Walters v. Edgar, 97-2722

• Citation: 163 F.3d 430
• Decision Date: 20 January 1999
• Docket Number: No. 97-2722,97-2722
• Parties: Terrell WALTERS and Joseph Ganci, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. James EDGAR, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 430

163 F.3d 430

Terrell WALTERS and Joseph Ganci, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. James EDGAR, et al., Defendants-Appellees.

No. 97-2722.

United States Court of Appeals,

Seventh Circuit.

Argued Sept. 18, 1998.

Decided Dec. 15, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied Jan. 20, 1999.

James P. Chapman, Alan S. Mills (argued), Margaret Byrne, Chicago, IL, for Plaintiffs-Appellants.

Deborah L. Ahlstrand, John P. Schmidt (argued), Office of the Attorney General, Civil Appeals Division, Chicago, IL, for Defendants-Appellees.

Before POSNER, Chief Judge, and FLAUM and KANNE, Circuit Judges.

POSNER, Chief Judge.

This is a long-running class action (first brought in 1982, and certified as a class action in 1985) by inmates of the segregation wards in Illinois' maximum security prisons. These inmates claim that prison officials have blocked their access to the courts in violation of the due process clause of the Fourteenth Amendment as interpreted in Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). After a trial conducted in 1991 and 1992, the district judge found that their right of access had indeed been infringed. Walters v. Edgar, 900 F.Supp. 197 (N.D.Ill.1995) (see also Walters v. Thompson, 615 F.Supp. 330 (N.D.Ill.1985), finding infringement but denying a preliminary injunction). But after the Supreme Court decided Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996), the judge dismissed the suit on the ground that the named plaintiffs did not have standing to maintain it, Walters v. Edgar, 973 F.Supp. 793 (N.D.Ill.1997), precipitating this appeal.

The plaintiffs argue that even if they do lack standing, the suit should not have been dismissed but instead other members of the class should have been named as the class representatives. This would indeed have been the proper course if something had happened to deprive the named plaintiffs of standing (or otherwise to render them inappropriate representatives of the class) after the suit had been filed, provided that two conditions were satisfied: that the suit had been certified as a class action, which would make the unnamed class members parties to the suit unless and until they opted out; and that at least one of these unnamed class members had standing. County of Riverside v. McLaughlin, 500 U.S. 44, 51-52, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991); Sosna v. Iowa, 419 U.S. 393, 401, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975); Nelson v. Murphy, 44 F.3d 497, 500 (7th Cir.1995). What would have saved the suit from dismissal had these two conditions been satisfied would not have been the principle that jurisdiction once acquired is not defeated by a change of circumstances. Mollan v. Torrance, 22 U.S. (9 Wheat.) 537, 539, 6 L.Ed. 154 (1824) (Marshall, C.J.); Smith v. Sperling, 354 U.S. 91, 93 n. 1, 77 S.Ct. 1112, 1 L.Ed.2d 1205 (1957); Herremans v. Carrera Designs, Inc., 157 F.3d 1118, 1121 (7th Cir.1998). Were that principle applicable, there would be no need to find a class member with standing when the original named plaintiffs lost their standing after the suit was filed. Like most legal generalizations, however, the principle that jurisdiction once acquired is not defeated by a change of circumstances is not exceptionless. The chief exception is that the existence of a case or controversy in the Article III sense, that is, a real dispute between parties with tangible stakes in the outcome, Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, ---- - ----, 118 S.Ct. 1003, 1016-17, 140 L.Ed.2d 210 (1998); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), must be continuous from the beginning of the suit to the end. United States Parole Comm'n v. Geraghty, 445 U.S. 388, 396-97, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980); Church of Scientology v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992). If a case becomes moot, the court loses jurisdiction, even though the case was not moot when filed.

If the district judge was right, these plaintiffs never had standing to bring this suit, and so federal jurisdiction never attached. O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); Sample v. Aldi Inc., 61 F.3d 544, 551 (7th Cir.1995); Holmes v. Fisher, 854 F.2d 229, 232-33 (7th Cir.1988); Johnson v. Rodriguez, 110 F.3d 299, 315 (5th Cir.1997). That makes this the opposite of a case in which jurisdiction is challenged by developments after the suit was filed. Certification of a class action comes after the suit is filed, so if the named plaintiffs lacked standing when they filed the suit, there were no other party plaintiffs to step into the breach created by the named plaintiffs' lack of standing; and so there was no case when class certification was sought. The danger that a class action will have to be dismissed for lack of standing of the named plaintiffs, even though unnamed members of the class might have standing, is another reason, besides those emphasized in Mars Steel Corp. v. Continental Illinois National Bank & Trust Co., 834 F.2d 677, 680-81 (7th Cir.1987), and Bieneman v. City of Chicago, 838 F.2d 962, 964 (7th Cir.1988) (per curiam), for scrupulous adherence to the requirement that the determination whether to certify a suit as a class action be made "as soon as practicable after the commencement of the action." Fed.R.Civ.P. 23(c)(1). (It took three years for this case to be certified as a class action; but we do not have enough information to enable us to determine whether this was "as soon as practicable," given the circumstances.)

Whitlock v. Johnson, 153 F.3d 380 (7th Cir.1998), illustrates the point that jurisdiction need not lapse just because the named plaintiffs drop out after the suit is filed. The case does not hold or imply, as our plaintiffs argue, that jurisdiction can be preserved even though the named plaintiffs lacked standing when the suit was filed. Whitlock was a suit alleging a denial of due process in prison disciplinary proceedings. After the suit was brought, the named plaintiff's challenge to his disciplinary sanction was rejected on the merits; there had been no denial of due process. But since his suit had at least had colorable merit when begun, jurisdiction had attached, albeit the original plaintiff was no longer a suitable class representative because he no longer had a stake in winning. Had his claim been frivolous, as the district judge found the claims of the named plaintiffs in this case to have been, we would have ordered the Whitlock suit dismissed, because a frivolous suit does not engage the jurisdiction of the federal courts. Steel Co. v. Citizens for a Better Environment, supra, 523 U.S. at ----, 118 S.Ct. at 1010; Korzen v. Local Union 705, 75 F.3d 285, 289 (7th Cir.1996); Beauchamp v. Sullivan, 21 F.3d 789 (7th Cir.1994); Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1189 (2d Cir.1996). And it would not matter whether the claim was known at the outset to be frivolous. Until the judgment concluding a suit becomes final by exhaustion of all appellate remedies (and sometimes not even then, In re Factor VIII or IX Concentrate Blood Products Litigation, 159 F.3d 1016, 1019 (7th Cir. Oct. 19, 1998); Disher v. Information Resources, Inc., 873 F.2d 136, 140 (7th Cir.1989)), the existence of jurisdiction over the suit can be challenged. Morel v. INS, 144 F.3d 248, 250 n. 3 (3d Cir.1998). Therefore the jurisdictional inquiry may be conducted at any time until the judgment becomes final in the sense just indicated. Steel Co. v. Citizens for a Better Environment, supra, 523 U.S. at ----, 118 S.Ct. at 1011; Levin v. Attorney Registration & Disciplinary Comm'n, 74 F.3d 763, 766 (7th Cir.1996); Autocephalous Greek-Orthodox Church v. Goldberg & Feldman Fine Arts, Inc., 917 F.2d 278, 284 n. 7 (7th Cir.1990); United States v. Bustillos, 31 F.3d 931, 933 (10th Cir.1994).

A dictum in East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 406 n. 12, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977), implies that if any members of a class, at the time the class action was certified, had standing, the requirements of Article III are satisfied even if the named plaintiffs were never members of the class. We don't think that this dictum, which is unelaborated, as well as buried in a footnote, can be considered authoritative; it is inconsistent with fundamental principles governing federal jurisdiction. But in any event there is no indication that any member of the plaintiff class in the present case sustained any greater injury by reason of the alleged unconstitutional blockage of access to the courts than the two named plaintiffs. So if the named plaintiffs lack standing--and we are about to see that they do--the dictum in East Texas could not keep the suit alive even if that dictum were a holding and so bound us.

Lewis v. Casey, supra, on which the district judge based her decision to dismiss this suit for want of standing, holds that denial of access to the courts is not actionable unless the plaintiff has suffered an injury over and above the denial. See also Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir.1996). This is different from the approach taken by the courts to a claim that the plaintiff was denied a hearing in violation of the due process clause. Even if the hearing would not have resulted in any legal relief to the plaintiff, the improper denial of the hearing is an infringement of a right for which nominal damages can be awarded, and thus it is injury enough to support federal jurisdiction. Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978); Buckley v. Fitzsimmons, 20 F.3d 789, 796 (7th Cir.1994); Hessel v. O'Hearn, 977 F.2d 299, 302 (7th Cir.1992); Walters v. Reno, 145 F.3d 1032, 1049 (9th Cir.1998). But in the case of a denial of access to the courts, the right infringed is so purely...