          United States Court of Appeals
                      For the First Circuit


No. 17-2214

                    MS. S., individually and
         as parent and legal guardian of B.S., a minor,

                       Plaintiff, Appellee,

                                v.

                     REGIONAL SCHOOL UNIT 72,

                       Defendant, Appellant,

                  MAINE DEPARTMENT OF EDUCATION,

                            Defendant.

No. 18-1004

                    MS. S., individually and
         as parent and legal guardian of B.S., a minor,

                       Plaintiff, Appellee,

                                v.

                  MAINE DEPARTMENT OF EDUCATION,

                       Defendant, Appellant,

                     REGIONAL SCHOOL UNIT 72,

                            Defendant.


          APPEALS FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

              [Hon. Jon D. Levy, U.S. District Judge]
                             Before

                    Lynch, Selya, and Lipez,
                         Circuit Judges.


     Eric R. Herlan, with whom Drummond Woodsum & MacMahon were on
brief, for appellant, Regional School Unit 72.
     Sarah A. Forster, Assistant Attorney General, with whom
Thomas A. Knowlton, Assistant Attorney General, Of Counsel, and
Phyllis Gardiner, Assistant Attorney General, were on brief, for
appellant, Maine Department of Education.
     Richard L. O'Meara, with whom Murray, Plumb & Murray was on
brief, for appellee.


                        February 15, 2019
             LYNCH,   Circuit   Judge.     These   appeals   stem   from   a

complaint filed by Ms. S. with the Maine Department of Education

("MDOE") in May 2013 alleging violations of the Individuals with

Disabilities Education Act ("IDEA"). The state due process hearing

officer dismissed as untimely Ms. S.'s claims about her son B.S.'s

education in school years 2009-2010 and 2010-2011 and found no

violations as to school years 2011-2012 and 2012-2013.

             In this second decision from this court, we hold that

Maine has established a two-year statute of limitations for due

process complaints and that it has done so to align its statute of

limitations with the IDEA's.       Ms. S.'s claims about 2009-2010 and

2010-2011 are thus time barred.      More specifically, we reverse the

district court's ruling that our earlier decision in Ms. S. v.

Regional School Unit 72 (Ms. S. I), 829 F.3d 95 (1st Cir. 2016),

foreclosed     this   interpretation     of    Maine's   Unified    Special

Education Regulation ("MUSER"), as well as the district court's

judgment that Ms. S.'s claims were timely.           See MS. S. v. Reg'l

Sch. Unit 72, No. 2:13-CV-453-JDL, 2017 WL 5565206, at *7-11 (D.

Me. Nov. 20, 2017).      And we reject Ms. S's proposed construction

of MUSER, her waiver argument, and her contention that Regional

School Unit 72 ("RSU 72") misled her.         We remand with instructions

to dismiss her action with prejudice.




                                   - 3 -
                                       I.

A.   Legal Background

     1.     The IDEA

            The     IDEA    requires   states    receiving   federal       special

education     funds    to    provide    eligible    children   with    a     free

appropriate public education, or FAPE.              20 U.S.C. § 1412(a)(1).

Parents concerned that their child is not receiving a FAPE can

request a due process hearing before a "State educational agency"

in accordance with procedures "determined by State law or by the

State educational agency."        Id. § 1415(f)(1)(A).       State procedures

must be consistent with the IDEA's guidelines, which are laid out

at 20 U.S.C. § 1415.          See Burlington v. Dep't of Educ. for the

Comm. of Mass., 736 F.2d 773, 783-85 (1st Cir. 1984).

            Section 1415 did not initially include a statute of

limitations, but when Congress reauthorized the IDEA in 2004, it

addressed     the     timeline   for    due     process   hearings    in    three

provisions.       First, at § 1415(b)(6)(B), in a subsection covering

various "[t]ypes of procedures," the IDEA states that a party may

file a complaint that:

     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 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.



                                       - 4 -
20 U.S.C. § 1415(b)(6)(B) (emphasis added).

          Second,   § 1415   describes   due   process   hearings   with

particularity, at § 1415 (f).    Section 1415(f)(3)(C) provides:

     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.

Id. § 1415(f)(3)(C) (emphasis added).

          Third, the statute outlines the "[e]xceptions to the

timeline" referenced at § 1415(b)(6)(B).        One exception applies

where "the parent was prevented from requesting the hearing due

to . . . specific   misrepresentations    by   the   local   educational

agency that it had resolved the problem forming the basis of the

complaint."   Id. § 1415(f)(3)(D).

          In 2015, the Third Circuit held in G.L. v. Ligonier

Valley School District Authority, 802 F.3d 601, 604-05 (3d Cir.

2015), that "§ 1415(b)(6)(B) is simply an inartful attempt to

mirror § 1415(f)(3)(C)'s two-year statute of limitations."           In

2017, the Ninth Circuit concluded the same.      See Avila v. Spokane

Sch. Dist. 81, 852 F.3d 936, 937 (9th Cir. 2017).

     2.   MUSER

          In 2007, Maine enacted a state-specific time limitation,

which is provided in MUSER.     MUSER mirrors the language of the




                                - 5 -
IDEA.    First, MUSER § XVI.5.A(2) tracks the language of 20 U.S.C.

§ 1415(b)(6)(B) and states:

             The due process hearing request must allege a
             violation that occurred not more than two
             years before the date the parent . . . knew or
             should have known about the alleged action
             that forms the basis of the due process
             hearing request.

Me. Code R. 05-071, Ch. 101 ("MUSER") § XVI.5.A(2) (emphasis

added).    Second, MUSER § XVI.13.E tracks the language of 20 U.S.C.

§ 1415(f)(3)(C) and reads:

             A parent . . . must request an impartial
             hearing on their due process hearing request
             within two years of the date the parent or
             agency knew or should have known about the
             alleged action that forms the basis of the due
             process hearing request.

Id. § XVI.13.E (emphasis added).            Third, at § XVI.13.F, MUSER

describes     the   "[e]xceptions    to     the    timeline"   provided   at

§ 1415(f)(3)(D) of the IDEA.        Id. § XVI.13.F.

B.      Procedural Background

             Our decision in Ms. S. I offers background on B.S.'s

education.     See 829 F.3d at 100–02.        Here, we give the relevant

procedural facts.

             Ms. S. filed a due process hearing request in May 2013

alleging that B.S. had not received a FAPE in his four years of

high school, from 2009 through 2013.              The Maine hearing officer

dismissed as untimely the claims about B.S.'s ninth and tenth grade

years because they had been filed more than two years after Ms. S.



                                    - 6 -
knew or should have known of any IDEA violations.        On B.S.'s

eleventh and twelfth grade years, the hearing officer determined

that B.S. had received a FAPE, except during a short period when

he was between schools.

          Ms. S. sought judicial review in federal district court.

She did not contest that the ninth and tenth grade claims had been

filed more than two years after the reasonable discovery date.

Instead, she challenged MUSER's two-year statute of limitations as

invalid under the Maine Administrative Procedure Act ("MAPA").

The time periods at MUSER §§ XVI.5.A(2) and XVI.13.E had been

changed from four to two years in a 2010 rulemaking.        Ms. S.

alleged that procedural errors during that rulemaking invalidated

the change in the time period at § XVI.13.E.   About § XVI.5.A(2),

she argued not that the change was invalid but that it was

irrelevant: § XVI.5.A(2), she said, established not a statute of

limitations but a separate "look-back term" restricting relief to

violations that occurred up to two years before the reasonable

discovery date.

          The district court ruled that the revision of the statute

of limitations to two years was valid and that Ms. S. could not

bring her claims about B.S.'s ninth and tenth grade years under

the specific misrepresentation exception.   The district court also

agreed with the hearing officer's FAPE determination.       Ms. S.




                              - 7 -
appealed. The school district, as appellee, defended against her

claims of error.

            Our first decision in Ms. S. I affirmed the district

court's FAPE judgment.        829 F.3d at 113-15.   The decision vacated

and remanded on the timing issue after finding errors in the

district court's application of MAPA.         Id. at 100.       Ms. S. I did

not rule on the statute of limitations issue.             Holding that the

record was "insufficient," we remanded to the district court for

further factfinding and reevaluation.         Id.

            On remand, the district court immediately granted MDOE

leave to intervene, limited to the issue of whether MUSER had a

valid two-year statute of limitations.1             MDOE was ordered to

"compile    a   record   of   relevant   administrative   and    legislative

proceedings," and it later submitted over 500 pages of materials.

In her briefing, Ms. S. maintained that the change at § XVI.13.E

was void under MAPA.      MDOE and RSU 72 offered a reworking of their

view of the legal framework: the two MUSER provisions, they argued,

mirror the IDEA and, like that statute, establish a single statute

of limitations, not a statute of limitations and a "look-back

term."     Rejecting MDOE and RSU 72's reading as foreclosed by Ms.

S. I, the district court agreed with Ms. S.'s MAPA arguments and



     1    The district court rejected MDOE's request to intervene
on a second question: whether B.S. had received a FAPE in ninth
and tenth grades.


                                    - 8 -
held that her claims were timely.       RSU 72 and MDOE both appealed

to this court.

                                II.

           We address two threshold arguments before turning to the

timing limitations question.

A.   Law of the Case

           "The law of the case doctrine 'posits that when a court

decides upon a rule of law, that decision should continue to govern

the same issues in subsequent stages in the same case.'"         United

States v. Moran, 393 F.3d 1, 7 (1st Cir. 2004) (quoting Arizona v.

California, 460 U.S. 605, 618 (1983), supplemented by 466 U.S. 144

(1984)).   One form of the doctrine, known as the mandate rule,

prohibits a trial court from reopening issues decided by an earlier

appellate ruling in the same case.      Id.   According to the district

court, Ms. S. I "viewed the MUSER Look-Back Term and Filing

Limitation rules as separate, 'unambiguous' provisions."       Ms. S.,

2017 WL 5565206, at *6.    That "construction of the MUSER rules in

this case, as the law of the case, is controlling," the district

court held.   Id. at *7.   The application of the law of the case

doctrine is a question of law, which we review de novo.       Buntin v.

City of Boston, 857 F.3d 69, 72 (1st Cir. 2017).

           Another form of the doctrine binds successor appellate

panels to holdings of earlier appellate panels.       Id.   This branch

of the doctrine is "flexible," and has its exceptions.        Ellis v.



                                - 9 -
United States, 313 F.3d 636, 646 (1st Cir. 2002); see also Bryan

Garner et al., The Law of Judicial Precedent § 59 (2016) (detailing

exceptions).    The parties spar over whether Ms. S. I bars us from

considering     the    theory   that   the   two       provisions    of     MUSER,

§§ XVI.5.A(2)     and    XVI.13.E,     contain     a     single     statute     of

limitations.

           For the law of the case doctrine to be a bar in either

form, the issue must have been "'actually considered and decided

by the appellate court,' or a decision on the issue must be

'necessarily inferred from the disposition on appeal.'"                   Field v.

Mans, 157 F.3d 35, 40 (1st Cir. 1998) (quoting Commercial Union

Ins. Co. v. Walbrook Ins. Co., Ltd., 41 F.3d 764, 770 (1st Cir.

1994)).   In short, "[p]rior holdings, as opposed to dicta, measure

the rule's reach."      Garner et al., supra, § 54.

           Ms. S. I did not reach the issues involved here.                   The

district court concluded that our prior opinion had held that MUSER

contained both a look-back term and a filing limitation.                       The

opinion did no such thing.        The parties did not dispute and did

not brief the MUSER interpretive issue now before us.                     Instead,

Ms. S. I simply used the terminology the parties had used in the

briefs, which described § XVI.5.A(2) as the "look-back term" and

§ XVI.13.E as the "filing limitation."           This reading was not, as

M. S. calls it, a "basic legal conclusion . . . central to [Ms. S.

I's] analysis."       It was presented only as "[b]ackground."             Ms. S.


                                   - 10 -
I, 829 F.3d at 100-02.     And MUSER played no essential role,

explicit or implicit, in any of Ms. S. I's remand instructions to

the   district   court.   The    prior   panel's   first   two   remand

instructions both dealt only with state administrative law.         See

id. at 105-09.     And the third ordered the district court to

"reevaluate the[] content" of certain legislative materials.2       Id.

at 112.

          Independently, even if a holding from Ms. S. I did

overlap (and none do) with an issue we are now asked to consider,

the law of the case doctrine would not be a hurdle.        An exception

to the doctrine would justify our addressing the issues here:

Everything the panel majority said in Ms. S. I was provisioned on

the "insufficient" record in that first appeal.            Id. at 100.

Decisions made on an "inadequate record or . . . designed to be

preliminary or tentative" are excepted from the law of the case




      2   In guiding the district court's use of legislative
evidence, Ms. S. I did remark on MUSER. Ms. S. had argued that
courts can never look at legislative intent in evaluating MAPA
compliance, so we noted that "[o]rdinarily, the Law Court does not
look beyond language approved by the Legislature to determine the
Legislature's intent where, as here, the language is unambiguous."
Ms. S. I, 829 F.3d at 110.     This was not a holding that MUSER
unambiguously contains two separate timing requirements.       Our
directive to the district court was evidence-specific and
emphatically was not that legislative intent is irrelevant because
of MUSER's clarity. See id at 110-12. Further, what we found
clear was circumscribed: that the proposed version of § XVI.13.E
said "four," not "two." Id. at 110.


                                - 11 -
doctrine.     Ellis, 313 F.3d at 647.3        In sum, the law of the case

doctrine does not bar consideration of the theory that MUSER has

one statute of limitations mirroring the IDEA's.            The district

court erred.

B.   Waiver

            We must deal with one more objection.         Ms. S. contends

that the doctrine of waiver prohibits RSU 72 from arguing that

MUSER has a single statute of limitations because RSU 72 did not

do so in its briefing in Ms. S. I.4          RSU 72 was the appellee, not

the appellant, in Ms. S. I.          While "an appellee might in some

situations     be   required   to    raise"    an   alternative   argument

supporting affirmance "in its appellate briefs" to preserve that

argument for later appeals, this court found no waiver of such an

argument in Field v. Mans.      See 157 F.3d at 41-42; see also Field



     3    Relevant changes in the law –- notably, other circuits'
determinations that the IDEA contains a single statute of
limitations -- and in the facts -- including new administrative
and legislative evidence -- reinforce our conclusion that
reconsideration is proper. Cf. Nkihtaqmikon v. Impson, 585 F.3d
495, 498 (1st Cir. 2009) ("We could revisit our own earlier
decision if [the appellant] could show that controlling legal
authority has changed dramatically; [or could] proffer significant
new evidence, not earlier obtainable in the exercise of due
diligence" (internal quotation marks omitted)); Garner et al.,
supra, § 59 ("[I]n exceptional circumstances involving a dramatic
change in controlling legal authority, a court may deviate from
the law of the case.").
     4    RSU 72 developed the argument that MUSER has a single
statute of limitations mirroring the IDEA's on remand in the
district court.


                                    - 12 -
v. Mans, 516 U.S. 59, 78-79 (1995) (Ginsburg, J., concurring)

(suggesting     that    the    argument      was   not   waived    and    should   be

considered in future proceedings).                In United States v. Moran, we

also found no waiver of claims of error which were not raised by

defendants         as     appellees          in      prior      appeal      of      a

"judgment . . . entirely favorable to the appellee."5                    393 F.3d at

12.

             These cases reflect the general rule that "the failure

of an appellee to have raised all possible alternative grounds for

affirming    the    district       court's    original       decision,   unlike    an

appellant's failure to raise all possible grounds for reversal,

should    not   operate       as   a   waiver."       Schering    Corp.    v.    Ill.

Antibiotics Co., 89 F.3d 357, 358 (7th Cir. 1996);6 see also, e.g.,



      5   Ms. S. leans heavily on Moran, but that case does not
support her position. Moran ultimately found no waiver by former
appellees, reasoning that they had not been required to raise in
the first appeal "irrelevant" or "redundant" arguments. 393 F.3d
at 12 (quoting Field, 157 F.3d at 41-42).
      6   Ms. S. embraces Schering Corp., 89 F.3d at 358-59, but
it hurts rather than helps her. The Seventh Circuit found waiver
by a former appellee in circumstances entirely unlike these. The
court found waiver of a challenge, omitted in the first appeal, to
a trial court's ruling excluding evidence supporting affirmance.
See id. In the second appeal, the former appellee sought to reopen
the previous ruling based on "newly discovered evidence" -- i.e.,
the evidence excluded by the district court and not raised in the
first appeal. Id. at 359. Schering explicitly distinguished that
situation from the one we face, in which "an alternative ground
for affirmance [was omitted] in the previous round" by appellee
and no waiver of that argument would be found on subsequent appeal.
Id. at 358.


                                        - 13 -
Eichorn v. AT&T Corp., 484 F.3d 644, 657–58 (3d Cir. 2007) ("As

[appellees in the previous appeal], [defendants] were not required

to raise all possible alternative grounds for affirmance to avoid

waiving those grounds."); Indep. Park Apartments v. United States,

449 F.3d 1235, 1240 (Fed. Cir.), decision clarified on reh'g, 465

F.3d 1308 (Fed. Cir. 2006) ("As appellee, the government was not

required to raise all possible alternative grounds for affirmance

in order to avoid waiving any of those grounds."); Crocker v.

Piedmont Aviation, Inc., 49 F.3d 735, 740 (D.C. Cir. 1995) (finding

no waiver of issue omitted in prior appeal by then-appellee).

            The   differing   roles   of   appellees   and   appellants   in

framing the issues and in presenting arguments justifies differing

waiver rules on subsequent appeal.          See Crocker, 49 F.3d at 741

(weighing     appellees'      "procedural     disadvantage").          This

differentiation also makes practical sense: application of the

waiver rule to former appellees' omitted arguments would create

"judicial diseconomies."      Id. at 741 (emphasis omitted); see also

Field, 157 F.3d at 41-42.         It would fuel a multiplication of

arguments by appellees, even if "entirely redundant."           Field, 157

F.3d at 42; see also Crocker, 49 F.3d at 740 ("[F]orcing appellees

to put forth every conceivable ground for affirmance might increase

the complexity and scope of appeals.").         And it would incentivize

"dubious    cross-appeal[s]"    by    appellees   to    fully   air   their




                                  - 14 -
alternative grounds.    Field, 157 F.3d at 41-42; see also Crocker,

49 F.3d at 741.

             Whether application of this general rule is justified

"depends on the particular facts" of the case.   Field, 157 F.3d at

41.   And the facts do not support a finding of waiver in RSU 72's

appeal.    Ms. S., as appellant, not RSU 72, as appellee, "defined

the battleground on the first appeal."     Crocker, 49 F.3d at 740.

Her briefing adopted the look-back term and filing limitation

framework.     To be sure, RSU 72 had an opportunity to advance a

one-statute-of-limitations reading in its response brief in Ms. S.

I, as the basis for an alternative ground on which it should

prevail.   But it would have been difficult, if not impossible, for

RSU 72's response brief to both defend the district court's

decision and to present, as the basis for an alternative ground,

a reworking of the interpretative framework assumed by the district

court.    And, had RSU 72 done this, it would not have had a chance

to answer Ms. S.'s reply brief.

             Further, as Ms. S. has conceded, the argument does not

apply to MDOE because MDOE was not a party to the first appeal.

MDOE, like RSU 72, reads MUSER to contain a single statute of

limitations, and has strongly urged us to so hold.     As MDOE and

RSU 72 argue, the issue at hand is one of "public concern" --

timelines for IDEA due process hearings affect children, parents,

school districts, states, and taxpayers.       Nat'l Ass'n of Soc.


                                - 15 -
Workers v. Harwood, 69 F.3d 622, 629 (1st Cir. 1995).         There is a

strong public interest in a clear and correct ruling on the purely

legal question of how to read Maine's statute of limitations for

IDEA due process hearings.      See id. at 627-29 (finding no waiver

of publicly important and compelling legal argument); Sindi v. El-

Moslimany, 896 F.3d 1, 28 (1st Cir. 2018) (same).

C.   MUSER's Statute of Limitations

     1.    Interpreting the Regulation

           We   hold   that   Maine   intended   to   adopt   a   two-year

limitations period that mirrors the IDEA's timing provisions. This

intent is evident from the language of the provisions: as noted,

MUSER § XVI.5.A(2) mirrors 20 U.S.C. § 1415(b)(6)(B) and MUSER

§ XVI.13.E mirrors 20 U.S.C. § 1414(f)(C)(3).          Further, at § I,

MUSER states, "[t]hroughout this regulation the Department has

reflected the federal statute and regulatory requirements in non-

italicized text," while, "State requirements are in italicized

text."    MUSER § I.    The provisions that concern us contain no

relevant italics; they vary little from the "federal statute and

regulatory requirements."7

           So, we turn to the IDEA to determine how to read MUSER.

The federal Department of Education stated in 2016 that "[t]he



     7    Only a state-specific acronym -- "SAU," or school
administrative unit -- is italicized in the provisions. See MUSER
§§ XVI.5.A(2), XVI.13.E.


                                 - 16 -
statute of limitations in section [1415(b)(6)(B)] is the same as

the     statute     of   limitations       in     section       [1415(f)(3)(C)]."

Assistance     to    States    for   the       Education    of    Children   with

Disabilities and Preschool Grants for Children With Disabilities,

71 Fed. Reg. 46,540, 46,706 (Aug. 14, 2006).                    We hold that the

IDEA has a single two-year statute of limitations regulating the

amount of time to file a complaint after the reasonable discovery

date.    In holding this, we join the Third and Ninth Circuits.                 See

G.L., 802 F.3d at 604-05; Avila, 852 F.3d at 937.

             When   Congress   writes      a    statute    of    limitations,    it

chooses a rule from among several types.              See, e.g., TRW Inc. v.

Andrews, 534 U.S. 19, 32 (2001) (discussing various types).                     One

option is the occurrence rule -- that is, counting from the date

of the violation.        See G.L., 802 F.3d at 613.             Another option is

the discovery rule, which counts from the date of discovery.                    See

id.   Section 1415(b)(6)(B) defies categorization: in counting from

the injury date to the reasonable discovery date, it appears to be

a hybrid of these two rules.          Like our sister circuits, we doubt

that Congress intended to invent a new type of timing limit or to

sneak a "remedy cap" into § 1415(b)(6)(B).                See G.L., 802 F.3d at

613-15; Avila, 852 F.3d at 941-42.                Indeed, the Third Circuit

traced the hints of the occurrence rule in § 1415(b)(6)(B) to a

drafting error during the reconciliation of the House and Senate

versions of the 2004 IDEA reauthorization.             G.L., 802 F.3d at 622-


                                     - 17 -
23 (explaining that the House version had used the occurrence rule

and identifying errors in conforming that version to the Senate's).

Section 1415(f)(3)(C), on the other hand, is clear: it establishes

a discovery rule.   As a result, in the IDEA, a single "discovery

rule controls."   G.L., 802 F.3d at 613.

          Ms. S. disputes that MUSER can also be read to establish

a two-year statute of limitations but not a look-back term.     She

points primarily to MUSER's language.      But the reference to the

date of the "alleged action" in the text of § XVI.5.A(2) is a

replication of the IDEA's drafting mistake, not evidence that Maine

intended to set up two separate state standards.     Unconvinced by

Ms. S.'s textual arguments, we conclude that MUSER follows the

IDEA in establishing a single statute of limitations that runs

from the reasonable discovery date to the filing date.

          In addition to being contrary to the state's intent in

designing MUSER, Ms. S.'s reading could put MUSER in active

conflict with federal law.   Because "§ 1415(b)(6)(B) is simply an

inartful attempt to mirror § 1415(f)(3)(C)'s two-year statute of

limitations," G.L., 802 F.3d at 604-05; see also Avila, 852 F.3d

at 942, the IDEA likely authorizes states to enact a single state-

specific statute of limitations, not a look-back term and a filing

limitation.   In fact, most states that have chosen to enact a

state-specific "explicit time limitation," see G.L., 802 F.3d at

617, including Massachusetts, see Michelle K. v. Pentucket Reg'l


                              - 18 -
Sch. Dist., 79 F. Supp. 3d 361, 372-73 (D. Mass. 2015) (discussing

BSEA Hearing Rule I(C)), and New Hampshire, see N.H. Rev. Stat.

Ann. § 186–C:16–b, I; see also Pass v. Rollinsford Sch. Dist., 928

F. Supp. 2d 349, 364 (D.N.H. 2013), have done just that: enacted

a single statute of limitations.       Ms. S. points to no states that

have adopted a look-back term and a filing limitation.

        2.     Application to Ms. S.'s Claims

               It follows that Ms. S.'s claims about the 2009-2010 and

2010-2011 school years were untimely when filed in May 2013.         As

Ms. S. concedes, these claims alleged violations that Ms. S. knew

or should have known about during school years 2009-2010 and 2010-

2011.    The claims were more than two years old when filed, and the

version of MUSER in force in May 2013 stated that the statute of

limitations was two years.        MUSER §§ XVI.5.A(2), XVI.13.E.    The

district court erred in ruling that Ms. S.'s claims were timely.

               We have no reason to reach the state law issue of whether

the MDOE complied with MAPA in promulgating the 2010 amendments to

MUSER.       It does not affect the outcome of the case.   If there were

no state law procedural errors during the rulemaking or if the

errors were insubstantial or harmless, then MUSER's statute of

limitations was validly set at two years as a matter of state

procedural law.       See 5 Me. Rev. Stat. Ann. § 8058(1).    Likewise,

if procedural errors were to render the change from four to two at

§ XVI.13.E void under MAPA, then we would conclude that Maine


                                   - 19 -
lacked a valid "explicit time limitation" and so the federal

default, also set at two years, would apply.               See 20 U.S.C.

§§ 1415(b)(6)(B); 1415(f)(3)(C) (emphasis added).

             The dissent concedes that the IDEA sets a single time

limitations    period   for   due   process   hearings;   that   MUSER   "is

intended to track the federal law"; and (as does Ms. S.) that the

time limit at § XVI.5.A(2) was validly changed to two years during

the   2010   rulemaking.      Nonetheless,    the   dissent   rejects    our

conclusion that, if there were invalidating procedural errors, the

federal default would step in.          It protests that we should not

apply the federal default because the IDEA does not require states

to adopt the federal limitations period.         That is true, but it is

beside the point here.        MDOE has consistently taken the position

that MUSER's timing provisions parallel the IDEA's in structure.

Significantly, during the 2010 rulemaking, MDOE's concise summary

in the rulemaking Notice explained that "the statute of limitations

for due process hearings will be changed to the federal standard

of two years."    That is, MDOE has always viewed MUSER's statute of

limitations as tracking the federal law's.8         The IDEA only provides


      8   Although the dissent agrees that MUSER tracks the
federal law, it suggests that MDOE has not always held this view.
It embraces Ms. S.'s unsupported assertion that a 2011 decision by
an MDOE hearing officer, which, in dicta, described § XVI.5.A(2)
and § XVI.13.E as distinct, represented the accepted understanding
among MDOE hearing officers. But MDOE emphasizes that Ms. S. has
pointed to no other, similar statements by hearing officers. And
even if she had, MDOE, whose hearing officers are independent, cf.


                                    - 20 -
for one statute of limitations,9 so it follows that if the 2010

rulemaking    somehow   left   Maine   with   two   different   limitations

periods, the state lacked its intended "explicit time limitation,"

and the federal default should govern.

             In short, a two-year statute of limitations was in force

in 2013 when MS. S. filed her due process hearing request and that

request was therefore untimely.

D.   Specific Misrepresentation Exception

             Ms. S. finally argues that, even if a two-year statute

of limitations applies, her claims should be allowed under the

specific misrepresentation exception.           Ms. S. claims that she

failed to file earlier because of statements by the district that

B.S.'s academic performance made him ineligible for IDEA services.

As Maine has implemented the IDEA, academic as well as "functional"

performance determine eligibility.         MUSER § II.10-II.11; see also

Mr. I v. MSAD No. 55, 480 F.3d 1, 11 (1st Cir. 2007) (describing




MUSER § XVI.4.A(4)(c) (requiring the state to enforce due process
hearing decisions), says that it has never adopted the view
expressed in the hearing officer's 2011 dicta.      MDOE is best
positioned to state its views.
     9    Contrary to the dissent's suggestion, it is immaterial
to this case that the Third Circuit's decision in G.L. holding
that the IDEA contains a single time limitation for due process
hearings post-dated the 2010 rulemaking.     G.L. held, as we do
today, that the IDEA has contained a single statute of limitations
since the relevant provisions' enactment in 2004.


                                  - 21 -
how federal and state regulations interact to define IDEA-eligible

disabilities).

               The district court, in its first decision, determined

that    Ms.    S.    did     not    qualify       for     the    exception   because    no

misrepresentations had occurred. We declined to consider the issue

then.   Ms. S. I, 829 F.3d at 113.                  Ms. S. does not cross appeal it

here but raises it as an alternative ground for relief.

               The record reveals no misrepresentations –- intentional

or otherwise.        The school district never told Ms. S. that academic

performance         alone    determined          eligibility.        Rather,   district

employees, as the record and the district court's first decision

show,    discussed         B.S.'s        academic    performance      alongside      other

factors, like his social, behavioral, and emotional development.

We hold that Ms. S.'s claims regarding B.S.'s ninth and tenth grade

years    are    not     allowed          under    the     specific   misrepresentation

exception to MUSER's statute of limitations.

                                            III.

               We   reverse        and    remand     to    the    district   court    with

instructions to dismiss with prejudice.



                            -Dissenting Opinion Follows-




                                            - 22 -
           LIPEZ, Circuit Judge, dissenting.             From the vantage

point of hindsight, my colleagues conclude that a clarifying

interpretation of federal law rendered for the first time in 2015

cleanses an improper state administrative process that occurred

five years earlier. I cannot agree that we should ignore the flaws

in the rulemaking process and disregard the purpose of the bypassed

procedures: to ensure that the public and Legislature understand,

and have an opportunity to comment on, important changes in the

law. In my view, the procedural irregularity requires us to affirm

the district court's conclusion that a four-year filing deadline

applies to Ms. S.'s claims.      Accordingly, I respectfully dissent.

                                      I.

           The statute-of-limitations question at the heart of this

appeal has perplexed both the parties and the courts from the

outset of the case.     In the prior round of decisions, the district

court and our panel were challenged by an inadequate record

and -- as it turns out -- the parties' incorrect assumptions about

the substance of the two provisions of the federal Individuals

with Disabilities Education Act ("IDEA") that govern the timeline

for   requesting   a   hearing   on   the    claimed   denial   of   a   "free

appropriate public education" ("FAPE").          See Ms. S. v. Reg'l Sch.

Unit 72, 829 F.3d 95 (1st Cir. 2016) ("Ms. S. I"); 20 U.S.C.

§§ 1415(b)(6)(B), 1415(f)(3)(C).           To some extent, those problems

have now been addressed.     With respect to the IDEA, the thoughtful


                                  - 23 -
analysis by the Third Circuit in G.L. v. Ligonier Valley School

District     Authority,       802    F.3d    601,     611-26       (3d    Cir.    2015),

persuasively demonstrates that the IDEA has a single two-year

statute of limitations.             Accord Avila v. Spokane Sch. Dist. 81,

852   F.3d    936,     940-44     (9th     Cir.    2017).      As    for    the    Maine

administrative         process,     the    parties   on     remand       "compiled    and

submitted a more complete record of the rulemaking proceedings"

that underlie the state law question.                 Ms. S. v. Reg'l Sch. Unit

72, No. 2:13-cv-453-JDL, 2017 WL 5565206, at *5 (D. Me. Nov. 20,

2017) ("Ms. S. II").

             The new light shed by the recent IDEA interpretation and

the   expanded     state      administrative       record    does        not,    however,

justify the outcome reached by my colleagues.                  Indeed, as I shall

explain,     it   is    now   even    more    apparent      that    the    limitations

provisions were unclear for a substantial time.                           The lack of

clarity contributed to the improper method by which the Maine

Department of Education ("MDOE" or "the Department") attempted to

change the filing deadline under Maine's Unified Special Education

Regulation ("MUSER") for claims asserting denial of a FAPE.                          That

flawed attempt should prevent us from finding Ms. S.'s claims time-

barred.10


      10
       Because I conclude that, notwithstanding the new arguments
offered by the MDOE, Ms. S.'s claims are not barred by a regulatory
filing deadline, I do not address the issues of waiver or law of
the case.


                                          - 24 -
A.   The Timeline for FAPE Challenges

             Like the majority, I agree with the fully elaborated

conclusion of the Third Circuit that the two IDEA provisions

pertinent    to    this    case    set    a   single   limitations    period    for

requesting     a    FAPE     due    process       hearing.      See   20   U.S.C.

§ 1415(b)(6)(B), (f)(3)(C).              I also agree that the equivalent

provisions in Maine's analogue to the IDEA -- MUSER -- are intended

to track the federal law. See Me. Code R. 05-071, Ch. 101 ("MUSER")

§§ XVI.5.A(2),      XVI.13.E.11          In   other    words,   contrary   to   the

position accepted by both parties in the prior appeal, neither the

IDEA nor MUSER has a separate "lookback" provision that limits the

remedy for a violation of the FAPE requirement to the two years

preceding the reasonable discovery date for the violation.                      See

G.L., 802 F.3d at 604-05 (observing that "§ 1415(b)(6)(B) is simply

an inartful attempt to mirror § 1415(f)(3)(C)'s two-year statute

of limitations").         Rather, the remedial period has no fixed limit,



      11
       Section XVI.5.A(2) largely incorporates the language of 20
U.S.C. § 1415(b)(6)(B) and currently provides that a "due process
hearing request must allege a 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 due process hearing request."
     Section XVI.13.E closely tracks the language of 20 U.S.C.
§ 1415(f)(3)(C) and currently provides that "[a] parent or
agency must request an impartial hearing on their due process
hearing request within two years of the date the parent or agency
knew or should have known about the alleged action that forms the
basis of the due process hearing request."


                                         - 25 -
but the plaintiff must file a FAPE challenge within two years of

the date the alleged violation was, or reasonably should have been,

discovered.     See id. at 616, 620-21.

             Under the IDEA, the filing deadline has been two years

since Congress first adopted a limitations period in 2004.              Id. at

608-09.      Although the text of the equivalent MUSER provisions

largely mirrors the federal law, their stated timelines have not

always     aligned.12     When   the   Maine   Legislature   first     enacted

limitations provisions in MUSER in 2007, it departed from federal

law by providing for four-year time periods.13          In 2009, however,

the   MDOE    initiated    the   process    for   amending   several    MUSER

provisions, including changing the "statute of limitations for due

process hearings" to conform to "the federal standard of two

years."     Notice of Agency Rule-making Proposal, Nov. 24, 2009.

             In the notices of the proposed amendments submitted by

the MDOE to the Secretary of State, as required by the Maine

Administrative Procedure Act ("MAPA"), see Me. Rev. Stat. Ann.

tit. 5, § 8053, the Department stated that the change in timing


      12Although the IDEA and its associated regulations provide
the default provisions governing due process hearings, states are
permitted to vary some requirements -- including, specifically,
the time limitations at issue in this case.        See 20 U.S.C.
§ 1415(b)(6)(B), (f)(3)(C).
      13Technically, MUSER initially provided for a four-year
period in one of the two provisions at issue and a two-year period
for the other, but the latter was "corrected" to four years in
2008. That change will be discussed below as part of my analysis.


                                   - 26 -
was being proposed "pursuant to [its] intent to not exceed minimum

federal requirements and to address cost containment."14                The

materials submitted with the notices are particularly significant

to this case.      I reproduce below the district court's clear and

concise summary of the documents, noting that the district court

used    the    descriptive    terminology   for   the   two    limitations

provisions      ("look-back   term,   for   § XVI.5.A(2),     and   "filing

limitation" or "filing deadline," for § XVI.13.E, that the courts

and parties previously used to distinguish them:

              Each notice was accompanied by a version of
              MUSER    with    strikeouts   and   underlines
              indicating the proposed changes.        In the
              proposed   changes,    the  Look-Back    Term's
              strikeouts and underlines indicated a change
              from four years to two, while the filing
              deadline      provision     was     untouched.
              Additionally, MUSER contains an Appendix with
              a document entitled "Notice of Procedural
              Safeguards," which is used to instruct the
              public about the rights guaranteed under
              MUSER, and it was also revised to reflect the
              proposed changes.    The Notice of Procedural
              Safeguards     contained     strikeouts     and
              underlines that corresponded to the proposed
              change to the Look-Back Term from four years
              to two years:

                The due process hearing request must
                allege a violation whether a State or
                federal cause of action under the IDEA

       14
        Two notices were submitted because the MDOE was proposing
both an emergency rule change through an accelerated process and
a permanent rule change. The proposals were identical in substance
but subject to different procedures. See Ms. S. I, 829 F.3d at
105-06. The Secretary of State is charged with publishing notice
of the date of the public hearing on a proposed rule. See Me.
Rev. Stat. Ann. tit. 5, § 8053.


                                  - 27 -
             that happened not more than four two
             years before you or the SAU [school
             administrative unit] knew or should
             have known about the alleged action
             that forms the basis of the due process
             hearing request.

          The Filing Limitation was addressed in the
          "Due Process Hearing Procedure" section of
          the Notice of Procedural Safeguards.    It
          indicated two non-substantive corrections
          and did not show any change to the four-
          year Filing Limitation:

             You or the SAU must request an
             impartial hearing on a due process
             hearing request within—four years of
             the date you or the SAU knew or should
             have known about the issue addressed in
             the hearing request.

          Thus, both the MUSER Filing   Limitation and the
          explanation of that rule      in the Notice of
          Procedural Safeguards did      not indicate any
          changes to the substance      of the four-year
          Filing Limitation.

Ms. S. II, 2017 WL 5565206, at *3 (footnote omitted) (citations

omitted); see also Ms. S. I, 829 F.3d at 103.

          The inconsistent treatment of the two provisions also

appeared on the form used to obtain comments from members of the

public.   The comments sheet characterized the proposed change in

timing as follows: "§XVI(5)(A)(2) The statute of limitations for

due process hearings will be changed to the federal standard of

two years, Page 161."   Ms. S. II, No. 2:13-cv-00453-JDL (D. Me.),

Dkt. No. 71-1, at 12 (emphasis in comments document); see also Ms.

S. II, 2017 WL 5565206, at *3. Page 161 of the provisional adoption



                              - 28 -
proposal displayed the change to two years for § XVI(5)(A)(2),

i.e., the provision that came to be known as the "lookback term."

See id.; see also Joint App'x at 175.      Meanwhile, § XVI.13.E --

the filing deadline -- appeared in the same document on page 171,

and it remained unchanged at four years.    See 2017 WL 5565206, at

*3; Joint App'x at 177.

           The Maine Legislature approved the MUSER rule changes in

2010, having reviewed only versions of the proposed revisions that

retained the four-year filing limitation in § XVI.13.E.     See Ms.

S. I, 829 F.3d at 104.    Then, without any process to alert either

the public or the Legislature that it was departing from the text

shown in the provisional adoption document, the MDOE adopted a

final amended version of MUSER in which the timing in § XVI.13.E

was reduced to two years. See id. Appellants describe this action

as a "correction" that was made to remedy "a clerical oversight."

DOE Br. at 5, 11.    A proposal to increase the timeframe for due

process hearings was rejected the following year, see Ms. S. II,

No. 2:13-cv-00453-JDL (D. Me.), Dkt. 71-13, at 33-36, and both

§ XVI(5)(A)(2) and § XVI.13.E thus currently contain two-year

periods.

B. MUSER's Timing Provisions in Practice

           The question at the core of this appeal is whether the

MDOE's adoption of a two-year filing deadline in § XVI.13.E was a

permissible correction of an oversight or a substantive change


                               - 29 -
that required adherence to formal administrative procedures.              Put

another way, is the two-year limitations period currently stated

in § XVI.13.E invalid because it was enacted unlawfully?

             Although my colleagues purport not to reach the "issue

of whether the MDOE complied with MAPA in promulgating the 2010

amendments       to   MUSER,"   they    implicitly    accept   the   oversight

rationale.       They conclude that the MDOE intended from the outset

of the 2009-2010 amendment process to revise both MUSER provisions

to reflect a single two-year deadline for due process hearing

requests.         Consistency    was    necessarily    the   objective,   they

suggest, because MUSER -- like the IDEA -- contains one limitations

period that applies to both provisions.              Their position is that,

because the two provisions operate in tandem, approval of the two-

year period in § XVI.5.A(2) (the "lookback term") also constituted

approval    of    the   same    timeframe   for   § XVI.13.E    (the   "filing

deadline").       Accordingly, the MDOE's final version of MUSER in

2010 effected the Legislature's intent and corrected a minor

drafting error.

             The primary problem with the majority's conclusion is

the failure to account for the uncertainty that long surrounded

the two distinctly worded provisions in both the IDEA and MUSER.

Even if my colleagues are correct that the MDOE intended in 2009-

2010 to change both timing provisions -- despite all documentary

evidence to the contrary -- that intention would not cure the


                                       - 30 -
problems with the rule-making process.    Inexplicably, the majority

gives no consideration at all to what the public and Legislature

would have reasonably understood in 2009 about the meaning of each

provision.     Yet, as the Third Circuit highlighted in unraveling

the history of the two IDEA sections, the provisions' differing

language had long posed interpretive difficulties.     See G.L., 802

F.3d 610-12.

             The sequentially first provision -- i.e., the so-called

lookback provision -- allows a remedy based on actions that

occurred "not more than two years before the date the parent . . .

knew or should have known about" the challenged action.        MUSER

§ XVI.5.A(2) (emphasis added); see also 20 U.S.C. § 1415(b)(6)(B).

Meanwhile, the second provision sets the filing deadline (for

requesting a hearing) at two years after the discovery date, see

MUSER § XVI.13.E; 20 U.S.C. § 1415(f)(3)(C).    As the Third Circuit

noted, "[t]he 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."       G.L.,

802 F.3d at 610.        Indeed, in determining that the two IDEA

provisions "reflect the same statute of limitations," id. at 612

(internal quotation marks omitted), the Third Circuit acknowledged

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.'"       Id. at 612 (quoting King v.


                                - 31 -
Burwell, 135 S. Ct. 2480, 2495 (2015)).           In other words, on their

face, the two provisions do not align, and only the court's close

examination of context and legislative history revealed their

conformity.       See id. at 611-12.

            In Maine, the same discrepancy in MUSER's language led

to the notion of two independent timeframes: the "lookback period"

of § XVI.5.A(2) and the "filing deadline" of § XVI.13.E.            The wide

acceptance of that nomenclature -- and the substantive distinction

it denotes -- informed the first round of proceedings in this case.

As   the   MDOE    observes,   the   two   experienced   special   education

attorneys who represented the opposing parties treated those terms

as "commonly used and ha[ving] distinctly different meanings."

MDOE Br. at 24.      In addition, there is no challenge in the record

to Ms. S.'s representation that attorneys in the field in Maine

had consistently treated the two provisions as distinct at least

since an MDOE hearing officer adopted that construction in 2011.

See Ms. S. II, No. 2:13-cv-00453-JDL (D. Me.), Dkt. 22-5, at 9

(Hearing Officer's Order on Application of Statute of Limitations,

Sept. 1, 2011); id. at 17 (referring to "the IDEA's two year look-

back provision").      Nor have appellants rebutted Ms. S.'s assertion

that the 2011 interpretation was consistently followed thereafter

by other Maine hearing officers.              To the contrary, the school

district acknowledges that "the dichotomy offered by the hearing




                                     - 32 -
officer in 2011 [was] a reading that seemed relatively consistent

with some components of the language in question."

            The    MDOE     attempts     both     to        discredit      the   hearing

officer's interpretation and to disclaim any responsibility for

the   subsequent    reliance       on   it   by       parties      and   other   hearing

officers.   The Department emphatically denies that it necessarily

was aware of the decision or had an obligation to correct the

mistaken view of the law.          These protestations defy common sense.

The possibility that the Department remained unaware for years of

an "incorrect" interpretation of an important component of the

statutory scheme for which it was responsible strikes me as absurd.

Moreover, even if the Department technically had no affirmative

obligation to clarify the law, its failure to do so is inexplicable

if, in fact, the MDOE always believed the MUSER timing provisions

established a single limitations period.

            In    any     event,    regardless         of     the    MDOE's      unspoken

intention with respect to the MUSER amendments proposed in 2009,

the   history     makes    plain    that     it       was    far    from      evident    to

practitioners      and    decisionmakers         in    the    field      --    i.e.,    the

"experts" charged with day-to-day advocacy or dispute resolution

involving the IDEA and MUSER -- that the two provisions stated the

same limitations period.           Indeed, at least by 2011, they had the

opposite understanding.




                                        - 33 -
C. The Need to Fulfill MAPA Requirements

             The interpretive confusion documented above has great

significance.      It means that the MDOE was not free to change the

timing in § XVI.13.E (the "filing deadline") from four years to

two years without engaging in the formal administrative process

applicable to major substantive rule changes.15 That is so because,

given the retention of "four years" in the proposed text of

§ XVI.13.E     disseminated      throughout       the   2009-2010     rulemaking

proceedings, the public and Maine Legislature lacked the required

clear     notice   that   the   MDOE    was     proposing   a   single   two-year

limitations period.        Indeed, the repeated presentation of four

years as the filing time limit would have bolstered the view that

the provisions contained independent timelines.                 Put another way,

the MDOE owed the public and the Legislature a clear statement of

its intention to reduce by one-half the time allowed for seeking

a FAPE due process hearing.16          Instead, the Department effectively



     15The process for adopting a "major substantive rule" -- such
as the changed filing limitation at issue here -- is described in
detail in Ms. S. I. See 829 F.3d at 105-06.
     16 The MDOE acknowledges the importance of providing notice
to the public of changes in the limitations period. It points out
that the Department could have adopted the emergency version of
the rule without a comment period, but "because the Department
recognized that the parents of children with disabilities and their
advocates would react strongly to what they viewed as a reduction
in their rights, the Department elected to provide a public hearing
and comment period on the emergency rule as well as the permanent
rule." MDOE Br. at 3 n.2.


                                       - 34 -
told    the    public   that   the    four-year   deadline     was    to    remain

unchanged.

               The MDOE asserts that the comments submitted during the

2009    administrative     proceedings     indicated    that    all   concerned

understood that the proposal to limit the "statute of limitations"

covered both provisions.           The Department emphasizes that none of

the individuals who commented on the proposed amendments at public

hearings held by the MDOE and the Legislature's Education Committee

suggested that there was more than one statute of limitations.

Hence, the Department posits, no one was misled by the flawed

notices       and   supplemental     materials,   and   the    errors      in   the

administrative process were therefore harmless.

               This effort to minimize the errors is both unpersuasive

and unacceptable.        The shorthand label "statute of limitations"

may reasonably be applied to a "limitation" on the remedial

period.17      Moreover, the fact remains that every relevant document



       17   As we observed in Ms. S. I:

               [T]he phrase "statute of limitations" is used
               without definition by the MDOE in its public
               notice statement, by the MDOE Commissioner in
               her testimony to the Maine Legislature, by
               many additional witnesses and advocates, and
               by the Legislature itself.    Both the filing
               limitation and look-back term involve time
               restrictions, and both periods were originally
               four years while the parallel federal periods
               are both two years. Hence, the "statute of
               limitations" label could be used to describe


                                      - 35 -
depicted    a   revision   only   to   the   provision   that   was   treated

thereafter as a limitation on the remedial period.              Hence, there

was no reason to expect comments from the public on a different

limitations provision that ostensibly was not being changed.             See

Ms. S. II, 2017 WL 5565206, at *9 ("The absence of comments

explicitly addressing the Filing Limitation change from four years

to two years is not surprising given that the proposed MUSER rules

did not describe such a change in the notice or in the Filing

Limitation rule, nor did the proposal direct commenters to the

page the Filing Limitation appeared on as it did with respect to

the Look-Back Term.").       The MDOE's casual, unilateral change to

such a significant element of the MUSER scheme was thus patently

improper.

            As well, the MDOE's contention that the inconsistency

was merely an oversight pushes against the bounds of plausibility.

The Notice of Procedural Safeguards prepared by the Department and

disseminated during the 2009-2010 proceedings specified two non-

substantive corrections for § XVI.13.E (the "filing deadline"),

but it failed to show a change in the number of years.                 It is

difficult to see how a "mistaken" retention of the four-year

language could have escaped MDOE attention when the Department


            the filing limitation, the look-back term, or
            both.

     829 F.3d at 109.


                                   - 36 -
must have focused directly on the provision to make the non-

substantive revisions.           See Ms. S. II, 2017 WL 5565206, at *10 ("A

reader could logically conclude from the Notice of Procedural

Safeguards     that       the   drafters           had   looked    at    the     provision,

considered what changes were necessary, and decided to make only

minor,   non-substantive          adjustments.").             Hence,       even    if   some

individuals within the Department viewed the two provisions to

state the same deadline, the drafting inconsistency is compelling

evidence that there was no uniform understanding even within the

MDOE. It is therefore unsurprising that practitioners in the field

subsequently accepted the hearing officer's assumption of two

independent timelines.

              To bolster its oversight claim, and in rejecting the

need for formal MAPA procedures, the MDOE points out that the same

type of "clerical" error accounts for the different time periods

contained     in    the    original,         2007    versions      of    the    limitations

provisions.        The Department reports that, after final adoption of

the   MUSER    rules      in    2007,       "the    Department     discovered       several

inconsistencies        that      had    slipped          through    in    the     rewriting

process."     MDOE Reply Br. at 6.                 One such inconsistency, the MDOE

explains,     was    retention         of    the     originally     proposed       two-year

limitations period in § XVI.13.E (the "filing deadline") instead

of the four-year period that the Legislature had expressly directed

for § XVI.5A(2) (the "lookback term").                       The MDOE rectified the


                                            - 37 -
inconsistency through a new rulemaking in 2008, explaining in

public materials that "[t]he purpose and scope of this rulemaking

was   to   make   several    corrections       not    addressed   in    the   [2007

proceedings] to make consistent . . .                the statute of limitations

at four years in appropriate sections."                  MDOE Reply Br., Supp.

App'x at 21 (quoting Comments and Responses to Proposed Amendments

Chapter    101    Public   Hearing,    Nov.    13,     2007).     The   change   to

§ XVI.13.E, replacing "two years" with "four years" for the filing

deadline, was adopted in April 2008 -- i.e., about a year and a

half before the MDOE initiated the MUSER rulemaking proceedings

underlying this case.

            The MDOE cites the 2007-2008 history as proof that it

always construed the timeframes in the two provisions to refer to

the same deadline for filing a request for a due process hearing,

and it implies that the earlier corrective process validates the

"technical, conforming correction" it made in 2010. But regardless

of what the MDOE's actions in 2007 and 2008 reveal about the

Department's intentions at that time with respect to the two

provisions,18 its handling of the earlier inconsistency cannot

legitimize the subsequent flawed process.                 Among other factors,

the   earlier     change    extended    the     deadline     specified    in     the


      18The "correction" does not necessarily show that the MDOE
viewed the two provisions to state the same limitations period;
the objective just as easily could have been to adopt a four-year
period for each of two independent provisions.


                                      - 38 -
regulation for requesting a due process hearing; now, the MDOE

seeks   to   cut   off   remedies    for     students   with   disabilities.

Moreover, the MDOE in 2007-2008 did not unilaterally amend the

provision approved by the Legislature.               It gave notice to the

public of the proposed revision to § XVI.13.E and sought comments.

Given the handling of the 2007-2008 "oversight" in the recent past,

the Legislature and knowledgeable members of the public in 2009

could fairly presume that the lack of uniformity in the proposed

text was intentional, even if it was not.

             It bears repeating that confusion abounded concerning

the two MUSER provisions and their federal counterparts.            The MDOE

nonetheless made a significant behind-the-scenes change to a major

substantive rule without adhering to the MAPA procedures that are

meant to ensure that the public and Legislature are informed of

such revisions and have the opportunity to raise concerns.              See

Ms. S. II, 2017 WL 5565206, at *8-11. That improper process cannot

be   cured    by   relying    on    the      Third    Circuit's   clarifying

interpretation of the IDEA more than five years later.            See Ms. S.

I, 829 F.3d at 108 (noting the Maine Law Court's conclusion that

the "circumstances in which invalidation [of a rule] is automatic

principally involve a denial of public participation" (quoting

Fulkerson v. Comm'r, Me. Dep't of Human Servs., 628 A.2d 661, 664

(Me. 1993)) (alteration in original)); id. at 109 (noting that




                                    - 39 -
"the Legislature at least must have had the opportunity to review

the substance of a finally adopted rule").

            My     colleagues   alternatively     state      that,   even     if

procedural errors rendered the revision of § XVI.13.E void under

MAPA, they would conclude that MUSER lacked "a valid 'explicit

time limitation'" and would therefore impose the federal default

of two years for the filing limitation.              See Maj. Op. § II.C.2

(quoting 20 U.S.C. § 1415(b)(6)(B), (f)(3)(C) (emphasis added by

majority)).      But there is no justification for such a presumptuous

step   --   that    is,   overriding   a   state's   prevailing,      properly

implemented limitations period to the detriment of the individuals

the statute is meant to protect.             The IDEA does not require

lockstep between a state's filing limitations period and the

federal timeline, and, if the change made to § XVI.13.E by the

MDOE in 2010 is invalid, the four-year deadline remains in place.

            Moreover, fairness requires our adherence to the longer

filing   limitations      period.      Section   XVI.13.E,    the    provision

unilaterally amended by the MDOE, has always been understood to

establish the deadline for requesting a due process hearing.                Even

if we now understand that § XVI.5.A(2) is another statement of

that same deadline, rather than an independent "lookback term," we

cannot simply disregard MAPA's notice and comment requirements for

amending the "filing deadline" in § XVI.13.E.             Put differently,

this panel's clarifying ruling in this case that federal and state


                                    - 40 -
law each set a single limitations period cannot undo the flaws in

2009-2010     that     --    as      the     district        court        properly

found -- invalidate the MDOE's attempt to reduce the limitations

period for requesting a due process hearing.              We cannot undo with

a few strokes of the pen the confusion or improper administrative

proceedings of the past.

            The   majority   skims   over    the       departure    from    MAPA's

requirements,     concluding      that     the    unauthorized       change    to

§ XVI.13.E must be given effect in this case simply because the

MDOE has now explained why a two-year timeframe is appropriate.

That   conclusion    fails   to    respect       the    objective    of     public

participation reflected in Maine's detailed administrative scheme.

If the MDOE wants to change the governing four-year statute of

limitations, it must do so the right way.               Unlike my colleagues,

I cannot condone the MDOE's improper adoption of the reduced filing

deadline, contrary to the public disclosures required by law, or

the resulting unfair refusal to consider Ms. S.'s claims concerning

her son's ninth and tenth grade years.             I therefore respectfully

dissent.




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