Deeper Life Christian Fellowship, Inc. v. Sobol

• Decision Date: 24 October 1991
• Docket Number: D,No. 53,53
• Citation: 948 F.2d 79
• Parties: 71 Ed. Law Rep. 26 DEEPER LIFE CHRISTIAN FELLOWSHIP, INC., Plaintiff-Appellant, v. Thomas SOBOL, in his official capacity as Commissioner of Education of the State of New York, Defendant-Appellee. ocket 91-7157.
• Court: U.S. Court of Appeals — Second Circuit

Page 79

948 F.2d 79

71 Ed. Law Rep. 26

DEEPER LIFE CHRISTIAN FELLOWSHIP, INC., Plaintiff-Appellant, v. Thomas SOBOL, in his official capacity as Commissioner of Education of the State of New York, Defendant-Appellee.

No. 53, Docket 91-7157.

United States Court of Appeals, Second Circuit.

Argued Aug. 27, 1991.

Decided Oct. 24, 1991.

Kevin J. McGill, New York City (Clifton Budd & DeMaria, of counsel), for plaintiff-appellant.

Gayle A. Sullivan, New York City, Asst. Atty. Gen., State of N.Y. (Robert Abrams, Atty. Gen., State of N.Y., of counsel), for defendant-appellee.

Before OAKES, Chief Judge, FEINBERG and CARDAMONE, Circuit Judges.

FEINBERG, Circuit Judge:

Plaintiff Deeper Life Christian Fellowship, Inc. (Deeper Life), a fundamentalist Christian church, appeals from the dismissal of its complaint against Thomas Sobol in his official capacity as Commissioner of Education of the State of New York, the denial of its motion for reargument and a final judgment in favor of defendant-appellee Sobol, Edward R. Korman, J., in the United States District Court for the Eastern District of New York. Appellee claims, among other things, that this appeal is moot. We agree with appellee and dismiss the appeal.

I. Background

In August 1987, Deeper Life applied for and received a permit from District 27 Community School Board (the School Board) to use the auditorium of P.S. 60 for weekly meetings on Sundays. Deeper Life explained that it needed the auditorium because its church headquarters would be undergoing renovations for six to eight months. Although the School Board granted the initial permit, it subsequently declined to renew that permit, believing that using the school for religious purposes would violate § 414 of the New York State Education Law (§ 414). Deeper Life responded by filing a complaint in the United States District Court for the Eastern District of New York against the New York City Board of Education and other local officials (the city defendants), alleging that the denial of the permit was unconstitutional.

The district court subsequently issued a preliminary injunction prohibiting the denial of future weekend use permits pending further court order. The city defendants appealed to this court. While the appeal was pending, Deeper Life filed an amended complaint and then a second amended complaint directly challenging the constitutionality of § 414 and adding Sobol as a defendant. On appeal, we considered only the original complaint and affirmed the district court's grant of the preliminary injunction. Deeper Life Christian Fellowship, Inc. v. Board of Educ. of the City of New York, 852 F.2d 676 (2d Cir.1988) (Deeper Life I ). We did so on the limited ground that there was "fair ground for litigation," and pointed out that substantial factual issues had to be resolved in the district court. Id. at 680-81.

After our opinion was issued, Deeper Life and the city defendants reached a settlement, and the district court ordered the action against the city defendants discontinued without prejudice. Thereafter, the judge dismissed the complaint against Sobol because the judge believed that our decision in Deeper Life I foreclosed any claim based on the unconstitutionality of § 414. Although Deeper Life moved to reinstate the second amended complaint against Sobol, the motion was denied and final judgment was entered in favor of Sobol. This appeal followed.

II. Discussion

Mootness

Under Article III of the Constitution, federal courts are empowered to adjudicate only actual, ongoing cases or controversies. A case in federal court must be alive at all stages of judicial proceedings, not only at the point at which a suit was originally filed. Deakins v. Monaghan, 484 U.S. 193, 199, 108 S.Ct. 523, 527, 98 L.Ed.2d 529 (1988); Steffel v. Thompson, 415 U.S. 452, 459 n. 10, 94 S.Ct. 1209, 1216 n. 10, 39 L.Ed.2d 505 (1974). If events subsequent to the filing of a lawsuit resolve the controversy, the case should be dismissed as moot. United States Parole Comm'n v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 1209, 63 L.Ed.2d 479 (1980).

Deeper Life originally filed suit against the city defendants because they had denied its application for a permit to use the auditorium of P.S. 60 and it needed a place to hold weekly religious meetings while its church headquarters were being renovated. However, the church renovations were completed in the latter part of 1988, and since then Deeper Life has not applied for or been denied any further school use permits. ¹ As already indicated, Deeper Life has also settled its claim against the city defendants, and the settlement included payment of its attorneys' fees. Therefore, the underlying controversy--based on appellant's need for an alternative religious meeting place and the denial of a permit to meet that need--has been terminated. Although Deeper Life's amended complaint alleges that § 414 is unconstitutional on its face and as applied, prudential standing doctrine requires that a plaintiff have suffered an injury beyond a citizen's concern that the government may not be following the law. Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). At this stage of the litigation, there is no indication in the district court record before us that Deeper Life's complaint amounts to more than just such a generalized grievance.

Appellant brings to our attention a case decided recently by the First Circuit which, Deeper Life argues, supports the claim that Deeper Life has a live case or controversy although its original need for a permit has terminated. See Grace Bible Fellowship, Inc. v. Maine School Admin. Dist. # 5, 941 F.2d 45 (1st Cir.1991). However, in Grace Bible Fellowship, plaintiffs had applied for a permit to hold a Christmas dinner on school premises and, the court determined, were likely to request similar permission again. See id. at 46. Here, in contrast, Deeper Life requested the premises at issue to accommodate a particular need that is no longer present and that is not sufficiently likely, on the record, to arise again in the near future, as discussed more fully below. Therefore, our holding that this case is moot does not contradict the reasoning in Grace Bible Fellowship.

Capable of repetition yet evading review

Appellant asserts that its claims constitute an exception to the mootness doctrine for cases which are "capable of repetition yet evading review." Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982); Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975) (per curiam). To satisfy this exception, an action must "in its duration [be] too short to be fully litigated prior to its cessation or expiration" and there must be "a reasonable expectation that the same complaining party would be subjected to the same action again." Murphy, 455 U.S. at 482, 102 S.Ct. at 1183 (quoting Weinstein, 423 U.S. at 149, 96 S.Ct. at 349). Application of this doctrine is limited to "exceptional situations." City of L.A. v. Lyons, 461 U.S. 95, 109, 103 S.Ct. 1660, 1669, 75 L.Ed.2d 675 (1983).

The present case satisfies neither element of the "capable of repetition yet evading review" test. As to the second element, the controversy does not evade review. The fact that Deeper Life's need terminated before the district court decided the merits proves only that this case is moot, not that the denial of a permit inherently evades review. Indeed, the fact that Deeper Life was able to obtain preliminary injunctive relief from the district court lasting for the duration of the period during which it allegedly needed to use the school auditorium demonstrates the adequacy of judicial review in addressing the kind of problem with which Deeper Life was faced.

Moreover, Deeper Life's particular problem is not sufficiently likely to recur. Deeper Life allegedly needed the use permit denied in the present litigation because it was in the process of renovating its church headquarters. It is true that Deeper Life's assistant pastor, Joel Sadaphal, has submitted an affidavit dated April 10, 1991, stating that negotiations are ongoing for the acquisition of property to be merged with Deeper Life's current headquarters and that this would require his congregation to vacate the building again. The affidavit also states that the congregation will need to use school premises for a series of seminars and for a program of church conventions. The affidavit is not in the district court record, however, but was submitted to this court in opposition to Sobol's motion to dismiss the appeal as moot. Moreover, even if we considered it, Sadaphal admits that "the acquisition of this property and construction of a new facility is not imminent," although he claims that "we realistically expect construction to begin in the next few years." We note that in March 1989, in the district court, Sadaphal made almost the same prediction with respect to construction and at that time also expected that the congregation would need school premises for quarterly seminars and a church convention anticipated for "some time in 1989." Appellant's alleged need for school premises, however, has not, on the record before us, motivated an application for a permit since December 1988, and the predicted construction seems no closer now. Deeper Life has therefore failed to show that its need for a permit rises to the level of a "demonstrated probability" or a "reasonable expectation" for which federal courts make an exception to the mootness doctrine.

Appellant cites Honig v. Doe, 484 U.S. 305, 318-19 n. 6, 108 S.Ct. 592, 601 n. 6, 98 L.Ed.2d 686 (1988), apparently for the proposition that "capable of repetition" means only that repetition could possibly occur, not that there is a probability that it will. We do not believe that the majority in Honig went that far. The Court held there that it was "reasonable to expect" and "probable"--not...