Bernard C. Vun Cannon, Individually and on Behalf of Allothers Similarly Situated, Plaintiff-appellant, v. Allen F. Breed, James Stratten, C. R. Byrne, Roger C.chandler, Julio Gonzales, William L. Richey, Mrs. Paula A.tennant, and Ralph Wright, Individually and in Theirofficial Capacities As Members of the Youth Authority Board,state of California, R. N. Procunier, Individually and Inhis Official Capacity As Director of Corrections for Thestate of California, L. N. Patterson, Individually and Inhis Official Capacity As Superintendent of Deuel Vocationalinstitution, Sergeant L. A. Nelson, Correctional Officer, R.ezell, and Correctional Officer D. E. Burnett, Individuallyand in Their Official Capacities As Officers and Employeesof the Department of Corrections And/or Deuel Vocationalinstitution, Their Agents, Employees, and Successors Ininterest, Defendants-appellees, 565 F.2d 1096 (9th Cir. 1977)

Appellees' Petition for Rehearing presents nothing new; if we limited our consideration to the contentions they there made, our order would consist simply of a denial.¹  However, because of our own further research, we have now concluded that plaintiff-appellant lacks standing to maintain the action and to prosecute this appeal. Hence we are obliged to withdraw our prior opinion.

We will not reiterate in detail what was said in that opinion concerning the nature of this action and the procedural aspects of the suit in the court below; our disposition renders that unnecessary. Instead, we will briefly mention such of those matters as we now believe are material.

The fourth claim in appellant's 42 U.S.C. § 1983 civil rights complaint challenged provisions of California Penal Code § 2037 authorizing the Director of the California Youth Authority (YA) to transfer administratively Youth Authority wards to Deuel Vocational Institute (DVI). The complaint sought declaratory and injunctive relief against the operation of the statute, set forth class action allegations with respect to the § 2037 claim and requested that a three-judge district court be empanelled.

The district judge, concluding that the fourth claim failed to present a substantial federal question, dismissed it without convening a three-judge court. In addition, he ruled that because appellant had been administratively transferred from DVI before the complaint was filed, appellant "lack(ed) standing to adequately represent the class."

On appellant's interlocutory appeal, taken under 28 U.S.C. § 1292(a) (1), we concluded that when suit was commenced, appellant's status as a ward of the Youth Authority and his consequent subjection to the possibility of retransfer to DVI in the unfettered discretion of the Youth Authority posed a threat of injury sufficiently real and immediate to provide him with a personal stake in the transfer procedure and conditions at DVI, thus satisfying the case or controversy requirement of Article III.

We noted, however, that at the time of appeal, appellant was no longer in the custody of the Youth Authority. And, although the district court's finding that appellant "lacked standing" to adequately represent the class of YA wards subject to administrative transfer to DVI was not assigned as error on the appeal, we observed that the suit was brought as a class action and that the mooting out of appellant's individual claim did not bar him from continuing to litigate that claim as a representative of the class. Intervening decisions of the Supreme Court, however, indicate that we were in error with respect to the latter point. We are, of course, governed by those decisions.

As indicated, the threshold question is whether we have jurisdiction to review the district court's dismissal of an alleged class action where the individual claim of the class representative has become moot and in the absence of a proper certification of the purported class by the district court under Rule 23(c) (1), F.R.Civ.P. We conclude that the answer is "no."

In Sosna v. Iowa, 419 U.S. 393, 95 S. Ct. 553, 42 L. Ed. 2d 532 (1975), the Court held: "There must not only be a named plaintiff who has . . . a case or controversy at the time the complaint is filed, and at the time the class action is certified by the District Court pursuant to Rule 23, 11 but there must be a live controversy at the time this Court reviews the case. . . . The controversy may exist, however, between a named defendant and a member of the class represented by the named plaintiff, even though the claim of the named plaintiff has become moot." 419 U.S. at 402, 95 S. Ct. at 559. Considerable doubt, however, was cast on the inflexibility of the Sosna holding by footnote 11²  and the Court's immediate application of that footnote's principle to sustain a continuation of suit in Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975).³ 

However, in Indianapolis School Commissioners v. Jacobs, 420 U.S. 128, 95 S. Ct. 848, 43 L. Ed. 2d 74 (1975), decided shortly after Sosna and on the same day as Gerstein, the Court did not hesitate to hold the question moot even though the district court had indicated on the record that the named plaintiffs were proper representatives of the class because by the time the case reached the Court, the named plaintiffs had graduated from high school, and because the district court had not properly certified the class under Rule 23(c) (1), nor identified it under Rule 23(c) (3).

And a formidable array of post-Sosna-Jacobs decisions noted in the margin, together with quotations from their texts makes manifest the conclusion that an improperly or non-certified class cannot succeed to the adversary position formerly occupied by a no-longer-aggrieved representative plaintiff whose own claim has become moot. Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S. Ct. 1251, 47 L. Ed. 2d 444 (1976); Baxter v. Palmigiano, 425 U.S. 308, 96 S. Ct. 1551, 47 L. Ed. 2d 810 (1976); Pasadena City Board of Education v. Spangler, 427 U.S. 424, 96 S. Ct. 2697, 49 L. Ed. 2d 599 (1976); Kremens v. Bartley, 431 U.S. 119, 97 S. Ct. 1709, 52 L. Ed. 2d 184 (1977); East Texas Motor Freight v. Rodriguez, 431 U.S. 395, 97 S. Ct. 1891, 52 L. Ed. 2d 453 (1977).⁴ 

It is equally apparent that the rule is of constitutional rather than discretionary dimension: in the absence of a properly certified class, the representative plaintiff whose claim has become moot is himself without a litigable grievance, and the person or persons on whose behalf he seeks to continue the litigation has or have not yet achieved jurisprudential existence. See Sosna v. Iowa, supra, 419 U.S. at 399, 95 S. Ct. 553. There being no adversary necessary for the creation of the constitutionally required case or controversy, jurisdiction is lacking.

While this may smack to some of metaphysics, recent decisions of the Court, as we parse them, require us to adopt such logic or at least compel us to reach such a result. Decisions of this and other courts of appeals accord with our views. Kuahulu v. Employers Ins. of Wausau, 557 F.2d 1334 (9th Cir. 1977); Inmates v. Sheriff Owens, 561 F.2d 560 (4th Cir. 1977); Winokur v. Bell Federal Sav. & Loan Ass'n, 560 F.2d 271 (7th Cir. 1977); Lasky v. Quinlan, 558 F.2d 1133 (2d Cir. 1977); Boyd v. Justices of Sp. Term, 546 F.2d 526 (2d Cir. 1976); Napier v. Gertrude, 542 F.2d 825 (10th Cir. 1976), cert. denied, 429 U.S. 1049, 97 S. Ct. 759, 50 L. Ed. 2d 765 (1977). Cf. Walker v. Hughes, 558 F.2d 1247 (6th Cir. 1977); but cf. Satterwhite v. City of Greenville, Texas, 557 F.2d 414 (5th Cir. 1977).⁵ 

These authorities, with the single possible exception of the Fifth Circuit, support the conclusion that we lack jurisdiction unless there are present unusual facts bringing the matter within the narrow exception countenanced by footnote 11 of Sosna and Gerstein v. Pugh. We perceive none.

Gerstein held that it was immaterial for jurisdictional purposes whether or not the district court had certified the purported class before the claim of the representative plaintiff had been mooted where the claim in issue was "distinctly 'capable of repetition, yet evading review.' " 420 U.S. at 110 n. 11, 95 S. Ct. at 861. The Court's subsequent decision in Franks v. Bowman Transportation Co., supra, contains the clear holding that in a mootness-class action context the exception embodied in the phrase "capable of repetition, yet evading review," has two distinct applications: (A) In the first, where the purported class has been properly certified by the district court prior to the time the named plaintiff has lost his representative capacity, jurisdiction in the Article III sense is present. In such cases, a court might apply the "capable of repetition, yet evading review" doctrine in its discretion to avoid review on the basis of non-constitutional policy considerations: "Thus, the 'capable of repetition, yet evading review' dimension of Sosna must be understood in the context of mootness as one of the policy rules often invoked by the Court 'to avoid passing prematurely on constitutional questions. Because (such) rules operate in "cases confessedly within (the Court's) jurisdiction" . . . they find their source in policy, rather than purely constitutional, considerations.' Flast v. Cohen, 392 U.S. 83, 97 (, 88 S. Ct. 1942, 20 L. Ed. 2d 947) . . . ." 424 U.S. at 756 n. 8, (96 S. Ct. at 1260.) (Citations omitted; bracketed material in original.)

( B) The second application occurs where, although the class is uncertified prior to the time the representative plaintiff's own claim is mooted, the matter in suit is "capable of repetition, yet evading review." In this latter situation, the Gerstein exception will be applied to sustain jurisdiction in the Article III sense only where the challenged action is inherently of such short duration that it cannot be fully litigated prior to its cessation and there is a reasonable prospect that the same complaining party will be subjected to the same action again. Weinstein v. Bradford,423 U.S. 147, 149, 96 S. Ct. 347, 46 L. Ed. 2d 350 (1975).⁶ 

There being no cognizable class here, the Gerstein exception applies to sustain jurisdiction only if the action challenged by appellant, i. e., the possibility of an ex parte administrative transfer to DVI of appellant as a Youth Authority ward, is of such an inherently short cycle that its legality cannot be fully litigated prior to the termination of YA jurisdiction over appellant and there exists a reasonable expectation that appellant will be subjected again to administrative transfer to DVI.

We need not consider whether the first criterion is met since we conclude that on the record before us there does not exist a reasonable expectation that appellant (the only complaining party in this case) will be again subjected to the same action.

The record reveals that at the time the district court entered its order dismissing the fourth claim and finding that appellant lacked standing to adequately represent the class (a finding we construe as a de facto or implicit refusal to certify the class), appellant had been paroled by the YA, had pled guilty to another state charge, and was awaiting sentencing. On the day following entry of the district court's order, appellant was discharged from YA custody following his sentencing to the Department of Correction's custody. Thus, while appellant was still technically in YA custody when the district court ruled, the possibility of retransfer to DVI was speculative. In light of the Court's decision in Preiser v. Newkirk, 422 U.S. 395, 95 S. Ct. 2330, 45 L. Ed. 2d 272 (1975), appellant did not face a "real threat of injury" from being administratively transferred to DVI as a YA ward at the time that the district court ruled; his individual claim was therefore moot. From that point onward, jurisdiction in the Article III sense was lacking.⁷ 

Our prior opinion is withdrawn; the appeal is dismissed as moot, and the matter is remanded to the district court with instructions to vacate its prior order of partial dismissal and to dismiss the fourth cause of action.⁸ 

APPEAL DISMISSED.