United States Court of Appeals

For the First Circuit

No. 21-1770

HUNTER HARRIS; CORA CLUETT,

Plaintiffs, Appellants,

v.

UNIVERSITY OF MASSACHUSETTS LOWELL; JACQUELINE MOLONEY; 

UNIVERSITY OF MASSACHUSETTS BOSTON; MARCELO SUÁREZ-OROZCO; SHAWN 

DE VEAU,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Denise J. Casper, U.S. District Judge]

Before

Barron, Chief Judge,

Selya and Howard, Circuit Judges.

Ryan McLane, with whom McLane & McLane, LLC was on brief, for 

appellants.

Richard S. Weitzel, Assistant Attorney General, with whom 

Maura Healey, Attorney General of Massachusetts, and Christine 

Fimognari, Assistant Attorney General, were on brief, for 

appellees. 

August 4, 2022
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Howard, Circuit Judge. This appeal arises from the

dismissal of a section 1983 suit filed by two college students 

against their now-former universities and university officials. 

Seeking declaratory and injunctive relief, the students' complaint 

lodged constitutional challenges to the universities' COVID-19 

vaccination policies, which require all students either to be

vaccinated or to obtain an exemption in order to be allowed on

campus. The students appeal from the district court's order 

denying their motion for preliminary injunction and dismissing 

their complaint for failure to state a claim, see Fed. R. Civ. P. 

12(b)(6). In the period since judgment was entered below, however, 

both students have disenrolled from the universities -- one by 

transfer, and one by graduation. Finding, as we do, that the 

students' claims are now moot, we dismiss the appeal without 

reaching the merits. 

I.

This action began in July 2021, when Hunter Harris, then

a rising junior attending the University of Massachusetts, Lowell 

("UMass Lowell"), and Cora Cluett, then a rising senior attending 

the University of Massachusetts, Boston ("UMass Boston"), jointly 

filed individual claims for prospective relief against their 

universities and several university officials (collectively, 

"UMass"). Specifically, the students' complaint alleged that the 

universities' recently implemented COVID-19 vaccination policies 
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violated their Fourteenth Amendment procedural and substantive due 

process rights. Cluett also separately alleged that UMass Boston 

and its named officials violated her First Amendment right to free 

exercise of religion by denying her request for a religious 

exemption from the vaccination requirement.1 Contemporaneously

with filing their complaint, the students moved for a preliminary 

injunction to block the universities from enforcing the policies 

against them for the fall 2021 semester. 

The challenged policies were essentially the same in all 

relevant respects. Each was announced in April 2021 and effective 

for the following fall semester. UMass Boston, for one,

"require[d] vaccinations for all UMass Boston 

students . . . coming to campus, or physically accessing campus 

resources for the fall semester, and [who] wish[ed] to live, learn 

and/or conduct research on campus."2 The announcement further 

explained that the university's officials had determined that the 

plan for "widespread immunization" was "[o]ne of the critical 

factors" and a "key component" of its "plan[] for a return to 

1 Cluett also asserted claims under the Religious Freedom 

and Restoration Act, 42 U.S.C. § 2000bb-1, and Article 2 of the 

Massachusetts Declaration of Rights arising from the same alleged 

deprivation. Both were dismissed, and Cluett does not challenge 

that portion of the district court's order. 

2 Marie Bowen et al., An Update on Vaccinations for the 

UMass Boston Community, UMass Boston (Apr. 26, 2021), 

https://www.umb.edu/news/detail/an_update_on_vaccinations_for_th

e_umass_boston_community.
- 4 -

campus [in the] fall," finding that "vaccination is the most 

effective way to stop the spread of the virus." It further stated 

that the university would "accommodate medical, disability, and 

religious exemptions." 

In response to this announcement, Cluett submitted a 

written request for a religious exemption on the ground that the 

available "vaccinations [were] in direct conflict with [her] 

sincerely held religious beliefs." Her initial request was denied 

by a review committee. She later appealed to the school's Interim 

Vice Chancellor for Student Affairs, defendant Shawn DeVeau, and 

provided additional explanation for her faith-based objection. 

Days later, DeVeau denied Cluett's appeal, explaining that he 

understood her to be Roman Catholic and that, based on his 

research, receiving the vaccine would not violate the tenants of 

the Catholic faith. He further explained that she could opt to 

unregister for in-person classes for the upcoming semester to avoid 

the vaccine requirement. 

UMass Lowell's policy "require[d] all residential and 

commuter students" not qualifying for an exemption3 "to be fully 

vaccinated against COVID-19 prior to the beginning of the fall 

semester to live, learn or visit any UMass Lowell campus or 

3 Harris did not seek an exemption. 
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property."4 According to the announcement, the university "ma[de]

this decision based on widely anticipated additional state and 

federal public health guidelines in the coming months [and] ample 

vaccine availability," and its "strong[] belie[f]" that 

vaccination is the "most effective tool to return to . . . prepandemic campus life." The announcement further linked to a 

"Frequently Asked Questions" page, which provided additional 

details on the policy and available vaccines.5 Among other things, 

this page explained that students who take "all [] classes online 

and never intend to be on the UMass Lowell[] campus" need not be 

vaccinated. 

In August 2021, the district court denied the students' 

motion for preliminary injunction and granted UMass's motion to 

dismiss all claims. See Harris v. Univ. Mass., Lowell, 557 F. 

Supp. 3d 304 (D. Mass. 2021). The students filed this timely 

appeal. During its pendency, the students remotely completed 

classes at their respective schools through the end of the fall 

2021 semester. In January 2022, Harris transferred from UMass 

Lowell to the University of South Carolina, where he apparently 

4 Joseph Hartman, UMass Lowell to Require Student COVID19 Vaccinations for Fall, UMass Lowell (Apr. 28, 2021), 

https://www.uml.edu/alert/coronavirus/4-27-21-student-vaccinerequirement.aspx.

5 COVID-19 Vaccine FAQ, UMass Lowell, 

https://www.uml.edu/alert/coronavirus/returning/covid-vaccinefaq.aspx (last visited Aug. 3, 2022).
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remains enrolled. Cluett completed her degree at UMass Boston 

through "remote learning" and received her diploma on May 31, 2022. 

II.

We begin and end our review by considering whether the 

students' claims are moot.6 UMass contends that they are,7 now 

that Harris is no longer enrolled at UMass Lowell and Cluett has 

graduated from UMass Boston. In other words, because neither 

6 To be sure, two distinct species of mootness pervade 

this appeal. The first pertains to the students' appeal from the 

district court's denial of their motion for preliminary 

injunction, whereas the second pertains to their underlying 

constitutional claims. We can make short work of the first. Given 

the district court's final order of dismissal, the students' appeal 

from the preliminary injunction ruling is moot, as that order "was 

'merged in' the final judgment dismissing the case." See ChaparroFebus v. Int'l Longshoremen Ass'n, Local 1575, 983 F.2d 325, 331 

n.5 (1st Cir. 1992) (quoting Shaffer v. Carter, 252 U.S. 37, 44 

(1920)); see also Capriole v. Uber Techs., Inc., 991 F.3d 339, 343 

(1st Cir. 2021) ("[A]n appeal from the denial of a preliminary 

injunction motion becomes moot when final judgment issues because 

the district court's denial of the motion merges with the final 

judgment."). 

7 Although UMass did not make this contention until oral 

argument, its oversight does not result in waiver. Afterall, we 

have an "independent obligation to examine [our] own 

jurisdiction," FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 

(1990), and our jurisdiction does not encompass claims that have 

been rendered moot by "some intervening event," In re Sundaram, 9 

F.4th 16, 21 (1st Cir. 2021). Because the mootness doctrine 

derives from Article III, see DeFunis v. Odegaard, 416 U.S. 312, 

316 (1974) (per curiam), we ordinarily cannot bypass this inquiry 

when the record reveals mootness may be an issue, see Steel Co. v. 

Citizens for a Better Env't, 523 U.S. 83, 93–94, (1998). See also 

J.S. v. Westerly Sch. Dist., 910 F.3d 4, 9 (1st Cir. 2018) (noting 

that we "must ask whether [an] issue remains justiciable" before 

considering the merits of an appeal). 
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student is currently subject to the universities' vaccination 

policies, UMass argues that neither student would benefit from the 

exclusively prospective relief sought in the complaint. We agree

that the students' claims are moot, and further conclude that they 

are not otherwise justiciable under any exception to the mootness 

doctrine. Accordingly, we must dismiss this appeal. 

A.

Because Article III restricts our jurisdiction to 

"Cases" and "Controversies," U.S. Const. art. III § 2, "a suit 

becomes moot[] 'when the issues presented are no longer "live" or 

the parties lack a legally cognizable interest in the outcome.'" 

See Chafin v. Chafin, 568 U.S. 165, 172 (2013) (quoting Already, 

LLC v. Nike, Inc., 568 U.S. 85, 91 (2013)); Arizonans for Official 

English v. Arizona, 520 U.S. 43, 67 (1997) ("To qualify as a case 

fit for federal-court adjudication, 'an actual controversy must be 

extent at all stages of review, not merely at the time the 

complaint is filed.'" (quoting Preiser v. Newkirk, 422 U.S. 395, 

401 (1975)). "A party can have no legally cognizable interest in 

the outcome of a case if the court is not capable of providing any 

relief which will redress the alleged injury." Gulf of Me.

Fishermen's All. v. Daley, 292 F.3d 84, 88 (1st Cir. 2002). This 

is true "[n]o matter how vehemently the parties continue to dispute 

the lawfulness of the conduct that precipitated the lawsuit." 

Already, LLC, 568 U.S. at 91. "Thus, 'if an event occurs while a 
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case is pending . . . that makes it impossible for the court to 

grant any effectual relief whatever to a prevailing party, the 

[action] must be dismissed.'" Gulf of Me. Fishermen's All., 292 

F.3d at 88 (alterations in original) (quoting Church of Scientology

v. United States, 506 U.S. 9, 12 (1992)). Unless an exception to 

the doctrine applies, to do otherwise would be to render an 

advisory opinion, which Article III prohibits." Pietrangelo v. 

Sununu, 15 F.4th 103, 105 (1st Cir. 2021) (citing ACLU of Mass. v. 

U.S. Conf. of Cath. Bishops, 705 F.3d 44, 52-53 (1st Cir. 2013)). 

Here, the students' claims for injunctive relief are

inescapably moot because the universities' vaccination policies no 

longer apply to them. Cluett has graduated from UMass Boston and 

Harris is no longer enrolled at UMass Lowell. Thus, there is 

simply "no ongoing conduct to enjoin" presently affecting either 

student. See Bos. Bit Labs, Inc. v. Baker, 11 F.4th 3, 9 (1st 

Cir. 2021) (quoting Town of Portsmouth v. Lewis, 813 F.3d 54, 58 

(1st Cir. 2016)). Where, as here, "challenged measures [no longer]

adversely affect[] any plaintiff's primary conduct," injunctive 

relief is unavailable and the attendant claims become moot. See

Arizonans for Official English, 520 U.S. at 67; Klaassen v. Trs. 

of Ind. Univ., 24 F.4th 638, 640 (7th Cir. 2022) (per curiam)

(dismissing students' challenges to COVID-19 vaccination 

requirement as moot after students either received religious 

exemptions or withdrew from the university).
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The same goes for the students' claims for declaratory 

relief. As we have previously explained, requests for declaratory 

relief can only survive a mootness challenge where "the facts 

alleged . . . 'show that there is a substantial 

controversy . . . of sufficient immediacy and reality to warrant 

the issuance of a declaratory judgment.'" ACLU of Mass., 705 F.3d 

at 53-54 (second alteration and emphasis in original) (quoting 

Preiser, 422 U.S. at 402). Here, the students' alleged injuries 

are no longer "immediate nor real" for the same reasons just 

discussed. See Bos. Bit Labs, Inc., 11 F.4th at 9 (quoting Lewis, 

813F.3d at 58). That is, Cluett has graduated and Harris has 

withdrawn and transferred. These changes in circumstance have 

extinguished any immediate and real effect that the challenged 

policies once had on the students during their enrollment in the 

UMass system. See Governor Wentworth Reg'l Sch. Dist. v. 

Hendrickson, 201 F. App'x 7, 9 (1st Cir. 2006) (per curiam) 

(holding that parents' claims seeking injunctive and declaratory 

relief against school district arising from their son's suspension 

were rendered moot by the son's graduation during the pendency of 

the appeal); Fox v. Bd. of Trs. of State Univ. of N.Y., 42 F.3d 

135, 140 (2d Cir. 1994) (holding that former college students' 

section 1983 claims seeking prospective relief from university's 

policy were moot, as court "could provide no legally cognizable 

benefits to [them] once they had left the [university]," whether 
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by graduation or otherwise). Thus, the students' claims for 

equitable relief no longer present a "live controversy of the kind 

that must exist if we are to avoid advisory opinions on abstract 

propositions of law." ACLU of Mass., 705 F.3d at 54 (quoting Hall

v. Beals, 396 U.S. 45, 48 (1969) (per curiam)).

Although "a claim for damages will keep a case from 

becoming moot where equitable relief no longer forms the basis of 

a live controversy," Thomas R.W. v. Mass. Dep't of Ed., 130 F.3d 

477, 480 (1st Cir. 1997) (internal quotations and citations 

omitted), the students' complaint is devoid of any specific request 

for damages. Faced with this reality, the students contended at 

oral argument that a live controversy still exists due to the 

complaint's request for "[a]ttorney fees and costs, plus any other 

relief this Court deems proper." But this argument is dead on 

arrival. 

First, it is well established that an "interest in 

attorney's fees is . . . insufficient to create an Article III 

case or controversy where none exists on the merits of the 

underlying claim." Davidson v. Howe, 749 F.3d 21, 27 n.7 (1st 

Cir. 2014) (quoting Lewis v. Cont'l Bank Corp., 494 U.S. 472, 480 

(1990)). Thus, the students' request for attorney's fees cannot 

rescue their mooted equitable claims from dismissal. The same is 

true of their claim for costs. See 13C Wright & Miller, Federal 

Practice & Procedure, § 3533.3 n.75 (3d ed., April 2022 update) 
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("Claims for costs traditionally have not been thought sufficient 

to avoid mootness, presumably on the theory that such incidental 

matters should not compel continuation of an otherwise moribund 

action.").

Second, a complaint's general prayer for relief -- e.g., 

"such further relief as [the district] court deems just and proper" 

-- does not "operate to preserve a request for damages in order to 

avoid mootness where there is no specific request and no evidence 

to sustain a claim for [damages]." See Thomas R.W., 130 F.3d at 

480; see also Arizonans for Official English, 520 U.S. at 68, 71-

72 (rejecting attempt to add nominal damages claim "extracted late 

in the day from [plaintiff's] general prayer for relief and 

asserted solely to avoid otherwise certain mootness"); Fox, 42

F.3d at 141 (same, where the complaint contained "absolutely no 

specific mention . . . of nominal damages," but only a general 

prayer for "such other relief as the Court deems just and proper"). 

So too here, the students' request for "any other relief [the] 

Court deems proper" cannot operate to save their otherwise moot

action. Fairly read, the students' "Complaint for Declaratory and 

Injunctive Relief," seeks only prospective, equitable relief, 

i.e., a declaration that the universities' policies are 

unconstitutional and an order enjoining future enforcement against 

the students. There is "absolutely no specific mention" of 
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compensatory, punitive, or nominal damages in the complaint.8 See

Fox, 42 F.3d at 141. And the students may not now, "at the eleventh 

hour, . . . transform their lawsuit from a request for prospective 

relief into a plea for money damages to remedy past wrongs." See

Bain v. Cal. Teachers Ass'n, 891 F.3d 1206, 1211-14 (9th Cir. 2018) 

(dismissing appeal involving section 1983 free-speech challenge to 

teacher union's fee requirement as moot, where complaint sought 

only prospective relief and plaintiffs had withdrawn from the union 

during the pendency of appeal). 

In sum, "no live controversy in the ordinary sense 

remains" in the students' suit "because no court is now capable of 

granting the relief" sought in the complaint. See Kingdomware 

Techs., Inc. v. United States, 136 S. Ct. 1969, 1975 (2016); 

Pietrangelo, 15 F.4th at 105-06. Consequently, the students'

claims are moot.

8 The students contend that this lapse can easily be 

remedied by amending their complaint. But this argument is 

foreclosed by "the familiar raise-or-waive rule," see Goodwin v. 

C.N.J., Inc., 436 F.3d 44, 51 (1st Cir. 2006), as the students did 

not seek to amend in the district court. Cf. Allstate Ins. Co. v. 

Global Med. Billing, Inc., 520 F. App'x 409, 412-13 (6th Cir. 2013) 

(rejecting request to amend complaint to clarify damages claim 

raised for first time on appeal). Moreover, even if damages were 

viable here -- which is a doubtful prospect, considering the 

Eleventh Amendment, see Davidson, 749 F.3d at 27-29 -- "[a]t [this] 

stage of the litigation" such a "possibility" cannot rescue mooted, 

equitable claims from dismissal, see Arizonans for Official 

English, 520 U.S. at 68. 
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B.

"Since the controversy at issue is not live, and the 

requested relief is not available, the [students] must rely on an 

exception to the mootness doctrine" to save their appeal from 

dismissal. ACLU of Mass., 705 F.3d at 54. The students have 

failed to demonstrate that any such exception applies to their 

claims.9 Their only attempt to do so was by suggesting at oral 

argument that it is "not impossible" that Harris could transfer 

back to UMass Lowell, seemingly invoking the exception for 

controversies that are, by their nature, "capable of repetition, 

yet evading review," see Kingdomware Techs., 136 S. Ct. at 1976 

(internal quotations omitted); see also Gulf of Me. Fishermen's 

All., 292 F.3d at 88. But avoiding mootness cannot merely rest on 

an alleged harm that is theoretically "not impossible" of 

repetition. Rather, for this exception to apply, the party 

contesting mootness must show that "(1) the challenged action was 

in its duration too short to be fully litigated prior to its 

cessation or expiration, and (2) there [i]s a reasonable 

expectation that the same complaining party w[ill] be subjected to 

the same action again." Doe v. Hopkinton Pub. Sch., 19 F.4th 493, 

511 (1st Cir. 2021) (alteration and emphasis in original) (quoting 

9 We note that, as requested by the court at oral 

argument, UMass filed a letter confirming the mooting events with 

documentary evidence. See Fed. R. Civ. P. 28(j). The students 

did not respond to this submission. 
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Murphy v. Hunt, 455 U.S. 478, 482 (1982)); see also Libertarian 

Party of N.H. v. Gardner, 638 F.3d 6, 12 (1st Cir. 2011) 

(explaining that the burden for showing this exception applies is 

on "the party asserting that a case is not moot"). The students 

fail to carry their burden under either prong.

To do so under the first prong, the students must show 

that "the generic types of claims that they seek to pursue are 

likely to evade review." Cruz v. Farquharson, 252 F.3d 530, 535 

(1st Cir. 2001). This requires them to demonstrate that either

the type of claims they bring "are inherently transitory," or 

"there is a realistic threat that no trial court ever will have 

enough time to decide the underlying issues (or, at least to 

[certify a class]) before a named plaintiff's individual claim 

becomes moot." Id. Here, neither situation is present. 

Challenges to university-vaccination policies are not among or 

closely analogous to the "inherently transitory" claims that the 

Supreme Court has previously found to fit this exception. See

ACLU of Mass., 705 F.3d at 57 (collecting cases involving 

elections, pregnancies, and temporary restraining orders). And 

the students fail to demonstrate that such a challenge carries a 

"realistic threat that no trial court ever will have enough time 

to decide the underlying issues" or certify a class of students 

before becoming moot. See Cruz, 252 F.3d at 535. Indeed, as the 

Seventh Circuit recently observed in a similar case, "[c]ollege
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enrollment usually lasts [at least] four years" and collegevaccination policies are not ephemeral. See Klaassen, 24 F.4th at 

640. The UMass system is no different, as both universities 

require many vaccinations10 and there is no "suggest[ion] that 

SARS-CoV-2 is just a temporary addition to the list." Id. Thus, 

there is no reason to doubt that a similarly situated student at 

either university could present a similar challenge that could be 

resolved, or certified as a class, before he or she moves on from 

UMass. See id. 

The students also have not shown that their specific 

claims are "capable of repetition," which requires them to "show 

a 'reasonable expectation' or 'demonstrated probability' that 

[they] 'will again be subjected to the alleged illegality.'" ACLU 

of Mass., 705 F.3d at 57 (emphasis in original) (first quoting 

Murphy, 455 U.S. at 483, then quoting City of Los Angeles v. Lyons, 

461 U.S. 95, 109 (1983)). Notably, this requirement cannot rest 

on "[t]he possibility that other parties may subsequently bring a 

similar claim," Thomas R.W., 130 F.3d at 480. The "reasonable 

expectation" of repetition must be specific to Harris and Cluett. 

As the students conceded at oral argument, nothing in 

the record suggests that Harris has any intent or plan to transfer 

10 See COVID-19 Vaccine FAQ, supra note 5; Immunization 

Requirements, UMass Boston, https://www.umb.edu/healthservices/screening

_clinics (last visited Aug. 3, 2022).
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back to UMass Lowell. Nor is there any suggestion that Cluett 

intends or plans to return to UMass Boston as a graduate student. 

Although both scenarios are perhaps conceivable, avoiding 

mootness, like establishing standing, requires an "actual or 

imminent" and "concrete and particularized," redressable injury. 

See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); see

Knox v. Serv. Emps. Int'l Union, Local 1000, 567 U.S. 298, 307-08 

(2012) (noting that plaintiff must have a "concrete 

interest . . . in the outcome of the litigation" to avoid 

mootness). Just as standing cannot rest on a "conjectural" or 

"hypothetical" harm, see Lujan, 504 U.S. at 560, avoiding mootness 

cannot rest on "speculation" about some future potential event, 

see Pietrangelo, 15 F.4th at 106. See also Bain, 891 F.3d at 1214. 

Based on this record, we cannot say that there is a "reasonable 

expectation" or "demonstrated probability" that Harris or Cluett

will again be affected by UMass's student-vaccination policies. 

See Thomas R.W., 130 F.3d at 480; see also Bain, 891 F.3d at 1214 

(holding that teacher's withdrawal from teachers' union mooted her 

equitable challenge to union's membership policies, 

notwithstanding her contention that she would face the same injury 

"if [she] goes back to teaching"); Fox, 42 F.3d at 143 (dismissing 

claims by former students as moot, despite possibility that they 

could return to university to complete credits, where there was no 

indication that any "ha[d] even applied . . . much less been 
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accepted," noting that a "bare statement of intention is 

insufficient to escape mootness"). 

III.

For the forgoing reasons, we dismiss the students' 

appeal as moot. Because "the mooting events [were] within the 

control of the nonprevailing party," the judgment below "remains 

extent." See Med. Prof'l Mut. Ins. Co. v. Breon Lab'ys, Inc., 141 

F.3d 372, 376 (1st Cir. 1998). All parties shall bear their own 

costs.