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

- 2 - 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.

- 3 - 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.

- 4 - 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,

(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).

- 5 - 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,

, 331 n.5 (1st Cir. 1992) (quoting Shaffer v. Carter,

(1920)); see also Capriole v. Uber Techs., Inc.,

(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,

(1990), and our jurisdiction does not encompass claims that have been rendered moot by "some intervening event," In re Sundaram,

(1st Cir. 2021). Because the mootness doctrine derives from Article III, see DeFunis v. Odegaard,

(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,

, 93–94, (1998). See also J.S. v. Westerly Sch. Dist.,

(1st Cir. 2018) (noting that we "must ask whether [an] issue remains justiciable" before considering the merits of an appeal).

- 6 - 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,

(2013) (quoting Already,

LLC v. Nike, Inc.,

(2013)); Arizonans for Official

English v. Arizona,

(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,

(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,

(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

- 7 - 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.,

(alterations in original) (quoting Church of Scientology

v. United States,

(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,

(1st Cir. 2021) (citing ACLU of Mass. v.

U.S. Conf. of Cath. Bishops,

(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,

(1st

Cir. 2021) (quoting Town of Portsmouth v. Lewis,

(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,

; Klaassen v. Trs.

of Ind. Univ.,

(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).

- 8 - 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.,

(second alteration and emphasis in original) (quoting

Preiser,

). Here, the students' alleged injuries

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

discussed. See Bos. Bit Labs, Inc.,

(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,

(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.,

, 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

- 9 - 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.,

(quoting Hall

v. Beals,

(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.,

(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,

, 27 n.7 (1st

Cir. 2014) (quoting Lewis v. Cont'l Bank Corp.,

(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)

- 10 - ("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.,

; see also Arizonans for Official English,

, 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

- 11 - 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,

(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,

(2016);

Pietrangelo,

. 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.,

(1st Cir. 2006), as the students did not seek to amend in the district court. Cf. Allstate Ins. Co. v. Global Med. Billing, Inc.,

(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,

-29 -- "[a]t [this] stage of the litigation" such a "possibility" cannot rescue mooted, equitable claims from dismissal, see Arizonans for Official English,

.

- 12 - 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.,

. 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.,

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

All.,

. 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.,

,

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.

- 13 - Murphy v. Hunt,

(1982)); see also Libertarian

Party of N.H. v. Gardner,

, 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,

(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."

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.,

(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,

. Indeed, as the

Seventh Circuit recently observed in a similar case, "[c]ollege

- 14 - enrollment usually lasts [at least] four years" and college-

vaccination policies are not ephemeral. See Klaassen,

. 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."

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

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.,

(emphasis in original) (first quoting

Murphy,

, then quoting City of Los Angeles v. Lyons,

(1983)). Notably, this requirement cannot rest

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

similar claim," Thomas R.W.,

. 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).

- 15 - 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,

(1992); see

Knox v. Serv. Emps. Int'l Union, Local 1000,

(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,

, avoiding mootness

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

see Pietrangelo,

. See also Bain,

.

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.,

; see also Bain,

(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

- 16 - 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.,

(1st Cir. 1998). All parties shall bear their own

costs.

- 17 -