Not For Publication in West's Federal Reporter 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 
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Per Curiam. Plaintiffs-Appellants Matthew Pollack and 

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