Mahoney v. Babbitt

• Decision Date: 13 May 1997
• Docket Number: No. 97-5005,97-5005
• Citation: 113 F.3d 219
• Parties: Patrick J. MAHONEY, Reverend; The Christian Defense Coalition, Appellants v. Bruce BABBITT, In his official capacity as Secretary of the United States Department of the Interior; National Park Service, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 219

113 F.3d 219

324 U.S.App.D.C. 266

Patrick J. MAHONEY, Reverend; The Christian Defense Coalition, Appellants v. Bruce BABBITT, In his official capacity as Secretary of the United States Department of the Interior National Park Service, Appellees.

No. 97-5005.

United States Court of Appeals District of Columbia Circuit.

May 13, 1997.

Appeal from the United States District Court for the District of Columbia (No. 96cv02827).

Before WILLIAMS, SENTELLE and HENDERSON, Circuit Judges.

Opinion of the court filed by Circuit Judge SENTELLE. On Appellees' Petition for Rehearing

SENTELLE, Circuit Judge:

We issued an injunction pending appeal in this matter, by order of January 19, 1997. We further explained our reasons in an opinion of February 11, 1997. This case now returns to us on appellees' petition seeking rehearing and vacatur on two grounds: first, that the petition is moot under the Munsingwear doctrine and second, that in our original opinion we erred in "grant[ing] relief not sought by appellants in District Court." Because we conclude that neither argument warrants the relief prayed, we deny the petition. We do, however, note that insofar as appellants' appeal seeks any relief beyond that already granted in our ruling on the preliminary injunction, appellees' claim of mootness is well taken. Therefore, insofar as any other aspect of the case remains pending before us, we order the same dismissed.

I.

While we have set forth the background of this controversy in our earlier opinion, Mahoney v. Babbitt, 105 F.3d 1452 (D.C.Cir.1997), we will briefly review its history as is necessary for the resolution of the petition now before us. On December 23, 1996, the Reverend Patrick J. Mahoney and the Christian Defense Coalition ("appellants") filed their complaint seeking, inter alia, preliminary and injunctive relief against defendants carrying out threats to arrest Mahoney and his associates if they displayed signs critical of President Clinton on sidewalks adjacent to Pennsylvania Avenue during the Inaugural Parade scheduled for January 20, 1997. Defendants opposed plaintiffs' motion for preliminary injunction. Because of the shortness of time before the critical events, on January 3, 1997, plaintiffs moved to accelerate the hearing on the preliminary injunction. On January 16, the Thursday before the scheduled parade of Monday, January 20, the District Court denied the preliminary injunction.

Mahoney and his associates remained under threat of arrest if they exercised their First Amendment rights by displaying signs critical of the President under circumstances in which defendants had admitted that persons displaying signs supportive of the President would not be arrested. Appellants appealed. On Saturday, January 18, appellants filed an emergency motion for injunction pending appeal from the denial of the preliminary injunction. In view of the critical shortage of time, we expedited the proceeding. Appellees filed opposition to the preliminary injunction. The American Civil Liberties Union filed a brief as amicus curiae, and on Sunday, January 19, we issued our order preliminarily enjoining defendants. Our order granted the emergency motion in part, enjoining appellees and their agents "from arresting or interfering with one or a group of twenty-five or fewer of the plaintiffs displaying signs at the Inaugural Parade expressing criticism of the President of the United States or his policies except in circumstances in which appellees and their agents would arrest or interfere with individuals displaying signs not critical to the President or his policies." Appellants did not seek a stay, either from this court or from the Circuit Justice or any other Justice of the Supreme Court. See 28 U.S.C. § 2101(f); SUP.CT. R. 22-23. On January 20, the Inaugural Parade was held as scheduled. Our order was effective, and appellants were able to display their signs on the same terms as citizens having different viewpoints.

Appellees now return, petitioning for rehearing and a vacatur of our prior order and the accompanying opinion, asserting mootness and also arguing in the alternative that the relief granted was not within the power of the court in the proceedings before us. While the alternate ground, concerning the relief granted, borders on the frivolous, if indeed it does not occupy that territory, the mootness argument raises sufficiently serious questions to warrant our consideration, although we ultimately reject it.

II.

Appellees' mootness argument rests on the fundamental principle of our jurisprudence that Article III of the Constitution "limits the 'judicial power' of the United States to the resolution of 'cases' and 'controversies.' " " Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 471, 102 S.Ct. 752, 757-58, 70 L.Ed.2d 700 (1982). Out of this principle there arise "several 'doctrines that cluster about Article III---... standing, mootness, ripeness, political question, and the like....' " Louisiana Envt'l Action Network v. Browner, 87 F.3d 1379, 1382 (D.C.Cir.1996) (quoting Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984)) (additional internal quotations and citations omitted). Mootness comes into question when "circumstances ... destroy the justiciability of a suit previously suitable for determination." 13A CHARLES A. WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3533 (2d ed.1984). As appellees point out, appellants only sought relief allowing them to exercise their First Amendment rights at the Inaugural Parade on January 20, 1997. That date has come and gone; appellees were enjoined from interfering with appellants' exercise of their First Amendment rights; and, there is no relief left to grant. Thus, insofar as this case remains an open one, we agree with appellees that it must be dismissed for mootness. The question on which appellees have not so quickly satisfied us is whether we should vacate the relief which we have heretofore granted--that is, our prior order and opinion.

Appellees' argument for vacatur begins with United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950), for many years the leading case on vacatur. In that case the Supreme Court recognized that "[t]he established practice" of the federal appellate system "in dealing with a civil case from a federal court ... which has become moot while on its way" to the appellate court "is to reverse or vacate the judgment below and remand with a direction to dismiss." Id. at 39, 71 S.Ct. at 106. Of course the Munsingwear language which we quote and on which appellees rely, while instructive, is not controlling. The First Amendment questions arising in our review of the denial of the preliminary injunction did not grow moot while the case was on its way here. If January 20th had come and gone before the issuance of our order, the Munsingwear language would be more squarely on point. Or, if the appellees had sought a stay of our order from the Supreme Court or one of its Justices, and January 20th and the Parade had passed pending the action of the highest court, again the Munsingwear language would be on point. But that is not what happened. At the time of the allegedly mooting circumstances, rather than being "on its way here," the case had arrived here, and we had decided it. Thus, the vacatur question is now controlled, not by the language from Munsingwear, but by U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994), which has displaced Munsingwear as the Supreme Court's latest word on vacatur. In U.S. Bancorp, as appellees point out to us, the Court reaffirmed the Munsingwear principle "that mootness by happenstance provides sufficient reason to vacate" the judgment below. Id. at 25 n. 3, 115 S.Ct. at 391 n. 3. But the reasoning underlying the Munsingwear doctrine as reaffirmed in U.S. Bancorp is that "[a] party who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance, ought not in fairness be forced to acquiesce in the judgment." Id. at 25, 115 S.Ct. at 391. However, the Court went on to hold that where the case has become moot while on appeal by reason of the losing party's having entered into a settlement of the underlying controversy, that party "has voluntarily forfeited his legal remedy by the ordinary processes of appeal," and has "thereby surrender[ed] his claim for the equitable remedy of vacatur." Id.

In this case, the losing parties, appellees, elected not to seek further relief upon the entry of our order. That places them squarely within the reasoning of U.S. Bancorp governing forfeiture of the right to vacatur. Indeed, the Court in U.S. Bancorp went on to say that the settled case "stands no differently than it would if jurisdiction were lacking because the losing party failed to appeal at all." Id. In our case, the appellees did not appeal. They accepted the effects of our emergency order. Granted, their time for doing otherwise was short. But established procedure provides for application to the Supreme Court for a stay of our emergency order. See 28 U.S.C. § 2101(f); SUP.CT. R. 23. They could have addressed the Circuit Justice for such a stay. They chose not to do so. Thus, "[t]his controversy did not become moot due to circumstances unattributable to any of the parties. The controversy ended when the losing party ... declined to pursue its appeal." Karcher v. May, 484 U.S. 72, 83, 108 S.Ct. 388, 395, 98 L.Ed.2d 327 (1987). In such a case, "the Munsingwear procedure is inapplicable...." Id.

We realize that this question is a close one. The best support for appellees' position lies not with the Supreme Court decisions in Munsingwear or U.S. Bancorp., but rather in our decision in Clarke v. United States, 915 F.2d 699 (D.C.Cir.1990) (en banc). In Clarke, a panel of...