Opinion
No. 06-7137.
Filed On: October 23, 2007.
Appeal from the United States District Court for the District of Columbia (No. 03cv01900).
JUDGMENT
This case was considered on the record from the United States District Court for the District of Columbia and on the briefs and the responses of the parties to our order to show cause why the case should not be dismissed as moot. Upon consideration of the foregoing, it is.
ORDERED AND ADJUDGED that the case be dismissed as moot.
Eric Steere was a medical student at the George Washington University from 2000 until he was dismissed for academic reasons in 2003. Steere subsequently sued the University, alleging the medical school and its Deans had violated the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., by failing to accommodate his alleged disability. According to Steere's complaint, he was diagnosed with "attention deficit hyperactivity disorder (`ADHD') and math learning disorder" just prior to his dismissal and the Dean was aware of this diagnosis when he dismissed Steere. After a bench trial, the district court ruled for the University on the ground that Steere had failed to show he was "disabled." Steere now contests the factual findings of the district court.
In Steere's brief he reports that since the trial he "has successfully completed medical school [at the American University of the Caribbean] and is now in residency." In his response to this court's order to show cause why this case should not be dismissed as moot, Steere asserts that his graduation from medical school does not moot his case because "the black mark from [his] performance without accommodations . . . continues to impact his academic and professioal [sic] life." It might be argued that, in making this statement, Steere now seeks an injunction to prevent the University from disclosing his dismissal or an injunction to force the University to expunge his dismissal from his academic record. We will not engage in such speculation, however, because Steere never raised or properly preserved any such claims for relief. Neither in his complaint, nor in any arguments to the district court, nor in his opening briefs to this court did Steere even suggest that he sought such injunctive relief, and neither the trial court nor the appellee has ever had an opportunity to address such a claim for relief. Therefore, no such claim for relief is properly before us.
Accordingly we hold Steere's case is now moot. Although he once sought damages, he no longer does. See Steere v. George Washington Univ., 368 F. Supp. 2d 52, 57 (2005) (striking prayer for damages); see also 42 U.S.C. § 12188(a); 42 U.S.C. § 2000a-3(a). He continues to seek only injunctive and declaratory relief that he may return to medical school at the George Washington University. Steere now has an M.D. degree, however, and he has asserted no interest in returning to the University for further schooling or otherwise; on the contrary, he frankly acknowledges that "it is unlikely that [Steere] will apply to [the George Washington University] for further medical study." Cf. Cruz v. Am. Airlines, Inc., 356 F.3d 320, 328-29 (D.C. Cir. 2004) (plaintiffs do not have standing under Article III to seek injunction to prevent unlikely future injury). Nor does Steere's interest in attorney's fees create a case or controversy. Liu v. INS, 274 F.3d 533, 536 (D.C. Cir. 2001).
This is not a case capable of repetition yet evading review. Steere claims, upon the authority of Honig v. Doe, 484 U.S. 305 (1988), it is sufficient for him to show that any school within the so-called "system of U.S.-accredited schools" might harm him. Honig, however, involved a challenge to a policy within the control of the defendants, who were responsible for an actual "school system," and the Supreme Court determined it was reasonably likely the defendants would again subject the plaintiff to the conduct of which the plaintiff complained. Neither of these circumstances obtains in the present case. Compare City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983) (refusing to apply "capable of repetition" doctrine where plaintiff asserted he could again be subject to a chokehold) with Honig, 484 U.S. at 319-20 ("reasonable expectation" that 20-year-old who had not completed high school would be subject again to school system's policies).
Pursuant to D.C. Circuit rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed.R.App.P. 41(b); D.C. Cir. Rule 41.
I do not think that finding Steere's complaint moot is as easy as my colleagues do.
At the time he filed his complaint Steere sought relief that matched the circumstances then prevailing, including a declaration that he "remains a student in good standing at George Washington University School of Medicine and Health Sciences." As four years of litigation passed, he acquired a medical degree, and thus no longer wishes to be a medical student. But his response to our order to show cause made clear his concern over the "black mark" that his record at George Washington represents. It thus seems plain that (as before) he would like his record modified. The only change in the desired modification is that whereas formerly he wanted to be declared to have been in good standing until such time as he should resume his studies under some accommodation, now he wants to be declared in good standing until such time as he should resign or otherwise sever his connection with George Washington — until a decision of his rather than of the University. This rather technical change seems well within the complaint's demand for "such further relief as is just and proper." Cf. Fed.R.Civ.P. 15(b) (promoting the liberal amendment of pleadings to aid in presenting the merits).
As I see the case, there would still remain a mootness issue. Section 12188(a)(1) of Title 42 of the U.S. Code states that "[t]he remedies and procedures set forth in section 2000a-3(a) of this title are the remedies and procedures this subchapter provides to any person who is being subjected to discrimination on the basis of disability in violation of this subchapter." It is at least arguable that Steere no longer "is being subjected" to discrimination for the purposes of § 12188, since nothing that George Washington is currently doing is itself a discriminatory act. Moreover, the remedies set forth in § 2000a-3(a) are only civil actions "for preventive relief," and arguably the sort of curative relief now sought does not qualify.
If Steere were to get over that hurdle, there would remain the question of whether, absent equitable relief, the incremental harm to his professional reputation from the "black mark" (vis-á-vis the state of the world if equitable relief were granted) is enough of an injury to "keep the controversy alive." See, e.g., Foretich v. United States, 351 F.3d 1198, 1212 (D.C. Cir. 2003).
Accordingly, I believe the court should address those issues (and then, if Steere should prevail on them, the merits).