PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 10-1179
STEVEN I.; MARK I.; JILL I.,
v.
CENTRAL BUCKS SCHOOL DISTRICT,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2-08-cv-00571)
District Judge: Honorable John R. Padova
Argued July 13, 2010
Before: RENDELL, JORDAN and GREENAWAY, JR.,
Circuit Judges.
(Filed August 18, 2010)
Scott H. Wolpert, Esq. [ARGUED]
Timoney Knox
400 Maryland Drive
P.O. Box 7544
Fort Washington, PA 19034-7544
Counsel for Appellant
Heather Hulse, Esq.
Dennis C. McAndrews, Esq.
Gabrielle C. Sereni, Esq. [ARGUED]
McAndrews Law Offices
30 Cassatt Avenue
Berwyn, PA 19312
Counsel for Appellees
OPINION OF THE COURT
RENDELL, Circuit Judge.
We are asked on this appeal to resolve a conflict among
the district courts in our circuit, most notably in Pennsylvania,
regarding the applicability of the statute of limitations enacted
as part of the 2004 amendments to the Individuals with
Disabilities Education Improvement Act (“IDEA 2004”) to
compensatory education claims that are brought after the
statute’s effective date but that arise from conduct that occurred
2
before the statute’s passage.1 We conclude that, because the
statute of limitations did not become effective until seven
months after the enactment of IDEA 2004, it is reasonable to
apply it to claims based on conduct that pre-dated the law’s
passage. Accordingly, we will reverse the order of the District
Court and remand for further proceedings.2
1
Compare Evan H. v. Unionville-Chadds Ford Sch. Dist.,
No. 07-4990, 2008 WL 4791634 (E.D. Pa. Nov. 4, 2008)
(concluding that the IDEA 2004 statute of limitations applies to
claims filed after the effective date even if based on conduct that
occurred prior to the statute’s enactment), D.K. v. Abington Sch.
Dist., No. 08-4914, 2010 WL 1223596 (E.D. Pa. Mar. 25, 2010)
(same), Breanne C. v. S. York Cnty. Sch. Dist., 665 F. Supp. 2d
504 (M.D. Pa. 2009) (same), and Sch. Dist. of Phila. v.
Deborah A., No. 08-2924, 2009 WL 778321 (E.D. Pa. Mar. 24,
2009) (same), with Tereance D. v. Sch. Dist. of Phila., 570
F. Supp. 2d 739 (E.D. Pa. 2008) (concluding that the IDEA
2004 statute of limitations does not bar claims filed after the
effective date where the cause of action accrued prior to that
date), Laura P. v. Haverford Sch. Dist., No. 07-5395, 2008 WL
5000461 (E.D. Pa.. Nov. 21, 2008) (same) and J.L. v. Ambridge
Area Sch. Dist., No. 06-1652, 2009 WL 1119608 (W.D. Pa.
Apr. 27, 2009) (same).
2
The District Court had jurisdiction under 28 U.S.C. § 1331.
The District Court certified the following issue for interlocutory
appeal:
(continued...)
3
I. Background
Steven I. was enrolled in the Central Bucks School
District from the 1992-93 school year until his graduation from
high school on June 17, 2005. He was first identified as
learning disabled in kindergarten, and continued to be eligible
for special education programming and services through his
high school graduation. On May 1, 2007, Steven I.’s parents
initiated a due process hearing seeking compensatory education
from the 1997-1998 school year through the filing date 3 for
2
(...continued)
Whether the statute of limitations under the
Individuals with Disabilities Education Act, as
amended by the Individuals with Disabilities
Education Improvement Act, 20 U.S.C.
§ 1415(f)(3)(C), applies retroactively to Plaintiffs’
claims for compensatory education for the time
period beginning with the 1997-98 school year
and concluding on May 1, 2005.
Steven I. v. Cent. Bucks Sch. Dist., No. 08-571, 2009 WL
839055, at *1 (E.D. Pa. Mar. 27, 2009). This is indisputably a
question of law, and thus our standard of review is de novo.
3
The School District conceded that Steven I.’s claims,
arising between May 1, 2005 and his graduation on June 17,
2005, were not barred by the statute of limitations. The parties
(continued...)
4
failure to provide a free appropriate public education under
IDEA 2004 and Section 504 of the Rehabilitation Act, 29 U.S.C.
§ 795.
IDEA 2004 was enacted on December 3, 2004. It broke
new ground by providing for a two year statute of limitations
where there previously had been none. The statute of limitations
provision, 20 U.S.C. § 1415(f)(3)(C), took effect on July 1,
2005, seven months after the law was passed.4 It 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
3
(...continued)
independently resolved all claims arising out of that six-week
period. Steven I. also asserts that his graduation from high
school was improper, and thus compensatory education would
continue to accrue after June 17, 2005. This claim was rejected
by the District Court and is not at issue in this appeal.
4
IDEA 2004 specified that certain provisions in the statute
would take effect on the date of the statute’s enactment,
December 3, 2004, and that others, including the statute of
limitations, would not take effect until July 1, 2005. See 20
U.S.C. § 1400, historical and statutory notes.
5
complaint5 , 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.6
In concluding that the two-year statute of limitations does
not bar claims that accrued prior to the effective date of that
statute, the District Court applied the two-part retroactivity
analysis that the Supreme Court set forth in Landgraf v. USI
Film Prods., 511 U.S. 244 (1994), and INS v. St. Cyr, 533 U.S.
289, 316 (2001), focusing on (1) whether there is clear
congressional intent that the statute be applied retroactively, and
(2) whether the retroactive application of the statute would have
an impermissible effect, that is, would it “take[] away or
5
IDEA 2004 allows for two exceptions to the statute of
limitations when a parent is prevented from requesting a hearing
because the local educational agency (1) made specific
misrepresentations that it had resolved the problem that formed
the basis of the complaint; or (2) withheld information from the
parent that the agency was required to provide. 20 U.S.C.
§ 1415(f)(3)(D). These exceptions are not at issue in this
appeal.
6
Although irrelevant to this appeal, the general consensus
among federal courts is that Pennsylvania does not have a
separate statute of limitations applicable to claims for
compensatory education. See Tereance D., 570 F. Supp. 2d at
744-45 n.6 (collecting cases).
6
impair[] vested rights acquired under existing law, or create[] a
new obligation, impose[] a new duty, or attach[] a new
disability, in respect to transactions or considerations already
past.” Landgraf, 511 U.S. at 269. The District Court noted that
the first prong was not satisfied because Congress did not
expressly state in IDEA 2004 that its statute of limitations was
to be applied retroactively. The District Court further
determined that, under the second prong, applying the IDEA
2004 statute of limitations would have an impermissible
retroactive effect because to do so would impair rights that
Steven I. had prior to the amendment by attaching “new legal
consequences to events completed before the amendment’s
effective date.” Steven I. v. Cent. Bucks Sch. Dist., No. 08-571,
2009 WL 415767, at *5 (E.D. Pa. Feb. 18, 2009) (internal
citation omitted).
On appeal, the School District urges that we should not
apply a retroactivity analysis to the amended statute of
limitations and should instead look to whether IDEA 2004,
given the seven-month delay between the statute’s enactment
and the effective date of the statute of limitations provision,
gave sufficient notice and a reasonable opportunity for litigants
to commence an action based on claims arising in the past.
Steven I. responds that the District Court correctly applied the
two-step Landgraf analysis in concluding that the IDEA 2004
statute of limitations should not apply retroactively.
7
II. Discussion
The Landgraf analysis is typically controlling on issues
of retroactivity, in particular the application of new substantive
requirements to conduct that occurred in the past. However,
because the statute of limitations in IDEA 2004 governs
Steven I.’s conduct in filing the claim, not the School District’s
conduct giving rise to the claim, we need not engage in a
retroactivity analysis.7 “Generally, retroactivity concerns do not
7
The School District also urges that retroactivity is not an
issue in this case because procedural rules “may often be applied
in suits arising before their enactment without raising concerns
about retroactivity.” Landgraf, 511 U.S. at 275. This is not
dispositive here because (1) statutes of limitations “lie on the
cusp of the procedural/substantive distinction,” Vernon v.
Cassadaga Valley Cent. Sch. Dist., 49 F.3d 886, 892 (2d Cir.
1995) (Cabranes, J., concurring); and (2) while the presumption
against retroactivity primarily applies to a statute altering
substantive rights, concerns about retroactivity are nonetheless
applicable to procedural rules, Landgraf, 511 U.S. at 275 n.29.
However, Landgraf’s distinction between procedural and
substantive rules is relevant to our analysis in that rules of
procedure regulate secondary, rather than primary conduct. Id.
at 275. Statutes of limitations regulate secondary conduct, I.e.,
the filing of a suit, not primary conduct, I.e., the actions that
gave rise to the suit. Thus, the fact that a new statute of
limitations was enacted after the primary conduct giving rise to
(continued...)
8
bar a changed limitation period’s application to a suit filed after
the amendment’s effective date.” United States v. Simmonds,
111 F.3d 737, 745 (10th Cir. 1997), overruled on other grounds
by United States v. Hurst, 322 F.3d 1256 (10th Cir. 2003); see
also Vernon v. Cassadaga Valley Cent. Sch. Dist., 49 F.3d 886,
890 (2d Cir. 1995) (“Retroactivity concerns, therefore, generally
do not bar the application of a changed statute of limitations to
a complaint filed after the amendment . . . . The conduct to
which the statute of limitations applies is not the primary
conduct of the defendants . . . but is instead the secondary
conduct of the plaintiffs, the filing of their suit.”); Forest v.
United States Postal Serv., 97 F.3d 137, 140 (6th Cir. 1996)
(finding that the application of a new statute of limitations is
prospective because it applies to the filing of the complaint,
which occurred after the statute was enacted); Smith v. Zeneca,
Inc., 820 F. Supp. 831, 833 (D. Del. 1993) (finding that
retroactivity is not at issue when applying an amended statute of
limitations where defendant’s conduct occurred prior to the
amendment, because “[w]hether or not suit has been filed within
the statute of limitations is an act of the plaintiff, not the
defendant. The only issue is which law applies to plaintiff’s
7
(...continued)
the suit occurred, namely the filing of the claim, does not make
application of the new statute of limitations unfair from a
“retroactivity” standpoint because the secondary conduct
governed by the statute of limitations occurred after its effective
date. Id.
9
acts.”), aff’d, 37 F.3d 1489 (3d Cir. 1994). Thus, retroactivity
is not at issue here because it is undisputed that Steven I. filed
the claim after the effective date of the statute of limitations.
The principles governing the application of amended
statutes of limitation were first set out by the Supreme Court
over 100 years ago:
[A]ll statutes of limitation must proceed on the
idea that the party has full opportunity afforded
him to try his right in the courts. A statute could
not bar the existing rights of claimants without
affording this opportunity . . . . It is essential that
such statutes allow a reasonable time after they
take effect for the commencement of suits upon
existing causes of action; though what shall be
considered a reasonable time must be settled by
the judgment of the legislature, and the courts will
not inquire into the wisdom of its decision in
establishing the period of legal bar, unless the
time allowed is manifestly so insufficient that the
statute becomes a denial of justice.
....
This court has often decided that statutes of
limitation affecting existing rights are not
unconstitutional, if a reasonable time is given for
10
the commencement of an action before the bar
takes effect.
It is difficult to see why, if the legislature may
prescribe a limitation where none existed before,
it may not change one which has already been
established. The parties to a contract have no
more a vested interest in a particular limitation
which has been fixed than they have in an
unrestricted right to sue.
....
In all such cases the question is one of
reasonableness, and we have, therefore, only to
consider whether the time allowed in this statute
is, under all the circumstances, reasonable. Of that
the legislature is primarily the judge, and we
cannot overrule the decision of that department of
the government, unless a palpable error has been
committed . . . for what is reasonable in a
particular case depends upon its particular facts.
Wilson v. Iseminger, 185 U.S. 55, 62-63 (1902) (internal
quotation marks omitted).
Since Wilson, courts have routinely noted that an
amended statute of limitations cannot be “unfairly applied” so
11
as to bar an action without providing fair notice and a
reasonable time for plaintiffs to bring their claims. Simmonds,
111 F.3d at 745; see also Ochoa v. Hernandez y Morales, 230
U.S. 139, 161-62 (1913) ( “[I]t is well-settled that [statutes of
limitations] may be modified by shortening the time prescribed,
but only if this be done while the time is still running, and so
that a reasonable time still remains for the commencement of an
action before the bar takes effect.”) (internal quotation marks
omitted); Kelly v. Burlington N. R.R. Co., 896 F.2d 1194, 1198-
99 (9th Cir. 1990) (stating that it would be unfair to apply a new
shortened statute of limitations “to a cause of action which
accrued prior to the [new] rule without affording the plaintiff a
reasonable period in which to file his claim after the
announcement of the new limitations period”); Hanner v. Miss.,
833 F.2d 55, 57 (5th Cir. 1987) (plaintiffs whose causes of
action accrued before a new statute of limitations was enacted
should be given a reasonable time within which to bring their
actions).
As we noted above, IDEA 2004 was enacted on Dec. 3,
2004 and its statute of limitations provision became effective
approximately seven months later, on July 1, 2005. Thus,
Congress wrote a seven-month “grace period” into this statute.
We are therefore tasked with determining whether this seven-
month period provided litigants with reasonable notice 8 and
8
In supplemental briefing requested by the Court regarding
(continued...)
12
opportunity to bring claims such that imposing a new statute of
limitations is not unfair and hence impermissible.
We conclude that the enactment of IDEA 2004 provided
sufficient notice of the new statute of limitations. “All persons
are charged with knowledge of the provisions of statutes and
must take note of the procedure adopted by them,” N. Laramie
Land Co. v. Hoffman, 268 U.S. 276, 283 (1925) and “a
legislature need do nothing more than enact and publish the law,
8
(...continued)
the “retroactivity” of statutes of limitation, Steven I. mentions
for the first time that IDEA 2004, 20 U.S.C. §§ 1415(d)(1)(A)
and (d)(2)(E)(1), requires School Districts to give parents a
procedural safeguards notice once each year that includes the
time period in which to make a complaint. Steven I. states that
this requirement provides an affirmative defense and that the
School District did not prove that they specifically informed
Steven I.’s parents of IDEA 2004's new statute of limitations
prior to the effective date. However, Steven I. did not raise this
issue before the District Court or in his initial brief on appeal, so
it is waived. See United States v. Pelullo, 399 F.3d 197, 222 (3d
Cir. 2005) (“It is well settled that an appellant’s failure to
identify or argue an issue in his opening brief constitutes waiver
of that issue on appeal.”). Further, even if we were to consider
this issue, Steven I. graduated prior to the effective date of the
statute of limitations so it is unclear whether the School District
even had an obligation to inform Steven I.’s parents of the new
statute of limitations.
13
and afford the citizenry a reasonable opportunity to familiarize
itself with its terms and to comply,” Texaco, Inc. v. Short, 454
U.S. 516, 532 (1982). Further, we defer to Congress’s
determination that the seven-month grace period provided
sufficient notice to potential litigants:
It is also settled that the question whether a
statutory grace period provides an adequate
opportunity for citizens to become familiar with a
new law is a matter on which the Court shows the
greatest deference to the judgment of state
legislatures. A legislative body is in a far better
position than a court to form a correct judgment
concerning the number of persons affected by a
change in the law, the means by which
information concerning the law is disseminated in
the community, and the likelihood that innocent
persons may be harmed by the failure to receive
adequate notice.
Id. (internal citations omitted).
We also conclude that the seven months before the IDEA
2004 statute of limitations became effective provided a
reasonable opportunity for litigants to bring any claims that had
already accrued. Here, again we defer to Congress’s providing
for the seven-month grace period, as explained above. Where
Congress has enacted a shortened statute of limitations without
14
allowing any opportunity to bring a previously-accrued claim,
we have provided litigants with a grace period as short as 30
days, running from the date of the enactment of the new statutes
of limitations. See Kolkevich v. Att’y Gen., 501 F.3d 323, 336
(3d Cir. 2007) (allowing 30 days from the date of the REAL ID
Act’s enactment for aliens to file petitions for review and
finding that this 30-day period is reasonable); see also Burns v.
Morton, 134 F.3d 109, 111 (3d Cir. 1998) (allowing a one-year
period from AEDPA’s enactment for litigants to bring habeas
claims and citing cases from the Ninth, Tenth and Seventh
Circuits holding the same), and Anton v. Lehpamer, 787 F.2d
1141, 1146 (7th Cir. 1986) (allowing a two-year grace period in
which to bring suit after the Supreme Court held that state
statutes of limitations apply to claims under 42 U.S.C. § 1983).
We see no reason to second-guess Congress’s determination that
seven months provides a reasonable opportunity for litigants to
bring claims.9
9
Judge Schiller raises an interesting point buttressing the
soundness of reading congressional intent to apply the new
statute of limitations to all existing claims:
Plaintiffs’ proposed reading of IDEA-2004, which
would declare it inapplicable to claims involving
underlying conduct that occurred prior to its
enactment, poses another problem that Congress
could not have intended. Under this reading, had
(continued...)
15
In Texaco, Justice Brennan spoke to the issue of fairness,
which balances the need for a grace period when shortening a
limitations period, with the need for injured parties to be vigilant
in protecting their rights:
The Court has upheld retroactive adjustments to a
limitations period only when the legislature has provided a grace
period during which the potential plaintiff could reasonably be
expected to learn of the change in the law and then initiate his
action. In the context of a retrospective statute of limitations, a
reasonable grace period provides an adequate guarantee of
fairness. Having suffered the triggering event of an injury, a
potential plaintiff is likely to possess a heightened alertness to
the possibly changing requirements of the law bearing on his
9
(...continued)
Plaintiffs requested their special education due
process hearing on February 21, 2008, instead of
in 2007, they would be permitted to raise claims
relating to conduct from the prior two years
(February 21, 2006 to February 21, 2008) and
claims from the period prior to July 1, 2005, the
date IDEA-2004 took effect, but would be barred
from raising claims based on conduct occurring
between July 1, 2005 and February 21, 2006.
Congress could not have intended such a bizarre
outcome.
Evan H., 2008 WL 4791634 at *4.
16
claim. Because redress necessarily depends on recourse to the
State’s judicial system, the State is free to condition its
intervention on rules of procedure, and further, to impose on the
potential plaintiff the obligation to monitor changes in those
rules. Plaintiffs, and their attorneys, are so aware.
454 U.S. at 549. (Brennan, J., dissenting 10 ).
We conclude that the time period between IDEA 2004's
enactment and the effective date of its statute of limitations gave
Steven I. ample time to become aware of the change in the law
and a reasonable opportunity to file a claim based on conduct
dating back to 1997. Steven I.’s parents did not initiate a due
process hearing until May 1, 2007. Thus, the two-year statute of
limitations in IDEA 2004 applies to Steven I.’s claims and bars
any causes of action that accrued prior to May 1, 2005.
10
The portion of Justice Brennan’s dissent that we cite sets
forth a principle that appears to be uncontested. Texaco
involved a law that extinguished individuals’ pre-existing
property interests without specific notice. The dissent
distinguished this from cases “involving the application of
legislatively foreshortened limitations periods to causes of
actions that have already vested,” because that is a particular
class of cases in which it is reasonable to rely on presumed
knowledge of the law when Congress has provided a grace
period. 454 U.S. at 549.
17
For the foregoing reasons, we will REVERSE the order
of the District Court and REMAND this case for proceedings
consistent with this Opinion.
18