
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                                         -2-                                          2            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                                         -3-                                          3            (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                                         -4-                                          4            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                                         -5-                                          5            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                                         -6-                                          6            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.                                          -7-                                          7                      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                                         -8-                                          8            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.                                              -9-                                          9                                      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.                                          -10-                                          10
