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
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
Cluett also asserted claims under the Religious Freedom
1
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.
Marie Bowen et al., An Update on Vaccinations for the
2
UMass Boston Community, UMass Boston (Apr. 26, 2021),
https://www.umb.edu/news/detail/an_update_on_vaccinations_for_th
e_umass_boston_community.
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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 . . . pre-
pandemic 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 COVID-
19 Vaccinations for Fall, UMass Lowell (Apr. 28, 2021),
https://www.uml.edu/alert/coronavirus/4-27-21-student-vaccine-
requirement.aspx.
5 COVID-19 Vaccine FAQ, UMass Lowell,
https://www.uml.edu/alert/coronavirus/returning/covid-vaccine-
faq.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 Chaparro-
Febus 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
We note that, as requested by the court at oral
9
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 college-
vaccination 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.
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