2014 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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w . v i l l a no v a . e du/thir dc ir c uit_2014/435NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________________ No. 13

- 2299

________________ J.T., on behalf of J.T.,

Appellant

v. NEWARK BOARD OF EDUCATION

________________ On Appeal from the United States D istrict Court for the District of New Jersey (D.C. Civ. No. 2

- 12

- 03566) Honorable Susan D. Wigenton, District Judge

________________ Submitted under Third Circuit LAR 34.1(a)

March 25, 2014 BEFORE: FUENTES, GREENBERG , and, VAN ANTWERPEN, Circuit Judges (Filed: April 28, 2014 )

______________ OPINION OF THE COURT

______________ GREENBERG, Circuit Judge

. Appellant, a special needs middle

- school student, filed this action claiming that appellee, the State

- Operated School District of the City of Newark , violated the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. , by2

refusing to provide in

- class support services 1 at the middle school located closest to appellant’s home, the Speedway A venue School , which is about 443 feet fro m her
residence

. T he School District , however, did offer J.T. in

- class support at the Alexander
Street School , which was located about .8 of a mile f rom her residence

. J.T. did not accept th e Alexander Street School placement and , instead , sought an inju nction directing
the School District to provide the support at the Speedway Avenue School . J.T. was
unsuccessful both before an administrative law judge (“ALJ”) and in the District Court
which ente red a judgment in favor of the S chool D istrict on April 5 , 2013 . She then appealed to this Court.
In our review of the matter we recognized that because J.T. had graduated from
the Speedway Avenue School during the litigation , her claim for injunctive relief might
be moot

. Accordingly , we direct ed the partie s to file briefs on the mootness issue . The parties filed the briefs, both contend ing that the case was n ot moot because J.T. could seek compensatory education to substitute for the denial of the in

- class support services

at the Speedway Avenue School if she prevailed on this appeal

. After we examined the
p arties’ briefs , we brought their attention to the circumstance t hat J.T. may have waived her claim for compensatory education through the execution of a n explicit waiver of that
claim in the administrat ive proceedings before the ALJ . The School District then

r eversed its position and contended that the appeal was moot , but J.T. adhered to her

conten tion that the appeal was not mo o t. We have determined that the case is moot, and,

1 The program implicated in these proceedings is referred t o as a Resource In

- Class Support program (“RCI”) as outlined in her Individualized Education Program (“IEP”)

.3

acc ordingly, we will di smiss the appeal a s well as the entire case without prejudice to J.T.
b ringing a n action seeking compensatory education in a separate proceeding

. 2
We supplement the foregoing abbreviated history of th e case with some additional procedural history and fa cts . O n Oct ober 27, 2011, J.T. initiated her administrative proceeding by filing a Petition for Due Process claiming that the School District had denied her a Free and Appropriate Public Education by seeking to place her in the
Alexander Street School , wh ere it would provide in

- class support , rather than in the Speedway Avenue School , the school she had been attending . In her petition , J.T. requested, among other relief, compensatory education. 3 On January 31, 2012, J.T. signed a Joint Stipulation of Fac ts and Legal Issues in the administrative proceeding that expressly waived “all claims for compensatory education in connection with” her administrative claims, “notwithstanding the contentions set forth in her petition.” A36.
The ALJ found in favor of t he School District on the merits of the case, and, in h is opinion , noted that J.T. had waived all claims for compensatory education.
N otwithstanding the ALJ’s decision, J.T. remained in the Speedway Avenue School from which she ultimately graduated.

2 In fact, J.T. already has instituted such a proceeding. W e take no position on whether she will be entitled to relief in that proceeding

.
3 J. T. filed her petition under the IDEA, 20 U.S.C. § 1400 et seq. , and section 504 of the Rehabilitation Act, 29 U.S.C. § 794.4

On J une 1 3 , 2012, J.T. appealed from the ALJ’s decision to the District Court. 4 In
her District Court c omplaint , J.T. sought a reversal of the ALJ’s decision, an injunction compelling the School District to send her to the Speedway Avenue School with in

- class support services , attorney’s fees and costs, and “any such other relief as this Court determines necessary and proper.” She , however, did not request that the School District
be ordered to provide her with compensatory education to substitute for the den ial of in

class support services at the Speedway Avenue School

. The District Court affirmed the
decision of the ALJ , and J.T. then appeale d to this Court. 5 I n h er briefs in this Court , J.T.
did not seek compensatory education a nd she limited her claim to a request for injunctive
relief.
A s we have indicated, a lthough the School District initially had contend ed that notwithstanding her graduation the case was not moot, i t has reversed its position and
now claims that the case is moot be cause J.T. has wa ived her claim for compensatory education. 6 J.T., however, argues that the waiver applied only to claims accruing before

4 The District Court had jurisdiction under 20 U.S.C. § 1415(i)(2).

5 If this case w ere not moot , we would have jurisdiction under 28 U.S.C. § 1291.

6 The School District argues that J.T. expressly waived all compensatory education claims accruing up to January 31, 2 012, the date the J oint Stipulation was executed . The School District argues with respect to claims accruing after th at date that J.T. is estopped from claiming compensatory education because J.T.’s mother caused the harm to J.T. by continuing to send her to the Speedway Avenue School , thus forfeiting J.T.’s claim for in

- class support services. We need not linger on thi s estopp e l point because J.T. expressly waived her right to compensatory education, without qualification, and did not seek compensatory education in the District Court. Accordingly, u ntil this late stage of th is litigation , she has prosecut ed the case se eking only injunctive relief . In our view, this conduct

— coupled with her express waiver

— makes her ineligible for any type of5

the waiver was executed, but that she may seek compensatory education for denial of in

class support services occurring after she file d her original Petition for Due Process on October 27, 2011. Ordinarily, if a student has made a claim for compensatory education in an IDEA

case, w e c an adjudicate her appeal even though she ha s graduated or moved to a
residence within a different scho ol district , a point that we made clear in D.F. v. Collingswood Borough Board of Educ ation , 694 F.3d 488 (3d Cir. 2012). In D.F. , t he
District Court , despite “[a]cknowledging that compensatory education was a potentially valid remedy,” “nonetheless determ ined that [the student’s] claims were moot” and
dismissed the case because D.F. moved out of the school district to another state

. Id. at 496. On D.F.’s appeal w e reversed, and explained that claims for compensatory education, which compensate students “ for rights the district already denied him,” id. at 497 (internal quotation marks omitted) , were not mooted by the out

- of

- district move, a s

we determined that such a result was necessary in order to effectuate the “very purpose of the IDEA.” Id. at 499. D.F. , however, is distinguishable from this case because D.F., unlike J.T., expressly sought compensa tory education in the district c ourt. See D.F. v. Collingswood Public Schs. , 804 F. Supp. 2d 250, 255 (D.N.J. 2011). Moreover, if a plaintiff did not s eek compensatory education in the District C ourt and her request for equitable relief has become moot, we must dismiss the appeal if a provision for compensatory education had been the only possible remedy other than

compen satory education in this action. We add, however, that we are not concerned on this appeal with the possibility that she mi ght be able to obtain compensatory education services in a separate proceeding.6

injunctive relief available to her in t he district court

. We cite several cases supporting this point. For example, in Thomas R.W. v. Mass achusetts Dep artment of Educ ation , the Court of Appeals for the First Circuit found that a case was moot where on appeal the plaintiff sought reimbursement for educational expenses he incurred because he had “failed to articulate a claim for damages in the district court.” 130 F.3d 477, 480 (1st Cir. 1997). Although the plaintiff attempted to raise his claim for reimbursement in his reply
brief in the cour t of appeals , the court rejected this effort as “fall[ing] short of the requisite timeliness and formulation necessary to preserve a claim for damages.” Id. Similarly, the Court of Appeals for the Seventh Circuit dismissed a case as moot even though on a ppeal the appellants sought damages to reimburse them for educational expenses they had incurred where the appellant “failed to articulate a claim for damages in the district court.” Brown v. Bartholomew Consol. Sch. Corp. , 442 F.3d 5 8 8, 597 (7th
Cir. 200 6). The court found that the appellants’ attempt to raise a damages claim in their reply brief was insufficient, and thus it deemed the claim to be waived. Id. at 598. Likewise, t he Court of Appeals for the Second Circuit has held that a claim for
compe nsatory education raised only at oral argument, and not before the District Court, is insufficient to save an otherwise moot equitable claim. Lil lbask ex rel. Mauclaire v. Conn. Dep’t of Educ. , 397 F.3d 77, 90

- 91 (2d Cir. 2005). Here, J.T. raised a cla im for compensatory education when she initiated this action
administrative ly but then expressly waived her right to that remedy. The ALJ and the District Court both addressed only the narrow question J.T. actually presented: whether
she was entitled to i n - class support at the Speedway Avenue School

. See A95 (ALJ7

noting that the issue “is a narrow one...whether [ the in

- class support program] must be provided in the neighborhood school, Speedway Avenue School”); A4 (District Court noting that the ALJ resolve d a “narrow issue,” and “the issue before this Court is whether the evidence supports the ALJ’s decision”). 7 We will not allow J.T. to raise a claim for compensatory education at this stage of litigation, after she expressly waiv ed that claim
before the A LJ and did not discuss that claim in the District Court or in this Court in her
brief. Accordingly, we will dismiss t he appeal as moot. In addition, we remand the matter to the District Court to vacate its judgment and to dismiss the case. See United
St ates v. Munsingwear, Inc. , 340 U.S. 36, 71 S.Ct. 104 (1950); Donovan ex rel. Donovan

v. Punxsutawney Area Sch. Bd. , 336 F.3d 211, 217

- 18 (3d Cir. 2003) . No costs will be allowed on this appeal.

7 J.T.’s generalized prayer for relief in her c omplaint, requesting “any other relief the Court may deem just and proper,” is insufficient to save her otherwise moot case from dismissal. See Arizonans for Official English v. Arizona , 520 U.S. 43, 71, 117 S.Ct. 1055, 1070 (1997) (ordering remand for dismissal of case as moot, observing that “claim for nominal damages , extracted late in the day from [a] general prayer for relief and asserted solely to avoid otherwise certain mootness, bore close inspection”) ; Fox v. Bd. of Trs. of State Univ. of N.Y. , 42 F.3d 135, 141

- 42 (2d Cir. 1994) (dismissing case as moot and refusing to read damages claim into boilerplate prayer “for such ot her relief as the Court deems just and proper”).