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