         09-4737-cv
         Hunter v. Superintendent-Colonial Park




                                      UNITED STATES COURT OF APPEALS
                                          FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER

     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.    CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
     MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


 1               At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2       Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
 3       on the 2nd day of February, two thousand eleven.
 4
 5       PRESENT:
 6                   John M. Walker, Jr.,
 7                   Chester J. Straub,
 8                   Gerard E. Lynch,
 9                          Circuit Judges.
10       ____________________________________________________________
11
12       Ernest A. Hunter,
13                     Petitioner-Appellant,
14
15                        -v.-                                                         09-4737-cv
16
17       Colonial Park, Superintendent,
18                      Respondent-Appellee.
19       ___________________________________________________________
20
21       FOR APPELLANT:                    Ernest A. Hunter, pro se, New York, New York.
22
23       FOR APPELLEE:                     Preet Bharara, United States Attorney, Michael J. Byars, Assistant
24                                         United States Attorney, New York, New York.
25
26

27               UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND

28       DECREED that the district court judgment is AFFIRMED.
1           Petitioner-Appellant Ernest A. Hunter, pro se, appeals from the October 6, 2009 order of

2    the United States District Court for the Southern District of New York (Berman, J.) denying as

3    moot his petition for mandamus under 28 U.S.C. § 1361. We assume the parties’ familiarity

4    with the underlying facts and the procedural history of the case.

5           The dismissal of an action as moot is reviewed de novo. See County of Suffolk, N.Y. v.

6    Sebelius, 605 F.3d 135, 139 (2d Cir. 2010). Under Article III, Section 2 of the United States

7    Constitution, the federal courts lack jurisdiction to decide questions that cannot affect the rights

8    of litigants before them. See DeFunis v. Odegaard, 416 U.S. 312, 316 (1974). When a court is

9    presented with issues that “are no longer ‘live’” or when the parties “lack a legally cognizable

10   interest in the outcome,” the case is moot and, therefore, outside the federal court’s jurisdiction.

11   British Int’l Ins. Co. v. Seguros La Republica, S.A., 354 F.3d 120, 122-23 (2d Cir. 2003) (quoting

12   Powell v. McCormack, 395 U.S. 486, 496 (1969)).

13          Hunter filed a petition in June 2009 requesting that the district court issue a writ of

14   mandamus ordering the Colonial Park office of the United States Postal Service (“USPS”) to

15   forward his mail to a certain post office box (“P.O. box”). The petition, however, alleged that his

16   mail had already begun to be forwarded as of May 2009. Given that Hunter had obtained the

17   relief he sought—forwarding his mail to the P.O. box—the district court correctly concluded that

18   his petition was moot. See Prins v. Coughlin, 76 F.3d 504, 506 (2d Cir. 1996) (“A case is

19   deemed moot where the problem sought to be remedied has ceased, and where there is no

20   reasonable expectation that the wrong will be repeated.”) (internal quotation marks and citation

21   omitted).

22          To the extent that Hunter challenges the district court’s reliance on the declaration of a

23   USPS employee, his claim is without merit. In considering a motion to dismiss for lack of subject
1    matter jurisdiction, a court may consider “evidence outside the pleadings.” Makarova v. United

2    States, 201 F.3d 110, 113 (2d Cir. 2000). In any event, the district court’s decision was also

3    supported by Hunter’s own allegation that his mail had been forwarded since May 2009, and his

4    submissions make clear that his mail was, in fact, being forwarded.

5           As to Hunter’s contention that he was unaware that his petition could be dismissed at oral

6    argument, a district court is not required to provide a pro se litigant with notice that his case can

7    be dismissed once the adverse party seeks dismissal. Moreover, the record indicates that,

8    although the Government did not file a formal motion to dismiss, it informed the court and

9    Hunter that it intended to move to dismiss on mootness grounds. The court then directed Hunter

10   to respond and scheduled oral argument on the issue. Hunter, therefore, was provided with both

11   notice that his petition could be dismissed and an opportunity to oppose. Cf. Snider v. Melindez,

12   199 F.3d 108, 113 (2d Cir. 1999) (finding that, in general, before a court dismisses a complaint

13   sua sponte, it should “afford[] a plaintiff the opportunity to be heard in opposition”).

14          Finally, to the extent that, in the district court, Hunter opposed dismissal on the ground

15   that the USPS refused to forward his mail indefinitely, the petition was properly dismissed. See

16   Freedom Holdings, Inc. v. Cuomo, 624 F.3d 38, 49 (2d Cir. 2010) (noting that this Court may

17   affirm the district court on any ground appearing in the record). The district court’s jurisdiction

18   under the mandamus statute is limited to actions “seeking to compel the performance of a non

19   discretionary duty.” Duamutef v. INS, 386 F.3d 172, 180 (2d Cir. 2004). Post Office regulations

20   make clear that any extension of mail forwarding beyond the normal time limit is entirely at the

21   discretion of the postmaster. USPS Domestic Mail Manual § 2.1.2. Neither the USPS nor any of

22   its employees has a mandatory duty to forward Hunter’s mail indefinitely. The district court

23   therefore properly concluded that it lacked jurisdiction over this component of Hunter’s petition.
1            We have considered all of Hunter’s remaining arguments and find them to be without

2   merit.

3            Accordingly, the judgment of the district court is AFFIRMED.
4
5
6                                                       FOR THE COURT:
7                                                       Catherine O’Hagan Wolfe, Clerk
8
9
