Adler v. Duval County School Board , 112 F.3d 1475 ( 1997 )


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  •                                                         PUBLISH
                  IN THE UNITED STATES COURT OF APPEALS
    
                        FOR THE ELEVENTH CIRCUIT
                        ________________________
    
                               No. 94-2638
                        ________________________
    
                    D. C. Docket No. 93-833-CIV-J-10
    
    
    
    
    KAREN ADLER, individually, and as Next Friend
    of the Minor, Leslie Adler, and all others
    similarly situated, LAURA JAFFA, individually
    and all others similarly situated, ROBIN ZION,
    individually and all others similarly situated,
    ROBIN RAND, individually and as Next Friend of the
    minor, Doug Rand, and all others, similarly situated,
    
    
    
                                               Plaintiffs-Appellants,
    
    
    
                             versus
    
    
    
    DUVAL COUNTY SCHOOL BOARD, LARRY ZENKE, in
    his official capacity as Superintendent of
    the Duval County Public School District, DON
    BUCKLEY, in his official capacity as member
    of the Duval County School Board, STAN JORDAN,
    in his official capacity as member of the
    Duval County School Board, NANCY CORWIN,
    in her official capacity as member of the
    Duval County School Board, et al.,
    
    
    
                                                Defendants-Appellees.
    
    
    
    STUDENT COALITION FOR FREE SPEECH,
    AMERICAN JEWISH CONGRESS,
    
                                                               Amici,
    SHARON GREEN, as parent and next friend of
    Jennifer Green, minor child, and Joshua Green,
    minor child, LINDA MUHLBAUER, as parent and
    next friend of Mandy Muhlbauer, minor child,
    and Mark Muhlbauer, minor child, LINDA GASTON,
    parent and next friend of Matthew Gaston,
    minor child, RHONDA SELLERS, parent and
    next friend of Steven Sellers, minor child, et al.,
    
    
    
                                              Intervenors-Defendants.
    
    
    
    
              Appeal from the United States District Court
                   for the Middle District of Florida
    
                              (May 6, 1997)
    
    
    Before TJOFLAT and COX, Circuit Judges, and VINING*, Senior
    District Judge.
    
    ____________________
    
         *Honorable Robert L. Vining, Jr., Senior U.S. District Judge
    for the Northern District of Georgia, sitting by designation.
    
    
    
    
                                    2
    TJOFLAT, Circuit Judge:
    
    
         Appellants are four former high school students1 in the
    
    Duval County, Florida, school system who brought this action
    
    under 42 U.S.C. § 1983 (1994), alleging that a Duval County
    
    school policy permitting student-initiated prayer at high school
    
    graduation ceremonies (the “policy”) violated their rights under
    
    the First and Fourteenth Amendments.2      They named as defendants
    
    the Duval County School Board, the Board’s members in their
    
    official capacity, the Duval County School District, and Dalton
    
    Epting, the principal of Mandarin Senior High School
    
    (“Mandarin”), in his official capacity.       These defendants are all
    
    appellees in the present appeal.       The remaining appellees are a
    
    group of parents who intervened as defendants to assert their
    
    children’s free exercise rights to have prayers at graduation.
    
    
    
                                   I.
    
         Appellants Adler, Laura Jaffa, and Robin Zion filed a two-
    
    count complaint on June 2, 1993.       Count one alleged that the
    
    
         1
            Two appellants, Leslie Adler and Doug Rand, were minors
    when the complaint was filed and brought their claims through
    their mothers, Karen Adler and Robin Rand. The complaint makes
    it clear that Karen Adler and Robin Rand are parties in name only
    and it is the students whose interests are at stake. We
    therefore refer to the four students as the “appellants” and to
    Leslie Adler and Doug Rand as “Adler” and “Rand,” respectively.
         2
            The factual and procedural background of this case is set
    out more fully in the published memorandum opinion and order of
    the district court. See Adler v. Duval County Sch. Bd., 851 F.
    Supp. 446 (M.D. Fla. 1994).
    
    
                                       3
    policy constitutes an establishment of religion.       Count two
    
    alleged that the policy infringes on the appellant’s free
    
    exercise of religion.       They asked for equitable relief in the
    
    form of a judgment declaring the policy unconstitutional and
    
    enjoining the School Board from permitting prayers at high school
    
    graduation ceremonies.       They also sought money damages.
    
           On June 7, 1993, appellants Adler, Jaffa, and Zion graduated
    
    from Mandarin, one of the schools in the Duval County system.         On
    
    June 10, 1993, they amended their complaint to include, inter
    
    alia, a request that the court certify their action as a class
    
    action.       They amended their complaint a second time on
    
    November 1, 1993, to add appellant Rand, a student at another
    
    school in the Duval County system, as a plaintiff.3
    
           The plaintiffs, defendants, and defendant-intervenors filed
    
    cross-motions for summary judgment on March 3, 1994.       On May 4,
    
    1994, the district court denied the appellants’ motion and
    
    granted the appellees’ motions.       In its dispositive memorandum
    
    opinion and order, the court found the policy constitutional and
    
    entered final judgment for the appellees.       Adler, 851 F. Supp. at
    
    456.       Appellants filed their notice of appeal on May 9, 1994.
    
           Appellant Rand subsequently graduated in June 1994.     Because
    
    all four appellants have graduated, we find that to the extent
    
    they seek declaratory and injunctive relief, their case is moot.
    
    The only justiciable controversy in this case is the appellants’
    
    
           3
            This second amended complaint is the complaint before us;
    we refer to it as “the complaint.”
    
                                         4
    claim for money damages.   We affirm the district court’s grant of
    
    summary judgment for the appellees on this claim, but we do so
    
    without reviewing the merits of the district court’s
    
    constitutional analysis.
    
    
    
                                      II.
    
         We begin by noting that appellants’ claims for declaratory
    
    and injunctive relief are moot.    All appellants have graduated,
    
    and none are threatened with harm from possible prayers in future
    
    Duval County graduation ceremonies.      In short, the appellants
    
    have no legally cognizable need for relief declaring the policy
    
    unconstitutional and preventing the School Board from allowing
    
    prayers at future graduations.
    
         Article III of the Constitution limits the jurisdiction of
    
    the federal courts to the consideration of certain “Cases” and
    
    “Controversies.”   U.S. Const. art. III, § 2.     The doctrine of
    
    mootness is derived from this limitation because an action that
    
    is moot cannot be characterized as an active case or controversy.
    
    See Church of Scientology Flag Serv. Org. v. City of Clearwater,
    
    
    777 F.2d 598
    , 604 (11th Cir. 1985), cert. denied, 
    476 U.S. 1116
    ,
    
    106 S. Ct. 1973
    , 
    90 L. Ed. 2d 656
     (1986).      "[A] case is moot when
    
    the issues presented are no longer 'live' or the parties lack a
    
    legally cognizable interest in the outcome."      Powell v.
    
    McCormack, 
    395 U.S. 486
    , 496, 
    89 S. Ct. 1944
    , 1951, 
    23 L. Ed. 2d 491
     (1969).   Any decision on the merits of a moot case would be
    
    an impermissible advisory opinion.      See Church of Scientology
    
    
                                       5
    Flag Serv. Org., 777 F.2d at 604 (citing Hall v. Beals, 
    396 U.S. 45
    , 48, 
    90 S. Ct. 200
    , 201-02, 
    24 L. Ed. 2d 214
     (1969) (per
    
    curiam)).
    
         To apply the doctrine of mootness to this case, we must
    
    distinguish the appellants’ claims for equitable relief from
    
    their claim for money damages.   Although neither the appellants
    
    nor the district court treated the appellants’ claim for damages
    
    as distinct from their claims for equitable relief, these claims
    
    are distinct by nature.   Equitable relief is a prospective
    
    remedy, intended to prevent future injuries.   In contrast, a
    
    claim for money damages looks back in time and is intended to
    
    redress a past injury.
    
         Frequently, a plaintiff will seek both forms of relief in
    
    the same cause of action when challenging a defendant’s course of
    
    conduct that began before the initiation of the lawsuit and is
    
    likely to continue in the future.    The plaintiff requests money
    
    damages to redress injuries caused by the defendant’s past
    
    conduct and seeks equitable relief to prevent the defendant’s
    
    future conduct from causing future injury.
    
         When the threat of future harm dissipates, the plaintiff’s
    
    claims for equitable relief become moot because the plaintiff no
    
    longer needs protection from future injury.    This is precisely
    
    what happened in this case.
    
         Appellants argue that, despite their graduation from high
    
    school, their claims for declaratory and injunctive relief are
    
    not moot because the original injury is "capable of repetition,
    
    
                                     6
    yet evading review."   See Southern Pac. Terminal Co. v.
    
    Interstate Commerce Comm'n, 
    219 U.S. 498
    , 515, 
    31 S. Ct. 279
    ,
    
    283, 
    55 L. Ed. 2d 310
     (1911).    This exception to the mootness
    
    doctrine is narrow.
    
         [I]n the absence of a class action, the “capable of
         repetition, yet evading review” doctrine [is] limited
         to the situation where two elements combine[]: (1) the
         challenged action [is] in its duration too short to be
         fully litigated prior to its cessation or expiration,
         and (2) there [is] a reasonable expectation that the
         same complaining party [will] be subjected to the same
         action again.
    
    Weinstein v. Bradford, 
    423 U.S. 147
    , 149, 
    96 S. Ct. 347
    , 349, 
    46 L. Ed. 2d 350
     (1975) (per curiam).       This case does not satisfy the
    
    second element.   Because the complaining students have graduated
    
    from high school, there is no reasonable expectation that they
    
    will be subjected to the same injury again.      See DeFunis v.
    
    Odegaard, 
    416 U.S. 312
    , 319-20, 
    94 S. Ct. 1704
    , 1707, 
    40 L. Ed. 2d 164
     (1974) (finding challenge to law school admission policy moot
    
    because petitioner “will never again be required to run the
    
    gauntlet of the Law School’s admission process”).
    
         Appellants contend, however, that two of the named
    
    plaintiffs, Karen Adler and Robin Rand, are parents of other
    
    children who will graduate sometime in the future from high
    
    schools in Duval County and may be subjected to the same injury.
    
    In the complaint, however, the caption notwithstanding, neither
    
    parent is described as a plaintiff and no theories have ever been
    
    advanced to support an individual action by either parent, nor
    
    were any allegations made in the complaint regarding the
    
    existence of other children.    The former students are the only
                                       7
    plaintiffs before us,4 and as to them, any claim for equitable
    
    relief is clearly moot.   See Sapp v. Renfroe, 
    511 F.2d 172
    , 176
    
    (5th Cir. 1975) (holding constitutional challenge to graduation
    
    requirement brought by student who then graduated moot);5
    
    Laurenzo v. Mississippi High Sch. Activities Ass'n, 
    662 F.2d 1117
    , 1120 (5th Cir. Unit A Dec. 1981) (holding constitutional
    
    challenge to student-transfer rule brought by student who then
    
    graduated moot despite argument that student's parent had other
    
    children who might suffer same injury).6
    
         Because any claim for equitable relief has been rendered
    
    moot by the appellants’ graduations, we must vacate the district
    
    court’s grant of summary judgment to the appellees on the
    
    appellants’ claims for declaratory and injunctive relief and
    
    remand the case to the district court with instructions to
    
    dismiss those claims.   See, e.g., Lewis v. Continental Bank
    
         4
            The appellants originally sought to represent a class of
    similarly situated students who would graduate in the future, but
    they failed timely to move the district court for class
    certification pursuant to local court rules. The district court
    denied the appellants leave to file a motion for class
    certification out of time. The appellants do not challenge this
    ruling.
         5
            In Bonner v. City of Prichard, 
    661 F.2d 1206
    , 1209 (11th
    Cir. 1981) (en banc), this court adopted as binding precedent all
    decisions of the former Fifth Circuit handed down prior to
    October 1, 1981.
         6
            Although decisions from Unit A of the former Fifth
    Circuit handed down after September 30, 1981, are not binding
    precedent, we find the reasoning in Laurenzo persuasive. See
    Stein v. Reynolds Sec., Inc., 
    667 F.2d 33
    , 34 (11th Cir. 1982)
    (adopting as binding precedent all decisions of Unit B of former
    Fifth Circuit handed down after September 30, 1981, but
    recognizing persuasive authority of non-binding Unit A
    decisions).
    
                                     8
    Corp., 
    494 U.S. 472
    , 482, 
    110 S. Ct. 1249
    , 1256, 
    108 L. Ed. 2d 400
    
    (1990).   Having disposed of the appellants’ claims for equitable
    
    relief, we are left with their claim for money damages, which we
    
    now address.
    
    
    
                                     III.
    
         Because the appellants’ claim for money damages does not
    
    depend on any threat of future harm, this claim remains a live
    
    controversy.   See Havens Realty Corp. v. Coleman, 
    455 U.S. 363
    ,
    
    371, 
    102 S. Ct. 1114
    , 1120, 
    71 L. Ed. 2d 214
     (1982) (“Given
    
    respondents’ continued active pursuit of monetary relief, this
    
    case remains 'definite and concrete, touching the legal relations
    
    of parties having adverse legal interests.' ”) (quoting Aetna
    
    Life Ins. Co. v. Haworth, 
    300 U.S. 227
    , 240-41, 
    57 S. Ct. 461
    ,
    
    464, 
    81 L. Ed. 617
     (1937)).
    
         We accordingly turn our focus to the basis for the
    
    appellants’ claim for damages.    The complaint alleges that a
    
    “senior class chaplain” delivered a prayer at the June 7, 1993,
    
    Mandarin graduation ceremony at which appellants Adler, Jaffa,
    
    and Zion graduated.7   The only past injury for which the
    
         7
            The parties agree that a student delivered the following
    message:
    
         First and foremost, we give thanks to our parents for
         providing the love and support that we have too many
         times taken for granted. We thank our teachers for
         challenging our minds and inspiring us to greater
         achievement. And finally to our special friends who
         are present today, we thank you for sharing our joy.
    
         We, as a class, are entering a new chapter in our
    
                                      9
    appellants could seek redress is being subjected to this prayer
    
    at their graduation ceremony.8   To prove that the appellees
    
    caused this injury, the appellants alleged in their complaint
    
    that the prayer was “a direct consequence” of the school’s
    
    policy.   In their answer, the appellees admitted that a student
    
    said the prayer, but denied that the prayer was a consequence of
    
    the policy.
    
         The district court based its decision to grant the
    
    appellees’ motion for summary judgment on its conclusion that the
    
    policy was not unconstitutional.      Because we find that the
    
    district court’s order must be affirmed regardless of the
    
    constitutionality of the policy, we abstain from ruling on this
    
    
    lives. As we enter this new time, there will be many decisions
    to be made, decisions that will shape our future.
    
         We ask for divine guidance, strength, and a burning
         desire to move ahead and succeed. In God’s name we
         pray. Amen.
    
         We assume without deciding that this message constitutes a
    religious prayer for First Amendment purposes. See DeSpain v.
    DeKalb County Community Sch. Dist. 428, 
    255 F. Supp. 655
    , 655-56
    (N.D. Ill. 1966) (finding verse “We thank you for the flowers so
    sweet; /We thank you for the food we eat; /We thank you for the
    birds that sing; /We thank you for everything” did not constitute
    prayer for First Amendment purposes), rev’d, 
    384 F.2d 836
     (7th
    Cir. 1967) (finding same verse did constitute prayer), cert.
    denied, 
    390 U.S. 906
    , 
    88 S. Ct. 815
    , 
    19 L. Ed. 2d 873
     (1968); see
    also Engel v. Vitale, 
    370 U.S. 421
    , 424, 
    82 S. Ct. 1261
    , 1264, 
    8 L. Ed. 2d 601
     (1962) (describing prayer as “solemn avowal of divine
    faith and supplication for the blessings of the Almighty”).
         8
            Appellant Rand did not graduate at this ceremony.
    Because he graduated after the district court entered final
    judgment, he has no claim for money damages in this case.
    Summary judgment in favor of the appellees on Rand’s claim was
    thus proper and is affirmed. In the rest of this part of the
    opinion, we use the term “appellants” to refer only to appellants
    Adler, Jaffa, and Zion.
    
                                     10
    controversial constitutional question.   See Lyng v. Northwest
    
    Indian Cemetery Protective Ass’n, 
    485 U.S. 439
    , 445, 
    108 S. Ct. 1319
    , 1323, 
    99 L. Ed. 2d 534
     (1988) (“A fundamental and
    
    longstanding principle of judicial restraint requires that courts
    
    avoid reaching constitutional questions in advance of the
    
    necessity of deciding them.”).
    
         The only issue the appellants raise on appeal is whether the
    
    district court erred in holding the policy constitutional.   While
    
    the constitutionality of the policy may have been central to the
    
    now moot issue of whether equitable relief is warranted to
    
    prevent the policy from being implemented at future graduations,
    
    it does not dispose of the issue of whether the appellants should
    
    be awarded money damages for being subjected to the prayer at
    
    their graduation.   In other words, any claim for damages does not
    
    depend on the constitutionality of the policy in the abstract or
    
    as applied in other Duval County schools.   Even if the policy is
    
    unconstitutional, the defendants might not be liable if, for
    
    example, they did not implement the policy at the ceremony in
    
    question or if the prayer would have been delivered without the
    
    policy.   On the other hand, if the district court was correct in
    
    finding the policy constitutional, defendant Epting, Mandarin’s
    
    principal, might nonetheless be liable if he implemented the
    
    policy in an unconstitutional manner.9
    
         9
            For example, the district court based its conclusion that
    the policy did not violate the Constitution under the test
    enunciated in Lemon v. Kurtzman, 
    403 U.S. 602
    , 
    91 S. Ct. 2105
    , 
    29 L. Ed. 2d 745
     (1971), in part on its finding that the policy did
    not have the primary effect of advancing religion because it did
    
                                     11
         The constitutionality of the policy, therefore, has little
    
    independent relevance to the appellants' damages claim.   Whether
    
    they are entitled to damages depends entirely on the
    
    circumstances under which the prayer was delivered at their
    
    graduation ceremony.   In order to prevail, the appellants must
    
    have some theory connecting the individual defendants to the
    
    prayer.
    
         For these reasons, even if we were to find fault with the
    
    district court’s constitutional analysis of the policy, this
    
    conclusion by itself would not answer the question of whether the
    
    court erred in granting the appellees summary judgment on the
    
    damages claim.   The appellants offer no other grounds in their
    
    briefs for finding trial court error.
    
         After considering the appellants’ briefs and oral argument,
    
    we are convinced that they either fail to understand the basis
    
    for their damages claim or do not seriously seek damages.10    They
    
    have offered us no connection between the prayer and their
    
    damages claim; their briefs offer no indication as to any of the
    
    
    “not mandate, require, or direct that religious expression or
    prayer occur at any graduation ceremony.” Adler, 851 F. Supp. at
    453. Similarly, it held that the policy was not unconstitutional
    under Lee v. Weisman, 
    505 U.S. 577
    , 
    112 S. Ct. 2649
    , 
    120 L. Ed. 2d 467
     (1992), because the policy did “not solicit or mandate
    invocations or benedictions.” Adler, 851 F. Supp. at 456.
         Assuming that both these conclusions are correct, Epting
    still might be liable for a constitutional tort under either of
    these tests if he “mandate[d], require[d], or direct[ed] that”
    the prayer be delivered at the Mandarin gradation.
         10
            In support of the latter conclusion, we note that
    appellants agreed with the district court’s assertion at a
    pretrial hearing that their “prayer for injunctive relief . . .
    is 99 percent of this litigation.”
    
                                    12
    circumstances surrounding the Mandarin graduation prayer.     They
    
    failed to argue that the prayer was a “direct consequence” of the
    
    policy, or any other theory connecting the defendants’ actions to
    
    the Mandarin prayer.   Their briefs do not even include the
    
    allegation made in their complaint that a prayer was delivered at
    
    Mandarin.
    
         If they had desired to preserve their damages claim on
    
    appeal, they should have included all this information in their
    
    initial brief pursuant to the rules of appellate procedure.      See
    
    Fed. R. App. P. 28(a)(3), (4), (6), (requiring appellant to
    
    include in initial brief “[a] statement of the issues presented
    
    for review”; a statement “indicat[ing] briefly the nature of the
    
    case” followed by “a statement of the facts relevant to the
    
    issues presented for review”; an argument “contain[ing] the
    
    contentions of the appellant on the issues presented”).   Most
    
    telling of all, is their request for relief.   Fed. R. App. P.
    
    28(a)(7) requires appellants to include in their initial brief a
    
    “short conclusion stating the precise relief sought.”   In their
    
    brief, the appellants only ask us to reverse the district court
    
    and remand the case “with directions for entry of summary
    
    judgment and declaratory relief.”    They do not ask us to direct
    
    the district court on remand to award money damages or to hold
    
    any kind of further proceedings on their damages claim.   See
    Frank v. United States, 
    78 F.3d 815
    , 832-34 (2d Cir. 1996)
    
    (holding issue waived because cross-appellant failed to request
    
    appropriate relief, even though cross-appellant had stated the
    
    
                                    13
    issue and attempted to incorporate argument before district
    
    court), petition for cert. filed, 
    64 U.S.L.W. 2600
     (U.S. June 13,
    
    1996) (No. 95-2006).
    
         In fact, the only references to their claim for damages were
    
    two cursory statements, one in their initial brief and one at
    
    oral argument.   Their brief indicated that they initiated the
    
    lawsuit “seeking declaratory and injunctive relief, as well as
    
    damages,” but never again mentioned their damages claim or its
    
    underlying legal theory.   After contending at oral argument that
    
    their case fit within the “capable of repetition, yet evading
    
    review” exception to the mootness doctrine discussed above,
    
    appellants suggested in passing that their case was not moot
    
    because the complaint contained a prayer for money damages.11
    
         We cannot agree with Judge Vining’s conclusion that this
    
    cursory treatment is sufficient to preserve their damages claim
    
    on appeal.    Without the benefit of developed argument from both
    
    sides regarding the propriety of the district court’s grant of
    
    summary judgment on the damages claim, we cannot effectively
    
    review that decision.   For us to rule on this issue would deny
    
    the appellees the opportunity to argue that they were not legally
    
    responsible for the prayer delivered at the appellants’
    
    graduation.   As we noted in Federal Savings & Loan Ins. Corp. v.
    Haralson, 
    813 F.2d 370
     (11th Cir. 1987):
    
    
         11
            They first argued that their case was not moot in their
    reply brief. In that brief, however, the only argument they made
    was that their case was “capable of repetition, yet evading
    review.” They made no mention of their claim for damages.
    
                                     14
         The waiver rule requires that the appellant state and
         address argument to the issues the appellant desires to
         have reviewed by this Court in the appellant’s initial
         brief because “[i]n preparing briefs and arguments, an
         appellee is entitled to rely on the content of an
         appellant’s brief for the scope of the issues
         appealed.”
    
    Id. at 373-74 n.3 (quoting Pignons S.A. de Mecanique v. Polaroid
    
    Corp., 
    701 F.2d 1
    , 3 (1st Cir. 1983)).
    
         For all these reasons, we hold that they have waived their
    
    damages claim on appeal.12   See, e.g., Braun v. Soldier of
    
         12
            Judge Vining suggests that the proper disposition of
    this case is to reach the merits of the district court’s ruling
    and, if we were to find it erroneous, remand the case for further
    proceedings on the damages claim. Such a disposition is
    logically appealing, but does not take into account the
    significance of the appellants’ failure on appeal to (1)
    articulate any theory connecting the actions of the appellees to
    a cognizable injury suffered by the appellants, (2) discuss any
    facts relevant to the Mandarin graduation ceremony, other than
    the existence of the policy, or (3) request that we remand the
    case with directions that the district court either award money
    damages or, at the very least, conduct further proceedings to
    determine whether damages are warranted. These glaring omissions
    clearly demonstrate that the appellants have not advanced their
    damages claim on appeal.
         Perhaps the appellants did state a valid damages claim in
    their complaint, and the evidence available to them may very well
    support that claim. Had the appellants perceived that any claim
    for injunctive relief based solely on the policy was moot, we
    have little doubt that they would have fully briefed their
    damages claim on appeal. In the absence of plain error, however,
    it is not our place as an appellate court to second guess the
    litigants before us and grant them relief they did not request,
    pursuant to legal theories they did not outline, based on facts
    they did not relate. See Fed. R. App. P. 28(a); Head Start
    Family Educ. Program, Inc. v. Cooperative Educ. Serv. Agency 11,
    
    46 F.3d 629
    , 635 (7th Cir. 1995) (noting that an appellate “court
    has no duty to research and construct legal arguments available
    to a party”); Golden Pacific Bancorp v. Clarke, 
    837 F.2d 509
    , 513
    (D.C. Cir.) (“[Appellate courts] do not sit as self-directed
    boards of legal inquiry and research, but essentially as arbiters
    of legal questions presented and argued by the parties.”), cert.
    denied, 
    488 U.S. 890
    , 
    109 S. Ct. 223
    , 
    102 L. Ed. 2d 213
     (1988).
         We recognize that we have discretion to overlook technical
    noncompliance with Rule 28(a) and can even decide issues sua
    
                                     15
    Fortune Magazine, 
    968 F.2d 1110
    , 1121 n.13 (11th Cir. 1992)
    
    (refusing to review issue not raised and argued in appellant’s
    
    initial brief), cert. denied, 
    506 U.S. 1071
    , 
    113 S. Ct. 1028
    , 
    122 L. Ed. 2d 173
     (1993).   We therefore affirm the district court’s
    
    order to the extent it denied the appellants’ motion for summary
    
    judgment and granted the appellees’ motions for summary judgment
    
    on the appellants’ damages claim.
    
    
    
                                    IV.
    
         For the foregoing reasons, we VACATE the district court’s
    
    order granting the appellees summary judgment on the appellants’
    
    claims for declaratory and injunctive relief and REMAND the case
    
    with instructions that the district court dismiss those claims.
    
    We AFFIRM the district court’s denial of the appellants’ motion
    
    for summary judgment and its grant of summary judgment for the
    
    appellees on the appellants’ damages claim.
    
         It is SO ORDERED.
    
    
    
    VINING, Senior District Judge, concurring in part and dissenting
    
    in part:
    
         While I concur in the majority's conclusion that the appel-
    
    lants' requests for injunctive and declaratory relief are moot, I
    
    cannot agree with its finding that the appellants have waived
    
    
    sponte. These courses of action are only appropriate in rare
    circumstances to avoid manifest injustice. See Frank, 78 F.3d at
    833. We find, however, that this case does not present
    sufficiently compelling reasons for us to exercise that
    discretion.
    
                                    16
    their claim for money damages.   Accordingly, I respectfully
    
    dissent from Part III of the majority opinion.
    
         As the majority observes, the appellants specifically
    
    alleged in their complaint that a member of the senior class
    
    delivered a prayer at the June 7, 1993, Mandarin Senior High
    
    School graduation exercises at which appellants Adler, Jaffa, and
    
    Zion graduated.   Consistent with this allegation and their
    
    request for money damages, the appellants also alleged that the
    
    prayer was a direct consequence of the Duval County School
    District policy at issue in this case.13
    
         On May 4, 1994, the district court granted the appellees'
    
    motion for summary judgment, concluding that the Duval County
    
    School District policy was not unconstitutional.   The district
    
    court neither discussed nor analyzed the appellants' claim for
    
    money damages in its memorandum opinion and order.14   Instead,
    
    after dismissing all of the appellants' constitutional challenges
    
    
    
    13 The appellants' complaint is replete with additional specific
    and particularized allegations that outline other instances in
    which senior class representatives delivered religious messages
    at other Duval County high school commencement ceremonies.
    Moreover, the appellants specifically allege that these prayers
    were delivered as a result of the subject school district policy.
    
    
    14 In fact, the district court referenced the appellants' claim
    for money damages only once in its twenty-two page memorandum
    opinion and order. In its introduction, the court, after
    observing that the appellants sought injunctive relief, noted
    that they "also sought declaratory relief and damages." R4-123-
    2. This was the district court's sole reference to the
    appellants' money damages claim. The district court thereafter
    extensively analyzed the constitutional issues presented in this
    case without ever addressing, even in the most perfunctory
    fashion, the appellants' money damages claim.
    
                                     17
    to the instant policy, the district court entered final judgment
    
    for the appellees.   It never, explicitly or implicitly,
    
    addressed, in any substantive fashion, the appellants' damages
    
    claim.15
         Despite the uncontroverted fact that the district court
    
    never addressed or analyzed the appellants' claim for money
    
    damages in its memorandum opinion and order, the majority
    
    concludes that the appellants' failure to "fully brief" their
    
    money damages claim on appeal constitutes a waiver of that
    
    claim.16   Because I find that the appellants properly and
    
    adequately briefed and argued on appeal the only issue actually
    
    addressed and decided by the district court, i.e., the
    
    constitutionality of the instant policy, I disagree with the
    
    majority's decision.17
    
         As the district court implicitly recognized, it was
    
    
    15 I am not implying that the district court erred by failing to
    analyze the appellants' claim for money damages. Once the
    district court ruled that the subject policy was not
    unconstitutional, it was unnecessary for the court to consider
    the appel-lants' claim for monetary damages. Indeed, any
    discussion by the district court of money damages at that point
    would have been dicta.
    
    16 Although the appellants may have agreed with the district
    court's assertion at the pretrial hearing that their prayer for
    injunctive relief was ninety-nine percent of the relief sought in
    this matter, such a concurrence provides no persuasive support
    for the proposition that the appellants waived their claim for
    money damages on appeal or that they did not seriously seek
    monetary damages. To the extent that the majority states
    otherwise, I do not concur.
    
    17 Although the appellants did not discuss in great detail
    during oral argument the evidence supporting their money damages
    claim, they did, as the majority notes, reference and acknowledge
    the existence of such a claim.
    
                                     18
    absolutely unnecessary for it to engage in any analysis of the
    
    appellants' claim for money damages after it determined that the
    
    instant policy was not unconstitutional.   The district court
    
    properly expressed no opinion regarding the propriety of the
    
    appellants' money damages claim subsequent to holding that the
    
    policy at issue survived constitutional scrutiny because, under
    
    the facts of this case, the appellants were not entitled to money
    
    damages, or injunctive or declaratory relief for that matter,
    
    absent a finding that the subject policy was unconstitutional.18
    Consistent with the district court's ruling, the appellants,
    
    therefore, properly focused upon the alleged errors committed by
    
    the district court in its constitutional analysis.   Under these
    
    
    18 While the constitutionality of the instant policy is not
    dispositive of the appellants' money damages claim, the
    appellants' claim for money damages, like their requests for
    injunctive and declaratory relief, clearly does depend upon the
    constitutionality of the subject policy. I disagree with the
    majority's assertion to the contrary. The appellants' only claim
    for money damages relates to the prayer delivered at the Mandarin
    graduation. As I have previously explained, the appellants
    specifically alleged in their complaint that this prayer was
    given as a direct result of the policy at issue in this case.
         The appellants did not allege in their complaint, or assert
    at any time in the course of this litigation, that any individual
    defendant acted unconstitutionally, except when acting pursuant
    to the purportedly unconstitutional Duval County School District
    policy. For example, the appellants did not allege in their
    complaint that the Mandarin principal, Dalton Epting, acted
    independently, rather than pursuant to the policy at issue, when
    he permitted the senior class representative to deliver the
    prayer at the Mandarin graduation ceremony. The majority's
    suggestion that Epting might be liable if he independently
    mandated, required, or directed that a prayer be given appears
    only in the majority opinion. The appellants have never advanced
    this theory of liability, and there are no factual allegations in
    their complaint to support such a theory. Thus, consistent with
    the appellants' allegations in their complaint, the claim for
    money damages does depend directly upon the constitutionality of
    the subject policy.
    
                                   19
    circumstances, I am not aware of any legal theories, principles
    
    of equity, or appellate rules, including those cited by the
    
    majority, that support the majority's waiver position.
    
         Since I conclude that the appellants sufficiently raised
    
    their claim for money damages in their complaint, properly
    
    alleged that such damages were the direct consequence of an
    
    unconstitutional policy, and properly and adequately challenged
    
    in their appellate briefs and during oral argument the only issue
    
    actually addressed and decided by the district court, I cannot
    agree that the appellants have waived their claim for money
    
    damages on appeal.   Consequently, I would reach the merits of the
    
    constitutional arguments raised in this case and would, if
    
    necessary, remand the matter to the district court for a hearing
    
    on all relevant factual and legal issues relating to the
    
    appellants' claim for money damages.19
    
    
    19    I am cognizant of the fact that the constitutionality of
    the instant policy is not dispositive of the issue of money
    damages. Even if this court were to find that the subject policy
    is unconstitutional, the appellants would not automatically be
    entitled to money damages. Rather, the appellants would still be
    required to prove, as they alleged in their complaint, that the
    prayer delivered at the Mandarin graduation was given as a result
    of the subject policy.
         If this court were to conclude that the instant policy is
    unconstitutional, the appellees, contrary to the majority's
    assertion otherwise, would have an ample opportunity to "argue
    that they were not legally responsible for the prayer delivered
    at the appellants' graduation." If this court concluded that the
    subject policy did not survive constitutional scrutiny, the court
    would then remand the damages issue to the district court. On
    remand, both the appellants and appellees would have the
    opportunity to argue the merits of the appellants' damages claim.
    After reviewing all of the relevant evidence and hearing
    arguments from the appellants and appellees, the district court
    would thereafter determine whether the appellants were entitled
    to the money damages that they have requested.
    
                                    20
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