MARTA DÍAZ-FONSECA, on her own behalf v. Commonwealth of Puerto Rico

Of the Eighth Circuit, sitting by designation. *
United States Court of Appeals
For the First Circuit
Nos. 05-1301
05-1472
MARTA DÍAZ-FONSECA,
on her own behalf and on behalf of her minor daughter;
LYSSETTE CARDONA-DÍAZ, Minor,
Plaintiffs, Appellees,
v.
COMMONWEALTH OF PUERTO RICO; DEPARTMENT OF EDUCATION
OF THE COMMONWEALTH OF PUERTO RICO;
CÉSAR REY-HERNÁNDEZ, in his personal capacity and as Secretary of
Education of the Commonwealth of Puerto Rico;
NITZA RÍOS-MALAVÉ, in her personal capacity and as Supervisor of
the Special Education Program of Cidra School District,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Torruella, Circuit Judge,
Hansen, Senior Circuit Judge, *
and Lynch, Circuit Judge.
Doraliz E. Ortiz-de-León, Assistant Solicitor General,
Commonwealth of Puerto Rico, with whom Salvador Antonetti-Stutts,
Solicitor General of Puerto Rico, and Mariana D. Negrón-Vargas and
Maite D. Oronoz-Rodríguez, Deputy Solicitors General, were on
brief, for appellants.
Kevin G. Little on brief for appellees.
June 16, 2006

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LYNCH, Circuit Judge. A parent, Marta Díaz-Fonseca,
brought suit in 2002 against the Commonwealth of Puerto Rico, its
Department of Education, and two individual defendants, alleging
that her child, Lyssette Cardona-Díaz, had been deprived of a free
and appropriate public education ("FAPE") under the Individuals
with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq.;
section 504 of the Rehabilitation Act, 29 U.S.C. § 794; Title II of
the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131-
12134; and Puerto Rico law.
The underlying dispute concerns whether the public
schools are required to provide Lyssette, a child whom the parties
agree is disabled within the meaning of the IDEA, with adaptive
physical education in the form of swim classes under an
Individualized Education Program (IEP), see 20 U.S.C. § 1414(d).
The dispute led to a jury verdict and an award of compensatory
damages in the amount of $45,000 to Díaz and $3000 to Lyssette
against all of the defendants. The jury also assessed a total of
$100,000 in punitive damages against the two individual defendants,
César Rey-Hernández and Nitza Ríos-Malavé, in their personal
capacities. Those two individuals respectively hold the offices of
Secretary of Education of the Commonwealth and Supervisor of the
Special Education Program of Cidra School District. The district
court also entered broad declaratory and injunctive relief in favor
of plaintiffs.

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We vacate most of the relief granted, leaving intact only
the award of reimbursement for the sum of private school tuition
and costs for transportation and psychological services incurred by
plaintiffs during the 2003-2004, 2004-2005, and 2005-2006 school
years.
This case demonstrates significant confusion about the
governing law in cases alleging denial of FAPE, including confusion
over the limitations on monetary relief available, the limitations
on suits against school administrators in their personal
capacities, and the scope of immunity available to the Commonwealth
in federal court. Unfortunately, as a result of counsel for
plaintiffs' lack of candor about the law to the district court and
defense counsel's failures to comply with court orders and to make
appropriate objections on defendants' behalf, the case comes to us
in a posture in which a jury has awarded damages not available in
IDEA and Rehabilitation Act actions.
In order to clarify, we outline the core holdings of this
case:
1. Where the essence of the claim is one stated under the IDEA for
denial of FAPE, no greater remedies than those authorized under the
IDEA are made available by recasting the claim as one brought under
42 U.S.C. § 1983, Title II of the ADA, or section 504 of the
Rehabilitation Act.

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2. No punitive damages may be awarded in such a suit, regardless
of which of the causes of action listed above is invoked.
3. No general compensatory damages may be awarded in such a suit,
regardless of which of the causes of action listed above is
invoked.
4. Monetary recovery in such suits is limited to compensatory
education and equitable remedies that involve the payment of money,
such as reimbursements for educational expenses that would have
been borne by defendants in the first instance had they properly
developed and implemented an IEP. Under the category of
"reimbursement," parents may recover only actual, not anticipated,
expenditures for private tuition and related services.
5. No claim for monetary relief is stated in such cases against
individual school administrators who are sued in their personal
capacities.
6. A state, here the Commonwealth of Puerto Rico, may waive
Eleventh Amendment immunity from monetary liability as to IDEA and
Rehabilitation Act claims in federal court by accepting federal
funds. This does not mean that the state has waived its immunity
as to pendent state law claims being heard in federal court. Here,
although the Commonwealth waived its immunity from suit in federal
court on the federal claims, it did not waive its immunity from
suit in federal court on the pendent state law claims under Law 51,

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see P.R. Laws Ann. tit. 18, §§ 1351-1359, and Puerto Rico's general
negligence statute, see P.R. Laws Ann. tit. 31, §§ 5141-5142.
Applying these principles, we conclude that the harm to
the public interest requires that we reverse and vacate the
entirety of the punitive damages award and all compensatory damages
against Rey and Ríos in their personal capacities. We also vacate
those portions of the compensatory damages award against the
Commonwealth that are not available as monetary relief.
Frustrated with the defendants' many defalcations in this
case, the district court also granted in full plaintiffs' belated
request for injunctive and declaratory relief. We reverse and
vacate the entirety of the declaratory and injunctive relief
awarded.
I.
There is no reason to detail the many facts and
procedural events in this case and every reason to avoid a focus on
the irrelevant. The crux of the dispute is that while the parties
agreed that Lyssette could not engage in ordinary physical
education and thus needed adaptive physical education, they could
not agree over what type of adaptive physical education was
appropriate. The public schools lacked swimming pools and declined
to pay for swim lessons. Díaz insisted that her daughter needed
such lessons and that the schools should have to pay for them, as
well as for transportation to and from school and for the

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In Puerto Rico, it is the Commonwealth's DOE that is 1
responsible for the education of students. See P.R. Laws Ann. tit.
3, § 143a et seq.; see also P.R. Laws Ann. tit. 18, § 1356(b)(2)(B)
(stating that the DOE is to "[p]rovide the education services in
the public system adapted to persons with disabilities").
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psychiatric treatment Lyssette required after she became depressed
because she could not engage in physical education with her
classmates. Feeling frustrated that Lyssette was not receiving any
adaptive physical education and that the defendants had engaged in
a classic bureaucratic runaround, Díaz unilaterally removed
Lyssette from public school in 2003 and placed her in a private
school.
At the time the litigation began in September 2002,
Lyssette was an eleven-year-old public school student. She had
been diagnosed in February 2001 with spina bifida and Klippel-Feil
Syndrome, as a result of which she suffers from certain physical
limitations, such as a circumscribed range of motion in the neck
and cervical spine. In August 2001, after a physician recommended
that Lyssette refrain from further participation in traditional
physical education classes, Díaz registered Lyssette in the special
education program administered by the DOE and requested that 1
Lyssette be provided with specially designed physical education
services. See 34 C.F.R. § 300.307(a) ("Physical education
services, specially designed if necessary, must be made available
to every child with a disability receiving FAPE.").

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One of Lyssette's doctors had prescribed "[a]dapted 2
physical education swimming type," and had ordered that Lyssette
refrain from participating in contact sports or "any activity that
could cause trauma to the neck."
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On September 4, 2001, the DOE convened a meeting with
Díaz and other members of Lyssette's IEP team, see id. § 300.16
(defining "IEP team" as "a group of individuals . . . that is
responsible for developing, reviewing, or revising an IEP for a
child with a disability"); see also id. § 300.344 (specifying the
composition of IEP teams), to produce an IEP for Lyssette. Their
deliberations resulted in an IEP for the 2001-2002 school year;
this IEP did not provide for special physical education services --
specifically, swim classes, which, plaintiffs have maintained, was
the only sport Lyssette could safely practice. The DOE told Díaz 2
that it could not provide swim instruction because it did not have
any schools equipped with a pool, and that Díaz would have to pay
out-of-pocket for private swim lessons elsewhere.
Díaz filed an administrative complaint with the
Commonwealth's DOE on November 27, 2001, requesting that it provide
Lyssette with publicly funded swim classes. An administrative law
judge (ALJ) eventually found that the DOE did not have the
obligation to offer Lyssette swim lessons, because it was not clear
from the IEP that swimming was the most appropriate physical
education alternative for Lyssette. The ALJ did, however, order
that Lyssette receive physical education at the same frequency as

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her non-disabled classmates, and further directed the parties to
meet again to determine, with the help of a specialist, whether
swimming was the most appropriate physical education alternative
for Lyssette. That order was not handed down until June 14, 2002,
far beyond the forty-five days provided by the regulations for
resolution of an administrative complaint. See 34 C.F.R.
§ 300.511(a)(1) ("The public agency shall ensure that not later
than 45 days after the receipt of a request for a hearing . . . [a]
final decision is reached in the hearing . . . .").
Several unsuccessful attempts to convene an IEP meeting
followed; each meeting was cancelled by someone from the school or
the DOE. In the end, Lyssette did not receive a revised IEP for
her sixth-grade year, which was the 2002-2003 school year; rather,
with Díaz's permission, Lyssette spent time with her Spanish
teacher while her classmates were in physical education class.
In May 2003, the IEP team convened to create a revised
IEP for the 2003-2004 school year. At that meeting, co-defendant
Ríos told Díaz that she had been instructed to inform Díaz that
they were not going to develop a new IEP for Lyssette. Díaz
testified that Ríos refused to take minutes of the meeting and that
Ríos and the other school personnel present abruptly ended the
meeting when Díaz attempted to record the proceedings. No revised
IEP was produced and agreed upon by the IEP team for the 2003-2004
school year.

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Lyssette graduated from sixth grade in June 2003, which
meant that she had to transfer to a middle school. In July of that
year, Díaz met with DOE and school officials to discuss Lyssette's
placement options for the following year. Díaz requested that her
daughter be enrolled in the Dejas School, because of that school's
proximity to Lyssette's grandmother's house and the Puerto Rican
Medical Center, where Lyssette's neurosurgeon and orthopedic
surgeon practiced. The DOE, however, notified Díaz that the school
of her choice was not available; that the normal placement
procedures for regular-education students applied to Lyssette; and
that under those procedures, Lyssette could not enroll in the Dejas
School, but instead must choose from two schools closer in
proximity to her home. The topic of physical education was not
raised during this meeting and was not mentioned as a criterion for
Díaz's choice of schools.
Díaz then informed the DOE that its proffered options
were not acceptable and that she would be withdrawing Lyssette from
public school and placing her in private school during the
2003-2004 school year at public cost. Lyssette was eventually
enrolled in a private school close to her grandmother's home; that
school was equipped with a swimming pool, but, according to Díaz,
Lyssette did not take swim lessons there because physical education
was not a part of the regular curriculum and extracurricular
lessons were prohibitively expensive.

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Ríos was not named in the original complaint; plaintiffs 3
were granted leave to amend their complaint to add her as a
defendant, in her personal and official capacities, on February 6,
2004.
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The DOE initiated a second administrative proceeding in
July 2003, challenging Lyssette's placement in the private school.
That proceeding was resolved in the DOE's favor on December 10,
2003, which was apparently also in excess of the forty-five-day
deadline imposed by the regulations.
In the interim, Díaz filed this suit on September 4, 2002
in federal court on behalf of herself and her daughter, alleging
that Lyssette's "IEP was administered inadequately, untimely[,] and
contrary to law," and that Díaz was deprived of her rights to
parental involvement and to a timely, fair, and impartial due
process hearing. Plaintiffs named as defendants the Commonwealth
and the DOE ("the Commonwealth defendants"), as well as Rey and
Ríos ("the individual defendants"), who were sued both in their
personal capacities and in their official capacities as Secretary
of Education of the Commonwealth and Supervisor of the Special
Education Program of the Cidra School District, respectively. In 3
their initial complaint, plaintiffs asserted against all defendants
claims under the IDEA, section 504 of the Rehabilitation Act, Title
II of the ADA, and Puerto Rico law.
Defendants answered with a number of affirmative
defenses, including that "[f]ederal policy precludes money damages

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for IDEA claims" and that "[t]he Eleventh Amendment bars
[plaintiffs'] claims." They also filed a motion to dismiss,
arguing that the Commonwealth defendants had Eleventh Amendment
immunity against the federal law claims, that the federal statutes
did not provide for individual liability, and that the district
court should decline to exercise supplemental jurisdiction over the
state law claims. The district court partially granted the motion
on December 16, 2003, dismissing the ADA claim for money damages
against all defendants and the Rehabilitation Act claim against Rey
(then the only individual defendant) in his personal capacity.
Plaintiffs did not appeal these rulings.
Plaintiffs subsequently amended their complaint. They
dropped their ADA claim, kept their claims under the IDEA and
Puerto Rico law against all defendants, and reasserted a
Rehabilitation Act claim against the Commonwealth defendants only.
They sought declaratory relief under 28 U.S.C. §§ 2201 and 2202;
economic and non-economic damages; compensatory and special
damages, including damages for "pain and suffering, emotional
distress, humiliation, and the cost of appropriate remedial
services, including educational services"; punitive damages;
litigation costs and fees; and "other and further relief at law or
in equity" as the court deemed proper.
As the suit progressed, defendants took a lackadaisical
approach to responding to their discovery obligations and various

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The parties' briefs consistently mischaracterize the jury 4
trial as being limited to the issue of damages. That
characterization is belied by the record.
Defendants retained new counsel the day before jury 5
selection.
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court orders. In particular, the DOE repeatedly failed to comply
with the court's orders to produce the full record from the prior
administrative proceedings. Plaintiffs moved to sanction
defendants. In due course, the court did sanction defendants by
striking their pleadings and entering a default order against them,
and it did not relent when defendants sought to remove the default.
It is important to be clear about the nature of the
default order. The court said that "[t]his case is going to be
tried on default, but it is not the typical default." Indeed,
unlike other defaults, the court's default order did not result in
entry of a liability judgment with only damages to be determined.
Rather, the court allowed the case to go to the jury on liability
and damages, and permitted plaintiffs to present evidence of both.4
Furthermore, the court precluded defendants from introducing any
evidence, but did give them some leeway to cross-examine
plaintiffs' witnesses and did allow them to make opening and
closing statements.
The case was tried to a jury over the course of three
days beginning October 28, 2004. Testifying on plaintiffs' behalf 5
were Díaz and Lyssette, as well as Marlene Aponte Cabrera, a former

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DOE ALJ, and María del Carmen Warren-González, the head of a
committee of parents involved in an unrelated class-action suit
against the DOE. Defendants made opening and closing statements
and cross-examined plaintiffs' witnesses.
At the close of plaintiffs' case, defendants moved for
judgment as a matter of law, pursuant to Fed. R. Civ. P. 50(a).
They made a number of arguments, including that the default was
incorrectly entered against them, that there was insufficient
evidence that the IEP was inadequate, and that the individual
defendants were entitled to qualified immunity. The motion was
denied.
At defendants' request, before closing statements, the
court talked to the jury about the default order. It explained to
the jury that it had entered a "default" against defendants as a
sanction against them for failing to produce evidence as ordered,
which meant that defendants were "preclu[ded] from presenting any
evidence in the case." This sanction, the court said, had "nothing
to do with the merits of the case" and should not be taken against
defendants; rather, the case should be decided "solely upon the
evidence received here in Court and upon the instructions that I
give you, not upon the default that was previously entered."
After closing statements, defendants did not object that
as a matter of law punitive damages were not available under the
IDEA and the Rehabilitation Act, that compensatory relief did not

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At this time, defendants also raised an objection, not 6
argued in their previous Rule 50(a) motion, that the Rehabilitation
Act claim should be dismissed because "the accommodation under that
law has nothing to do with the accommodation that is claimed under
[the] IDEA," and thus the only legal claim available was one under
the IDEA.
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include many of the categories of damages plaintiffs sought, and
that no federal cause of action was available in a personal
capacity against the individual defendants. The court relied on
plaintiffs' representations to the contrary and instructed the jury
that punitive and compensatory damages were available against all
defendants. The court explained to the jury that compensatory
damages "are damages designed . . . to put [a person] in the
position [he] would have been [in] had no harm . . . taken place,"
and it gave the example of damages for repairs, lost wages, and
medical expenses that would be available in a suit based on
injuries from a car accident. It then contrasted compensatory
damages with punitive damages, which "are designed to . . . punish
an actor when [he has] acted with deliberate indifference toward[]
the rights of another." The court also instructed the jury on the
elements of causes of action under the IDEA, the Rehabilitation
Act, § 1983, Title II of the ADA, and the Commonwealth law of
negligence.
Defendants objected to these instructions only on three
grounds: (1) that an instruction regarding expert testimony was 6
improper; (2) that compensatory damages were not available under

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The jury verdict form did not specify whether the 7
compensatory and punitive damages were assessed against the
individual defendants in their personal or official capacities;
however, the amended complaint specified that the individuals were
"sued in their official capacities for purposes of declaratory,
injunctive and ancillary relief and in their personal capacities
for purposes of monetary relief."
-16-
the state law claim, because Puerto Rico's Law 51, P.R. Laws Ann.
tit. 18, §§ 1351-1359, did not explicitly allow for damages; and
(3) that because the amended complaint requested damages "in an
amount to be proved at trial," and this was a default trial, the
only damages available were the $44,000 of economic damages
testified to by Díaz. Defendants also made one objection to the
verdict form: that it was unclear from the form and the court's
instructions that the jury need not award punitive damages against
both of the individual defendants. The court rejected all of these
arguments.
The jury returned a verdict in favor of plaintiffs. It
assessed compensatory damages against all of the defendants in the
amount of $45,000 to Díaz and $3000 to Lyssette. The jury also
assessed a $100,000 punitive damages award in favor of Lyssette,
which was understood to be against the individual defendants in
their personal capacities.7
Judgment was entered on November 9, 2004. On November
24, defendants filed a timely motion renewing their request for
judgment as a matter of law, see Fed. R. Civ. P. 50(b), and
requesting, in the alternative, a new trial or remittitur, see Fed.

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R. Civ. P. 59. In support of their motion, defendants raised a
panoply of arguments, some of which had not been articulated after
their initial pleadings were struck by the district court and
before the jury verdict. In addition to challenging the
sufficiency of the evidence supporting the jury verdict, defendants
argued that as a matter of law, none of the statutes pleaded by
plaintiffs provided for punitive damages or for the type of
compensatory relief plaintiffs sought and were awarded. Defendants
also argued that these statutes did not allow the individual
defendants to be sued in their personal capacities, and reiterated
their argument, presented in their Rule 50(a) motion, that Rey and
Ríos were protected by qualified immunity. The district court
denied defendants' motion, without explanation of reasons, on
January 3, 2005.
Meanwhile, on November 23, 2004, plaintiffs filed a
motion for declaratory relief, which defendants duly opposed. The
court summarily granted plaintiffs' motion in its entirety on
January 3, 2005 and summarily rejected on February 7, 2005
defendants' subsequent motion to amend the declaratory judgment
order.

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Plaintiffs argue that the default order is not properly 8
before this court on appeal because defendants failed to specify in
their notice of appeal that they were contesting the default order.
See Fed. R. App. P. 3(c)(1)(B) (requiring the notice of appeal to
"designate the judgment, order, or part thereof being appealed").
Because we uphold the default order, we need not reach this issue.
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II.
Challenge to Entry of Default
Defendants argue the district court abused its discretion
when it refused to set aside the default order against them. On 8
plaintiffs' motion, the court had entered default against the DOE,
pursuant to Rule 37(b)(2)(C) of the Federal Rules of Civil
Procedure, because it repeatedly failed to produce a full and
accurate copy of the administrative record, as required by the
IDEA, see 20 U.S.C. § 1415(i)(2)(C)(i) (providing that "[i]n any
[civil] action brought under this paragraph, the court . . . shall
receive the records of the administrative proceedings"), and by the
court's discovery orders. See Fed. R. Civ. P. 37(b)(2)(C) ("If a
party . . . fails to obey an order to provide or permit discovery,
. . . the court . . . may make . . . [a]n order striking out
pleadings . . . or rendering a judgment by default against the
disobedient party[.]"). In the same order, the court also entered
default against the individual defendants on the ground that they
failed to comply with discovery rules and other discovery orders.
On appeal, the Commonwealth defendants argue that their
failure to provide the administrative record is not a proper ground

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for default, because the obligation to produce the record is
created not by the discovery rules, but by the IDEA, see 20 U.S.C.
§ 1415(i)(2)(C)(i), which does not itself specify a timeline for
compliance. The Commonwealth defendants also downplay the
untimeliness of their responses to the various discovery orders,
assert that they did not act in bad faith, note that they did
eventually produce the administrative record that was sought in
discovery, and decry default as excessively harsh given the
circumstances. Finally, the individual defendants argue that, at
the very least, sanctions should not have been imposed against
them, because the IDEA imposes the obligation to produce
administrative records on the DOE, not on them, and because they
were timely in responding to plaintiffs' discovery requests.
"We review the trial court's imposition and selection of
sanctions under [Rule 37(b)] for abuse of discretion . . . ." Guex
v. Allmerica Fin. Life Ins. & Annuity Co., 146 F.3d 40, 41 (1st
Cir. 1998) (per curiam); see also KPS & Assocs., Inc. v. Designs By
FMC, Inc., 318 F.3d 1, 12 (1st Cir. 2003). "There is nothing in
[Rule 37(b)] that states or suggests that [any particular sanction]
can be used only after all the other sanctions have been considered
or tried." Damiani v. R.I. Hosp., 704 F.2d 12, 15 (1st Cir. 1983).
Therefore, the sanctioned party "bears a heavy burden of
demonstrating that the trial judge was clearly not justified in
entering an order of [default] under Rule 37." Spiller v. U.S.V.

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Labs., Inc., 842 F.2d 535, 537 (1st Cir. 1988); see also KPS &
Assocs., Inc., 318 F.3d at 13 (noting that "the district court,
familiar with the parties and circumstances, is best situated to
weigh the reasons for and against" default (quoting Bond Leather
Co. v. Q.T. Shoe Mfg. Co., 764 F.2d 928, 938 (1st Cir. 1985))
(internal quotation mark omitted)).
Although the question is close, we uphold the entry of
sanctions against all defendants. The Commonwealth defendants'
argument that the IDEA does not specify a schedule for the delivery
of the administrative record misses the point. What matters is
that the district court twice ordered them to produce the record by
a certain date and that they failed both times to come into full
compliance with the court's order. As to their argument that they
did not act in bad faith, Rule 37(b)(2) allows for sanctions "[i]f
a party . . . fails to obey an order to provide or permit
discovery," and nothing in the rule requires that the failure be on
account of bad faith.
All of the defendants violated discovery orders either by
missing clearly established deadlines or by representing to the
court that they had complied fully with their obligations, even
when their submissions (timely or otherwise) were incomplete,
vague, or evasive. The court's discovery orders of March 11 and
April 27, 2004 explicitly warned defendants that failure to comply
fully and on time would result in sanctions, including the striking

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Defendants also argue that "[i]t was an abuse of 9
discretion for the [court] to have imposed sanctions on [them] for
what were, at worst inadvertent discovery violations, while failing
to even address the fact that [p]laintiffs had clearly not complied
with Local Rule 26(b)." See D.P.R. R. 26(b) ("The judicial officer
shall not consider any discovery motion that is not accompanied by
a certification that the moving party has made a reasonable and
good-faith effort to reach an agreement with opposing counsel on
the matters set forth in the motion."). Defendants never invoked
this rule in their motion for reconsideration of the default order,
and thus the argument is forfeited. In any case, "[w]e generally
will not disturb the district court's departure from its local
rules so long as there is sound reason for the departure and no
party's substantial rights have been unfairly jeopardized."
García-Goyco v. Law Envtl. Consultants, Inc., 428 F.3d 14, 19-20
(1st Cir. 2005). Here, both the plaintiffs and the court gave
defendants multiple opportunities to comply with outstanding
discovery orders, as well as notice that sanctions would be imposed
if compliance did not occur.
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of pleadings and the entry of default. Under these circumstances,
the district court was within its discretion in imposing
sanctions.9
III.
Challenge to the Award of Monetary Relief
At trial, the jury found defendants liable and assessed
compensatory damages against all defendants and punitive damages
against the individual defendants in their personal capacities.
Defendants initially challenged the availability of these damages
in their post-trial motion for judgment as a matter of law, new
trial, or remittitur, which the district court summarily denied.
We would usually review the denial of a Rule 50(b) motion de novo
and the denial of a Rule 59 motion for abuse of discretion. In
this case, however, defendants failed to raise many of the

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Plaintiffs argue that a Rule 59 motion is not available 10
to a party against whom a default judgment was entered. Whatever
the merits of this argument in an ordinary default scenario, the
district court made clear that this case does not involve a run-of-
the-mill default judgment entered pursuant to Rule 55 of the
Federal Rules of Civil Procedure.
Defendants' challenge on appeal focuses on the 11
unavailability of the damages awards as a matter of law. We do not
understand them to be raising any objection as to the sufficiency
of the evidence in support of the jury verdict. To the extent that
they do raise such an argument, it is waived for lack of appellate
development. See United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990) ("[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed
waived.").
By the time this case went to trial, the only surviving 12
claims against the individual defendants were those under the IDEA
and Puerto Rico law. Although plaintiffs' original complaint
pleaded a Rehabilitation Act claim, after the district court
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arguments raised in their post-trial motions after their pleadings
had been struck and before the jury verdict. We thus review their
unpreserved arguments for plain error. See Fed. R. Civ. P. 10
51(d)(2) ("A court may consider a plain error in the [jury]
instructions affecting substantial rights that has not been
preserved as required by Rule 51(d)(1)(A) or (B).").11
A. Punitive Damages
Although the claims under the Rehabilitation Act against
the individual defendants and the claims under Title II of the ADA
against all the defendants had been dismissed from the case before
trial and no claim under 42 U.S.C. § 1983 had ever been pleaded,
purported claims under these statutes were somehow used as a basis
for a punitive damages instruction.12

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dismissed the claim against Rey in his personal capacity,
plaintiffs amended their complaint to plead a Rehabilitation Act
claim solely against the Commonwealth defendants. Plaintiffs also
originally pleaded a cause of action under Title II of the ADA, but
the court correctly dismissed that claim early in the case, and
plaintiffs took no appeal. After the entry of default, however,
plaintiffs attempted to resurrect the Title II claim,
surreptitiously reintroducing it by way of their proposed jury
instructions. Plaintiffs also floated a theory that they had an
independent cause of action under 42 U.S.C. § 1983 and submitted
jury instructions to that effect, even though neither their
original or amended complaints ever alleged a § 1983 violation.
The court inquired of plaintiffs' counsel: "[I]s there 13
case law that allows for the imposition of punitive damages in a
case like this?" Counsel responded: "Under the Rehabilitation Act,
yes . . . . [T]here is case law indicating that the same damages
that are available generally under a 42 U.S.C. [§] 1983 case are
available under the Rehabilitation Act, and that would be the one
particular legal claim that would provide for punitive damages in
this case."
-23-
On the final day of trial, before instructing the jury,
the district court engaged in a colloquy with the parties regarding
the jury instructions and verdict form. When the court raised the
question of whether punitive damages were available under the
causes of action pleaded, plaintiffs' counsel misrepresented to the
court that punitive damages could be awarded against the individual
defendants under the Rehabilitation Act, and so were available
through the vehicle of § 1983. Plaintiffs' counsel did not tell 13
the court that the Supreme Court had held that punitive damages
were unavailable under the Rehabilitation Act. See Barnes v.
Gorman, 536 U.S. 181, 189 (2002). Defense counsel failed to object
that punitive damages were unavailable as a matter of law; failed
to remind the court that not only had the Rehabilitation Act claim

-- 22 of 59 --

The only argument that defense counsel made as to 14
punitive damages was that Rey and Ríos ought to be protected by
qualified immunity on the federal claims because the evidence was
insufficient to show their personal involvement.
Punitive damages are not available under the Puerto Rico 15
law claims.
-24-
in the original complaint against Rey in his personal capacity
already been dismissed, but also that the amended complaint did not
allege a Rehabilitation Act claim against the individual
defendants; and failed to alert the court that the § 1983 and Title
II claims were never pleaded in the amended complaint.14
In due course, the district court instructed the jury on
both Title II and § 1983, and further advised the jury that
punitive damages were available under federal law, so long as 15
defendants' actions involved deliberate indifference toward the
rights of another. Defendants did not make any relevant objections
to these instructions or to the verdict form. The jury proceeded
to award a total of $100,000 in punitive damages to Lyssette
against Rey and Ríos in their personal capacities.
Not until their post-verdict motion did defendants argue
that punitive damages were unavailable under the pleaded causes of
action as a matter of law. The district court issued an order
summarily denying their motion, from which they now appeal.
It is black letter law that punitive damages -- indeed
money damages of any sort -- are not available in a private suit
under the IDEA. See Nieves-Márquez v. Puerto Rico, 353 F.3d 108,

-- 23 of 59 --

Defendants argue that to the extent the court's 16
instructing the jury on § 1983 can be construed as permitting a
constructive amendment to the pleadings, such an amendment was an
abuse of discretion on the part of the court, since it "permitted
[p]laintiffs to enjoy the benefits of having default entered
against [d]efendants even on a claim that [plaintiffs] had not
included in their [c]omplaint." Defendants also argue that even if
plaintiffs properly raised a § 1983 claim, plaintiffs nevertheless
failed to allege or show that Ríos and Rey were personally
responsible for any discrimination against Lyssette. Finally,
defendants argue that Ríos and Rey were entitled to qualified
immunity. We need not reach any of these arguments.
-25-
124 (1st Cir. 2003) (holding that the only monetary awards
available under the IDEA are "[a]wards of compensatory education
and equitable remedies that involve the payment of money, such as
reimbursements to parents for expenses incurred on private
educational services to which their child was later found to have
been entitled"). Nor are punitive damages available under the
Rehabilitation Act. See id. at 126; see also Barnes, 536 U.S. at
189 ("[P]unitive damages may not be awarded in . . . suits brought
under . . . § 504 of the Rehabilitation Act."). This was the law
at the time of trial, as counsel for both sides should have known.
On appeal, plaintiffs add the argument that punitive
damages were justified under Title II of the ADA. The law is
equally clear that no punitive damages are available under that
cause of action either. See Barnes, 536 F.3d at 189; Nieves-
Márquez, 353 F.3d at 126.
Plaintiffs next attempt to recharacterize this case as a
§ 1983 case and so justify an award of punitive damages. We 16

-- 24 of 59 --

-26-
reject the argument and hold that § 1983 cannot be used to escape
the strictures on damages under the IDEA, which preclude both
punitive damages and general compensatory damages, where the § 1983
claim is premised on a right created by the IDEA. As we observed
in Nieves-Márquez, "if federal policy precludes money damages for
IDEA claims, it would be odd for damages to be available under
another vehicle, . . . where the underlying claim is one of
violation of IDEA." 353 F.3d at 125; see also id. at 125-26
(noting that "[s]everal circuits have barred money damages under 42
U.S.C. § 1983 for IDEA-based claims for precisely this reason").
After all, plaintiffs cannot circumvent other requirements of the
IDEA, such as the requirement to exhaust administrative remedies,
see 20 U.S.C. § 1415(l), merely by pleading under § 1983. See
Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 60-64 (1st Cir.
2002). Allowing plaintiffs to claim money damages under § 1983
"would subvert . . . the overall scheme that Congress envisioned
for dealing with educational disabilities," id. at 63, as well as
the purpose of the IDEA, which simply "is to ensure FAPE," Nieves-
Márquez, 353 F.3d at 125. See also Sellers by Sellers v. Sch.
Bd., 141 F.3d 524, 529 (4th Cir. 1998) (holding that the "IDEA
provides a comprehensive remedial scheme for violations of its own
requirements" that cannot be circumvented by means of a § 1983
claim).

-- 25 of 59 --

Plaintiffs made allegations of retaliation in their 17
amended complaint. However, plaintiffs have not suggested that
these allegations go to an independent claim under the
Rehabilitation Act, and the Rehabilitation Act claims against the
individual defendants were correctly dismissed.
-27-
As noted in Nieves-Márquez, see 353 F.3d at 116 n.4, the
text of the IDEA specifically states that the statute does not
"restrict or limit the rights, procedures, and remedies available
under the Constitution, the Americans with Disabilities Act of
1990, title V of the Rehabilitation Act of 1973, or other Federal
laws protecting the rights of children with disabilities," 20
U.S.C. § 1415(l). This text was added as a reaction to the Supreme
Court's decision in Smith v. Robinson, 468 U.S. 992 (1984), which
held that the predecessor statute to the IDEA was "the exclusive
avenue through which a plaintiff may assert an equal protection
claim to a publicly financed special education." Id. at 1009. We
read the caveat set out in 20 U.S.C. § 1415(l) as intended to
ensure that the IDEA does not restrict rights and remedies that
were already independently available through other sources of law.
Situations in which the caveat would be applicable surely exist,
but this is not one of them. Plaintiffs' case turns entirely on
the rights created by statute in the IDEA. They did not plead a
§ 1983 action in their complaints, nor did they state a
constitutional claim. They also have no viable independent claim
under Title II of the ADA or section 504 of the Rehabilitation
Act.17

-- 26 of 59 --

-28-
We hold that where the underlying claim is one of
violation of the IDEA, plaintiffs may not use § 1983 -- or any
other federal statute for that matter -- in an attempt to evade the
limited remedial structure of the IDEA. See Bradley v. Ark. Dep't
of Educ., 301 F.3d 952, 957 (8th Cir. 2002) ("Because the
[plaintiffs] cannot recover damages against the state officials in
their individual capacities under the IDEA, they also cannot
recover those damages in a § 1983 suit for violations of the
IDEA."); Heidemann v. Rother, 84 F.3d 1021, 1033 (8th Cir. 1996)
("We simply hold that plaintiffs' claims based upon defendants'
alleged violations of the IDEA may not be pursued in this § 1983
action because general and punitive damages for the types of
injuries alleged by plaintiffs are not available under the IDEA."
(citing Crocker v. Tenn. Secondary Sch. Athletic Ass'n, 980 F.2d
382, 386 (6th Cir. 1992))); see also Padilla ex rel. Padilla v.
Sch. Dist. No. 1, 233 F.3d 1268, 1273-74 (10th Cir. 2000) (holding
that § 1983 is not available to enforce the IDEA); Sellers, 141
F.3d at 529 (same).
B. Compensatory Damages
In addition to the punitive damages, the jury awarded
general compensatory damages in the amount of $45,000 for Díaz and
$3000 for Lyssette against the Commonwealth defendants and Rey and
Ríos, in their personal capacities.

-- 27 of 59 --

-29-
At trial, Díaz testified that she sustained an array of
economic damages, including: (1) wages lost while attending
administrative hearings and IEP meetings; (2) copying and other
paperwork costs in preparation for administrative proceedings; (3)
medical deductibles for psychiatric treatment for Lyssette; (4)
private school tuition in the amount of $3248.24 for the 2003-2004
school year and "around $3400" for the 2004-2005 school year
(seventh and eighth grade, respectively); and (5) transportation
costs to and from private school. Díaz also testified about future
expenditures she expected to pay for Lyssette's private school
education, adaptive physical education, transportation, and
psychological counseling through the 2005-2006 school year.
Plaintiffs stated in closing arguments that the sum of all of
Díaz's economic damages, past and prospective, was $44,813.44.
They did not attempt to quantify damages for emotional harm, though
they argued that Díaz did suffer such harm on account of
defendants' conduct. Lyssette did not testify as to any specific
losses, though she did say that defendants' actions made her feel
"bad" and isolated, and caused her to have to seek counseling.
The court did instruct the jury on the elements of
liability under an IDEA claim and on the procedural and substantive
entitlements students and parents have under the IDEA, but it did
not instruct on the limited remedial options available under that
statute. Rather, the district court instructed the jury that

-- 28 of 59 --

Defendants objected to the verdict form and to the 18
instructions, but on grounds not pertinent here.
In their post-trial motion, which the district court
summarily denied, the Commonwealth defendants argued that the types
of compensatory damages the jury awarded were not available as a
matter of law under the IDEA and the Rehabilitation Act, and that
the Eleventh Amendment gave them immunity for the Puerto Rico law
claims. The individual defendants also argued that there was no
surviving federal cause of action against them in their personal
capacities, that they were entitled to qualified immunity, and that
they were not personally liable under state law.
-30-
compensatory damages were available under § 1983 and the
Rehabilitation Act. It also instructed the jury that, for
violations of Law 51, see P.R. Laws Ann. tit. 18, §§ 1351-1359,
which is the Puerto Rican analog to the IDEA, Puerto Rico's general
negligence statute applied, see P.R. Laws Ann. tit. 31,
§§ 5141-5142, which meant that reasonable damages for emotional
pain, mental anguish, lost income, and medical expenses were
available.
The court then presented the jury with a general verdict
form that asked, with respect to compensatory damages, "[w]hich
defendant[s] are responsible" and the amount of damages awarded in
favor of each plaintiff.
As said, we review defendants' challenges to the
compensatory damages for plain error.18
1. Compensatory Damages Against the Commonwealth
Defendants
Defendants argue that the types of compensatory damages
awarded by the jury were not available as a matter of law.

-- 29 of 59 --

Plaintiffs do not attempt to justify the compensatory 19
damages award under § 1983. We deal with whether compensatory
damages are available against defendants under state law in a
following section.
Accord Gean v. Hattaway, 330 F.3d 758, 774 (6th Cir. 20
2003); Polera v. Bd. of Educ., 288 F.3d 478, 483-86 (2d Cir. 2002);
Witte v. Clark County Sch. Dist., 197 F.3d 1271, 1275 (9th Cir.
1999); Sellers, 141 F.3d at 526-27; Charlie F. by Neil F. v. Board
of Educ., 98 F.3d 989, 991 (7th Cir. 1996); Heidemann, 84 F.3d at
1033; see also Ortega v. Bibb County Sch. Dist., 397 F.3d 1321,
1325-26 (11th Cir. 2005); Crocker, 980 F.2d at 386-87 (general
damages not available under predecessor statute to the IDEA);
Manecke v. Sch. Bd., 762 F.2d 912, 915 n.2 (11th Cir. 1985) (same).
-31-
a. Compensatory Damages on Federal Claims
The key question is whether the IDEA permitted an award
of the various types of damages sought, given that we have held
that the other federal causes of action, on the facts here, do not
provide any broader remedies than those available under the IDEA.19
"[T]ort-like money damages" are not within the scope of
appropriate relief under the IDEA, because the "IDEA's primary
purpose is to ensure FAPE, not to serve as a tort-like mechanism
for compensating personal injury." Nieves-Márquez, 353 F.3d at
124-25. This was the law of this and every other circuit that had
addressed the issue by the time of trial.20
In an IDEA-based suit like this one, monetary relief is
limited to "[a]wards of compensatory education and equitable
remedies that involve the payment of money, such as reimbursements
to parents for expenses incurred on private educational services to
which their child was later found to have been entitled." Id. at

-- 30 of 59 --

The issue of tuition reimbursement is, therefore, an 21
issue for the judge, not the jury. In this case, however, neither
party raised an objection on this ground, and we have no reason to
conclude that the court would not have granted reimbursement had it
reserved the decision for itself. Cf. Fed. R. Civ. P. 39(c) ("In
all actions not triable of right by a jury the court upon motion or
of its own initiative may try any issue with an advisory
jury . . . ."). In fact, the court did grant partial tuition
reimbursement as part of the declaratory judgment.
-32-
124. The IDEA provides that "a court or a hearing officer may
require the agency to reimburse the parents for the cost of
[private school] enrollment if the court or hearing officer finds
that the agency had not made [FAPE] available to the child in a
timely manner prior to that enrollment." 20
U.S.C. § 1412(a)(10)(C)(ii); see also Ms. M. ex rel. K.M. v.
Portland Sch. Comm., 360 F.3d 267, 268 (1st Cir. 2004). Such
"[r]eimbursement is 'a matter of equitable relief, committed to the
sound discretion of the district court.'" Roland M. v. Concord 21
Sch. Comm., 910 F.2d 983, 999 (1st Cir. 1990) (quoting Town of
Burlington v. Dep't of Educ., 736 F.2d 773, 801 (1st Cir. 1984),
aff'd sub nom. Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 369
(1985)); see also Florence County Sch. Dist. Four v. Carter ex rel.
Carter, 510 U.S. 7, 16 (1993) ("Courts fashioning discretionary
equitable relief under IDEA must consider all relevant factors,
including the appropriate and reasonable level of reimbursement
that should be required."). In fashioning appropriate relief,
courts have generally interpreted the IDEA as allowing
reimbursement for the cost not only of private school tuition, but

-- 31 of 59 --

-33-
also of "related services," see 20 U.S.C. § 1401(26) (defining
"related services" to include "transportation, and such
developmental, corrective, and other supportive services (including
. . . psychological services . . .) as may be required to assist a
child with a disability to benefit from special education"). See,
e.g., Sch. Comm., 471 U.S. at 369 (allowing for reimbursement under
the predecessor statute to the IDEA); M.M. ex rel. C.M. v. Sch.
Bd., 437 F.3d 1085, 1100-01 (11th Cir. 2006) (per curiam); see also
34 C.F.R. § 300.24. This law was also clear at the time of trial.
We quickly dispose of one defense argument. Pointing to
a provision of the IDEA, which states that the cost of
reimbursement "may be reduced or denied" in certain circumstances,
such as "upon a judicial finding of unreasonableness with respect
to actions taken by the parents," 20 U.S.C. § 1412(a)(10)(C)(iii),
defendants argue that Díaz was not entitled to reimbursement
because her actions were unreasonable. But the jury verdict and
grant of substantial damages confirmed that defendants' proposed
IEPs were inadequate and untimely. Under these circumstances, we
cannot conclude that Díaz's decision to enroll Lyssette in a
private school was so unreasonable that it was an abuse of
discretion to award tuition reimbursement.
Defendants' final argument, that Díaz is not entitled to
prospective relief in the amount of future educational expenses
until Lyssette reaches maximum school age, has more bite. As the

-- 32 of 59 --

Plaintiffs do not take issue with defendants' 22
characterization of the relevant parts of the jury award as
"tuition reimbursement," and do not attempt to recast that award as
"compensatory education." Nor do plaintiffs argue that tuition
reimbursements are available under Puerto Rico law. In fact,
plaintiffs do not respond at all to any of defendants' arguments
with respect to tuition reimbursement.
-34-
term "reimbursement" suggests, tuition reimbursement is a
backward-looking form of remedial relief; "[r]eimbursement merely
requires the [defendant] to belatedly pay expenses that it should
have paid all along and would have borne in the first instance had
it developed a proper IEP." Sch. Comm., 471 U.S. at 371-72. It
goes without saying that those "expenses" must be actual and
retrospective, not anticipated. Indeed, this reasoning is at the
heart of the distinction, recognized by this court, between
"tuition reimbursement" and "compensatory education." See Ms. M. 22
ex rel. K.M., 360 F.3d at 273 ("[W]hen this court has used the term
'compensatory education,' it has usually assumed that the remedies
available involve prospective injunctive relief, which would not
encompass tuition reimbursement."); see also id. at 273-74 (citing
cases). This was also plainly the law at the time of trial.
Under normal IDEA principles, Díaz is thus not entitled
to be reimbursed for educational expenses that she has yet to pay.
She is entitled to no more than the sum of the educational expenses
she has already paid -- that is, the sum of Lyssette's private
school tuition and costs for transportation, see 34 C.F.R.
§ 300.24(b)(15), and psychological services, see id.

-- 33 of 59 --

Although it is true that reimbursement can only be 23
retrospective, the "stay-put" provision of the IDEA requires
Lyssette to remain in her "then-current educational placement" --
that is, her current private school placement -- "during the
pendency of any [administrative or judicial] proceedings conducted
pursuant to [20 U.S.C. § 1415]." 20 U.S.C. § 1415(j). The law
does not firmly establish whether "the pendency of any [judicial]
proceedings" includes review through the court of appeals, and the
parties have not briefed the issue of whether Díaz is entitled to
reimbursement for the costs of tuition and related services that
she has already incurred through the conclusion of these appellate
proceedings. In the context of this case, in which there has been
so many defaults on the part of the Commonwealth defendants, it is
equitable to permit reimbursement through the school year ending
with the issue of our judgment -- that is, the 2005-2006 school
year. We also take into consideration the facts that the jury
determined that Díaz had properly enrolled Lyssette in private
school, that Díaz has already paid for this year's tuition and
related services, and that, from what we understand, as of the date
of issuance of this opinion, Lyssette not only has finished the
school year, but also has graduated from middle school.
-35-
§ 300.24(b)(9), that she has paid through the conclusion of the
2005-2006 school year. All other "compensatory damages" awarded 23
by the jury, including those for lost wages and emotional distress,
are simply not available as a matter of law. We discuss later
whether defendants are nonetheless bound to pay damages not
available as a matter of law because of their failure to timely
object.
b. State Immunity from Compensatory Damages
Under Puerto Rico Law
"[I]n the absence of consent[,] a suit in which the State
or one of its agencies or departments is named as the defendant is
proscribed by the Eleventh Amendment." Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 100 (1984); see also Edelman v.

-- 34 of 59 --

Section 1802 of the Civil Code provides: "A person who by 24
an act or omission causes damage to another through fault or
negligence shall be obliged to repair the damage so done." P.R.
Laws Ann. tit. 31, § 5141. Section 1803 extends § 5141 to the
Commonwealth: "The Commonwealth is liable in this sense under the
same circumstances and conditions as those under which a private
citizen would be liable." Id. § 5142.
-36-
Jordan, 415 U.S. 651, 662-63 (1974). "This jurisdictional bar
applies regardless of the nature of the relief sought." Pennhurst,
465 U.S. at 100.
Plaintiffs argue that the compensatory damages award, if
not available under federal law, is justifiable under §§ 1802 and
1803 of the Puerto Rico Civil Code, which is the general negligence
statute. See P.R. Laws Ann. tit. 31, §§ 5141, 5142. Taking 24
advantage of the rule that "Eleventh Amendment immunity can be
raised at any time because of its jurisdictional implications,"
Acevedo López v. Police Dep't, 247 F.3d 26, 28 (1st Cir. 2001), the
Commonwealth defendants invoke for the first time on appeal their
Eleventh Amendment immunity against suit in federal court on the
Puerto Rico law claims. Plaintiffs offer no response.
The Commonwealth of Puerto Rico is treated as a state for
purposes of Eleventh Amendment immunity analysis. Redondo Constr.
Corp. v. P.R. Highway & Transp. Auth., 357 F.3d 124, 125 n.1 (1st
Cir. 2004). The Commonwealth can waive its immunity in three ways:
"(1) by a clear declaration that it intends to submit itself to the
jurisdiction of a federal court . . . ; (2) by consent to or
participation in a federal program for which waiver of immunity is

-- 35 of 59 --

-37-
an express condition; or (3) by affirmative conduct in litigation."
New Hampshire v. Ramsey, 366 F.3d 1, 15 (1st Cir. 2004) (citations
omitted). But the Commonwealth's "waiver of sovereign immunity in
its own courts is not a waiver of the Eleventh Amendment immunity
in the federal courts." Pennhurst, 465 U.S. at 99 n.9.
The Commonwealth defendants do not have Eleventh
Amendment immunity against the federal IDEA and Rehabilitation Act
claims, because they waived such immunity by accepting federal
funds. See 20 U.S.C. § 1403(a) (conditioning a state's receipt of
federal IDEA funds to its consent to suit under that statute); 42
U.S.C. § 2000d-7(a)(1) (same under the Rehabilitation Act); see
also Nieves-Márquez, 353 F.3d at 127-30.
Although the Commonwealth has consented to be sued for
damages in actions brought under the Commonwealth general
negligence statute, such consent does not extend to actions filed
in any courts but the Commonwealth's own. Neither Section 1802 or
1803 contains an explicit waiver of the Commonwealth's sovereign
immunity. And Law 104, P.R. Laws Ann. tit. 32, § 3077, which
abrogates the Commonwealth's immunity with respect to negligence
suits filed against the Commonwealth in Puerto Rico's Court of the
First Instance, does not extend that waiver to suits filed in
federal court. See Pennhurst, 465 U.S. at 99 & n.9 (noting that
"[a] State's constitutional interest in immunity encompasses not
merely whether it may be sued, but where it may be sued").

-- 36 of 59 --

Law 51 states that parents of a disabled student are 25
entitled to "[f]ile complaints to request a mediation meeting or an
administrative hearing." P.R. Laws Ann. tit. 18, § 1353(b)(2)(D).
It also provides that "parents shall be entitled to . . . [h]ave
any objection on their part considered diligently at the
corresponding level, including those cases whose particular
circumstances merit determinations at state level or in the
pertinent forum." Id. § 1353(b)(2)(F).
-38-
Moreover, as defendants point out, Law 51 itself does not waive the
Commonwealth's immunity from suit in federal court; indeed, that
statute does not even explicitly authorize private suits for its
enforcement in any court, let alone in federal court. Plaintiffs 25
do not direct us to any law to the contrary, nor do they argue that
the Commonwealth has waived its immunity by any other means, such
as by its litigation conduct.
Defendants argue that the Commonwealth's immunity extends
to its Department of Education. This court has assumed without
discussion that the DOE's Eleventh Amendment immunity is
coextensive with that of the Commonwealth's. Fernandez v. Chardon,
681 F.2d 42, 59 (1st Cir. 1982); Litton Indus., Inc. v. Colon, 587
F.2d 70, 72 (1st Cir. 1978) ("There is no doubt that the complaint
states a cause of action against the Commonwealth and/or the
Department of Education of Puerto Rico for breach of contract, and
it is equally clear that the [E]leventh [A]mendment effectively
bars such a claim."). More recently, we have "assume[d] without
deciding that the Department of Education is properly considered
the alter ego of the Commonwealth of Puerto Rico for purposes of

-- 37 of 59 --

-39-
[E]leventh [A]mendment analysis." Marin-Piazza v. Aponte-Roque,
873 F.2d 432, 437 n.6 (1st Cir. 1989). We do so again here, since
plaintiffs have utterly failed to present any argument to the
contrary.
Plaintiffs, therefore, cannot look to state law to
justify the "compensatory damages" award against the Commonwealth
defendants.
2. Compensatory Damages Against the Individual
Defendants in Their Personal Capacities
The jury determined that each of the individual
defendants (in addition to the Commonwealth defendants) was
responsible for the compensatory damages award, totaling $48,000.
Our discussion earlier demonstrates that the likely basis
for the award was under the Rehabilitation Act or § 1983 theories,
neither of which had been pleaded against the individual defendants
in the amended complaint. We have also discussed why the award (to
the extent it represents general damages) is not, in any event,
viable as a matter of law on those bases. And so we return to what
this case is really about -- a claim under the IDEA -- to see if
the IDEA authorizes a monetary award against individuals in their
personal capacities.
Plaintiffs do not even attempt to defend the award of
damages against the individuals; they merely assert that
compensatory damages are generally available against defendants as
a group. We have already held that general compensatory damages

-- 38 of 59 --

-40-
are not available at all under the IDEA. We add that the IDEA does
not permit an award of any monetary relief, including tuition
reimbursement and compensatory education, against individual school
officials who are named in their personal capacities as defendants
in an IDEA action. As the Eighth Circuit recognized in Bradley v.
Arkansas Department of Education, 301 F.3d 952, "the IDEA is devoid
of textual support for . . . an award" of education expenses
against individual defendants; "such expenses would be recoverable
[only] from the school district" (or public agency). Id. at 957
n.6. Indeed, the plain text of the statute authorizes
reimbursement of educational expenses only against the agency, not
against any of its officials. See 20 U.S.C. § 1412(a)(10)(C)(ii)
("If the parents of a child with a disability, who previously
received special education and related services under the authority
of a public agency, enroll the child in a private elementary school
or secondary school without the consent of or referral by the
public agency, a court or a hearing officer may require the agency
to reimburse the parents for the cost of that enrollment if the
court or hearing officer finds that the agency had not made a
[FAPE] available to the child in a timely manner prior to that
enrollment." (emphasis added)). That only the public agency is
liable for reimbursement follows naturally from the fact that
Congress assigned to the agency the ultimate responsibility for
ensuring FAPE. See id. § 1400(c)(6) ("States, local educational

-- 39 of 59 --

-41-
agencies, and educational service agencies are primarily
responsible for providing an education for all children with
disabilities . . . ."); id. § 1401(9)(A) (requiring that FAPE be
"provided at public expense, under public supervision and
direction, and without charge"). No claim for monetary relief can
thus be stated against individual defendants under IDEA.
This leaves as a possible justification for a monetary
award against the individual defendants only the pendent state
claims under Law 51, see P.R. Laws Ann. tit. 18, §§ 1351-1359, and
Puerto Rico's general negligence statute, see P.R. Laws Ann. tit.
31, §§ 5141-5142. It is, in our view, doubtful that Law 51 (even
when combined with the general negligence statute) permits private
party actions for damages against individuals in their personal
capacities, as opposed to suits against individual defendants in
their official capacities. Cf. Bonilla v. Chardon, 18 P.R. Offic.
Trans. 696, 704, 710-11 (P.R. 1987) (allowing for an award of
compensatory damages under the general negligence statute for a
"gross" violation of the predecessor statute to Law 51 against the
DOE and its officers in their official capacities). Plaintiffs
have simply asserted there is such a claim. We are not inclined to
subject individual state officials to personal liability for
monetary relief in IDEA analog suits absent a clearer indication
from the courts of Puerto Rico that such a claim is available under

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-42-
their law. Federal courts do not engage in wholesale expansion, or
indeed creation, of state law theories of action.
3. Effect of Defendants' Failure to Timely Raise
Legal Defenses
Plaintiffs argue that, whatever the legal deficiencies of
the punitive and compensatory damages awards, defendants waived any
challenge to those awards by failing to object in a timely manner
to the jury instructions and verdict form. See Fed. R. Civ. P.
51(b)(2), (c)(2) (stating that a party that has been informed of an
instruction before the jury is instructed and before final jury
arguments must object to the instruction on the record "before the
instructions and arguments are delivered"); see also Fed. R. Civ.
P. 51(d)(1)(A). However, "[f]ailures to object, unless a true
waiver is involved, are [mere forfeitures that are] almost always
subject to review for plain error." Chestnut v. City of Lowell,
305 F.3d 18, 20 (1st Cir. 2002) (en banc) (per curiam); see also
Fed. R. Civ. P. 51(d)(2) ("A court may consider a plain error in
the instructions affecting substantial rights that has not been
preserved as required . . . ."). It is clear here that there was
no knowing waiver by defendants, merely forfeiture.
To succeed under the plain error standard, defendants
must show that: "(1) an error was committed; (2) the error was
'plain' (i.e.[,] obvious and clear under current law); (3) the
error was prejudicial (i.e.[,] affected substantial rights); and
(4) review is needed to prevent a miscarriage of justice," meaning

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-43-
that "the error 'seriously impaired the fairness, integrity, or
public reputation of judicial proceedings.'" Rivera Castillo v.
Autokirey, Inc., 379 F.3d 4, 10 (1st Cir. 2004) (quoting Smith v.
Kmart Corp., 177 F.3d 19, 26 (1st Cir. 1999); Muñiz v. Rovira, 373
F.3d 1, 6 (1st Cir. 2004)) (some internal quotation marks omitted);
see also Fed. R. Civ. P. 51 advisory committee's note (listing "at
least" four factors relevant to a finding of plain error: (1) "the
obviousness of the mistake," (2) "[t]he importance of the error,"
(3) "[t]he costs of correcting [the] error," and (4) "the impact a
verdict may have on nonparties"). The standard is high, and "it is
rare indeed for a panel to find plain error in a civil case."
Chestnut, 305 F.3d at 20.
The present case is one of those rare occasions when the
standard is met. Here, the errors of law were plain: punitive
damages and tort-like compensatory damages were not authorized
under any of the causes of action alive at the time of trial
against any of the defendants. Moreover, the legal errors were
clearly prejudicial to defendants: the jury would not have granted
the $100,000 punitive damages award and over $30,000 in tort-like
compensatory damages had it not been instructed, contrary to law,
that such damages were available. Finally, the errors, while
compounded by defendants' silence, were in major part created by
plaintiffs' active misleading of the court as to the law.

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Allowing the award to stand would be a miscarriage of
justice. See id. (reviewing for plain error and vacating a
punitive damages award, in part because allowing the award to stand
would be a miscarriage of justice); Hurley v. Atl. City Police
Dep't, 174 F.3d 95, 123-24 (3d Cir. 1999) (same); Williams v. City
of New York, 508 F.2d 356, 362 (2d Cir. 1974) (vacating punitive
damages award against defendant municipality on plain error review
because of "the demonstrable deviation of the court's instruction
here from the appropriate standard, the serious harm suffered by
the defendant as a result of this error, and the remediability of
this error without a new trial below").
This is especially so because the windfall of such awards
to IDEA plaintiffs would likely come at the expense of other
educational benefits for other schoolchildren by diverting from
them scarce educational resources. See Chestnut, 305 F.3d at
20-21. The Supreme Court recognized this principle in City of
Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981), in which it
vacated, on plenary review, an award under § 1983 of punitive
damages against a municipality, even though defendants failed to
object to the charge at trial, in part because "punitive damages
imposed on a municipality are in effect a windfall to a fully
compensated plaintiff, and are likely accompanied by an increase in
taxes or a reduction of public services for the citizens footing
the bill." Id. at 267. The Court also observed that "[n]either

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In Chestnut, this court vacated a jury award of $500,000 26
in punitive damages against the co-defendant municipality, where
defense counsel remained silent as plaintiff's counsel misled the
court that punitive damages were available, even though a
twenty-year-old Supreme Court precedent held otherwise; neither
party brought the precedent to the attention of the trial court
until after the jury verdict; and the windfall to the plaintiff
would have come at the expense of innocent taxpayers. See 305 F.3d
at 20-21.
Plaintiffs argue that Chestnut is inapposite because it
vacated damages solely as to the municipality, not as to the
co-defendant police officer who was sued in his personal capacity.
They point out that the punitive damages here were assessed against
Rey and Ríos in their personal capacities, and not against the
Commonwealth defendants. But the Commonwealth generally
indemnifies its officials for suits against them in their personal
capacities, see P.R. Laws Ann. tit. 32, § 3085, and it has not
declared its intention not to do so in this case. Moreover, here,
as in Chestnut, other factors in addition to impact on nonparties
militate strongly in favor of vacating the damages award.
-45-
reason nor justice suggests that such retribution should be visited
upon the shoulders of blameless or unknowing taxpayers." Id. In
Chestnut, this court, sitting en banc, vacated damages on plain
error review in similar circumstances. See 305 F.3d at 22. 26
We are also influenced by the fact that it would be a
miscarriage of justice to allow an award to stand, where that award
was brought about by plaintiffs' misleading the court about the
law. See id. at 20 (finding a "miscarriage of justice" where
"[p]laintiff's counsel, quite erroneously, represented to the
district court at the charge conference that punitive damages were
permissible against a municipality"). Had plaintiffs not misled
the court as to the law and defendants not stood silent, we doubt
the jury would ever have been asked to award punitive damages.

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Counsel have a duty to be candid about the law, and the trial
court, bearing a heavy caseload, relies on counsel to meet that
duty. Given the press of work, our trial court system would break
down if the court had to stop and independently research every
point of law on which counsel appear to agree or, at least, not to
disagree. The situation here is especially egregious because the
district court explicitly asked whether punitive damages were
available and gave both parties an opportunity to respond.
Further, to let this award stand would contravene
Congress's intent as expressed in the IDEA. In choosing not to
authorize tort-like monetary damages or punitive damages in cases
under the IDEA, Congress made a balanced judgment that such damages
would be an unjustified remedy for this statutorily created cause
of action. No doubt Congress had in mind that public elementary
and secondary education have access to only limited resources and
that a sizeable damages award would divert resources to litigants
and away from direct expenditure on education. In this case, the
public interest in not sustaining the award outweighs the public
interest in a smoothly functioning judicial system, which generally
requires parties to state their defenses or lose them.
Defendants should take little comfort in this outcome.
A continuing pattern of poor advocacy by the Commonwealth in IDEA
cases could lead to the balance tipping the other way in future

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Plaintiffs styled their motion as a "Request for 27
Declaratory Relief"; nevertheless, the nature of the relief sought
and granted went beyond a mere declaration of rights.
-47-
cases. One understands the palpable frustration of the trial judge.
As to the monetary relief authorized by law, we cannot
know whether the jury would have awarded any damages to plaintiffs
had defendants not been precluded from presenting evidence as a
result of the default order. Perhaps defendants would have won on
liability. We leave in place the monetary relief awarded by the
jury that was available under the law and remand to the district
court for such adjustments as are appropriate.
IV.
Challenge to the Grant of Declaratory Relief
We turn to defendants' final challenge, which is to the
declaratory judgment entered by the district court, which
effectively also encompassed declaratory relief.
In their amended complaint, plaintiffs requested only
that the court "[d]eclar[e] the defendants to be in violation of
the IDEA, the Rehabilitation Act, Law 51, and the Puerto Rico
Constitution," pursuant to 28 U.S.C. § 2201, and that it grant
"further necessary and proper relief as provided for under 28
U.S.C. § 2202."
The problem arises because after the trial, in a motion,
plaintiffs asked for more extensive and specific declaratory and
injunctive relief, in the form of the following five items: 27

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(1) [T]he reinstatement of Lyssette
Cardona Díaz with respect to prospective
receipt of benefits to which she is entitled
as a physically disabled student under . . .
the Rehabilitation Act . . . and the [IDEA].
Specifically, plaintiffs request that the
defendants provide [Lyssette] with adapted
physical education, i.e., swimming, in
accordance with her special physical needs,
the reinstatement of her transportation
services, as well as the current private
school placement and psychiatric services, at
public expense. The provision of these
benefits should continue until [Lyssette]
reaches the maximum public school age. The
plaintiffs also request as ancillary relief
that the Court impose a daily accruing fine if
the defendants fail to comply with this
dictate in a timely fashion.
(2) [A] declaration of plaintiff Marta
Díaz Fonseca's compliance with the
requirements for unilateral placement by
parents of children in private schools at
public expense according to [the] IDEA, and
that therefore she is entitled to the
reimbursement of the costs of [Lyssette's]
placement . . . . Specifically, as ancillary
relief to this declaration, the plaintiffs
request that the Court order reimbursement of
$3,298.24 for school year 2003-2004; and
$1,220.00 paid as of October[] 2004 for [the]
2004-2005 school year, for a total of
$4,518.24 to be reimbursed by defendant
Department of Education.
(3) [A] declaration that the
defendants' system of hiring administrative
law judges under the auspices of the
Department of Education is illegal and
violative of the pertinent provisions of the
[IDEA], which requires that said judges not be
employees of a regulated body and instead be
independent. Plaintiffs request that this
Court set reasonable terms and timelines for
the defendants to come into compliance with
applicable law.

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(4) [A] declaration that the
defendants' system of parental involvement in
the IEP process and their system of keeping
minutes and maintaining appropriate, complete
administrative records violates the [IDEA].
The plaintiffs also request as ancillary
relief that the Court impose a daily accruing
fine if the defendants fail to comply with
this these [sic] requirements henceforth in a
timely fashion.
(5) [A] declaration that the
defendants' system of provision of physical
therapy without the referral or prescription
of a medical doctor violates Puerto Rico Law,
[P.R. Laws Ann. tit. 20, § 241(2)]. The
plaintiffs also request as ancillary relief
that the Court impose a daily accruing fine if
the defendants fail to comply with this these
[sic] requirements henceforth in a timely
fashion.
Over defendants' objections, the district court summarily
granted on January 3, 2005 the entirety of plaintiffs' motion and
gave defendants thirty days to comply with the declaratory judgment
order. The court then denied on February 7, 2005 defendants'
motion to reconsider, alter, or amend that order. The court backed
up its order with threats of contempt and monetary sanctions for
non-compliance.
We agree with defendants that the district court abused
its discretion in granting the order and reverse and vacate the
declaratory judgment in its entirety.
A. The Relevant Law
"The Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202
. . . , empowers a federal court to grant declaratory relief in a

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-50-
case of actual controversy." Ernst & Young v. Depositors Econ.
Protection Corp., 45 F.3d 530, 534 (1st Cir. 1995). The Act
"neither imposes an unflagging duty upon the courts to decide
declaratory judgment actions nor grants an entitlement to litigants
to demand declaratory remedies." El Dia, Inc. v. Hernandez Colon,
963 F.2d 488, 493 (1st Cir. 1992). "Consequently, federal courts
retain substantial discretion in deciding whether to grant
declaratory relief." Ernst & Young, 45 F.3d at 534.
Our review of the district court's exercise of its
decision to grant declaratory relief "is conducted under a standard
slightly more rigorous than abuse of discretion." Nat'l R.R.
Passenger Corp. v. Providence & Worcester R.R. Co., 798 F.2d 8, 10
(1st Cir. 1986). "This approach requires that we attentively
digest the facts and the district court's stated reasons for
granting . . . declaratory relief." El Dia, Inc., 963 F.2d at 492.
Ultimately, "we cede some deference to the trier, especially as to
findings of fact, but we will not hesitate to act upon our
independent judgment if it appears that a mistake has been made."
Id.
Some of the declaratory relief is particular to
plaintiffs. Much of it is far broader and intended to effectuate
what is essentially class-wide relief. This case has never been
styled as a class action, no class has ever been certified, and
there is no evidence on which such broad relief can be justified.

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Further, the request for these specific items of declaratory relief
was made at the last minute, and defendants were not on notice
during the trial that such relief would be sought. From these
facts alone, the declaratory relief must be vacated. Still, we go
on to deal with the other problems with each portion of the order.
B. Items 1 and 2
We begin with the first two items of relief set forth in
the declaratory judgment order. The first item requires defendants
to provide Lyssette with an array of benefits to which she claims
to be entitled under the IDEA and the Rehabilitation Act through
maximum school age and at public expense. The second declaration
is that Díaz was fully compliant with the IDEA when she
unilaterally enrolled Lyssette in private school and is thus
entitled to reimbursement of educational expenses totaling
$4518.24, pursuant to 20 U.S.C. § 1412(a)(10)(C)(ii).
As to the first item of declaratory relief, defendants
reiterate their objection that plaintiffs are at most entitled to
reimbursement of expenses, not to prospective relief under the IDEA
and the Rehabilitation Act. Plaintiffs do not respond to
defendants' argument; instead, they rehash the ways in which
defendants violated plaintiffs' procedural rights under the IDEA.
We have already explained why plaintiffs are entitled only to
reimbursement for actual expenses incurred, not anticipated

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Although the amended complaint did seek "the cost of 28
appropriate remedial services, including educational services,"
plaintiffs do not characterize the prospective relief requested
here as compensatory education. Even if they were to have so
characterized their claim, their arguments justifying such relief
on the basis of defendants' procedural violations of the IDEA would
nonetheless be off the mark, as this court has "recognize[d] that
compensatory education is not an appropriate remedy for a purely
procedural violation of the IDEA." Me. Sch. Admin. Dist. No. 35 v.
Mr. R., 321 F.3d 9, 19 (1st Cir. 2003).
-52-
expenditures for services for which plaintiffs have yet to pay.28
Cf. Emery v. Roanoke City Sch. Bd., 432 F.3d 294, 299 (4th Cir.
2005) (holding that "[s]tanding doctrine requires that
reimbursement [under the IDEA] should flow only to those who
actually . . . incurred the expense and suffered the subsequent
monetary injury" and therefore that student lacked standing to seek
reimbursement, where his father's insurance covered the expenses
and "he suffered no out-of-pocket loss himself").
As to the second item of declaratory relief, defendants
argue that it impermissibly duplicated relief that was already
granted by the jury. Plaintiffs again do not respond to
defendants' argument; they reiterate only that the declaration is
warranted in light of the record. We agree with defendants that
the declaration is redundant and that the ancillary monetary relief
amounts to impermissible double recovery. Cf. Ponce v. Ashford
Presbyterian Cmty. Hosp., 238 F.3d 20, 22, 25 (1st Cir. 2001)
(declining to consider the sufficiency of the evidence in a case in
which "the jury's award [was] redundant with plaintiffs' prior

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settlement and hence constitute[d] an impermissible
double-recovery").
Nor is this item of relief any less redundant in light of
the outcome of this appeal. Although we reversed and vacated all
other compensatory damages, we let stand the award of reimbursement
for the educational expenses Díaz actually incurred, including
tuition for the 2003-2004 and 2004-2005 school years. While "[t]he
existence of another adequate remedy does not preclude a judgment
for declaratory relief in cases where it is appropriate," Fed. R.
Civ. P. 57, plaintiffs are not entitled to use the declaratory
judgment device as an instrument to double their recovery, in the
absence of any authority allowing for double damages. See, e.g.,
Pate v. Nat'l Fund Raising Consultants, Inc., 20 F.3d 341, 345-46
(8th Cir. 1994) (reversing declaratory judgment on the ground that
it was "an impermissible 'double recovery' because the court
already entered judgment on a jury verdict for actual damages").
We thus reverse and vacate the first and second items in the
declaratory judgment order.
C. Items 3 and 4
The next two declarations are that defendants' systems of
(1) hiring ALJs and (2) "parental involvement in the IEP process
and . . . keeping minutes and maintaining appropriate, complete
administrative records" are in violation of the IDEA. Defendants'
core objection is that these declarations, in denouncing the whole

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-54-
system of special education, go beyond the bounds of the complaint
and the evidence in this case. We agree.
These declarations have potentially far-reaching effects
on the special education system in Puerto Rico, as well as on the
administrative law system there and beyond. The Supreme Court has
"cautioned against declaratory judgments on issues of public
moment, even falling short of constitutionality, in speculative
situations." Pub. Affairs Assocs., Inc. v. Rickover, 369 U.S. 111,
112 (1962) (per curiam) (citing Eccles v. Peoples Bank, 333 U.S.
426, 432 (1948)); see also Ernst & Young, 45 F.3d at 535 (noting
that a court's "discretion to grant declaratory relief is to be
exercised with great circumspection when matters of public moment
are involved"). Here, the declarations do not meet the test that
"the need [for such pronouncements be] clear, not remote or
speculative." El Dia, Inc., 963 F.2d at 494 (quoting Wash. Pub.
Power Supply Sys. v. Pac. Nw. Power Co., 332 F.2d 87, 88 (9th Cir.
1964)); see also Eccles, 333 U.S. at 431. Further, the
declarations violate the usual rule that the scope of declaratory
relief cannot exceed the issues raised by the pleadings and
supported by the evidence. See 10B Wright et al., Federal Practice
and Procedure § 2768, at 669 (3d ed. 1998).
1. Item 3
The declaration that defendants' system for hiring ALJs
violates the IDEA exceeds the scope of the allegations in the

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Aponte's testimony was unclear as to which DOE officials 29
convened these meetings. She stated that "[e]ither Iris Rivera or
from the legal department, the secretary, . . . would call the"
meetings. Rivera, Aponte later explained, was "in administrative
remedies," though it is not clear what Rivera's position was in
-55-
amended complaint, as well as the evidence presented at trial. The
amended complaint alleged only the following with respect to the
administrative proceedings: that Díaz's administrative complaint
"was left aside without resolution in excess of the 45 days
established for those proceedings" and that "plaintiffs were denied
a fair administrative hearing conducted by an impartial hearing
officer." The amended complaint made no mention of the system of
hiring ALJs; nor did it state any connection between that system
and the DOE's alleged failure to provide plaintiffs with a fair and
timely resolution of their claims before the agency.
The evidence presented at trial was similarly
inconclusive. Plaintiffs called to the stand Marlene Aponte
Cabrera, a former ALJ with the DOE who had been terminated after a
half-year of service. Aponte had no direct involvement in
plaintiffs' administrative proceedings, but was allowed to testify
to, in the district court's words, "the way they handled things
there, at the [DOE]." Over defendants' hearsay and relevance
objections, plaintiffs elicited testimony from Aponte that she
personally did not feel independent in her judgments; that she "was
called upon some of [her] decisions"; and that "there were
meetings," convened by certain DOE officials, in which her 29

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that department. It is also not obvious whether "the secretary"
refers to Rey, the Secretary of Education, or to a secretary in the
legal department.
Aponte testified that she "was asked, in front of the 30
other judges, by Ms. Rosario that -- what was I thinking to put
such a steep penalty on the Department [by assessing a daily fine
against the DOE in one case]? It wasn't -- those weren't the exact
words that she told me, but she told me: What happened . . . that
made you take that position [in that case]?"
As to the other case, Aponte testified that "they told me
I couldn't do that, that wasn't the way to do it, because that
would affect the way they operated, because I mentioned a specific
account number in my decision." It is not clear from the context
what it was precisely that Aponte did.
Defendants attempted to impeach Aponte by eliciting from 31
her testimony designed to show that she was actually terminated
because she represented a party as an attorney in a suit against
the DOE while she was serving as an ALJ, and that she held a grudge
against the DOE because of her termination.
-56-
"decision[s] and [those] of other judges [were] discussed." Aponte
also testified that less than twenty-four hours after a meeting in
which Sonia Rosario, head of the special education section of the
DOE, questioned Aponte about two of her recent decisions, her 30
contract with the DOE was rescinded.31
Aponte's testimony, even if true, does not support a
broad declaration pronouncing the entire system of hiring ALJs in
violation of the IDEA. Other than confirming that she signed a
written contract with the DOE, Aponte did not even testify about
the DOE's hiring practices for hearing officers.
Plaintiffs rely primarily on what they allege are the
terms of a written contract of employment between the DOE and
hearing officers to argue that the declaration was proper. The

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Plaintiffs have not directed us to any provision in the 32
IDEA that requires the keeping of minutes as a matter of course.
At trial, plaintiffs' counsel asked Díaz whether the keeping of
minutes was required by law. She replied: "I require it."
-57-
contract itself was not admitted into evidence during Aponte's
testimony; the record citations plaintiffs provide are not to the
contract or to any document that would support their allegations;
and, to the extent that the contract is buried somewhere within the
administrative record and the fifteen volumes of appendices the
parties have submitted to this court, it is plaintiffs'
responsibility to direct the court's attention to it. Since the
third item of declaratory relief is devoid of evidentiary support,
the district court abused its discretion in granting it.
2. Item 4
For related reasons, the district court abused its
discretion in entering the fourth item of declaratory relief, which
declares Puerto Rico's systems of "parental involvement in the IEP
process[,] . . . keeping minutes[,] and maintaining appropriate,
complete administrative records" in violation of the IDEA. The
jury verdict established that defendants failed in this case to
involve the parent in the IEP process and to maintain complete
administrative records. The amended complaint does not allege, 32
and the evidence at trial did not show, that the failures are
systemic. See St. Paul Fire & Marine Ins. Co. v. Lawson Bros. Iron
Works, 428 F.2d 929, 931 (10th Cir. 1970) ("The judgment in a suit

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-58-
for declaratory judgment must be responsive to the pleadings and
issues presented[,] and . . . a judgment which goes beyond the
issues presented constitutes an advisory opinion upon a
hypothetical basis, which the court cannot give." (citing Bus.
Men's Assurance Co. v. Sainsbury, 110 F.2d 995 (10th Cir. 1940))).
Plaintiffs represent no one but themselves, and they are not
entitled to relief that goes beyond the scope of what is necessary
to remedy the harms caused to them.
D. Item 5
The fifth and final item of declaratory relief states
that "defendants' system of provision of physical therapy without
the referral or prescription of a medical doctor violates Puerto
Rico law." See P.R. Laws Ann. tit. 20, § 241(2) (defining a
physical therapist as "[a] professional . . . who applies
physiotherapy or physical therapy following the diagnosis and
prescription or the referral of a physician"). The item goes
beyond a mere declaration to require defendants to come into
compliance with Puerto Rico law, "impos[ing] a daily accruing fine
. . . [for] fail[ure] to comply . . . in a timely fashion."
Apart from the lack of evidence in the record on which
any such relief could be granted, the declaration suffers from an
even more serious infirmity: it is contrary to the Eleventh
Amendment. While Ex Parte Young, 209 U.S. 123 (1908), permits
injunctive relief based on federal constitutional claims, it does

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not allow injunctive relief against state officials for violation
of state law, which is the issue here. See id. at 155-56. In this
situation, the Eleventh Amendment bar still holds, because "[a]
federal court's grant of relief against state officials on the
basis of state law, whether prospective or retroactive, does not
vindicate the supreme authority of federal law." Pennhurst, 465
U.S. at 106. As the Court noted in Pennhurst, "it is difficult to
think of a greater intrusion on state sovereignty than when a
federal court instructs state officials on how to conform their
conduct to state law." Id.
The fifth declaration plainly runs afoul of Pennhurst.
The declaration not only requires the federal court to make
pronouncements on the lawfulness of the Commonwealth and its
officials' conduct with respect to the Commonwealth's own law, but
also has the effect of permitting a federal court to direct
Commonwealth officials to comply with that law. See O'Brien v.
Mass. Bay Transp. Auth., 162 F.3d 40, 44 (1st Cir. 1998) ("It is
not the proper purview of a federal court to supervise state
officials' compliance with state law."); see also Cuesnongle v.
Ramos, 835 F.2d 1486, 1496-98 (1st Cir. 1987).
Plaintiffs' sole response is a non sequitur. They argue
that "medical evaluations are available under" the IDEA.
Nevertheless, the relief sought is still under state law. And
there is no reference to medical evaluations under 20 U.S.C.

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In their reply briefs, defendants requested compensation 33
from plaintiffs for the cost of translating certain documents and
sought sanctions against plaintiffs for their litigation conduct.
We deny both of these belated requests.
-60-
§ 1401(22), the section of the IDEA to which they cite. That
section defines the term "outlying area" for the purpose of the
IDEA.
V.
We affirm the district court's default sanction against
defendants. We reverse and vacate the punitive and compensatory
damages awards against Rey and Ríos in their personal capacities
and order dismissal of those claims. We also reverse and vacate
the compensatory damages award against the Commonwealth defendants,
with the exception of the award of reimbursement for educational
expenses of tuition, transportation, and psychological services
that Díaz has actually incurred during the 2003-2006 school years,
and remand to the district court for the calculation of the amount
of the reimbursement, for which only the Commonwealth defendants
are liable. The district court may reopen the record and take
evidence for the limited purpose of determining the appropriate
amount of the reimbursement. Finally, we reverse and vacate the
declaratory judgment, and order dismissal of those claims.
No costs are allowed.33

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