

                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 &amp; 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

                             -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.     

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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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