           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                        September 26, 2008

                                       No. 07-51252                   Charles R. Fulbruge III
                                                                              Clerk

MARTA ZEPEDA, Individually, and as next friend for MAZ

                                                  Plaintiff-Appellant
v.

BOERNE INDEPENDENT SCHOOL DISTRICT; CRAIG RADTKE,
Individually, and in his official capacity as Director of Legal Affairs for the
Boerne Independent School District

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:07-CV-00607


Before SMITH, WIENER, and, HAYNES, Circuit Judges.
HAYNES, Circuit Judge:*
       This appeal presents the unusual case where claims that were never ripe
also have now become moot. Representatives of the Boerne Independent School
District (District) provisionally declined to let Marta Zepeda pre-enroll her
nephew for school in the District. One month before school started, however, the
Superintendent agreed to admit Miguel, and he has attended school in the



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                      No. 07-51252

District ever since. Nevertheless, Marta, as Miguel’s next friend, refused to drop
this lawsuit which alleges that the District’s “policy” of denying admission to
students like Miguel violates state and federal law. The district court dismissed
Marta’s claims for lack of ripeness, reasoning that the Board of Trustees
(Board)–the body with final discretion to admit students like Miguel–never
rendered a decision on his enrollment. The district court thus concluded that the
District never reached a final, adverse decision on which Marta could base a
claim of actual or imminent injury. Agreeing that Marta’s claims were unripe
when filed, we affirm the judgment below.
            I. FACTUAL AND PROCEDURAL BACKGROUND
      Miguel Zepeda was a five-year old child who resided in the District with
his Aunt, Marta Zepeda, who was not his legal guardian or custodian. His birth
mother lives outside the District.
      Marta sought to pre-enroll Miguel in one of the District’s kindergarten
classes on April 10, 2007, approximately four-and-a-half months before the first
day of school (August 27, 2007). The school registrar informed Marta that she
could not enroll Miguel without proof that she had the legal right to act as his
guardian or parent. Marta returned later that day with a notarized document
from Miguel’s mother, but the registrar told her this would not suffice.
      Marta eventually sought counsel from the Rio Grande Legal Aid. Frank
Alvillar, a Legal Aid attorney, then called Craig Radtke, the District’s Director
of Legal Affairs, to discuss Miguel’s admission. Alvillar cited Radtke to section
25.001(d) of the Texas Education Code,1 noted that an Eastern District of Texas


      1
        In relevant part, the provision reads:
      “For a person under the age of 18 years to establish a residence for the purpose
      of attending the public schools separate and apart from the person’s parent,
      guardian, or other person having lawful control of the person under a court
      order, it must be established that the person’s presence in the school district is
      not for the primary purpose of participation in extracurricular activities. The
      board of trustees shall determine whether an applicant for admission is a

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case found a power of attorney sufficient to establish a child’s residency under
that provision, and informed Radtke that Miguel’s mother was willing to provide
a power of attorney. About a week later, Radtke sent Alvillar a nine-page
response, arguing that § 25.001(d) does not create an independent basis for
admission. He concluded the letter by telling Alvillar that he would need certain
forms “[a]s we continue our discussion of this particular situation.”
       Approximately two weeks later, Radtke spoke with Aida Zaragoza of Legal
Aid about Miguel’s case. He proposed other statutory means by which Marta
might be able to establish Miguel’s residency, but Zaragoza found them
untenable. Radtke ended the conversation by telling Zaragoza that he would
consider the matter further. Radtke then sent an email to Dr. John Kelly, the
District’s superintendent, who was on vacation at the time, informing him of
Miguel’s situation.
       On July 11, 2007, outside counsel for the District, Stephan Rogers, wrote
a letter to Zaragoza reiterating Radtke’s arguments against Miguel’s admission.
The letter also referred Zaragoza to the District’s admissions policy. The policy
incorporates Texas law by granting the Board the final discretion to admit
students who reside in the District with someone other than a parent or legal
guardian.2 He ended the letter by stating:
       If you have any other information that you believe the District should take
       into account, or if you can offer a legal analysis that suggests that the
       District must admit Miguel despite the authorities referenced herein, we
       would be most happy to receive and consider it.



       resident of the school district for purposes of attending the public schools and
       may adopt reasonable guidelines for making a determination as necessary to
       protect the best interests of students.” TEX. EDUC. CODE § 25.001(d) (1995).
       2
         This portion of the policy incorporates § 25.001(j) by providing: “The Board by policy
may allow a person showing evidence of legal responsibility for a child other than an order of
a court to substitute for a guardian or other person having lawful control of the child under
court order.”

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       On July 19, 2007, Marta filed the present lawsuit on behalf of Miguel,
alleging that the District’s “actions” and “policies” deprived Miguel of his right
to equal protection and due process under the Fourteenth Amendment to the
United States Constitution, as well as his rights under § 25.001. Specifically,
Marta alleged that the Board’s failure to admit Miguel “without a legal
document showing that guardianship/adoption was legalized” constituted a
violation of § 25.001. She also alleged that the District’s policies and practices
violated the Fourteenth Amendment by establishing a classification that
deprives education to a discrete class of children who do not reside with their
parents, legal guardians, or other persons having legal custody, and by creating
an irrebutable presumption that Miguel could not qualify for admission.
The District’s Policies at the Time of Suit
       Marta frames her lawsuit as a challenge to the District’s admissions policy
at the time of suit. For the most part, the policy merely summarizes relevant
portions of the Texas Education Code.3              Notably, the policy incorporates
§25.001(j), which grants the Board discretion to admit students who reside in the
District with someone other than a parent or legal guardian. These policies were
available on the District’s website at the time of this dispute.
       The District’s official policies also contain a detailed grievance procedure
for addressing admissions and other issues.              These procedures encourage
persons to informally resolve disputes with the District. If such efforts fail,
however, the procedures instruct persons to file a formal complaint within fifteen
days of the challenged decision or action. After filing a formal complaint, the
person receives a “Response” from the lowest level administrator with authority

       3
         In her response to the District’s expedited motion to dismiss, Marta attached what
she apparently believed to be the District’s admissions policy. It appears, however, that the
document is only a summary of the District’s policy that parents are asked to review and sign
when enrolling their children. Unlike the District’s actual admissions policy, the summary
document does not specifically reference the Board’s discretion to admit students like Miguel
(students who reside in the District but not with a parent or legal guardian).

                                             4
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to remedy the alleged problem. For admissions decisions, Radtke serves as the
level-one decisionmaker. A person can appeal an adverse level-one “Response”
to the District’s Superintendent (level two), and ultimately to the Board. Marta
admits that she never initiated this process prior to filing this lawsuit.
The District Admits Miguel
      When Superintendent Kelly returned from vacation, he reviewed the facts
and admissions policy pertinent to Miguel’s case. He focused on the portion of
the admissions policy that incorporates § 25.001(j),4 and determined that it
granted the District discretion to admit students like Miguel, i.e., students who
do not reside with their parents, legal guardian, or other persons having legal
custody, but nevertheless reside in the District. Given this discretion, Kelly
decided Miguel should be admitted. On July 30, 2007, Kelly had counsel for the
District send a letter to Marta informing her that the District would admit
Miguel on the basis of his mother’s power of attorney. The letter also asked
Marta to drop her lawsuit. Marta refused, and, in response, the District filed an
expedited motion to dismiss. In her response to that motion, filed after the
district court’s hearing, Marta argued that her suit remained viable because the
District employed unlawful admissions policies on the day she filed suit. She
also argued that the District’s “clarified” policies continued to violate § 25.0001
because the District might exercise its “discretion” unfavorably in the future,
either against Miguel or some other student. She continued to urge this position
even after the District admitted in open court that it would not deny Miguel
admission in the future, so long as he resided with Marta in the District.




      4
        § 25.001(j) states in relevant part:
      “For the purposes of this subchapter the board of trustees of a school district by
      policy may allow a person showing evidence of legal responsibility for a child
      other than an order of a court to substitute for a guardian or other person
      having lawful control of the child under an order of a court.”

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The District Court’s Dismissal Order
      The district court dismissed Marta’s claims, with prejudice, for lack of
ripeness. The court found that Miguel had not suffered an “actual or imminent”
injury because the District never actually denied him admission. According to
the court, Marta’s claims could only mature for the purposes of justiciability
following a final decision from the Board, rendered through the District’s formal
grievance process.
                               II. DISCUSSION
      On appeal, Marta asserts that the district court erred by dismissing her
claims on ripeness grounds. She appears to contend that we should construe the
assertions of Radtke and Rogers that Texas law does not permit the custody of
a child to be transferred via a power of attorney as an effective denial of Miguel’s
admission, giving rise to a ripe injury. Although the district court ultimately
based its ripeness ruling on the absence of a final admissions decision by the
Board, it also found that Radtke and Rogers never denied Miguel admission.
      We review a dismissal for lack of subject matter jurisdiction de novo. PCI
Transp. Inc. v. Fort Worth & W. R.R. Co., 418 F.3d 535, 540 (5th Cir. 2005). A
district court may base its disposition of a motion to dismiss for lack of subject
matter jurisdiction on the complaint alone, the complaint and undisputed facts,
or the complaint, undisputed facts, and the court’s resolution of disputed facts.
Ynclan v. Dep’t of the Air Force, 943 F.2d 1388, 1390 (5th Cir. 1991). Where, as
here, the district court relies on the third of these grounds and makes
jurisdictional findings of fact, we review those findings for clear error.
Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981).
      To establish the jurisdictional prerequisite of ripeness, Marta had to show
(1) a concrete injury for the purposes of damages, or (2) an imminent threat of
harm providing a right to injunctive relief. As explained below, neither of these
grounds for ripeness existed when Marta filed suit over a month before the first

                                         6
                                        No. 07-51252

day of school. Indeed, this case illustrates precisely why courts refrain from
deciding premature lawsuits.             When Superintendent Kelly, the level-two
decisionmaker, returned from vacation, he granted Marta the primary relief
sought by this lawsuit, thereby mooting a purported controversy that was never
ripe in the first instance. Had Marta filed a proper grievance, she would have
forced Radtke, the level-one decisionmaker, to take a definitive position on
Miguel’s admission. If Radtke officially adopted the position which Marta
alleges he took–that of denying Miguel’s admission–Marta could have sought
review of that interim decision from Superintendent Kelly. In the event that
Kelly declined Miguel’s admission, then Marta could have pursued the matter
before the Board. If the Board admitted Miguel, no problem would have existed.
If not, she would have had a ripe lawsuit.5
       To determine whether claims are ripe, this Court evaluates (1) the fitness
of the issues for judicial resolution, and (2) the potential hardship to the parties
caused by declining court consideration. Texas v. United States, 497 F.3d 491,
498 (5th Cir. 2007), petition for cert. filed (Fed. 25, 2008) (No. 07-1109). These
prongs must be balanced, Am. Forest & Paper Ass'n v. EPA, 137 F.3d 291, 296
(5th Cir. 1998), and “[a] case is generally ripe if any remaining questions are
purely legal ones.” New Orleans Pub. Serv., Inc. v. Council of City of New
Orleans, 833 F.2d 583, 587 (5th Cir. 1987). It is fundamental, however, that
“even where an issue presents purely legal questions, the plaintiff must show
some hardship in order to establish ripeness.” Ctr. & S. W. Servs. v. EPA, 220
F.3d 683, 690 (5th Cir. 2000). In this sense, the doctrines of ripeness and


       5
           We do not see an inherent contradiction between our decision that only the Board’s
official denial of Miguel’s admission could create a ripe injury and the proposition that Kelly’s
decision to admit Miguel mooted this purported controversy. Although only the Board may
speak for the District, the District’s grievance procedures would not permit Radtke to appeal
Kelly’s decision to the Board. Rather, those procedures operate only in favor of aggrieved
parents and students. Nothing suggests that the Board may deny a particular student
admission on its own accord, without the matter being raised before it by the aggrieved party.

                                               7
                                       No. 07-51252

standing6 “often overlap in practice, particularly in an examination of whether
a plaintiff has suffered a concrete injury.” Texas, 497 F.3d at 496. If the
purported injury is “contingent [on] future events that may not occur as
anticipated, or indeed may not occur at all,” the claim is not ripe for
adjudication. Thomas, 473 U.S. at 581.
       In her complaint, Marta alleges that the District violated § 25.001 by
refusing to admit Miguel in the absence of a “legal document showing that
guardianship/adoption was legalized.”             She also alleges that the District’s
practice/policy of “denying admission to children who do not reside with their
parents or legal guardians or other persons having legal custody” violates the
Equal Protection Clause. Thus, under the aforementioned principles, Marta’s
claims could only be ripe if the District had denied Miguel admission prior to the
filing of this lawsuit based on Marta’s inability to provide a legal document
showing formal transfer of custody. Conversely, if Miguel’s potential admission
to the District remained contingent on uncertain future events, then Marta had
not yet suffered a concrete injury and her claims were unripe.
       On this record, Marta cannot show that the District ever officially denied
Miguel’s admission. As an initial matter, the district court found that Radtke
and Rogers never reached a final conclusion on Miguel’s admission, and given
the content of Radtke and Rogers’s letters, we do not find that conclusion clearly
erroneous. If Marta and her counsel thought otherwise, they could have invoked
the District’s grievance procedures which would have forced Radtke to make an
official “yes” or “no” decision on Miguel’s admission. It is undisputed that the
District’s grievance procedures were available online at the district’s website.

       6
          To establish standing, a plaintiff must have suffered an “injury in fact,” which the
Supreme Court has described as “an invasion of a legally protected interest which is (a)
concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 566 (1992) (internal citation and footnote
omitted). It is clear that Marta individually has no contestable claim, ripe or unripe. Miguel
is the only potentially harmed party in this lawsuit.

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Moreover, these procedures should have come as no surprise to Marta’s counsel
as they merely give effect to both Texas law and this circuit’s precedent that the
Board speaks for the District concerning the admission of students. § 25.001(j);
Jett v. Dallas ISD, 7 F.3d 1241 (5th Cir. 1993).
       Even assuming that Radtke officially declined Miguel’s admission, the
District’s policy gave the Board final discretion on whether to admit Miguel. As
mentioned, this policy is Texas law. § 25.001(j). The District had a procedure
in place where Marta could “go up the ladder” to obtain a decision of the Board.
The first day of school was more than a month away when Marta filed suit,
providing the District ample time to admit Miguel. Indeed, this is precisely what
the District did. Requiring Marta to follow the chain until she either obtained
relief or obtained an adverse decision from the Board is consistent with circuit
precedent under which a school district can be held liable for 42 U.S.C. § 1983
violations only upon a policy or action of a person with final policymaking
authority. Jett, 7 F.3d 1241.
       It is undisputed that the Board never made an adverse admissions
decision as to Miguel, and it never was asked to do so. Until the Board officially
spoke, any decision that purportedly denied Miguel admission remained
contingent because the Board could always exercise its discretion to overturn
that decision and admit Miguel.7 Thus, Marta could only sustain a concrete
injury, or demonstrate that such an injury was imminent, after fully availing
herself of the District’s formal grievance procedures or otherwise obtaining a
final determination from the District’s decisionmaker–the Board. In sum,
Marta’s claims were not ripe when she sued because she never received an




       7
         The grievance procedure is for aggrieved parties. It does not provide a way for the
Board to appeal its own Superintendent’s decision. Thus, once Kelly acted, that matter was
at rest.

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adverse decision from a person or entity with authority to definitely resolve
Miguel’s request for admission.
      Marta protests that the district court’s decision effectively requires her to
exhaust administrative remedies in contravention of the established rule that
a § 1983 claimant need not do so. See Porter v. Nussle, 534 U.S. 516, 523 (2002).
But whether a school district has taken an adverse action against a prospective
student in the first instance is a different question from whether the school
district has a method to redress the harm done. Here, Marta was required to
avail herself of the District’s formal grievance procedures, not to exhaust
administrative remedies, but to establish the concrete, non-contingent injury
necessary to make her claims ripe. See Williamson County Reg’l Planning
Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 191-92 (1985)
(recognizing that the judicial doctrine of exhaustion of administrative remedies
is conceptually distinct from the question of whether an “initial decisionmaker
has arrived at a definitive position on the issue that inflicts an actual, concrete
injury.”); see also Alvin v. Suzuki, 227 F.3d 107, 116 (3d. Cir. 2000) (“exhaustion
. . . is analytically distinct from the requirement that the harm alleged has
occurred . . .”). Even in the absence of the District’s formal grievance procedures
or admissions policy, Marta could only sustain a concrete injury if the Board
denied Miguel admission.      The mere fact that the District has chosen to
incorporate state and federal law into its administrative policies cannot insulate
Marta from satisfying basic standing and ripeness requirements. Or, in other
words, receiving a final adverse decision from the Board is not merely an
“administrative remedy”–it is what Texas and federal law require to establish
a concrete injury in this situation.
      Marta further argues that we should excuse her from the ripeness
requirement because the District violated her due process rights by failing to
provide her with personalized notice of its grievance procedures. But even

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                                       No. 07-51252

assuming that such allegations could confer jurisdiction on a court where it
would not otherwise exist–a dubious proposition at best–it is undisputed that the
District’s grievance procedures were publicly available on its website.
       That is not to say, however, that we approve of the precise way in which
Radtke and Rogers handled the situation. Upon being informed of Marta’s
attempts to enroll Miguel, Radtke could have diffused this dispute by simply
informing Marta that, under Texas law and the District’s policies, only the Board
could make a final and binding decision on Miguel’s admission and by bringing
the grievance procedures to her attention.8             But regardless of Radtke and
Rogers’s actions, once Miguel was admitted and the District provided assurances
of his continued admission in open court,9 Marta’s counsel, Zaragoza, had an
obligation to dismiss voluntarily this lawsuit. No basis exists for Marta’s
contentions that the District might revoke Miguel’s admission at some later
date, and she had no standing to sue on behalf of other students. Zaragoza’s
refusal to drop this lawsuit despite Miguel’s admission, and her decision to
pursue this meritless appeal served no conceivable interest of her client. Like
all lawyers, Zaragoza has an ethical obligation to pursue only legitimate claims,
see FED. R. CIV. P. 11, and can be sanctioned for filing frivolous appeals. See FED.
R. APP. P. 38. Further, under 28 U.S.C. §1927, an attorney can be sanctioned
when she “so multiplies the proceedings in any case unreasonably and
vexatiously.” After oral argument in this case, the District moved for sanctions


       8
        We find troubling the District’s assertions that it only discovered the fact that its
admissions policy incorporates § 25.001(j) midway through this dispute.
       9
         Courts generally treat voluntary cessation of purportedly unlawful conduct by
government officials with greater solicitude than similar action by private parties. See
McCrary v. Poythress, 638 F.2d 1308, 1310 & n.1 (5th Cir. 1981); Ragsdale v. Turnock, 841
F.2d 1358, 1365 (7th Cir. 1988). Indeed, it has been suggested that “such self-correction
provides a secure foundation for a dismissal based on mootness so long as it appears genuine.”
Ragsdale, 841 F.2d at 1365 (citing 13A Wright, Miller & Cooper Federal Practice and Procedure
§ 3533.7, at 353 (2d ed. 1984)).

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                                   No. 07-51252

against Marta’s attorneys under Rule 38. Although we decline to impose
sanctions at this time, we warn Zaragoza that she may not be given the benefit
of the doubt in the future.
      The district court’s judgment is AFFIRMED. Because the district court
based its order solely on lack of subject matter jurisdiction, however, its
judgment is reformed to dismiss Marta’s claims without prejudice. See Hitt v.
Pasadena, 561 F.2d 606, 608 (5th Cir. 1977) (noting that a dismissal for lack of
subject matter jurisdiction is not a determination of the merits). The District’s
motion for sanctions is DENIED, but attorney Zaragoza and Rio Grande Legal
Aid are warned not to file or continue meritless litigation in the future.




Wiener, Circuit Judge, specially concurring:


      Because I too would affirm dismissal, albeit on grounds of mootness rather
than lack of ripeness, I concur in the judgment of panel majority. With due
respect, however, I must disagree with the reasoning and analysis that leads the
panel majority to affirm the district court’s ripeness dismissal. First, the district
court’s decision that Miguel’s denial of admission by lawyers for the District did
not produce a ripe cause of action is a conclusion of law that we review de novo,
not a factual one reviewed for clear error: There are no contested issues as to
the discrete fact on which the district court’s legal conclusion regarding ripeness
was based, i.e., no disagreement about who said or wrote what to whom and
when. The separate question whether, for ripeness purposes, those discrete facts
constitute an actionable denial of admission by or on behalf of the District is
undeniably a question of law which I would answer by holding that the lengthy,
clear and unequivocal written denials of little Miguel’s application for admission
to public school, one denial written by inside counsel and the other written by

                                         12
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outside counsel for the District, were sufficiently firm and unconditional (never
even bothering to mention to Zepeda or her counsel that those refusals were
appealable to and reversible by the Board) to make Zepeda’s cause of action ripe
when it was filed, long before the Superintendent returned from vacation and
reversed the lawyers’ denial of admission. It was at that point that Zepeda’s
lawsuit became moot, making the district court’s subsequent dismissal
affirmable -- but only on grounds of mootness.




                                       13
