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 f
______________________
_______________
appellants.

Judy Zeprun Kalman, Assistant Attorney General, with whom Scott

__________________
_____

Harshbarger, Attorney General, was on brief for appellee Massachuse

___________
Department of Education, Peter L. Smith, with whom Paroshinsky Law
______________
_______________
Offices was on brief for appellee Mohawk Trail Regional District.

_______

____________________

November 17, 1997

____________________

BOWNES,
BOWNES,

Senior Circuit
Senior Circuit

Judge.
Judge.

This appeal

was

_____________________

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

provided by the

services

of

public school system.

appellant's claim for

one to

Because

one

we find that

injunctive relief became moot

graduated, we now vacate

aide

the judgment of the district

when he

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

non-sectarian

Thomas

had

As a

Greenfield Center

received

therapy services

(IEP).

control.

School since

physical,

as part

student at the private,

of his

occupational,

Trail Regional

agency

(collectively

speech

provided

plan

of Education and

School District, the

"LEA"),

and

individual education

Appellees Massachusetts Department

Mohawk

kindergarten,

local education

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

and the LEA both agreed with the necessity

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his parents

of an aide, their

dispute centered on whether the LEA would fund an aide at the

private school.

The

aide

at the private

for Thomas

offered to pay for

Colrain.

public

parents wanted the

an aide only at the

Thomas's

the LEA

local public school,

called for an aide

parents

Greenfield) assumed the cost of

provide an

Greenfield School;

Rejecting the IEP that

school,

LEA to

(with

assistance

an aide for on-site

at the

from

special

education

services

at

the

private

injunctive relief against the LEA

school,

and

sought

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

services,

Dist.,
_____

509

the IDEA required such

relying

on

U.S.

Zobrest v.
_______

(1993)

interpreter at parochial

establishment clause).

funding for on-site

Catalina Foothills Sch.

_________________________

(providing

sign

school under IDEA does

language

not violate

The LEA maintained that its statutory

obligations

under the IDEA were fulfilled by offering Thomas

opportunity

"genuine

special education

for

equitable

services available

participation"

at the public

in

school.

The BSEA hearing

officer ruled that the LEA

obligated

to fund

Thomas's

IEP, which

school, provided

an

for

aide at

made

the

an aide

a free

private school

available at

appropriate

-33

was not legally

public

because

the public

education

(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

demonstrating

"ha[d]

the central

inappropriateness

make

inappropriate.

student a FAPE.

borne

element

of the

that, to establish

first

not

IEP."

of

The

their

their

threshold

An

IEP is

showing

case

that

inappropriate

of

the

found

a plaintiff must

the

if it

See School Comm. of Burlington v.

___ __________________________

Educ., 471 U.S. 359, 374

_____

--

district court

a claim under the IDEA,

burden

IEP

was

denies the

Dep't of
________

(1985) ("If a handicapped child has

available a free appropriate public education and the parents

choose to

the

place the child

public

agency is

in a private school

not required

. .

child's

education at the

private school or

C.F.R.

300.403

In fact, the

(1984).

had determined that

nor the ability

was

essential

Because

of

-- the

his

Thomas failed

claim

--

magistrate judge

for the

facility."); 34

neither the appropriateness of

element

inappropriate

to pay

BSEA hearing officer

and willingness of the LEA

in dispute.

or facility,

the IEP,

to implement it,

to establish

that

his

IEP

this

was

recommended granting

defendant LEA's motion for summary judgment.

Upon

J.),

de novo review,

adopted the

the district

magistrate's recommendation,

court (Ponsor,

holding that

-44

Thomas had failed to show as a matter of law that his IEP was

inadequate to provide

judgment for the

him with a FAPE.

LEA, the district court

In entering summary

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

judgment de

review

district court's

grant

of

summary

novo, affirming only where there are no disputed

issues of material

fact and the moving party

judgment as a matter of law.

is entitled to

Fed. R. Civ. P.

56(c); Celotex
_______

Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

_____
_______

DISCUSSION
DISCUSSION

Article

jurisdiction

III,

of

the

Constitution

to federal courts to adjudicate only live cases

or controversies.

U.S. Const., art. III,

2, cl. 1.

case to be justiciable, "an actual controversy

all stages of appellate . .

date the

grants

must exist at

. review, and not simply at

action is initiated."

Roe v. Wade,
___
____

For a

the

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

invoking

the outcome,

or alternatively,

when the

party

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).

-55

"A case

is moot,

and hence not

justiciable, if the passage

has caused it completely to

lose its character as a present,

live controversy of the kind that must exist

to

of time

if the court is

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

School

graduation

private

Greenfield

last spring, and matriculation into the public Mohawk

Trail Regional High

which

from the

he sought

School this fall,

relief.

Since

mooted the issue

his graduation,

for

Thomas no

longer

Article

meets the

III,

controversy,

live case

2.

this

In

case

or

the

is

controversy requirement

absence

moot

and

of

live case

therefore,

we

of

or

lack

jurisdiction to rule on the merits of appellant's claim.

The

predicated on

rationale

judicial

for

the

economy --

mootness

saving

doctrine

the use

of

is

the

court's scarce resources for the resolution of real disputes.

To

avoid the

however,

relitigation of

an

otherwise moot

the mootness doctrine countenances an exception for

issues "capable of repetition, yet evading review."

U.S. at

question,

125.

To preserve a

case from mootness

Roe, 410
___

under this

exception,

two requirements must be met: "(1) the challenged

action was

in its duration

prior to

its cessation

too short to be

or expiration, and

fully litigated

(2) there

was a

reasonable expectation that the same complaining party

would

-66

be subjected to the same action again."

797 F.2d

1116, 1129

Bradford, 423 U.S.

________

(1st Cir.

Pallazola v. Rucker,
_________
______

1986) (quoting

147, 149 (1975)).

Weinstein v.
_________

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

found to

IEP claims

similar to

Thomas's have

been

fit the "capable of repetition, yet evading review"

exception, see Honig v. Doe, 484 U.S. 305, 318 (1988), Thomas
___ _____
___

has

not demonstrated a

again be wronged

in a similar way."

Angeles v. Lyons, 461

_______
_____

Court

retained

likelihood

that

deprivation of

"sufficient likelihood that

U.S. 95, 111

jurisdiction

respondents

Id. at 323 (quoting Los

___
___

(1983)).

where there

would

IDEA-mandated rights

he will

was

again

that gave

In Honig,
_____

the

a reasonable

suffer

the

rise to

the

suit.

There,

disability,

again be

given

the

erratic

it was reasonably

subjected to a

not adduced

reasonable

Because

plaintiff's

expected that plaintiff would

IDEA for conduct

Id. at 319-20.
___

Thomas, however,

any evidence

expectation

of

violation of the

related to his disability.

has

nature

that

to conclude

his

that there

situation

will

is a

recur.

Thomas cannot reasonably be expected to re-enroll at

the Greenfield

transfer to

School, nor has

a private high

he declared an

intention to

school, this case does

within an exception to the mootness doctrine.

-77

not fall

Although

relief

originally sought . . . is

his claim for

the

appellant concedes

that "the

now moot," he argues that

reimbursement preserves the case.

alternative or

otherwise evident

from

claim for damages

will keep a case from

equitable

no

relief

controversy."

appeal,

longer

forms

Tribe, supra at 84.

_____

however,

demonstrates

injunctive

the

If pled in

the record,

"a

becoming moot where

basis

of

live

A review of the record on

that

Thomas

failed

to

articulate a claim for

damages in the district

court, where

he sought only injunctive and declaratory relief.

Appellant's

reimbursement

scant two

-- first

short of the requisite

to preserve

paragraph argument

raised in his

reply brief

timeliness and formulation

a claim for

damages.

Arguments raised

seeking

-- falls

necessary

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

issues

appealed,

preserve a claim

appellant

generally

merely by referring to it in

or at oral argument."

Corp., 701 F.2d

_____

an[]

the scope of

may

not

a reply brief

Pignons S.A. de Mecanique v. Polaroid

_________________________
________

1, 3 (1st Cir. 1983).

"[I]ssues adverted to

in

a perfunctory

manner, unaccompanied

by

some effort

developed argumentation, are deemed waived . . . . It is

enough

skeletal

merely to

mention a

way, leaving the

possible argument

court to .

. . put

in

at

not

the most

flesh on its

-88

bones."

United

States v. Zannino, 895 F.2d

1, 17 (1st Cir.

______________

_______

1990).

Nor

relief as

to sustain a

nominal

general

damages,

avoid

inspection."

S. Ct.

otherwise

for "such

proper,"

further

Complaint

request for damages in

there is

no specific

extracted

late

in

order to

request

claim for reimbursement.

[plaintiff's] general prayer

to

prayer

deems just and

to preserve a

mootness where

evidence

for

the

this court

35e, operate

avoid

does

"[A] claim

the

day

for relief and asserted

certain

mootness,

and no

b[ears]

from

solely

close

Arizonans for Official English v. Arizona, 117

______________________________
_______

1055, 1070 (1997).

last term declined to revive

In Arizonans, the
_________

Supreme Court

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.'"

Trustees of State Univ. of N.Y.,

_______________________________

1994)

for

(rejecting claim for

relief

Thomas's

proffered

reimbursement

Consequently,

that

cannot supply

the

to

42 F.3d 135, 141-2 (2d Cir.

damages based on

save

claim

claim

Fox v. Board of
___
________

is

was

case

from

too

little,

deemed waived

residual live

general prayer

controversy

preserve his entire case from being mooted.

mootness).

and

too

late.

therefore

necessary

to

-99

CONCLUSION
CONCLUSION

"As a

appeal

. .

remand

with a

Salem v.
_____

general rule,

. we

vacate the

direction to

when a

case becomes

district court's

dismiss."

Ottaway Newspapers, 79
__________________

moot on

decision and

Newspaper Guild of
___________________

F.3d 1273,

1285 n.15

(1st

Cir.

1996) (accord United States v. Munsingwear, Inc., 340

______ ______________
__________________

U.S. 36, 39 (1950)).

by

the

merits

We do not resolve the

of this

services under the

appeal:

IDEA must be

private school by the LEA where

capable

of

implementing

an

whether

student at

the LEA has proposed and

appropriate

case is remanded with

remanded
________

the complaint as moot.

special education

offered to a

jurisdiction to decide this question.

vacated, and the

vacated
_______

question raised

IEP.

We

The judgment below

is

lack

is

direction to dismiss
dismiss
_______

-1010