                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                                F I L E D
                                                                 May 7, 2003
                         In the
                                                           Charles R. Fulbruge III
                                                                   Clerk
    United States Court of Appeals
               for the Fifth Circuit
                    _______________

                      No. 02-20868
                    _______________




    PRO-LIFE COUGARS AND JEANNE S. TULLOS,

                                        Plaintiffs-Appellees,

                        VERSUS

          UNIVERSITY OF HOUSTON, ET AL.,

                                        Defendants,

                  DR. ELWYN C. LEE,
     IN HIS OFFICIAL CAPACITY AS VICE PRESIDENT
FOR STUDENT AFFAIRS OF THE UNIVERSITY OF HOUSTON;

              DR. WILLIAM F. MUNSON,
IN HIS OFFICIAL CAPACITY AS ASSISTANT VICE PRESIDENT
         FOR STUDENT DEVELOPMENT & DEAN
        OF STUDENTS UNIVERSITY OF HOUSTON,

                                        Defendants-Appellants.



                   _________________

       Appeals from the United States District Court
            for the Southern District of Texas
                     m H-02-CV-219
                      ____________
Before SMITH, DENNIS, and CLEMENT,                         for All Exhibit in three alternate sites, none of
  Circuit Judges.                                          which the organization considered acceptable.

PER CURIAM:*                                                   Pro-Life Cougars sued Munson, Vice Presi-
                                                           dent for Student Affairs Dr. Elwyn C. Lee, and
   University of Houston officials appeal a                the university, contending that the policy
preliminary injunction, and refusal to dissolve            violates the First and Fourteenth Amendments
that injunction, prohibiting the enforcement of            of the United States Constitution. The district
the university’s student expressive activity pol-          court preliminarily enjoined university officials
icy. Because, during the pendency of this                  from enforcing the policy so as to impose any
appeal, the district court granted summary                 prior restraint in Butler Plaza. The order
judgment for Pro-Life Cougars, we dismiss the              stated that the policy delegated to the dean of
appeal as moot.                                            students “overly broad, unfettered, and abso-
                                                           lute discretion to impose prior restraint on
                       I.                                  student expressive activities.”
   Pro-Life Cougars, a registered student or-
ganization at the university, applied for a per-               The university adopted a successor policy
mit to display a “Justice for All Exhibit.” The            banning all student expressive activity from
organization requested to display the exhibit in           Butler Plaza.2 The district court denied the
Butler Plaza, a high-pedestrian traffic area               university’s motion to dissolve the preliminary
located in the center of the university’s main             injunction, finding that the new policy did not
campus. The exhibit, which measures approxi-               moot the first policy, primarily because the
mately fifty by sixty feet, advocates a view-              university continued to defend its constitution-
point on abortion and related issues.                      ality. The university appealed the preliminary
                                                           injunction and refusal to dissolve.
   Dean of Students William Munson denied
the permit after determining the event was                     Pro-Life Cougars amended its complaint to
“potentially disruptive.” Under the universi-              add claims arguing that the second policy also
ty’s policy on expressive student activity, pro-           violates the First Amendment. After denying
posed events deemed potentially disruptive by              the university’s motion to stay proceedings
the dean of students could not be held in But-             pending appeal, the district court granted par-
ler Plaza.1 Instead, Munson gave Pro-Life                  tial summary judgment on March 13, 2003,
Cougars the option of displaying the Justice               declaring the first policy unconstitutional es-
                                                           sentially for the same reasons stated in the pre-
                                                           liminary injunction order.
   *
     Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
                                                              2
circumstances set forth in 5TH CIR. R. 47.5.4.                  Pro-Life Cougars was still able to display the
                                                           Justice for All Exhibit in Butler Plaza. In addition
   1
       The university maintains that all student           to enjoining enforcement of the first policy, the
groups were denied access to Butler Plaza as an            preliminary injunction specifically prevented the
interim measure while the student expressive ac-           university from denying Pro-Life Cougars access
tivity policy was under review.                            to Butler Plaza.

                                                       2
                       II.                                   Cougar’s claims are the sameSSthe constitu-
   We have appellate jurisdiction to review a                tionality of the first policy.
preliminary injunction and the refusal to dis-
solve that injunction. 28 U.S.C. § 1292(a)(1).                  The appeal is DISMISSED for want of jur-
Where, however, a decision on the merits is                  isdiction. We express no view on the merits of
rendered during the appeal of a preliminary in-              this appeal or any related litigation.
junction, the preliminary injunction becomes
moot, and we lose jurisdiction.3 In other
words, the preliminary injunction merges with
the decision on the merits. The defendants
“will be able to obtain as broad a review on the
merits of the order granting the permanent
injunction as they could have obtained on ap-
peal from the order granting the preliminary
injunction.” La. World Exposition, 746 F.2d
at 1038.

   Of course, this is not the case where the
final judgment does not resolve the issue raised
by the appeal of the preliminary injunction.
For example, in Stacey G. v. Pasadena Indep.
Sch. Dist., 695 F.2d 949, 955 (5th Cir. 1983),
we reviewed a preliminary injunction requiring
a school district to pay the interim private
school costs of a child who sought the provi-
sion of public special education services. The
final judgment requiring the school district to
provide special education services did not
moot the subject of the preliminary injunction.
Id. Here, the issues raised by the preliminary
injunction and final disposition of Pro-Life

   3
     E.g., Grupo Mexicano de Desarrollo, S.A. v.
Alliance Bond Fund, Inc., 527 U.S. 308, 314
(1999) (“Generally, an appeal from the grant of a
preliminary injunction becomes moot when the trial
court enters a permanent injunction, because the
former merges into the latter.”); La. World Ex-
position, Inc. v. Logue, 746 F.2d 1033, 1038 (5th
Cir. 1984) (“Once an order granting a permanent
injunction is entered, the order granting the prelimi-
nary injunction is merged with it, and an appeal is
proper only from the order granting the permanent
injunction.”).

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