New Left Ed. Proj. v. Board of Reg. of the U. of Tex. Sys., 72-1795.

• Decision Date: 19 January 1973
• Docket Number: No. 72-1795.,72-1795.
• Citation: 472 F.2d 218
• Parties: NEW LEFT EDUCATION PROJECT et al., Plaintiffs-Appellees. v. BOARD OF REGENTS OF THE UNIVERSITY OF TEXAS SYSTEM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

472 F.2d 218 (1973)

NEW LEFT EDUCATION PROJECT et al., Plaintiffs-Appellees. v. BOARD OF REGENTS OF THE UNIVERSITY OF TEXAS SYSTEM, Defendant-Appellant.

No. 72-1795.

United States Court of Appeals, Fifth Circuit.

January 19, 1973.

Crawford C. Martin, Atty. Gen. of Texas, W. O. Shultz, II, Asst. U. S. Atty., Austin, Tex., for defendant-appellant.

David R. Richards, Austin, Tex., for plaintiffs-appellees.

Before GEWIN, BELL and GODBOLD, Circuit Judges.

BELL, Circuit Judge:

This appeal involves a district court order granting declaratory and injunctive relief against the Board of Regents with respect to two Board of Regents rules applicable at the University of Texas. The order was first entered by a three-judge district court, 326 F.Supp. 652, and the Regents appealed on October 30, 1970 to the Supreme Court. After argument, the Supreme Court handed down a decision holding that the rules were local in nature, the three-judge district court was improperly convened, and thus no appeal would lie to that court. Board of Regents v. New Left Education Project, 1972, 404 U.S. 541, 92 S.Ct. 652, 30 L.Ed.2d 697. The Supreme Court also provided:

"Since the three-judge court was improperly convened, appeal lies not here but to the Court of Appeals for the Fifth Circuit. So that appellant may be able, if it desires, to perfect a timely appeal, we vacate the judgment below and remand the case with instruction that the court enter a fresh decree."

The matter was then remanded under date of January 24, 1972, to the district court for entry of a fresh decree.

Thereupon the following events occurred. On January 28, 1972, prior to entry of the fresh decree, the Regents moved the district court to hear and consider further argument prior to the entry of the fresh decree, pointing to new court decisions which were said to affect the merits as to one of the rules (Rule 6.11), and the propriety of injunctive relief in any event. They also conceded the unconstitutionality of the other rule (Rule 6.12).

On February 4, 1972, the Regents repealed the contested rules (Rules 6.11 and 6.12) and enacted rules with the same numbers to be effective in lieu thereof. On February 7, 1972, the New Left objected to reopening the case on the merits.

On February 9, 1972, the district court entered a fresh decree, declaring Rules 6.11 and 6.12 unconstitutional and enjoining the Regents from enforcing them. The motion to reopen was not mentioned nor was any order entered thereon. At this point, the repeal of the rules had not been brought to the attention of the district court.¹

There are three issues presented on appeal. First, the Regents urge that the appeal has been mooted by the repeal of the rules in question and thus that the judgment of the district court is to be vacated. Second, if not mooted, they urge the application of res judicata principles by virtue of a judgment rendered in a state court involving old Rule 6.11 and allegedly a class which included plaintiffs here. Third, they assert that old Rule 6.11 is constitutional and that the court erred in holding otherwise. In view of our holding on the question of mootness, we do not reach the second and third assignments of error.

The first question is whether the repeal of the old rules mooted the appeal. We hold that it did but, as will be seen, this gives rise to a substantial question of law.

The new rules are radically different from the rules which resulted in the controversy that was litigated below. The restrictions against which the appellees complain no longer exist. No actual controversy is presented to this court and the appeal must therefore be dismissed.

The New Left contends, however, that even if the case is moot on appeal, the judgment of the district court remains a valid and binding adjudication of their constitutional rights. They maintain that they are entitled at least to the declaratory portion of that judgment.

The initial question raised by this contention is whether the case became moot before it was finally adjudicated by the district court, or whether it became moot after a final adjudication and during the pendency of this appeal. If the case became moot before a final adjudication, we must vacate the judgment and direct that the case be dismissed. The district court has no power to decide moot causes. Art. III, Const., and Muskrat v. United States, 1910, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246. On the other hand, if the case became moot during the pendency of this appeal, we must consider additional questions in deciding whether the judgment, which is now unreviewable, is to be allowed to stand.

The issue is clouded by the singular procedure through which this case found its way to this court. We think it clear, however, that the case must be regarded as having become moot after a final adjudication in the district court and during the pendency of the appeal. It is true that in a technical sense there was no extant judgment at the time the rules were repealed. At that time, the original judgment of the three-judge court had been vacated by the Supreme Court and the "fresh" decree had not yet been entered. But the Supreme Court vacated the original judgment, not because the judgment was void, but because appellant had taken its appeal to the wrong tribunal. The proper appeal where a three-judge district court has been improperly convened is to the circuit court, not the Supreme Court. See Phillips v. United States, 312 U.S. 246, 61 S.Ct. 480, 85 L.Ed. 800 (1940). Here when the Supreme Court informed the appellant of its error in appealing to that court, the time for appeal to this court had long since expired. Therefore, to protect the appellant's right to appeal, the Supreme Court vacated the original judgment and instructed the district court to issue a fresh decree. This procedure triggered the running of a new period within which the appellant could perfect a timely appeal.

Thus the action of the court was intended to protect the appellant's right to appeal. There is no indication in the Supreme Court's opinion that the court intended to alter whatever result would otherwise have ensued, had the parties followed the proper appellate procedure in the first instance. Appellant's right to appeal has now been vindicated and we consider the case as if it had come to us directly. The inquiry whether the case was mooted before or after the district court judgment in effect answers itself. If the case had come to us directly, there would be no question that it had become moot during the pendency of the appeal, since the repeal of the rules in dispute occurred after, not before, the rendition of original judgment by the three-judge district court. In every substantial sense, the case had been "on appeal" ever since that judgment was entered. We hold that the controversy became moot on appeal.

When a case becomes moot on appeal, the appellate court will normally dismiss the appeal, vacate the judgment of the district court, and remand the case to the district court with instructions to dismiss the complaint. See United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950); Troy State University v. Dickey, 5 Cir., 1968, 402 F.2d 515, 516-517; Lebus, Regional Director v. Seafarers' Int'l Union, 5 Cir., 1968, 398 F.2d 281, 283. This procedure is dictated by constitutional considerations. The appeal is dismissed because the appellate court has no power to decide moot questions. The judgment is vacated and remanded with instructions to dismiss because of the need to protect the parties from the prejudice that may flow from an unreviewed standing judgment which has become unreviewable because of circumstances beyond their control. This procedure also removes any precedential effect which the judgment might otherwise have. As the Supreme Court noted in Munsingwear, supra, this procedure "clears the path for future relitigation . . . between the parties and eliminates a judgment, review of which was prevented through happenstance." 340 U.S. at 40, 71 S.Ct. at 107.

But here we have a case where the appeal has become moot, not because of "happenstance", but through action of the appellant. This being so, we think that a different approach is required. Thus, where the appellant compromises the action, where he desists from engaging in conduct which is the alleged cause of action, where he complies...