United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 6, 2008 Decided December 16, 2008 

No. 07-7168 

DAVID T. LONG AND KAREN LONG, 

APPELLANTS

v. 

HOWARD UNIVERSITY, 

APPELLEE

Appeal from the United States District Court 

for the District of Columbia 

(No. 02cv01374) 

Harvey S. Williams argued the cause and filed the briefs 

for appellant. 

Daniel I. Prywes argued the cause for appellee. With 

him on the brief was Jacob A. Kramer. 

Before: ROGERS, TATEL and KAVANAUGH, Circuit 

Judges. 

Opinion for the Court filed by Circuit Judge 

KAVANAUGH. 
2 

KAVANAUGH, Circuit Judge: A jury found that Howard 

University discriminated against David Long, a former 

graduate student, on the basis of disability. But the jury also 

found that Long’s claim had accrued more than three years 

before he filed his lawsuit, which meant that Long’s claim 

was barred by the statute of limitations. Long now appeals, 

arguing that the University had forfeited its statute-oflimitations defense and that the District Court’s jury 

instructions on that issue were improper. We affirm. 

I 

From 1982 to 1991, David Long attended Howard 

University as a graduate student pursuing a Ph.D. in 

physiology. After falling ill with a lung ailment, he obtained 

permission from the University to take a leave of absence. At 

the time, Long indicated his intention to return to the 

University after he recovered so that he could complete his 

dissertation, undergo his oral defense, and receive his Ph.D. 

Long did not seek to return to Howard for four years. In 

1995, he asked the University to reinstate his Ph.D. 

candidacy. Given the lapse of time, however, Long had 

become subject to University policies regarding the amount of 

time that Ph.D. candidates can take to complete their degrees. 

These “course viability” policies required Ph.D. candidates to 

take special examinations to “restore” course credits from 

courses taken more than seven years earlier, and precluded 

them from relying on credits for courses taken more than 10 

years earlier. 

As part of his effort to regain admission, Long sought an 

exemption from those rules. In 1995, however, the University 

denied Long’s written requests for reinstatement and for 

exemption from the course viability policies. In 1998, the 
3 

University again refused Long’s request for reinstatement 

under a complete exemption from the course viability 

policies, instead offering to reinstate him only if he passed a 

comprehensive exam on the core courses. The University 

repeated its denial of Long’s requests in 1999, indicating that 

he remained subject to the standard course viability policies. 

After Long filed formal applications for readmission in 1999 

and 2001, the University eventually agreed to re-admit him as 

a student, but still declined to reinstate his Ph.D. candidacy or 

grant him the desired exemptions from the course viability 

policies. 

Long filed the present lawsuit against the University on 

July 9, 2002. His complaint raised numerous claims, 

including the allegation at issue here – that Howard violated 

§ 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. 

Long’s § 504 claim focused on the University’s failure to 

accede to his request that, “as an accommodation to his 

disability,” he be reinstated and allowed to proceed 

immediately to his dissertation defense without regard for the 

course viability policies. In its answer to the complaint, the 

University advanced the statute of limitations as an 

affirmative defense. It also subsequently asserted the statuteof-limitations defense in responding to interrogatories during 

discovery, at the pre-trial conference, and in a motion filed 

before trial. 

At trial, the District Court ruled that the applicable statute 

of limitations was three years. It instructed the jury that it 

should determine “[w]hether, and if so when,” Long knew 

that the University had declined his request for a modification 

of its policies, explaining that Long’s claim would be timebarred if that had happened before July 9, 1999. The jury 

concluded that Howard had violated the Act, but that Long 

knew of the University’s violations before July 1999, and that 
4 

his claims were thus barred by the statute of limitations. The 

District Court denied Long’s post-trial motion and entered 

judgment for the University. 

II 

Long contests the judgment against him on three grounds. 

First, he argues that the University forfeited its statute-oflimitations defense by failing to raise it beyond the 

“boilerplate” assertion in its answer. Second, Long contends 

that he was covered by the Rehabilitation Act only upon 

submitting a formal re-application to the University in 

October 1999 – and hence that it was impossible, as a matter 

of law, for his claim to have accrued before July 1999, 

contrary to the jury’s finding. Finally, Long says that the jury 

instructions were slanted against him, because they allegedly 

implied that the University had decided to deny him an 

accommodation for his disability before July 9, 1999, and 

therefore suggested that his claim was barred by the statute of 

limitations. 

A 

 Under Rule 8(c) of the Federal Rules of Civil Procedure, 

a defendant must assert any statute-of-limitations defense in 

the answer. See Harris v. Sec’y, Dep’t of Veterans Affairs, 

126 F.3d 339, 343 (D.C. Cir. 1997); see also 5 CHARLES 

ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE 

AND PROCEDURE § 1278 (3d ed. 2004). The University met 

its Rule 8 obligation. Its answer to Long’s complaint stated 

that “Plaintiff’s claims are barred by the applicable statute of 

limitations.” Under our precedents, that pleading sufficed to 

preserve the University’s statute-of-limitations defense for 

trial. See Daingerfield Island Protective Society v. Babbitt, 40 

F.3d 442, 445 (D.C. Cir. 1994). 
5 

Moreover, in this case, the University repeated its 

limitations defense in response to Long’s interrogatories 

during discovery, again during the pre-trial conference, and in 

a detailed motion in limine before trial. See Def.’s Answers 

to First Set of Interrogatories 22 (asserting that Long “failed 

to timely file his lawsuit”); Tr. of Pre-Trial Conf. 46 (stating 

that the “defense was raised at the pretrial conference”); 

Def.’s Mem. in Support of Mot. 9 (arguing that there were 

“serious statute of limitations problems applicable to Mr. 

Long’s claims under . . . the Rehabilitation Act”). At no time 

after the answer did the University affirmatively waive the 

statute of limitations defense; rather, it continued to assert the 

defense. 

Long maintains that the University forfeited the 

limitations defense by failing to raise it in opposition to 

Long’s motion for partial summary judgment. But there is no 

requirement that a party assert a statute-of-limitations defense 

in opposition to a summary-judgment motion in order to 

assert it at trial. On the contrary, the defense can be raised at 

trial so long as it was properly asserted in the answer and not 

thereafter affirmatively waived. Long relies on United Mine 

Workers of Am. 1974 Pension v. Pittston Co., 984 F.2d 469 

(D.C. Cir. 1993), which also involved a claim that a statuteof-limitations defense had been forfeited by failure to raise it 

at the summary-judgment stage. But as we made clear in 

Daingerfield, the defendant in Pittston “apparently waived its 

defenses from the beginning, having never asserted them in 

any pleading or motion in the district court.” 40 F.3d at 445. 

Here, of course, the University asserted its statute-oflimitations defense repeatedly, beginning in its answer to 

Long’s complaint. 
6 

Our decision on this issue not only is compelled by the 

text of the Federal Rules and our precedent in Daingerfield, 

but also is fully consistent with the goal of Rule 8’s pleading 

requirement. As we have explained, the purpose is to ensure 

that the plaintiff is able “not only to frame legal arguments, 

but to establish relevant facts that might affect the 

applicability of the statute of limitations.” Harris, 126 F.3d at 

343. At the time of discovery, Long was well aware that the 

University had raised the statute-of-limitations defense in its 

answer. Therefore, Long could not have been prejudiced 

during discovery in his ability to obtain factual information 

relevant to the statute-of-limitations issue. Moreover, Long 

could have sought clearer statements from the University 

about its statute-of-limitations defense by using the 

procedures specified in Rule 36(a)(6) or 37(a)(4) of the 

Federal Rules of Civil Procedure. In short, nothing in the 

University’s pre-trial conduct impeded Long’s ability to 

contest the statute-of-limitations defense at trial. 

B 

 Long also contends that the District Court misconstrued 

§ 504 of the Rehabilitation Act and its implementing 

regulations when instructing the jury on the statute-oflimitations issue. Long argues that the Act’s ban on 

discriminatory “academic requirements” protects only a 

“qualified handicapped applicant or student.” 45 C.F.R. § 

84.44(a). He therefore says that his claim could not have 

accrued – as a matter of law – anytime before he submitted a 

formal application for re-admission in October 1999. 

Because he filed suit within three years of his October 1999 

application, Long argues that his claim was not time-barred 

and that the jury should not have been instructed at all on the 

statute of limitations. 
7 

 At trial, Long failed to raise this argument or to object to 

the jury instructions on this ground. Although he did 

challenge the proposed jury instructions for a variety of 

reasons, he did not raise this broad contention. See Pl.’s 

Objections to Proposed Jury Instructions and Jury Form 6, 7-

8. Indeed, his first hint of this objection came only after trial, 

in a reply memorandum supporting his motion for new trial. 

Pl.’s Reply in Support of Pl.’s Mot. For New Trial, 2-5. And 

even then, Long failed to cite the regulation – 45 C.F.R. § 

84.44(a) – that he now argues is decisive. Cf. Tr. of Oral Arg. 

14. 

Rule 51 of the Federal Rules of Civil Procedure requires 

that objections to jury instructions be made “on the record, 

stating distinctly the matter objected to and the grounds for 

the objection” and “before the instructions . . . are delivered.” 

FED. R. CIV. P. 51(c), (b). If a party fails to properly object to 

jury instructions, appellate review is only for “plain error.” 

Id. at 51(d)(2). 

 In light of Long’s failure to properly object to the jury 

instructions on this ground at trial, our review is for plain 

error. To prevail on a plain-error argument, the objecting 

party must establish four elements: “(1) there must be an 

error; (2) the error must be plain; (3) the error must affect 

substantial rights; and (4) the error must seriously affect the 

fairness, integrity, or public reputation of judicial 

proceedings.” Muldrow ex rel. Estate of Muldrow v. ReDirect, Inc., 493 F.3d 160, 169 (D.C. Cir. 2007) (internal 

quotation mark omitted). The Supreme Court has emphasized 

that “‘[p]lain error’ review under Rule 51 is suited to 

correcting obvious instances of injustice or misapplied law.” 

City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 256 

(1981) (emphasis added). Indeed, “the word ‘plain’ is 

synonymous with ‘clear’ or, equivalently, ‘obvious.’” 
8 

Johnson v. United States, 520 U.S. 461, 467 (1997) (internal 

quotation marks omitted).*

 Reversal under the plain error 

standard is thus reserved only for “exceptional 

circumstances.” FED. R. CIV. P. 51 advisory committee’s 

notes to 2003 amendments. 

 Long’s interpretation of the Rehabilitation Act 

regulations does not show that the District Court made a 

“clear” or “obvious” error. Indeed, as the District Court 

pointed out, and contrary to Long’s interpretation, § 504 of 

the Act itself and 45 C.F.R. § 84.4(a)’s “general” provision 

extend broad protections against discrimination to disabled 

individuals, without limiting coverage exclusively to formal 

applicants or students. Long v. Howard University, 512 F. 

Supp. 2d 1, 15 (D.D.C. 2007). Therefore, it is far from 

“plain” that Long’s claim could not have accrued before his 

formal application in October 1999. And in the absence of 

plain error, this argument about the jury instructions is 

unavailing. 

 

C 

 Long’s final contention is that the District Court’s jury 

instructions improperly led the jury to believe that his lawsuit 

had been filed after the statute of limitations had run. By 

 * Johnson was a criminal case in which the Supreme Court 

interpreted the “plain error” standard in Rule 52 of the Federal 

Rules of Criminal Procedure. Nonetheless, we follow the notes of 

the Advisory Committee on Civil Rules in recognizing that Civil 

Rule 51 is borrowed from Criminal Rule 52 and should be 

interpreted accordingly while still, of course, taking account of the 

differences between civil and criminal litigation. FED. R. CIV. P. 51 

advisory committee’s notes to 2003 amendments; see Muldrow, 

493 F.3d at 168 & n.5 (internal quotation marks omitted). 
9 

Long’s account, the problematic sentence in the jury 

instructions was the following: 

If, on a date later than July 9, 1999, Mr. Long asked the 

University to reconsider its decision not to modify its 

policies or rules, or asked the University for the same 

modification he had previously requested, his claim is 

still barred by the statute of limitations if, before July 9, 

1999, Mr. Long knew, or by the exercise of reasonable 

care should have known, that the University had declined 

his request for a modification. 

Jury Instructions and Verdict Form 38-39. 

 In Long’s view, this sentence contained two distinct 

problems. 

 First, it allegedly did not allow the jury “to consider 

discrete acts of discrimination” after July 9, 1999 “as 

anything other than responses to requests to reconsider [the 

University’s] decision.” Appellant’s Br. 47 (internal 

quotation mark omitted). We disagree. Nothing in the 

instruction prevented the jury from deciding that the 

University discriminated against Long after 1999 in any 

discrete incident. And to the extent that any such actions 

were merely a re-affirmation of any University action denying 

Long’s requests for reinstatement lodged in the 1990s, the 

District Court properly explained that such claims were 

barred. As the Supreme Court made clear in Delaware State 

College v. Ricks, “requests to reconsider” decisions already 

made “cannot extend the limitations periods applicable to the 

civil rights laws.” 449 U.S. 250, 261 n.15 (1980). 

 Second, Long contends that the jury instruction suggested 

that the University had, in fact, made a decision on Long’s 
10 

candidacy before July 9, 1999. As the District Court pointed 

out, however, the challenged sentence immediately followed a 

separate paragraph explaining that the jury had the right to 

determine “[w]hether, and if so when,” the University ever 

declined his requests for accommodation. Jury Instructions 

and Verdict Form 38; Long, 512 F. Supp. 2d at 18-19. In 

context, therefore, the challenged sentence did not suggest 

that the University had made its decision before July 1999. 

 We review the wording of jury instructions for abuse of 

discretion. Joy v. Bell Helicopter Textron, 999 F.2d 549, 556 

(D.C. Cir. 1993). The District Court’s jury instruction 

concerning the University’s statute-of-limitations defense was 

well within the acceptable bounds of its discretion. 

* * * 

 We affirm the judgment of the District Court. 

So ordered.