Fialka–feldman v. Oakland Univ. Bd. of Trustees

Decision Date04 May 2011
Docket NumberNo. 10–1084.,10–1084.
Citation639 F.3d 711
PartiesMicah FIALKA–FELDMAN, Plaintiff–Appellee,v.OAKLAND UNIVERSITY BOARD OF TRUSTEES, Gary D. Russi, Mary Beth Snyder, Lionel Maten, Defendants–Appellants.
CourtU.S. Court of Appeals — Sixth Circuit


ARGUED: Robert A. Boonin, Butzel Long, Detroit, Michigan, for Appellants. Chris E. Davis, Michigan Protection & Advocacy, Lansing, Michigan, for Appellee. ON BRIEF: Robert A. Boonin, Butzel Long, Detroit, Michigan, Regan S. Dahle, Butzel Long, Ann Arbor, Michigan, for Appellants. Chris E. Davis, Michigan Protection & Advocacy, Lansing, Michigan, Veena V. Rao, Michigan Protection & Advocacy, Livonia, Michigan, for Appellee. Barbara Lee Kornblau, Grand Blanc, Michigan, for Amici Curiae.Before: SUTTON and KETHLEDGE, Circuit Judges; HOOD, District Judge. *


In December 2009, Micah Fialka–Feldman, a continuing-education student with mild cognitive disabilities, obtained a permanent injunction ordering Oakland University to provide him with on-campus housing. The University appealed. In the meantime, Fialka–Feldman spent the 2010 spring semester living in the dormitory, completed the program and left the University with no plans of returning, all of which transformed a live controversy into a moot one. We dismiss the appeal and vacate the unreviewed judgment of the district court.


Fialka–Feldman is in his mid-twenties and has a history of cognitive impairments. In 2007, he began attending classes at Oakland University, located in Rochester, Michigan, through the OPTIONS program, which allows students with “mild disabilities ... to continue their academic education in a college setting” by attending regular university courses and participating in student activities. R.39–8 at 2.

To alleviate the challenges of a long commute, Fialka–Feldman applied for campus housing. The University denied his application on the ground that he was “not an admitted Oakland University student.” R.37–11 at 2.

Fialka–Feldman filed this lawsuit in federal district court, claiming that the University discriminated against him based on his disability in violation of the Americans with Disabilities Act, 42 U.S.C. § 12132, the Fair Housing Act, 42 U.S.C. § 3604, and the Rehabilitation Act, 29 U.S.C. § 794. He sought injunctive relief, money damages and attorney's fees.

In December 2009, the court granted summary judgment to Fialka–Feldman, holding that the Rehabilitation Act required the University to accommodate his disability by waiving its policy limiting on-campus housing to students in degree-granting programs. The court issued a permanent injunction, ordering the University to provide Fialka–Feldman with housing. It did not award damages.

In January 2010, the University appealed the injunction. Fialka–Feldman did not cross-appeal the court's rejection of his damages claim. The district court awarded Fialka–Feldman $101,676 in attorney's fees and granted the University's motion to hold the award in abeyance pending the outcome of this appeal. The University did not appeal the award of attorney's fees. Neither party urged this court to expedite the merits appeal.

In the interim, the University complied with the injunction, and Fialka–Feldman moved into a dormitory on January 4, 2010. That spring, Fialka–Feldman completed the OPTIONS program and moved out of the dormitory on April 27, 2010. He does not plan to enroll in any other programs at the University.


Article III of the United States Constitution empowers the federal courts to hear only cases or controversies,” U.S. Const. art. III, § 2, cl. 1, a cradle-to-grave requirement that must be met in order to file a claim in federal court and that must be met in order to keep it there. If events occur during the case, including during the appeal, that make it “impossible for the court to grant any effectual relief whatever to a prevailing party,” the appeal must be dismissed as moot. Church of Scientology v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992). Just such an event occurred here: What started as a disagreement with consequences for both parties became an abstract dispute with consequences for neither party when Fialka–Feldman left the OPTIONS program.

The only merits issue still in play is whether the district court properly ordered the University to provide Fialka–Feldman with on-campus housing. Once Fialka–Feldman completed his program at the University and once he signaled no intent to return, the injunction meant nothing to the University and required nothing of it. No one claims that the University must provide campus housing to non-students, which is what Fialka–Feldman has become. Any decision on appeal thus would not provide “meaningful relief” to either party. Id.

Fialka–Feldman's request for money damages does not save the case. He lost the point as a matter of law below and did not cross-appeal that aspect of the judgment. The award of attorney's fees does not save the case either. A yet-to-be-enforced award of “attorney's fees” does not suffice “to create an Article III case or controversy where none exists on the merits of the underlying claim.” Lewis v. Cont'l Bank Corp., 494 U.S. 472, 480, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990).

Neither is the case “capable of repetition, yet evading review.” FEC v. Wis. Right To Life, Inc., 551 U.S. 449, 462, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007). Fialka–Feldman has finished the program and has no intention of returning to it. University programs, whether through full-time enrollment or part-time enrollment, tend to last longer than the time it takes to obtain a trial court ruling and an appeal, and accordingly the courts generally have not applied the capable-of-repetition exception to them. When Marco DeFunis challenged the University of Washington Law School's admission procedures (and was later admitted due to a lower court injunction), the Supreme Court held that his appeal became moot when he registered for his last quarter, and the Law School said he would “be awarded his J.D. degree ... regardless of the outcome of this appeal.” DeFunis v. Odegaard, 416 U.S. 312, 314–17 & n. 2, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974) (per curiam). [J]ust because this particular case did not reach the Court until the eve of the petitioner's graduation from Law School,” the Court reasoned, “it hardly follows that the issue he raises will in the future evade review.... [T]here is no reason to suppose that a subsequent case attacking those procedures will not come with relative speed to this Court.” Id. at 319, 94 S.Ct. 1704. The same could be said of this case.

The lower courts have marched in the same direction in other school-graduation cases. See McPherson v. Mich. High Sch. Athletic Ass'n, Inc., 119 F.3d 453, 458 (6th Cir.1997) (en banc) (dispute over high school basketball player's eligibility for upcoming season was not “capable of repetition” when player graduated and there was “no reasonable expectation of another controversy over his eligibility”); Russman v. Bd. of Educ., 260 F.3d 114, 119 (2d Cir.2001) ([T]he finality of graduation means that ... the ‘capable of repetition, yet evading review’ exception is not available when the issue is students' rights and the complaining students have graduated from the defendant institution.”).

Consistent with these cases, the “capable of repetition” exception does not spare this case from mootness. The key problem is that the “complaining party—Feldman—will not “be subject to the same action again,” converting any ruling on the merits into a purely advisory, dare we say academic, exercise. McPherson, 119 F.3d at 458.

Fialka–Feldman concedes that his case became moot on appeal, but the University does not. It invokes a “public interest” exception to the mootness doctrine, claiming that the federal courts may hear non-live disputes whenever the resolution of important legal questions will serve the public. But to state such a far-reaching proposition is to doubt it. The “case or controversy” requirement prohibits all advisory opinions, not just some advisory opinions and not just advisory opinions that hold little interest to the parties or the public. If advisory opinions “are ghosts that slay,” Felix Frankfurter, A Note on Advisory Opinions, 37 Harv. L.Rev. 1002, 1007 (1924), it is hard to grasp why the risks associated with them would be ameliorated, as opposed to accentuated, when the public has a keen interest in the resolution of the issue. Matters of great public interest are precisely the kinds of issues that demand the federal courts to be most vigilant in this area—vigilant that the powers they exercise are powers the Constitution gives them and vigilant that they exercise those powers in disputes with the “clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument.” United States v. Fruehauf, 365 U.S. 146, 157, 81 S.Ct. 547, 5 L.Ed.2d 476 (1961).

A stand-alone public interest exception to Article III has no meaningful pedigree. The Supreme Court has never recognized any such exception and in several instances has refused to adopt one. “Although as a matter of Washington state law it appears that this case would be saved from mootness by ‘the great public interest in the continuing issues raised by this appeal,’ the fact remains that under Art. III even in cases arising in the state courts, the question of mootness is a federal one which a federal court must resolve before it assumes jurisdiction.” DeFunis, 416 U.S. at 316, 94 S.Ct. 1704; see Richardson v. Ramirez, 418 U.S. 24, 36, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974) (“While the Supreme Court of California may choose to adjudicate a controversy simply because of its public importance, and the desirability of a statewide decision, we are limited by the case-or-controversy...

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