that was filed after the idea a two thousand and four amendments occurred and by way of the date the data that was july first two thousand and five that's when that new statute in the new statue limitations became effective the statute itself was enac december third two thousand and four and there was a seven month window your honor during that period before the actual statute took effect and as your honour's are aware we did a reply brief or actually a lot of rich about two weeks ago and three cases there is substantial  among the eastern district in regard to the issue that's before the court and quite honestly when you look at the themes and the points of consideration the analysis i think there are some key concepts which i want to highlight for the court today the first concept is reasonable opportunity to bring a claim and it's our position or honors that in this case the petitioner the plaintiff in the underlying action the student who is no longer a student by the ways of a twenty four years old he graduated from the stanford buck school district back in june of two thousand and five and he is not a student but at that point during the time frame it issue in the time permit issue here they want to go back in one thousand nine hundred seven the student was in fifth grade at that time so really the time period issue would be between fifth grade and twelfth grade and it is our contention that the student reasonable opportunity at various points to bring a due process claim a due process complaint and did not do so and if we focus first on the period between december when the law was enacted the summer of two thousand and four and july first two thousand and five again that's a seven month window in which there was that opportunity to bring a claim and not have this issue of the two year statute of limitations being about like why is that why should that be good enough i mean in in vernon there was a specific notice from the e about this is what's going to happen to you if you don't file in this instance there's a change in law there seven months there's no indication that people knew about this what why is it good enough or th stronger than bernie because in vernon they follow the do they follow the underlying ego see complaints and it was after that fact that there was a change and then there was the notice that was issued in a burn and there was actually a misrepresentation of the notice of one point so there was one piece of information saying you have to file  within the ninety days of the issuance of the right to sue letter and there was some misinformation about stating the old loa still play ball in our case there was ample public notice this force the issue of the enactment of the idea two thousand and four and then based on the fact there were changes and it wasn't just actual imitation changes there were many substantive changes to the statute congress left a seven month period for consideration for action to be taken so i think that there's a lot about the provision referred to the very end of your op have been some notice on the statute changed that should go out under that provision saying you have to make the complaint you know within the seven months or it will be last well should there have been  that's an issue your honor there was not in this case the procedural as it is i think it's an affirmative they say this is an affirmative defense and and you were obligated to do that and having not done that you can't rely on well actually i would suggest we are not not obligated issue there was not that period there was not that notice requirement of giving notice that there is a statute because there wasn't a statute so issues really mean is that you shouldn't have to give those to the statute because you guys didn't know about it but they should be held to th you know about it or no actually it's and i'm not saying that you're on i'm saying that during the time frame it issued december through july there was that notice period for both sides and there was a form procedural safeguards notice that was issued and is required to be disseminated that is th document that was disseminated by the school district it's the same as now after the change in the law there was a form procedural safeguards knows that disseminated only make sure the facts very sure you're saying you sent the notice it was a notice it was based on the old  and that that's good enough to satisfy your obligation but that they should be held to account for those that still impatience that exists under the new law so write one saying that the notice that was sent before did not address the statue imitation is issued because there was not a statue of limitations before so unlike the case of the burning case that you brought up your honor this is not a situation was any misrepresentation by the district as to what statute limitation is in effect it's simply the fact that there is a statue imitations after the change in the law inform them in plain understand the terms of the time within which to bring an action yes sure ok when and when did that when does that required and when did you do that what we did that after july first of two thousand and five after the change the law occurred became effective so in this particular case keep in mind the way this played out the due process complaint was filed much after the fact it was filed in may of two thousand and seven and that is after the student graduated from high school about two years after so did the notice use and say you've got you've got two years to do this then the notice did not say that because the student graduated prior to the time frame at issue and i think that's a key fact your hon we were issuing the notice that was required to be issued under the law at the time there was a change in the law that was the way this plays out procedurally it was after the fact i don't know i don't know but i'm i'm confused on how much your fund get in the i'm just trying to find out as a matter of fact  the notice you send them say hey there's a to your stats limitations part sometimes when you're answering that i hear you saying we didn't say that because that new statute was in effect and then other times i'm not so sure did the notice you send them inform them of the stachel impatience to which you were saying they should be held to account it did not it did not say there is a new statue limitations all right so in reality what you're saying is we sent you notice it didn't tell you about the statue limitations but you should be held to account of it in spite of what we told you that right well because my point is your honor there was not misrepresentation as far as what the statute is but don't you see there's a bit of an irony here in saying there was an ample notice to them they should be held to account for it but we should have been held to account give them the notice that the statue tells us we have to go i understand because of the way this occurred with the timing of the statute being an act that in the fact that the due process complaint was filed much after there is that that issue is this notice in in the record your honor actually the there is a reference to the notices in various documents in which the form documents under the idea that are issued reference is a procedural safeguards that was issued at various points dating back we the record actually has documents the preceding the time from we're talking about the notice itself is not in the record but there is no evidence in the record that this notice your honor asked that identify the to y not understood we're actually obligated to give it to various points for instance if there is an issue once of a permission to evaluate a student a permission or evaluate a student we give the notice out when there is an ip meeting and other kind of multiple notices were given a time frame colon there is no time for not identifying that there was a time frame because of the scratched status of the law at that point and that's what the law was at that time frame so we're in a position or are we assert though there was still a reasonable opportunity there was still a seven month period in which if they wanted to bring an action they could have brought an action and when you look at this case it is your position that you know the law is what it is and once once the laws change everyone is going to put on notice and that there be there is not an affirmative duty on the part of the school district to to do anything but if the law changes people should be aware that the law has changed and number one your honor people should be aware of both sides the lowest changed number two there is an affirmative duty we believe that affirmative duty was triggered based on the actual effective date of the law which was july first two thousand and five i'm sorry from and of duty to give notice after the effect date of the law the change was effective as of july first two thousand and five now keep in mind the student had graduated by that point so there were no i mean meetings there for that point there were no further permission to evaluate revaluate this was a situation w hey when you're saying for me to do you mean that giving fourteen fifteen its due as of july one two thousand and five if you were giving a notice to someone it would have been one that said to your statue yes  case in the vernon case there was actually some misinformation there is not evidence in this record there was misinformation and based on that fact we still have the seven month period in which the law was changed it was an act that there was that seven month window no action was taken during that timeframe and if we go beyond  still focusing on the reasonable or the ability to bring a claim if we go beyond that time frame backward your honour's they're going they want to go back in one thousand nine hundred seven so there was an opportunity obviously in fifth grade and sixth grade so on up until two thousand and five when the student graduated to bring a claim and they did not do that one of the issues we did litigate we didn't get into the merits of this case but one of the issues we did litigate was the applicability of the statue limitations exceptions here and under idea two thousand and four it's a new or should have known standard with two exceptions one of which would have to be met to pierce and effectively it would be withholding of information by the district information that otherwise would have to be provided or misrepresentations by the district and that's been interpreted to be something really intentional or material misrepresentation and both at the hearing officer stage and at the appeals panel stage the contention by the plaintiffs by the student that there were one of those exceptions met was rejected so we're in a situation where that fact alone demonstrates that they could have brought the claims in ninety seven and ninety eight and on up until two thousand and five and did not mean they had knowledge of the basis for their claim that the student purportedly was struggling was not receiving a free appropriate public education yet took no action they had any point make the argument before the for the first time in the last paragraph letterman's ones your honor i don't believe that was that an issue that was actually pursued and i don't believe that was argued we did get into factually there may have been some cross examination would have to look  record did the procedural safeguards was it sent that but it wasn't argued to the court i don't believe it was your honor so we're in a situation now where again we have that window of time frame for action to be taken we believe no action was taken and we go further if we go the kind of the fun and you have a period of time after july first two thousand and five up until when this was actually pursued which was may of two thousand and five i'm sorry two thousand and seven and you know another period of time after long after the student graduated so we believe there was a reason why opportunity both before during and after to bring a claim a new claim was brought and once again i just want to emphasize there was not a misrepresentation here by the district is fourth what what the obligations were it's incumbent on both sides to be aware feel where of obligations may please the court good morning your honor sir i'm gabrielle sereni and i represent steven and his parents in this action to give you a little bit of context in this case stephen is a twenty three year old he's twenty four is twenty thirty three year old student who at the time of his graduation from the central bucks high school could not fill out a job application at twenty three years old he is currently unemployed because he needs to learn how to read and write at a level that will allow him to be able to be engaged in competitive employment he's not at that level now which is the reason that we're seeking compensatory education services so that he can get the that we actually brought up section fourteen fifteen was in response to the court's offer of the three cases which we were required to letter brief because i think that very astutely the courts recognize recognized that the issue here in this case is really one of notice and whether notice was given to these particular plaintiffs and also in general whether notice was given by the i d e a that the statute would be applied retroactively to extinguish claims and i respectfully submit that notice was not given in this case and not sufficiently given to the community in general what obligation does an entity have in school district whomever when there is a change in a statute of limitations that could affect people who may have claims against them what obligation as an entity in that position have to give notice  i think they have every obligation to give notice and i think the reason what case or principle would support that well my principle this principle that would support it would be mr wolpert logic and you know the defendant's argument in this case  on the one hand the school district is very vigorously asserting that the seven month period between the passage of the i d e a two thousand and five and the effective date which was july first two thousand and five was somehow magically statute because the district never informed him that he had the claims since one nine hundred ninety seven she had she had the claims in the past she was and you need to be vigilant about your rights and you knowledgeable about what laws impact your your rights why is that the burden of the plaintiff in a situation like that to become aware of their rights because the the right was that there was no statute of limitation the right was that there was no need to separate was there was a statue  wall beyond the obligation every citizen has to be aware of their rights well i again i think the seven month period during which the school district knew and is expecting the parents to know about the change was more than sufficient for the school district to say in our procedural safeguards notice you know in the months coming up to july first two thousand and five we should inform parents that there's going to be a time limitation which they didn't do the i d e a is a very unique statute it's different from the eighty it's different from immigration obligated to inform parents when there's a sub a change in the statute of limitation yes i think it's implicit i think it's entirely consistent and i think it's fair and of course fairness as the supreme court has has counseled in both land graph  obligation on the district to him for all parents nationwide to the change in absolutely and in fact that's not just my invention that's what the idea requires when it was when the amended act w passed in december two thousand and four in that passage the law at that time even though it had become effective yet the district was on notice of it and you know expected parents to be on notice that it included a new section a new and improved section of what the procedural safeguards notice that the school district is required to give to the parents has to include and one of your client was already albums so already out of the school district but not during the seven month  period my client was still in the district in december of two thousand and four when the act was passed when the school district first became aware of what the new procedural safeguards requirements were are you saying now that there was a specific juncture during that time period where the procedural safeguards notice had to have been given to your client by law that wasn't given i don't know that there that that's that is not part of the record however what i can assert with confidence to the ip meaning for example and i p meetings are required to be conducted each school year or so i'm we're trying to think bring it back to the facts here the facts here there was nothing happening in the life of your client that would have had an ip there is a yearly i p that is required by law where is it in the record a b that was november of two thousand and four how do i know that well he and he certainly i would also have been exited from special education and was in this case which needs to be done by means of a document called a nor epa notice of recommended educational placement which would have occurred at the end of the school year and he was nor act out of  when that was well we don't have any of this in the record it is in the record that he graduated in june of two thousand no but we don't have in the record that there was something after the law was passed i e december third of two thousand and four that there was a point at which the school district by only did a responsibility to advise of the two years that we know that they didn't advise of the two you're so that you know there was an obligation they had but the supervisor testified and this is in the record and it's actually on that in the transcript on page three twenty two that the parents were never informed that the idea was being amended and contain the limitations period in that testimony she also admitted that procedural safeguards were given out during that that school year and the parent testified as well human misery that they can't rely on this because they defaulted on their obligations school district and if that is the argument that you're relying on how can we hear that for the first time  silent as to any retroactive intent and our argument has been and continues to be and really is the forefront of our our position here which judge could have accepted that in the absence of an expression of retroactive intent by congress so it can't be a serial land graph or different we're not applying the substantive provisions of the idea that were amended or not primary respectfully i can agree with that certainly you know that would be the school district's position however the only court that i'm aware of to ever actually address the issue of the procedural versus substantive nature of the statute of limitations the new statute of limitations under the i d e a was judge yohn in terence day and he determined that this was not a procedural problems well it doesn't the problem is it doesn't fall on just school district case where he said it can't possibly be that this is to be viewed as as impermissibly retroactive because if we accepted the view that was being put upon press finest by the the plaintiffs in that case the result would be that you'd have a period of time before the change in the statute of limitations as to which you could make any claim at all and then you'd have a gap and then you'd have a period of time after a notice was beyond comprehension that congress would intend that what's your response to his analysis on that well my response and i have a lot of respect for judge schiller and that was actually a case also that i that i handled but i think the judge  exaggerated the potential effects of sort of this floodgates of plaintiffs who are going to be bringing these gak litigation for one thing it's true that there would be in some cases as in the in certain cases a gap between two periods of time of litigation however i don't think it's impossible that congress could have envisioned that in fact they actually give congress more a little more credit than that and i think congress did recognize the fact that there is a difference between claims that we're going to be brought from july first two thousand and five on and claims that we're still existing from july first two thousand and five before and this is why because congress said nothing was absolutely silent about well anything that was before july first two thousand and five is now extinguished it say that doesn't it was very careful doesn't that assume where you have to get in the end i mean you use the language of retroactivity and and and judge but over those two you persuade a judge but over a very able judge and judge you on was persuaded but there is a whole line of cases that talks about statue imitations and says they're not retroactive because it isn't the defendant's well and those cases largely found that the there was a diminished right to rely on a statute of limitations because it is a procedural rule as opposed to a substantive right and we don't agree with that and again de judge yohn also said this was not a procedural issue and he also noted that there was a consensus among the circuit courts the ninth circuit the fourth circuit and the fifth circuit all saying that saturates of limitations are not procedural and particularly under the i d e a where the step the time limitation is so sort of inner woven and enmeshed with the substantive claims of the child i think this i think it's important for us to keep in mind that it's not  automatic inflexible two year statute of limitations there are three provisions in the statute that are somewhat confusing a little complicated but they all require the fact finder to absolutely delve into the substantive claims of the child in order to determine what the proper period of adjudication should bed so late or position that of cho it doesn't it's not good law anymore that challenged because because the argument you seem to be making is the congress couldn't well without without saying explicitly something about retroactivity it can't make a change in a statute of limitations because by definition the way you're describing it every statue of limitations is substantive because there are some rights that are going to go away that's how you seem to be arguing that some rights that otherwise would have been available to the point of go away any time there's a change in a statue of the patients you have affected subset of rights and therefore every time congress changes the actual impatiens it must address retroactively is isn't that where the huachuca of your argument takes you well no because that wouldn't be what would be consistent with what st cyr inland graph specifically talk about congressional intent expression of congressional intent but as i think much of limitations case pardon me those were not cases involving issues of statutes of limitation that's true but they also did not limit themselves to cases that were not statute of limitations and i think that the reasoning behind them particularly the emphasis on fundamental fairness the elements a fair notice reasonable reliance settled expectations which went into the retroactivity analysis are very very pleasurable to the scase common answer my question if you would is the logic of your argument that any time there's a change in the statute of limitations it is having a retroactive effect and therefore congress has t i don't think the question is whether the statute is having a retroactive effect i think the statute is the question is whether the statute is having an impermissible retroactive effect because clearly congress has term ok well obviously if it is reducing the statute the time limit then what you would say it's an impermissible retroactive effect and what land graf in st cyr say is when there is not an unambiguous expression of the intent for retroactivity the court next needs to then move to a second prong of the analysis and look to whether right the new limitation would have an impermissible retroactive effect of impairing rights that the claimant had prior to the amendment attaching the legal consequences to the decision not to in this case request due process earlier which is what judge graham's i'm sorry to say why is not congress's statement in the amended act in december of zero four that prevented this provision from going into effect for seven months why is that not a sufficient statement that you know you know if you have a claim you better bring it within the next seven months because that's not what it said it didn't say that at all it was simply there was a date for the passive edges of the statute and then there was a date by which the statute would become a fact no and it wasn't  should allow a reasonable time after they take effect for the commencement of suits upon existing causes of action the what shall be considered reasonable party must be settled by the judgment of the legislature so they saw what judg else why would we second guess what the congress evidently thought was a reasonable time when the congress decided ok so in months seven months to what seven months until ok but i think that's i think that's actually two different issues there is the question that needs to be decided as to if we even get there seven months is a reasonable enough time but there's also the question of what did the seven months give notice up arguably did it give claimants notice of the fact that well as of july first two thousand and five i'm going to have a two year statute of limitations arguably yes did it give them notice that any preexisting claims under statute that had no statute of limitations were going to be extinguish no not at all and i would also just note that the wilson case did involve a significantly longer period of time an explicit grace period of three years which certainly as you know is a far cry from the seven months that we're talking about here or in your time is thank your honour's the concept of fairness has been brought up by both sides during the discussion today and from the standpoint of what occurred prior to the effective date of the statue with asians and the idea was amended versus after i think the fairness concept is important basically what they're seeking to pursue here are claims as i said dating back to the students fifth grade schoolers or dating back to one thousand nine hundred seven statute of limitations are designed to allow ample notice proper notice and timely notice to a party who has to defend those types of claims and this particular case because of the nature of the claims that issue and that the ration of the timeframe sought which the claims are being pursued is extremely difficult to do that congress recognized that by making this change in the language of the statute itself says shell file and that's what occurred a shelf i was mandatory language the seven month window it's our position does constitute a reasonable period of time for notice and from a standpoint of communicated information or position is that the district did communicate what information was required other words during that timeframe it issued before july first two thousand and five the district to the extent it had to disseminate procedural safeguards did so and the student then graduated so we're in position your honour's again because the way this played out time wise the student graduated that change was a fact after that point and the claim was brought much later we believe that that seven month period was intentional it's a reasonable notice period both sides are on on alert so to speak to have notice and then to act with all deliberate speed and with due diligence in this case unfortunately for the plaintiff that did not occur they had the window they did not pursue it during the window and they waited an extended period of time after i believe that some of the cases that were addressed in the reply brief do have some provisions that are important or are brought up that one thousand two supreme court case and that's a case where there was a contract that was issued then there was the statue limitations then an extended period of time many years actually until i think with the eight hundred eighty s and eight which there was a lame so there was ample period of time there in which the statute had existed but we believe that this case the facts are stronger here because of that seven month window and both sides were on really on alert so to speak to be aware of the change in the law you know from the standpoint of the fairness concept fairness is partly to protect the school district the responding party fairness is partly to protect the other side did they have a reasonable opportunity i think that's the crux of this issue did they have a reasonable opportunity your honor is brought up when miss raynor was speaking the concept of the issue of action in this case we believe that the retroactivity analysis should not focus on alleged substantive rights that were violated but instead  addressed in some of the case law and affirmative action or affirmative duty and the issue being when did the plaintiff bring the suit we think that's the key issue under the statute limitations analysis and in this case unfortunately as i said the suit was brought over the claim