R.R. Ex Rel. Mr. R. v. Fairfax County School Board

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

R. R. by and through his father, Mr. 

R.,

Plaintiff-Appellee,

v.

FAIRFAX COUNTY SCHOOL BOARD,

Defendant-Appellant,  No. 02-2235

and

FAIRFAX COUNTY PUBLIC SCHOOLS;

VIRGINIA BOARD OF EDUCATION;

VIRGINIA DEPARTMENT OF EDUCATION,

Defendants.



Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Leonie M. Brinkema, District Judge.

(CA-02-124)

Argued: June 3, 2003

Decided: July 29, 2003

Before WILKINS, Chief Judge, and WILLIAMS and

GREGORY, Circuit Judges.

Reversed and remanded with instructions by published opinion. Judge

Williams wrote the opinion, in which Chief Judge Wilkins and Judge

Gregory joined.

2 R. R. v. FAIRFAX COUNTY SCHOOL BOARD

COUNSEL

ARGUED: Sona Rewari, HUNTON & WILLIAMS, McLean, Vir-

ginia, for Appellant. Melanie Diana Coates, WILMER, CUTLER &

PICKERING, McLean, Virginia, for Appellee. ON BRIEF: Thomas

J. Cawley, HUNTON & WILLIAMS, McLean, Virginia; John F. Caf-

ferky, BLANKINGSHIP & KEITH, Fairfax, Virginia, for Appellant.

David P. Donovan, WILMER, CUTLER & PICKERING, McLean,

Virginia, for Appellee.

OPINION

WILLIAMS, Circuit Judge:

This case presents the issue of whether the Individuals with Dis-

abilities Education Act (IDEA) requires an educational agency to

include in its procedural safeguards notice, mandated by 20 U.S.C.A.

§ 1415 (West 2000), an explicit statement that parents in Virginia

have a two-year period in which to request a due process hearing and

to indicate when that period begins to run. Because we find that

requirement neither explicit in the IDEA or its implementing regula-

tions, nor required by the policy and spirit of the IDEA, we reverse

the district court and remand with instructions to dismiss.

I.

R.R. is an eight-year-old child who lives in Fairfax County, Vir-

ginia, and has been diagnosed with autistic spectrum disorder.1 On

October 9, 1997, Fairfax County Public School Board (Fairfax

County) found R.R. eligible for special education services. From

November 4, 1997, through the end of the school year in 1998, R.R.

attended a class-based, non-categorical program2 for autistic children

at Greenbriar East Elementary School.

1

Autistic spectrum disorder, also known as autism or ASD, is a com-

plex and variable developmental disability, which occurs as the result of

disordered brain development and function, altering the child’s quality of

development in the areas of communication, social interaction, and imag-

ination skills.

2

Class-based, non-categorical programs generally involve classes of

approximately eight children with a teacher and an instructional assistant

R. R. v. FAIRFAX COUNTY SCHOOL BOARD 3

In June 1998, Fairfax County proposed an individualized education

program (IEP) for R.R. that continued the class-based, non-

categorical program, adding only limited supplemental speech, lan-

guage, and occupational instruction. Mr. R., R.R.’s father, was not

satisfied with the IEP and requested that Fairfax County provide R.R.

with intensive one-to-one Applied Behavioral Analysis training, an

alternative educational method for autistic children. Fairfax County

refused to incorporate Mr. R.’s educational ideas and, by letter dated

July 29, 1998, Mr. R. rejected the proposed IEP. On July 30, 1998,

Fairfax County responded, explaining why it had refused Mr. R.’s

request for accommodation, and provided Mr. R. with a notice of his

right to appeal its decision, by requesting a due process hearing or an

administrative appeal, along with a pamphlet outlining the procedural

remedies available to parents who disagree with IEP decisions under

the IDEA. Although the letter went into detail about Mr. R.’s proce-

dural rights, neither it nor the enclosed pamphlet informed Mr. R. of

any limitations period that might be applied to Mr. R.’s right to

request a due process hearing or when that limitations period would

begin.

By letter dated August 7, 1998, Mr. R. withdrew R.R. from the

Fairfax County public schools because Fairfax County refused to

agree to his proposals. Mr. R. further informed Fairfax County that

he would "continue to pursue all appropriate and legal means at [his]

disposal to seek the compliance of [Fairfax County] with the law with

respect to [his] son’s education." (J.A. at 55.) On August 28, 1998,

Fairfax County replied to Mr. R.’s letter, reminding him that he had

"the right to appeal the contents of the IEP either through an adminis-

trative review or an impartial due process hearing" and enclosing a

second copy of the procedural safeguards required by the IDEA. (J.A.

at 56.) This letter also did not notify Mr. R. of any applicable limita-

tions period. Mr. R. did not immediately request a due process hear-

ing or an administrative review but simply enrolled R.R. in a private

school program for autistic children, paying for it himself.

and a home resource program. The class-based program generally

includes a mixture of small group activities, large group activities, as

well as one-to-one activities. The home resource program involves teach-

ers working with the children in their homes with parental participation.

4 R. R. v. FAIRFAX COUNTY SCHOOL BOARD

On January 29, 2001, over twenty-nine months after Mr. R.

rejected Fairfax County’s proposed IEP and removed R.R. from the

Fairfax County public schools, Mr. R. filed a request for a due pro-

cess hearing, requesting reimbursement for R.R.’s private tuition

expenses. Fairfax County moved to dismiss Mr. R.’s request as time-

barred under Virginia’s two-year limitations period, Va. Code Ann.

§ 8.01-248 (Michie 2000), and under the doctrine of laches. Mr. R.,

in response, argued that Fairfax County could not rely on the two-year

limitations period because Fairfax County failed to notify Mr. R. of

the limitations period and, alternatively, that Mr. R.’s claim did not

accrue until the summer of 1999 when Mr. R. actually paid for R.R.’s

private educational expenses. The administrative hearing officer

agreed with Fairfax County, holding that Fairfax County had provided

Mr. R. with a full explanation of his procedural rights under the IDEA

and that Fairfax County was not required under the IDEA to notify

Mr. R. of the limitations period applicable to due process hearings.

The hearing officer further held that Mr. R.’s claim accrued by

August of 1998, because that is when Mr. R. had knowledge of the

events that formed the basis of his claim, and thus that Mr. R.’s

request for a due process hearing was time-barred under Virginia’s

two-year limitations period.

On January 25, 2002, Mr. R. filed a two-count complaint for

declaratory and injunctive relief in the District Court for the Eastern

District of Virginia challenging the hearing officer’s decision, arguing

that his claims for tuition reimbursement were not time-barred

because Fairfax County failed to notify him of the applicable limita-

tions period (Count I), and that his claims were not time-barred

because they did not accrue until he had fully paid the private educa-

tional costs (Count II).

On October 11, 2002, the district court granted summary judgment

to Mr. R., reversing the hearing officer on Count I, and holding that

the limitations period was equitably tolled by Fairfax County’s failure

to provide notice of the two-year limitations period pursuant to the

IDEA’s implicit requirement that educational agencies give notice of

all applicable limitations periods. R.R. ex rel. Mr. R. v. Fairfax

County School Bd., 226 F. Supp. 2d 804, 808 (E.D. Va. 2002). Given

its disposition of Count I, the district court found Count II to be moot.

Id. at 810 n.6. Fairfax County timely noted its appeal.

R. R. v. FAIRFAX COUNTY SCHOOL BOARD 5

II.

Fairfax County contends that the district court erred because (1) the

text of the IDEA does not mandate that educational agencies give

notice of the limitations period for requesting a due process hearing

or its accrual date; and (2) the Fourth Circuit has already held that the

IDEA does not require educational agencies to provide notice of the

applicable limitations period when that time frame is longer than four

months. R.R. responds that the district court correctly held that the

IDEA implicitly requires notice to ensure that parents have a mean-

ingful opportunity to be heard.

It is important to note that the IDEA itself contains no limitations

period for requesting due process hearings.3 At the time the IDEA was

enacted, if a federal statute created a cause of action but provided no

limitations period, "the general rule [wa]s that a state limitations

period for an analogous cause of action is borrowed and applied to the

federal claim, provided that the application of the state statute would

not be inconsistent with underlying federal policies." County of

Oneida v. Oneida Indian Nation, 470 U.S. 226, 240 (1985). In Schim-

mel ex rel. Schimmel v. Spillane, 819 F.2d 477, 482-83 (4th Cir.

1987), we analyzed analogous limitations periods in Virginia and held

that the then one-year limitations period in Va. Code § 8.01-248 was

consistent with IDEA policies and that it applied in the context of

civil actions filed by parties aggrieved by due process hearing deci-

sions. We later held in Manning ex rel. Manning v. Fairfax County

Sch. Bd., 176 F.3d 235, 238-39 (4th Cir. 1999), that the same one-

year limitations period was consistent with IDEA policies in the con-

text of requests for due process hearings.4 While we have decided the

question of which limitations period to apply, we recognized in CM

3

Because the causes of action created under the IDEA preceded the

enactment of 28 U.S.C.A. § 1658 (West 1994 & Supp. 2003), the IDEA

is unaffected by that section’s establishment of a four-year limitations

period for federal causes of action lacking a specific limitations period.

Id.

4

The General Assembly amended Va. Code § 8.01-248 to provide for

a two-year limitations period for claims "‘accruing on or after July 1,

1995.’" Manning v. Fairfax County Sch. Bd., 176 F.3d 235, 238 n.2 (4th

Cir. 1999) (quoting Va. Code § 8.01-248 (1995 Cum. Supp.)).

6 R. R. v. FAIRFAX COUNTY SCHOOL BOARD

ex rel. EM v. Bd. of Ed. of Henderson County, 241 F.3d 374 (4th Cir.

2001), that we had not decided the issue presented in this case:

Whether the IDEA "requires educational agencies to inform parents

of the applicable limitations period," id. at 382 n.4. In this case, the

district court resolved that issue in the affirmative.

We review a district court’s grant of summary judgment de novo.

Gadsby ex rel. Gadsby v. Grasmick, 109 F.3d 940, 949 (4th Cir.

1997). Summary judgment should be granted if, viewing the evidence

in the light most favorable to the non-moving party, there is no genu-

ine issue of material fact, and the moving party is entitled to judgment

as a matter of law. See Fed. R. Civ. P. 56(c); Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247-52 (1986). The facts in this case are

not in dispute. Thus, the sole legal issue is whether the IDEA and its

implementing regulations require educational agencies in Virginia to

provide notice of the limitations period applicable to requests for a

due process hearing. As explained below, we believe that the district

court erred in concluding that it does.

A.

To determine whether the IDEA or its implementing regulations

require that notice be given of a limitations period applicable to a due

process hearing, we begin, as we must, with the text. United States

v. Ron Pair Enters. Inc., 489 U.S. 235, 240 (1989) ("[When] the stat-

ute’s language is plain, the sole function of the courts is to enforce

it according to its terms." (citation and quotation marks omitted)).

Only if the text of the statute is ambiguous or if the statutory scheme

is inconsistent or incoherent need we inquire further. Robinson v.

Shell Oil Co., 519 U.S. 337, 341 (1997) ("[Our] inquiry must cease

if the statutory language is unambiguous and ‘the statutory scheme is

coherent and consistent.’" (quoting Ron Pair Enters., 489 U.S. at

240)). If a statute is ambiguous, "the question for the court is whether

the [implementing regulation] is "based on a permissible construction

of the statute." Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,

467 U.S. 837, 843 (1984).

The IDEA and its implementing regulations require that parents of

a disabled child be notified of many procedural safeguards upon an

initial referral for evaluation, each notification thereafter, and upon

R. R. v. FAIRFAX COUNTY SCHOOL BOARD 7

the filing of a complaint under the IDEA. See, e.g., 20 U.S.C.A.

§§ 1415(h) (listing various safeguards, such as right to an attorney);

1415(i) (listing safeguards, such as right to an appeal, to bring a civil

action, and to attorneys’ fees); 34 C.F.R. § 300.504(b) (listing catego-

ries of safeguard regulations that must be provided to parents by edu-

cational agencies). Neither the IDEA nor the implementing

regulations, however, contains any specific requirement that educa-

tional agencies provide notice of the limitations period applicable to

due process hearings. The IDEA’s "Procedural safeguards notice"

provision, § 1415(d), states, in relevant part, that

(2) The procedural safeguards notice shall include a full

explanation of the procedural safeguards, written in the

native language of the parents, unless it clearly is not feasi-

ble to do so, and written in an easily understandable manner,

available under this section and under regulations promul-

gated by the Secretary relating to—

(J) due process hearings, including requirements for dis-

closure of evaluation results and recommendations[.]

20 U.S.C.A. § 1415(d)(2)(J) (emphasis added). Thus, the text of

§ 1415(d)(2)(J) only requires an educational agency to provide "a full

explanation" of those procedural safeguards that are "available under

[section 1415]" or the "regulations promulgated by the Secretary" that

relate to due process hearings. Contrary to R.R.’s assertion,

§ 1415(d)(2)(J) does not require an educational agency to provide "a

full explanation of procedural safeguards" that relate to due process

hearings but are not specified under § 1415 or that have not been pro-

mulgated by the Secretary.

The regulations promulgated by the Secretary contain similar lan-

guage. Section 300.504 of Part 34 of the C.F.R. specifically directs

what the procedural safeguards notice must contain. In relevant part,

the regulation states:

(b) Contents. The procedural safeguards notice must

include a full explanation of all of the procedural safeguards

available under §§ 300.403, 300.500-300.529, and 300.560-

8 R. R. v. FAIRFAX COUNTY SCHOOL BOARD

300.577, and the State complaint procedures available

under §§ 300.660-300.662 relating to—

(10) Due process hearings, including requirements for

disclosure of evaluation results and recommendations[.]

34 C.F.R. § 300.504(b)(10) (emphasis added). As with

§ 1415(b)(2)(J), this regulation mandates that educational agencies

provide notice only of all procedural safeguards available under the

enumerated regulations and the complaint procedures.

Nowhere in 20 U.S.C.A. § 1415, nor in 34 C.F.R. §§ 300.403,

300.500-300.529, 300.560-300.577, 300.660-300.662, does Congress

or the Secretary mandate that educational agencies inform parents of

any procedural rules outside of those provided for in § 1415 or the

regulations, and nowhere do these provisions mention limitations

periods applicable to due process hearings.5 Because the statutory lan-

guage is clear and the statutory scheme is consistent and coherent, we

need look no further in our analysis of the IDEA. See Shell Oil, 519

U.S. at 341; see also Ratzlaf v. United States, 510 U.S. 135, 147-148

(1994) ("[W]e do not resort to legislative history to cloud a statutory

text that is clear"). We "must give effect to the unambiguously

expressed intent of Congress." Chevron, 467 U.S. at 842-43. There is

simply no basis in the text of the IDEA or its implementing regula-

tions for imposing a requirement that Fairfax County provide R.R.

5

We note that the Secretary has promulgated regulations requiring

states to adopt a Complaint Resolution Procedure (CRP) and has

included a minimum one-year limitations period for that procedure. See

34 C.F.R. §§ 300.660-300.662. The CRP is an alternative method of

addressing an IDEA grievance, see Lucht v. Molalla River Sch. Dist., 225

F.3d 1023, 1028-29 (9th Cir. 2000), and the fact that the Secretary

included information regarding the CRP limitations period but said noth-

ing regarding a limitations period applicable to due process hearings

indicates a purposeful choice, cf. Russello v. United States, 464 U.S. 16,

23 (1983) ("[W]here Congress includes particular language in one sec-

tion of a statute but omits it in another section of the same Act, it is gen-

erally presumed that Congress acts intentionally and purposefully in the

disparate inclusion or exclusion." (alteration in original) (internal quota-

tion marks and citation omitted)).

R. R. v. FAIRFAX COUNTY SCHOOL BOARD 9

with notice of Virginia’s two-year limitations period applicable to due

process hearings.

B.

R.R. also argues that decisions in this and other circuits demon-

strate that the underlying policies and spirit of the IDEA require edu-

cational agencies to provide parents with notice of applicable

limitations periods. As discussed below, these decisions indicate that

the underlying policies and spirit of the IDEA may require notice to

render a short limitations period consistent with the IDEA. R.R.’s

contention is ultimately unavailing, however, because this court has

already held that the longer Virginia limitations period is consistent

with IDEA policies.

Courts adopting very short limitations periods have often imposed

notice requirements to make limitations periods borrowed from state

law consistent with the IDEA. See, e.g., CM, 241 F.3d at 383-84

(holding that a North Carolina statute granting a 60-day limitations

period was sufficiently consistent with IDEA policies because the

statute contained a notice requirement); Powers v. Ind. Dep’t of Ed.,

61 F.3d 552, 559 (7th Cir. 1995) (stating that "when unrepresented

parents are involved and the limitations period is short, agency

notices . . . should include notice of the limitations period" because

a limitations period of less than 120 days "presents an occasion to

heighten the requirements imposed on agencies"); Spiegler v. District

of Columbia, 866 F.2d 461, 467 (D.C. Cir. 1989) ("We hold that [the

IDEA] imposes a duty on the District to give, at the time a final

administrative decision is rendered, clear notice of the availability of

judicial review and of the 30-day limitations period."); Scokin v.

Texas, 723 F.2d 432, 438 (5th Cir. 1984) (stating, in the context of

a 30-day limitations period, that "the [IDEA]’s requirement that edu-

cational agencies inform parents of all available procedures includes

a duty to inform parents of the limitations period for judicial review.

Rather than relying on equitable principles to relieve uninformed par-

ents, however, we will simply apply a longer statute of limitations").

Courts adopting longer limitations periods, however, have not

imposed a notice requirement, as the limitations period is already con-

sistent with the IDEA. See, e.g., Strawn v. Mo. State Bd. of Ed., 210

F.3d 954, 957-58 (8th Cir. 2000) (adopting a two-year limitations

10 R. R. v. FAIRFAX COUNTY SCHOOL BOARD

period); Manning, 176 F.3d at 238-39 (holding that a "one-year stat-

ute of limitations strikes an appropriate balance between the need for

speedy resolution of disputes and the need to ensure that parties have

a fair opportunity to obtain judicial review of administrative due pro-

cess proceedings" and dismissing an action even though the plaintiff

did not receive notice (internal quotation marks omitted)); Schimmel,

819 F.2d at 482-83 (adopting a one-year limitations period, rather

than adopting a 30-day limitations period and imposing a notice

requirement, because the one-year period is consistent with the

IDEA).

We have already determined that Virginia’s then one-year limita-

tions period, which does not contain a notice requirement, is consis-

tent with the spirit and underlying policies of the IDEA. See Manning,

176 F.3d at 239 (holding that Va. Code § 8.01-248 applies to requests

for due process hearings because it is consistent with "the IDEA’s

policy of providing parents an opportunity to protect their disabled

children’s educational rights" and thus is consistent with the IDEA).

Earlier, in Schimmel, we considered adopting a short limitations

period and imposing a notice requirement on educational agencies;

however, because "it [wa]s not clear to us from our reading of the

statute that the [IDEA] actually imposes such a duty on educational

agencies," we adopted a one-year limitations period and determined

that it was consistent with IDEA policies, even absent a notice

requirement. Schimmel, 819 F.2d at 482-83. Having so held, we can-

not conclude that application of a longer, two-year limitations period,

without a notice requirement, requires imposing a notice requirement

to make it consistent with the IDEA.6

III.

Alternatively, because we may affirm the district court’s judgment

on any ground properly raised below, see Northwest Airlines, Inc. v.

County of Kent, MI, 510 U.S. 355, 364 (1994) ("A prevailing party

need not cross-petition to defend a judgment on any ground properly

raised below, so long as that party seeks to preserve, and not to

6

As a panel, we cannot overrule a prior panel and "are bound to apply

principles decided by prior decisions of the court to the questions we

address." Under Seal v. Under Seal, 326 F.3d 479, 484 (4th Cir. 2003).

R. R. v. FAIRFAX COUNTY SCHOOL BOARD 11

change, the judgment."), R.R. urges us to affirm the district court on

the basis that his claim did not accrue until he actually paid the tuition

for which he is seeking reimbursement. (Appellee’s Br. at 22-26.)

R.R.’s argument, however, is unavailing.

An IDEA claim accrues "when the parents know of the injury or

the event that is the basis for their claim." Richards v. Fairfax County

Sch. Bd., 798 F. Supp. 338, 341 (E.D. Va. 1992), aff’d 7 F.3d 225 (4th

Cir. 1993) (quoting Hall v. Knott County Bd. of Ed., 941 F.2d 402,

408 (6th Cir. 1991)). The injury in an IDEA case — the injury that

allows a parent to bring a suit — is an allegedly faulty IEP or a dis-

agreement over the educational choices that a school system has made

for a student. See 20 U.S.C.A. § 1415(b)(6) (stating that parents can

bring a claim "with respect to any matter relating to the identification,

evaluation, or educational placement of the child, or the provision of

a free appropriate public education to such child"). R.R.’s claim,

accordingly, accrued when Mr. R. rejected the proposed IEP as inade-

quate or withdrew R.R. from the public school system because it was

at that time that R.R. was entitled to initiate a due process hearing or

an administrative appeal. Mr. R. rejected Fairfax County’s proposed

IEP on June 29, 1998, and withdrew R.R. from the Fairfax County

Public Schools by August 7, 1998, expressing his intention to pursue

his legal remedies. Using either date, R.R.’s claim accrued at least

twenty-nine months prior to initiating the current action and is barred

by Virginia’s two-year limitations period.

IV.

For the foregoing reasons, the district court’s decision is reversed

and the case is remanded with instructions to dismiss.

REVERSED AND REMANDED WITH INSTRUCTIONS