G.L. v. Ligonier Valley School District Authority

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________

No. 14-1387
___________

G.L.; MR. G.L. and MRS. E.L., in their own right

v.

LIGONIER VALLEY SCHOOL DISTRICT AUTHORITY,
Appellant
_____________________

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2-13-cv-00034)
District Judge: Honorable Mark R. Hornak
_____________________

Argued: December 16, 2014

Before: McKEE, Chief Judge, GREENAWAY, JR., and
KRAUSE, Circuit Judges

(Filed: September 22, 2015)
_____________
John K. Greiner, Esq.
Charles W. Jelley, Esq. [Argued]
Margaret A. Tremba, Esq.
Kristen C. Weidus, Esq.
Tremba, Jelley & Kinney
302 West Otterman Street
Greensburg, PA 15601
Counsel for Appellees

Christina Lane, Esq. [Argued]
Sanchez Legal Group
2403 Sidney Street, Suite 242
Pittsburgh, PA 15203
Counsel for Appellant

Mark L. Gross, Esq.
Holly A. Thomas, Esq.
United States Department of Justice
Civil Rights Division, Appellate Section
P.O. Box 14403
Ben Franklin Station
Washington, DC 20044
Counsel for Amicus Curiae

Jennerifer N. Rosen Valverde, Esq. [Argued]
Rutgers University School of Law
Special Education Clinic
123 Washington Street
Newark, NJ 07102
Counsel for Amici Appellees1

1
We thank the seven organizations led by the
Education and Health Law Clinic at Rutgers University

2
 ___________

OPINION

KRAUSE, Circuit Judge.

The Individuals with Disabilities Education Act
(“IDEA”) broadly authorizes the courts to provide appropriate
relief, including compensatory education, to children who
have been deprived by their state or local educational
agencies of a free appropriate public education. When
Congress reauthorized the IDEA in 2004, it enacted 20 U.S.C.
§ 1415(f)(3)(C), a statute of limitations that requires parents
to file a due process complaint no more than two years after
the parents “knew or should have known” about the alleged
deprivation, that is, within two years of the reasonable
discovery of that violation.2 The legislation simultaneously
amended 20 U.S.C. § 1415(b)(6)(B), which previews the
various procedural safeguards available to parents, including
the opportunity to file that due process complaint. The new
language added to this prefatory subsection, however,
described the due process complaint as alleging an injury that
occurred not more than two years before the reasonable
discovery date.

School of Law-Newark for their helpful perspective and
excellent briefing and argument in this case.
2
The parties here, like some district courts in our
Circuit, referred to the reasonable discovery date as the
“KOSHK date.” See, e.g., Jana K. ex rel. Tim K. v. Annville-
Cleona Sch. Dist., 39 F. Supp. 3d 584, 596 (M.D. Pa. 2014).

3
 In an appeal stemming from a due process complaint
filed by the parents of G.L., a student with special needs, we
consider, in a matter of first impression among the Courts of
Appeals, how these two provisions should be interpreted
together and what effect they have on the courts’ authority to
remedy IDEA violations, in particular, through the award of
compensatory education. We address today which, of a
variety of interpretations, is correct: Does § 1415(b)(6)(B)
limit compensatory education to injuries occurring two years
before the filing of the complaint, even if earlier injuries are
claimed within two years of their reasonable discovery, as
urged by Appellant Ligonier Valley School District
Authority? Does it limit compensatory education to injuries
that occurred from two years before their reasonable
discovery through the filing of the complaint, up to two years
after that discovery, i.e., the “2+2” approach taken by the
District Court and urged by G.L.? Does it impose only a
pleading requirement, without affecting the availability of a
remedy for timely and well-pleaded claims, as argued by
Amici Appellees and G.L. in the alternative? Or is it simply a
restatement, albeit ill-phrased, of the same two-year statute of
limitations set forth in § 1415(f)(3)(C), as asserted by the
United States Department of Education (“DOE”)?
Recognizing the uncertainty in this area, the District Court
certified the question for interlocutory appeal.

We now conclude, after careful consideration of the
parties’ plain language arguments, the statutory context and
structure, the DOE’s interpretive guidance, and the legislative
history, that § 1415(b)(6)(B) is simply an inartful attempt to
mirror § 1415(f)(3)(C)’s two-year statute of limitations. That
is, both sections reflect the same two-year filing deadline for
a due process complaint after the reasonable discovery of an

4
injury, and § 1415(b)(6)(B) neither imposes a pleading
requirement nor in any respect alters the courts’ broad power
under the IDEA to provide a complete remedy for the
violation of a child’s right to a free appropriate public
education.

I. Facts and Procedural History

A. G.L.’s Schooling

After spending the previous year at a parochial school,
G.L. entered high school in the Ligonier Valley School
District (the “District”) in the fall of 2008.3 At a school open
house shortly after he started, G.L.’s teacher told his father
that G.L. seemed distracted in class and lacked organizational
skills. G.L.’s father then orally requested that the District
evaluate G.L. for any special education needs. The request
was to no avail: No evaluation was conducted and, instead, in
the wake of a tragic car accident in which G.L. lost his older
sister, the District, purportedly on the basis of information in
her obituary, opened an investigation into whether G.L. even
lived within District boundaries. That investigation confirmed
G.L.’s residence and thus the District’s obligation under the
IDEA to provide him with a free appropriate public education
(“FAPE”).

In the meantime, however, G.L. continued to struggle
academically. For a time, he was able to keep those struggles

3
We review the allegations of the complaint and all
reasonable inferences drawn therefrom in the light most
favorable to G.L., the non-moving party. See D.E. v. Cent.
Dauphin Sch. Dist., 765 F.3d 260, 271 (3d Cir. 2014).

5
partially hidden from his parents by intercepting and altering
his report card. At the conclusion of the 2008-09 school year,
however, District officials informed G.L.’s parents that he
would need to repeat the ninth grade. It was at this point that
his parents learned that he was being bullied at school on the
basis of his sexual orientation, with students regularly calling
him a “faggot” and a “homo,” and that as a result he was
having trouble eating, sleeping, and concentrating on his
studies.

Faced with the District’s contention that G.L. should
repeat the ninth grade, G.L.’s parents complained to the
school principal about the bullying and again requested that
G.L. be evaluated for special education needs. The
conversation became heated, and the principal told G.L.’s
father to speak with the parents of the bullying students
himself. The principal also informed G.L.’s parents that a
request for special education evaluation needed to be in
writing. G.L.’s father then immediately handwrote and
submitted a request, which G.L.’s mother followed up with an
email to the principal. Apparently not caring for the tone of
that email, the principal made an angry phone call to each of
G.L.’s parents. The same day, the principal requested that the
District again investigate the residency of G.L. and his
family.

The District then began another investigation,
representing to the family that the new investigation was
based on an anonymous phone call to the District.
Meanwhile, the principal also conducted his own ad-hoc
investigation, using school computers to search for voting
records of G.L.’s parents. Over the next month, it appears
little was done to assist G.L. with the challenges he faced
either academically or socially. The District did, however,

6
demand that the family provide a number of additional
documents to prove residency. Eventually, the District
agreed to formally evaluate G.L. for the remedial support to
which he might be entitled pursuant to the IDEA, and in
August 2009, after the family hired an attorney, yet again
confirmed that G.L. lived within District boundaries.

Thus, when G.L. returned to school in the fall, the
District finally evaluated him for his special education needs
for the 2009-10 school year and instituted a plan to prevent
him from being bullied. That evaluation revealed that G.L.
did indeed have learning disabilities in math, reading, and
writing. In November 2009, the District offered to G.L.’s
parents an Individualized Education Program (“IEP”), which
G.L.’s parents found inadequate and sought to supplement
with supports tied to each of G.L.’s special needs. Despite
multiple meetings between the parents and District officials
during the months of December and January, they were
unable to agree on the educational goals that would satisfy a
FAPE for G.L.

While the parties were attempting to negotiate a
satisfactory IEP over the fall and winter, the District also
attempted to implement a plan to prevent G.L. from being
bullied. However, by January 2010, the bullying not only had
continued, but had grown to include the participation of the
school’s football coach, who allegedly made a disparaging
remark to another student about that student’s relationship
with G.L., and did so in front of some of the very students
who were bullying G.L. When he learned of this public
remark by the coach, G.L. became distraught and refused to
return to school. Instead, his parents picked up and returned
his school work, which he completed at home. As this went
on, G.L.’s IEP team continued to meet, and his parents were

7
in regular contact with District officials to attempt to address
the bullying situation.

In March 2010, G.L. was evaluated by an intermediate
unit psychologist, who conditionally diagnosed him with two
additional disabilities, including post-traumatic stress disorder
caused by the ongoing bullying. On March 8, 2010,
frustrated with the bullying that had been allowed to escalate
and apparently had caused additional disabilities in their
child, upset by his academic struggles, and dissatisfied with
the IEP offered by the District, G.L.’s parents withdrew him
from the school and enrolled him in a cyber charter school.
The District has conceded that March 9, 2010 reflects the date
G.L.’s parents “knew or should have known” about the
deprivation of a free appropriate public education to G.L.,
that is, the reasonable discovery date for purposes of this
case.4

On January 9, 2012, within two years of the reasonable
discovery date, and thus within the statute of limitations set
forth in § 1415(f)(3)(C), G.L.’s parents filed their due process
complaint, alleging that the District denied him a FAPE and
requesting compensatory education for September 2008
through March 2010—that is, the entire period that G.L. was
allegedly denied a FAPE by the District before he withdrew
from school.

4
The District has not disputed at any point during
these protracted proceedings, including on appeal, that March
9, 2010 was the reasonable discovery date. Having not raised
such an argument to date, the District has waived it in any
event. See Del. Strong Families v. Att’y Gen. of Del., 793
F.3d 304, 310 n.5 (3d Cir. 2015).

8
 B. Procedural History

As required by the IDEA, G.L.’s parents initially
requested their due process hearing by filing a complaint with
the Pennsylvania Department of Education, which in turn
assigned it to a Hearing Officer. The Hearing Officer
acknowledged that the language of § 1415 seemed to describe
two different time periods relevant to the IDEA’s statute of
limitations: 20 U.S.C. § 1415(f)(3)(C), which provides that a
due process complaint must be filed no more than two years
after the reasonable discovery date, and 20 U.S.C.
§ 1415(b)(6)(B), which describes the due process complaint
as alleging an injury that occurred not more than two years
before the reasonable discovery date. However, the Hearing
Officer adopted the District’s position that the subsections,
first, were actually the “same,” and, second, barred relief for
violations that occurred more than two years before the
complaint was filed. Put differently, the Hearing Officer
adopted an effective two year remedy cap, compensating only
injuries that actually occurred within two years of the filing
date, regardless of whether the parents filed within two years
of reasonably discovering older injuries.

Applying this interpretation to G.L.’s complaint, the
Hearing Officer held that—even assuming that the District
deprived G.L. of a FAPE from September 2008 until March
9, 2010, that the parents reasonably did not know about the
injury before March 9, 2010, and that the January 9, 2012
complaint was timely filed within two years of that March 9,
2010 discovery—G.L.’s remedy was limited to injuries that
occurred in the three months between January 2010 and
March 2010 because that was the only period G.L. attended
the District school within the two-year window before the
filing of the complaint. Because the Hearing Officer

9
proceeded to hold that G.L. was not injured during this
period, i.e., that the District had provided a FAPE to G.L.
during the 2009-2010 school year, the Hearing Officer denied
any award of compensatory education, even for those three
months.5

The District Court, reviewing this decision, disagreed.
In denying the District’s motion to partially dismiss the
complaint on the basis of the alleged remedy cap, the District
Court construed § 1415(f)(3)(C) and § 1415(b)(6)(B), in
combination, to mean that G.L.’s relief may extend from two
years before the reasonable discovery date through the date
the complaint was filed, which could be up to two years after
the reasonable discovery date, for a maximum period of relief
of four years. G.L. v. Ligonier Valley Sch. Dist. Auth., No.
13-34, 2013 WL 6858963, at *4 (W.D. Pa. Dec. 30, 2013).
The District Court thus adopted what has become known as
the “2+2” construction of these statutory sections, id. at *4-6,
applying the same construction embraced by three other
district courts in this Circuit, see M. v. Penn Manor Sch. Dist.,
No. 12-3646, 2015 WL 221086, at *5 (E.D. Pa. Jan. 14,
2015); Jana K., 39 F. Supp. 3d at 596-600; I.H. ex rel D.S. v.

5
Given his interpretation of the statute of limitations
provision, the Hearing Officer did not have occasion to
address the parents’ contention that G.L. was denied a free
appropriate public education throughout the 2008-2009
school year. He did, however, hold that the District had
discriminated against and had retaliated against G.L. in
violation of Section 504 of the Rehabilitation Act, 29 U.S.C.
§ 794.

10
Cumberland Valley Sch. Dist., 842 F. Supp. 2d 762, 773-74
(M.D. Pa. 2012). Because the 2+2 construction would render
G.L.’s injuries from September 2008 to January 2010
redressable upon finding a violation, the District Court
remanded for the Hearing Officer to address whether the
District provided G.L. a FAPE during the relevant period.
2013 WL 6858963, at *6. However, recognizing the
uncertainty in this area and correctly identifying this issue as
one that was “important, controlling, and recurring,” id., the
District Court stayed its remand order and certified the issue
for interlocutory appeal, which we then granted.6

II. Jurisdiction and Standard of Review

The District Court had jurisdiction pursuant to 20
U.S.C. § 1415(i)(2)(A) and 28 U.S.C. § 1331. We have
jurisdiction pursuant to 28 U.S.C. § 1292(b).

The District Court’s construction of § 1415(f)(3)(C)
and § 1415(b)(6)(B) presents a legal question over which we
apply plenary review. See P.P. ex rel. Michael P. v. W.
Chester Area Sch. Dist., 585 F.3d 727, 735 (3d Cir. 2009).

6
Because the District Court remanded on this basis, it
did not address the Hearing Officer’s finding that,
notwithstanding the disturbing manner in which the District
treated G.L. and his family, the District did not deprive G.L. a
FAPE during the 2009-2010 school year.

11
 III. The Individuals With Disabilities Act

A. Statutory Overview

The IDEA is intended to ensure that every child with
special needs is afforded a “free appropriate public education
designed to meet [those] unique needs,” 20 U.S.C.
§ 1400(d)(1)(A), through the statute’s “comprehensive . . .
remedial scheme,” A.W. v. Jersey City Pub. Sch., 486 F.3d
791, 803 (3d Cir. 2007) (en banc). The law ensures that right
“by mandating that public educational institutions identify
and effectively educate those children, or pay for their
education elsewhere if they require specialized services that
the public institution cannot provide.” P.P., 585 F.3d at 735.

Once a child is identified as having special needs, “[a]
school district provides a FAPE by designing and
implementing an individualized instructional program set
forth in an [IEP], which ‘must be reasonably calculated to
enable the child to receive meaningful educational benefits in
light of the student’s intellectual potential.’” Id. at 729-30
(quoting Shore Reg’l High Sch. Bd. of Educ. v. P.S., 381 F.3d
194, 198 (3d Cir. 2004)). To the extent a school district fails
to provide a student with a FAPE, a parent may file a due
process complaint on behalf of his or her child, with a
subsequent hearing held before an administrative hearing
officer. 20 U.S.C. §§ 1415(b)(6), (f)(1)(A); D.E., 765 F.3d at
274. A party dissatisfied with the result of that hearing may
then file an action in state or federal court. 20 U.S.C.
§ 1415(i)(2); D.E., 765 F.3d at 274.

Under the IDEA, a “district court is authorized to grant
‘such relief as the court determines is appropriate,’ including
attorneys’ fees, reimbursement for a private educational

12
placement, and compensatory education.” A.W., 486 F.3d at
802 (quoting 20 U.S.C. § 1415(i)(2)(C)(iii)). Compensatory
education “aim[s] to place disabled children in the same
position they would have occupied but for the school
district’s violations of IDEA,” by providing the educational
services children should have received in the first instance.
Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir.
2005). This “judicially-created remedy . . . has received the
imprimatur of this Court,” D.F. v. Collingswood Borough Bd.
of Educ., 694 F.3d 488, 496 (3d Cir. 2012), and reflects the
“broad discretion,” Bucks Cnty. Dep’t of Mental
Health/Mental Retardation v. Pennsylvania, 379 F.3d 61, 67
(3d Cir. 2004), that Congress has granted to the courts “to
remedy the deprivation of the right to a free appropriate
education,” Carlisle Area Sch. v. Scott P., 62 F.3d 520, 536
(3d Cir. 1995).

B. The 2004 Reenactment and Its
Aftermath

Prior to 2004, the IDEA did not include a statute of
limitations. See Steven I. v. Cent. Bucks Sch. Dist., 618 F.3d
411, 413 (3d Cir. 2010). Congress found this problematic
because parents could knowingly wait for many years to file
complaints, resulting in school districts that were “often
surprised by claims . . . involving issues that occurred in an
elementary school program when the child may currently be a
high school student.” H.R. Rep, 108-77, at 115 (2003).
Waiting many years to bring actions on behalf of a child,
Congress reasoned, jeopardized that child’s education and
created distrust between school administrators and parents.
Id.

13
 In the 2004 reauthorization of the IDEA, Congress
sought to remedy this problem by adding a statute of
limitations to 20 U.S.C. § 1415(f), which is entitled
“Impartial due process hearing” and sets forth the procedures
for the life cycle of such hearings, from the initial receipt of
the due process complaint that constitutes the request for the
hearing, 20 U.S.C. § 1415(f)(1), through the findings of the
hearing officer, 20 U.S.C. § 1415(f)(3)(E). The new
subsection, § 1415(f)(3)(C), was entitled “Timeline for
requesting hearing” and states:

A parent or agency shall request an impartial
due process hearing within 2 years of the date
the parent or agency knew or should have
known about the alleged action that forms the
basis of the complaint, or, if the State has an
explicit time limitation for requesting such a
hearing under this subchapter, in such time as
the State law allows.

20 U.S.C. § 1415(f)(3)(C). Accordingly, under the IDEA
parents must file their due process complaint within two years
of the date they “knew or should have known” of the
violation, unless the state has its own statute of limitations, in
which case the state’s statute controls. Id.; D.K. v. Abington
Sch. Dist., 696 F.3d 233, 244 & n.2 (3d Cir. 2012). The
reauthorization also added two equitable tolling exceptions to
this statute of limitations, which apply regardless of whether
the state has enacted its own statute of limitations: specific
misrepresentations by the school district and the withholding

14
of statutorily mandated disclosures. 20 U.S.C.
§ 1415(f)(3)(D).7

Section 1415 overall is a lengthy and detailed section,
the “entire purpose” of which “is to provide parents
‘procedural safeguards with respect to the provision of a free
appropriate public education.’” D.M. v. N.J. Dep’t of Educ.,
--- F.3d ----, No. 14-4044, 2015 WL 5255088, at *5 (3d Cir.
Sept. 10, 2015) (quoting 20 U.S.C. § 1415(a)).8 The section
opens with § 1415(a), entitled “Establishment of procedures,”
which requires state and local educational agencies to
“establish and maintain procedures in accordance with this
section to ensure that children with disabilities and their
parents are guaranteed procedural safeguards with respect to
the provision of a free appropriate public education” by these
agencies. 20 U.S.C. § 1415(a). It proceeds in § 1415(b),
entitled “Types of procedures,” to list out and briefly
summarize “[t]he procedures required by this section,” 20
U.S.C. § 1415(b), (b)(2)-(8), in roughly the same order these
procedures are then more fully described in the subsections
that follow, 20 U.S.C. § 1415(c)-(f). Among the procedures
listed in § 1415(b), even before the 2004 reenactment, was
“an opportunity to present complaints 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,” 20 U.S.C. § 1415(b)(6)

7
These exceptions are not at issue in this case.
8
We describe in some detail here the structure of this
section because, as will become apparent, it provides
important context for our interpretation of the two subsections
at issue.

15
(1999) (amended 2004), corresponding to the fuller
explanation of the due process hearing procedures set forth in
§ 1415(f) (1999) (amended 2004).

Accordingly, along with the addition of the statute of
limitations to § 1415(f)(3)(C), the 2004 reenactment also
amended § 1415(b)(6) to read:

(b) Types of procedures

The procedures required by this section shall
include the following: . . .

(6) An opportunity for any party to
present a complaint—

(A) 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;
and

(B) which sets forth an alleged
violation that occurred not
more than 2 years before the
date the parent or public agency
knew or should have known
about the alleged action that
forms the basis of the
complaint, or, if the State has an
explicit time limitation for
presenting such a complaint

16
 under this subchapter, in such
time as the State law allows,
except that the exceptions to the
timeline described in subsection
(f)(3)(D) shall apply to the
timeline described in this
subparagraph.

20 U.S.C § 1415(b)(6) (emphasis added). With this
amendment, the complaint procedure described at
§ 1415(b)(6)(B) came to mirror the statute of limitations at
§ 1415(f)(3)(C) in almost all respects: they both describe a
two-year time limit that hinges on the reasonable discovery
date; they both provide that any state statute of limitations
will override this timeline; and they both incorporate the two
exceptions to the statute of limitations set forth in
§ 1415(f)(3)(D).9 Unlike § 1415(f)(3)(C), however,

9
While § 1415(b)(6)(B) describes “present[ing] a
complaint,” and § 1415(f)(3)(C) describes “request[ing] an
impartial due process hearing,” both sections address the
filing of the same due process complaint because there is no
dispute that presenting a complaint is merely the vehicle by
which a due process hearing is requested. See 20 U.S.C.
§ 1415(f)(1)(A) (noting that a hearing is held “[w]henever a
complaint has been received under subsection (b)(6)”); see
also United States Department of Education, Questions and
Answers on IDEA Part B Dispute Resolution Procedures,
OSEP Memo 13-08, 34 (2013) (explaining that “[t]he IDEA
Amendments of 2004 made significant changes to IDEA’s
due process procedures, and parties no longer have the right
to request a due process hearing directly” but instead “first
must file a due process complaint”).

17
§ 1415(b)(6)(B)’s two-year limitations period runs backward
instead of forward from the reasonable discovery date.

The differences in the language of these provisions and
the fact that they appear to move in opposite directions from
the reasonable discovery date, has given rise to confusion in
the wake of the 2004 reenactment, with district courts within
this Circuit interpreting them in a range of ways. Some have
construed them to limit redress to the two years preceding a
complaint. See, e.g., D.C. v. Mount Olive Twp. Bd. of Educ.,
No. 12-5592, 2014 WL 1293534, *21-22 (D.N.J. Mar. 31,
2014). Some have interpreted them to impose a filing
deadline but not to limit the remedy for timely-filed claims.
See, e.g., Cent. Sch. Dist. v. K.C. ex rel. S.C., No. 11-6869,
2013 WL 3367484, at *12 n.6 (E.D. Pa. July 3, 2013)
(collecting cases) (“We also agree with the conclusion
reached by several courts within this district, that the IDEA’s
statute of limitations does not apply to limit the permissible
period of compensatory educational awards.”). And at least
four, including the District Court here, have adopted the 2+2
analysis. See, e.g., G.L., 2013 WL 6858963, at *3-6.

The District contends there can be no confusion
because we have already addressed and resolved the question
of how these provisions interact with each other and how they
apply to claims dating back a number of years in Steven I.,
618 F.3d 411, and D.K., 696 F.3d 233. That resolution,
according to the District, is that we “definitively stated that
claims are barred where they are alleged to occur two years
prior to the date of filing.” Appellant’s Br. 8 (citing Steven I.,
618 F.3d at 417, and D.K., 696 F.3d at 254). This argument
reflects a fundamental misunderstanding of our prior cases.
Those cases held that § 1415(f)(3)(C) bars claims that are not
filed within two years after the parents “knew or should have

18
known” about the injury—a proposition that is now well-
established and is not disputed by either party to this case.
However, neither Steven I. nor D.K. says anything about
claims that are filed within two years of that “knew or should
have known” date but happen to relate to an injury that took
place more than two years before the complaint was filed.

In Steven I., we considered a case brought by parents
who had knowingly sat on a claim for years, see Mark v.
Cent. Bucks Sch. Dist., No. 08-571, 2009 WL 415767, at *4
(E.D. Pa. Feb. 18, 2009), rev’d and remanded sub nom.
Steven I., 618 F.3d at 417, and held that § 1415(f)(3)(C)’s
two-year statute of limitations applies retroactively to claims
that predated the 2004 amendments and “bars any causes of
action that accrued prior to” two years before the filing of the
due process complaint, even if the violation continues into the
two-year window before the complaint was filed. 618 F.3d at
417 (emphasis added). Likewise, in D.K., where we held that
the statutory tolling provisions of § 1415(f)(3)(D) precluded
application of common law tolling doctrines and were
therefore the exclusive exceptions to the IDEA’s two-year
statute of limitations, we reaffirmed our rejection of the
“continuing violation” doctrine and held that the claims in
that case, which we observed had been discovered years
earlier, were, as the parents conceded, “limited to the two-
year time period” before the filing of the complaint under
§ 1415(f)(3)(C). D.K, 696 F.3d at 248, 254. Indeed, contrary
to the District’s reading, we expressly stated in D.K. that
parents must request a due process hearing, not within two
years of the occurrence of the injury, but “within two years of
‘the date the parent . . . knew or should have known about the
alleged action that forms the basis of the complaint.’” Id. at

19
244 (alterations in original) (quoting 20 U.S.C. §
1415(f)(3)(C)).

Although we observed in passing in D.K. that this two-
year statute of limitations in § 1415(f)(3)(C) was “the same”
two-year period that parents had to file an administrative
complaint under § 1415(b)(6)(B), id., we did not there and
have not since had occasion to reconcile the differences
between the language of § 1415(b)(6)(B) and § 1415(f)(3)(C)
or to consider how these provisions affect the remedy
available for claims spanning multiple years that were filed
within two years of the date the parents first “knew or should
have known” about the basis for those claims. Nor has any
other Court of Appeals addressed the interplay between
§ 1415(f)(3)(C) and § 1415(b)(6)(B). We resolve these issues
today.

IV. Analysis

The starting point of all statutory construction is the
text of the statute, but where that text is ambiguous, “we
‘must do our best, bearing in mind the fundamental canon of
statutory construction that the words of a statute must be read
in their context and with a view to their place in the overall
statutory scheme.’” King v. Burwell, 135 S. Ct. 2480, 2492
(2015) (quoting Util. Air Regulatory Grp. v. E.P.A., 134 S.
Ct. 2427, 2441 (2014)). Thus, we consider below (1) the
plain language arguments of the parties and amici; (2) the
broader context of the statute; (3) the position of the DOE;
and (4) the legislative history of the 2004 amendments, and
we conclude that applying the plain language of the text
would force us to give § 1415(b)(6)(B) a meaning that “turns
out to be untenable in light of the statute as a whole.’” King,
135 S. Ct. at 2495 (internal quotations marks and alteration

20
omitted). Instead, our analysis confirms that, as we presaged
in D.K., § 1415(b)(6)(B) and § 1415(f)(3)(C) do indeed
reflect “the same” statute of limitations, 696 F.3d at 244,
which imposes a deadline on the filing of claims once they
are reasonably discovered but does not limit the redress
available for timely-filed claims.

A. The Plain Language of § 1415(b)(6)(B)
Is Ambiguous

In interpreting § 1415(b)(6)(B), we confront a
statutory provision that by its plain terms does not impose any
obligation on parents, but rather identifies the “opportunity
. . . to present a complaint” among a list of procedural
safeguards in the prefatory subsection of § 1415, which are
then explicated in the subsections that follow. 20 U.S.C.
§ 1415(b)(6)(B). Meanwhile, the amendment to §
1415(f)(3)(C) by its plain terms describes the “[t]imeline for
requesting [a] hearing” and mandates that “[a] parent . . . shall
request an impartial due process hearing within 2 years” of
the reasonable discovery date. The amendment to
§ 1415(b)(6)(B) appears to conform the description of the
complaint that previously appeared in § 1415(b)(6), i.e., the
mechanism to “request an impartial due process hearing,” to
§ 1415(f)(3)(C) in every respect—including the exceptions—
but one: the timeframe of before, rather than after, the
reasonable discovery date. Id. § 1415(b)(6)(B), (f)(3)(C). No
explanation is given for this singular difference. The clearest
way to demonstrate the ambiguity it has created in the statute,
however, is through the diametrically opposed interpretations
proposed by the parties themselves.

21
 i. The School District’s Proposed
Remedy Cap

We begin with the District, which contends, first, that
§ 1415(b)(6)(B) describes the same two-year statute of
limitations as § 1415(f)(3)(C) and, second, that this statute of
limitations limits the scope of a child’s remedy to those
injuries that actually occurred in the two years before the
filing of a complaint, no matter when the parent reasonably
discovered the injury. The obvious problem with the
District’s first contention is that, as the District Court noted in
rejecting it, the language and plain meaning of the
subsections are, in fact, quite different: Section 1415(f)(3)(C)
provides that parents who have been unable to secure relief
for alleged violations through informal channels and are
resorting to requesting a due process hearing must do so
“within 2 years of the date the parent or agency knew or
should have known about the alleged action that forms the
basis of the complaint.” 20 U.S.C. § 1415(f)(3)(C). Section
1415(b)(6)(B), on the other hand, describes that very same
complaint that parents shall have the opportunity to present as
“set[ting] forth an alleged violation that occurred not more
than 2 years before the date the parent or public agency knew
or should have known about the alleged action that forms the
basis of the complaint.” Id. § 1415(b)(6)(B).

The District does not attempt to reconcile the language
of these provisions; it simply asks us ipse dixit to declare
them identical and further asks that we read this single statute
of limitations to permit relief only for those injuries that
occurred no more than two years before the filing of the
complaint. The problem is that this is not what the statute
says and the District’s logic proves an unworkable syllogism:
Section 1415(b)(6)(B) makes reference to (a) injuries that

22
occurred no more than two years before (b) the reasonable
discovery date; § 1415(f)(3)(C) provides that (b) this
reasonable discovery date must be no more than two years
before (c) the filing of the complaint; but neither subsection
references (a) injuries that occurred no more than two years
before (c) the filing of the complaint.

The District’s reading not only lacks textual support
but affirmatively contravenes the language and purpose of
Congress in using a reasonable discovery date. When
fashioning a statute of limitations, a legislature may choose as
the date from which the limitations period begins to run either
the date the injury actually occurred, an approach known as
the “occurrence rule,” or the date the aggrieved party knew or
should have known of the injury, that is, the “discovery rule.”
See Knopick v. Connelly, 639 F.3d 600, 607 (3d Cir. 2011)
(discussing these rules in the context of Pennsylvania tort
law); see also Oshiver v. Levin, Fishbein, Sedran & Berman,
38 F.3d 1380, 1385 (3d Cir. 1994) (explaining that the
discovery rule provides that the date the statute of limitations
begins to run “is not the date on which the wrong that injures
the plaintiff occurs, but the date on which the plaintiff
discovers that he or she has been injured”). Under the
discovery rule, a plaintiff’s time to bring suit is not in any
way shortened by his or her reasonable ignorance: “the
statutory limitations period begins to run and the plaintiff is
afforded the full limitations period, starting from the point of
[discovery], in which to file his or her claim.” Oshiver, 38
F.3d at 1386.10

10
We have acknowledged there are different views as
to whether the discovery rule is properly characterized as
delaying the date of claim accrual or as tolling the limitations

23
 The discovery rule controls here. Generally, “absen[t]
. . . a contrary directive from Congress, we apply the federal
discovery rule” as a default. Disabled in Action of Pa. v.
SEPTA, 539 F.3d 199, 209 (3d Cir. 2008) (internal quotation
marks omitted). Here, of course, Congress left nothing to
doubt, unambiguously providing in the IDEA that the date
from which any limitations period begins to run is the date the
parents “knew or should have known” of the basis for the
claim. See 20 U.S.C. §§ 1415(b)(6)(B), (f)(3)(C). The
District thus does not argue that the occurrence rule applies,
nor could it, because to do so would be contrary to the
IDEA’s explicit, twice-repeated discovery rule. Instead, it
attempts an end run around the rule by proposing a two-year
cap on redress from the date of the complaint, with the same
effect: the requirement that a claim be filed within two years
of the date the violation actually occurred (not the date it was
reasonably discovered) for that claim to be cognizable.

Take a practical example. Assume a school district
unreasonably fails to identify a child’s disability from the
beginning of first grade through the end of third grade.
Assume also that at the end of third grade, the parents first
reasonably discover the injury, and the school district
immediately begins providing the student with the

period for a claim that accrued upon occurrence of the injury,
and recently have held that the federal discovery rule is
properly viewed as the latter. See William A. Graham Co. v.
Haughey, 646 F.3d 138, 150 (3d Cir. 2011). This distinction
is immaterial to our resolution here, for “[t]he distinction
between the two concepts . . . makes no difference for
purposes of deciding whether a claim survives a statute-of-
limitations defense.” Id. at 148.

24
educational supports he or she needs going forward but
declines to provide that child with compensatory education to
make up for the three years the child was deprived a FAPE.
Under the theory espoused by the District, even if the parents
filed a due process complaint the very same day they
reasonably discovered the injury, the child’s compensatory
education for the three years of this violation would be
capped at two years (the second and third grade years that
occurred within the two years before the filing of the
complaint). Moreover, those two years of compensatory
education would diminish daily for each day after the
reasonable discovery date that the parents or their counsel
conducted due diligence, explored settlement options, or
prepared the complaint before filing. Nothing in the plain
language of the statute suggests such an absurd result. Cf.
Reiter v. Cooper, 507 U.S. 258, 267 (1993) (“While it is
theoretically possible for a statute to create a cause of action
that accrues at one time for the purpose of calculating when
the statute of limitations begins to run, but at another time for
the purpose of bringing suit, we will not infer such an odd
result in the absence of any such indication in the statute.”).11

11
Perhaps for this reason, at oral argument, the District
took another tack, stating that if a parent’s complaint was
filed “very close in time” to the reasonable discovery date—
that is, if a parent only waited a week or two to file a
complaint, versus the two years he or she is entitled under the
statute—a child would not lose any remedy at all. Oral Arg.
at 13:25, available at http://www.ca3.uscourts.gov/oral-
argument-recordings. This supposed two-week grace period,
like the District’s position generally, finds no support in the
statutory text.

25
 Putting aside the oddity of a statute of limitations
functioning in this manner and its inconsistency with the
broad remedial purposes of the IDEA (discussed more fully
below), the text is clear that Congress eschewed the
occurrence rule in favor of the discovery rule by hinging both
§ 1415(f)(3)(C) and § 1415(b)(6)(B) on the date the parents
“knew or should have known” of the injury. See, e.g., Merck
& Co. v. Reynolds, 559 U.S. 633, 651 (2010) (holding that
when a “statute says that the plaintiff’s claim accrues only
after the ‘discovery’ of . . . facts,” a limitations period does
not “begin before ‘discovery’ can take place”); Beauty Time,
Inc. v. VU Skin Sys., Inc., 118 F.3d 140, 144 (3d Cir. 1997)
(“It is well-established that Pennsylvania law recognizes an
exception to the statute of limitations which delays the
running of the statute until the plaintiff knew, or through the
exercise of reasonable diligence should have known, of the
injury and its cause.” (internal quotation marks omitted)).
Thus, the limitations period of § 1415(f)(3)(C) “begins to run
once the plaintiff did discover or a reasonably diligent
plaintiff would have discovered the facts constituting the
violation—whichever comes first.” Merck & Co., 559 U.S. at
653 (internal quotation marks and alteration omitted).12

12
The discovery rule, of course, has a practical and
“fundamental difference” with general equitable tolling
doctrines, Oshiver, 38 F.3d at 1390, the concept we
considered with regards to the IDEA in D.K., 696 F.3d at
245-47. Specifically, “[t]he purpose of the discovery rule is
to determine . . . when the statute of limitations [effectively]
begins to run.” Oshiver, 38 F.3d at 1390. Our general
equitable tolling doctrine, on the other hand, “steps in to toll,
or stop, the running of the statute of limitations in light of

26
Accordingly, § 1415(b)(6)(B), which runs backward from the
reasonable discovery date (not the filing date), appears on its
face to mean something different and, whatever that is, it is
not, as the District would have it, that claims not known or
reasonably known expire of their own accord if the injury
occurred more than two years before the filing date.

ii. G.L.’s 2+2 and Pleading
Requirement Theories

In a diametrically different but no less problematic
reading, G.L. argues that the text of § 1415(b)(6)(B) supports
two interpretations, each of which entitles him to relief. First,
he argues that the District Court’s 2+2 approach was
correct—that § 1415(b)(6)(B) provides a two-year window
before the reasonable discovery date within which he may
claim IDEA violations occurred, thus effectively serving as a
four-year remedy cap. Second, he argues, along with Amici
Appellees,13 that this subsection is merely the description of a

established equitable considerations,” despite a plaintiff’s
discovery of his or her injury. Id.
13
G.L. focused his argument almost exclusively on the
2+2 rule, candidly explaining at oral argument that, because
he only alleged two years of violations, the Court’s adoption
of that rule would give him complete relief. He did, however,
also support the broader position urged by Amici Appellees,
i.e., that properly construed, neither § 1415(f)(3)(C) nor
§ 1415(b)(6)(B) imposed a cap on remedies. Even if G.L.
had not espoused this interpretation of the statute, we are
bound, “on the basis of our independent judgment, [to]
exercis[e] a plenary review of the purely legal question[]
presented” to us by the parties, pursuant to “our duty to

27
prima facie cause of action, with no limit on remedy at all.
That is, § 1415(b)(6)(B) requires that a due process complaint
allege an injury under the IDEA that occurred within two
years of a parent’s reasonable discovery, but imposes no
limitation on the remedy if these elements are pleaded and the
complaint is timely filed.

Both of these interpretations, however, would render
the text illogical. For like § 1415(f)(3)(C), § 1415(b)(6)(B)
provides in the very same sentence that if a “State has an
explicit time limitation for presenting such a complaint,” the
complaint shall instead be filed “in such time as the State law
allows,” rather than the time described in § 1415(b)(6)(B),
and further provides that if the state does enact its own statute
of limitations, the federal exceptions still apply to the state’s
statute of limitations. 20 U.S.C. § 1415(b)(6)(B). Yet, it
would be nonsensical for Congress to specify that a federal
statute’s remedy cap or the elements of a prima facie case be
replaced by a state’s statute of limitations, and it would be
equally illogical to have two bases for equitable tolling—a
doctrine used to determine whether a statute of limitations has
expired—apply to a provision that is not a statute of
limitations in the first place. We decline to interpret the

interpret statutory provisions” and accord them the meaning
that Congress intended. Vornado, Inc. v. Trs. of the Retail
Store Emps.’ Union Local 1262, 829 F.2d 416, 421 (3d Cir.
1987); see also Loretangeli v. Critelli, 853 F.2d 186, 189 n.5
(3d Cir. 1988) (“This court may consider a pure question of
law even if not raised below . . . where the issue’s resolution
is of public importance.”).

28
statute in this bizarre fashion. See, e.g., Dep’t of Revenue of
Or. v. ACF Indus., Inc., 510 U.S. 332, 343 (1994) (rejecting
statutory interpretation that would render a statute “illogical”
and contrary to congressional intent).

In sum, the supposedly straightforward textual
arguments of the parties more resemble the twists and bends
of a contortion artist, presenting us with the option, on the one
hand, of ignoring swaths of the statutory text or, on the other,
accepting a reading that is absurd on its face. The parties’
positions are illustrative, however, of the difficulty of
applying a plain language reading to this text. We conclude,
as we observed in addressing the pre-2004 version of the
IDEA, “the language of section 1415(b)(6) is at best
ambiguous.” Lawrence Twp. Bd. of Educ. v. New Jersey, 417
F.3d 368, 371 (3d Cir. 2005).14 We therefore must resort to
other tools of statutory construction.

B. Statutory Interpretation of
§ 1415(b)(6)(B)

The Supreme Court has instructed that “[t]he
meaning—or ambiguity—of certain words or phrases may
only become evident when placed in context.” F.D.A. v.

14
In Lawrence, we addressed whether a school district
had standing to bring a private right of action under §
1415(b)(6) and concluded the provision was intended to
provide a private right of action only to disabled children and
their parents. 417 F.3d at 371-72. While the question was
wholly unrelated and we were addressing a pre-amendment
version of the IDEA, our observation about the opacity of §
1415(b)(6) pertains even more so to the amended version.

29
Brown & Williamson Tobacco Corp., 529 U.S. 120, 132
(2000). That is, “[a] provision that may seem ambiguous in
isolation is often clarified by the remainder of the statutory
scheme . . . because only one of the permissible meanings
produces a substantive effect that is compatible with the rest
of the law.” United Sav. Ass’n of Texas v. Timbers of Inwood
Forest Assocs., Ltd., 484 U.S. 365, 371 (1988); accord
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc.,
484 U.S. 49, 59-60 (1987) (analyzing statutory language in a
way that is in accord with the “language and structure” of the
section of law at issue). Such is the case here, where
examining § 1415(b)(6)(B) in the context of § 1415 and the
IDEA as a whole points unequivocally in one direction: that
§ 1415(b)(6)(B) indeed restates § 1415(f)(3)(C)’s two-year
statute of limitations and that this limitations period functions
in a traditional way, that is, as a filing deadline that runs from
the date of reasonable discovery and not as a cap on a child’s
remedy for timely-filed claims that happen to date back more
than two years before the complaint is filed.

i. The Structure, Language, and
Context of the Act

We begin with the overarching structure of § 1415.
See Gwaltney, 484 U.S. at 59-60; Evankavitch v. Green Tree
Servicing, LLC, 793 F.3d 355, 363 (3d Cir. 2015) (examining
the “structure and . . . parallels” of a statute to determine the
meaning of its terms). As previously noted, after opening
with a preamble that reiterates that a state must “establish and
maintain procedures . . . to ensure that children with
disabilities and their parents are guaranteed procedural
safeguards,” 20 U.S.C. § 1415(a), the section next proceeds to
list and briefly describe the “[t]ypes of procedures” mandated
by the IDEA, id. § 1415(b). That listing, in § 1415(b), serves

30
in effect as a table of contents for the expanded descriptions
of these same procedures that then appear in roughly the same
order in § 1415(c)-(f). Thus, for example, § 1415(b)(3)
requires written prior notice of changes to a child’s
educational program, the details of which are described in
§ 1415(c)(1); § 1415(b)(4) ensures notice is available in a
parent’s native language, as described in § 1415(d)(2);
§ 1415(b)(5) provides “[a]n opportunity for mediation,” as
described in § 1415(e); and, as relevant here, § 1415(b)(6)
provides an “[a]n opportunity for any party to present a
complaint,” which is more fully described in § 1415(f). Id.
§ 1415(b)-(f). This structure makes clear that § 1415(b) was
intended to preview and convey the same essential meaning
as § 1415(f).

Given that § 1415(b), in context, appears to be nothing
more than a summary listing of the procedural safeguards
more fully described in later subsections, we cannot conceive
that Congress intended to bury within § 1415(b)(6) a sea
change in the IDEA. That, however, would be the effect of
cutting off at twenty four months in virtually all cases the
courts’ power to award compensatory education, and
“le[aving] parents without an adequate remedy when a school
district unreasonably fail[s] to identify a child with
disabilities.” Forest Grove Sch. Dist. v. T.A., 557 U.S. 230,
245 (2009) (noting “Congress’ acknowledgment of the
paramount importance of properly identifying each child
eligible for services”). This proposition appears particularly
fanciful considering that Congress failed to even hint at such
an intention either in § 1415(f), the full version of the due
process hearing procedure of which § 1415(b)(6) is merely a
précis, or in § 1415(i), which was reenacted in 2004 without
any alteration to the “broad discretion” it grants federal courts

31
to remedy violations of the IDEA, Forest Grove, 557 U.S. at
238. As the Supreme Court “ha[s] repeatedly said[,] . . .
Congress ‘does not alter the fundamental details of a
regulatory scheme in vague terms or ancillary provisions—it
does not, one might say, hide elephants in mouseholes.’”
E.P.A. v. EME Homer City Generation, L.P., 134 S. Ct. 1584,
1612 (2014) (Scalia, J., dissenting) (quoting Whitman v. Am.
Trucking Ass’ns, 531 U.S. 457, 468 (2001)).

Moreover, it is “[a] standard principle of statutory
construction . . . that identical words and phrases within the
same statute should normally be given the same meaning.”
Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224,
232 (2007). Here, the words and phrases describing the
IDEA’s statute of limitations and its exceptions indicate that
§ 1415(b) was intended to have the same meaning as the other
references to a limitations period in § 1415, and, like them, to
function as a filing deadline and not a remedy cap.
Specifically, in three separate subsections of § 1415, the
statute provides a federal time limit, but—using identical
language—provides as an alternative: “or, if the State has an
explicit time limitation . . . , in such time as the State law
allows.” 20 U.S.C. §§ 1415(b)(6), (f)(3)(C), (i)(2)(B). Given
that state limitations periods generally function as filing
deadlines on claims that are known or should have been
known, not remedy caps on claims not yet reasonably
knowable, the only way those words can be read sensibly is if
they provide an alternative to a federal filing deadline, i.e., a
traditional statute of limitations.

“Textual cross-reference confirms this conclusion,”
Brown v. Gardner, 513 U.S. 115, 118 (1994), for
§ 1415(b)(6)(B) not only mirrors § 1415(f)(3)(C)’s state
statute of limitations provision but also its two equitable

32
tolling exceptions, and does so simply by cross-referencing
the “the exceptions to the timeline described in
[§ 1415(f)(3)(D)],” 20 U.S.C. § 1415(b)(6), (f)(3)(C). This
shorthand reference to these important tolling provisions,
which are then set forth in full in § 1415(f), fortifies our
conclusion that § 1415(b)(6) was merely intended as an
abstract of § 1415(f), that it reflects the same limitations
period as § 1415(f)(3)(C), and that this limitations period,
pursuant to the “cooperative federalism” inherent in the
IDEA, Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 52
(2005) (quoting Little Rock Sch. Dist. v. Mauney, 183 F.3d
816, 830 (8th Cir. 1999)), defers to state limitations periods
when appropriate and otherwise functions as a traditional
statute of limitations—not a remedy cap.

Indeed, while it would make no sense for a state filing
deadline to displace a federal remedy cap or elements of a
prima facie case, it makes perfect sense that Congress,
according due weight to principles of federalism, would allow
a state filing deadline to displace a federal one. Likewise, it
would be odd indeed for § 1415(b)(6)(B), if it actually
described a remedy cap or a prima facie case, to apply
equitable tolling provisions from § 1415(f)(3)(D), but quite
logical if § 1415(b)(6)(B) merely restates the statute of
limitations to which those equitable exceptions apply. That
is, when we “look to the [section’s] surrounding words and
provisions and their context,” Tavarez v. Klingensmith, 372
F.3d 188, 190 (3d Cir. 2004), and apply “the cardinal rule that
a statute is to be read as a whole,” King v. St. Vincent’s Hosp.,
502 U.S. 215, 221 (1991), it is clear that § 1415(b)(6)(B),

33
though poorly penned, was intended merely as a synopsis of
§ 1415(f)(3)(D)’s statute of limitations.15

ii. Forest Grove and the Canon
against Sub Silentio Repeal

Even if the structure, language, and context of the
IDEA left room for doubt, we would be loath to interpret
§ 1415(b)(6)(B) as constricting the remedies available under
the IDEA in view of the statute’s broad remedial purpose, see
A.W., 486 F.3d at 803, codified, among other places, in
§ 1415(i)(2)(C)(iii). That subsection provides that a court
“shall grant such relief as the court determines is
appropriate,” 20 U.S.C. § 1415(i)(2)(C)(iii), and, in a long
line of cases, the Supreme Court and this Circuit have held
that it should be interpreted expansively to provide a
comprehensive remedy for children deprived of a FAPE. See,
e.g., Forest Grove, 557 U.S. at 237-38 (“In determining the

15
Given the structure of this statute, which includes at
the outset a digest of the multiple procedural safeguards that
are each expounded upon in later subsections, we also discern
no tension between our interpretation of § 1415(b)(6)(B) and
the canon against superfluity. Moreover, that canon “assists
only where a competing interpretation gives effect ‘to every
clause and word of a statute.’” Microsoft Corp. v. i4i Ltd.
P’ship, 131 S. Ct. 2238, 2248 (2011) (quoting Duncan v.
Walker, 533 U.S. 167, 174 (2001)). We can identify no
competing interpretation that could give logical meaning to
all the words of § 1415(b)(6)(B), and thus conclude this is a
quintessential case where “rigorous application of the canon
does not seem a particularly useful guide to a fair
construction of the statute.” King, 135 S. Ct. at 2492.

34
scope of the relief authorized, . . . the ordinary meaning of
these words confers broad discretion on the court and . . .
absent any indication to the contrary, what relief is
appropriate must be determined in light of the Act’s broad
purpose of providing children with disabilities a FAPE . . . .”
(internal quotation marks omitted)); Bucks Cnty. Dep’t of
Mental Health, 379 F.3d at 67 (“We . . . have broadly
interpreted the term ‘appropriate’” and “discerned nothing in
the text or history suggesting that relief under IDEA is limited
in any way. . . .” (emphasis added) (internal quotation marks
and alterations omitted)); see also D.E., 765 F.3d at 273
(examining the IDEA’s purpose and rejecting a statutory
interpretation which “would ‘create an enormous loophole’ in
a school district’s obligations under the IDEA, while
‘substantially weaken[ing] the IDEA’s protections’ for
students” (alteration in original) (quoting D.F., 694 F.3d at
497)).

Given the broad remedial scheme of the IDEA, neither
in the period before the 2004 amendments—when we
borrowed a state’s most analogous statutory cause of action to
determine how long after an adverse decision by a hearing
officer a parent could wait before filing an IDEA complaint in
state or federal court16—nor in the period since, have we
imposed a cap on the remedy a child could seek for timely-
filed claims. Instead, we have consistently repeated that a
16
See Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172
F.3d 238, 250-51 (3d Cir. 1999); see also Blunt v. Lower
Merion Sch. Dist., 767 F.3d 247, 270 (3d Cir. 2014)
(observing that “[p]rior to the [2004] amendment of the IDEA
. . . , the time for bringing suit . . . after receiving an adverse
administrative determination had been two years”).

35
child’s right to compensatory education “accrue[s] from the
point that the school district knows or should know” of the
injury to the child, and the child “is entitled to compensatory
education for a period equal to the period of deprivation, but
excluding the time reasonably required for the school district
to rectify the problem.” M.C. ex rel. J.C. v. Cent. Reg’l Sch.
Dist., 81 F.3d 389, 396-97 (3d Cir. 1996); see also D.F., 694
F.3d at 499 (repeating standard); Mary T. v. Sch. Dist. of
Phila., 575 F.3d 235, 249 (3d Cir. 2009) (same); Lauren W.
ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 272 (3d Cir.
2007) (same). That standard is grounded in our
understanding, then and now, that “a child’s entitlement to
special education should not depend upon the vigilance of the
parents (who may not be sufficiently sophisticated to
comprehend the problem) nor be abridged because the
district’s behavior did not rise to the level of slothfulness or
bad faith.” M.C., 81 F.3d at 397.

Against the backdrop of these cases and the broad
interpretation the Supreme Court has given to a court’s
remedial power under § 1415(i)(2)(C)(iii), it bears particular
significance that Congress reenacted that subsection without
change as part of the 2004 reenactment. Thus, interpreting
the IDEA’s statute of limitations as a remedy cap would also
disregard the well-settled canon of statutory interpretation
that “Congress is presumed to be aware of an administrative
or judicial interpretation of a statute and to adopt that
interpretation when it re-enacts a statute without change.”
Lorillard v. Pons, 434 U.S. 575, 580 (1978); see also Tex.
Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities
Project, Inc., 135 S. Ct. 2507, 2520 (2015).

On this point, we find clear guidance in the Supreme
Court’s decision in Forest Grove, which examined the 1997

36
amendments to the IDEA. Those amendments added, among
other things, § 1412(a)(10)(C), which provided that if the
parents of a special-needs child “who previously received
special education and related services under the authority of a
public agency” enrolled their child in private school without
the consent or referral of that public agency, a school district
could still be ordered to provide tuition reimbursement if a
fact-finder determined that the school district failed to
provide a student with a FAPE in the first instance. 20 U.S.C.
§ 1412(a)(10)(C)(ii). In an attempt to limit liability, a school
district argued that because the IDEA “only discusses
reimbursement for children who have previously received
special-education services through the public school, [the]
IDEA only authorizes reimbursement in that circumstance.”
557 U.S. at 241.

The Supreme Court disagreed. It observed that the
1997 amendments preserved the IDEA’s comprehensive
remedial goal of providing every child with a FAPE and did
not alter 20 U.S.C. § 1415(i)(2)(C)(iii). See id. at 243 n.10
(stating that the holdings in School Committee of Burlington
v. Department of Education of Massachusetts, 471 U.S. 359
(1985), and Florence County School District Four v. Carter,
510 U.S. 7 (1993), “rested . . . on the breadth of the authority
conferred by § 1415(i)(2)(C)(iii), the interest in providing
relief consistent with the Act’s purpose, and the injustice that
a contrary reading would produce—considerations that were
not altered by the 1997 Amendments” (internal citations
omitted)). The Court thus rejected the notion that Congress
repealed sub silentio those previous Supreme Court holdings
describing the “broad discretion” afforded by
§ 1415(i)(2)(C)(iii). Id. at 243. Any other reading, the Court
reasoned, would be contrary to the IDEA’s broad remedial

37
purpose and a “child’s right to a free appropriate education . .
. would be less than complete.” Id. at 244-45 (alteration in
original) (quoting Burlington, 471 U.S. at 370).

So too here, for the 2004 reauthorization reaffirmed
the IDEA’s first purpose as “ensur[ing] that all children with
disabilities have available to them a free appropriate public
education . . . designed to meet their unique needs,” 20 U.S.C.
§ 1400(d)(1)(A), and once more left unchanged
§ 1415(i)(2)(C)(iii), which grants courts the broad discretion
to fashion remedies that accomplish that objective.
Congress’s purpose in that mandate is clear: In order to
effectuate the law’s broad remedial goals, a court finding a
deprivation of a free appropriate public education should
return a child to the educational path he or she would have
traveled had the educational agency provided that child with
an appropriate education in the first place. See D.F., 694 F.3d
at 498-99; Reid, 401 F.3d at 518; see also Ridgewood, 172
F.3d at 251 (remanding to district court to consider eight
years of claims for compensatory education); Lester H. by
Octavia P. v. Gilhool, 916 F.2d 865, 873-74 (3d Cir. 1990)
(affirming grant of thirty months of compensatory education).

Consistent with that purpose and the traditional way in
which a discovery-based statute of limitations functions,
courts since the passage of the 2004 reenactment have
routinely affirmed awards of compensatory education that
remedy deprivations of greater than two years, or at
minimum, remanded for an administrative agency to consider
those claims. See Ferren C. v. Sch. Dist. of Phila., 612 F.3d
712, 715 (3d Cir. 2010) (affirming award of three years of
compensatory education); M.S. ex rel. Simchick v. Fairfax
Cnty. Sch. Bd., 553 F.3d 315, 324 (4th Cir. 2009) (holding
that the broad discretion afforded under the IDEA allowed a

38
district court to consider reimbursement for three years of a
child’s allegedly inappropriate placement); Draper v. Atl.
Indep. Sch. Sys., 518 F.3d 1275, 1286-90 (11th Cir. 2008)
(rejecting a school district’s argument that a child’s long-
undiscovered injury was time barred and upholding an award
of approximately five years of compensatory education);
Reid, 401 F.3d at 526 (remanding to consider claims over a
four and half year period of time); K.H. v N.Y.C. Dep’t of
Educ., No. 12-1680, 2014 WL 3866430, at *20 (E.D.N.Y.
Aug. 6, 2014) (finding that “the IDEA’s clear statutory
language mandates” that a remedy is not limited by the statute
of limitations when a claim is timely filed); Jefferson Cnty.
Bd. of Educ. v. Lolita S., 977 F. Supp. 2d 1091, 1123 (N.D.
Ala. 2013) (holding that a right to redress for a complaint
filed in October 2011 would be limited to the most recent two
years “unless . . . the statute did not begin to run on the claim
because the parent did not know/should not have known
about that action until a time within two years of the due
process request”). But see Indep. Sch. Dist. No. 413,
Marshall v. H.M.J., No. 14-2114, 2015 WL 4744505, at *11
(D. Minn. Aug. 11, 2015) (“No party may recover for a
violation occurring outside the two-year statute of
limitations.”).

Of course, the IDEA’s statute of limitations does still
practically curtail remedy, for it “specif[ies] when a
[complaint] is timely filed” and thus “has the consequence of
limiting liability because filing a timely [complaint] is a
prerequisite to having an actionable claim.” Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 120 (2002). In
context, however, that means simply that once a violation is
reasonably discovered by the parent, any claim for that
violation, however far back it dates, must be filed within two

39
years of the “knew or should have known” date. If it is not,
all but the most recent two years before the filing of the
complaint will be time-barred; but if it is timely filed, then,
upon a finding of liability, the entire period of the violation
should be remedied. In other words, § 1415(f)(3)(C), like its
synopsis in § 1415(b)(6)(B), reflects a traditional statute of
limitations.

iii. The Department of Education’s
Regulation and Interpretation

The DOE, the federal agency charged with
promulgating regulations for the IDEA, see 20 U.S.C. § 1406,
agrees that § 1415(b)(6)(B) and § 1415(f)(3)(C) state the
same limitations period.

In its regulations following the 2004 reenactment, the
DOE simply reproduced both subsections verbatim.
Compare 20 U.S.C. § 1415(b)(6)(B), and 1415(f)(3)(C), with
34 C.F.R. §§ 300.507(a)(2), and 300.511(e). In its Analysis
of Comments and Changes to those regulations, however, the
DOE reported that commenters were confused and sought
guidance, “because the statute of limitations is mentioned
twice and implies that the timeline for filing a complaint and
filing a request for a due process hearing are different.”
Assistance to States for the Education of Children with
Disabilities & Preschool Grants for Children with
Disabilities, 71 Fed. Reg. 46,540, 46,706 (Aug. 14, 2006). It
responded that “[t]he statute of limitations in section
[1415(b)(6)(B)] of the Act is the same as the statute of
limitations in section [1415(f)(3)(C)] of the Act.” Id.

In this appeal, at our request, the DOE also submitted
an amicus letter brief in which it reiterated its position that the

40
subsections are, in fact, referencing a single statute of
limitations.17

We afford the DOE’s interpretation of its regulation
and its position before us here “‘respect’ . . . to the extent it
has the ‘power to persuade,’” Gonzales v. Oregon, 546 U.S.
243, 256 (2006) (quoting Skidmore v. Swift & Co., 323 U.S.
134, 140 (1944)); see id. at 256-57 (holding that an agency’s
interpretation of regulations that merely parrot the statute are
accorded Skidmore deference, rather than the higher
deference generally accorded to interpretive guidance under
Auer v. Robbins, 519 U.S. 452 (1997)). Here, we find the
DOE’s position persuasive because it accords with the
language, structure and purpose of the statute, and it is yet
one more voice in a harmonious chorus that § 1415(b)(6)(B)
was intended to reiterate § 1415(f)(3)(C)’s two-year statute of
limitations.

17
The IDEA also tasks the DOE with promulgating a
model notice of procedural safeguards. 20 U.S.C. § 1417(e).
In that model notice, it again repeated the language of
§ 1415(b)(6), but cautioned states that if they “established a
specific timeframe for requesting a hearing under the IDEA
that is different than two years (either shorter or longer),
revise the above statement to reflect that timeframe.” United
States Department of Education, Part B Procedural
Safeguards Notice, 17 (2009),
http://www2.ed.gov/policy/speced/guid/idea/modelform-
safeguards.doc. Again, such a caution to revise the
limitations notice shorter or longer based on a state’s statute
of limitations only makes sense if § 1415(b)(6)(B) is, in fact,
a statute of limitations.

41
 To the extent there remains any doubt about this
conclusion, it is put to rest by the legislative history, to which
we next turn.

iv. The Legislative History of the
2004 IDEA Amendments

“Supreme Court cases declaring that clear language
cannot be overcome by contrary legislative history are
legion.” First Merchs. Acceptance Corp. v. J.C. Bradford &
Co., 198 F.3d 394, 402 (3d Cir. 1999) (collecting cases).
That said, legislative history can play a confirmatory role in
resolving ambiguity when statutory language and structure
support a given interpretation. See, e.g., Gen. Dynamics Land
Sys. v. Cline, 540 U.S. 581, 586-91 (2004); Catwell v. Att’y
Gen., 623 F.3d 199, 208 (3d Cir. 2010). This is such a case.

A legislature designing a statute of limitations
confronts certain choices. As we have discussed, it can set
the date from which the limitations period begins to run by
using the occurrence rule or the discovery rule. See supra at
23-26. It also can set the expiration date either by counting
forward from that occurrence or discovery date to the filing of
a complaint or by counting backward from the date a
complaint is filed to the occurrence or discovery date.

When the House of Representatives proposed the
amendment that was eventually incorporated into
§ 1415(b)(6), it chose to use the occurrence rule and to count
backward, providing that parents would have:

(6) an opportunity to present complaints–

42
 (A) 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; and

(B) which set forth a violation that occurred not
more than one year before the complaint is
filed;

H.R. Rep. 108-77, at 254 (2003). The House committee’s
report unambiguously described this language as a one-year
statute of limitations. Id. at 115-16 (“Statute of limitations[:]
The Act currently has no statute of limitations and leaves
local educational agencies open to litigation for the entire
length of time a child is in school, whether or not the child
has been identified as a child with a disability. . . . The bill
includes a statute of limitations of one year from the date of
the violation . . . .). And as written, it would have
unambiguously functioned like one, barring claims based on
injuries that occurred more than twelve months before the
complaint was filed.

The Senate, meanwhile, chose to use the discovery
rule and to count forward, providing in what became
§ 1415(f)(3)(C):

Timeline for requesting hearing.–A parent or
public agency shall request an impartial due
process hearing within 2 years of the date the
parent or public agency knew or should have
known about the alleged action that forms the
basis of the complaint, or, if the State has an
explicit time limitation for requesting such a

43
 hearing under this part, in such time as the State
law allows.

S. Rep. 108-185, at 222 (2003). Unlike the House’s proposal,
the Senate’s also added the provision giving primacy to a
state’s limitations period, along with the two statutory tolling
exceptions.

Those two bills—both statutes of limitations but
pointing in different directions and using different starting
dates for the limitations period—then went to conference
where the conference committee sought to reconcile them.
That committee reaffirmed that each body’s amendment
functioned as a traditional statute of limitations on the filing
of a complaint:

The House bill and Senate amendment have
similar language regarding the opportunity to
present complaints, but the House bill, not the
Senate amendment, includes language
establishing a 1 year statute of limitations on
the right to present complaints. Senate has a 2
year timeline for filing complaints at note 221.

H.R. Rep. 108-779, at 213 n.193 (2004) (Conf. Rep.),
reprinted in 2004 U.S.C.C.A.N. 2480, 2527; see also id. at
218 n.221, 2532 (“The Senate amendment establishes a 2-
year statute of limitations unless State law already has a
statute of limitations. The House bill includes a 1-year statute
of limitations (see note 193).”).

Apparently concluding that the addition of a statute of
limitations should involve both a new provision within
§ 1415(f)(3)(C) and an amendment to its prefatory subsection

44
at § 1415(b)(6), the conference committee opted not to
choose one body’s addition over the other but to retain both.
It did so by conforming each and every of the material terms
of the House’s version to the Senate’s, i.e., by changing the
House’s limitations period from one year to two, changing the
occurrence rule to the discovery rule, adding that a state’s
statute of limitations could override the IDEA’s, and adding
the two equitable tolling provisions specified by the Senate.
The conference committee then incorporated the Senate’s
version at § 1415(f) and the House’s version in the summary
listing at § 1415(b). When it did so, however, it omitted to
change the backward-looking framework of the House’s
version to the forward-looking framework of the Senate’s.
Thus was created the problem we grapple with today.

Section 1415(b)(6), in other words, started in the
House as a functioning, one-year statute of limitations for the
filing of complaints:

(A) 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; and

(B) which set forth a violation that occurred
not more than one year before the complaint
is filed[.]

H.R. Rep. 108-77, at 254 (emphasis added).

It ended, however, as something different altogether:

(A) with respect to any matter relating to the
identification, evaluation, or educational

45
 placement of the child, or the provision of a free
appropriate public education to such child; and

(B) which set forth an alleged violation that
occurred not more than two years before the
date the parent or public agency knew or
should have known about the alleged action
that forms the basis of the complaint, or, if the
State has an explicit time limitation for
presenting such a complaint under this
subchapter, in such time as the State law allows,
except that the exceptions to the timeline
described in subsection (f)(3)(D) shall apply to
the timeline described in this subparagraph.

20 U.S.C. § 1415(b)(6) (emphasis added).

The Congressional Research Service described the
amendments this way:

The 2004 reauthorization includes statutes of
limitations in various sections. As previously
discussed [Section 1415(b)] provides for a
two-year statute of limitations regarding the
filing of a complaint. There is also a two-year
statute of limitations regarding requests for a
hearing. The two years is from the date the
parent or agency knew or should have known
about the alleged action.

Richard N. Appling and Nancy Lee Jones, Cong. Research
Serv., RL32716, Individuals with Disabilities Education Act
(IDEA): Analysis of Changes Made by P.L. 108-446, CRS-27
(2005) (emphasis added). While this post-enactment

46
observation on its own carries little weight, nothing in the
IDEA’s legislative history points to a contrary interpretation.

In fact, quite the opposite. Far from Congress
intending that the two limitations periods diverge or limit a
court’s remedial power under § 1415(i), the legislative history
reflects that the drafters intended the amendments to add a
single statute of limitations and to leave untouched the
IDEA’s broad remedies. For example, in its explanation of
the addition of the statute of limitations, the Senate report
stated:

This new provision is not intended to alter the
principle under IDEA that children may receive
compensatory education services, as affirmed in
School Comm. of Burlington v. Department of
Education of Massachusetts, 471 U.S. 359
(1985) and Florence County School District
Four v. Carter, 510 U.S. 7 (1993) and
otherwise limited under section
[1412(a)(10)(C)] . . . . In essence, where the
issue giving rise to the claim is more than two
years old and not ongoing, the claim is barred;
where the conduct or services at issue are
ongoing to the previous two years, the claim
for compensatory education services may be
made on the basis of the most recent conduct
or services and the conduct or services that
were more than two years old at the time of
due process or the private placement . . . .

S. Rep. 108-185, 40 (emphasis added).

47
 After conference, but before final passage, Senator
Harkin, a co-sponsor of the amendments, addressed the
addition of a statute of limitations this way:

In this reauthorization, we also include a 2-year
statute of limitations on claims. However, it
should be noted that this limitation is not
designed to have any impact on the ability of a
child to receive compensatory damages for the
entire period in which he or she has been
deprived of services. The statute of limitations
goes only to the filing of the complaint, not
the crafting of remedy. This is important
because it is only fair that if a school district
repeatedly failed to provide services to a child,
they should be required to provide
compensatory services to rectify this problem
and help the child achieve despite the school’s
failings.

Therefore, compensatory education must
cover the entire period and must belatedly
provide all education and related services
previously denied and needed to make the
child whole.

150 Cong. Rec. S11851 (daily ed. Nov. 24, 2004) (statement
of Sen. Tom Harkin) (emphasis added); see also Robert R. v.
Marple Newtown Sch. Dist., No. 05-1282, 2005 WL 3003033,
at *4 (E.D. Pa. Nov. 8, 2005) (examining the IDEA’s
legislative history and concluding that “the limitations period
placed on claims for compensatory education by the [2004]
amendment to the IDEA was not meant to limit the period
which the hearing officer could consider when a due process

48
hearing was timely brought”); Jennifer Rosen Valverde, A
Poor IDEA: Statute of Limitations Decisions Cement Second-
Class Remedial Scheme for Low-Income Children with
Disabilities in the Third Circuit, 41 Fordham Urb. L.J. 599,
643-646 (2013). The legislative history is thus crystal clear
that Congress intended to impose a single statute of
limitations, but otherwise not to limit a court’s power to
remedy the deprivation of a free appropriate education.

V. Conclusion

As a general rule, “[t]he plain meaning of legislation
should be conclusive.” United States v. Ron Pair Enters.,
Inc., 489 U.S. 235, 242 (1989). However, in the “rare cases
[in which] the literal application of a statute will produce a
result demonstrably at odds with the intentions of its
drafters,” the plain meaning need not control. Id. (alteration
in original) (quoting Griffin v. Oceanic Contractors, Inc., 458
U.S. 564, 571 (1982)). In those exceptional instances where
“it is uncontested that legislative intent is at odds with the
literal terms of the statute, . . . [our] primary role is to
effectuate the intent of Congress even if a word in the statute
instructs otherwise.” Morgan v. Gay, 466 F.3d 276, 278 (3d
Cir. 2006); accord Thorpe v. Borough of Thorpe, 770 F.3d
255, 263 (3d Cir. 2014).

Here, the language, context, and structure of § 1415
lead inexorably to one conclusion: § 1415(b)(6)(B) was
intended to reflect the same statute of limitations set forth in
§ 1415(f)(3)(C). To the extent that some of its language
appears to conflict with that conclusion, the legislative history
confirms what is apparent from our analysis of the statute
itself. That is, the inconsistent language reflects nothing more
than a drafting error in the reconciliation process, turning a

49
passage that was at each stage of the legislative process
thought to be a statute of limitations into something that both
contravenes congressional intent and renders the statute
illogical. Thus, the IDEA “needs common sense revision,”
Morgan, 466 F.3d at 279, reflecting congressional intent that
a due process complaint must be presented “within 2 years”
of a parent’s reasonable discovery date, not that remedies be
limited to injuries that occurred “not more than 2 years
before” that date.

The upshot of all this is two-fold. On the one hand,
although a child’s right to special education under the IDEA
does not turn on parental vigilance, M.C., 81 F.3d at 397,
parental vigilance is vital to the preservation and enforcement
of that right. As we made clear in D.K., claims that are
known or reasonably should be known to parents must be
brought within two years of that “knew or should have
known” date, and parents may not, without satisfying one of
the two statutory exceptions, knowingly sit on their rights or
attempt to sweep both timely and expired claims into a single
“continuing violation” claim brought years later. 696 F.3d at
248. Parents are often in a position to be forceful advocates
for their children and through their vigilance and
perseverance to help fulfill the IDEA’s promise of a free
appropriate public education. That “cooperative process . . .
between parents and schools” that results from a parent’s
action, after all, is at the very “core of the statute” itself.
Schaffer, 546 U.S. at 53. Thus the sooner parents start that
process and secure appropriate intervention and remedial
supports after they discover or reasonably should have
discovered the need for it, the better for the well-being of the
child, the goals of the school district, and the relationship
between the family and school administrators.

50
 On the other hand, where parents neither knew nor
reasonably should have known of the special needs of their
child or of the educational system’s failure to respond
appropriately to those needs, the other partner in this
endeavor—the school district itself—still has its independent
duty to identify those needs within a reasonable time period
and to work with the parents and the IEP team to
expeditiously design and implement an appropriate program
of remedial support. 20 U.S.C. § 1412(a)(3); see also Forest
Grove, 557 U.S. at 245; P.P., 585 F.3d at 738. This is a
profound responsibility, with the power to change the
trajectory of a child’s life. Thus, the corollary to D.K. is that
when a school district has failed in that responsibility and
parents have taken appropriate and timely action under the
IDEA, then that child is entitled to be made whole with
nothing less than a “complete” remedy. Forest Grove, 557
U.S. at 244. Compensatory education is crucial to achieve
that goal, and the courts, in the exercise of their broad
discretion, may award it to whatever extent necessary to make
up for the child’s lost progress and to restore the child to the
educational path he or she would have traveled but for the
deprivation. See D.F., 694 F.3d at 498-99. In this way, the
courts too have an essential function in fulfilling Congress’s
mandate in the IDEA and enabling each child with special
needs to reach his or her full potential.

For these reasons, we hold today that, absent one of
the two statutory exceptions found in § 1415(f)(3)(D), parents
have two years from the date they knew or should have
known of the violation to request a due process hearing
through the filing of an administrative complaint and that,
assuming parents timely file that complaint and liability is
proven, Congress did not abrogate our longstanding precedent

51
that “a disabled child is entitled to compensatory education
for a period equal to the period of deprivation, but excluding
the time reasonably required for the school district to rectify
the problem.” D.F., 694 F.3d at 499 (quoting M.C., 81 F.3d
at 397).

***

G.L.’s claim was filed within two years of the date his
parents knew or reasonably should have known of his injury,
and thus his right to compensatory education upon proof of a
violation was not curtailed by the IDEA’s statute of
limitations. Accordingly, we will affirm the District Court’s
decision that his claims for remedy prior to March 2010 were
not time-barred and will remand to the District Court for
proceedings consistent with this Opinion.

52