Angelica Herrera v. John Finan , 709 F. App'x 741 ( 2017 )


Menu:
  •                                   UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 16-1496
    ANGELICA ROCHA HERRERA,
    Plaintiff – Appellant,
    v.
    JOHN L. FINAN, Chair of the South Carolina Commission on Higher Education,
    in his individual and official capacity; BETTIE ROSE HORNE, in her individual
    and official capacity; HOOD TEMPLE, in his individual and official capacity;
    TERRYE C. SECKINGER, in her individual and official capacity; NATASHA M.
    HANNA, in her individual and official capacity; ELIZABETH JACKSON, in her
    individual and official capacity; LEAH B. MOODY, in her individual and official
    capacity; CHARLES MUNNS, in his individual and official capacity; KIM F.
    PHILLIPS, in his individual and official capacity; JENNIFER B. SETTLEMYER,
    in her individual and official capacity; DIANNE C. KUHL, in her individual and
    official capacity,
    Defendants – Appellees.
    Appeal from the United States District Court for the District of South Carolina, at
    Spartanburg. Bruce H. Hendricks, District Judge. (7:14-cv-02255-BHH)
    Argued: September 13, 2017                                 Decided: October 4, 2017
    Before AGEE, KEENAN, and HARRIS, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    ARGUED: Burth Gilbert Lopez, MEXICAN AMERICAN LEGAL DEFENSE AND
    EDUCATIONAL FUND, Washington, D.C., for Appellant. Andrew Lindemann,
    DAVIDSON & LINDEMANN, P.A., Columbia, South Carolina, for Appellees. ON
    BRIEF: Thomas A. Saenz, MEXICAN AMERICAN LEGAL DEFENSE AND
    EDUCATIONAL FUND, Los Angeles, California, for Appellant.
    Unpublished opinions are not binding precedent in this circuit.
    2
    PER CURIAM:
    After two South Carolina public universities classified Angelica Rocha Herrera as
    an out-of-state resident for purposes of establishing her college tuition rate, she brought
    this action in the United States District Court for the District of South Carolina against
    the Commissioners of the South Carolina Commission on Higher Education (the
    “Commissioners”). She alleges that the Commissioners’ administration and enforcement
    of the state’s rules for establishing in-state residency violated her equal protection and
    substantive due process rights under the Fourteenth Amendment of the United States
    Constitution. Specifically, Rocha asserts that the rebuttable presumption under South
    Carolina law that the residency of dependent students mirrors their parents’ residency is
    unconstitutional. The district court granted the Commissioners’ motion for summary
    judgment, which we affirm for the reasons that follow.
    I.
    A.
    Tuition at public colleges and universities in South Carolina is contingent on a
    student’s residency. Out-of-state students typically pay a significantly higher rate than do
    in-state residents. In the determination of residency, students bear the burden of
    establishing eligibility for in-state tuition rates. S.C. Code Ann. § 59-112-80; see also
    S.C. Code Ann. Regs. § 62-600(B); S.C. Code Ann. Regs. § 62-605(B). The same
    residency rules determine whether a student is eligible for certain scholarships—such as
    the state’s Legislative Incentive for Future Excellence (“LIFE”) scholarship—awarded
    3
    exclusively to in-state residents. See S.C. Code Ann. § 59-149-20(A)–(B) (“To be eligible
    for a LIFE scholarship, a student must be considered a resident of this State as provided
    in this chapter,” including that the student “is classified as a resident of South Carolina
    for in-state tuition purposes . . . at the time of enrollment[.]”).
    A factor governing the residency determination is whether a student is classified as
    “independent” or “dependent.” S.C. Code Ann. § 59-112-20. In relevant part, a
    “dependent” is an individual “whose financial support is provided not through his own
    earnings or entitlements, but whose predominant source of income or support is payments
    from a parent . . . and who qualifies as a dependent or an exemption on the federal tax
    return of the parents[.]” S.C. Code Ann. § 59-112-10(G). A dependent student’s
    residence is “presumed to be that of [his or her] parent.” S.C. Code Ann. § 59-112-20(D);
    see also S.C. Code Ann. Regs. § 62-603(B) (“[T]he residence . . . of a dependent person
    shall be presumed to be that of their parent.”). 1
    Under South Carolina law, the South Carolina Commission on Higher Education
    is responsible for promulgating regulations related to the determination of resident status
    for college tuition purposes. S.C. Code Ann. § 59-112-100; see also S.C. Code Ann. §
    59-103-17 (charging the Commission to “develop policies, procedures, or regulations
    necessary for the implementation of” state laws regarding higher education). However,
    each individual public institution bears the responsibility of applying the regulations to
    1
    The statutory presumption of residency applies to “dependent minors” while the
    regulation applies to all “dependents.” The distinction does not matter for purposes of this
    appeal.
    4
    make the residency determination for each of its students and establishing an appeals
    process for those students who contest their status. See, e.g., S.C. Code Ann. § 59-112-80
    (requiring “[e]ach State Institution [to] designate an official to administer” student
    residency determinations); S.C. Code Ann. Regs. § 62-600(B) (governing the burden of
    proof in challenges to an institution’s residency determination); S.C. Code Ann. Regs. §
    62-612 (governing appeals).
    B.
    Rocha was born in the United States and, thus, is a United States citizen. Her
    parents are neither citizens nor lawful residents of the United States. Rocha and her
    family have lived in South Carolina for many years.
    During her final year of high school, Rocha was accepted for admission to the
    University of South Carolina-Upstate (“USC-Upstate”). She also received a teaching
    fellowship (“CERRA fellowship”) offered at select universities, including USC-Upstate.
    Among other benefits, the CERRA fellowship affords recipients financial aid for up to
    four years of attendance at a participating institution. In addition, Rocha anticipated
    receiving a LIFE scholarship, which provides qualifying South Carolina residents with
    tuition assistance for up to four years of undergraduate enrollment.
    At the time Rocha was applying to college, she was dependent on her parents for
    financial support. After considering the information Rocha provided concerning her
    parents’ residency, USC-Upstate administrators classified her as an out-of-state resident
    for tuition purposes. This classification also meant that she was ineligible for the LIFE
    5
    scholarship. Consequently, Rocha determined that she could not afford to attend USC-
    Upstate and withdrew from both the school and the CERRA fellowship.
    Rocha then decided to apply to Converse College (“Converse”), a less expensive
    school that did not offer the CERRA fellowship. After performing its own review of
    Rocha’s residency status, Converse also classified her as an out-of-state resident.
    Nonetheless, Rocha remained enrolled and began attending classes at Converse in the fall
    of 2013.
    In June 2014, Rocha filed a complaint in the United States District Court for the
    District of South Carolina asserting a claim under 42 U.S.C. § 1983 and alleging that
    South Carolina’s residency rules violated the Fourteenth Amendment’s guarantees of
    equal protection and substantive due process as applied to her. 2 She sought declaratory
    and injunctive relief to prohibit the Commissioners from classifying dependent students
    who are United States citizens as nonresidents based on their parents’ immigration status.
    She also sought restitution and damages arising from her classification as a nonresident.
    Rocha moved for partial summary judgment as to liability, as well as declaratory
    and injunctive relief. The Commissioners moved for summary judgment as to the entire
    case, relying on several different theories, including that Rocha failed to sue the proper
    parties and that the Commissioners were entitled to legislative and qualified immunity.
    2
    Rocha also asserted facial equal protection and substantive due process claims, as well
    as a claim based on a violation of the Privileges and Immunities Clause. But she has abandoned
    those claims on appeal by failing to raise any arguments regarding them. See Goode v. Cent. Va.
    Legal Aid Soc’y, Inc., 
    807 F.3d 619
    , 622 n.3 (4th Cir. 2015) (stating that a claim pursued in the
    district court but not raised in the Appellant’s opening brief has been abandoned).
    6
    During the pendency of these motions, the Commission issued advisory guidance
    for determining residency for dependent United States citizen students whose parents are
    not United States citizens or lawful residents. The guidance reiterated that the State’s
    presumption of mirrored residency was rebuttable, and it set out various criteria it
    recommended schools consider in deciding whether such a student could establish
    residency notwithstanding his or her parents’ immigration status. As a result of that
    guidance, Converse reclassified Rocha as an in-state resident for her final year of
    attendance. In addition, Converse retroactively awarded Rocha in-state residency status
    for her first three years’ of enrollment. Consistent with that reclassification, Rocha
    received a check “in retroactive payment for the LIFE Scholarship awards.” Plaintiff’s
    Notice of Change of Fact in Support of Their Motion for Summary Judgment at 1,
    Herrera v. Finan, No. 7:14-CV-2255-BHH (D.S.C. Nov. 24, 2015), ECF No. 54.
    In a thorough opinion, the district court denied Rocha’s motion for partial
    summary judgment and granted the Commissioners’ motion for summary judgment as to
    all claims. Herrera v. Finan, 
    176 F. Supp. 3d 549
    (D.S.C. 2016). The court held that
    Rocha’s as-applied challenges failed because § 1983 claims must be based on the
    defendants’ own conduct violating a plaintiff’s constitutional rights, but no such conduct
    had been pled in this case. 
    Id. at 569.
    Rocha’s complaint did not allege that any
    individual Commissioner had a role in her residency determination at either USC-Upstate
    or Converse. 
    Id. at 569–70.
    As a consequence, there was no proper party defendant
    before the court. In addition, the court observed the Commissioners would likely be
    7
    entitled to legislative immunity and it held, in all events, that the claims also failed on
    their merits. 
    Id. at 570.
    Rocha noted a timely appeal and the Court has jurisdiction pursuant to 28 U.S.C. §
    1291.
    In May 2017—after briefing in this appeal had finished—Rocha graduated from
    Converse.
    II.
    A.
    The Commissioners contend that Rocha’s claims for injunctive and declaratory
    relief are moot because she graduated in May 2017 and thus is no longer affected by the
    allegedly unconstitutional residency rules. Rocha counters that her claims survive based
    on an exception to mootness for those rare claims that are capable of repetition and yet
    without a decision on the merits would, by their nature, evade judicial review.
    Specifically, she notes that if she attended a South Carolina public university in the future
    to obtain a graduate degree, the same residency rules would apply to her.
    The doctrine of mootness arises out of the judiciary’s limited constitutional
    authority to adjudicate “cases” and “controversies.” See DaimlerChrysler Corp. v. Cuno,
    
    547 U.S. 332
    , 341 (2006). “[C]ourts have no business deciding [a legal dispute] or
    expounding on the law” in the absence of a case or controversy. 
    Id. “[A] case
    is moot when the issues presented are no longer ‘live’ or the parties lack
    a legally cognizable interest in the outcome.” Powell v. McCormack, 
    395 U.S. 486
    , 496
    8
    (1969). Moreover, a case can become moot at any stage of the proceeding, including on
    appeal. See, e.g., Preiser v. Newkirk, 
    422 U.S. 395
    , 401 (1975) (“The rule in federal cases
    is that an actual controversy must be extant at all stages of review, not merely at the time
    the complaint is filed.”).
    In cases challenging school policies, we have previously recognized that students’
    “claims for declaratory and injunctive relief generally become moot when they graduate.”
    Mellen v. Bunting, 
    327 F.3d 355
    , 364 (4th Cir. 2003). This is so because once a student
    has graduated, “a case or controversy no longer exists between the [plaintiff] and the
    [defendants] with respect to the validity of the rules at issue.” Bd. of Sch. Comm’rs v.
    Jacobs, 
    420 U.S. 128
    , 129 (1975) (per curiam).
    As noted, Rocha contends that her claims for injunctive and declaratory relief are
    not moot, invoking the principle that claims which are capable of repetition, but evade
    judicial review, are exempt from the usual rules of mootness. This exception applies
    when “(1) the challenged action is in its duration too short to be fully litigated prior to
    cessation or expiration; and (2) there is a reasonable expectation that the same
    complaining party will be subject to the same action again.” See FEC v. Wisc. Right to
    Life, Inc., 
    551 U.S. 449
    , 462 (2007). Rocha is far from the first graduate to urge courts to
    invoke this principle to save her challenges to school policies. See, e.g., 
    Mellen, 327 F.3d at 364
    (collecting cases). But as with those earlier graduates, the doctrine is inapplicable
    because, absent special circumstances, there is not a “reasonable expectation” that
    graduated students will be subject to school policies affecting them in the future. Id.; see
    also Williams v. Spencer, 
    622 F.2d 1200
    , 1204 (4th Cir. 1980) (treating as moot students’
    9
    claims for injunctive relief based on constitutional violations arising from school policies
    because, following the students’ graduation, “the case present[ed] no question that [wa]s
    capable of repetition, yet evad[ed] review”).
    In an attempt to circumvent mootness, Rocha now claims that she may pursue a
    graduate degree. However, it was not until this appeal that she asserted such a possible
    interest or expressed concern that she would again be subject to the residency rules at
    some unknown future date unrelated to her undergraduate education. Such last-minute
    speculation of future enforcement in a separate educational program cannot “shield [her]
    case from . . . mootness[.]” See City News & Novelty, Inc. v. City of Waukesha, 
    531 U.S. 278
    , 283 (2001); accord Bunting v. Mellen, 
    541 U.S. 1019
    , 1021 (2004) (Stevens, J.,
    statement respecting the denial of certiorari) (same). Rocha’s argument is speculative for
    at least two more reasons: (1) the residency rules she complains of will only apply if an
    institution continues to classify Rocha, now a college graduate who intends to “pursue[] a
    career in teaching math in secondary school,” Opening Br. 8, as an individual who is
    “dependent” on her parents for financial support; and (2) even if Rocha were classified as
    a dependent of her parents, the 2015 guidance that resulted in Rocha being reclassified as
    an in-state resident would just as likely cause her chosen institution to classify her as an
    in-state resident. Based on both the number and nature of these unknown factors, no
    “reasonable expectation” exists on this record that Rocha “will be subjected to the same
    action again.” 
    Mellen, 327 F.3d at 364
    . Accordingly, her claim does not fall under a
    mootness exception.
    10
    Based on the foregoing, we hold Rocha’s claims for injunctive and declaratory
    relief are moot.
    B.
    Rocha’s claims for monetary damages also cannot proceed. In her complaint,
    Rocha asked the district court to “[a]ward [her] restitution and damages incurred as a
    result of [the Commissioners] classifying her as a nonresident for purposes of tuition and
    financial aid determinations.” J.A. 11. While Rocha’s graduation renders her claims for
    prospective relief moot, it would not necessarily render moot her claims for damages
    arising from past violations of her rights. See Havens Realty Corp. v. Coleman, 
    455 U.S. 363
    , 371 (1982) (“Given respondents’ continued active pursuit of monetary relief, this
    case remains ‘definite and concrete, touching the legal relations of parties having adverse
    legal interest.’”); Thana v. Bd. of License Comm’rs, 
    827 F.3d 314
    , 323 n.3 (4th Cir. 2016)
    (“We note that this case is not moot . . . given that [the plaintiff] seeks compensatory
    damages for past harm.”).
    Nevertheless, Rocha’s opening brief only mentions damages once, in her
    statement of the case, where she asks the Court to remand the case and “direct the district
    court to . . . determine the proper measure of damages for Rocha’s injuries.” Opening Br.
    3. Apart from this fleeting reference, Rocha’s entire argument, including her recitation of
    the standard of review and conclusion, is framed in terms of whether she is entitled to a
    permanent injunction barring enforcement of the residency rules against her. Opening Br.
    11 (“In evaluating the grant or denial of a permanent injunction, this Court ‘reviews the
    district court’s application of legal principles de novo.” (emphasis added)); 37 (“Rocha
    11
    respectfully requests that this Court reverse the district court’s denial of its [sic] motion
    for a permanent injunction and reverse its entry of summary judgment on behalf of the
    Commissioners.” (emphasis added)). And in response to questions from the Court at oral
    argument, Rocha expressly conceded that an argument about damages was “not in [her]
    briefs.” Oral Argument Audio Recording at 3:43–4:54.
    “[T]his Court normally views contentions not raised in an opening brief to be
    waived.” Carter v. Lee, 
    283 F.3d 240
    , 252 n.11 (4th Cir. 2002). Raising an issue in an
    opening brief requires a party to conform to Federal Rule of Appellate Procedure 28(a)(8)
    by including her “contentions and the reasons for them, with citations to the authorities
    and parts of the record on which the appellant relies” as well as “a concise statement of
    the applicable standard of review.” Relying on this rule, we have held that a passing
    reference to a claim is insufficient to preserve an argument for appellate review and that
    such scant attention in an opening brief results in waiver. E.g., Edwards v. City of
    Goldsboro, 
    178 F.3d 231
    , 241 n.6 (4th Cir. 1999) (“Failure to comply with the specific
    dictates of [Federal Rule of Appellate Procedure 28(a)(8)] with respect to a particular
    claim triggers abandonment of that claim on appeal.”); see also Belk, Inc. v. Meyer Corp.,
    
    679 F.3d 146
    , 152 n.4 (4th Cir. 2012) (holding that an issue was waived when a party
    included it in a heading, but did not otherwise develop the argument); Martinez-Serrano
    v. INS, 
    94 F.3d 1256
    , 1259–60 (9th Cir. 1996) (reiterating that something raised in the
    appellant’s statement of the case, but not discussed in the argument section, is waived). In
    view of Rocha’s concession at argument, which is fully supported by our own reading of
    12
    her opening brief, we conclude that she has waived appellate review of her damages
    claim. 3
    III.
    In light of the foregoing, we do not consider the availability of injunctive and
    declaratory relief because that aspect of the case is moot. We further hold that Rocha has
    waived any appeal of her claim for damages. Accordingly, the judgment of the district
    court is
    AFFIRMED.
    3
    Because mootness and waiver dispose of Rocha’s entire appeal, we need not address the
    parties’ arguments concerning whether the Commissioners are proper party defendants for
    Rocha’s § 1983 claims, whether the Commissioners are entitled to legislative immunity, and
    whether South Carolina’s residency rules violate principles of equal protection or substantive due
    process.
    13