Fishermen's Dock Cooperative, Inc., et al., Appellants, v. Ronald H. Brown, Secretary of Commerce, Appellee, 52 F.3d 1122 (D.C. Cir. 1995)

This cause came to be heard on appeal from an order of the United States District Court for the District of Columbia, and was briefed and argued by counsel. The issues have been accorded full consideration by the Court and occasion no need for a published opinion. See D.C. Cir. Rule 36(b).

In Fishermen's Dock Cooperative, Inc. v. Ronald H. Brown, Secretary of Commerce, Civ. Action No. 93-0362 (Dec. 20, 1993), the District Court granted appellee's motion for summary judgment on the merits, and that summary judgment determination is not on appeal. Rather, appellants contend that the District Court issued an order dismissing their claim as moot and they challenge that finding. There is no doubt that the parties and the District Court Judge discussed the issue of mootness during the hearing before the trial court, but the final judgment of the District Court does not rest on that basis. The District Court stated: "plaintiffs' motion for summary judgment is denied; and ... defendant's motion for summary judgment is granted." Id. Appellants apparently rely on the last line of the District Court's order, in which it is stated that "plaintiffs' action is dismissed without prejudice." Id. In dismissing the action "without prejudice," however, the District Court could not have been dismissing the case on grounds of mootness, for if a case is moot the court has no jurisdiction to hear it and it must be dismissed with prejudice. What the District Court seemed to be doing--and appellants conceded this at oral argument--was giving appellants an opportunity to submit additional papers on the issue of mootness, which appellants never did. Accordingly, it is

ORDERED and ADJUDGED that the order of the District Court is affirmed.

The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C. Cir. Rule 41.