               Not For Publication in West's Federal Reporter

          United States Court of Appeals
                       For the First Circuit

No. 16-1414

    MATTHEW POLLACK, individually and as next friend of B.P.;
      JANE QUIRION, individually and as next friend of B.P.,

                      Plaintiffs, Appellants,

                                    v.

                     REGIONAL SCHOOL UNIT 75,

                        Defendant, Appellee,

  KELLY ALLEN; TANJI JOHNSTON; PATRICK MOORE; BRADLEY V. SMITH,

                              Defendants.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE
           [Hon. Nancy Torresen, U.S. District Judge]


                                 Before

                Torruella, Thompson, and Kayatta,
                         Circuit Judges.


     Richard L. O'Meara, Rachel W. Sears and Murray, Plumb &
Murray, on brief for appellants.
     Nathaniel A. Bessey, Daniel A. Nuzzi and Brann & Isaacson, on
brief for appellee.


                           October 4, 2016
             Per Curiam.    Plaintiffs-Appellants Matthew Pollack and

Jane Quirion (the "Parents") are the parents of B.P., a seventeen-

year-old student at Regional School Unit 75 (the "District") who

is diagnosed with autism, cognitive impairment, and a variant of

Landau-Kleffner Syndrome, which affects his ability to understand

and express language.         B.P. is nonverbal and therefore cannot

communicate with his parents about his school day the way a student

without his disabilities can.            His education is guided by an

Individualized Education Plan ("IEP") pursuant to the Individuals

with Disabilities Education Act, 20 U.S.C. §§ 1400-50, et seq.

("IDEA").

             In   2012,    after    an   incident   in    which     B.P.   was

uncharacteristically upset when picked up from school, the Parents

began requesting that the District allow him to wear an audio

recording device to school.          The District denied these requests,

citing the District's policy against the use of electronic devices

and   concerns     about   the     potential   effect    on   the   education

environment.      These requests for the use of a recording device are

at the heart of this appeal.

             On September 11, 2012, the Parents filed a due process

complaint with the Maine Department of Education.             See 20 U.S.C.

§ 1415(f).     The complaint alleged that, by refusing to allow B.P.

to wear a recording device, the District had failed to make a


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reasonable accommodation under Title II of the Americans with

Disabilities     Act,    42    U.S.C.    §§    12131-34       ("ADA")    and    thereby

impaired the Parents' ability to obtain information about B.P.'s

school day and his education.              A Special Education Due Process

Hearing was held over the course of three days and on December 29,

2012, the hearing officer denied the request that B.P. be permitted

to wear a recording device.             The hearing officer appears to have

viewed   the     claim    as    limited       to   whether      the     Parents    were

sufficiently informed so that they could meaningfully participate

in   B.P.'s    development      and     education,      and    noted     that     B.P.'s

educational plan, as embodied in his IEP, was not challenged.

              The Parents then filed suit in the district court on

March 27, 2013.      In addition to claims not relevant to this appeal,

they asserted claims for review of the hearing officer's decision

and for violations of the ADA, Section 504 of the Rehabilitation

Act, 29 U.S.C. § 794 ("Section 504"), and the First Amendment, all

in relation to the District's refusal to allow B.P. to wear the

recording device.        On January 27, 2016, the district court granted

summary judgment for the District on the ADA, Section 504, and

First    Amendment       claims    relating        to   the      recording        device

prohibition, on the grounds that the Parents had failed to exhaust

the IDEA administrative process as required by 20 U.S.C. § 1415(l).

Viewing the Special Education Due Process Hearing as limited only


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to claims involving the Parents' rights to participate in B.P.'s

education, the district court held that the Parents had failed to

exhaust the IDEA process as to B.P.'s own substantive rights.

Because the ADA, Section 504, and First Amendment claims alleged

violations of rights personal to B.P., the district court held

that   the   earlier   Special   Education      Due    Process   Hearing   was

insufficient to exhaust under 20 U.S.C. § 1415(l).               The Parents

appealed, challenging the ruling as error.

             On September 12, 2016, the District filed a Rule 28(j)

letter notifying this court of developments that occurred during

the pendency of this appeal.          Shortly before the district court's

January 27, 2016 order, the Parents filed a new due process

complaint with the Maine Department of Education, contending that

the District's refusal to allow the recording device deprived B.P.

of a free appropriate public education as required by the IDEA.

Another Special Education Due Process Hearing occurred and, on

June 2, 2016, that claim was denied by a hearing officer.

             This   court   ordered    the   parties   to   comment   on   that

decision's effect on the pending appeal.          In their responses, both

parties agreed that the Parents have satisfied the exhaustion

requirement as articulated by the district court, and that the

question whether the second due process hearing was necessary is

now moot.    This court agrees, and this appeal is therefore moot.


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            However, this does not render the entire case moot --

the Parents still seek a determination on the merits of the ADA,

Section 504, and First Amendment claims.          The District urges us

to dismiss the appeal and leave the judgment below intact.              The

Parents, on the other hand, argue that we should dismiss the

appeal, vacate the summary judgment order, and remand to the

district court for consideration on the merits.

            When an appeal becomes moot, the decision of whether to

vacate a trial court order "rests in the equitable discretion of

this court."    Kerkhof v. MCI Worldcom, Inc., 282 F.3d 44, 53 (1st

Cir. 2002) (citing U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship,

513 U.S. 18, 25 (1994)).         "A primary concern is whether the

appellant    deliberately   mooted    the    appeal,"   such   as   through

settlement or withdrawal of the appeal.        Id. at 53-54.    When faced

with a situation nearly identical to the one before us, the Sixth

Circuit granted vacatur and remanded for consideration of the

merits.     See S.S. v. E. Ky. Univ., 125 F. App'x 644, 645-46 (6th

Cir. 2005) (unpublished decision) (vacating and remanding for

consideration    of   the   merits   where    plaintiff   satisfied    IDEA

exhaustion during pendency of appeal).

            We believe that approach is the most equitable.           Unlike

instances in which an appellant settles an entire case and "thereby

surrender[s] his claim to the equitable remedy of vacatur," U.S.


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Bancorp Mortg. Co., 513 U.S. at 25, the Parents merely took the

actions necessary to clear the procedural hurdle of exhaustion in

accordance with the district court's order.            The Parents have

already undergone lengthy litigation in both administrative and

federal forums to achieve resolution of their claims; the only bar

remaining to a determination of the merits of these claims was

this   issue   of   exhaustion.    Now   that   they   have   undoubtedly

exhausted the process required by the IDEA, it would be inequitable

to leave the summary judgment order standing and have these claims

dismissed without ever reaching their merits.

           Accordingly, we dismiss the appeal as moot, vacate the

portion of the district court's order granting summary judgment

for the District on the ADA, Section 504, and First Amendment

claims relating to B.P.'s right to wear a recording device at

school, and remand for determination of the merits of those claims.

Each side to bear its own costs.

           Vacated and Remanded.




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