College Standard Magazine v. SUNY Albany, No. 07-0891 (2d Cir. 2010)
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07-0891-cv College Standard Magazine v. SUNY Albany 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2008 4 (Argued: December 22, 2008 Decided: July 1, 2010) 5 6 7 ------------------------------------- 8 9 COLLEGE STANDARD MAGAZINE, JEFFREY SCOTT BAREA, and JULIEN A.M. STARR, 10 Plaintiffs-Appellees, 11 - v - 12 13 STUDENT ASSOCIATION OF THE STATE UNIVERSITY OF NEW YORK AT ALBANY,* 14 Defendant-Appellant. 15 ------------------------------------- 16 17 Docket No. 07-0891-cv Before: NEWMAN, CALABRESI, and SACK, Circuit Judges. Calabresi concurs in a separate opinion. Judge 18 Appeal from a judgment of the United States District 19 Court for the Northern District of New York (Thomas J. McAvoy, 20 Judge). 21 the plaintiffs' facial challenge under the First Amendment to a 22 policy pursuant to which the defendant distributed funds to 23 student groups. 24 has been repealed and the plaintiffs have stipulated to having 25 summary judgment entered against them on their as-applied * The district court granted summary judgment upholding We conclude that because the challenged policy The State University of New York at Albany, named as a defendant in the Verified Complaint, was voluntarily dismissed while this case was pending in the district court. 1 challenge, the case is moot, and we therefore lack jurisdiction 2 to resolve the appeal. 3 Appeal dismissed; judgment vacated. 4 5 6 LEWIS B. OLIVER, JR., Oliver & Oliver (Gideon O. Oliver, of counsel), Albany, NY, for Appellant. 7 8 TOM MARCELLE, Albany, NY, for Appellees. 9 Per Curiam: 10 Defendant Student Association (the "SA") of the State 11 University of New York at Albany ("SUNY-Albany") appeals from a 12 decision of the United States District Court for the Northern 13 District of New York granting summary judgment in favor of 14 plaintiffs College Standard Magazine ("CSM"), a campus 15 organization that publishes a politically conservative newspaper, 16 and its founders, Jeffrey Barea and Julien Starr, on their 17 challenge under the First Amendment to a policy pursuant to which 18 the SA distributed funds comprising the proceeds of a mandatory 19 student activity fee to student groups. 20 concluded that the policy was facially unconstitutional because 21 it vested in the SA "unbridled discretion" to decide how to 22 distribute the funds, thereby presenting an impermissible risk of 23 viewpoint discrimination, and because unwritten guidelines 24 allegedly employed by the SA in making funding decisions 25 improperly implicated the viewpoint of putative recipients. 26 27 The district court The plaintiffs were denied funding under the challenged policy in February of 2003. They initially challenged the policy 2 1 both facially and as-applied. 2 their favor on the facial challenge, the plaintiffs stipulated to 3 the entry of summary judgment against them on the as-applied 4 challenge from which they cannot and have not appealed. 5 plaintiffs have conceded, for present purposes, that they 6 suffered no harm from the denial of funding to their organization 7 under the challenged policy. 8 9 After the district court ruled in Thus the This appeal therefore concerns only the plaintiffs' facial challenge to the policy. But the funding policy 10 challenged by the plaintiffs is no longer in place at SUNY- 11 Albany. 12 include regulations on funding that explicitly require viewpoint 13 neutrality. 14 does not challenge the new funding policy, and there is no 15 indication that the former, challenged funding policy will be 16 reinstated. 17 The SA amended its constitution in the Spring of 2003 to The plaintiffs have made clear that this lawsuit We are thus asked to consider the constitutionality of 18 a funding policy that is no longer in effect, and that is not 19 alleged to have caused the plaintiffs harm when it was in effect. 20 This we cannot do. 21 controversies by a judgment which can be carried into effect, and 22 not to give opinions upon moot questions or abstract 23 propositions, or to declare principles of law which cannot affect 24 the matter in issue in the case before [us]." We are restricted to deciding "actual 3 Local No. 8-6, 1 Oil, Chem. and Atomic Workers Int'l Union, AFL-CIO v. Missouri, 2 361 U.S. 363, 367 (1960) (internal quotation marks omitted). 3 There is no judgment we could issue here that could be 4 effective. Even if we could enjoin the challenged policy now 5 that it has been repealed, that is not the remedy the plaintiffs 6 are currently seeking. 7 that "with regard to the claim in the complaint that the 8 defendant Student Association's policies for allocating mandatory 9 student activity fee money to recognized student groups in effect In their stipulation, they have agreed 10 on February 14, 2003 were unconstitutional on [their] face, the 11 plaintiffs are entitled to an award of nominal damages in the 12 amount of one dollar ($1.00) upon the [District] Court's 13 determination set forth in the transcript of the Court's bench 14 Decision." 15 Standard Magazine v. Student Ass'n of the State Univ. of N.Y. at 16 Albany, No. 03 Civ. 0505 (N.D.N.Y. Mar. 30, 2005), Doc. No. 107 17 (Feb. 2, 2007). 18 plaintiffs have not cross-appealed, similarly reflects that the 19 parties stipulated to an amount of damages in the total sum of 20 $1.00, without any mention of an injunction. 21 order damages for any harm the policy inflicted on the plaintiffs 22 because the as-applied challenge has been conceded. 23 declaration that the policy was unconstitutional would be 24 strictly advisory. 25 ("The real value of the judicial pronouncement - what makes it a See Stipulation of Settlement and Order, College The district court's judgment, from which the And we could not Any Cf. Hewitt v. Helms, 482 U.S. 755, 761 (1987) 4 1 proper judicial resolution of a 'case or controversy' rather than 2 an advisory opinion - is in the settling of some dispute which 3 affects the behavior of the defendant towards the plaintiff.") 4 (emphasis in original). 5 In light of the repeal of the challenged policy and the 6 concession as to the as-applied challenge, we cannot issue a 7 decision that would confer any relief to the plaintiffs and 8 therefore lack jurisdiction over this appeal. 9 of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) See, e.g., Church 10 ("appeal must be dismissed" as moot where court cannot grant 11 "'any effectual relief whatsoever'" (quoting Mills v. Green, 159 12 U.S. 651, 653 (1895)); see also Ky. Right to Life, Inc. v. Terry, 13 108 F.3d 637, 645 (6th Cir. 1997) (referring to "general rule 14 that legislative repeal of a statute renders a case moot"); cf. 15 City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289 16 (1982) (upholding justiciability of challenge to practice that 17 City had voluntarily ceased but planned to reinstate). 18 The parties' failure to raise in their briefs the 19 question of whether this appeal is moot for the foregoing reasons 20 does not allow us to proceed despite the absence of a live case 21 or controversy. 22 the presence or absence of subject matter jurisdiction sua 23 sponte." 24 also, e.g., Muhammad v. City of New York Dep't of Corr., 126 F.3d "[W]e have an independent obligation to consider Joseph v. Leavitt, 465 F.3d 87, 89 (2d Cir. 2006); see 5 1 119, 122-23 (2d Cir. 1997) (mootness is an issue of subject 2 matter jurisdiction). 3 For these reasons, the appeal is dismissed as moot and 4 the judgment of the district court is vacated.1 5 established that, when a matter becomes moot on appeal, federal 6 appellate courts will generally vacate the lower court's judgment 7 except where actions attributable to one of the parties rendered 8 the appeal moot . . . ." 9 Cir. 2001) (internal quotation marks omitted). "It is well- Catanzano v. Wing, 277 F.3d 99, 108 (2d See United States 10 v. Munsingwear, Inc., 340 U.S. 36, 39-40 (1950); see also Van Wie 11 v. Pataki, 267 F.3d 109, 115 (2d Cir. 2001) (explaining that 12 vacatur "avoids giving preclusive effect to a judgment never 13 reviewed by an appellate court" (internal quotation marks 14 omitted)). 15 Dist. of City of Watervliet, 260 F.3d 114, 122 (2d Cir. 2001) 16 (noting exception to general rule of vacatur where "appellant has 17 caused the mootness").2 Cf. Russman v. Bd. of Educ. of Enlarged City Sch. 1 Because we vacate the judgment of the district court on the basis of the mootness of the appeal, we need not determine whether this case was moot while it was pending before the district court, which it may have been. See concurring opinion of Calabresi, J. If it was, of course, we would also be required to vacate the district court's decision for that independent reason. 2 The actions of the appellant SA did not cause the mootness. The challenged policy had already been repealed before the district court ruled on the facial challenge. Following that ruling, the parties stipulated to the entry of summary judgment against the plaintiffs on the as-applied challenge, thus effectively agreeing that the plaintiffs had suffered no harm from the policy. Cf. Russman, 260 F.3d at 122 ("[W]hen the 6 1 2 CONCLUSION For the foregoing reasons, the appeal is dismissed for 3 want of jurisdiction, and the district court judgment is vacated. 4 The case is remanded to the district court and the court is 5 directed to dismiss the Verified Complaint as moot. appellee has caused the case to become moot, we vacate the district court's judgment to prevent the appellee from insulating a favorable decision from appellate review."). 7 1 CALABRESI, Circuit Judge, concurring: I agree with everything substantive in the per curiam opinion 1 and join it in full. I 2 3 add a few lines because I think it is worthwhile to point out that this case was in fact 4 moot at the district court level. 5 In Spring 2003, the defendant Student Association abolished the challenged 6 funding policy. In September 2005, the district court granted the Plaintiffs summary 7 judgment motion as to liability. In October 2006, the parties entered into the stipulation 8 that we have held caused this case to become moot. Then, in February 2007, final 9 judgment was entered, and the Student Association timely appealed. 10 The event which led us to find that this case is moot happened between the district 11 court s grant of summary judgment and the entry of final judgment below. I write to 12 underscore that even after summary judgment has been granted, if, before the entry of 13 final judgment, something occurs that causes a case to cease to be an Article III case or 14 controversy, that action becomes moot and should be dismissed forthwith. This is so 15 because the case-or-controversy requirement subsists through all stages of federal 16 judicial proceedings, Spencer v. Kemna, 523 U.S. 1, 7 (1998) (internal quotation marks 17 omitted); see also Altman v. Bedford Cent. Sch. Dist., 245 F.3d 49, 70 (2d Cir. 2001). 18 Moreover, the fact that the case was moot before the district court entered final 19 judgment forecloses any possible claim by the Plaintiffs for attorneys fees under 42 20 U.S.C. § 1988(b). Whether [a plaintiff] can be deemed a prevailing party in the 21 District Court, even though its judgment was mooted after being rendered but before the 22 losing party could challenge its validity on appeal, is a question of some difficulty. 1 I would, however, for the sake of Latin, substitute [nostra] for sua in the quotation from Joseph v. Leavitt, 465 F.3d 87, 89 (2d Cir. 2006), ante, at 5. 1 Lewis v. Continental Bank Corp., 494 U.S. 472, 483 (1990); see also Diffenderfer v. 2 Gomez-Colon, 587 F.3d 445, 454 (1st Cir. 2009) (answering the question in the 3 affirmative and collecting other cases doing the same). But that question cannot arise in 4 this case. Since the judgment below is vacated on the basis of an event that mooted the 5 controversy before the [district court s] judgment issued, [the Plaintiffs were] not, at that 6 stage, . . . prevailing part[ies] as [they] must be to recover fees under § 1988. Lewis, 7 494 U.S. at 483.
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