Bumpus v. Clark, 77-2883
Citation | 702 F.2d 826 |
Decision Date | 29 March 1983 |
Docket Number | No. 77-2883,77-2883 |
Parties | Alta BUMPUS, et al., Plaintiffs-Appellants, v. Donald E. CLARK, et al., Defendants-Appellees. |
Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Michael H. Marcus, Portland, Or., for plaintiffs-appellants.
John B. Leahy, Portland, Or., for defendants-appellees.
Appeal from the United States District Court for the District of Oregon.
Before HUG, FLETCHER and FARRIS, Circuit Judges.
The petition for rehearing is denied. The opinion of this court Bumpus v. Clark, 681 F.2d 679 (9th Cir.1982), is withdrawn and the case is remanded to the district court with direction to dismiss the case as moot. Great Western Sugar Co. v. Nelson, 442 U.S. 92, 93, 99 S.Ct. 2149, 2150, 60 L.Ed.2d 735 (1979); see United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S.Ct. 104, 106, 95 L.Ed. 36 (1950). Our opinion was filed on July 16, 1982. The appellants (plaintiffs below) were all residents of Edgefield Manor, a nursing home operated by Multnomah County, Oregon. Edgefield Manor was closed by the County on April 20, 1982. All residents were removed prior to closure. The totality of the relief appellants sought was related to the threatened closure of Edgefield Manor. Both the subject matter of the action and the plaintiff class (as alleged and certified) were inextricably tied to the existence and continued operation of Edgefield Manor. No decree by the district court granting injunctive or declaratory relief can undo the closure, specify procedures for closing, or prevent the transfer of plaintiffs. Plaintiffs did not request reopening of the home. No relief requested by plaintiffs can be granted. The court is without power "to decide questions that cannot affect the rights of litigants in the case before [it]." North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971). We have no article III jurisdiction over cases in which the district court has lost the power to grant relief if the appellate court were to reverse the judgment. E.g., St. Pierre v. United States, 319 U.S. 41, 42-43, 63 S.Ct. 910, 911, 87 L.Ed. 1199 (1943); Friends of the Earth, Inc. v. Bergland, 576 F.2d 1377, 1378-79 (9th Cir.1978).
The full court has been advised of the suggestion for an en banc rehearing and no judge of the court has requested a vote on the suggestion for rehearing en banc. Fed.R.App. 35(b). The suggestion for a rehearing en banc is hereby denied.
During the months that this matter was under submission, the nursing home was closed and the surviving plaintiffs were transferred to other facilities. I agree with the majority's conclusion that "[n]o decree by the district court granting injunctive or declaratory relief can undo the closure, specify procedures for closing, or prevent the transfer of plaintiffs." In spite of this, the case is not moot....
To continue reading
Request your trial-
Chalfin v. Beverly Enterprises, Inc.
...requirements or voluntarily terminates the arrangement. See Bumpus v. Clark, 681 F.2d 679, 682 (9th Cir.1982), withdrawn as moot, 702 F.2d 826 (9th Cir.1983). Implied Right of Action The primary issue in this case and the linchpin upon which it turns, is whether a private right of action ma......
-
Harris v. James
...for receipt of federal funds which can be said to create substantive rights in Medicaid recipients."), opinion withdrawn as moot, 702 F.2d 826 (9th Cir.1983); Stewart v. Bernstein, 769 F.2d 1088, 1093 (5th Cir.1985) (citing Bumpus with approval); Cook v. Hairston, No. 90-3437, 948 F.2d 1288......
-
Clarke v. U.S.
...before issuance. Ruiz v. Estelle, 688 F.2d 266 (5th Cir.1982) (partial vacatur, limited to issue parties had settled); Bumpus v. Clark, 702 F.2d 826 (9th Cir.1983). Wright, Miller and Cooper go further. They argue that because the Supreme Court conventionally grants certiorari on moot cases......
-
Bryson v. Shumway
...for receipt of federal funds which can be said to create substantive rights in Medicaid recipients."), opinion withdrawn as moot, 702 F.2d 826 (9th Cir.1983); Stewart v. Bernstein, 769 F.2d 1088, 1093 (5th Cir.1985) (citing Bumpus with approval); Cook v. Hairston, No. 90-3437, 948 F.2d 1288......