Pollack v. Regional School Unit 75 , 660 F. App'x 1 ( 2016 )

Not For Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 16-1414
MATTHEW POLLACK, individually and as next friend of B.P.;
JANE QUIRION, individually and as next friend of B.P.,
Plaintiffs, Appellants,
v.
REGIONAL SCHOOL UNIT 75,
Defendant, Appellee,
KELLY ALLEN; TANJI JOHNSTON; PATRICK MOORE; BRADLEY V. SMITH,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Nancy Torresen, U.S. District Judge]
Before
Torruella, Thompson, and Kayatta,
Circuit Judges.
Richard L. O'Meara, Rachel W. Sears and Murray, Plumb &
Murray, on brief for appellants.
Nathaniel A. Bessey, Daniel A. Nuzzi and Brann & Isaacson, on
brief for appellee.
October 4, 2016
Per Curiam. Plaintiffs-Appellants Matthew Pollack and
Jane Quirion (the "Parents") are the parents of B.P., a seventeen-
year-old student at Regional School Unit 75 (the "District") who
is diagnosed with autism, cognitive impairment, and a variant of
Landau-Kleffner Syndrome, which affects his ability to understand
and express language. B.P. is nonverbal and therefore cannot
communicate with his parents about his school day the way a student
without his disabilities can. His education is guided by an
Individualized Education Plan ("IEP") pursuant to the Individuals
with Disabilities Education Act, 20 U.S.C. §§ 1400-50, et seq.
("IDEA").
In 2012, after an incident in which B.P. was
uncharacteristically upset when picked up from school, the Parents
began requesting that the District allow him to wear an audio
recording device to school. The District denied these requests,
citing the District's policy against the use of electronic devices
and concerns about the potential effect on the education
environment. These requests for the use of a recording device are
at the heart of this appeal.
On September 11, 2012, the Parents filed a due process
complaint with the Maine Department of Education. See 20 U.S.C.
§ 1415(f). The complaint alleged that, by refusing to allow B.P.
to wear a recording device, the District had failed to make a
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reasonable accommodation under Title II of the Americans with
Disabilities Act, 42 U.S.C. §§ 12131-34 ("ADA") and thereby
impaired the Parents' ability to obtain information about B.P.'s
school day and his education. A Special Education Due Process
Hearing was held over the course of three days and on December 29,
2012, the hearing officer denied the request that B.P. be permitted
to wear a recording device. The hearing officer appears to have
viewed the claim as limited to whether the Parents were
sufficiently informed so that they could meaningfully participate
in B.P.'s development and education, and noted that B.P.'s
educational plan, as embodied in his IEP, was not challenged.
The Parents then filed suit in the district court on
March 27, 2013. In addition to claims not relevant to this appeal,
they asserted claims for review of the hearing officer's decision
and for violations of the ADA, Section 504 of the Rehabilitation
Act, 29 U.S.C. § 794 ("Section 504"), and the First Amendment, all
in relation to the District's refusal to allow B.P. to wear the
recording device. On January 27, 2016, the district court granted
summary judgment for the District on the ADA, Section 504, and
First Amendment claims relating to the recording device
prohibition, on the grounds that the Parents had failed to exhaust
the IDEA administrative process as required by 20 U.S.C. § 1415(l).
Viewing the Special Education Due Process Hearing as limited only
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to claims involving the Parents' rights to participate in B.P.'s
education, the district court held that the Parents had failed to
exhaust the IDEA process as to B.P.'s own substantive rights.
Because the ADA, Section 504, and First Amendment claims alleged
violations of rights personal to B.P., the district court held
that the earlier Special Education Due Process Hearing was
insufficient to exhaust under 20 U.S.C. § 1415(l). The Parents
appealed, challenging the ruling as error.
On September 12, 2016, the District filed a Rule 28(j)
letter notifying this court of developments that occurred during
the pendency of this appeal. Shortly before the district court's
January 27, 2016 order, the Parents filed a new due process
complaint with the Maine Department of Education, contending that
the District's refusal to allow the recording device deprived B.P.
of a free appropriate public education as required by the IDEA.
Another Special Education Due Process Hearing occurred and, on
June 2, 2016, that claim was denied by a hearing officer.
This court ordered the parties to comment on that
decision's effect on the pending appeal. In their responses, both
parties agreed that the Parents have satisfied the exhaustion
requirement as articulated by the district court, and that the
question whether the second due process hearing was necessary is
now moot. This court agrees, and this appeal is therefore moot.
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However, this does not render the entire case moot --
the Parents still seek a determination on the merits of the ADA,
Section 504, and First Amendment claims. The District urges us
to dismiss the appeal and leave the judgment below intact. The
Parents, on the other hand, argue that we should dismiss the
appeal, vacate the summary judgment order, and remand to the
district court for consideration on the merits.
When an appeal becomes moot, the decision of whether to
vacate a trial court order "rests in the equitable discretion of
this court." Kerkhof v. MCI Worldcom, Inc., 282 F.3d 44, 53 (1st
Cir. 2002) (citing U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship,
513 U.S. 18, 25 (1994)). "A primary concern is whether the
appellant deliberately mooted the appeal," such as through
settlement or withdrawal of the appeal. Id. at 53-54. When faced
with a situation nearly identical to the one before us, the Sixth
Circuit granted vacatur and remanded for consideration of the
merits. See S.S. v. E. Ky. Univ., 125 F. App'x 644, 645-46 (6th
Cir. 2005) (unpublished decision) (vacating and remanding for
consideration of the merits where plaintiff satisfied IDEA
exhaustion during pendency of appeal).
We believe that approach is the most equitable. Unlike
instances in which an appellant settles an entire case and "thereby
surrender[s] his claim to the equitable remedy of vacatur," U.S.
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Bancorp Mortg. Co., 513 U.S. at 25, the Parents merely took the
actions necessary to clear the procedural hurdle of exhaustion in
accordance with the district court's order. The Parents have
already undergone lengthy litigation in both administrative and
federal forums to achieve resolution of their claims; the only bar
remaining to a determination of the merits of these claims was
this issue of exhaustion. Now that they have undoubtedly
exhausted the process required by the IDEA, it would be inequitable
to leave the summary judgment order standing and have these claims
dismissed without ever reaching their merits.
Accordingly, we dismiss the appeal as moot, vacate the
portion of the district court's order granting summary judgment
for the District on the ADA, Section 504, and First Amendment
claims relating to B.P.'s right to wear a recording device at
school, and remand for determination of the merits of those claims.
Each side to bear its own costs.
Vacated and Remanded.
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