J.S. Ex Rel. Duck v. Isle of Wight County School Board

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

J.S., a minor, by his mother Sharon 

Duck,

Plaintiff-Appellant,

and

SHARON DUCK,

Plaintiff,

v.  No. 03-2446

ISLE OF WIGHT COUNTY SCHOOL

BOARD; MICHAEL W. MCPHERSON,

Superintendent of the Isle of Wight

County Schools; TED DURNIAK,

Director, Special Education, Isle of

Wight County Schools,

Defendants-Appellees.



Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Tommy E. Miller, Magistrate Judge.

(CA-03-53-2)

Argued: September 30, 2004

Decided: March 30, 2005

Before MICHAEL and DUNCAN, Circuit Judges, and

Roger W. TITUS, United States District Judge for the

District of Maryland, sitting by designation.

Reversed in part, affirmed in part, and remanded by published opin-

ion. Judge Duncan wrote the opinion, in which Judge Michael joined.

Judge Titus wrote a concurring opinion.

2 J.S. v. ISLE OF WIGHT COUNTY SCHOOL BOARD

COUNSEL

John Warren Hart, BEATON & HART, P.C., Virginia Beach, Vir-

ginia, for Appellant. Kevin Joseph Cosgrove, HUNTON & WIL-

LIAMS, Norfolk, Virginia, for Appellees.

OPINION

DUNCAN, Circuit Judge:

J.S. and his mother, Sharon Duck, sued the Isle of Wight County

(Virginia) School Board, superintendent, and special education direc-

tor, alleging violations of the Individuals with Disabilities Education

Act ("IDEA"), 20 U.S.C. § 1400 et seq., section 504 of the Rehabilita-

tion Act of 1973, 29 U.S.C. § 794, and 42 U.S.C. § 1983. The plain-

tiffs sought equitable and monetary relief on the grounds that the

defendants failed to provide J.S. with special education services while

he was a student at Carrsville Elementary School. The defendants

conceded liability for violating the IDEA and entered into an agree-

ment with the plaintiffs resolving all claims under this statute. The

district court granted summary judgment for the defendants on J.S.’s

claims under the Rehabilitation Act and § 1983.1 We affirm the order

granting summary judgment on J.S.’s § 1983 claim. However, we

reverse the award of summary judgment as to his claim under the

Rehabilitation Act and remand this case for proceedings consistent

with this opinion.

I.

J.S. was born on May 4, 1989. In September 1994, he started kin-

dergarten at Joseph P. King Elementary School ("J.P. King") in

Franklin City, Virginia. In November 1994, Mrs. Duck grew con-

1

Pursuant to the Federal Magistrate Judge Act, 28 U.S.C. § 636(c)(1),

and Rule 72 of the United States District Court for the Eastern District

of Virginia, this case was referred to a federal magistrate judge for a final

decision on August 12, 2003. For ease of reference, we refer to the pro-

ceedings below as the "district court" proceedings.

J.S. v. ISLE OF WIGHT COUNTY SCHOOL BOARD 3

cerned about J.S.’s progress in kindergarten and requested that the

school evaluate J.S. for a possible learning disability. After several

evaluations, the school determined that J.S. was a disabled child eligi-

ble to receive special assistance in the classroom.

In July 1996, after J.S. completed his first grade year at J.P. King,

the school prepared an Individualized Education Program ("IEP") to

commence when J.S. began the second grade in September 1996.2

Mrs. Duck participated in the preparation of J.S.’s IEP and agreed to

accept the special education services offered by the school. J.S. never-

theless struggled through the second grade. As a result, J.S.’s teachers

and Mrs. Duck formulated a new IEP and agreed that J.S. would

repeat the second grade for the 1997-1998 school year. After success-

fully completing the second grade, J.S. began the third grade at J.P.

King in September 1998. The parties disagree as to whether the

Franklin City Schools implemented an IEP for the 1998-1999 school

year. Although Mrs. Duck contends that J.S. had an IEP for the third

grade, no record of an IEP was produced in the district court.

After his third grade year, J.S. and Mrs. Duck moved to Isle of

Wight County. On August 17, 1999, Mrs. Duck completed a registra-

tion form to enroll J.S. in the Isle of Wight County Schools. The form

asked "Has this child been identified for Special Education, Gifted

and Talented Programs, or Alternative Education Programs?" J.A. at

102. Mrs. Duck checked the box indicating "yes" on the registration

form. In addition, someone wrote the phrase "1997 Special Ed."

below the "yes" box on the registration form, apparently to indicate

that J.S. had last been enrolled in an IEP for the 1997-1998 school

year. Mrs. Duck, however, denies that this was her handwriting.

In September 1999, when J.S. started the fourth grade at Carrsville

2

In accordance with the IDEA’s mandate that states guarantee all chil-

dren with disabilities "a free appropriate public education," 20 U.S.C.

§ 1400(d)(1)(A), "[t]he IEP is a written statement that sets forth the

child’s present performance level, goals and objectives, specific services

that will enable the child to meet those goals, and evaluation criteria and

procedures to determine whether the child has met the goals." Associa-

tion for Cmty. Living in Colorado v. Romer, 992 F.2d 1040, 1043 (10th

Cir. 1993).

4 J.S. v. ISLE OF WIGHT COUNTY SCHOOL BOARD

Elementary School, there was no IEP in place, and he was not

enrolled in any special education classes. In October 1999, Mrs. Duck

observed that J.S. was having trouble in school, and she requested a

meeting with school officials. On November 12, 1999, the principal,

special education coordinator, and several teachers met to discuss

J.S.’s performance in school. Mrs. Duck could not attend the meeting,

but she sent J.S.’s grandmother to attend in her place. At the meeting,

the school representatives indicated that J.S. was doing somewhere

between "OK" and "fair" in the regular classroom without special

assistance. Accordingly, they decided that J.S. would not be placed in

special education classes. Mrs. Duck did not agree with this decision,

but the defendants failed to notify Mrs. Duck of her right to an appeal.

As a result, Mrs. Duck did not challenge the November decision.

During J.S.’s fifth grade year, Mrs. Duck requested that the school

evaluate J.S. to determine whether he could receive special education

assistance. Her efforts to have J.S. tested, however, proved unsuccess-

ful. In September 2001, J.S. entered the sixth grade at Windsor Mid-

dle School. After his schoolwork continued to suffer, J.S. was

evaluated and the school determined that he was learning disabled and

therefore eligible to receive special education services. Mrs. Duck and

the school thereafter formulated an IEP, and J.S. was placed in special

education classes beginning in the summer between sixth and seventh

grade.

On January 17, 2003, Mrs. Duck filed a complaint in the United

States District Court for the Eastern District of Virginia, asserting

claims against the defendants for herself as well as J.S.. The Com-

plaint alleged that the defendants denied J.S. a proper education by

not providing him with special education services for the three years

that he was a student at Carrsville Elementary School—namely, from

the fourth through the sixth grade. Count I of the Complaint asserted

a violation of the IDEA on the grounds that (1) an IEP was allegedly

in place with the Franklin City Public Schools when J.S. transferred

to Carrsville Elementary School for the fourth grade, and (2) the

defendants were therefore obligated to confirm that J.S. was no longer

a child with a disability before terminating his special education

services.3 Count II alleged that the defendants discriminated against

3

In relevant part, the IDEA provides that "a local educational agency

shall evaluate a child with a disability in accordance with this section

before determining that the child is no longer a child with a disability."

20 U.S.C. § 1414(c)(5)(A).

J.S. v. ISLE OF WIGHT COUNTY SCHOOL BOARD 5

J.S. on the basis of his disability in violation of the Rehabilitation Act.5

4

Finally, Count III asserted a violation of the plaintiffs’ civil rights

under 42 U.S.C. § 1983.

On the grounds that no record of an active IEP existed when J.S.

transferred to Carrsville, the defendants answered and denied that

they were obligated to determine his eligibility for educational assis-

tance. Nevertheless, the defendants admitted that they violated the

procedural requirements of the IDEA by failing to inform Mrs. Duck

of her right to appeal the school’s determination that J.S. would not

be placed in special education classes.6 The parties subsequently

resolved Count I of the Complaint, with the defendants agreeing both

to comply with all applicable provisions of the IDEA, and to pay the

costs and attorney’s fees associated with the plaintiffs’ claims under

the IDEA.

The defendants moved for summary judgment, however, on Count

II of the Complaint. Specifically, the defendants observed that the

Rehabilitation Act does not contain a statute of limitations, and that

the federal "borrowing" doctrine therefore requires the selection of the

most analogous statute of limitations under state law. See Wilson v.

Garcia, 471 U.S. 261, 266-67 (1985). The parties agreed that the one-

year limitations period provided by the Virginia Rights of Persons

4

Count II of the Complaint was filed in J.S.’s name only, while Counts

I and III sought relief for both J.S. and Mrs. Duck.

5

Section 504 of the Rehabilitation Act provides that:

No otherwise qualified individual with a disability in the United

States . . . shall, solely by reason of her or his disability, be

excluded from the participation in, be denied the benefits of, or

be subjected to discrimination under any program or activity

receiving Federal financial assistance . . . .

29 U.S.C. § 794(a). There is no dispute that Carrsville Elementary

School received federal financial assistance at all times relevant to these

proceedings.

6

The IDEA required the defendants to provide Mrs. Duck with a "pro-

cedural safeguards notice," explaining her right to appeal the determina-

tion that J.S. was not eligible to receive special education assistance. 20

U.S.C. § 1415(d)(1)&(2).

6 J.S. v. ISLE OF WIGHT COUNTY SCHOOL BOARD

with Disabilities Act, Va. Code Ann. § 51.5-46(B) (Michie 2004),

was most applicable to federal claims under the Rehabilitation Act.

The defendants contended that under the borrowing doctrine, J.S.’s

claim under the Rehabilitation Act was subject not only to the one-

year limitations period provided by the Virginia statute, but also to the

requirement in the statute that plaintiffs provide written notice of a

claim to the defendant within 180 days of the alleged discriminatory

practice. Id.7 J.S. did not provide the defendants with written notice

of his claim under the Rehabilitation Act within 180 days of the deter-

mination that he would not receive special education services. Thus,

the defendants argued that J.S.’s non-compliance with the notice pro-

vision in the Virginia statute required the dismissal of his Rehabilita-

tion Act claim.8 The district court agreed and accordingly granted the

defendants’ motion for summary judgment on Count II of the Com-

plaint. The district court also granted summary judgment for the

defendants on Count III, holding that under our decision in Sellers v.

School Board of Manassas, 141 F.3d 524 (4th Cir. 1998), the plain-

tiffs’ claims under § 1983 were nothing more than a prohibited

attempt to recover money damages for a violation of the IDEA.

J.S., through Mrs. Duck, now appeals the dismissal of his claims

under the Rehabilitation Act and § 1983.9

7

In pertinent part, the Virginia statute provides that:

An action may be commenced pursuant to this section any time

within one year of the occurrence of any violation of rights under

this chapter. However, such action shall be forever barred unless

such claimant or his agent, attorney or representative has com-

menced such action or has filed by registered mail a written

statement of the nature of the claim with the potential defendant

or defendants within 180 days of the occurrence of the alleged

violation.

Va. Code Ann. § 51.5-46(B).

8

The statute of limitations was tolled during the period of J.S.’s

infancy. Va. Code Ann. § 8.01-229(A)(1) (Michie 2004). Thus, there is

no dispute concerning J.S.’s compliance with the applicable limitations

period.

9

Mrs. Duck does not appeal any judgment of the district court with

respect to her claims.

J.S. v. ISLE OF WIGHT COUNTY SCHOOL BOARD 7

II.

We review de novo the order granting summary judgment on

Counts II and III of the Complaint. Coons v. Secretary of the Trea-

sury, 383 F.3d 879, 884 (9th Cir. 2004). Viewing the evidence in the

light most favorable to J.S., and drawing all reasonable inferences in

his favor, we must determine whether the district court correctly

applied the relevant substantive law and whether there are any genu-

ine issues of material fact to warrant a trial on the merits. Id. On

appeal, J.S. contends that the federal "borrowing" doctrine does not

authorize the application of the Virginia timely-notice provision to his

federal claim under the Rehabilitation Act. Secondly, J.S. challenges

the denial of his claim for monetary damages under § 1983. We

address each issue in turn.

III. Rehabilitation Act

A. Analytical Framework of Federal "Borrowing" Doctrine

"[F]ederal law is frequently ‘deficient’ in that it does not supply the

complete legal framework necessary to the fair adjudication of federal

causes of action." Brown v. United States, 742 F.2d 1498, 1503 (D.C.

Cir. 1984) (en banc). More precisely, "[a]lthough federal law may

establish rights, . . . federal law does not always include the proce-

dural or quasi-procedural elements that are generally considered nec-

essary to the fair litigation of its causes of action." Id. (internal

quotations omitted). Accordingly, when facing deficiencies in federal

law, the borrowing doctrine authorizes courts to "look to other

sources of law to ‘borrow’ appropriate provisions." Id.

With respect to federal civil rights actions, Congress has expressly

codified this common-law borrowing doctrine in 42 U.S.C. § 1988.10

10

The text of § 1988 provides, in relevant part, that if a civil rights stat-

ute is

deficient in the provisions necessary to furnish suitable remedies

and punish offenses against law, the common law, as modified

and changed by the constitution and statutes of the State wherein

the court having jurisdiction of such civil or criminal cause is

8 J.S. v. ISLE OF WIGHT COUNTY SCHOOL BOARD

The statute provides a three-part framework for courts to follow when

faced with apparent deficiencies in federal law. Specifically,

Section 1988 establishes a three-step process for the selec-

tion of the appropriate substantive law in civil rights actions.

First, it is to be determined whether federal civil rights law

is deficient in that it fails to furnish a particular rule; if it is

deficient, the most closely analogous state law may fill the

vacuum only if it is consistent with the meaning and purpose

of constitutional and federal statutory law. If state law is

inconsistent, it must be disregarded in favor of the federal

common law.

Bass v. Wallenstein, 769 F.2d 1173, 1188 (7th Cir. 1985); see also

Wilson, 471 U.S. at 267 (establishing three-part framework for incor-

porating state law provisions into federal law).

Relevant to this appeal, the Rehabilitation Act is a federal civil

rights statute,11 and thus the three-step framework provided by § 1988

governs the selection of appropriate state law rules to fill deficiencies

in the federal statute. See McCullough v. Branch Banking & Trust

Co., 35 F.3d 127, 129 (4th Cir. 1994); Wolsky v. Medical Coll. of

Hampton Rds., 1 F.3d 222, 223 (4th Cir. 1993); see also Holmes v.

Texas A&M Univ., 145 F.3d 681, 684 (5th Cir. 1998) ("The selection

of a limitations period applicable to Rehabilitation Act cases is gov-

erned by 42 U.S.C. § 1988(a) . . . ."). The district court in this case

applied two distinct provisions of Virginia law to J.S.’s federal cause

of action under the Rehabilitation Act: (a) the one-year statute of limi-

tations provided by the Virginia Rights of Persons with Disabilities

held, so far as the same is not inconsistent with the Constitution

and laws of the United States, shall be extended to and govern

the said courts in the trial and disposition of the cause . . . .

42 U.S.C. § 1988(a) (2005).

11

Section 504 of the Rehabilitation Act is "commonly known as the

civil rights bill of the disabled," Americans Disabled for Accessible Pub-

lic Transp. v. Skinner, 881 F.2d 1184, 1187 (3d Cir. 1989) (en banc), or

the "cornerstone of the civil rights movement of the mobility-impaired."

Id. at 1205 (Mansmann, J., concurring in part and dissenting in part).

J.S. v. ISLE OF WIGHT COUNTY SCHOOL BOARD 9

Act, and (b) the 180-day notice-of-claim provision contained within

the same Virginia statute. We address each decision separately in

accordance with the three-step framework established by § 1988.

B. Statute of Limitations

Under § 1988, we first analyze whether the Rehabilitation Act was

deficient for want of a limitations period. Brown, 742 F.2d at 1504

("Because the practice of borrowing presupposes a need to fill a defi-

ciency in the federal scheme, a court must first look to see if there is

indeed such a deficiency."). As the Seventh Circuit observed in

Jaworski v. Schmidt, 684 F.2d 498 (7th Cir. 1982): "State law is to

be resorted to in resolving an issue if, and only if, federal law is defi-

cient, and if, and only if, state law ‘is not inconsistent with the consti-

tution and laws of the United States.’" Id. at 500 (quoting 42 U.S.C.

§ 1988(a)) (emphasis added).

The Rehabilitation Act is indeed deficient without a statute of limi-

tations to govern the federal cause of action. In fact, the most com-

mon deficiency in a federal statute that triggers the borrowing

doctrine is the absence of a limitations period. Brown, 742 F.2d at

1505. As the D.C. Circuit observed in Brown, "the absence of a stat-

ute of limitations is an egregious gap in a cause of action. Whatever

the source of a cause of action, some clear end to one’s liberty to

commence suit is necessary." Id. (emphasis in original). As a result,

the district court was justified in looking to state law to supply an

appropriate limitations period for J.S.’s cause of action under the

Rehabilitation Act.

With respect to the second and third prongs of the borrowing anal-

ysis, we observed in Wolsky that "[t]he Virginia Rights of Persons

with Disabilities Act was modeled after and is almost identical to the

Rehabilitation Act." Wolsky, 1 F.3d at 224. Accordingly, we held that

it is consistent with federal law to apply the one-year limitations

period in the Virginia statute to claims under the Rehabilitation Act.

Id. at 225. The district court was therefore correct in adopting the one-

year limitations period provided by the Virginia statute as the limita-

tions period for J.S.’s federal claim under the Rehabilitation Act.

10 J.S. v. ISLE OF WIGHT COUNTY SCHOOL BOARD

C. Notice-of-Claims Provision

As noted earlier, the district court granted summary judgment on

J.S.’s Rehabilitation Act claim on the grounds that he failed to com-

ply with the timely-notice provision of the Virginia Rights of Persons

with Disabilities Act. The defendants argued, and the district court

agreed, that the Virginia notice requirement was applicable to federal

claims under the Rehabilitation Act because the notice provision is

consistent with the goals underlying the federal statute. Specifically,

the defendants contended that Congress enacted the Rehabilitation

Act to accomplish objectives that are similar to those advanced by the

Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112 et seq.,

a federal statute that requires plaintiffs to provide timely notice of a

discrimination claim.12 The ADA’s notice requirement "serves the

goal of prompt notification . . . and swift resolution of the conflict."

McCullough, 35 F.3d at 131. Inasmuch as the Virginia notice require-

ment serves the same goals,13 the defendants argued that application

of the notice provision to claims under the Rehabilitation Act is con-

sistent with federal law as required by § 1988.

For his part, J.S. contends that the application of the notice require-

ment to his claim under the Rehabilitation Act is pre-empted by the

Supremacy Clause of the United States Constitution.14 He argues that

12

Claimants under the ADA must file a charge of discrimination with

the Equal Employment Opportunity Commission ("EEOC") within 180

days of the alleged discriminatory practice. 42 U.S.C. § 12117(a); 42

U.S.C. § 2000e-5(e)(1). The period is extended to a maximum of 300

days if the plaintiff initially commenced administrative proceedings with

a state or local agency. 42 U.S.C. § 2000e-5(e)(1). Plaintiffs must serve

notice of this charge upon the defendant within ten days of its filing with

the EEOC. Id. Significantly, we have observed that "[t]he federal polices

behind the ADA and the Rehabilitation Act are similar, since both stat-

utes were enacted, at least in part, to help disabled persons find and

maintain employment." McCullough, 35 F.3d at 131.

13

See Crewe v. Marler, 319 S.E.2d 748, 749 (Va. 1984) (notice rule

enables defendants to "make prompt investigation of tort claims" and

"avoid the expense and delay of litigation by making voluntary settle-

ments with claimants.").

14

The Supremacy Clause provides that:

J.S. v. ISLE OF WIGHT COUNTY SCHOOL BOARD 11

the imposition of the notice requirement "adds an additional element

of proof to [his] federal cause of action," and that the Supremacy

Clause forbids state efforts to change or curtail a federal right. Appel-

lants’ Br. at 10.

Both parties, however, overlook the threshold analysis required by

§ 1988: that is, whether the Rehabilitation Act is deficient without a

notice-of-claims provision. By its terms, § 1988 authorizes the adop-

tion of a particular state rule "if, and only if, federal law is deficient"

without it. Jaworski, 684 F.2d at 500; see also 42 U.S.C. § 1988(a).

For the reasons that follow, we are constrained to hold that there is

no deficiency in the Rehabilitation Act that authorizes the adoption of

a state notice-of-claims provision pursuant to § 1988.

(1) Deficiency Analysis

First, we note that the deficiency established by the lack of a limi-

tations period in the Rehabilitation Act is not, of itself, license to

incorporate additional state law into the federal statute. Instead, "we

borrow only what is necessary to fill the gap left by Congress." West

v. Conrail, 481 U.S. 35, 39 n.6 (1987). Thus, the notice-of-claim pro-

vision in the Virginia statute must be analyzed independently to deter-

mine whether its application to J.S.’s claim under the Rehabilitation

Act is permissible under § 1988.

We are not aware of a single court that has held that the Rehabilita-

tion Act is deficient for the lack of a notice-of-claim provision. This

is for good reason; such rules are not "necessary to the fair litigation"

of the federal cause of action. Brown, 742 F.2d at 1503. In Brown, for

example, the D.C. Circuit held that the federal scheme for litigating

This Constitution, and the Laws of the United States which shall

be made in Pursuance thereof; and all Treaties made, or which

shall be made, under the Authority of the United States, shall be

the supreme Law of the Land; and the Judges in every State shall

be bound thereby, any Thing in the Constitution or Laws of any

State to the Contrary notwithstanding.

U.S. Cont. Art. VI, cl. 2.

12 J.S. v. ISLE OF WIGHT COUNTY SCHOOL BOARD

15

Bivens claims is not deficient for want of a notice-of-claims provi-

sion. Brown, 742 F.2d at 1504. The court explained that:

[A] notice provision has a very different relationship to a

cause of action than that of a statute of limitations, tolling

provision, or survival rule.

....

While these latter provisions all operate to define the point

of repose, after which expectations become settled, the

notice of claims provision does something different. Of

course, if it is not complied with, and there are no grounds

for waiver, it bars an action, and thus it acts to create settled

expectations; but this is simply a penalty for noncompliance.

The provision’s function is to compel notice so that the . . .

defendant may investigate early, prepare a stronger case,

and perhaps reach an early settlement. The need to apply

traditional provisions of repose (statutes of limitations, toll-

ing provisions, and survival rules) remains unchanged, since

the notice provision has a purpose that is quite distinct.

....

Because statutes of limitations are such universally familiar

procedural aspects of litigation, and because they are so gen-

erally understood as essential to a fair scheme of litigation,

the judiciary is safe in assuming that Congress intended (or

at least would have intended) to limit all congressionally

created causes of action by statues of limitations. In other

words, the judiciary can safely look at the absence of a limi-

tations provision as a deficiency.

The judiciary is on less secure ground, however, when it

limits statutory or common law causes of action with proce-

15

See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcot-

ics, 403 U.S. 388 (1971) (authorizing claim for damages resulting from

the unconstitutional conduct of federal officials acting under color of fed-

eral law).

J.S. v. ISLE OF WIGHT COUNTY SCHOOL BOARD 13

dural rules embodying interests that are not as universally

understood to be essential to fair litigation as are the repose

interests embodied in traditional statutes of limitations. The

absence of such rules in the cause of action cannot as easily

be termed a deficiency.

Id. at 1506 (footnote omitted). In holding that § 1988 does not autho-

rize the application of notice rules to Bivens claims, the Brown court

observed that this conclusion was also supported by "the overwhelm-

ing majority of federal and state courts that have confronted the issue

of borrowing notice of claims provisions" under 42 U.S.C. § 1983. Id.

at 1509-10 (collecting cases).

The fact that Brown and the decisions it cites were rendered in the

context of Bivens and § 1983 actions does not undermine our confi-

dence that the Rehabilitation Act is similarly not deficient without a

notice-of-claim provision. The core reasoning of these decisions—

that the interests served by notice-of-claim rules are not essential to

federal actions—is equally applicable to the Rehabilitation Act. As

the Supreme Court in Felder v. Casey, 487 U.S. 131 (1988), reasoned:

Because statutes of limitation are among the universally

familiar aspects of litigation considered indispensable to any

scheme of justice, it is entirely reasonable to assume that

Congress did not intend to create a right enforceable in per-

petuity. Notice-of-claim provisions, by contrast, are neither

universally familiar nor in any sense indispensable prereq-

uisites to litigation, and there is thus no reason to suppose

that Congress intended federal courts to apply such rules,

which significantly inhibit the ability to bring federal

actions.

Id. at 140 (internal quotations omitted) (emphasis added).

In this case, the district court never addressed the issue of whether

the Rehabilitation Act is deficient for the lack of a notice-of-claims

provision. Instead, the district court held that Board of Regents v.

Tomanio, 446 U.S. 478 (1980), requires the application of the notice

provision to J.S.’s claim under the Rehabilitation Act. In Tomanio, the

Supreme Court held that when a federal court borrows a state limita-

14 J.S. v. ISLE OF WIGHT COUNTY SCHOOL BOARD

tions period pursuant to § 1988, it must also apply the state’s rule for

tolling the statute of limitations. Tomanio, 446 U.S. at 484-85. The

Supreme Court reasoned that rules for tolling a statute of limitations

are such "an integral part of a complete limitations policy," that it

would make little sense not to incorporate these rules when a limita-

tions period is borrowed pursuant to § 1988. Id. at 488. In particular,

Tomanio explained that:

Any period of limitation is understood fully only in the con-

text of the various circumstances that suspend it from run-

ning against a particular cause of action. . . . In virtually all

statutes of limitations the chronological length of the limita-

tion period is interrelated with provisions regarding tolling,

revival, and questions of application.

Id. at 485-86 (internal quotations omitted).

The Supreme Court’s rationale in Tomanio, however, does not sup-

port the application of the Virginia notice rule to federal claims under

the Rehabilitation Act. This is because "a notice provision has a very

different relationship to a cause of action than that of a statute of limi-

tations, tolling provision, or survival rule." Brown, 742 F.2d at 1506.

"While these latter provisions all operate to define the point of

repose," id., a notice rule enables defendants to "investigate early,

prepare a stronger case, and perhaps reach an early settlement."

Felder, 487 U.S. at 142 (quoting Brown, 742 F.2d at 1506). These are

legitimate goals, to be sure, but very different from those fostered by

a statute of limitations. As a result, unlike the tolling provision at

issue in Tomanio, there is no basis for characterizing a notice-of-

claim requirement as "an integral part of a complete limitations pol-

icy." Tomanio, 446 U.S. at 488. Therefore, because a notice require-

ment functions independently and serves different purposes than a

statute of limitations, Brown, 742 F.2d at 1506, we conclude that

Tomanio does not support the incorporation of such rules into federal

actions pursuant to § 1988.

(2) Consistency Analysis

Our conclusion that the Rehabilitation Act is not deficient for want

of a notice-of-claim requirement, by itself, precludes the application

J.S. v. ISLE OF WIGHT COUNTY SCHOOL BOARD 15

of the notice provision to J.S.’s claim under the Rehabilitation Act.

Jaworski, 684 F.2d at 500 (state law borrowed only where federal law

is deficient). Nevertheless, we discuss the remaining steps of the ana-

lytical framework under § 1988 to demonstrate that the application of

the notice requirement in this case would contravene an important

federal interest.

As noted earlier, the defendants contend that the purposes served

by the Virginia notice rule are consistent with the goals underlying

the Rehabilitation Act. This contention alone, however, does not sup-

port the application of the notice requirement to federal claims under

the Rehabilitation Act. The notice requirement may serve objectives

similar to the those advanced by the federal statute; however, a state-

law provision that is incompatible with the Constitution is not subject

to borrowing under § 1988. Bass, 769 F.2d at 1188 (Section 1988

authorizes the adoption of state law "only if it is consistent with the

meaning and purpose of constitutional and federal statutory law.")

(emphasis added).

For the reasons that follow, we conclude that the application of the

notice requirement to claims under the Rehabilitation Act would con-

travene the Supremacy Clause. Under Virginia law, the notice provi-

sion is not merely a procedural requirement, but instead an essential

element of the plaintiff’s cause of action and a condition precedent to

any right of action against the defendant. See Daniel v. City of Rich-

mond, 100 S.E.2d 763, 765 (Va. 1957) ("[T]he giving of the required

notice is mandatory and is an essential element of the plaintiff’s case,

which he must allege and prove."); see also Breeding ex rel. Breeding

v. Hensley, 519 S.E.2d 369, 373 (Va. 1999) (construing timely-notice

provision as condition precedent to right of action).

This characterization precludes any attempt to incorporate the

notice provision into federal law pursuant to § 1988, since borrowing

such a requirement would engraft state-law elements upon a federal

statute in violation of the Supremacy Clause. The court in Brown

made this very observation in distinguishing the effect of borrowing

a state statute of limitations under § 1988 from the adoption of a state

notice-of-claims provision. Specifically, the court reasoned that we

may

16 J.S. v. ISLE OF WIGHT COUNTY SCHOOL BOARD

safely posit that federal lawmakers, when setting out the ele-

ments of a cause of action, do not usually intend that there

should forever remain a remedy available once those ele-

ments are established. It is much more difficult to assume

that those lawmakers, when they set out the elements of a

federal cause of action, would normally intend for additional

and unstated elements to be also considered necessary, and

for state law to be consulted to supply those missing (yet

necessary) elements of the federal action. In particular,

nothing in federal borrowing doctrine leads us to believe

that state law can precondition the accrual of federal rights

of action.

Brown, 742 F.2d at 1508 (emphasis added) (internal citations omit-

ted). "State law is not usually thought to add elements to federal rights

of action." Id. Nor did Congress "intend to assign to state courts and

legislatures a conclusive role in the formative function of defining and

characterizing the essential elements of a federal cause of action."

Wilson, 471 U.S. at 269. The application of the Virginia notice

requirement to J.S.’s federal claim under the Rehabilitation Act would

contravene the Supremacy Clause, and therefore § 1988 does not

authorize the borrowing of the notice provision in this case.

Ultimately, because § 1988 does not authorize the application of

the Virginia notice requirement to J.S.’s claim under the Rehabilita-

tion Act, the district court’s order granting summary judgment to the

defendants on Count II of the Complaint was erroneous.

IV. 42 U.S.C. § 1983

Finally, we address J.S.’s attempt to recover money damages under

§ 1983 for the defendants’ admitted violation of the IDEA. We clearly

disapproved of this practice in Sellers, observing that the IDEA’s

comprehensive remedial scheme "demonstrated Congress’ intent that

disabled children pursue claims to a free appropriate public education

solely through the remedial mechanisms established by the statute."

Sellers, 141 F.3d at 529 (citing Smith v. Robinson, 468 U.S. 992, 1009

(1984)). Accordingly, we held that "parties may not sue under section

1983 for an IDEA violation." Sellers, 141 F.3d at 529.

J.S. v. ISLE OF WIGHT COUNTY SCHOOL BOARD 17

J.S. contends that notwithstanding our holding in Sellers, our deci-

sion in Robinson v. Pinderhughes, 810 F.2d 1270 (4th Cir. 1987),

authorizes his claim for damages under § 1983. We disagree.

Although we permitted the plaintiffs in Pinderhughes to file a § 1983

action to enforce an administrative order under the Education of the

Handicapped Act ("EHA"),16 20 U.S.C. § 1400 et seq. (1987), the fac-

tual circumstances underlying our decision in Pinderhughes are

entirely different from the facts of the present case.

After failing to obtain special education services from the Balti-

more City Public Schools, the plaintiffs in Pinderhughes requested a

due process hearing pursuant to the EHA. Pinderhughes, 810 F.2d at

1271. A hearing officer found that the city failed to comply with vari-

ous requirements of the EHA and accordingly rendered a decision in

the plaintiffs’ favor. Id. The city, however, refused to comply with the

administrative order. Id. The EHA contained no provision for the

enforcement of the order, and thus the plaintiffs were "left with a

favorable final administrative decision which they [were] powerless

to enforce upon the city." Id. at 1273.

On the basis of these facts, we concluded that the EHA lacked an

enforcement mechanism for the plaintiffs to secure the rights they had

already won in the administrative proceeding. Accordingly, we autho-

rized the plaintiffs to secure the city’s compliance with the order by

means of a civil rights action under § 1983. In particular, we held that

while the EHA was available to the child to have his sub-

stantive rights established, it was not available to him to

have them enforced. Thus, . . . the plaintiffs [are] permitted

to pursue their remedy under § 1983 for deprivation of a

right secured by the laws of the United States. Any constitu-

tional right which the plaintiffs had was decided favorably

to them in the administrative proceeding. The right which

they seek to enforce here is to have the substantive decision

in their favor carried out.

16

"The IDEA was originally named the Education of the Handicapped

Act, until renamed in 1990." Doe v. Boston Pub. Schs., 358 F.3d 20, 23

n.2 (1st Cir. 2004).

18 J.S. v. ISLE OF WIGHT COUNTY SCHOOL BOARD

Id. at 1274-75.

Our holding in Pinderhughes resulted from the unusual circum-

stance in which a defendant openly flouted an administrative order

under the EHA. For this reason, we carefully observed that the gen-

eral prohibition against seeking damages under § 1983 for an IDEA

violation remained intact:

Our decision is not approval of an end run around the EHA

in order to circumvent or enlarge the remedies available

under the EHA. The plaintiffs in fact did proceed under the

EHA until the city simply declined to enforce the final deci-

sion of the hearing officer. At that point, and not before,

plaintiffs were entitled to rely upon § 1983.

Id. at 1275 (citation omitted).

By contrast, the present action under § 1983 is precisely the kind

of "end run" around the IDEA that we warned against in

Pinderhughes. Unlike the situation in Pinderhughes, in which the

plaintiffs achieved a victory under the EHA but were powerless to

enforce it, the defendants in this case have not only conceded their

violation of the IDEA, but have tendered to J.S. all forms of relief that

he was entitled to receive under the statute, including: (1) an agree-

ment to comply with all applicable provisions of the IDEA concern-

ing J.S.’s right to a free and appropriate public education; and (2) an

award of costs and attorney’s fees. Having obtained exactly what he

was entitled to receive under the IDEA, J.S. cannot reasonably main-

tain that a deficiency in the statute’s remedial scheme justifies an

enforcement action under § 1983.

V.

We conclude that the district court erroneously held that J.S.’s

claim under the Rehabilitation Act is barred on account of his failure

to comply with the timely-notice provision of Va. Code Ann. § 51.5-

46(B). However, we agree with the district court that his claim under

42 U.S.C. § 1983 is foreclosed by our holding in Sellers. Accordingly,

the order granting summary judgment for the defendants on Counts

II and III of the Complaint is

J.S. v. ISLE OF WIGHT COUNTY SCHOOL BOARD 19

REVERSED IN PART, AFFIRMED IN PART,

AND REMANDED.

TITUS, District Judge, concurring:

I agree that the 180-day notice-of-claim provision under the Vir-

ginia Rights of Persons with Disabilities Act may not be applied to

bar J.S.’s Rehabilitation Act claim. However, I am concerned that our

decision may be misconstrued, albeit incorrectly, as endorsing the

exposure of a school system to separate liability under the Rehabilita-

tion Act where, at least under the circumstances of this case, it may

be inappropriate in light of the intent of Congress in enacting the

IDEA. Because of the procedural posture in the proceedings below,

the issue of potential liability under both the Rehabilitation Act and

the IDEA was not addressed or decided. Therefore, it would not be

appropriate for this Court to do so prior to a decision by the district

court. Nevertheless, I write separately in order to bring the issue to

the attention of the district court for its consideration on remand.

The district court should consider whether Congress’ intent would

be furthered by subjecting the school system to additional damages

under the Rehabilitation Act, after it has admitted its liability under

the IDEA and J.S. has been afforded relief under the IDEA to remedy

that violation. As noted above, we cautioned in Pinderhughes that a

§1983 action could not be used to perform an "end run" around the

IDEA. Pinderhughes, 810 F.2d at 1275. In Sellers, we observed that

the intent of Congress was that the remedial mechanisms established

by the IDEA be pursued solely under its provisions in the absence of

bad faith or any gross misjudgment sufficient to support a claim of

discrimination under the Rehabilitation Act. Sellers, 141 F.3d at 529.

Similar concerns may exist in this case and I believe that they should

be addressed by the district court on remand. Unless the district finds

bad faith or gross misjudgment, I see little basis for separate liability

under the Rehabilitation Act.

The interplay between the IDEA and the Rehabilitation Act was

addressed in Smith v. Robinson, 468 U.S. 992 (1984), where the

Supreme Court affirmed the First Circuit’s ruling that when a plaintiff

brings an action under both the EHA (the predecessor of the IDEA)

and the Rehabilitation Act, that plaintiff cannot obtain attorneys fees

20 J.S. v. ISLE OF WIGHT COUNTY SCHOOL BOARD

because the EHA does not provide for such payment.1 Id. at 1019-21.

Significantly, the Court held that

it is only in the EHA that Congress specified the rights and

remedies available to a handicapped child seeking access to

public education. Even assuming that the reach of §504 is

coextensive with that of the EHA, there is no doubt that the

remedies, rights and procedures Congress set out in the

EHA are the ones it intended to apply to a handicapped

child’s claim to a free appropriate public education.

Id. at 1019. In the wake of Smith v. Robinson, circuit courts rendered

decisions consistent with this clear opinion. See Doe v. Maher, 793

F.2d 1470, 1479-80 (9th Cir. 1986); Georgia Ass’n of Retarded Citi-

zens v. McDaniel, 740 F.2d 902, 902 (11th Cir. 1984).

Effective August 5, 1986, Congress amended 20 U.S.C. §1415.

The amendment changed 1415(f), to state: "Nothing in this title shall

be construed to restrict or limit the rights, procedures, and remedies

available under the Constitution, title V of the Rehabilitation Act of

1973, or other Federal statutes protecting the rights of handicapped

children and youth[.]" The Fifth Circuit concluded that "Congress

read the Supreme Court’s decision in Smith and acted swiftly, deci-

sively, and with uncharacteristic clarity to correct what it viewed as

a judicial misinterpretation of its intent." Fontenot v. Louisiana Bd.

of Elementary and Secondary Educ., 805 F.2d 1222, 1223 (5th Cir.

1986). Currently, this "rule of construction" is codified in 20 U.S.C.

§1415(l).

Upon remand, I believe that the district court should consider this

provision of the IDEA and its application in cases where a plaintiff

has been accorded relief under the IDEA. One district court has found

that when a plaintiff’s claims "only challenge the adequacy of special

education services . . . [those] claims are squarely within the ambit of

IDEA, which provides the sole remedy. The Rehabilitation Act claim

is redundant of the IDEA claim." Chuhran v. Walled Lake Consoli-

dated Schools, 839 F. Supp. 465, 475 (E.D. Mich. 1993). Other dis-

1

Unlike the predecessor EHA, the IDEA now authorizes an award of

attorneys fees. See 20 U.S.C. §1415(i)(3)(B).

J.S. v. ISLE OF WIGHT COUNTY SCHOOL BOARD 21

trict courts agree. See Ft. Zumwalt School Dist. v. Missouri State Bd.

of Educ., 865 F. Supp. 604, 606-07 (E.D. Mo. 1994); Swift v. Rapides

Parish Public School System, 812 F. Supp. 666, 668 n.1 (W.D. La.

1993); Carey v. Maine School Administrative Dist. #17, 754 F. Supp.

906, 923 (D. Maine 1990) (stating in dictum that "plaintiffs may not

use the general remedial provisions of the [Rehabilitation Act] to

expand the scope of the remedies which are available under the

[EHA]. Plaintiffs may use the [Rehabilitation Act] only to pursue

those remedies available under the [EHA].").2

There are, however, district courts that have read the amendment

to the IDEA to evince Congress’ intent "to provide that the EHA is

not an exclusive remedy, overruling Smith." Silano v. Tirozzi, 651 F.

Supp. 1021, 1024 (D. Conn. 1987). And, at least one district court did

permit recovery under both the Rehabilitation Act and the IDEA. P.N.

v. Greco, 282 F. Supp. 2d 221 (D.N.J. 2003). Unfortunately, the opin-

ion in Greco did not discuss the interplay between these two statutes

and merely stated, in conclusory terms, that "the requirements

imposed under §504 substantially duplicate those provided under the

IDEA[,] . . . [a]ccordingly, [two of the defendants] are liable under

§504 on the same theories that render them liable under the IDEA."

Id. at 241 (citation omitted).

Upon remand, I believe that the district court should consider these

cases and the issue of whether, in the absence of bad faith or gross

misjudgment, a separate and additional remedy under the Rehabilita-

tion Act is appropriate when relief is awarded under IDEA.

2

Chuhran and Ft. Zumwalt School Dist. both rely on Smith for the

proposition that "the United States Supreme Court held that where the

IDEA provides a remedy, it is the exclusive avenue for redress." Chuh-

ran, 839 F. Supp. at 475; see Ft. Zumwalt School Dist., 865 F. Supp. at

606-07 ("[P]arents cannot rely on §504 of the Rehabilitation Act for

damages unavailable under IDEA."). Although these cases were decided

well after the amendment to §1415(l), neither addresses Congress’ reac-

tion to Smith and the subsequent amendment.