United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 6, 2008 Decided December 16, 2008
No. 07-7168
DAVID T. LONG AND KAREN LONG,
APPELLANTS
v.
HOWARD UNIVERSITY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 02cv01374)
Harvey S. Williams argued the cause and filed the briefs
for appellant.
Daniel I. Prywes argued the cause for appellee. With
him on the brief was Jacob A. Kramer.
Before: ROGERS, TATEL and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge
KAVANAUGH.
2
KAVANAUGH, Circuit Judge: A jury found that Howard
University discriminated against David Long, a former
graduate student, on the basis of disability. But the jury also
found that Long’s claim had accrued more than three years
before he filed his lawsuit, which meant that Long’s claim
was barred by the statute of limitations. Long now appeals,
arguing that the University had forfeited its statute-of-
limitations defense and that the District Court’s jury
instructions on that issue were improper. We affirm.
I
From 1982 to 1991, David Long attended Howard
University as a graduate student pursuing a Ph.D. in
physiology. After falling ill with a lung ailment, he obtained
permission from the University to take a leave of absence. At
the time, Long indicated his intention to return to the
University after he recovered so that he could complete his
dissertation, undergo his oral defense, and receive his Ph.D.
Long did not seek to return to Howard for four years. In
1995, he asked the University to reinstate his Ph.D.
candidacy. Given the lapse of time, however, Long had
become subject to University policies regarding the amount of
time that Ph.D. candidates can take to complete their degrees.
These “course viability” policies required Ph.D. candidates to
take special examinations to “restore” course credits from
courses taken more than seven years earlier, and precluded
them from relying on credits for courses taken more than 10
years earlier.
As part of his effort to regain admission, Long sought an
exemption from those rules. In 1995, however, the University
denied Long’s written requests for reinstatement and for
exemption from the course viability policies. In 1998, the
3
University again refused Long’s request for reinstatement
under a complete exemption from the course viability
policies, instead offering to reinstate him only if he passed a
comprehensive exam on the core courses. The University
repeated its denial of Long’s requests in 1999, indicating that
he remained subject to the standard course viability policies.
After Long filed formal applications for readmission in 1999
and 2001, the University eventually agreed to re-admit him as
a student, but still declined to reinstate his Ph.D. candidacy or
grant him the desired exemptions from the course viability
policies.
Long filed the present lawsuit against the University on
July 9, 2002. His complaint raised numerous claims,
including the allegation at issue here – that Howard violated
§ 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.
Long’s § 504 claim focused on the University’s failure to
accede to his request that, “as an accommodation to his
disability,” he be reinstated and allowed to proceed
immediately to his dissertation defense without regard for the
course viability policies. In its answer to the complaint, the
University advanced the statute of limitations as an
affirmative defense. It also subsequently asserted the statute-
of-limitations defense in responding to interrogatories during
discovery, at the pre-trial conference, and in a motion filed
before trial.
At trial, the District Court ruled that the applicable statute
of limitations was three years. It instructed the jury that it
should determine “[w]hether, and if so when,” Long knew
that the University had declined his request for a modification
of its policies, explaining that Long’s claim would be time-
barred if that had happened before July 9, 1999. The jury
concluded that Howard had violated the Act, but that Long
knew of the University’s violations before July 1999, and that
4
his claims were thus barred by the statute of limitations. The
District Court denied Long’s post-trial motion and entered
judgment for the University.
II
Long contests the judgment against him on three grounds.
First, he argues that the University forfeited its statute-of-
limitations defense by failing to raise it beyond the
“boilerplate” assertion in its answer. Second, Long contends
that he was covered by the Rehabilitation Act only upon
submitting a formal re-application to the University in
October 1999 – and hence that it was impossible, as a matter
of law, for his claim to have accrued before July 1999,
contrary to the jury’s finding. Finally, Long says that the jury
instructions were slanted against him, because they allegedly
implied that the University had decided to deny him an
accommodation for his disability before July 9, 1999, and
therefore suggested that his claim was barred by the statute of
limitations.
A
Under Rule 8(c) of the Federal Rules of Civil Procedure,
a defendant must assert any statute-of-limitations defense in
the answer. See Harris v. Sec’y, Dep’t of Veterans Affairs,
126 F.3d 339, 343 (D.C. Cir. 1997); see also 5 CHARLES
ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE
AND PROCEDURE § 1278 (3d ed. 2004). The University met
its Rule 8 obligation. Its answer to Long’s complaint stated
that “Plaintiff’s claims are barred by the applicable statute of
limitations.” Under our precedents, that pleading sufficed to
preserve the University’s statute-of-limitations defense for
trial. See Daingerfield Island Protective Society v. Babbitt, 40
F.3d 442, 445 (D.C. Cir. 1994).
5
Moreover, in this case, the University repeated its
limitations defense in response to Long’s interrogatories
during discovery, again during the pre-trial conference, and in
a detailed motion in limine before trial. See Def.’s Answers
to First Set of Interrogatories 22 (asserting that Long “failed
to timely file his lawsuit”); Tr. of Pre-Trial Conf. 46 (stating
that the “defense was raised at the pretrial conference”);
Def.’s Mem. in Support of Mot. 9 (arguing that there were
“serious statute of limitations problems applicable to Mr.
Long’s claims under . . . the Rehabilitation Act”). At no time
after the answer did the University affirmatively waive the
statute of limitations defense; rather, it continued to assert the
defense.
Long maintains that the University forfeited the
limitations defense by failing to raise it in opposition to
Long’s motion for partial summary judgment. But there is no
requirement that a party assert a statute-of-limitations defense
in opposition to a summary-judgment motion in order to
assert it at trial. On the contrary, the defense can be raised at
trial so long as it was properly asserted in the answer and not
thereafter affirmatively waived. Long relies on United Mine
Workers of Am. 1974 Pension v. Pittston Co., 984 F.2d 469
(D.C. Cir. 1993), which also involved a claim that a statute-
of-limitations defense had been forfeited by failure to raise it
at the summary-judgment stage. But as we made clear in
Daingerfield, the defendant in Pittston “apparently waived its
defenses from the beginning, having never asserted them in
any pleading or motion in the district court.” 40 F.3d at 445.
Here, of course, the University asserted its statute-of-
limitations defense repeatedly, beginning in its answer to
Long’s complaint.
6
Our decision on this issue not only is compelled by the
text of the Federal Rules and our precedent in Daingerfield,
but also is fully consistent with the goal of Rule 8’s pleading
requirement. As we have explained, the purpose is to ensure
that the plaintiff is able “not only to frame legal arguments,
but to establish relevant facts that might affect the
applicability of the statute of limitations.” Harris, 126 F.3d at
343. At the time of discovery, Long was well aware that the
University had raised the statute-of-limitations defense in its
answer. Therefore, Long could not have been prejudiced
during discovery in his ability to obtain factual information
relevant to the statute-of-limitations issue. Moreover, Long
could have sought clearer statements from the University
about its statute-of-limitations defense by using the
procedures specified in Rule 36(a)(6) or 37(a)(4) of the
Federal Rules of Civil Procedure. In short, nothing in the
University’s pre-trial conduct impeded Long’s ability to
contest the statute-of-limitations defense at trial.
B
Long also contends that the District Court misconstrued
§ 504 of the Rehabilitation Act and its implementing
regulations when instructing the jury on the statute-of-
limitations issue. Long argues that the Act’s ban on
discriminatory “academic requirements” protects only a
“qualified handicapped applicant or student.” 45 C.F.R. §
84.44(a). He therefore says that his claim could not have
accrued – as a matter of law – anytime before he submitted a
formal application for re-admission in October 1999.
Because he filed suit within three years of his October 1999
application, Long argues that his claim was not time-barred
and that the jury should not have been instructed at all on the
statute of limitations.
7
At trial, Long failed to raise this argument or to object to
the jury instructions on this ground. Although he did
challenge the proposed jury instructions for a variety of
reasons, he did not raise this broad contention. See Pl.’s
Objections to Proposed Jury Instructions and Jury Form 6, 7-
8. Indeed, his first hint of this objection came only after trial,
in a reply memorandum supporting his motion for new trial.
Pl.’s Reply in Support of Pl.’s Mot. For New Trial, 2-5. And
even then, Long failed to cite the regulation – 45 C.F.R. §
84.44(a) – that he now argues is decisive. Cf. Tr. of Oral Arg.
14.
Rule 51 of the Federal Rules of Civil Procedure requires
that objections to jury instructions be made “on the record,
stating distinctly the matter objected to and the grounds for
the objection” and “before the instructions . . . are delivered.”
FED. R. CIV. P. 51(c), (b). If a party fails to properly object to
jury instructions, appellate review is only for “plain error.”
Id. at 51(d)(2).
In light of Long’s failure to properly object to the jury
instructions on this ground at trial, our review is for plain
error. To prevail on a plain-error argument, the objecting
party must establish four elements: “(1) there must be an
error; (2) the error must be plain; (3) the error must affect
substantial rights; and (4) the error must seriously affect the
fairness, integrity, or public reputation of judicial
proceedings.” Muldrow ex rel. Estate of Muldrow v. Re-
Direct, Inc., 493 F.3d 160, 169 (D.C. Cir. 2007) (internal
quotation mark omitted). The Supreme Court has emphasized
that “‘[p]lain error’ review under Rule 51 is suited to
correcting obvious instances of injustice or misapplied law.”
City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 256
(1981) (emphasis added). Indeed, “the word ‘plain’ is
synonymous with ‘clear’ or, equivalently, ‘obvious.’”
8
Johnson v. United States, 520 U.S. 461, 467 (1997) (internal
quotation marks omitted).* Reversal under the plain error
standard is thus reserved only for “exceptional
circumstances.” FED. R. CIV. P. 51 advisory committee’s
notes to 2003 amendments.
Long’s interpretation of the Rehabilitation Act
regulations does not show that the District Court made a
“clear” or “obvious” error. Indeed, as the District Court
pointed out, and contrary to Long’s interpretation, § 504 of
the Act itself and 45 C.F.R. § 84.4(a)’s “general” provision
extend broad protections against discrimination to disabled
individuals, without limiting coverage exclusively to formal
applicants or students. Long v. Howard University, 512 F.
Supp. 2d 1, 15 (D.D.C. 2007). Therefore, it is far from
“plain” that Long’s claim could not have accrued before his
formal application in October 1999. And in the absence of
plain error, this argument about the jury instructions is
unavailing.
C
Long’s final contention is that the District Court’s jury
instructions improperly led the jury to believe that his lawsuit
had been filed after the statute of limitations had run. By
*
Johnson was a criminal case in which the Supreme Court
interpreted the “plain error” standard in Rule 52 of the Federal
Rules of Criminal Procedure. Nonetheless, we follow the notes of
the Advisory Committee on Civil Rules in recognizing that Civil
Rule 51 is borrowed from Criminal Rule 52 and should be
interpreted accordingly while still, of course, taking account of the
differences between civil and criminal litigation. FED. R. CIV. P. 51
advisory committee’s notes to 2003 amendments; see Muldrow,
493 F.3d at 168 & n.5 (internal quotation marks omitted).
9
Long’s account, the problematic sentence in the jury
instructions was the following:
If, on a date later than July 9, 1999, Mr. Long asked the
University to reconsider its decision not to modify its
policies or rules, or asked the University for the same
modification he had previously requested, his claim is
still barred by the statute of limitations if, before July 9,
1999, Mr. Long knew, or by the exercise of reasonable
care should have known, that the University had declined
his request for a modification.
Jury Instructions and Verdict Form 38-39.
In Long’s view, this sentence contained two distinct
problems.
First, it allegedly did not allow the jury “to consider
discrete acts of discrimination” after July 9, 1999 “as
anything other than responses to requests to reconsider [the
University’s] decision.” Appellant’s Br. 47 (internal
quotation mark omitted). We disagree. Nothing in the
instruction prevented the jury from deciding that the
University discriminated against Long after 1999 in any
discrete incident. And to the extent that any such actions
were merely a re-affirmation of any University action denying
Long’s requests for reinstatement lodged in the 1990s, the
District Court properly explained that such claims were
barred. As the Supreme Court made clear in Delaware State
College v. Ricks, “requests to reconsider” decisions already
made “cannot extend the limitations periods applicable to the
civil rights laws.” 449 U.S. 250, 261 n.15 (1980).
Second, Long contends that the jury instruction suggested
that the University had, in fact, made a decision on Long’s
10
candidacy before July 9, 1999. As the District Court pointed
out, however, the challenged sentence immediately followed a
separate paragraph explaining that the jury had the right to
determine “[w]hether, and if so when,” the University ever
declined his requests for accommodation. Jury Instructions
and Verdict Form 38; Long, 512 F. Supp. 2d at 18-19. In
context, therefore, the challenged sentence did not suggest
that the University had made its decision before July 1999.
We review the wording of jury instructions for abuse of
discretion. Joy v. Bell Helicopter Textron, 999 F.2d 549, 556
(D.C. Cir. 1993). The District Court’s jury instruction
concerning the University’s statute-of-limitations defense was
well within the acceptable bounds of its discretion.
***
We affirm the judgment of the District Court.
So ordered.