                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 13-2299
                                   ________________

                                  J.T., on behalf of J.T.,
                                                       Appellant

                                            v.

                         NEWARK BOARD OF EDUCATION
                              ________________

                    On Appeal from the United States District Court
                            for the District of New Jersey
                             (D.C. Civ. No. 2-12-03566)
                     Honorable Susan D. Wigenton, District Judge
                                 ________________

                       Submitted under Third Circuit LAR 34.1(a)
                                   March 25, 2014

    BEFORE: FUENTES, GREENBERG, and, VAN ANTWERPEN, Circuit Judges

                                 (Filed: April 28, 2014)
                                    ______________

                              OPINION OF THE COURT
                                  ______________

GREENBERG, Circuit Judge.

      Appellant, a special needs middle-school student, filed this action claiming that

appellee, the State-Operated School District of the City of Newark, violated the

Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., by
refusing to provide in-class support services1 at the middle school located closest to

appellant’s home, the Speedway Avenue School, which is about 443 feet from her

residence. The School District, however, did offer J.T. in-class support at the Alexander

Street School, which was located about .8 of a mile from her residence. J.T. did not

accept the Alexander Street School placement and, instead, sought an injunction directing

the School District to provide the support at the Speedway Avenue School. J.T. was

unsuccessful both before an administrative law judge (“ALJ”) and in the District Court

which entered a judgment in favor of the School District on April 5, 2013. She then

appealed to this Court.

       In our review of the matter we recognized that because J.T. had graduated from

the Speedway Avenue School during the litigation, her claim for injunctive relief might

be moot. Accordingly, we directed the parties to file briefs on the mootness issue. The

parties filed the briefs, both contending that the case was not moot because J.T. could

seek compensatory education to substitute for the denial of the in-class support services

at the Speedway Avenue School if she prevailed on this appeal. After we examined the

parties’ briefs, we brought their attention to the circumstance that J.T. may have waived

her claim for compensatory education through the execution of an explicit waiver of that

claim in the administrative proceedings before the ALJ. The School District then

reversed its position and contended that the appeal was moot, but J.T. adhered to her

contention that the appeal was not moot. We have determined that the case is moot, and,


1
 The program implicated in these proceedings is referred to as a Resource In-Class
Support program (“RCI”) as outlined in her Individualized Education Program (“IEP”).
                                             2
accordingly, we will dismiss the appeal as well as the entire case without prejudice to J.T.

bringing an action seeking compensatory education in a separate proceeding.2

       We supplement the foregoing abbreviated history of the case with some additional

procedural history and facts. On October 27, 2011, J.T. initiated her administrative

proceeding by filing a Petition for Due Process claiming that the School District had

denied her a Free and Appropriate Public Education by seeking to place her in the

Alexander Street School, where it would provide in-class support, rather than in the

Speedway Avenue School, the school she had been attending. In her petition, J.T.

requested, among other relief, compensatory education.3 On January 31, 2012, J.T.

signed a Joint Stipulation of Facts and Legal Issues in the administrative proceeding that

expressly waived “all claims for compensatory education in connection with” her

administrative claims, “notwithstanding the contentions set forth in her petition.” A36.

The ALJ found in favor of the School District on the merits of the case, and, in his

opinion, noted that J.T. had waived all claims for compensatory education.

Notwithstanding the ALJ’s decision, J.T. remained in the Speedway Avenue School from

which she ultimately graduated.




2
 In fact, J.T. already has instituted such a proceeding. We take no position on whether
she will be entitled to relief in that proceeding.
3
 J.T. filed her petition under the IDEA, 20 U.S.C. § 1400 et seq., and section 504 of the
Rehabilitation Act, 29 U.S.C. § 794.

                                             3
          On June 13, 2012, J.T. appealed from the ALJ’s decision to the District Court.4 In

her District Court complaint, J.T. sought a reversal of the ALJ’s decision, an injunction

compelling the School District to send her to the Speedway Avenue School with in-class

support services, attorney’s fees and costs, and “any such other relief as this Court

determines necessary and proper.” She, however, did not request that the School District

be ordered to provide her with compensatory education to substitute for the denial of in-

class support services at the Speedway Avenue School. The District Court affirmed the

decision of the ALJ, and J.T. then appealed to this Court.5 In her briefs in this Court, J.T.

did not seek compensatory education and she limited her claim to a request for injunctive

relief.

          As we have indicated, although the School District initially had contended that

notwithstanding her graduation the case was not moot, it has reversed its position and

now claims that the case is moot because J.T. has waived her claim for compensatory

education.6 J.T., however, argues that the waiver applied only to claims accruing before


4
    The District Court had jurisdiction under 20 U.S.C. § 1415(i)(2).
5
    If this case were not moot, we would have jurisdiction under 28 U.S.C. § 1291.
6
  The School District argues that J.T. expressly waived all compensatory education
claims accruing up to January 31, 2012, the date the Joint Stipulation was executed. The
School District argues with respect to claims accruing after that date that J.T. is estopped
from claiming compensatory education because J.T.’s mother caused the harm to J.T. by
continuing to send her to the Speedway Avenue School, thus forfeiting J.T.’s claim for
in-class support services. We need not linger on this estoppel point because J.T.
expressly waived her right to compensatory education, without qualification, and did not
seek compensatory education in the District Court. Accordingly, until this late stage of
this litigation, she has prosecuted the case seeking only injunctive relief. In our view, this
conduct—coupled with her express waiver—makes her ineligible for any type of
                                               4
the waiver was executed, but that she may seek compensatory education for denial of in-

class support services occurring after she filed her original Petition for Due Process on

October 27, 2011.

       Ordinarily, if a student has made a claim for compensatory education in an IDEA

case, we can adjudicate her appeal even though she has graduated or moved to a

residence within a different school district, a point that we made clear in D.F. v.

Collingswood Borough Board of Education, 694 F.3d 488 (3d Cir. 2012). In D.F., the

District Court, despite “[a]cknowledging that compensatory education was a potentially

valid remedy,” “nonetheless determined that [the student’s] claims were moot” and

dismissed the case because D.F. moved out of the school district to another state. Id. at

496. On D.F.’s appeal we reversed, and explained that claims for compensatory

education, which compensate students “for rights the district already denied him,” id. at

497 (internal quotation marks omitted), were not mooted by the out-of-district move, as

we determined that such a result was necessary in order to effectuate the “very purpose of

the IDEA.” Id. at 499. D.F., however, is distinguishable from this case because D.F.,

unlike J.T., expressly sought compensatory education in the district court. See D.F. v.

Collingswood Public Schs., 804 F. Supp. 2d 250, 255 (D.N.J. 2011).

       Moreover, if a plaintiff did not seek compensatory education in the District Court

and her request for equitable relief has become moot, we must dismiss the appeal if a

provision for compensatory education had been the only possible remedy other than

compensatory education in this action. We add, however, that we are not concerned on
this appeal with the possibility that she might be able to obtain compensatory education
services in a separate proceeding.
                                              5
injunctive relief available to her in the district court. We cite several cases supporting

this point. For example, in Thomas R.W. v. Massachusetts Department of Education, the

Court of Appeals for the First Circuit found that a case was moot where on appeal the

plaintiff sought reimbursement for educational expenses he incurred because he had

“failed to articulate a claim for damages in the district court.” 130 F.3d 477, 480 (1st Cir.

1997). Although the plaintiff attempted to raise his claim for reimbursement in his reply

brief in the court of appeals, the court rejected this effort as “fall[ing] short of the

requisite timeliness and formulation necessary to preserve a claim for damages.” Id.

Similarly, the Court of Appeals for the Seventh Circuit dismissed a case as moot even

though on appeal the appellants sought damages to reimburse them for educational

expenses they had incurred where the appellant “failed to articulate a claim for damages

in the district court.” Brown v. Bartholomew Consol. Sch. Corp., 442 F.3d 588, 597 (7th

Cir. 2006). The court found that the appellants’ attempt to raise a damages claim in their

reply brief was insufficient, and thus it deemed the claim to be waived. Id. at 598.

Likewise, the Court of Appeals for the Second Circuit has held that a claim for

compensatory education raised only at oral argument, and not before the District Court, is

insufficient to save an otherwise moot equitable claim. Lillbask ex rel. Mauclaire v.

Conn. Dep’t of Educ., 397 F.3d 77, 90-91 (2d Cir. 2005).

       Here, J.T. raised a claim for compensatory education when she initiated this action

administratively but then expressly waived her right to that remedy. The ALJ and the

District Court both addressed only the narrow question J.T. actually presented: whether

she was entitled to in-class support at the Speedway Avenue School. See A95 (ALJ

                                                6
noting that the issue “is a narrow one…whether [the in-class support program] must be

provided in the neighborhood school, Speedway Avenue School”); A4 (District Court

noting that the ALJ resolved a “narrow issue,” and “the issue before this Court is whether

the evidence supports the ALJ’s decision”).7 We will not allow J.T. to raise a claim for

compensatory education at this stage of litigation, after she expressly waived that claim

before the ALJ and did not discuss that claim in the District Court or in this Court in her

brief. Accordingly, we will dismiss the appeal as moot. In addition, we remand the

matter to the District Court to vacate its judgment and to dismiss the case. See United

States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104 (1950); Donovan ex rel. Donovan

v. Punxsutawney Area Sch. Bd., 336 F.3d 211, 217-18 (3d Cir. 2003). No costs will be

allowed on this appeal.




       7
         J.T.’s generalized prayer for relief in her complaint, requesting “any other relief
the Court may deem just and proper,” is insufficient to save her otherwise moot case from
dismissal. See Arizonans for Official English v. Arizona, 520 U.S. 43, 71, 117 S.Ct.
1055, 1070 (1997) (ordering remand for dismissal of case as moot, observing that “claim
for nominal damages, extracted late in the day from [a] general prayer for relief and
asserted solely to avoid otherwise certain mootness, bore close inspection”); Fox v. Bd.
of Trs. of State Univ. of N.Y., 42 F.3d 135, 141-42 (2d Cir. 1994) (dismissing case as
moot and refusing to read damages claim into boilerplate prayer “for such other relief as
the Court deems just and proper”).
                                             7
