            United States Court of Appeals
                        For the First Circuit

No. 14-1134

                           JOHN M. MILLAY,

                         Plaintiff, Appellee,

                                  v.

         MAINE DEPARTMENT OF LABOR, BUREAU OF REHABILITATION,
             DIVISION FOR THE BLIND AND VISUALLY IMPAIRED,

                        Defendant, Appellant.


             APPEAL FROM THE UNITED STATES DISTRICT COURT

                      FOR THE DISTRICT OF MAINE

              [Hon. Nancy Torresen, U.S. District Judge]


                                Before

                    Thompson, Baldock* and Selya,
                           Circuit Judges.



     Susan P. Herman, Assistant Attorney General, with whom Janet
T. Mills, Attorney General, and Paul Stern, Deputy Attorney General,
were on brief, for appellant.
     Brett D. Baber, with whom Lanham Blackwell & Baber, P.A. was
on brief, for appellee.



                           August 11, 2014



     *   Of the Tenth Circuit, sitting by designation.
          SELYA, Circuit Judge.      This case presents a question of

first impression at the federal appellate level: what limitations

period applies to an action for judicial review brought pursuant

to 29 U.S.C. ' 722(c)(5)(J)?   The choice is between borrowing state

law (in this instance, the law of Maine) or defaulting to the federal

catch-all statute of limitations, 28 U.S.C. ' 1658(a).     The district

court chose the latter.    After careful consideration, we affirm.

          The stage is easily set.      In 2010, plaintiff-appellee John

M. Millay, blind since childhood,1 sought transportation subsidies

from a Maine state agency, the Division for the Blind and Visually

Impaired (the Division), under Title I of the Rehabilitation Act,

29 U.S.C. '' 720-751.   The expenses underlying this request related

to costs incurred by Millay in connection with his attendance at

a vocational program approved by the Division.        When the Division

refused the request, the plaintiff appealed to an administrative

hearing officer.   See 29 U.S.C. ' 722(c)(5)(A).        On May 6, 2011,

the hearing officer sided with the Division.

          Six months passed.   At that point, the plaintiff brought

suit in the federal district court.      He alleged that the Division's

unwillingness to defray his transportation expenses violated the

Maine Human Rights Act, Me. Rev. Stat. tit. 5, '' 4551-4634, the


     1 The plaintiff has a compelling personal story. Kidnapped
in his native Ethiopia at a tender age, blinded by his kidnapper,
and forced to beg on the streets, he was later adopted and brought
to Maine by his adoptive mother.


                                  -2-
Americans with Disabilities Act, 42 U.S.C. '' 12101-12213, and Title

V of the Rehabilitation Act, 29 U.S.C. '' 791-794f.     In response,

the Division filed a motion to dismiss, which was referred to a

magistrate judge.   The magistrate judge recommended dismissal but

suggested that the plaintiff might reframe his action as one for

judicial review under Title I of the Rehabilitation Act.     See Millay

v. Me. Dep't of Labor, No. 11-438, 2012 WL 4481926, at *8-9, *13

(D. Me. May 16, 2012); see also 29 U.S.C. ' 722(c)(5)(J).          The

district court approved both the recommendation and the suggestion.

 See Millay v. Me. Dep't of Labor, No. 11-438, 2012 WL 4471232, at

*1 (D. Me. Sept. 26, 2012).

           Not surprisingly, the plaintiff sought leave to amend his

complaint to assert a claim for judicial review under 29 U.S.C.

' 722(c)(5)(J).   The Division objected, arguing that Maine's general

30-day statute of limitations for judicial review of administrative

decisions, see Me. Rev. Stat. tit. 5, ' 11002(3), rendered the

proposed   amendment   futile.    The   magistrate   judge   demurred,

recommending that the court apply instead the federal catch-all

statute of limitations, which permits commencement of an action up

to four years after the date of accrual.     See Millay v. Me. Dep't

of Labor, No. 11-438, 2012 WL 6044775, at *2-4 (D. Me. Sept. 21,

2012) (citing 28 U.S.C. ' 1658(a)).     The district court agreed and

allowed the plaintiff to file his proposed amended complaint.      See




                                 -3-
Millay v. Me. Dep't of Labor, No. 11-438, 2012 WL 6043964, at *1

(D. Me. Dec. 5, 2012).

             With the timeliness issue resolved, the district court

concluded that the hearing officer should have granted the plaintiff

relief.     See Millay v. Me. Dep't of Labor, 986 F. Supp. 2d 57, 78

(D.   Me.   2013).    The   parties    stipulated   to    the   cost   of   the

transportation services for which reimbursement was sought and the

plaintiff waived any claim for attorneys' fees.           The district court

entered judgment accordingly.         This timely appeal followed.

             In this venue, the Division advances only a single claim

of error: it renews its asseveration that the plaintiff's action

for judicial review is time-barred.         Our review is de novo.          See

HSBC Realty Credit Corp. (USA) v. O'Neill, 745 F.3d 564, 570 (1st

Cir. 2014).

             Title I of the Rehabilitation Act authorizes federal grants

to states for the provision of vocational rehabilitation services

to persons with disabilities.     See 34 C.F.R. ' 361.1; Reaves v. Mo.

Dep't of Elem. & Secondary Educ., 422 F.3d 675, 680 (8th Cir. 2005).

 To be eligible for such grants, a state must comply with certain

conditions.     See 29 U.S.C. ' 721(a)(1)(A).       Among these conditions

is the designation of a state agency to administer the program, see

id. ' 721(a)(2), and the establishment of an administrative review

procedure through which an individual may challenge the state

agency's determinations, see id. ' 722(c)(1).            It was against that


                                      -4-
backdrop that Congress, in 1998, enacted 29 U.S.C. ' 722(c)(5)(J)(i),

which provides that: "Any party aggrieved by a final decision"

rendered through the administrative review procedure "may bring a

civil action for review of such decision."    This is exactly the sort

of civil action that the plaintiff's amended complaint asserts.

             The Rehabilitation Act contains no statute of limitations

referable to such judicial review proceedings.     Historically, state

law filled the lacuna left by such congressional silence.       See N.

Star Steel Co. v. Thomas, 515 U.S. 29, 34 (1995).        The rules of

engagement changed when, little more than two decades ago, Congress

put into effect a different default rule for "a civil action arising

under an Act of Congress enacted after" December 1, 1990.2   28 U.S.C.

' 1658(a).    Elaborating on this statute, the Supreme Court has stated

that "if the plaintiff's claim against the defendant was made possible

by a post-1990 enactment" of Congress, the four-year limitations

period applies.     Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369,

382 (2004).

             At first blush, this four-year limitations period would

seem to apply here.      Prior to 1998, Congress had "provided only

administrative remedies" for individuals dissatisfied with state

agency determinations under Title I.     Mallett v. Wis. Div. of Voc.


     2 For ease in exposition, we refer throughout this opinion to
"post-1990" statutes rather than the more precise "post-December
1, 1990" statutes.     This one-month hiatus is of no practical
consequence with respect to any statute discussed in this opinion.


                                   -5-
Rehab., 130 F.3d 1245, 1249 (7th Cir. 1997).      That year, Congress

for the first time provided for judicial review of decisions rendered

through    the   administrative   appeals   process.      See    Workforce

Investment Act of 1998, Pub. L. No. 105-220, sec. 404, ' 102, 112

Stat. 936, 1146.    It was these 1998 amendments to the Rehabilitation

Act that enabled the plaintiff to bring the current proceeding for

judicial review.

            Despite these unarguable facts, the Division resists the

conclusion that the federal catch-all statute of limitations controls

here.     In its view, the Jones Court held only that a post-1990

amendment augmenting the substantive scope of a federal law would

take its limitations period from section 1658.         Extrapolating from

this self-serving reading of Jones, the Division insists that section

1658 goes no further and, therefore, does not cover a purely

procedural addition (such as the judicial review provision added

to the Rehabilitation Act by the 1998 amendments).

            This argument elevates hope over reason.            Nothing in

either the text of section 1658 or the Jones decision warrants a

distinction such as the Division draws.      As the Jones Court wrote,

"What matters is the substantive effect of an enactment."           Jones,

541 U.S. at 381.    The linchpin of the inquiry, then, is whether the

enactment "made possible" the plaintiff's cause of action.          Id. at

382.




                                   -6-
             An amendment to a federal statutory scheme that affords

the opportunity to seek a remedy not theretofore available fits

comfortably within the purview of section 1658.     See Baldwin v. City

of Greensboro, 714 F.3d 828, 834 (4th Cir. 2013); Middleton v. City

of Chicago, 578 F.3d 655, 659-60 (7th Cir. 2009).   The judicial review

created by the 1998 amendments to the Rehabilitation Act is of that

genre: it for the first time "made possible" the plaintiff's cause

of action.    Prior to those amendments, judicial review was for the

most part unavailable.    Given the Court's language in Jones, no more

is exigible.     There is simply no justification for hinging the

applicability of section 1658 on whether or not the relevant statute

created a new substantive violation of federal law.3

             The Division continues to balk.   It notes that, prior to

the 1998 amendments, some courts had allowed certain Title I

requirements to be enforced through 42 U.S.C. ' 1983.       See, e.g.,

Marshall v. Switzer, 10 F.3d 925, 928-31 (2d Cir. 1993); see also

Buchanan v. Ives, 793 F. Supp. 361, 362-63 (D. Me. 1991) (concluding,

without discussion, that declaratory relief regarding certain

provisions of the Rehabilitation Act could be provided under 42 U.S.C.

     3  At oral argument, the Division suggested that such a
justification might be found in City of Rancho Palos Verdes v. Abrams,
544 U.S. 113 (2005). There, the Supreme Court ruminated that if
a section 1983 claim were available, "' 1658 would seem to apply"
to a claim "rest[ing] upon violation of the post-1990" version of
the Telecommunications Act. Id. at 123 n.5. This dictum does not
have the slightest bearing as to whether a new procedural vehicle
for remedying an existing violation might also be within the compass
of section 1658.


                                  -7-
' 1983).   Thus, its thesis runs, the 1998 amendments serve to curtail,

rather than enlarge, the plaintiff's rights by replacing a plenary

cause of action with a more restrictive judicial review mechanism.

             This view, however, reads the case law through rose-colored

glasses.   Before 1998, the scope of Title I-based section 1983 claims

was quite limited.     A plaintiff could "use ' 1983 only when he or

she allege[d] that a state's plan" for vocational rehabilitation

did "not satisfy a mandatory provision [that] the federal statute

requires."     Mallett, 130 F.3d at 1256.   Any disputes about specific

applications of a state's plan (such as the dispute at issue here)

were confined to the administrative process.      See id.; see also Doe

v. Pfrommer, 148 F.3d 73, 81 (2d Cir. 1998).       The 1998 amendments

created a new and broader remedy C a remedy adequate to ground the

application of section 1658.

             The Division asserts that our rendition of the scope of

section 1658 contradicts the weight of authority.       This assertion

is more cry than wool.     Without exception, the cases bruited by the

Division do not so much as mention section 1658, see, e.g., Jameson

v. VESID, No. 10-847, 2012 WL 1077464, at *6-7 (E.D.N.Y. Mar. 30,

2012); Johnson v. Rehab. Servs., No. 10-554, 2011 WL 3102564, at

*2 (S.D. Ohio July 25, 2011); Carrigan v. N.Y. State Educ. Dep't,

485 F. Supp. 2d 131, 136 (N.D.N.Y. 2007), and none of them offers

a compelling analogue.      The one case cited in the parties' briefs

that does discuss section 1658, see Rance v. Fla. Dep't of Educ.,


                                   -8-
No. 09-81098, 2011 WL 1099262, at *6 (S.D. Fla. Mar. 22, 2011), shares

our logic.

               The Division has a fallback argument.          It says that the

federal catch-all statute of limitations cannot apply because the

limitations period for judicial review is, in the idiom of section

1658 itself, "otherwise provided by law."               This argument is built

on the premise that Title I's requirement that states "develop and

implement       procedures"       for   administrative     review,    34    C.F.R.

' 361.57(a), includes a delegation to the states of the power to

set statutes of limitations for judicial review.               This premise is

faulty.

               Nothing in the federal statutes or regulations addressing

judicial review prescribes (or, for that matter, even suggests) any

such       delegation.      See    29   U.S.C.    '   722(c)(5)(J);    34   C.F.R.

' 361.57(i).       Fairly read, the statute's admonition to "establish

procedures" is a call to establish a framework for administrative

review, not a subtle abdication of the power to set a limitations

period.       29 U.S.C. ' 722(c); see 34 C.F.R. ' 361.57(b)-(g).               The

Division's       reliance     on    gauzy      generalities   and     unsupported

suppositions as a basis for reading more into this directive than

its language admits is utterly misplaced.4


       4
      The Division also argues that the availability of preclusion
principles (that is, the preclusive effect of state administrative
proceedings) is another way in which the issue is "otherwise provided
by law." But this argument never surfaced below and, thus, it is
waived. See Teamsters Union, Local No. 59 v. Superline Transp. Co.,

                                         -9-
           In a last-ditch effort to save the day, the Division

suggests that a four-year limitations period cannot be squared with

the short deadlines present in Title I's administrative review

process.   See, e.g., 34 C.F.R. ' 361.57(e).      This policy argument

has a certain superficial appeal: a limitations period measured in

years for review of an administrative process measured in days seems

incongruous.   But an isthmian focus on that policy overlooks the

fact that section 1658's enactment comes with its own justification.

           "Congress was keenly aware of the problems associated with

the practice of borrowing state statutes of limitations" and

expressed a preference for a uniform statute of limitations to govern

future federal causes of action.         Jones, 541 U.S. at 380.   That

desire for uniformity spurred the passage of section 1658, and it

must be weighed heavily in any policy-based calculus.    The Division's

policy argument is not strong enough to override Congress's manifest

intent.

           There is, of course, an even more abecedarian reason why

the Division's policy argument will not work: we simply cannot ignore

the text of section 1658.    In enacting the statute, Congress did

not sound an uncertain trumpet.   And where, as here, Congress's "call

is a clarion one, the courts have no warrant to rewrite a statute


953 F.2d 17, 21 (1st Cir. 1992).    Although the Division argued
preclusion generally in its initial motion to dismiss, it never
advanced C and the district court never was asked to consider C
a connection between that doctrine and section 1658.


                                  -10-
in the guise of 'interpretation.'"      United States v. Charles George

Trucking Co., 823 F.2d 685, 689 (1st Cir. 1987).          That is the

situation here.   Given the clarity of section 1658, we are not at

liberty to borrow a state limitations period that some might think

more suitable.

           We need go no further.    We conclude that the plaintiff's

judicial review action under 29 U.S.C. ' 722(c)(5)(J) arises out

of a post-1990 congressional enactment within the meaning of section

1658.   That enactment does not explicitly incorporate any specific

limitations period.    Consequently, the right to judicial review that

the statute creates is subject to the general catch-all limitations

period contained in 28 U.S.C. ' 1658(a).

           Affirmed.




                                 -11-
