R.W. v. Education

• Court: Court of Appeals for the First Circuit
• Decided: November 25, 1997
• Docket: 97-1477
• Status: Published

Opinion

USCA1 Opinion

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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