Henschen v. City of Houston, Tex.

• Decision Date: 30 April 1992
• Docket Number: No. 91-2676,91-2676
• Citation: 959 F.2d 584
• Parties: Robert HENSCHEN, Houston Non-Violent Action, et al., Plaintiffs-Appellants, v. CITY OF HOUSTON, TEXAS, Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 584

959 F.2d 584

Robert HENSCHEN, Houston Non-Violent Action, et al., Plaintiffs-Appellants, v. CITY OF HOUSTON, TEXAS, Defendant-Appellee.

No. 91-2676

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

April 30, 1992.

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.

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.

I. BACKGROUND

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 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 did not allege that they would ever be denied a parade permit at a future date or that they intended to stage a parade requiring a city permit on any particular future date. In the City's view, this completely conjectural assertion of the unconstitutionality of the City's ordinances was legally insufficient.

                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
                

Shortly afterward, when the district court denied appellants' Rule 59 motion, he stated that he had "heard the arguments of counsel." From this we infer the district court's familiarity with the parties' Rule 59 pleadings.

II. DISCUSSION

A. This Court's Mandate

On appeal, for the first time, appellants contend that the district court's orders of dismissal transgressed this court's earlier mandate dismissing, with instructions, the appeal of the preliminary injunction. The foregoing recitation of the record plainly contradicts appellants' position. First, in declining to rule on the merits of this case when the City's appeal of the preliminary injunction had become moot, this court did not foreclose or limit the district court's discretion to deal with the case on remand. Rather, this court decided that it need not undertake a merits discussion while the case appeared to remain pending in the court below. Second, at the time the district court denied appellants' Rule 59 motion for reconsideration of its dismissal orders, it confronted two arguments: the appropriateness of damages and the speculativeness of injunctive relief. The court's ruling, even if perfunctory, necessarily dealt with those "merits" issues. No party suggested that the court could not rule on those issues because of the Fifth Circuit's mandate. The district court's orders do not contravene this court's mandate.

Appellants' failure to direct this argument to the district court's attention would ordinarily constitute a waiver absent manifest injustice. Rodriguez v. VIA Met. Transit Sys., 802 F.2d 126, 128 (5th Cir.1986). We address the issue only because it implicates this court's mandate. The issue, as shown, is meritless.

B. Propriety of Dismissal

Appellants contend alternatively that their claims for monetary damages from the denial of the July 8, 1990, permit and of likely injury from future applications of Houston's parade ordinances are sufficiently concrete to assert an actual case or controversy. Justiciability must be analyzed separately on the issues of money damages and the propriety of equitable relief. City of Los Angeles v. Lyons, 461 U.S. 95, 110, 103 S.Ct. 1660, 1669, 75 L.Ed.2d 675 (1983); Brown v. Edwards, 721 F.2d 1442 (5th Cir.1984).

Both appellants and the city framed the justiciability issue in terms of mootness, but this characterization is unsatisfactory. A case is moot where the cause of action is no longer live, or where the parties no longer hold a personal stake in the outcome. Matter of Commonwealth Oil Ref. Co., 805 F.2d 1175, 1181 (5th Cir.1986), cert. denied, 483 U.S. 1005, 107 S.Ct. 3228, 97 L.Ed.2d 734 (1987). Time has rendered moot appellants' request for immediate injunctive relief, but the claims for money damages and prospective equitable relief are not, for different reasons, in the same category.

Whatever else it may be, a claim for money damages did not become moot when the Economic Summit ended. If appellants' rights were violated by the denial of a parade permit, and if that refusal caused actual damage, they have stated a live claim under § 1983. It goes without saying that such damage must compensate for actual harm, not just for the intangible value of a constitutional right. Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299, 306, 106 S.Ct. 2537, 2542, 91 L.Ed.2d 249 (1986); Carey v. Piphus, 435 U.S. 247, 255, 98 S.Ct. 1042, 1048, 55 L.Ed.2d 252 (1978). Further, appellants must advance a viable, not insubstantial damage claim. Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9, 98 S.Ct. 1554, 1560, 56 L.Ed.2d 30 (1978).

Appellants pled that they suffered embarrassment and humiliation by the denial of a parade permit for July 8, 1990. The source of this embarrassment is difficult to discern, because the record suggests that they were afforded the opportunity to demonstrate on the sidewalk, mount their parade on an alternative day--within the duration of the Economic Summit--or conduct a rally. But even if it may be unlikely that appellants will demonstrate the basis for a real injury that can be fairly attributed to the City's alleged unconstitutional conduct, see Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984), we cannot say that their claimed damages are too speculative to state a § 1983 claim for relief. Accordingly, we reverse and remand the dismissal of appellants' damage claim.

With more vigor, appellants urge that they are still entitled to prospective injunctive relief against the City's parade ordinance. "Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief, [ ] if unaccompanied by any continuing, present adverse effects." O'Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 675-76, 38 L.Ed.2d 674 (1974). While "past wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury," plaintiffs must show that they are...