                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-14-2003

Cent Dauphin Sch v. S.
Precedential or Non-Precedential: Non-Precedential

Docket 00-2601




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"Cent Dauphin Sch v. S." (2003). 2003 Decisions. Paper 656.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/656


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                                                     NOT PRECEDENTIAL

       THE UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT

                       ___________

             Nos. 00-2601, 00-2689, 00-2912
                      ___________

       CENTRAL DAUPHIN SCHOOL DISTRICT,
                          Appellant
                      v.

      RASHAWN S.; ALISHA S., by and through their
              guardian; KENDRA S.

                       ___________


ON APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

                (D.C. Civil No. 99-cv-01086)
       District Judge: The Honorable J. Sylvia Rambo
     Magistrate Judge: The Honorable J. Andrew Smyser


                       ___________

         Submitted Under Third Circuit LAR 34.1(a)
                    December 16, 2002


  BEFORE: NYGAARD, ALITO, and McKEE, Circuit Judges.


                   (Filed: April 14, 2003)




                       ___________
                                      OPINION OF THE COURT
                                           ___________


NYGAARD, Circuit Judge.

                This case began in due process hearings filed under the Individuals with

Disabilities Education Act, 20 U.S.C. § 1400, by Appellees herein. The hearing officer

found that the School District had denied the Appellees an appropriate education for the

first three days of the 1998-1999 school year, and ordered the School District to provide

the Appellees with three days’ compensatory education. The State Review Panel affirmed

this decision. The School District filed a complaint in the nature of an appeal from the

decision of the State Review Panel. The Students counterclaimed for attorneys’ fees.

                The District Court granted summary judgment to Appellees on March 6,

2000, but ordered the Clerk to withhold entry of judgment pending a resolution of the

questions of remedy and attorneys’ fees. The Students filed a motion for attorneys’ fees

and costs, and for a compensatory education remedy. The District Court granted the

Students’ motion in the amount of $20,270.32.

                The School District filed its appeal from the District Court orders at Docket

No. 00-2601, and Docket No. 00-2689. The Appellant School District also filed a

protective notice of appeal at Docket No. 00-2912.1 The School District’s appeals have



1.       The Student Appellees also filed a motion for additional attorneys’ fees pursuant to
F.R.C.P. 54(d)(1)-(2), which the District Court denied. The Students filed a notice of
appeal from that order at Docket No. 00-3658, which on October 1, 2000, was
                                                                                         (continued...)

                                                    2
been consolidated. Because we are unable to determine whether this case was live

throughout the federal proceeding below and on appeal, we remand to the district court.

                The Appellant School District raises several issues, none of which we reach.

We are severely hindered in our review by the fact that the only brief filed on appeal is that

of Appellant. Appellee’s attorney has formally withdrawn from the case, and on

information received from the Clerk’s Office, the Appellees have moved from the area and

have expressed no interest in the appeal. Consequently, the only argument that is before us

is that presented by the Appellants therein. 2

                The Federal Rules of Appellate Procedure do not allow us to enter default

judgment against an appellee for failure to file a brief. However, this does not relieve us

from the Constitutional requirement to ascertain that a case continues to be live throughout

the appellate process. Article III, §2 of the Constitution requires there to be a live case or

controversy throughout the pendency of an appeal. See e.g., United States v. Kissinger

309 F.3d 179, 180 (3d. Cir. 2002). This is not a case where the appellee stands by and

allows us to proceed on only the appellant’s briefs and the opinion of the district court.

See United States v. Everett, 700 F.2d 900, 902 (3d Cir. 1983) (“If an appellee after




1.       (...continued)
“procedurally terminated without judicial action; default.”

2.        Fed. R. App. P. 31(c) provides that “an appellee who fails to file a brief will not be
heard at oral argument unless the court grants permission.” We have no request for oral
argument, nor would we be disposed to grant one.

                                                     3
proper notice fails to file a brief, then we may decide the case on the brief of the appellant

only.”). This case goes further.

                  Before the District Court, the Appellant School District argued that there was

some question as to whether the client was still interested in the litigation, or whether the

attorney was continuing the litigation to recoup fees. At the hearing below, the Appellants

pointed to evidence questioning the client’s continuing interest in the case. See Appendix

at 471–478. Specifically, the Special Education Review panel reached its decision on May

28, 1999. There is no question that the client was involved in the litigation through this

point. The School District filed its complaint in federal court on June 24, 1999. See

Appendix at 83. A review of the billing records submitted to substantiate the fees raises

questions as to the client’s involvement after this point, especially in light of the facts as

they now stand.

                  Appellants claim that Kendra S. has not lived at her Harrisburg address since

May 1999. See App. Brief at 22 n.5. This is substantiated by testimony at the hearing. See

Appendix at 473. Despite this change in address, the invoices for legal services listed

Kendra’s Harrisburg address through May, 2000. See Appendix at 349. After that, no

address is listed for Kendra S. on the invoices. See Appendix at 347. The last

conversation with the client is indicated on the invoices as a May 12, 1999 telephone

conference. See Appendix at 356. The invoices do reference “letter/fax to client” on June

14, 2000, Appendix at 347; and April 18, 2000, Appendix at 350; however, Kendra S.’s

address is not listed for one invoice, and is apparently wrongly listed on the other. This is

                                                       4
in contrast to the regular consultation with the client indicated in the earlier invoices. See

e.g., Appendix at 355–362. If the client no longer maintained an interest in the case

throughout the federal hearings, the case was no longer live.

                 While normally, the invoices and address change might not be enough to

bring into question whether or not the case is moot, the unique facts of this case leave us in

an unavailing position. The Magistrate Judge noted the Appellant’s concern, but made no

ruling on the record beyond noting at the hearing:

                 it seems to me that where counsel has represented the clients
                 in the administrative proceeding, and has prevailed in the
                 administrative proceeding, and then . . . enters an appearance on
                 behalf of the same party [on appeal], that there is no basis in
                 that for an inference and no basis for placing a burden on
                 counsel of proving that counsel has the authority to represent
                 that same party. . . . I think under those circumstances counsel’s
                 authority to represent the client is not subject to question.

Appendix at 478.

                  The attorney below has withdrawn from the case, and the Clerk’s Office has

indicated that Kendra S. is no longer interested in the outcome of this litigation. If this is

true, then the case is moot. “It is boilerplate law that it is the party who is entitled to an

allowance for the legal services of his attorney.” Mayberry v. Walters, 862 F.2d 1040,

1042 (3d Cir. 1988). We are not in a position to make a factual determination as to Kendra

S.’s continuing interest in this litigation. We also cannot dismiss the case at the appellate

level for failure of the Appellee to file a brief. Furthermore, we are not inclined to address

the merits of this appeal when there are outstanding questions as to whether the case is still



                                                       5
live. Therefore, we remand the case to the district court on the issue of mootness. If the

Appellees, now acting pro se or with new counsel, do not participate, the District Court is

empowered to vacate its earlier judgments and dismiss the action. See Salovaara v.

Jackson National Life Ins. Co., 246 F.3d 289, 296 (3d. Cir. 2001) (“Vacatur may be

decreed for judgments whose review has become moot due to circumstances beyond the

control of any of the parties or where mootness results from the unilateral action of the

party who prevailed in the lower court.”).




                                                     6
_________________________


TO THE CLERK:

            Please file the foregoing opinion.




                                                 /s/Richard L. Nygaard
                                                 Circuit Judge
