
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-2157                                            RICHARD AMANN, ET AL.,                               Plaintiffs, Appellants,                                          v.                                TOWN OF STOW, ET AL.,                                Defendants, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ___________________                                        Before                              Torruella, Cyr and Stahl,                                   Ciricut Judges.                                   ______________                                 ___________________               Richard Amann on brief pro se.               _____________               Scott  Harshbarger, Attorney  General,  and  Beth  D.  Levi,               __________________                           ______________          Assistant Attorney General, on brief for appellee Commonwealth of          Massachusetts.               Kevin Hensley and  Needham and Warren on  brief for appellee               _____________      __________________          Town of Stow.               Maynard  M.  Kirpalani,   Christine  Hasiotis  and   Parker,               ______________________    ___________________        _______          Coulter, Daley & White on brief for appellee Stow School System.          ______________________                                  __________________                                    April 29, 1993                                  __________________                 Per Curiam.  Appellant Christopher Amann is a child with                 __________            learning  disabilities  who  lives  in  Stow,  Massachusetts.            Appellant Richard Amann is Christopher's father.  Christopher            began to attend  public school in  Stow in 1983.   Because he            suffered from learning disabilities,  the Town was  obligated            under the Individuals With Disabilities Education Act (IDEA),            20  U.S.C.    1400  et  seq., to  produce  an "individualized            education  program" (IEP) for  him, and to  review and update            the IEP annually.  See generally Amann v. Stow School System,                               _____________ _____    __________________            982 F.2d 644, 646-47 (1st Cir. 1992) (per curiam) (describing            Town's  obligations under IDEA).  The Town did so until 1987,            when Christopher's parents withdrew  him from the Stow school            system and placed him in a private school.                   In 1990,  at the request of  Christopher's parents, Stow            came up with a new IEP that called for Christopher  to return            to the Stow public schools.  The Amanns rejected this IEP and            challenged its adequacy in a hearing before the Massachusetts            Bureau  of Special Education Appeals (BSEA).  See 20 U.S.C.                                                            ___            1415(b)(2) (requiring administrative "due process hearing" of            complaints  about IEPs).   The  BSEA hearing  officer decided            that Stow's proposed IEP was legally adequate.                  Section   1415(e)(2)  of  the  IDEA  authorizes  parties            aggrieved by  agency decisions concerning the  adequacy of an            IEP to bring a civil action in either state or federal court,            seeking "such relief as the court determines is appropriate."                                         -2-            The Amanns  challenged the BSEA's procedures  and findings in            the  United  States  District   Court  for  the  District  of            Massachusetts.   The district court affirmed  the validity of            the IEP, and we did the same on appeal.  Amann v. Stow School                                                     _____    ___________            System, 982 F.2d at 649-53.            ______                 As  was its  duty  under  the  IDEA,  see  20  U.S.C.                                                          ___            1414(a)(5)  (requiring annual  review  and,  if  appropriate,            revision  of IEP), Stow  prepared a  new educational  plan to            cover the period March  1991-March 1992.  This IEP,  like its            predecessor, called for Christopher to attend public  schools            in Stow.  The Amanns rejected this IEP, too, and again sought            review before the  BSEA.   In a decision  dated September  9,            1991, the  BSEA hearing  officer ruled that  Stow's 1991-1992            IEP was  adequate.  On  May 21,  1992, the Amanns  filed this            action  in the district court.   The district court dismissed            the complaint as untimely.  This appeal followed.  We affirm.                                          I                                          _                 The  IDEA, like  many federal  statutes, does not  set a            time  limit for lawsuits brought  under its terms.   "In such            situations we do not ordinarily assume that Congress intended            that  there be no time  limit on actions  at all; rather, our            task is to 'borrow'  the most suitable statute or  other rule            of  timeliness from  some other  source.   We have  generally            concluded that  Congress intended  that the courts  apply the            most closely  analogous statute  of  limitations under  state                                         -3-            law,"  DelCostello v. International Brotherhood of Teamsters,                   ___________    ______________________________________            462  U.S.  151,   158  (1983),  provided  that  "it   is  not            inconsistent with federal law or policy to do so."  Wilson v.                                                                ______            Garcia, 471 U.S. 261, 266-67 (1985).              ______                 The district court, relying  on Judge Keeton's  decision            in Gertel  v. School Committee of  Brookline School District,               ______     ______________________________________________            783  F.Supp. 701  (D.Mass. 1992),  "borrowed" the  thirty-day            limitations   period  that  governs   civil  actions  seeking            judicial   review  of  state   agency  decisions   under  the            Massachusetts Administrative Procedure Act, M.G.L. c. 30A,               14.  Because the Amanns did  not sue until eight months after            the  BSEA  decision,  the district  court  properly dismissed            their  claim  unless the  court's  choice  of the  thirty-day            limitation period  was somehow incorrect, or  its application            of  the time  bar under  the circumstances  of this  case was            somehow inappropriate.                                          II                                          __                 Except  to  suggest that  the  Gertel  decision "set  an                                                ______            improper precedent,"  the appellants do not seriously contest            the district  court's choice  of a limitations  period.   The            appropriate limitations period for  IDEA actions, however, is            a question of first impression in this circuit, and the issue            has  not elsewhere generated  a harmonious judicial response.            Several courts,  like the  district court here,  have applied            the short  (generally 30-day)  limitations  periods found  in                                         -4-            state administrative procedure  acts, ruling both that  state            administrative  procedure  laws  are  analogous   to  Section            1415(e)(2),  and  that  their  relatively  brief  limitations            periods  are  consistent  with  the  IDEA's  goal  of  prompt            resolution  of  disputes  over the  educational  placement of            learning-disabled   children.     Spiegler  v.   District  of                                              ________       ____________            Columbia, 866  F.2d 461  (D.C.Cir. 1989); Adler  v. Education            ________                                  _____     _________            Department  of  New  York,  760  F.2d  454  (2d  Cir.  1985);            _________________________            Department of Education v.  Carl D., 695 F.2d 1154  (9th Cir.            _______________________     _______            1983); Gertel, supra; Bow School District  v. Quentin W., 750                   ______  _____  ___________________     __________            F.Supp.  546 (D.N.H. 1990).  Other courts, though they by and            large  concede  that   state  administrative  procedure  laws            provide the closest available analogue to Section 1415(e)(2),            but see  Tokarcik v. Forest  Hills School District,  665 F.2d            _______  ________    _____________________________            443 (3d Cir. 1981), reason that short limitations periods are            nevertheless  too  inconsistent  with  the  IDEA's  "goal  of            parental involvement"  to allow their  application to actions            under the IDEA.  See Schimmel v. Spillane, 819 F.2d 477  (4th                             ___ ________    ________            Cir.  1987); Scokin v. Texas,  723 F.2d 432  (5th Cir. 1984).                         ______    _____            These courts have instead borrowed less analogous, but longer            --  and  in  the  courts'  view,  more  compatible  --  state            limitations periods, such as those applicable to tort claims,            see Scokin, 723 F.2d  at 438 (two years); Tokarcik,  665 F.2d            ___ ______                                ________            at 454 (two years),  or to actions for services  rendered but                                         -5-            not paid for.  Janzen v. Knox County Board  of Education, 790                           ______    _______________________________            F.2d 484, 489 (6th Cir. 1986) (three years).                 We conclude  that the district  court correctly borrowed            Massachusetts'  thirty-day  limitations  period  for  actions            under its Administrative Procedure  Act.  Since the arguments            on  both sides have been well-rehearsed in the cases cited --            and  since the  appellants  have offered  only a  perfunctory            challenge to the district court's  choice -- we will  attempt            to state our reasons briefly.                 The  Massachusetts  Administrative  Procedure Act  (APA)            contains  the "most analogous"  state law cause  of action to            the civil action authorized by  Section 1415(e)(2).  Like the            Massachusetts  courts operating  under M.G.L.  c. 30A,    14,            courts reviewing  agency decisions  under the IDEA  will rely            primarily  on  the administrative  record, see  Burlington v.                                                       ___  __________            Department of Education,  736 F.2d 773,  790 (1st Cir.  1984)            _______________________            ("Burlington II"), and will  scrutinize the agency action for              _____________            procedural  regularity and substantive validity, but will not            "impos[e]  their view  of preferable  . .  . methods"  on the            state  agency.  Board of  Education v. Rowley,  458 U.S. 176,                            ___________________    ______            206-207 (1982); cf. M.G.L. c. 30A   14(7)(g) (requiring court                            ___            to respect agency decision unless arbitrary or capricious, an            abuse  of discretion,  or  otherwise not  in accordance  with            law).   Thus, the "character  of the  hearing" under  Section            1415(e)(2),  like that  of  the hearing  conducted under  the                                         -6-            Massachusetts   statute,  is  essentially  "one  of  review."            Burlington II, 736 F.2d at 791.            _____________                 The short limitations period of the Massachusetts APA is            fully  consistent  with  one  goal  of  the  IDEA:  the quick            disposition  of   disputes   about  a   handicapped   child's            educational placement.  "[S]peedy  resolutions to the IEP and            placement disputes that characterize   1415(e)(2) actions are            necessary  for  such resolutions  to serve  any substantively            useful  purposes," Bow  School  District v.  Quentin W.,  750                               _____________________     __________            F.Supp. at 550, because "[c]hildren develop quickly and their            needs often  change substantially  from year to  year."   Id.                                                                      ___            See also Burlington II,  736 F.2d at 798 ("Delay  in remedial            ________ _____________            teaching is  . . . likely to be highly injurious to [learning            disabled] children").    The legislative  history,  statutory            terms,  and regulatory  framework of  the IDEA  all emphasize            promptness  as  an  indispensable  element  of the  statutory            scheme.    See  generally  Spiegler,  866  F.2d  461,  466-67                       ______________  ________            (D.C.Cir.  1989);  Adler,  760  F.2d at  459-60;  Bow  School                               _____                          ___________            District, 750 F.Supp. at 550-51.            ________                 It is true that the thirty-day limitations period may to            some extent frustrate a  competing goal: parental involvement            in enforcing the IDEA's requirements.  But the imposition  of            any  statute  of  limitations   will  to  some  extent  favor            ___            "policies   of   repose"   over  "substantive   policies   of            enforcement," Wilson  v. Garcia,  471 U.S.  at 271, and  this                          ______     ______                                         -7-            fact  alone  is not  a  sufficient reason  for  rejecting the            shorter  limitations period of  a closely  analogous statute.            "Were it  otherwise, a federal  court should always  prefer a            longer  statute  of  limitations  over  an  alternative,  but            shorter, period, a  type of approach [the  Supreme Court has]            rejected before."  Burnett v. Grattan, 468 U.S. 42, 58 (1984)                               _______    _______            (Rehnquist, J., dissenting).                 The  potentially  harsh effects  of a  short limitations            period,  moreover, are  mitigated  in this  context by  three            factors which, taken together, so narrow any  "inconsistency"            with  the   goal  of   parental  involvement  as   to  permit            application of the most analogous  state law.  Cf. Occidental                                                           ___ __________            Life Insurance  Co. v.  EEOC,  432 U.S.  355 (1977)  (finding            ___________________     ____            preclusive  inconsistency where application  of state statute            of limitations would  have clashed  fundamentally with  Equal            Employment Opportunity Act's requirement that EEOC, an agency            plagued  by backlogs,  engage  in time-consuming  process  of            investigation and settlement exploration before filing suit).                 First,  the IDEA  instructs school  authorities  to give            parents notice "of all  procedures available pursuant to this            section."   20 U.S.C.    1415(b)(1)(D).  Several  courts have            interpreted  this  provision   to  require   notice  of   any            applicable  limitations  period,  in  order  to  ensure  that            parents who go through the administrative proceedings without            the  aid of  a lawyer  do not  lose their  right to  judicial                                         -8-            review merely out of ignorance of the law.  See Spiegler, 866                                                        ___ ________            F.2d at  467; Scokin, 723 F.2d at 438; Gertel, 783 F.Supp. at                          ______                   ______            707;  Bow School District, 750  F.Supp. at 551;  cf. Carl D.,                  ___________________                        ___ _______            695 F.2d at 1158 (declining to reach issue).                 Second, the  parents' only obligation during the thirty-            day  period  is  to  decide  whether  to  sue  under  Section            1415(e)(2),  a decision they need  make only after the issues                                                         _____            have been defined, the  dispute has been heard, and  a record            has been  created in the administrative forum.  Thus, parents            contemplating  action   under  the  IDEA   --  like   parties            considering action under the Massachusetts APA -- do not bear            the same  pre-litigation burdens of factual investigation and            legal  research that face, say, a party who has just suffered            or  discovered  an injury  and  is  thinking about  filing  a            lawsuit.    Cf.  Burnett  v.  Grattan,  468  U.S.   at  50-51                        ___  _______      _______            (rejecting  use, in  federal civil  rights actions,  of state            limitations  periods  for  filing  administrative  employment            discrimination claims, where  "practical difficulties  facing            an aggrieved person who  invokes administrative remedies  are            strikingly different"  from preparation needed to  initiate a            civil rights lawsuit).                  Finally,  the IDEA  requires that  IEPs be  reviewed and            revised at  least annually, 20  U.S.C.   1414(a)(5),  and, as            the  Amanns' own  experience shows,  allows parents  to begin            litigating afresh over the merits of  each new IEP.   Parents                                         -9-            who,  despite notice  of  the limitations  period, "sleep  on            their  rights,"  therefore,  will   lose  no  more  than  the            educational placement for a single  school year, and will not            have to wait long for a new opportunity to participate in the            development, implementation -- and if  needed, administrative            and  judicial review  -- of  their child's  educational plan.            See Spiegler, 866 F.2d at 468.            ___ ________                                         III                                         ___                 The Amanns  contend that,  even if  thirty  days is  the            right limitations  period for IDEA  actions in Massachusetts,            the time bar should not have  operated to deny them a lawsuit            here.  They give three reasons for this conclusion.                 First, the  Amanns argue  that they  received inadequate            notice  of  the  thirty-day  limit.     As  we  have  already            described,  the IDEA directs the states  to "fully inform the            parents  .  . .  of all  procedures  available," 20  U.S.C.              1415(b)(1)(D),  and   some  courts  have   held  "that   this            requirement imposes a duty . . . to give, at the time a final            administrative  decision  is  rendered, clear  notice  of the            availability of judicial review and of the 30-day limitations            period."  Spiegler, 866 F.2d at 467.  In Spiegler, the agency                      ________                       ________            gave no  notice of any time  limit, and the court  of appeals            therefore refused to  invoke the limitations bar  in the case            under consideration.  Id. at 469.                                  ___                                         -10-                 The Amanns concede that the BSEA gave them notice of the            thirty-day  limitations  period at  the  time  it rendered  a            decision.  Attached to  the September 9, 1991 decision  was a            document entitled "Effect of  Decision and Rights of Appeal,"            which stated:                 Any party  aggrieved by the  Bureau decision may  file a                 complaint   in   the   Superior   Court   of   competent                 jurisdiction  or in  the  District Court  of the  United                 States  for  Massachusetts  for  review  of  the  Bureau                 decision.  20 U.S.C. s. 1415(e)(2).  Under Massachusetts                 General  Laws Chapter  30A, Section  14(1), appeal  of a                 final Bureau  decision must be  filed within 30  days of                 receipt of the decision.                 We  agree with  the  district court  in Gertel  that the                                                         ______            notice  given here, though "not a model of careful drafting .            . . was sufficient."   Gertel, 783 F.Supp. at  708 (assessing                                   ______            identical notice).  We  do not see how the appellants' pro se                                                                   ______            status  affected the adequacy of  the notice.   If the Amanns            were,  because of their pro  se status, ignorant  of the law,                                    _______            then the only message they could reasonably have derived from            the document attached  to the decision  was: You have  thirty            days in  which to challenge this ruling in court.  And if the            Amanns were,  despite  their lack  of counsel,  knowledgeable            enough  about the workings of  limitations rules to be "aware            that   1415(e)(2) provides no statute of  limitation and that            therefore  one must  be borrowed  from state law,  [then] the            notice  is  clear that  the position  of the  Commonwealth of            Massachusetts is  that the appropriate limitations  period is            30 days."  783 F.Supp. at 708.  Either way, the notice should                                         -11-            have caused the  appellants to  understand that  they took  a            risk  if  they did  not exercise  their  right to  sue within            thirty days of receiving the BSEA decision.                 The Amanns'  second argument is that  the defendants are            estopped from  raising a limitations defense  to this action,            which challenges the 1991-92 IEP, by virtue of  their failure            to assert the  limitations bar  as a defense  to the  Amanns'            previous IDEA  action, which  challenged the adequacy  of the            1990-91 IEP.   The simple response is that the  defendants to            the  previous  action  could  not  have  made  a  limitations            defense.  M.G.L. c. 30A,   14(1) starts the limitations clock            running  upon "receipt of notice of the final decision of the            agency or if a  petition for rehearing has been  timely filed            with the agency,  within thirty days after  receipt of notice            of agency denial of such petition for rehearing."  The Amanns            filed a motion for  a rehearing of the BSEA's  1990 decision.            Amann  v.  Stow School  System, 982  F.2d at  648.   The BSEA            _____      ___________________            denied  the motion  on October  15, 1990.   The  Amanns filed            their first IDEA complaint  on November 13, 1990, twenty-nine            days  after the BSEA denied their motion for a rehearing, and            therefore  within  the  thirty-day limitations  period.    We            cannot  fault the  defendants for failing  to make  a defense            they did not have.                 Finally, the Amanns say  that the new limitations period            should not be "retroactively applied" to their case.  But the                                         -12-            practice  of  making judicial  decisions  "fully retroactive,            applying  both to  the parties  before the  court and  to all            others by  and against whom  claims may be  pressed . .  . is            overwhelmingly  the   norm,  and  is  in   keeping  with  the            traditional  function of  the courts  to decide  cases before            them based upon their best current understanding of the law."            James B. Beam Distilling Co. v. Georgia, 111 S.Ct. 2439, 2443            ____________________________    _______            (1991).                 The Supreme Court has, on occasion, made an exception to            the rule of retroactivity.   Under Chevron Oil Co.  v. Huson,                                               _______________     _____            404  U.S.  97,  106-107   (1971),  the  Court  "has  accepted            prospectivity . . . where a decision displaces a principle of            law on which  reliance may reasonably  have been placed,  and            where prospectivity is on balance  warranted by its effect on            the  operation of  the new  rule and  by the  inequities that            might otherwise result from retroactive application."   James                                                                    _____            B. Beam Distilling Co. v. Georgia, 111 S.Ct. at 2445.              ______________________    _______                 This is not such a case.  The Supreme Court has declined            to apply new limitations  rules retroactively where to  do so            would  be "to  bar an  action that  was timely  under binding            Circuit precedent."  Lampf, Pleva, Lipkind, Prupis & Petigrow                                 ________________________________________            v.  Gilbertson, 111  S.Ct. 2773,  2786 (1991)  (O'Connor, J.,                __________            dissenting).   For example, in  Saint Francis College  v. Al-                                            _____________________     ___            Khazraji, 481  U.S. 604,  608-609 (1987), the  Court affirmed            ________            the prospective application of  a new limitations period that                                         -13-            "overruled  clearly established  Circuit precedent"  on which            the  plaintiff had relied in  filing suit.   See also Chevron                                                         ________ _______            Oil Co.  v. Huson,  404 U.S.  at 107  (prospectively applying            _______     _____            limitations rule  that "effectively overruled a  long line of            decisions by the Court of Appeals").                 But  the   Court  has  applied  new   limitations  rules                                   ___            retroactively  where  to  do  so would  not  "overturn[]  the            reasonable expectations  of a  party."  Rowlett  v. Anheuser-                                                    _______     _________            Busch,  Inc., 832 F.2d  194, 198 (1st  Cir. 1987).   Thus, in            ____________            Goodman v. Lukens Steel Co., 482 U.S. 656, 662-63 (1987), the            _______    ________________            Court   affirmed  the   retroactive  application  of   a  new            limitations  period  where  there  had  previously  been  "no            authoritative specification of  which statute of  limitations            applied" to plaintiffs' claim,  "and hence no clear precedent            on which [plaintiffs] could have relied when they filed their            complaint."                 Here,  as in  Goodman,  there was  "no clear  precedent"                               _______            favoring a longer limitations  period on which the appellants            can  claim to have relied while deciding whether to file suit            under the IDEA  between September  1991 and May  1992.   This            court  had  not  then  decided  the  limitations  issue,  the            circuits that had done  so were split, and the  only existing            decisional  law among  the  district courts  in this  circuit            pointed to a thirty-day limitations period.                                           -14-                 As to the remaining Chevron factors, the appellants have                                     _______            not  identified,   and  we   do  not  see,   how  retroactive            application  would hinder  the  operation of  the  thirty-day            limitations  rule or the administration of the IDEA.  This is            not  a case like Linkletter  v. Walker, 381  U.S. 618, 636-38                             __________     ______            (1965),  in which  the  Court decided  to apply  the then-new            exclusionary  rule only  prospectively since  the purpose  of            rule,  to deter illegal  police action,  would not  have been            furthered  by  retroactive  application  to  cases  in  which            illegal conduct  had already occurred,  and since retroactive            operation would have  "tax[ed] the administration  of justice            to  the utmost."  Nor will retroactive application of the new            limitations rule "result in  inequity to the [appellants] who            are charged  with knowledge that [the  limitations period for            IDEA actions]  was an unsettled question,"  Goodman, 482 U.S.                                                        _______            at 663, and who received a notice telling them that they only            had thirty days in which to sue.                 Because we  affirm the dismissal on the merits, we again            need not decide whether  Mr. Amann, a non-lawyer  acting "pro                                                                      ___            se,"  was capable  of representing  his son  on appeal.   See            __                                                        ___            Amann v. Stow School District, 982 F.2d at 648 n.2.  See also            _____    ____________________                        ________            Norton  v. Mathews,  427 U.S.  524, 532  (1976); Narragansett            ______     _______                               ____________            Indian Tribe v. Guilbert, 934 F.2d 4, 8 n.5 (1st Cir. 1991).            ____________    ________                 Affirmed.                 _________                                         -15-
