PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 94-2638

________________________

D. C. Docket No. 93-833-CIV-J-10

KAREN ADLER, individually, and as Next Friend

of the Minor, Leslie Adler, and all others 

similarly situated, LAURA JAFFA, individually

and all others similarly situated, ROBIN ZION,

individually and all others similarly situated,

ROBIN RAND, individually and as Next Friend of the

minor, Doug Rand, and all others, similarly situated,

Plaintiffs-Appellants,

versus

DUVAL COUNTY SCHOOL BOARD, LARRY ZENKE, in

his official capacity as Superintendent of

the Duval County Public School District, DON

BUCKLEY, in his official capacity as member

of the Duval County School Board, STAN JORDAN,

in his official capacity as member of the

Duval County School Board, NANCY CORWIN,

in her official capacity as member of the 

Duval County School Board, et al.,

Defendants-Appellees.

STUDENT COALITION FOR FREE SPEECH,

AMERICAN JEWISH CONGRESS,

Amici,
2

SHARON GREEN, as parent and next friend of

Jennifer Green, minor child, and Joshua Green,

minor child, LINDA MUHLBAUER, as parent and

next friend of Mandy Muhlbauer, minor child,

and Mark Muhlbauer, minor child, LINDA GASTON,

parent and next friend of Matthew Gaston,

minor child, RHONDA SELLERS, parent and

next friend of Steven Sellers, minor child, et al.,

Intervenors-Defendants. 

 

Appeal from the United States District Court

for the Middle District of Florida

 

(May 6, 1997)

Before TJOFLAT and COX, Circuit Judges, and VINING*, Senior

District Judge.

____________________

*Honorable Robert L. Vining, Jr., Senior U.S. District Judge

for the Northern District of Georgia, sitting by designation.
 1

 Two appellants, Leslie Adler and Doug Rand, were minors

when the complaint was filed and brought their claims through

their mothers, Karen Adler and Robin Rand. The complaint makes

it clear that Karen Adler and Robin Rand are parties in name only

and it is the students whose interests are at stake. We

therefore refer to the four students as the “appellants” and to

Leslie Adler and Doug Rand as “Adler” and “Rand,” respectively.

 2 The factual and procedural background of this case is set

out more fully in the published memorandum opinion and order of

the district court. See Adler v. Duval County Sch. Bd., 851 F.

Supp. 446 (M.D. Fla. 1994).

3

TJOFLAT, Circuit Judge:

Appellants are four former high school students1 in the

Duval County, Florida, school system who brought this action

under 42 U.S.C. § 1983 (1994), alleging that a Duval County

school policy permitting student-initiated prayer at high school

graduation ceremonies (the “policy”) violated their rights under

the First and Fourteenth Amendments.2 They named as defendants

the Duval County School Board, the Board’s members in their

official capacity, the Duval County School District, and Dalton

Epting, the principal of Mandarin Senior High School

(“Mandarin”), in his official capacity. These defendants are all

appellees in the present appeal. The remaining appellees are a

group of parents who intervened as defendants to assert their

children’s free exercise rights to have prayers at graduation.

I.

Appellants Adler, Laura Jaffa, and Robin Zion filed a twocount complaint on June 2, 1993. Count one alleged that the
 3

 This second amended complaint is the complaint before us;

we refer to it as “the complaint.”

4

policy constitutes an establishment of religion. Count two

alleged that the policy infringes on the appellant’s free

exercise of religion. They asked for equitable relief in the

form of a judgment declaring the policy unconstitutional and

enjoining the School Board from permitting prayers at high school

graduation ceremonies. They also sought money damages.

On June 7, 1993, appellants Adler, Jaffa, and Zion graduated

from Mandarin, one of the schools in the Duval County system. On

June 10, 1993, they amended their complaint to include, inter

alia, a request that the court certify their action as a class

action. They amended their complaint a second time on

November 1, 1993, to add appellant Rand, a student at another

school in the Duval County system, as a plaintiff.3

The plaintiffs, defendants, and defendant-intervenors filed

cross-motions for summary judgment on March 3, 1994. On May 4,

1994, the district court denied the appellants’ motion and

granted the appellees’ motions. In its dispositive memorandum

opinion and order, the court found the policy constitutional and

entered final judgment for the appellees. Adler, 851 F. Supp. at

456. Appellants filed their notice of appeal on May 9, 1994.

Appellant Rand subsequently graduated in June 1994. Because

all four appellants have graduated, we find that to the extent

they seek declaratory and injunctive relief, their case is moot. 

The only justiciable controversy in this case is the appellants’
5

claim for money damages. We affirm the district court’s grant of

summary judgment for the appellees on this claim, but we do so

without reviewing the merits of the district court’s

constitutional analysis.

II.

We begin by noting that appellants’ claims for declaratory

and injunctive relief are moot. All appellants have graduated,

and none are threatened with harm from possible prayers in future

Duval County graduation ceremonies. In short, the appellants

have no legally cognizable need for relief declaring the policy

unconstitutional and preventing the School Board from allowing

prayers at future graduations.

Article III of the Constitution limits the jurisdiction of

the federal courts to the consideration of certain “Cases” and

“Controversies.” U.S. Const. art. III, § 2. The doctrine of

mootness is derived from this limitation because an action that

is moot cannot be characterized as an active case or controversy. 

See Church of Scientology Flag Serv. Org. v. City of Clearwater,

777 F.2d 598, 604 (11th Cir. 1985), cert. denied, 476 U.S. 1116,

106 S. Ct. 1973, 90 L.Ed.2d 656 (1986). "[A] case is moot when

the issues presented are no longer 'live' or the parties lack a

legally cognizable interest in the outcome." Powell v.

McCormack, 395 U.S. 486, 496, 89 S. Ct. 1944, 1951, 23 L.Ed.2d

491 (1969). Any decision on the merits of a moot case would be

an impermissible advisory opinion. See Church of Scientology
6

Flag Serv. Org., 777 F.2d at 604 (citing Hall v. Beals, 396 U.S.

45, 48, 90 S. Ct. 200, 201-02, 24 L.Ed.2d 214 (1969) (per

curiam)).

To apply the doctrine of mootness to this case, we must

distinguish the appellants’ claims for equitable relief from

their claim for money damages. Although neither the appellants

nor the district court treated the appellants’ claim for damages

as distinct from their claims for equitable relief, these claims

are distinct by nature. Equitable relief is a prospective

remedy, intended to prevent future injuries. In contrast, a

claim for money damages looks back in time and is intended to

redress a past injury.

Frequently, a plaintiff will seek both forms of relief in

the same cause of action when challenging a defendant’s course of

conduct that began before the initiation of the lawsuit and is

likely to continue in the future. The plaintiff requests money

damages to redress injuries caused by the defendant’s past

conduct and seeks equitable relief to prevent the defendant’s

future conduct from causing future injury.

When the threat of future harm dissipates, the plaintiff’s

claims for equitable relief become moot because the plaintiff no

longer needs protection from future injury. This is precisely

what happened in this case.

Appellants argue that, despite their graduation from high

school, their claims for declaratory and injunctive relief are

not moot because the original injury is "capable of repetition,
7

yet evading review." See Southern Pac. Terminal Co. v.

Interstate Commerce Comm'n, 219 U.S. 498, 515, 31 S. Ct. 279,

283, 55 L.Ed.2d 310 (1911). This exception to the mootness

doctrine is narrow.

[I]n the absence of a class action, the “capable of

repetition, yet evading review” doctrine [is] limited

to the situation where two elements combine[]: (1) the

challenged action [is] in its duration too short to be

fully litigated prior to its cessation or expiration,

and (2) there [is] a reasonable expectation that the

same complaining party [will] be subjected to the same

action again.

Weinstein v. Bradford, 423 U.S. 147, 149, 96 S. Ct. 347, 349, 46

L.Ed.2d 350 (1975) (per curiam). This case does not satisfy the

second element. Because the complaining students have graduated

from high school, there is no reasonable expectation that they

will be subjected to the same injury again. See DeFunis v.

Odegaard, 416 U.S. 312, 319-20, 94 S. Ct. 1704, 1707, 40 L.Ed.2d

164 (1974) (finding challenge to law school admission policy moot

because petitioner “will never again be required to run the

gauntlet of the Law School’s admission process”).

Appellants contend, however, that two of the named

plaintiffs, Karen Adler and Robin Rand, are parents of other

children who will graduate sometime in the future from high

schools in Duval County and may be subjected to the same injury. 

In the complaint, however, the caption notwithstanding, neither

parent is described as a plaintiff and no theories have ever been

advanced to support an individual action by either parent, nor

were any allegations made in the complaint regarding the

existence of other children. The former students are the only
 4

 The appellants originally sought to represent a class of

similarly situated students who would graduate in the future, but

they failed timely to move the district court for class

certification pursuant to local court rules. The district court

denied the appellants leave to file a motion for class

certification out of time. The appellants do not challenge this

ruling.

 5

 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th

Cir. 1981) (en banc), this court adopted as binding precedent all

decisions of the former Fifth Circuit handed down prior to

October 1, 1981.

 6 Although decisions from Unit A of the former Fifth

Circuit handed down after September 30, 1981, are not binding

precedent, we find the reasoning in Laurenzo persuasive. See

Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir. 1982)

(adopting as binding precedent all decisions of Unit B of former

Fifth Circuit handed down after September 30, 1981, but

recognizing persuasive authority of non-binding Unit A

decisions).

8

plaintiffs before us,4 and as to them, any claim for equitable

relief is clearly moot. See Sapp v. Renfroe, 511 F.2d 172, 176

(5th Cir. 1975) (holding constitutional challenge to graduation

requirement brought by student who then graduated moot);5

Laurenzo v. Mississippi High Sch. Activities Ass'n, 662 F.2d

1117, 1120 (5th Cir. Unit A Dec. 1981) (holding constitutional

challenge to student-transfer rule brought by student who then

graduated moot despite argument that student's parent had other

children who might suffer same injury).6

Because any claim for equitable relief has been rendered

moot by the appellants’ graduations, we must vacate the district

court’s grant of summary judgment to the appellees on the

appellants’ claims for declaratory and injunctive relief and

remand the case to the district court with instructions to

dismiss those claims. See, e.g., Lewis v. Continental Bank
 7

 The parties agree that a student delivered the following

message:

First and foremost, we give thanks to our parents for

providing the love and support that we have too many

times taken for granted. We thank our teachers for

challenging our minds and inspiring us to greater 

achievement. And finally to our special friends who

are present today, we thank you for sharing our joy.

We, as a class, are entering a new chapter in our

9

Corp., 494 U.S. 472, 482, 110 S. Ct. 1249, 1256, 108 L.Ed.2d 400

(1990). Having disposed of the appellants’ claims for equitable

relief, we are left with their claim for money damages, which we

now address.

III.

Because the appellants’ claim for money damages does not

depend on any threat of future harm, this claim remains a live

controversy. See Havens Realty Corp. v. Coleman, 455 U.S. 363,

371, 102 S. Ct. 1114, 1120, 71 L.Ed.2d 214 (1982) (“Given

respondents’ continued active pursuit of monetary relief, this

case remains 'definite and concrete, touching the legal relations

of parties having adverse legal interests.' ”) (quoting Aetna

Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41, 57 S. Ct. 461,

464, 81 L. Ed. 617 (1937)).

We accordingly turn our focus to the basis for the

appellants’ claim for damages. The complaint alleges that a

“senior class chaplain” delivered a prayer at the June 7, 1993,

Mandarin graduation ceremony at which appellants Adler, Jaffa,

and Zion graduated.7

 The only past injury for which the
lives. As we enter this new time, there will be many decisions

to be made, decisions that will shape our future.

We ask for divine guidance, strength, and a burning

desire to move ahead and succeed. In God’s name we

pray. Amen.

We assume without deciding that this message constitutes a

religious prayer for First Amendment purposes. See DeSpain v.

DeKalb County Community Sch. Dist. 428, 255 F.Supp. 655, 655-56

(N.D. Ill. 1966) (finding verse “We thank you for the flowers so

sweet; /We thank you for the food we eat; /We thank you for the

birds that sing; /We thank you for everything” did not constitute

prayer for First Amendment purposes), rev’d, 384 F.2d 836 (7th

Cir. 1967) (finding same verse did constitute prayer), cert.

denied, 390 U.S. 906, 88 S.Ct. 815, 19 L.Ed.2d 873 (1968); see

also Engel v. Vitale, 370 U.S. 421, 424, 82 S.Ct. 1261, 1264, 8

L.Ed.2d 601 (1962) (describing prayer as “solemn avowal of divine

faith and supplication for the blessings of the Almighty”).

 8 Appellant Rand did not graduate at this ceremony. 

Because he graduated after the district court entered final

judgment, he has no claim for money damages in this case. 

Summary judgment in favor of the appellees on Rand’s claim was

thus proper and is affirmed. In the rest of this part of the

opinion, we use the term “appellants” to refer only to appellants

Adler, Jaffa, and Zion.

10

appellants could seek redress is being subjected to this prayer

at their graduation ceremony.8 To prove that the appellees

caused this injury, the appellants alleged in their complaint

that the prayer was “a direct consequence” of the school’s

policy. In their answer, the appellees admitted that a student

said the prayer, but denied that the prayer was a consequence of

the policy.

The district court based its decision to grant the

appellees’ motion for summary judgment on its conclusion that the

policy was not unconstitutional. Because we find that the

district court’s order must be affirmed regardless of the

constitutionality of the policy, we abstain from ruling on this
 9

 For example, the district court based its conclusion that

the policy did not violate the Constitution under the test

enunciated in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29

L.Ed.2d 745 (1971), in part on its finding that the policy did

not have the primary effect of advancing religion because it did

11

controversial constitutional question. See Lyng v. Northwest

Indian Cemetery Protective Ass’n, 485 U.S. 439, 445, 108 S.Ct.

1319, 1323, 99 L.Ed.2d 534 (1988) (“A fundamental and

longstanding principle of judicial restraint requires that courts

avoid reaching constitutional questions in advance of the

necessity of deciding them.”).

The only issue the appellants raise on appeal is whether the

district court erred in holding the policy constitutional. While

the constitutionality of the policy may have been central to the

now moot issue of whether equitable relief is warranted to

prevent the policy from being implemented at future graduations,

it does not dispose of the issue of whether the appellants should

be awarded money damages for being subjected to the prayer at

their graduation. In other words, any claim for damages does not

depend on the constitutionality of the policy in the abstract or

as applied in other Duval County schools. Even if the policy is

unconstitutional, the defendants might not be liable if, for

example, they did not implement the policy at the ceremony in

question or if the prayer would have been delivered without the

policy. On the other hand, if the district court was correct in

finding the policy constitutional, defendant Epting, Mandarin’s

principal, might nonetheless be liable if he implemented the

policy in an unconstitutional manner.9
“not mandate, require, or direct that religious expression or

prayer occur at any graduation ceremony.” Adler, 851 F. Supp. at

453. Similarly, it held that the policy was not unconstitutional

under Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d

467 (1992), because the policy did “not solicit or mandate

invocations or benedictions.” Adler, 851 F. Supp. at 456.

Assuming that both these conclusions are correct, Epting

still might be liable for a constitutional tort under either of

these tests if he “mandate[d], require[d], or direct[ed] that”

the prayer be delivered at the Mandarin gradation.

 10 In support of the latter conclusion, we note that

appellants agreed with the district court’s assertion at a

pretrial hearing that their “prayer for injunctive relief . . .

is 99 percent of this litigation.”

12

The constitutionality of the policy, therefore, has little

independent relevance to the appellants' damages claim. Whether

they are entitled to damages depends entirely on the

circumstances under which the prayer was delivered at their

graduation ceremony. In order to prevail, the appellants must

have some theory connecting the individual defendants to the

prayer.

For these reasons, even if we were to find fault with the

district court’s constitutional analysis of the policy, this

conclusion by itself would not answer the question of whether the

court erred in granting the appellees summary judgment on the

damages claim. The appellants offer no other grounds in their

briefs for finding trial court error.

After considering the appellants’ briefs and oral argument,

we are convinced that they either fail to understand the basis

for their damages claim or do not seriously seek damages.10 They

have offered us no connection between the prayer and their

damages claim; their briefs offer no indication as to any of the
13

circumstances surrounding the Mandarin graduation prayer. They

failed to argue that the prayer was a “direct consequence” of the

policy, or any other theory connecting the defendants’ actions to

the Mandarin prayer. Their briefs do not even include the

allegation made in their complaint that a prayer was delivered at

Mandarin.

If they had desired to preserve their damages claim on

appeal, they should have included all this information in their

initial brief pursuant to the rules of appellate procedure. See

Fed. R. App. P. 28(a)(3), (4), (6), (requiring appellant to

include in initial brief “[a] statement of the issues presented

for review”; a statement “indicat[ing] briefly the nature of the

case” followed by “a statement of the facts relevant to the

issues presented for review”; an argument “contain[ing] the

contentions of the appellant on the issues presented”). Most

telling of all, is their request for relief. Fed. R. App. P.

28(a)(7) requires appellants to include in their initial brief a

“short conclusion stating the precise relief sought.” In their

brief, the appellants only ask us to reverse the district court

and remand the case “with directions for entry of summary

judgment and declaratory relief.” They do not ask us to direct

the district court on remand to award money damages or to hold

any kind of further proceedings on their damages claim. See

Frank v. United States, 78 F.3d 815, 832-34 (2d Cir. 1996)

(holding issue waived because cross-appellant failed to request

appropriate relief, even though cross-appellant had stated the
 11 They first argued that their case was not moot in their

reply brief. In that brief, however, the only argument they made

was that their case was “capable of repetition, yet evading

review.” They made no mention of their claim for damages.

14

issue and attempted to incorporate argument before district

court), petition for cert. filed, 64 U.S.L.W. 2600 (U.S. June 13,

1996) (No. 95-2006).

In fact, the only references to their claim for damages were

two cursory statements, one in their initial brief and one at

oral argument. Their brief indicated that they initiated the

lawsuit “seeking declaratory and injunctive relief, as well as

damages,” but never again mentioned their damages claim or its

underlying legal theory. After contending at oral argument that

their case fit within the “capable of repetition, yet evading

review” exception to the mootness doctrine discussed above,

appellants suggested in passing that their case was not moot

because the complaint contained a prayer for money damages.11

We cannot agree with Judge Vining’s conclusion that this

cursory treatment is sufficient to preserve their damages claim

on appeal. Without the benefit of developed argument from both

sides regarding the propriety of the district court’s grant of

summary judgment on the damages claim, we cannot effectively

review that decision. For us to rule on this issue would deny

the appellees the opportunity to argue that they were not legally

responsible for the prayer delivered at the appellants’

graduation. As we noted in Federal Savings & Loan Ins. Corp. v.

Haralson, 813 F.2d 370 (11th Cir. 1987):
 12 Judge Vining suggests that the proper disposition of

this case is to reach the merits of the district court’s ruling

and, if we were to find it erroneous, remand the case for further

proceedings on the damages claim. Such a disposition is

logically appealing, but does not take into account the

significance of the appellants’ failure on appeal to (1)

articulate any theory connecting the actions of the appellees to

a cognizable injury suffered by the appellants, (2) discuss any

facts relevant to the Mandarin graduation ceremony, other than

the existence of the policy, or (3) request that we remand the

case with directions that the district court either award money

damages or, at the very least, conduct further proceedings to

determine whether damages are warranted. These glaring omissions

clearly demonstrate that the appellants have not advanced their

damages claim on appeal.

Perhaps the appellants did state a valid damages claim in

their complaint, and the evidence available to them may very well

support that claim. Had the appellants perceived that any claim

for injunctive relief based solely on the policy was moot, we

have little doubt that they would have fully briefed their

damages claim on appeal. In the absence of plain error, however,

it is not our place as an appellate court to second guess the

litigants before us and grant them relief they did not request,

pursuant to legal theories they did not outline, based on facts

they did not relate. See Fed. R. App. P. 28(a); Head Start

Family Educ. Program, Inc. v. Cooperative Educ. Serv. Agency 11,

46 F.3d 629, 635 (7th Cir. 1995) (noting that an appellate “court

has no duty to research and construct legal arguments available

to a party”); Golden Pacific Bancorp v. Clarke, 837 F.2d 509, 513

(D.C. Cir.) (“[Appellate courts] do not sit as self-directed

boards of legal inquiry and research, but essentially as arbiters

of legal questions presented and argued by the parties.”), cert.

denied, 488 U.S. 890, 109 S.Ct. 223, 102 L.Ed.2d 213 (1988). 

We recognize that we have discretion to overlook technical

noncompliance with Rule 28(a) and can even decide issues sua

15

The waiver rule requires that the appellant state and

address argument to the issues the appellant desires to

have reviewed by this Court in the appellant’s initial

brief because “[i]n preparing briefs and arguments, an

appellee is entitled to rely on the content of an

appellant’s brief for the scope of the issues

appealed.”

Id. at 373-74 n.3 (quoting Pignons S.A. de Mecanique v. Polaroid

Corp., 701 F.2d 1, 3 (1st Cir. 1983)).

For all these reasons, we hold that they have waived their

damages claim on appeal.12 See, e.g., Braun v. Soldier of
sponte. These courses of action are only appropriate in rare

circumstances to avoid manifest injustice. See Frank, 78 F.3d at

833. We find, however, that this case does not present

sufficiently compelling reasons for us to exercise that

discretion.

16

Fortune Magazine, 968 F.2d 1110, 1121 n.13 (11th Cir. 1992)

(refusing to review issue not raised and argued in appellant’s

initial brief), cert. denied, 506 U.S. 1071, 113 S.Ct. 1028, 122

L.Ed.2d 173 (1993). We therefore affirm the district court’s

order to the extent it denied the appellants’ motion for summary

judgment and granted the appellees’ motions for summary judgment

on the appellants’ damages claim.

IV.

 For the foregoing reasons, we VACATE the district court’s

order granting the appellees summary judgment on the appellants’

claims for declaratory and injunctive relief and REMAND the case

with instructions that the district court dismiss those claims. 

We AFFIRM the district court’s denial of the appellants’ motion

for summary judgment and its grant of summary judgment for the

appellees on the appellants’ damages claim.

It is SO ORDERED.

VINING, Senior District Judge, concurring in part and dissenting

in part:

While I concur in the majority's conclusion that the appellants' requests for injunctive and declaratory relief are moot, I

cannot agree with its finding that the appellants have waived
13 The appellants' complaint is replete with additional specific

and particularized allegations that outline other instances in

which senior class representatives delivered religious messages

at other Duval County high school commencement ceremonies. 

Moreover, the appellants specifically allege that these prayers

were delivered as a result of the subject school district policy. 

14 In fact, the district court referenced the appellants' claim

for money damages only once in its twenty-two page memorandum

opinion and order. In its introduction, the court, after

observing that the appellants sought injunctive relief, noted

that they "also sought declaratory relief and damages." R4-123-

2. This was the district court's sole reference to the

appellants' money damages claim. The district court thereafter

extensively analyzed the constitutional issues presented in this

case without ever addressing, even in the most perfunctory

fashion, the appellants' money damages claim.

17

their claim for money damages. Accordingly, I respectfully

dissent from Part III of the majority opinion.

As the majority observes, the appellants specifically

alleged in their complaint that a member of the senior class

delivered a prayer at the June 7, 1993, Mandarin Senior High

School graduation exercises at which appellants Adler, Jaffa, and

Zion graduated. Consistent with this allegation and their

request for money damages, the appellants also alleged that the

prayer was a direct consequence of the Duval County School

District policy at issue in this case.13 

On May 4, 1994, the district court granted the appellees'

motion for summary judgment, concluding that the Duval County

School District policy was not unconstitutional. The district

court neither discussed nor analyzed the appellants' claim for

money damages in its memorandum opinion and order.14 Instead,

after dismissing all of the appellants' constitutional challenges
15 I am not implying that the district court erred by failing to

analyze the appellants' claim for money damages. Once the

district court ruled that the subject policy was not

unconstitutional, it was unnecessary for the court to consider

the appel-lants' claim for monetary damages. Indeed, any

discussion by the district court of money damages at that point

would have been dicta.

16 Although the appellants may have agreed with the district

court's assertion at the pretrial hearing that their prayer for

injunctive relief was ninety-nine percent of the relief sought in

this matter, such a concurrence provides no persuasive support

for the proposition that the appellants waived their claim for

money damages on appeal or that they did not seriously seek

monetary damages. To the extent that the majority states

otherwise, I do not concur. 

17 Although the appellants did not discuss in great detail

during oral argument the evidence supporting their money damages

claim, they did, as the majority notes, reference and acknowledge

the existence of such a claim.

18

to the instant policy, the district court entered final judgment

for the appellees. It never, explicitly or implicitly,

addressed, in any substantive fashion, the appellants' damages

claim.15

Despite the uncontroverted fact that the district court

never addressed or analyzed the appellants' claim for money

damages in its memorandum opinion and order, the majority

concludes that the appellants' failure to "fully brief" their

money damages claim on appeal constitutes a waiver of that

claim.16 Because I find that the appellants properly and

adequately briefed and argued on appeal the only issue actually

addressed and decided by the district court, i.e., the

constitutionality of the instant policy, I disagree with the

majority's decision.17 

As the district court implicitly recognized, it was
18 While the constitutionality of the instant policy is not

dispositive of the appellants' money damages claim, the

appellants' claim for money damages, like their requests for

injunctive and declaratory relief, clearly does depend upon the

constitutionality of the subject policy. I disagree with the

majority's assertion to the contrary. The appellants' only claim

for money damages relates to the prayer delivered at the Mandarin

graduation. As I have previously explained, the appellants

specifically alleged in their complaint that this prayer was

given as a direct result of the policy at issue in this case. 

The appellants did not allege in their complaint, or assert

at any time in the course of this litigation, that any individual

defendant acted unconstitutionally, except when acting pursuant

to the purportedly unconstitutional Duval County School District

policy. For example, the appellants did not allege in their

complaint that the Mandarin principal, Dalton Epting, acted

independently, rather than pursuant to the policy at issue, when

he permitted the senior class representative to deliver the

prayer at the Mandarin graduation ceremony. The majority's

suggestion that Epting might be liable if he independently

mandated, required, or directed that a prayer be given appears

only in the majority opinion. The appellants have never advanced

this theory of liability, and there are no factual allegations in

their complaint to support such a theory. Thus, consistent with

the appellants' allegations in their complaint, the claim for

money damages does depend directly upon the constitutionality of

the subject policy.

19

absolutely unnecessary for it to engage in any analysis of the

appellants' claim for money damages after it determined that the

instant policy was not unconstitutional. The district court

properly expressed no opinion regarding the propriety of the

appellants' money damages claim subsequent to holding that the

policy at issue survived constitutional scrutiny because, under

the facts of this case, the appellants were not entitled to money

damages, or injunctive or declaratory relief for that matter,

absent a finding that the subject policy was unconstitutional.18 

Consistent with the district court's ruling, the appellants,

therefore, properly focused upon the alleged errors committed by

the district court in its constitutional analysis. Under these
19 I am cognizant of the fact that the constitutionality of

the instant policy is not dispositive of the issue of money

damages. Even if this court were to find that the subject policy

is unconstitutional, the appellants would not automatically be

entitled to money damages. Rather, the appellants would still be

required to prove, as they alleged in their complaint, that the

prayer delivered at the Mandarin graduation was given as a result

of the subject policy. 

If this court were to conclude that the instant policy is

unconstitutional, the appellees, contrary to the majority's

assertion otherwise, would have an ample opportunity to "argue

that they were not legally responsible for the prayer delivered

at the appellants' graduation." If this court concluded that the

subject policy did not survive constitutional scrutiny, the court

would then remand the damages issue to the district court. On

remand, both the appellants and appellees would have the

opportunity to argue the merits of the appellants' damages claim. 

After reviewing all of the relevant evidence and hearing

arguments from the appellants and appellees, the district court

would thereafter determine whether the appellants were entitled

to the money damages that they have requested. 

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circumstances, I am not aware of any legal theories, principles

of equity, or appellate rules, including those cited by the

majority, that support the majority's waiver position. 

Since I conclude that the appellants sufficiently raised

their claim for money damages in their complaint, properly

alleged that such damages were the direct consequence of an

unconstitutional policy, and properly and adequately challenged

in their appellate briefs and during oral argument the only issue

actually addressed and decided by the district court, I cannot

agree that the appellants have waived their claim for money

damages on appeal. Consequently, I would reach the merits of the

constitutional arguments raised in this case and would, if

necessary, remand the matter to the district court for a hearing

on all relevant factual and legal issues relating to the

appellants' claim for money damages.19
 

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