Adler Ex Rel. Adler v. Duval County School Board

COX, Before TJOFLAT and Circuit certify their They action as a class action. *, Judges, and VINING Senior District complaint amended their a second time on Judge. Rand, appellant November to add * Jr., Vining, Honorable Robert L. Senior U.S. Dis- interests are at stake. We therefore refer to the Judge Georgia, "appellants” four Northern District of students as the and to Leslie "Rand,” sitting by designation. Doug Adler and Rand as "Adler" and respectively. Rand, appellants, Doug 1. Two Leslie Adler and were minors when the procedural background was filed and 2. The factual and of this mothers, brought through fully published their claims Kar- case is set out more memo- opinion en Adler and Rand. Robin makes randum and order of the district court. Bd., F.Supp. it clear that Karen Adler and Robin Rand are See Adler v. Duval Sch. parties (M.D.Fla.1994). in name and it is the students whose McCormack, in the Duval student at another school Coun outcome.” Powell v. ty system, plaintiff.3 as a U.S. (1969). Any decision on the defendants, plaintiffs, and defendant- merits of a moot case impermis- would be an intervenors filed cross-motions advisory opinion. sible See Church Scien- 4,May

judgment on March 1994. On (cit- tology Flag Org., Serv. 777 F.2d at 604 the district court denied the Beals, ing 45, 48, Hall v. 396 U.S. 90 S.Ct. granted appellees’ motion and motions. 200, 201-02, (1969) 24 L.Ed.2d 214 (per cu- dispositive opinion In its memorandum and riam)). order, the court found the constitution- judgment al and entered final apply To the doctrine of mootness Appellants F.Supp. lees. at 456. case, distinguish we must appellants’ appeal May filed their notice of equitable claims for relief from their claim damages. Although neither the Appellant subsequently graduated Rand appellants nor the district court treated the June 1994. Because all four have appellants’ claim as distinct graduated, we find that to the extent relief, from their equitable claims for these declaratory injunctive and seek by claims Equitable are distinct nature. only justiciable case is moot. The controver- prospective lief is a remedy, pre- intended to sy in this ease is the claim for injuries. contrast, vent future In a claim for money damages. We affirm the district money damages looks back in time and is grant summary judgment court’s of past injury. intended to redress a claim, appellees on this but we do so without reviewing the merits of the district court’s Frequently, plaintiff will seek both forms analysis. constitutional of relief the same cause of action when challenging a defendant’s course of conduct II. began that before the initiation of the lawsuit begin by noting that likely and is to continue in the future. The declaratory injunctive claims for and relief plaintiff requests money damages to redress All graduated, are moot. injuries past caused the defendant’s con- and none are threatened harm with from equitable duct and prevent seeks relief to possible prayers in future Duval defendant’s future conduct causing from fu- short, graduation ceremonies. injury. ture legally cognizable lants have no need for When dissipates, the threat of future harm declaring relief unconstitutional plaintiff’s equitable claims relief be- preventing and the School Board from allow plaintiff come moot longer because the no ing prayers graduations. at future protection needs injury. from future is This Article III of the Constitution limits precisely happened in what this case. jurisdiction of the federal courts to the con that, Appellants argue despite their sideration certain “Cases” and “Contro Const, school, high from their claims for Ill, § versies.” U.S. art. 2. The declaratory relief are not moot doctrine of mootness is derived from this original injury “capable because the limitation because action is moot repetition, yet evading review.” See South cannot be characterized as an active case or ern Pac. Terminal Co. v. Interstate Com controversy. Scientology See Church of Comm’n, 498, 515, merce 219 U.S. Clearwater, Flag Org. City Serv. (1911). exception 55 L.Ed. 310 This (11th denied, Cir.1985), F.2d cert. to the mootness doctrine is narrow. U.S. S.Ct. L.Ed.2d action, “[A] [I]n case is moot when the is the absence of a class presented longer “capable repetition, yet evading sues are no or the ‘live’ review” parties legally cognizable lack a [is] interest doctrine limited to the situation where plaint.” 3. This second amended is the com- us; plaint before we refer to it “the com- (1) ing challenge combine[ ]:

two elements the chal- to student-trans lenged action its duration too short [is] brought by fer rule gradu student who then fully litigated prior to to be its cessation or despite argument ated moot that student’s (2) there expiration, [is] a reasonable parent had might other children who suffer expectation complaining par- the same injury).6 same ty subjected to [will] be the same action Because equitable claim for relief has again. appellants’ grad- been rendered moot Bradford, Weinstein v. uations, we vacate must the district court’s (per 46 L.Ed.2d 350 S.Ct. grant summary judgment curiam). satisfy This case does the sec- declaratory claims for complaining ond element. Because the stu- injunctive relief and remand the case to the school, high dents have there district court with instructions to dismiss expectation is no reasonable will be See, e.g., those claims. Lewis v. Continental subjected injury again. to the same See 472, 482, Corp., Bank 494 U.S. 110 S.Ct. 312, 319-20, Odegaard, DeFunis v. 416 U.S. 1249, 1256, Having L.Ed.2d 1704, 1707, 94 S.Ct. 40 L.Ed.2d 164 disposed equita- of the claims for (finding challenge to law school admission ble we are left with their claim for policy petitioner moot because “will never money damages, which we now again required gauntlet run address. be the of the process”). Law School’s admission contend, however, Appellants that two of III. plaintiffs,

the named Karen Adler and Robin Rand, parents of other children who will Because the claim for graduate high in the sometime future from depend does not any County may subject schools Duval be harm, threat of future this claim remains a injury. complaint, ed to the same In the controversy. live Realty Corp. See Havens however, caption notwithstanding, the nei Coleman, 363, 371, 102 1114, v. 455 U.S. S.Ct. parent plaintiff ther is described as a and no 1120, (1982) (“Given respon L.Ed.2d theories have ever been advanced to dents’ pursuit continued active monetary parent, an individual action either nor relief, this case remains ‘definite and con any allegations were made crete, touching legal parties relations of regarding the existence of other children. ”) having adverse (quoting interests.’ only plaintiffs The former students are the Haworth, 227, Aetna Ins. v.Co. Life us,4 them, any before and as to claim for 240-41, 81 L.Ed. 617 equitable clearly Sapp relief is moot. See (1937)). (5th 172, Cir.1975) Renfroe, 511 F.2d accordingly turn our (holding challenge gradua constitutional focus to the basis requirement brought damages. tion student who The moot);5 complaint alleges then Laurenzo v. that a chap- Missis “senior class Ass’n, sippi High prayer Sch. Activities 662 F.2d lain” delivered a at the June (5th 1117, Dec.1981) (hold- A graduation Cir. Unit ceremony ap- which appellants originally sought represent 4. The 6.Although decisions from Unit A of the former similarly class of situated students who would September Fifth Circuit handed down after future, graduate timely in the but failed binding precedent, are not we find the move the district court for class certification reasoning persuasive. See Stein v. Laurenzo pursuant to local court rules. The district court Sec., Inc., (11th Reynolds 667 F.2d Cir. appellants denied the leave to file a motion 1982) (adopting binding precedent as all deci- appellants class out certification of time. The do sions of Unit B of former Fifth Circuit handed challenge ruling. September recognizing down after but persuasive authority non-binding Unit A deci- Prichard, City In Bonner v. 661 F.2d sions). (11th Cir.1981) (en banc), this court adopted binding precedent all decisions of the prior former Fifth Circuit handed down to Octo- ber graduated.7 pellants and Zion issue the ap raise on peal is whether only past injury for which the district court erred in holding policy constitutional. While being subjected could seek redress is to this constitutionality policy may of the have been prayer ceremony.8 at their To central to the now moot issue of whether prove injury, caused this equitable relief is prevent warranted to appellants alleged in policy being implemented future consequence” was “a direct of the graduations, it dispose does not of the issue answer, policy. school’s whether the should be awarded prayer, lees admitted that a student said the being subjected but denied that was a conse graduation. words, at their In other quence policy. of the claim for depend does not The district court based its decision to constitutionality policy of the in the ab grant appellees’ motion for applied stract or as other Duval judgment on its conclusion that schools. Even if the is unconstitution al, if, was not unconstitutional. might Because we find defendants not be liable example, implement the district court’s order must be af- ceremony question at the if regardless or constitutionality firmed would have policy. been delivered without the the policy, ruling we abstain from on this hand, On the if other the district court was See question. controversial finding policy constitutional, correct in Lyng Cemetery v. Northwest Indian Protec- Epting, defendant principal, Mandarin’s Ass’n, tive 1319, 485 U.S. 108 S.Ct. might implement nonetheless be if liable he (“A 1323, (1988) 99 L.Ed.2d 534 fundamental policy ed in an unconstitutional manner.9 longstanding principle judicial and of requires straint reaching that courts avoid The constitutionality policy, of the there- questions fore, in advance independent has little relevance to the them.”). necessity deciding appellants’ damages claim. Whether parties agree 7.The Appellant graduate that a student delivered the Rand did not at this cere- following message: mony. Because he after the district foremost, give par- First and we judgment, thanks to our court entered final he has no claim for providing ents for the love and we Summary judg- in this case. many granted. have too times taken for We appellees ment in favor of the on Rand's claim challenging thank our teachers for our minds proper was thus and is affirmed. In the rest of inspiring greater and tous achievement. And part opinion, "appel- of the we use the term finally special present to our friends who are only appellants lants” to refer today, you sharing joy. we thank for our Zion. We, class, entering chapter as a a new time, our lives. As we enter this new there will example, 9. For the district court based its con- made, many be decisions to be decisions that policy clusion that the did not violate the Consti- shape will our future. tution under the test enunciated in v. Lemon guidance, We strength, ask for divine and a Kurtzman, 602, 2105, 403 U.S. 91 S.Ct. burning desire to move ahead and succeed. In (1971), part finding on its that the pray. God's name we Amen. primary deciding did not have the effect of advanc- message assume without that this mandate, religious prayer ing religion constitutes require, for First Amend because it did “not purposes. DeSpain ment See religious expression prayer v. DeKalb or direct that or oc- 428, 655, Community F.Supp. Sch. Dist. Adler, any graduation ceremony." cur at (N.D.Ill.1966) (finding 655-56 verse "We thank F.Supp. Similarly, at 453. it held sweet; you you for the flowers so thank Weisman, /We was not unconstitutional under Lee v. eat; you the food we thank birds that /We 2649, 505 U.S. (1992), 112 S.Ct. 120 L.Ed.2d 467 sing; you everything" thank /We because the did “not solicit or prayer purposes), constitute for First Amendment invocations mandate or benedictions.” rev’d, (7th Cir.1967) (finding 384 F.2d 836 same F.Supp. at 456. denied, prayer), verse did constitute cert. 390 U.S. Assuming that both (1968); these conclusions are cor- 88 S.Ct. 19 L.Ed.2d 873 see rect, Vitale, Epting might be Engel still liable for a constitu- also tional tort under either of these he (describing 8 L.Ed.2d tests if "man- date[d], prayer require[d], directed] "solemn avowal of divine faith and or that” the supplication blessings Almighty”). gradation. of the be delivered at the Mandarin brief, entirely sought.” In damages depends on relief their are entitled to only under which the ask us to reverse the district court and the circumstances entry graduation ceremony. remand the case “with directions for at their was delivered summary declaratory judgment and relief.” prevail, In must have order They theory connecting do not ask us to direct the district court some the individual defen- to award or to prayer. on remand dants to the any proceedings on their hold kind of further reasons, if we to find For these even were States, damages claim. See Frank v. United fault with the district court’s constitutional (2d Cir.1996) (holding F.3d 832-34 analysis policy, this conclusion itself cross-appellant failed to issue waived because question of whether would answer relief, request appropriate though even granting the court erred cross-appellant had stated the issue and at damages judgment on the incorporate argument tempted before dis grounds offer no other court), filed, cert. petition finding their briefs for trial court error. (U.S. 1996)(No. June 95- U.S.L.W. considering After briefs 2006). argument, and oral are convinced that we fact, references to their claim they either fail to understand the basis for statements, damages cursory were two seriously claim or do not seek one their initial brief and one at oral damages.10 They have offered us no connec argument. Their brief indicated tion between the “seeking declaratory initiated the lawsuit claim; their briefs offer no indication as to damages,” as well as but any surrounding of the circumstances again damages claim never mentioned their graduation prayer. They failed theory. underlying legal its con or After argue was a “direct conse tending argument at oral that their case fit theory quence” policy, or other n withinthe yet “capable repetition, evading connecting the defendants’ actions to the exception review” to the mootness doctrine prayer. do not Their briefs even above, appellants suggested in discussed allegation include the made in their com passing that their case not moot was because plaint that a was delivered at Manda money the contained a for rin. damages.11 they preserve If had desired to their dam- ages appeal, they agree Judge Vining’s in- should have We cannot with con- cursory cluded all this information their initial clusion that treatment is suffi- pursuant appellate proce- preserve damages brief the of to to rules cient claim on 28(a)(3), (4), (6), developed R.App. dure. See Fed. P. Without the benefit of (requiring appellant argument regarding pro- both to include in initial brief sides the presented priety grant of district of “[a] statement the issues for the court’s sum- review”; claim, “indicat[ing] briefly mary judgment damages statement the the we effectively nature of the case” followed “a statement cannot review that decision. For presented deny of the facts relevant to the issues us to rule on this issue would the review”; argument “contain[ing] appellees opportunity argue they for an the the that appellant legally responsible contentions of the on the issues were not the all, presented”). telling appellants’ graduation. Most is their delivered the As 28(a)(7) quest R.App. Savings for relief. Fed. P. noted in Federal Ins. we & Loan (11th Haralson, requires appellants Corp. F.2d include their initial Cir. 1987): stating precise brief a “short conclusion conclusion, They argued

10. In of the latter we note first that their case was not moot brief, however, reply in their brief. In that appellants agreed that with district court's only argument they made was that their case was pretrial hearing "prayer assertion at a that their "capable repetition, yet evading review.” injunctive percent relief ... is 99 of this They made their claim for dam- no mention of litigation.'' ages. requires appellant The waiver rule and REMAND the case with instructions argument state and address to the issues that the district court dismiss those claims. appellant desires have reviewed We AFFIRM the district court’s denial of appellant’s this Court initial brief appellants’ summary motion for judg- preparing argu- “[i]n because briefs and grant ment and its summary judgment ments, appellee rely is entitled to on the appellants’ on the appellant’s scope content of an brief for the appealed.” of the issues It is SO ORDERED. (quoting Pignons

Id. at 373-74 n. 3 S.A de Mecanique Corp., v. Polaroid 701 F.2d VINING, Judge, Senior District (1st Cir.1983)). concurring part dissenting in part: reasons, For all they these we hold that While I concur in majority’s conclusion appeal.12 have waived their claim on appellants’ requests injunctive See, e.g., Braun v. Maga Soldier Fortune declaratory moot, relief I cannot zine, (11th 968 F.2d 1121 n. 13 Cir. agree with finding its 1992) (refusing to review issue not raised and money waived their claim damages. argued brief), in appellant’s initial cert. de Accordingly, respectfully I dissent from Part nied, S.Ct. majority III of opinion. We therefore affirm the district court’s order to the extent it denied observes, majority As the motion for judg specifically alleged in that a granted appellees’ ment and motions for member of the pray senior class delivered a summary judgment on the dam 7,1993, er at the June High Mandarin Senior ages claim. School exercises which lants graduated. and Zion Con

IV. allegation sistent with this request and their reasons, foregoing For the we damages, VACATE for al also the district granting leged court’s order was a direct conse summary judgment quence lees of the Duval School District declaratory claims for relief at issue in this ease.1 Judge Vining suggests proper disposi- guess litigants grant before us and them relief tion of this case is to reach the merits of the they request, pursuant did not theories and, ruling district court’s erroneous, if we were to find it outline, did not based on facts proceed- remand the case for further 28(a); R.App. relate. See Fed. P. Head Start ings damages disposition on the a Such Family Program, Cooperative Educ. Inc. v. Educ. logically appealing, is but does not take into (7th Cir.1995) Agency Serv. 46 F.3d significance appellants’ account the of the failure (noting appellate duty that an "court has no to (1) appeal any theory connecting articulate legal arguments research and construct available cognizable inju- the actions of the ry to a Clarke, party”); Bancorp to a Golden Pacific appellants, any suffered the discuss (D.C.Cir.) ("[Appellate 837 F.2d courts] facts relevant to the Mandarin cere- legal inquiry do not sit as self-directed boards of mony, policy, other than the existence of the or research, essentially and but as arbiters of (3) request that we remand the case with di- questions presented argued by parties.”), and the that rections ey damages the district court either award mon- denied, cert. or, least, very at the conduct further proceedings damages to determine whether recognize that we have discretion to over- glaring clearly warranted. These omissions 28(a) noncompliance look technical with Rule appellants demonstrate that the ad- sponte. and can even decide issues sua These damages appeal. vanced their claim on only appropriate courses of action are in rare Perhaps the did state a valid dam- injustice. circumstances to avoid manifest See ages complaint, claim in their and the evidence Frank, find, however, 78 F.3d at 833. We that may very available to them well that present sufficiently compelling this case does not appellants perceived any claim. Had' the that reasons for us to exercise injunctive that discretion. solely claim for relief based moot, policy they was we have little doubt that appellants' fully complaint replete 1. The damages would have with addi- briefed their claim on error, however, plain specific particularized allegations In the absence of tional that place appellate it is not our as an rep- court to second outline other instances in which senior class appellants properly I find that the granted district court Because May the On argued appeal summary judgment, adequately briefed and for appellees’ motion the only actually the issue addressed and decided concluding Duval School Dis that the court, i.e., constitutionality the The the district policy was not unconstitutional. policy, disagree I with the analyzed of the instant neither discussed nor district court money damages majority’s decision.5 appellants’ claim the In opinion and order.2 its memorandum implicitly recognized, As the district court stead, dismissing appellants’ all of the after absolutely unnecessary for it to en it was policy, challenges to the instant gage any analysis appellants’ of the claim judgment final district court entered the money damages it that after determined never, explicitly implicit or appellees. It the unconstitutional. the instant was not fashion, addressed, any the ly, substantive properly expressed no The district court appellants’ damages claim.3 opinion regarding propriety the of the money damages subsequent lants’ claim Despite the uncontroverted fact that con analyzed holding that the at issue survived never addressed or district court because, money scrutiny under the facts stitutional appellants’ order, case, were not entitled opinion and the ma its memorandum injunctive money damages, or or declara jority appellants’ failure to concludes matter, tory finding a money damages claim on relief for that absent “fully brief’ their subject policy that the was unconstitutional.6 appeal a waiver of that claim.4 constitutes claim, did, religious messages porting at other resentatives delivered notes, County high acknowledge majority commencement cere- Duval school reference and Moreover, appellants specifically monies. allege the existence of such claim. prayers as a that these were delivered policy. subject of the school district result constitutionality 6.While instant money dispositive is not of the dam- fact, appel- the district court referenced claim, appellants' money ages claim for dam- damages only once in its lants' claim for ages, requests and de- like opinion twenty-two page and or- memorandum relief, clearly upon claratory depend does introduction, court, after observ- der. ing In its constitutionality subject policy. disagree I sought injunctive majority's contrary. with the assertion to the sought declaratory relief noted that "also claim for damages.” This was the district R4-123-2. at the relates to the delivered appellants’ money court’s sole reference to the explained, graduation. previously As I have thereafter ex- claim. The district court pre- appellants specifically alleged tensively analyzed in their the constitutional issues addressing, given sented in this case ever even without that this was as a direct result of fashion, perfunctory appellants' in the most policy at in this case. issue money damages claim. allege appellants did not in their com- plaint, any time the course of this or assert implying I that the district court erred am not litigation, defendant acted analyze individual by failing claim for unconstitutionally, except acting pursuant money damages. when Once the district court ruled unconstitutional, County- subject policy purportedly Duval was not unconstitutional unnecessary policy. example, it was for the court to consider the School District For monetary damages. appellants' In- allege claim for lants did not in their deed, any by the district court of mon- discussion principal, Epting, Dalton acted inde- ey damages point at that would have been dicta. pendently, pursuant than to the rather issue, permitted repre- when the senior class he appellants may agreed Although with 4. have sentative to deliver the at the Mandarin pretrial at the hear- the district court's assertion ceremony. majority’s suggestion ing relief was that their Epting might independently be liable if he sought ninety-nine percent of the relief in this mandated, required, or directed that a be matter, provides persua- such a no concurrence appears only majority opinion. given in the support proposition sive for the that the theory appellants have never advanced this money damages waived their claim for lants appeal allegations liability, and there are no factual seriously or that seek mone- Thus, support theory. such a their tary damages. majority To extent appellants' allegations in consistent with the otherwise, I do not concur. states complaint, their the claim for depend directly upon constitutionality great does Although 5. did not discuss subject policy. during argument sup- detail oral the evidence ruling, court’s with the district Consistent therefore, Henry MITCHELL, focused Greene properly appellants, Plaintiff-Appellant, by the

upon alleged errors committed analysis. in its constitutional district court circumstances, aware I am not these Under FARCASS, Superintendent, Hendry Dave theories, equity, or principles of any legal Institution, King, Inspec- Correctional J. rules, appellate including cited those Hendry Institution, De- tor Correctional majority’s waiver majority, fendants-Appellees. position. No. 96-3026. appellants suffi I that the Since conclude Appeals, States Court of United claim ciently their raised Eleventh Circuit. properly alleged that such complaint, consequence direct of an damages were the 6,May and ad policy, properly unconstitutional challenged appellate briefs

equately during argument oral issue by the dis

actually addressed and decided court, agree I cannot money waived their Consequently, I reach the would arguments raised

merits of the constitutional would, necessary, if remand this case hearing to the district court for matter relat

on all relevant factual and issues money

ing appellants’ claim for dama

ges.7 legally responsible prayer delivered at cognizant of the fact that the constitution- not I am dispositive ality graduation." is of the instant this court con- If money damages. Even if this court were subject issue of did not survive cluded that unconstitutional, subject policy to find that the scrutiny, would then the court automatically appellants would not be enti- the district court. issue to mand Rather, damages. tled to remand, appellants and both the On alleged required prove, would still be opportunity argue the merits would have the complaint, delivered in their appellants’ damages After review- of ing given a result of the Mandarin was hearing argu- relevant all of the evidence subject policy. appellees, the from the ments the instant this court were to conclude that If wheth- would determine district court thereafter unconstitutional, contrary appellees, appellants were er the entitled otherwise, majority’s would have assertion requested. ample opportunity “argue were

Case Details

Case Name: Adler Ex Rel. Adler v. Duval County School Board

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: May 6, 1997

Citation: 112 F.3d 1475

Docket Number: 94-2638

Court Abbreviation: 11th Cir.