959 F.2d 584 (5th Cir. 1992), 91-2676, Henschen v. City of Houston, Tex.

Docket Nº:91-2676
Citation:959 F.2d 584
Party Name:Robert HENSCHEN, Houston Non-Violent Action, et al., Plaintiffs-Appellants, v. CITY OF HOUSTON, TEXAS, Defendant-Appellee.
Case Date:April 30, 1992
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 584

959 F.2d 584 (5th Cir. 1992)

Robert HENSCHEN, Houston Non-Violent Action, et al.,



CITY OF HOUSTON, TEXAS, Defendant-Appellee.

No. 91-2676

United States Court of Appeals, Fifth Circuit

April 30, 1992

Page 585

Michael A. Maness, Houston, Tex., for plaintiffs-appellants.

Gilbert D. Douglas, Sr., Asst. County Atty., Paul Bibler, Jr., Houston, Tex., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before JONES, DUHE, and WIENER, Circuit Judges.

Page 586

EDITH H. JONES, Circuit Judge:

Appellants, Robert Henschen, Houston Non-Violent Action, the Reverend Jew Don Boney, and Black United Front of Houston challenge the district court's dismissal of their § 1983 complaint seeking (1) damages from the past denial of a parade permit by the City of Houston and (2) declaratory and injunctive relief against the operation of the City's ordinances regulating "parades" and "street functions." The district court held that no justiciable controversy arose from these allegations. Appellants contest this conclusion and also contend that the dismissal violated this court's mandate in a previous appeal. We affirm in part and reverse and remand in part.



For several months before the start of the seven-nation 1990 Economic Summit in Houston, appellants wrangled in and out of federal court with the City of Houston over their application for a parade permit on Sunday, July 8, the summit's opening day. The district court granted a preliminary injunction and refused to stay its order requiring the City to authorize a "street function" permit for appellants' planned march. This court stayed the district court's orders pending appeal, having been persuaded that the district court's ruling on the merits was likely wrong and that the City, burdened already by having to supply security for the President and six other heads of state, would suffer irreparable harm without such relief. 1

After this flurry of activity, the summit commenced, the appellants conducted on July 8 a march of sorts not classified as a "parade" or "street function," and the case continued in the district court. A couple months later, appellants amended their complaint to claim damages for the refusal of their July 8 parade permit and to re-assert their declaratory and injunctive challenge against the City's parade and street function ordinances. They also moved for dismissal of the City's appeal of the preliminary injunction, contending that that order had become moot after July 8. This court agreed; we remanded the case to the district court "with instructions to dismiss as moot so much of the cause as seeks injunctive relief with respect to a parade or similar permit for July 1990." This court rejected the City's weak protest that it should proceed to the merits, noting that an appeal of a preliminary injunction order carries no such obligation where the case remains pending in the court below. Marilyn T., Inc. v. Evans, 803 F.2d 1383, 1385 (5th Cir.1986).

Following dismissal of the appeal, the district court attempted to comply with this court's order by dismissing "all of the plaintiffs' claims that seek injunctive relief," while offering them the opportunity to amend their pleadings within 30 days. The pleadings were not further amended. Consequently, in early May 1991, the court determined, after a review of appellants' pleadings, that the sole case or controversy arose out of the denial of a permit for an occasion long past. The court declared that there was no case or controversy and then dismissed the entire case without prejudice.

Appellants promptly moved for reconsideration under Fed.R.Civ.P. 59, alleging two grounds of error. Appellants asserted that their claim for § 1983 compensatory damages and attorneys' fees under 42 U.S.C. § 1988 constituted a live controversy. Additionally,

Page 587

appellants pointed to their allegations in the amended complaint that, as political activists and activist organizations, they have participated in or organized numerous street demonstrations in the past and "can reasonably expect to be denied access to the streets of Houston [in the future] for free speech purposes by operation of" the city parade ordinances. Appellants did not assert that the district court's action had contravened the mandate of the Fifth Circuit.

Responding to the Rule 59 motion, the City asserted that appellants' claimed damages from the denial of a parade permit for July 8, 1990, were too insubstantial and speculative to satisfy the "case or controversy" requirement. The City also contended that appellants' request for permanent injunctive relief fell short because they...

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