NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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Nos. 18-2807 and 18-2901

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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

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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

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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
2

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.

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OPINION*

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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. 
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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. 
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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.