Brett Merkey and Young Socialist Alliance, Plaintiffs-appellants, v. the Board of Regents of the State of Florida, Etc., et al.,defendants-appellees, 493 F.2d 790 (5th Cir. 1974)

This appeal was taken from an opinion and order in which the district court upheld the right of Florida State University (FSU), a member of the state-supported university system of the State of Florida, to refuse recognition as a student organization to the Young Socialist Alliance (YSA). Merkey v. Board of Regents, N.D. Fla. 1972, 344 F. Supp. 1296. Appellant, Brett Merkey, and one other, Jack Lieberman, filed a petition for recognition on behalf of YSA in March of 1970. That petition was denied on the basis of a determination by Chairman Kibler of the Board of Regents, the governing body of the university system,¹  that YSA, because of its dedication to the principle of revolution, had no place on a college campus and would not be entitled to official recognition on campuses of state universities in Florida.

Suit was filed in the district court challenging this denial on First, Fifth, and Fourteenth Amendment grounds. Though the suit was initially filed as a class action on behalf of all groups of students required to seek official recognition as student organizations in state-supported schools, the district court denied class standing on grounds (1) that the plaintiff Merkey was not a student at the time that the suit was filed and hence not a member of the class he purported to represent, and (2) that each group applying for recognition would have to be considered on its individual merits and would thus pose differing questions of fact inappropriate to class actions. The denial of class standing is not challenged on this appeal.

During oral argument it was agreed by counsel in response to a question from the bench that neither the appellant, Merkey, nor his co-applicant, Lieberman, were students at FSU. As non-students they can have no interest in whether or not any student organization is allowed recognition on university campuses of Florida. Hence, Merkey²  is beyond the impact of any decision that this Court could render on this appeal. No present FSU student is shown by the record to seek recognition for YSA as an official student organization. In these circumstances and absent any appeal from the denial below of class action status, the appeal is moot. We therefore do not consider the merits. North Carolina v. Rice, 1971, 404 U.S. 244, 92 S. Ct. 402, 30 L. Ed. 2d 413. The Court noted in Rice:

'Early in its history, this Court held that it had no power to issue advisory opinions, and it has frequently repeated that federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them. The be cognizable in a federal court, a suit '. . . must be a real and substantial controversy admitting of specific relief through a decree of conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.' 404 U.S. at 246, 92 S. Ct. at 404, 30 L. Ed. 2d at 415-416.

Cf. United States Servicemen's Fund et al. v. Killeen Independent School District et al., 5 Cir. 1974, 489 F.2d 693, recently dismissed as moot by this Court.

So that the district court judgment will not stand as a barrier to reapplication by students who might wish to seek recognition of YSA, or engender any other precedential consequences, it is vacated and this cause is remanded with directions that it be dismissed as moot. United States v. Munsingwear, 1950, 340 U.S. 36, 71 S. Ct. 104, 95 L. Ed. 36; National Lawyers Guild v. Board of Regents, 5 Cir. 1974, 490 F.2d 97; New Left Education Project v. Board of Regents, 5 Cir. 1973, 472 F.2d 218.

Vacated and remanded.

GOLDBERG, Circuit Judge (dissenting):

Abandoning the sometimes turbulent but relatively well-charted waters of justiciability, the majority opinion in this case plunges into murky new depths of judicial abdication. Because I am unwilling to accompany my Brothers on this dangerous and unwise journey, I respectfully dissent.

In response to defendants-appellees' initial challenge to plaintiff-appellant Merkey's standing, the trial court held that Merkey 'possessed the requisite interest in the outcome of this litigation as a member of Young Socialist Alliance so as to have a justiciable interest in its outcome.' Merkey v. Board of Regents, N.D. Fla. 1972, 344 F. Supp. 1296, 1303 Appellees have not challenged that holding on appeal, and I think it is clearly correct. As a member of YSA, Merkey has certainly alleged 'that the challenged action has caused him injury in fact . . ..' Association of Data Processing Service Organizations v. Camp, 1970, 397 U.S. 150, 152, 90 S. Ct. 827, 829, 25 L. Ed. 2d 184, 187.

The Supreme Court in Data Processing emphasized that apart from the 'case' or 'controversy' test, the question of standing concerns 'the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected . . . by the statute or constitutional stitutional guarantee in question.' 397 U.S. at 153, 90 S. Ct. at 830, 25 L. Ed. 2d at 188. The Court also recognized that standing may stem from an injury to noneconomic values, such as those arising from the First Amendment. 397 U.S. at 154, 90 S. Ct. at 830, 25 L. Ed. 2d at 188.

Merkey has alleged that the action of the appellees in refusing to recognize the YSA as a campus organization denies the plaintiffs, including the organization itself, certain First Amendment rights as well as rights of procedural due process and equal protection of the law. Although the YSA has both student and non-student members, the action of defendants-appellees in denying recognition to the YSA was not based on the fact that the group has some non-student members. Merkey-- who as a former student and employee of the university is certainly no officious, disinterested interloper-- pursues this litigation as a member of the YSA, on its behalf.¹  The constitutional values he seeks to vindicate, especially freedom of speech and association, are shared by all members of the group, including the students. Proceeding as he is on behalf of the YSA, Merkey has a sufficient stake in the outcome of the controversy 'to ensure that 'the dispute sought to be adjudicated will be preserved in an adversary context and in a form historically viewed as capable of judicial resolution.' Flast v. Cohen, 392 U.S. 83, 101, 88 S. Ct. 1942, 1953, 20 L. Ed. 2d 947, 962.' Sierra Club v. Morton, 1972, 405 U.S. 727, 732, 92 S. Ct. 1361, 1364, 31 L. Ed. 2d 636, 641.

If, as I believe, the district court's holding on the issue of Merkey's standing is correct, I cannot understand the reasoning that leads my Brothers to conclude that the case is moot. 'An issue becomes moot and hence no longer justiciable where as a result of intervening circumstances there are no longer adverse parties with sufficient legal interests to maintain the litigation.' Hollon v. Mathis Independent School District, 5 Cir. 1974, 491 F.2d 92, 93, citing 6A Moore's Federal Practice P57.13 at 57-128 (2d ed. 1973). The exact contours of the mootness doctrine may sometimes be shrouded in fog, but it takes no special lighthouse to recognize that in the instant case no intervening circumstances have reduced the adverse position of the parties or depreciated their legal interests in the litigation. The case stands in exactly the same posture today as it did the day it was filed.

Today, as then, Merkey is a member of the YSA, and a former employee and student at the university.²  Today, as then, the YSA has student members, seeks recognition as a campus organization, and has been denied that recognition. There has been no subsequent remedial action. There has been no change in the procedures followed, and most significantly, there has been no change in the decision denying recognition to YSA. Under any interpretation of the words, there remains a 'subject matter on which the judgment of this Court could operate.' St. Pierre v. United States, 1943, 319 U.S. 41, 42, 63 S. Ct. 910, 911, 87 L. Ed. 1199, 1201; Troy State University v. Dickey, 5 Cir. 1968, 402 F.2d 515, 516.³ 

Neither the majority opinion nor my own study of the record in this case convinces me that there has been any fundamental change in the 'particularized . . . fact situation from which this suit arose.' United States Servicemen's Fund v. Killeen Independent School District, 5 Cir. 1974, 489 F.2d 693, 694. Nor have events put these arguments to rest. Doremus v. Board of Education, 1952, 342 U.S. 429, 72 S. Ct. 394, 396, 96 L. Ed. 475. For all I can determine, there continues to exist 'a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.' North Carolina v. Rice, 1971, 404 U.S. 244, 246, 92 S. Ct. 402, 404, 30 L. Ed. 2d 413, 415-416, citing Aetna Life Insurance Co. v. Haworth, 1937, 300 U.S. 227, 240-241, 57 S. Ct. 461, 81 L. Ed. 617. I would, therefore, review the decision of the trial court on the merits.

Mootness is a jurisdictional precept, founded on the requirement of Article III of the Constitution that predicates the exercise of federal judicial power on the existence of a case or controversy. North Carolina v. Rice, supra. In Killeen Independent School District, supra, and National Lawyers Guild v. Board of Regents, 5 Cir. 1974, 490 F.2d 97, this Court went to the nethermost reaches of legitimate non-justiciability. Today the Court passes the last milepost of mootness as a constitutional command, and makes it what it was most certainly never meant to be-- a haven for indecision.