B.B. v. Delaware College Preparatory Academy, No. 19-1649, 2020 WL 63924976 IDELR 1 (3d Cir. Feb. 11, 2020), a nonprecedential decision, may be of interest to impartial hearing officers in making determinations about which claims are timely and which are barred by limitations. The court vacated the dismissal of claims under the Individuals with Disabilities Education Act. These claims had been found by the administrative hearing panel and the district court to be barred by the two-year Delaware statute of limitations. The court found that claims based on conduct by the defendant that occurred after the start of the limitations period is not barred by limitations, even if the conduct was similar to conduct that preceded the period.
According to the complaint, the student was found eligible for special education in 2012-13 and slated to receive speech and language services. When he was in kindergarten in 2013-14, however, the defendant failed to follow his IEP. He was expelled from riding the school bus for misconduct in February of 2014. His mother asked for an evaluation at that time but the defendant refused. The parents demanded a due process hearing on February 21, 2014, alleging that the defendant denied the student a free appropriate public education by failing to provide him the speech services and failing to update his IEP, but withdrew the due process complaint in May, 2014. The parents said the defendant still did not provide the evaluation or the services and did not update the IEP in spring and summer of 2014, and they filed another due process complaint in August, 2014, seeking an independent educational evaluation. They withdrew that complaint a month later.
The parents filed a third due process complaint on April 1, 2016, seeking compensatory education and alleging denial of FAPE from September 2013 to September 2014. Relevant to the appeal, the due process complaint further alleged that in the period after April 1, 2014, the parents gave permission to evaluate the student for speech and language on May 29, 2014 but the defendant failed to offer a permission form for other testing, that the defendant failed to provide the student transportation to special education services, and that at the end of August 2014, DCPA had still not evaluated the student’s educational needs, provided him speech services, or met to update his IEP. The hearing panel dismissed the complaint, reasoning that the parents knew of all the defendant’s omissions before February 21, 2014, which was more than two years before the filing of the April 1, 2016 complaint. The parents appealed part of the decision to district court, alleging error in dismissing the claims for IDEA violations between April 1, 2014 and September 2014. The district court rejected their arguments, dismissed the federal court complaint, and denied reconsideration.
Vacating that decision, the Third Circuit noted that 20 U.S.C. § 1415(f)(3)(C) requires the parents to file a request for a “due process hearing within 2 years of the date the parent . . . knew or should have known about the alleged action that forms the basis of the complaint.” (States may, of course, impose different periods. The statute continues: “[O]r, if the State has an explicit time limitation for requesting such a hearing under this part, in such time as the State law allows.” Id.).
The court pointed out that relevant to the current proceedings, the parents were complaining only about conduct that occurred from April 1, 2014 to September 2014, within two years of the April 1, 2016 due process complaint. That conduct included the failure to issue a permission form for additional assessments in May, 2014, the failure to provide transportation from April to September of 2014, and the failure, before August 2014, to conduct the evaluation, revise the IEP, and provide speech services. As the court stated, “Although [defendant] had previously failed to evaluate B.B., meet to revise his IEP, or provide him with speech therapy, subsequent failures of a like nature are distinct from prior failures and themselves support cognizable violations.” 2020 WL 639249, at *3. The court continued: “Moreover, these specific violations could not have been discovered in February 2014 because they had not yet occurred. Since these events took place within two years of filing the April 2016 due process complaint, any discovery of that conduct by B.B.’s parents also occurred within the two year period.” Id.
Importantly for IHOs in analyzing statute of limitations situations, the court distinguished the case from one in which plaintiffs complain about violations that predate the limitations period asserting a continuing violation theory. The request for relief was for only the period after April 1, 2014. The student’s “claim for compensatory education services based on conduct that occurred from April 1, 2014 to September 2014 is timely since it is based on conduct that took place, and thus could have only been discovered, within two years of filing the April 2016 due process complaint.” Id.
The court thus applied a straightforward reading of the “known or should have known” language of the statute. A plaintiff cannot know of future events. The case bears comparison to the Supreme Court’s recent decision regarding claims preclusion doctrine, Lucky Brand Dungarees, Inc. v. Marcel Fashions Group, Inc., No. 18-1086, 2020 WL 2477020, (U.S. May 14, 2020), in which the Court reversed dismissal of a trademark case in which the court of appeals had found claims preclusion based on the failure to raise a defense in an initial litigation between the same parties that was filed and concluded before the filing of the current action. The Court reaffirmed the principle that “Claim preclusion generally does not bar claims that are predicated on events that postdate the filing of the initial complaint,” Id. at *6, and reinstated the case.