                                                              NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ____________

                             Nos. 18-2807 and 18-2901
                                   ____________

                   POCONO MOUNTAIN SCHOOL DISTRICT,
                                          Appellant in 18-2807

                                         v.

             T.D., a minor; S.D.L., as Parent and Legal Guardian of T.D.,
                                                      Appellants in 18-2901
                                    ____________

                   On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                           (D.C. Civil No. 3-15-cv-00764)
                    District Judge: Honorable Robert D. Mariani
                                   ____________

                               Argued April 30, 2019

              Before: RESTREPO, ROTH and FISHER, Circuit Judges.

                              (Filed: October 29, 2019)


John E. Freund, III [ARGUED]
Glenna M. Hazeltine
King Spry Herman Freund & Faul
One West Broad Street, Suite 700
Bethlehem, PA 18018
      Counsel for Pocono Mountain School District
Michael E. Gehring [ARGUED]
Dennis C. McAndrews
McAndrews Law Offices
30 Cassatt Avenue
Berwyn, PA 19312
      Counsel for T.D., a minor and S.D.L., as Parent and Legal Guardian of T.D.

                                      ____________

                                        OPINION*
                                      ____________

FISHER, Circuit Judge.

       Several behavioral and educational issues arose for student T.D. after an incident

with another student during his time in the Pocono Mountain School District (“Pocono”

or “the District”). After years of disagreement between T.D.’s mother and Pocono on

how to respond to T.D.’s issues, she enrolled him in private school and filed a due

process claim against Pocono. A Special Education Hearing Officer (the “Hearing

Officer”) granted private-school tuition reimbursement and compensatory education

under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, but denied

eligibility under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§

1400−82. The District Court found T.D. was also eligible under the IDEA and affirmed

the Hearing Officer’s award of tuition reimbursement under the IDEA rather than § 504.

T.D. and Pocono each appeal aspects of the District Court decision. Because claims


       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.

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related to tuition reimbursement are moot and the only otherwise-live issue on appeal was

waived, we will vacate in part and affirm in part.

                                             I.

       In December 2011, third-grader T.D. was inappropriately touched by a female

student at a Pocono elementary school. For the remainder of third grade and all of fourth

grade, T.D. exhibited behavioral and educational issues in the classroom and at home.

The parties had several tests and evaluations done over this time but could not agree on

whether T.D. was eligible for special education services under the IDEA and § 504.

Unable to reach an agreement with Pocono, T.D.’s mother enrolled him in private school

for the 2013−14 school year. T.D. remained in private school until the 2018−19 school

year when he re-enrolled in the District.

       During T.D.’s first year of private school, his mother filed a due process claim on

his behalf, seeking compensatory education for past violations of § 504 and the IDEA

and private-school tuition reimbursement. The Hearing Officer found that T.D. was

eligible for relief under § 504 and awarded twenty-six hours of compensatory education

and tuition reimbursement,* but determined that he was not eligible for special education

services under the IDEA. The Hearing Officer specifically found that Pocono acted with




       *
         Pocono asserts that, during the pendency of these proceedings, it continued to
pay T.D.’s tuition beyond the two years granted by the Hearing Officer. T.D. does not
dispute that fact.

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deliberate indifference to T.D.’s situation, opening the door to tuition reimbursement

under § 504. Both parties appealed the adverse aspects of the decision to the District

Court. A magistrate judge recommended affirmance on all issues in his Report and

Recommendation.

       The District Court agreed that T.D. was entitled to compensatory education under

§ 504 but found that Pocono did not act with the requisite deliberate indifference for a

tuition reimbursement award under § 504. The court instead found that T.D. was eligible

for special education services, including tuition reimbursement, under the IDEA. Pocono

and T.D. appeal.

                                              II.

       The District Court had jurisdiction pursuant to the IDEA, 20 U.S.C. § 1415(i)(2),

and 28 U.S.C. § 1331. We generally have jurisdiction to review the court’s grant of

judgment on the administrative record pursuant to 28 U.S.C. § 1291.

                                             III.

                                              A.

       Before we may consider the merits of the parties’ claims, this Court must “satisfy

itself of its jurisdiction over the subject matter.” Ruhrgas AG v. Marathon Oil Co., 526

U.S. 574, 583 (1999) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95

(1998)). To decide a case on the merits “when [we have] no jurisdiction to do so is, by

very definition, for [this] [C]ourt to act ultra vires.” Steel Co., 523 U.S. at 101−02.


                                              4
       Though we generally have jurisdiction to review a district court’s grant of

judgment on the administrative record, Article III of the Constitution provides that courts

“may only adjudicate actual, ongoing controversies.” Honig v. Doe, 484 U.S. 305, 317

(1988) (citing Neb. Press Ass’n v. Stuart, 427 U.S. 539, 546 (1976); Preiser v. Newkirk,

422 U.S. 395, 401 (1975)). “Accordingly, if ‘developments occur during the course of

adjudication that eliminate a plaintiffs [sic] personal stake in the outcome of a suit or

prevent a court from being able to grant the requested relief, the case must be dismissed

as moot.” D.F. v. Collingswood Borough Bd. of Educ., 694 F.3d 488, 496 (3d Cir. 2012)

(quoting Cty. of Morris v. Nationalist Movement, 273 F.3d 527, 533 (3d Cir. 2001)).

       In this case, both issues raised by the parties—the correctness of the District

Court’s IDEA eligibility determination and its finding that Pocono did not act with

deliberate indifference under § 504—are related to tuition reimbursement and are

therefore moot. Pocono paid for T.D.’s private school tuition for the entirety of his time

at the school. T.D. then returned to the District. Pocono does not seek to recoup its costs

related to its private-school tuition reimbursement. There is no more than the “mere

physical or theoretical possibility,” Murphy v. Hunt, 455 U.S. 478, 482 (1982), that these

issues will reoccur for T.D., so the issues do not fall under the “capable of repetition, yet

evading review” exception to mootness. Id. Neither party has a personal stake in the

outcome of the claims related to tuition reimbursement, and the relevant issues are moot.




                                              5
         Because the District Court’s IDEA eligibility determination and its deliberate

indifference finding bear only on the tuition reimbursement award, we will vacate the

District Court’s determinations on those issues. See Lightner ex rel. NLRB v. 1621 Route

22 W. Operating Co., LLC, 729 F.3d 235, 237 (3d Cir. 2013) (“When a civil case

becomes moot while an appeal is pending, the normal practice is to vacate the district

court judgment . . . prevent[ing] ‘a judgment, unreviewable because of mootness, from

spawning any legal consequences.’” (citations omitted) (quoting Rendell v. Rumsfeld, 484

F.3d 236, 243 (3d Cir. 2007))).

                                              B.

         In its reply brief, Pocono argues that the District Court incorrectly awarded

twenty-six hours of compensatory education under § 504 without a deliberate

indifference finding. Pocono failed to raise this issue in its opening brief, so the issue is

waived, see In re Surrick, 338 F.3d 224, 237 (3d Cir. 2003), and the District Court’s

award of twenty-six hours of compensatory education under § 504 will be affirmed.

                                              IV.

         For the foregoing reasons, we will vacate the District Court’s IDEA determination

and deliberate indifference finding and affirm its award of compensatory education under

§ 504.




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