
USCA1 Opinion

	




          October 10, 1996      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1629                                   TROY E. BROOKS,                                Plaintiff, Appellant,                                          v.                         NEW HAMPSHIRE SUPREME COURT, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Steven J. McAuliffe, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Selya and Stahl, Circuit Judges.                                            ______________                                 ____________________            Philip T. Cobbin on brief for appellant.            ________________            Jeffrey  R. Howard, Attorney General, and Stephen J. Judge, Senior                                                      ________________        Assistant Attorney General, on brief for appellees.                                 ____________________                                 ____________________                 Per Curiam.  Plaintiff-appellant Troy  E. Brooks appeals                 __________            from  the district court's  dismissal of his  case based upon            the abstention  doctrine of  Younger v.  Harris, 401  U.S. 37                                         _______     ______            (1971).  We summarily affirm.                 I. Mootness                    ________                 Subsequent  to the  district court's  dismissal of  this            case, the  New Hampshire  Supreme Court issued  its published            opinion in Petition of  Troy E. Brooks, 140 N.H.  813 (1996).                       ___________________________            The  state court held  that "[t]he confidentiality provisions            of  prior  Supreme  Court Rule  37(17)(a)  and  (g) were  not            sufficiently  narrowly  tailored  to  meet  compelling  State            interests  and   accordingly  have  failed   first  amendment            scrutiny."    The  court  also noted  that  Brooks'  relevant            alleged conduct "would  not run  afoul of the  rules as  they            have  been amended," and declared  that it would  not use its            contempt powers against Brooks pursuant to  the pre-amendment            Rule 37(17)(g).                 In light  of this decision, we find that Brooks' federal            claims  for equitable relief are moot.  "Under Article III of            the Constitution, federal courts  may adjudicate only actual,            ongoing  cases  or  controversies.  .  .  .    This  case-or-            controversy   requirement  subsists  through  all  stages  of            federal judicial proceedings, trial and appellate."  Lewis v.                                                                 _____            Continental Bank Corp., 494 U.S. 472, 477 (1990).  This court            ______________________            may address  mootness although  neither party has  raised it.                                         -2-            See  13A  Charles A.  Wright, Arthur  R.  Miller &  Edward H.            ___            Cooper, Federal  Practice &  Procedure,   3533.1,  pp. 226-27                    ______________________________            (1984 &  1996 Supp.).   "Where declaratory relief  is sought,            plaintiff must  show that there is  a substantial controversy            over  present rights  of 'sufficient  immediacy  and reality'            requiring adjudication."  Boston Teachers Union, Local  66 v.                                      ________________________________            Edgar, 787 F.2d 12, 15-16 (1st Cir. 1986).            _____                 The live controversy  between Brooks and the  defendants            ended  when  the  New  Hampshire  Supreme  Court  issued  its            published opinion declaring that the challenged provisions of            Rule  37(17) violated the First Amendment and stating that it            would not use its contempt  powers against Brooks pursuant to            the pre-amendment Rule 37(17)(g).  All of the injunctive  and            declaratory  relief   that  Brooks  sought  in   his  federal            complaint  was obtained  as  a result  of  the state  court's            decision.  Brooks  states in  his brief that  "the post  suit            amendment by  defendants is subject to  impinging Mr. Brooks'            rights  as  he  is engaged  in  an  ongoing  controversy with            attorneys  regarding his  right  as a  father."   Appellant's            Brief,  p. 3.  Those hypothetical future claims, however, are            not  of sufficient  "immediacy  and reality"  to satisfy  the            case-or-controversy  requirement.    Boston  Teachers  Union,                                                 ________________________            Local 66, 787 F.2d at 15-16.            ________                 This  case does  not  fall within  the exception  to the            mootness   doctrine  for  voluntary  cessation  of  allegedly                                         -3-            illegal  conduct.    "This  exception  is  meant  to  prevent            defendants from  defeating a plaintiff's efforts  to have its            claims  adjudicated  simply   by  stopping  their  challenged            actions,  and then  resuming their 'old  ways' once  the case            became moot."  Boston  Teachers Union, Local 66, 787  F.2d at                           ________________________________            16.    Given  the  New  Hampshire  Supreme  Court's  decision            declaring    the    challenged    pre-amendment    provisions            unconstitutional,  there is "'no  reasonable expectation that            the wrong will be  repeated.'"  Preiser v. Newkirk,  422 U.S.                                            _______    _______            395, 402 (1975) (citations omitted).                 II. Attorney's Fees                     _______________                 Brooks  argues   that  the   district  court  erred   in            dismissing, rather  than staying, the federal  action because            it  included a  request for  attorney's fees  and costs.   In            Quackenbush  v. Allstate  Ins.  Co., 116  S.  Ct. 1712,  1728            ___________     ___________________            (1996), the Supreme  Court held that "federal courts have the            power  to  dismiss  or   remand  cases  based  on  abstention            principles only where the relief being sought is equitable or            otherwise discretionary.  Because  this was a damages action,            we conclude  that the  District Court's remand  order was  an            unwarranted   application   of    the   Burford    doctrine."                                                    _______            Quackenbush,  116 S.  Ct. at 1728.   Because  Brooks' federal            ___________            suit was not an action for damages, and the  relief it sought                                         -4-            "is  equitable or  otherwise discretionary,"  the abstention-            based dismissal was within the court's power. 1                                                          1                 The district court's dismissal of this case is summarily                                                                _________            affirmed.  See Loc. R. 27.1.            ________   ___                                            ____________________               1 To the extent  that Brooks argues that  the requirements               1            of Younger have not been met, this court already decided that               _______            issue in its  previous decision. See Brooks v.  New Hampshire                                             ___ ______     _____________            Supreme Court, 80 F.3d 633, 638-39 (1st Cir. 1996).            _____________                                         -5-
