United States Court of Appeals For the First Circuit

No. 23-1003

CAITLIN CORRIGAN,

Plaintiff, Appellant,

v.

BOSTON UNIVERSITY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Denise J. Casper, U.S. District Judge]

Before

Gelpí, Selya, and Thompson, Circuit Judges.

Robert N. Meltzer, with whom Mountain States Law Group was on brief, for appellant. Thomas M. Elcock, with whom Prince Lobel Tye, LLP, Jennifer C. Pucci, and Boston University Office of the General Counsel were on brief, for appellee.

April 12, 2024 SELYA, Circuit Judge. Faced with grim statistics at the

height of the COVID-19 pandemic, universities collaborated with

medical and scientific experts in an all-out effort to implement

community-wide testing programs designed to safeguard the health

and safety of those who set foot on their campuses.

Notwithstanding these efforts, the fit was sometimes imperfect.

When one such university, defendant-appellee Boston University

(BU), implemented a mandatory testing program, plaintiff-appellant

Caitlin Corrigan — a graduate student at the time — claimed that

she could not comply due to a chronic medical condition. She

further claimed that requiring her compliance with the program

would violate the Americans with Disabilities Act (ADA), see

. Litigation ensued.

The district court did not reach the merits of Corrigan's

claims. Instead, the court dismissed Corrigan's suit for want of

subject-matter jurisdiction on the theory that it had become moot

once BU ended its mandatory testing program. Concluding, as we

do, that the district court appropriately applied mootness

principles to dismiss Corrigan's suit and that Corrigan has not

shown that her case comes within an applicable exception to those

mootness principles, we affirm the order of dismissal.

I

We briefly rehearse the relevant facts and travel of the

case.

- 2 - A

In the fall of 2020, the COVID-19 pandemic raged

relentlessly throughout the nation. This circumstance prompted BU

to mandate that its students — even if asymptomatic — undergo

regular testing for the virus. To accomplish this goal, BU opened

an on-campus laboratory so that it could conduct polymerase chain

reaction (PCR) testing for the virus.1 The university also set up

a website that allowed it to broadcast information about university

protocols as rapidly as practicable.

Time marched on, however, and by March of 2022, the

pandemic was in decline. This decline led BU to terminate its

mandatory testing program in May of that year. By then, BU also

had relaxed other COVID-19 protocols (such as its masking

requirement).

Corrigan enrolled as a graduate student in BU's School

of Theology in the fall of 2021. She immediately cited a chronic

medical condition and invoked the ADA to apply for an exemption

from BU's mandatory testing program. BU rejected her proposed

exemption and (she says) refused to negotiate with her. As a

1 In COVID-19 testing, PCR — "a common laboratory technique used . . . to amplify, or copy, small segments of genetic material" — is run with fluorescent dyes that mark virus genetic material to measure how much of that genetic material appears in a human sample. Understanding COVID-19 PCR Testing, NAT'L HUMAN GENOME RSCH. INST., https://perma.cc/QU6R-BW2E (last visited Apr. 2, 2024).

- 3 - result, she was out of compliance with the university's protocol,

and BU suspended her for the fall semester.

Although Corrigan was advised that she would be welcome

to return to her academic pursuits after her suspension — assuming

that she adhered to the mandatory testing program — she never

returned to campus. Nor has she since attempted to reenroll as a

student at BU.

This was not the end of the matter. Rather than

attempting to repair her relationship with the university,

Corrigan sued BU, alleging that BU had violated Title III of the

ADA.2 See Corrigan v. Boston Univ., No. 22-10443,

,

at *1 (D. Mass. Oct. 19, 2022).

B

BU moved to dismiss Corrigan's suit for want of subject-

matter jurisdiction, and the district court — applying mootness

principles — granted the motion.3 See

Because BU had ended

2 The portion of the statute upon which Corrigan relied makes clear that discrimination on the basis of disability includes the "failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the[ir] nature."

(b)(2)(a)(ii). 3 Corrigan repeatedly mischaracterizes the district court's opinion as granting BU's Rule 12(b)(6) motion. The district court, however, made no such ruling. Indeed, such a ruling would have been grossly improper once the district court had held the case to be moot. The only issue properly on appeal is the district court's

- 4 - its mandatory testing program, the court determined that an order

requiring BU to provide Corrigan with a reasonable accommodation

to the program would have had no effect. After all, "there [was]

no ongoing conduct to enjoin."

at *4 (quoting Town of

Portsmouth v. Lewis,

(1st Cir. 2016)). The court

added that "issuance of a declaratory judgment deeming past conduct

illegal [was] also not permissible as it would be merely advisory."

(quoting Am. Civ. Liberties Union of Mass. v. U.S. Conf. of

Cath. Bishops (ACLUM),

(1st Cir. 2013)). In the

court's view, this general rule should be relaxed only if "there

is a substantial controversy of sufficient immediacy and reality

to warrant the issuance of a declaratory judgment."

(quoting

Lewis,

). But "[n]o such immediacy or reality

exist[s] here."

In support of this reasoning, the district court noted

that "BU's mandatory testing program ended on May 23, 2022, and

nothing in the record suggests that the program will be revived —

let alone with the sufficient immediacy and reality to overcome a

mootness challenge."

And although Corrigan advanced two

potential exceptions to save her suit from mootness, the court

ruled that neither exception had any footing in the facts of this

case. See id. at *5-7. The voluntary cessation exception was

grant of BU's Rule 12(b)(1) motion for want of subject-matter jurisdiction.

- 5 - inapplicable because BU stopped its mandatory testing program for

a reason unrelated to Corrigan's suit (the waning severity of the

pandemic) and BU was unlikely "to impose a [program] 'similar'

enough to the old [program] to present substantially the same legal

controversy as the one presented by [Corrigan's] complaint." Id.

at *6 (alterations in original) (quoting Resurrection Sch. v.

Hertel,

, 529 (6th Cir. 2022)).

So, too, the district court found inapplicable the

exception for cases which, though capable of repetition, might

otherwise evade review. See id.; see, e.g., Spencer v. Kemna,

(1998) (holding that habeas petition had become moot

after petitioner was released from second stint of incarceration

following parole revocation because he had failed to show that

"time between parole revocation and expiration of sentence is

always so short as to evade review" and that he again likely would

face parole revocation); Murphy v. Hunt,

(1982) (holding that defendant's challenge to denial of pretrial

release had become moot after he was convicted because he would

have been entitled to pretrial release only if his convictions

were reversed but had shown no more than a possibility of

reversal); cf. Fed. Election Comm'n v. Wis. Right to Life, Inc.,

(2007) (holding that advocacy group's

challenge to statute prohibiting certain campaign ads was not moot

even though elections had concluded because election cycle was too

- 6 - short to obtain complete judicial review and advocacy group planned

to run similar ads in future elections); Neb. Press Ass'n v.

Stuart,

(1976) (holding that challenge to

restraining order against press coverage of trial that expired

after jury empanelment was not moot because such orders are short

lived and press was likely to dispute similar orders in the

future). The court pointed out that Corrigan's claim was not

inherently transitory (BU's mandatory testing program had been in

place for nearly two years) and BU was unlikely to subject Corrigan

to mandatory testing again. Corrigan,

, at *7.

Finally, the court held that the monetary relief that

Corrigan sought was legally insufficient to support a claim of

jurisdiction. See

. Under applicable precedents, the

court maintained, Corrigan's prayer for monetary relief could not

resurrect an otherwise moot case because she asked for damages

without including a specific dollar amount.4 See id.; see also

Harris v. Univ. of Mass. Lowell,

, 192-93 (1st Cir.

2022) (explaining that, although damages can salvage case when

unavailability of equitable relief otherwise would render it moot,

4 Although the parties do not develop the point on appeal, we pause to note that such a request for damages would be irrelevant in all events because monetary damages are unavailable under Title III of the ADA. See G. v. Fay Sch.,

(1st Cir. 2019) (explaining that, "[b]y the plain terms of that provision [of the ADA], . . . damages for past harms are not available" (first and third alterations in original) (quoting Goodwin v. C.N.J., Inc.,

(1st Cir. 2006))).

- 7 - complaint failed to include "any specific request for damages").

And a catchall "request for 'any other relief [the] Court deems

proper' cannot operate to save [an] otherwise moot action."

Corrigan,

, at *5 (alterations in original)

(quoting Harris, 43 F.4th at 193). In like fashion, "an 'interest

in attorneys' fees [or costs] is . . . insufficient to create an

Article III case or controversy where none exists on the merits of

the underlying claim.'" Id. (second alteration in original)

(quoting Harris, 43 F.4th at 193).

This timely appeal followed.

II

We next proceed to note some applicable legal standards.

A

"Article III of the Constitution grants the federal

judiciary the authority to adjudicate cases and controversies, see

U.S. Const. art. III, § 2, cl. 1, but that authority extends only

to live cases and controversies, not to those which are or have

become moot." In re Sundaram,

, 18 (1st Cir. 2021). In

this regard, "the key question 'is whether the relief sought would,

if granted, make a difference to the legal interests of the parties

(as distinct from their psyches, which might remain deeply engaged

with the merits of the litigation).'" Bos. Bit Labs, Inc. v.

Baker,

, 8 (1st Cir. 2021) (quoting Air Line Pilots

Ass'n, Int'l v. UAL Corp.,

(7th Cir. 1990)).

- 8 - The burden of showing mootness is a heavy one — and it rests

squarely with the proponent of the issue. See

B

As a general matter, we review the district court's

mootness determinations de novo. See

"The ultimate question

of whether jurisdiction exists . . ., however, may turn on or be

influenced by the district court's role as the decider of disputed

facts." Amoche v. Guar. Tr. Life Ins. Co.,

(1st

Cir. 2009). That is, "a district court faced with a factual

challenge under Rule 12(b)(1) ordinarily must resolve disputed

facts (or, at least, choose among competing inferences from

subsidiary facts). . . . [And] such findings will be set aside

only if clearly erroneous." Valentín v. Hosp. Bella Vista,

(1st Cir. 2001). For "mixed question[s] of law and

fact, the same deferential standard of review endures."

In first reviewing the facts, "we must accept the

[district] court's findings and the conclusions drawn therefrom

unless the whole of the record leaves us with 'a strong, unyielding

belief that a mistake has been made.'"

(quoting Cumpiano v.

Banco Santander P.R.,

(1st Cir. 1990)). Our

next step is to "determine whether the facts, as supportably found,

justify the court's ultimate legal conclusion." Id. at 365-66

(emphasis in original).

- 9 - III

On its face, this case presents a classic illustration

of mootness: the university requirement that led the parties to

a parting of the ways is no longer operative, and Corrigan does

not seriously dispute that conclusion. Yet, two exceptions to the

rule of mootness may be relevant — and Corrigan deploys both

exceptions in furtherance of her claims.

A

The voluntary cessation exception applies in situations

in which "a 'defendant voluntary[ily] ceases the challenged

practice' in order to moot the plaintiff's case, . . . and there

exists 'a reasonable expectation that the challenged conduct will

be repeated following dismissal of the case.'" Lewis,

(first alteration in original) (quoting ACLUM,

). To qualify for this exception, the defendant's conduct also

must be "sufficiently similar to the [past conduct such] that it

is permissible to say that the challenged conduct continues." Ne.

Fla. Chapter of Associated Gen. Contractors of Am. v. City of

Jacksonville,

, 662 n.3 (1993).

"[A] defendant claiming that its voluntary compliance

moots a case bears the formidable burden of showing that it is

absolutely clear the allegedly wrongful behavior could not

reasonably be expected to recur." Friends of the Earth, Inc. v.

Laidlaw Env't Servs. (TOC), Inc.,

(2000).

- 10 - Otherwise, "a defendant might suspend its challenged conduct after

being sued, win dismissal, and later pick up where it left off; it

might even repeat 'this cycle' as necessary until it achieves all

of its allegedly 'unlawful ends.'" FBI v. Fikre,

,

___ (2024) [No. 22-1178, slip op. at 6] (quoting Already, LLC v.

Nike, Inc.,

(2013)).

Although the university ceased the challenged conduct on

its own volition, the circumstances are such as to persuade us

that this posturing is not of concern. As the district court

supportably found: "After almost two years in place, BU retired

the program not in response to Corrigan's lawsuit, but rather

because of more favorable trends in regard to COVID-related

illnesses and hospitalizations." Corrigan,

, at

*6. This development also explains why the university is unlikely

to repeat the challenged conduct. Because it is absolutely clear

that BU ended its mandatory testing program in response to

encouraging public health data and there are no signs that the

pandemic will worsen, it is not reasonable to expect that BU again

will impose a similar testing program.

B

This leaves the capable-of-repetition-yet-evading-

review exception. To gain the benefit of this exception, "a

plaintiff [must] show that '(1) the challenged action was in its

duration too short to be fully litigated prior to its cessation or

- 11 - expiration, and (2) there was a reasonable expectation that the

same complaining party would be subjected to the same action

again.'" ACLUM,

(quoting Gulf of Me. Fisherman's

All. v. Daley,

(1st Cir. 2002)). As to the first

element, "the claims [must be] inherently transitory . . . [or

there must be] a realistic threat that no trial court ever will

have enough time to decide the underlying issues." Cruz v.

Farquharson,

(1st Cir. 2001).

Corrigan has failed to establish either of these

elements. It is struthious at best to suggest that a resource-

intensive effort continuously spanning almost two years is so

fleeting that a court could never have time to pass on its

legality. Indeed, we previously have observed that "[c]hallenges

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." Harris, 43

F.4th at 194. And as we explained earlier, BU ended the mandatory

testing program in response to promising public health data. Thus,

it is not reasonable to expect that the university again will

impose a similar program in the absence of a future public health

concern (the sole justification for the original program).

We also summarily reject Corrigan's argument that the

capable-of-repetition-yet-evading-review exception "is a catch-

all when dealing with 'exceptional circumstances.'" This argument

- 12 - inverts the Court's reasoning in City of Los Angeles v. Lyons,

(1983). The exception does not permit a court to

salvage an otherwise moot case whenever "exceptional

circumstances" weigh in favor of adjudicating the claims but,

rather, "applies only in exceptional situations, and generally

only where the named plaintiff can make a reasonable showing that

he will again be subjected to the alleged illegality."

As we

have discussed, Corrigan cannot make this showing.

IV

Refined to bare essence, Corrigan suggests three reasons

why her suit is not moot. First, she asserts that, in applying

the mootness exceptions, the district court misread Boston Bit

Labs and Lewis because those cases were rendered moot based on

considerations that are inapplicable here. Second, she asserts

that the district court misconstrued the facts in applying the

mootness exceptions. Third, she asserts that the district court

ignored the import of the ADA's scheme for providing prospective

relief. None of these assertions moves the needle.

A

Corrigan first challenges the district court's

discussion of Boston Bit Labs and Lewis as they pertain to the

analysis — required by both mootness exceptions — of whether there

was a reasonable expectation that Corrigan again would be subjected

to sufficiently similar conduct. The crux of the matter in Boston

- 13 - Bit Labs, as Corrigan views it, involved the governor of

Massachusetts issuing executive orders — under the authority of a

state statute that permitted such action in times of emergency —

to ensure the safety of residents during the pandemic. See 11

F.4th at 7. Once the governor rescinded these executive orders,

Corrigan's thesis runs, further executive action would have

required a new declaration of emergency subject to the constraints

of the state statute and judicial review. See id. It was,

therefore, "'absolutely clear' that the supposedly 'wrongful

behavior could not reasonably be expected to recur'" because there

would have been no justification (as required by state law) for

invoking the governor's emergency authority in the latter months

of the pandemic. Id. at 11 (quoting Bayley's Campground, Inc. v.

Mills,

, 158 (1st Cir. 2021)).

The case at hand is a horse of a different hue. Here,

the university retains the authority to institute a mandatory

testing program at any time without similar legal constraints.

Corrigan insists, therefore, that BU's mere representations about

ending its mandatory testing program do not make it "absolutely

clear" that there is a reasonable expectation that BU will not

again subject her to a testing program. (Quoting id.).

This insistence is composed of more cry than wool. As

we observed in Boston Bit Labs, "[t]hat the Governor has the power

to issue executive orders cannot itself be enough to skirt

- 14 - mootness, because then no suit against the government would ever

be moot." 11 F.4th at 10. In the same vein, that BU retains

authority to impose a mandatory testing program on students by

itself cannot keep a suit alive. Although BU does not have the

additional burden of complying with a state statutory scheme, its

decisions must remain sensitive to internal organizational

constraints and its responsibilities to students, faculty, and

staff. Put bluntly, imposing a mandatory testing program in the

absence of a full-fledged pandemic would be an unjustifiable

expenditure of resources and place an unnecessary burden on the

school's community members such that there is no reasonable

expectation that BU will reinstate a similar testing program with

which Corrigan must comply.

In Lewis, we observed that the challenged conduct (tolls

imposed by the state of Rhode Island) was unlikely to recur because

the Rhode Island legislature had repealed the enabling statute.

See

. Although the governor had proposed new tolls

and the state senate had passed a bill that reauthorized tolls,

"the capital infrastructure for collecting the tolls ha[d] been

dismantled, [which] hardly [represented] the behavior of a

defendant that intended to return to its old ways upon dismissal

of a case."

. The legal authority for the challenged

tolls could have been restored, but we nonetheless held that the

conduct was unlikely to recur based on factual developments. See

- 15 -

Similarly, BU was dismantling the extensive infrastructure

that it had developed solely for its testing program during the

height of the pandemic. These costly and time-consuming moves —

during a time of financial hardship for universities — "hardly

[represent] the behavior of a defendant [seeking] to return to its

old ways upon dismissal of a case."

B

Corrigan's factual challenge fares no better. In

mounting it, Corrigan seemingly disputes the district court's

finding that BU ended its mandatory testing program based on the

incidence of more favorable public health data and was unlikely to

resume a similar one that also would ensnare her (as required by

both mootness exceptions). She contends that BU made only oral

promises to end the mandatory testing program, and these promises

later were cast into grave doubt by a suggestion that the

university would continue with testing. These promises, she

suggests, are the equivalent of showing a receipt for a portable

ADA-compliant ramp purchased online with the intent of installing

it at some point, instead of hiring a designer, obtaining the

necessary building permits, and signing a contract with a

construction company to construct professionally an ADA-compliant

ramp (a much more permanent course of action).

In parsing this suggestion, we look to the relevant facts

as the court found them and intervene only where a factual finding

- 16 - is clearly erroneous or a legal conclusion is incorrect. See

Valentín,

. In March and April of 2022, BU issued

several statements announcing that the mandatory testing program

would end in May of that year. See Corrigan,

, at

*3. The mandatory testing program subsequently lapsed in May, and

BU never reinstated the program as it no longer was necessary given

the waning severity of the pandemic. See

What is more,

Corrigan did not reenroll as a student at BU after her suspension

even after the mandatory testing program's discontinuation. See

We can discern no clear error in connection with the

district court's account of these events. Indeed, Corrigan's only

evidence to the contrary is an announcement — presented without

any context — that, although the "United States [was] 'out of the

pandemic phase,'" BU would continue testing. As the district court

correctly explained, though, "[m]ere speculation that a defendant

will repeat challenged conduct cannot rescue an otherwise moot

claim."

; see Harris, 43 F.4th at 195 (holding that

possibility that students would return to universities — after one

transferred and another graduated — and again be subjected to their

COVID-19 vaccination policies "rest[ed] on 'speculation' about

some future potential event" (quoting Pietrangelo v. Sununu,

, 106 (1st Cir. 2021))).

- 17 - The supposedly contradictory statement that Corrigan

presents suggests only that BU would continue with some sort of

testing program. It does not suggest that the testing program

would be mandatory for everyone or even that it would be mandatory

for Corrigan specifically. And, moreover, it remains unclear

whether Corrigan even intends to return to the university at this

point. Corrigan is left prognosticating about a hypothetical

scenario in which BU reinstates a similar testing program with

which she must comply upon reentering the university at some

unspecified time.

C

Corrigan has one last blade in her scabbard. She

contends that the district court fundamentally misunderstood her

claim because BU's "violation of the ADA [was] not the testing

mandate per se, but [its] arrogant assertation that it need not

comply with the ADA on its own whim." In denying her prospective

relief, she maintains, the district court overlooked that the ADA

was drafted to counteract this type of situation — a situation in

which an entity is dodging compliance with the statute through

shifty procedural moves. But despite the harshness of her

rhetoric, she has nowhere in the record identified any evidence to

support such an allegation. To the contrary, BU has repeatedly

disputed Corrigan's claims that it violated the ADA, including

- 18 - through its filing of a motion to dismiss on the merits. See Fed.

R. Civ. P. 12(b)(6).

BU is contending at most that the legality of its conduct

cannot be adjudicated under our constitutional framework. As the

university's brief points out, no matter how important the

fundamental rights vindicated by the ADA may be, they cannot

supersede the constitutional threshold for a federal court to

assume jurisdiction.5 See Kokkonen v. Guardian Life Ins. Co. of

Am.,

(1994) ("Federal courts . . . . possess

only that power authorized by Constitution and statute, which is

not to be expanded by judicial decree." (internal citations

omitted)).

And even assuming that BU clearly had stated an intent

to violate the ADA in the future — and we do not think that it has

— Corrigan would have to show a "material risk of future harm"

from this intended violation that is "sufficiently imminent and

substantial" to "satisfy the concrete-harm requirement" of

standing before a federal court could grant her any relief. Webb

5Even assuming that BU had violated the ADA in the past, Corrigan fails to prove that the violation resulted in the harm necessary to invoke federal jurisdiction. Title III of the ADA does not provide for damages, see Fay Sch.,

; attorneys' fees alone are legally insufficient to confer standing, see Harris, 43 F.4th at 193; and a declaratory judgment deeming past conduct illegal would be an impermissible advisory opinion, see ACLUM,

.

- 19 - v. Injured Workers Pharmacy, LLC,

, 375 (1st Cir. 2023)

(quoting TransUnion LLC v. Ramirez,

, 435 (2021)).

Yet, as we concluded earlier, not only is there no imminent risk

of substantial harm to Corrigan from a testing program at BU, but

there is also good reason to believe that BU is unlikely to

reinstate a testing program with which she must comply.

In response, Corrigan raises the Supreme Court's recent

decision in 303 Creative LLC v. Elenis,

(2023), which

purportedly "reaffirm[ed] the doctrine of preventative injunction,

enjoining actual peril of constitutional violation which is likely

or imminent." But 303 Creative is readily distinguishable because

no constitutional claim exists here (disability is not a protected

class under the Constitution, and there is no state action).

Moreover, the Court explicitly held that the plaintiff there had

standing because she had shown "a credible threat of sanctions

unless she conform[ed] her views to the State's" before it reached

the merits of the case.

. Not so here: Corrigan has

shown no comparable threat of harm.

V

We need go no further. For the reasons elucidated above,

the judgment of the district court is

Affirmed.

- 20 -