Law of the Case
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).
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.
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, ...