DocketNumber： 97-1477
Filed Date： 11/25/1997
Status： Precedential
Modified Date： 9/21/2015
United States Court of Appeals
For the First Circuit
____________________
No. 97-1477
THOMAS R.W., BY AND THROUGH HIS NEXT
FRIENDS PAMELA R. AND EDWARD W.,
Plaintiffs, Appellants,
v.
MASSACHUSETTS DEPARTMENT OF EDUCATION, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge] ___________________
____________________
Before
Stahl, Circuit Judge, _____________
Campbell and Bownes, Senior Circuit Judges. _____________________
____________________
Stewart T. Graham, Jr. with whom Graham & Graham was on brief for ______________________ _______________
appellants.
Judy Zeprun Kalman, Assistant Attorney General, with whom Scott __________________ _____
Harshbarger, Attorney General, was on brief for appellee Massachusetts ___________
Department of Education, Peter L. Smith, with whom Paroshinsky Law ______________ _______________
Offices was on brief for appellee Mohawk Trail Regional District. _______
____________________
November 17, 1997
____________________
BOWNES, Senior Circuit Judge. This appeal was BOWNES, Senior Circuit Judge. _____________________
brought under the Individuals with Disabilities Education Act
(IDEA), 20 U.S.C. 1400 et seq. (1996) to resolve the _______
question of whether a disabled student in a private school is
entitled to the on-site services of a one to one aide
provided by the public school system. Because we find that
appellant's claim for injunctive relief became moot when he
graduated, we now vacate the judgment of the district court
and dismiss the appeal without reaching the merits.
BACKGROUND BACKGROUND
Appellant Thomas R.W. (Thomas) is a fourteen-year-
old, special education student who has ataxia telangiectasia,
a congenital, progressive neurological disorder that results
in loss of mobility control. As a student at the private,
non-sectarian Greenfield Center School since kindergarten,
Thomas had received physical, occupational, and speech
therapy services as part of his individual education plan
(IEP). Appellees Massachusetts Department of Education and
Mohawk Trail Regional School District, the local education
agency (collectively "LEA"), provided these services to
Thomas at the private Greenfield School.
Because of his ongoing physical difficulties,
Thomas came to require the full-time help of an instructional
aide to assist him in the classroom. Although his parents
and the LEA both agreed with the necessity of an aide, their
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dispute centered on whether the LEA would fund an aide at the
private school. The parents wanted the LEA to provide an
aide for Thomas at the private Greenfield School; the LEA
offered to pay for an aide only at the local public school,
Colrain. Rejecting the IEP that called for an aide at the
public school, Thomas's parents (with assistance from
Greenfield) assumed the cost of an aide for on-site special
education services at the private school, and sought
injunctive relief against the LEA in an appeal to the Bureau
of Special Education Appeals (BSEA).
At the hearing before the BSEA, Thomas argued that
the LEA was not only permitted to fund an aide at the private
school, but that the IDEA required such funding for on-site
services, relying on Zobrest v. Catalina Foothills Sch. _______ _________________________
Dist., 509 U.S. 1 (1993) (providing a sign language _____
interpreter at parochial school under IDEA does not violate
establishment clause). The LEA maintained that its statutory
obligations under the IDEA were fulfilled by offering Thomas
a "genuine opportunity for equitable participation" in
special education services available at the public school.
The BSEA hearing officer ruled that the LEA was not legally
obligated to fund an aide at the private school because
Thomas's IEP, which made an aide available at the public
school, provided for a free appropriate public education
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(FAPE), thereby satisfying the LEA's responsibility under the
IDEA.
Thomas sought review of the BSEA decision in the
district court (Neiman, U.S.M.J. presiding), which found that
Thomas's parents "ha[d] not borne their burden of
demonstrating the central element of their case -- the
inappropriateness of the IEP." The district court found
that, to establish a claim under the IDEA, a plaintiff must
first make a threshold showing that the IEP was
inappropriate. An IEP is inappropriate if it denies the
student a FAPE. See School Comm. of Burlington v. Dep't of ___ __________________________ ________
Educ., 471 U.S. 359, 374 (1985) ("If a handicapped child has _____
available a free appropriate public education and the parents
choose to place the child in a private school or facility,
the public agency is not required . . . to pay for the
child's education at the private school or facility."); 34
C.F.R. 300.403 (1984). In fact, the BSEA hearing officer
had determined that neither the appropriateness of the IEP,
nor the ability and willingness of the LEA to implement it,
was in dispute. Because Thomas failed to establish this
essential element of his claim -- that his IEP was
inappropriate -- the magistrate judge recommended granting
defendant LEA's motion for summary judgment.
Upon de novo review, the district court (Ponsor,
J.), adopted the magistrate's recommendation, holding that
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Thomas had failed to show as a matter of law that his IEP was
inadequate to provide him with a FAPE. In entering summary
judgment for the LEA, the district court prudently declined
to address the constitutional issues regarding Zobrest raised _______
in dicta by the magistrate. Thomas filed this appeal.
STANDARD OF REVIEW STANDARD OF REVIEW
We review a district court's grant of summary
judgment de novo, affirming only where there are no disputed
issues of material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex _______
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). _____ _______
DISCUSSION DISCUSSION
Article III, 2 of the Constitution grants
jurisdiction to federal courts to adjudicate only live cases
or controversies. U.S. Const., art. III, 2, cl. 1. For a
case to be justiciable, "an actual controversy must exist at
all stages of appellate . . . review, and not simply at the
date the action is initiated." Roe v. Wade, 410 U.S. 113, ___ ____
125 (1973). A case becomes moot "when the issues presented
are no longer 'live' or the parties lack a legally cognizable
interest in the outcome, or alternatively, when the party
invoking federal court jurisdiction no longer has a personal
stake in the outcome of the controversy." Boston and Maine ________________
Corp. v. Brotherhood of Maintenance of Way Employees, 94 F.3d _____ ___________________________________________
15, 20 (1st Cir. 1996) (internal citations omitted). "A case
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is moot, and hence not justiciable, if the passage of time
has caused it completely to lose its character as a present,
live controversy of the kind that must exist if the court is
to avoid advisory opinions on abstract propositions of law."
Laurence H. Tribe, American Constitutional Law 3-11, at 83
(2d ed. 1988) (internal quotations omitted).
Thomas's graduation from the private Greenfield
School last spring, and matriculation into the public Mohawk
Trail Regional High School this fall, mooted the issue for
which he sought relief. Since his graduation, Thomas no
longer meets the live case or controversy requirement of
Article III, 2. In the absence of a live case or
controversy, this case is moot and therefore, we lack
jurisdiction to rule on the merits of appellant's claim.
The rationale for the mootness doctrine is
predicated on judicial economy -- saving the use of the
court's scarce resources for the resolution of real disputes.
To avoid the relitigation of an otherwise moot question,
however, the mootness doctrine countenances an exception for
issues "capable of repetition, yet evading review." Roe, 410 ___
U.S. at 125. To preserve a case from mootness under this
exception, two requirements must be met: "(1) the challenged
action was in its duration too short to be fully litigated
prior to its cessation or expiration, and (2) there was a
reasonable expectation that the same complaining party would
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be subjected to the same action again." Pallazola v. Rucker, _________ ______
797 F.2d 1116, 1129 (1st Cir. 1986) (quoting Weinstein v. _________
Bradford, 423 U.S. 147, 149 (1975)). The possibility that ________
other parties may subsequently bring a similar claim does not
save a case from mootness. Lane v. Williams, 455 U.S. 624, ____ ________
634 (1982).
Though IEP claims similar to Thomas's have been
found to fit the "capable of repetition, yet evading review"
exception, see Honig v. Doe, 484 U.S. 305, 318 (1988), Thomas ___ _____ ___
has not demonstrated a "sufficient likelihood that he will
again be wronged in a similar way." Id. at 323 (quoting Los ___ ___
Angeles v. Lyons, 461 U.S. 95, 111 (1983)). In Honig, the _______ _____ _____
Court retained jurisdiction where there was a reasonable
likelihood that respondents would again suffer the
deprivation of IDEA-mandated rights that gave rise to the
suit. There, given the erratic nature of plaintiff's
disability, it was reasonably expected that plaintiff would
again be subjected to a violation of the IDEA for conduct
related to his disability. Id. at 319-20. Thomas, however, ___
has not adduced any evidence to conclude that there is a
reasonable expectation that his situation will recur.
Because Thomas cannot reasonably be expected to re-enroll at
the Greenfield School, nor has he declared an intention to
transfer to a private high school, this case does not fall
within an exception to the mootness doctrine.
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Although appellant concedes that "the injunctive
relief originally sought . . . is now moot," he argues that
his claim for reimbursement preserves the case. If pled in
the alternative or otherwise evident from the record, "a
claim for damages will keep a case from becoming moot where
equitable relief no longer forms the basis of a live
controversy." Tribe, supra at 84. A review of the record on _____
appeal, however, demonstrates that Thomas failed to
articulate a claim for damages in the district court, where
he sought only injunctive and declaratory relief.
Appellant's scant two paragraph argument seeking
reimbursement -- first raised in his reply brief -- falls
short of the requisite timeliness and formulation necessary
to preserve a claim for damages. Arguments raised for the
first time in a reply brief filed in this court come too late
to be preserved on appeal. Because "an appellee is entitled
to rely on the content of appellant's brief for the scope of
the issues appealed, an[] appellant generally may not
preserve a claim merely by referring to it in a reply brief
or at oral argument." Pignons S.A. de Mecanique v. Polaroid _________________________ ________
Corp., 701 F.2d 1, 3 (1st Cir. 1983). "[I]ssues adverted to _____
in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived . . . . It is not
enough merely to mention a possible argument in the most
skeletal way, leaving the court to . . . put flesh on its
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bones." United States v. Zannino, 895 F.2d 1, 17 (1st Cir. ______________ _______
1990).
Nor does the general prayer for "such further
relief as this court deems just and proper," Complaint
35e, operate to preserve a request for damages in order to
avoid mootness where there is no specific request and no
evidence to sustain a claim for reimbursement. "[A] claim
for nominal damages, extracted late in the day from
[plaintiff's] general prayer for relief and asserted solely
to avoid otherwise certain mootness, b[ears] close
inspection." Arizonans for Official English v. Arizona, 117 ______________________________ _______
S. Ct. 1055, 1070 (1997). In Arizonans, the Supreme Court _________
last term declined to revive an otherwise moot case based on
a claim for nominal damages wrested from a general prayer for
relief. On close inspection, appellate courts "are
especially reluctant in these circumstances to read a damages
claim into the Complaint's boilerplate prayer for 'such other
relief as the Court deems just and proper.'" Fox v. Board of ___ ________
Trustees of State Univ. of N.Y., 42 F.3d 135, 141-2 (2d Cir. _______________________________
1994) (rejecting claim for damages based on general prayer
for relief proffered to save a case from mootness).
Thomas's reimbursement claim was too little, too late.
Consequently, that claim is deemed waived and therefore
cannot supply the residual live controversy necessary to
preserve his entire case from being mooted.
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CONCLUSION CONCLUSION
"As a general rule, when a case becomes moot on
appeal . . . we vacate the district court's decision and
remand with a direction to dismiss." Newspaper Guild of ___________________
Salem v. Ottaway Newspapers, 79 F.3d 1273, 1285 n.15 (1st _____ __________________
Cir. 1996) (accord United States v. Munsingwear, Inc., 340 ______ ______________ __________________
U.S. 36, 39 (1950)). We do not resolve the question raised
by the merits of this appeal: whether special education
services under the IDEA must be offered to a student at a
private school by the LEA where the LEA has proposed and is
capable of implementing an appropriate IEP. We lack
jurisdiction to decide this question. The judgment below is
vacated, and the case is remanded with direction to dismiss vacated remanded dismiss _______ ________ _______
the complaint as moot.
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