Clarke v. U.S., 88-5439

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Citation: 286 U.S.App.D.C. 256,915 F.2d 699
• Docket Number: No. 88-5439,88-5439
• Parties: , 59 USLW 2232, 65 Ed. Law Rep. 299 David A. CLARKE, et al., Appellees, v. UNITED STATES of America, Appellant.
• Decision Date: 02 October 1990

Page 699

915 F.2d 699 286 U.S.App.D.C. 256, 59 USLW 2232,
65 Ed. Law Rep. 299 David A. CLARKE, et al., Appellees,
v.
UNITED STATES of America, Appellant. No. 88-5439. United States Court of Appeals,
District of Columbia Circuit. Argued May 30, 1990.
Decided Oct. 2, 1990.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 88-03190).

Alfred Mollin, Atty., with whom Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., Michael Jay Singer and Jacob M. Lewis, Attys., Dept. of Justice, Washington, D.C., were on the brief, for appellant. John C. Harrison, Washington, D.C., also entered an appearance for appellant.

I. Michael Greenberger, with whom Gregory E. Mize, James R. Bird, and Richard M. Wyner, Washington, D.C. were on the brief, for appellees.

Before WALD, Chief Judge, MIKVA, EDWARDS, RUTH BADER GINSBURG, SILBERMAN, BUCKLEY, WILLIAMS, D.H. GINSBURG, SENTELLE, THOMAS, Circuit Judges, and ROBINSON, Senior Circuit Judge.

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Opinion for the Court filed by Circuit Judge WILLIAMS.

Concurring opinion filed by Circuit Judge BUCKLEY, in which Circuit Judge D.H. GINSBURG joins.

Dissenting opinion filed by Circuit Judge EDWARDS, in which Circuit Judges MIKVA and RUTH BADER GINSBURG and Senior Circuit Judge ROBINSON join.

STEPHEN F. WILLIAMS, Circuit Judge:

In Gay Rights Coalition v. Georgetown University, 536 A.2d 1, 39 (D.C.1987), the District of Columbia Court of Appeals held that the University's refusal to grant the Coalition "equal access to its 'facilities and services' " violated the District's Human Rights Act. Congress responded with Sec. 145 of the D.C. Appropriations Act of 1989, known in this litigation and in the media as the "Armstrong Amendment" after its prime mover in the Senate. Pub.L. No. 100-462, Sec. 145, 102 Stat. 2269, 2269-14 (1988). Section 145(b) provided: "None of the funds appropriated by this Act shall be obligated or expended after December 31, 1988, if on that date the District of Columbia has not adopted subsection (c) of this section." Subsection (c)--the language specified for addition to the D.C.Code--in turn read: "[I]t shall not be an unlawful discriminatory practice in the District of Columbia for any educational institution that is affiliated with a religious organization or closely associated with the tenets of a religious organization to deny, restrict, abridge, or condition ... the use of any fund, service, facility, or benefit; or the granting of any endorsement, approval, or recognition, to any person or persons that are organized for, or engaged in, promoting, encouraging, or condoning any homosexual act, lifestyle, orientation, or belief."

Instead of enacting the language, the members of the D.C. Council sued for injunctive and declaratory relief against enforcement of the funding condition. The district court found that the condition violated their First Amendment rights by coercing them to speak against their wills, and issued a declaratory judgment. Clarke v. United States, 705 F.Supp. 605 (D.D.C.1988). Having given plaintiffs relief on that claim, the court did not reach their other theories. The government appealed, and a panel of this circuit upheld the district court on September 26, 1989. Clarke v. United States, 886 F.2d 404 (D.C.Cir.1989).

Although the 1989 Appropriations Act was due to expire September 30, 1989, four days after the panel decision, the Act was extended several times as the 1990 Appropriations Act wound its way through Congress. The last extension expired on November 20, 1989, Pub.L. No. 101-154, 103 Stat. 934 (1989), and the 1990 Act became law when the President signed it the next day. Congressional Index, 101st Cong. (1989-90) (CCH) at 35,050 (H.R. 3746). The new act did not contain a funding condition; instead, Congress used its power under the District of Columbia Self-Government and Governmental Reorganization Act, Pub.L. No. 93-198, Sec. 601, 87 Stat. 774 (1973), to amend the D.C.Code directly, bypassing the D.C. Council. District of Columbia Appropriations Act, 1990, Pub.L. No. 101-168, Sec. 141, 103 Stat. 1267, 1284 (1989).

In the meantime, the United States had filed a petition for rehearing and suggestion for rehearing en banc. Once the last extension expired and the 1990 Act became law, it filed a motion suggesting that the case was moot and that the panel decision be vacated. On December 15, 1989, both the panel and the full court declined to rehear the case on the merits, but withheld the mandate. Clarke v. United States, 898 F.2d 161 (D.C.Cir.1989). The panel denied the proposed vacatur for mootness, but the full court ordered the mootness issue heard en banc.

We now decide that the issue was moot after the expiration of the last extension of the 1989 Act, and that the proper remedy is vacatur of the panel opinion and a remand to the district court with instructions to vacate its opinion and to dismiss the relevant count of the complaint as moot.

I. Mootness

A. Without regard to the doctrine's exceptions.

The mootness doctrine, deriving from Article III, limits federal courts to

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deciding "actual, ongoing controversies." Honig v. Doe, 484 U.S. 305, 317, 108 S.Ct. 592, 600-01, 98 L.Ed.2d 686 (1988). Even where litigation poses a live controversy when filed, the doctrine requires a federal court to refrain from deciding it if "events have so transpired that the decision will neither presently affect the parties' rights nor have a more-than-speculative chance of affecting them in the future." Transwestern Pipeline Co. v. FERC, 897 F.2d 570, 575 (D.C.Cir.1990); see also Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975). This limitation "subsists through all stages of federal judicial proceedings, trial and appellate." Lewis v. Continental Bank Corp., --- U.S. ----, 110 S.Ct. 1249, 1253, 108 L.Ed.2d 400 (1990).

Appellees do not claim that the Armstrong Amendment has had any residual effect on their First Amendment rights since it was superseded by the 1990 Appropriations Act. The 1989 Act appropriated funds "for the District of Columbia for the fiscal year ending September 30, 1989," Pub.L. No. 100-462, 102 Stat. at 2269, and Sec. 108 of the 1989 Act pinned down its automatic expiration with an explicit statement that "[n]o part of any appropriation contained in this Act shall remain available for obligation beyond the current fiscal year unless expressly so provided herein." ¹ Pub.L. No. 100-462, Sec. 108, 102 Stat. at 2269-8. After the 1989 Act's last extension expired, the Armstrong Amendment's funding condition ceased to have any effect.

Appellees argue, however, that the case is not moot because vacating the district court's declaratory judgment would leave open the "formal possibility of prosecution" under the Anti-Deficiency Act, which forbids "knowingly and willfully" expending government funds without authorization from Congress. Brief for Appellees at 39-40; see 31 U.S.C. Secs. 1341(a), 1342 & 1350 (1988). They rely primarily on Edgar v. MITE Corp., 457 U.S. 624, 102 S.Ct. 2629, 73 L.Ed.2d 269 (1982), in which the Court found that the possibility of "civil and criminal liability" saved the case from mootness. Id. at 630, 102 S.Ct. at 2634. The plaintiff corporation had made a tender offer in disregard of Illinois's anti-takeover law and secured an injunction against the law's enforcement, but it later withdrew the offer. The Secretary of State of Illinois, who was charged with enforcing the Illinois act, had represented to the court of appeals that he "intend[ed] to enforce the Act against MITE." Id.

Here, by contrast, there is no such threat. Quite the opposite: the government at oral argument not only stated that "no one has ever suggested that there would be [a prosecution]," but also conceded "formally for the record that the existence of a judgment during that time would be a complete and adequate defense to any prosecution."

The concession gives formality to the obvious--the nonviability of any such prosecution. Our research has failed to turn up a single prosecution under the Anti-Deficiency Act in its entire existence since 1905. 33 Stat. 1214, 1257-58, ch. 1484, Sec. 4 (1905). Moreover, the appellees would have at least two strong legal arguments should some future prosecutor try to dust it off. First, the district court's decision (and the panel affirmance) would raise a serious question whether appellees had the state of mind necessary for a violation. Second, although the MITE majority declined to resolve whether a later-vacated federal injunction would protect MITE from a state prosecution, 457 U.S. at 630, 102 S.Ct. at 2634, and Justice Stevens concluded that it could not, id. at 647-54, 102 S.Ct. at 2643-47, no federalism concerns would prevent an immunizing effect in the present case. ²

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Indeed, the few circuits faced with the question have held that a federal judgment, later reversed or found erroneous, is a defense to a federal prosecution for acts committed while the judgment was in effect. Thus in United States v. Mancuso, 139 F.2d 90 (3rd Cir.1943), the court held that a draftee who did not report for duty because a district court had enjoined enforcement of his induction order could not be prosecuted for failing to appear--despite the injunction's having been issued erroneously. And in United States v. Albertini, 830 F.2d 985 (9th Cir.1987), the court reversed a criminal conviction for acts taken in conformity with a decision of its own that was later reversed by the Supreme Court. See also United States v. Brady, 710 F.Supp. 290 (D.Colo.1989); compare United States v. Bruscantini, 761 F.2d 640, 641-42 (11th Cir.1985) (rejecting argument that reliance on stated opinion of state judge and state prosecutor was a defense to federal charge).

Of course we cannot say that the risk of an attempted prosecution is zero. Later government representatives might try to persuade a...