     07-0891-cv
     College Standard Magazine v. SUNY Albany

1                         UNITED STATES COURT OF APPEALS

2                             FOR THE SECOND CIRCUIT

3                                August Term, 2008

4    (Argued:    December 22, 2008                   Decided:   July 1, 2010)

5                              Docket No. 07-0891-cv
6
7                    -------------------------------------

8     COLLEGE STANDARD MAGAZINE, JEFFREY SCOTT BAREA, and JULIEN A.M.
9                                  STARR,

10                             Plaintiffs-Appellees,

11                                       - v -

12       STUDENT ASSOCIATION OF THE STATE UNIVERSITY OF NEW YORK AT
13                                ALBANY,*

14                              Defendant-Appellant.

15                   -------------------------------------

16   Before:     NEWMAN, CALABRESI, and SACK, Circuit Judges.      Judge
17               Calabresi concurs in a separate opinion.

18               Appeal from a judgment of the United States District

19   Court for the Northern District of New York (Thomas J. McAvoy,

20   Judge).    The district court granted summary judgment upholding

21   the plaintiffs' facial challenge under the First Amendment to a

22   policy pursuant to which the defendant distributed funds to

23   student groups.     We conclude that because the challenged policy

24   has been repealed and the plaintiffs have stipulated to having

25   summary judgment entered against them on their as-applied



           *
           The State University of New York at Albany, named as a
     defendant in the Verified Complaint, was voluntarily dismissed
     while this case was pending in the district court.
1    challenge, the case is moot, and we therefore lack jurisdiction

2    to resolve the appeal.

3              Appeal dismissed; judgment vacated.

4                             LEWIS B. OLIVER, JR., Oliver & Oliver
5                             (Gideon O. Oliver, of counsel), Albany,
6                             NY, for Appellant.

7                             TOM MARCELLE, Albany, NY, for
8                             Appellees.

9    Per Curiam:

10             Defendant Student Association (the "SA") of the State

11   University of New York at Albany ("SUNY-Albany") appeals from a

12   decision of the United States District Court for the Northern

13   District of New York granting summary judgment in favor of

14   plaintiffs College Standard Magazine ("CSM"), a campus

15   organization that publishes a politically conservative newspaper,

16   and its founders, Jeffrey Barea and Julien Starr, on their

17   challenge under the First Amendment to a policy pursuant to which

18   the SA distributed funds comprising the proceeds of a mandatory

19   student activity fee to student groups.   The district court

20   concluded that the policy was facially unconstitutional because

21   it vested in the SA "unbridled discretion" to decide how to

22   distribute the funds, thereby presenting an impermissible risk of

23   viewpoint discrimination, and because unwritten guidelines

24   allegedly employed by the SA in making funding decisions

25   improperly implicated the viewpoint of putative recipients.

26             The plaintiffs were denied funding under the challenged

27   policy in February of 2003.   They initially challenged the policy


                                      2
1    both facially and as-applied.   After the district court ruled in

2    their favor on the facial challenge, the plaintiffs stipulated to

3    the entry of summary judgment against them on the as-applied

4    challenge from which they cannot and have not appealed.    Thus the

5    plaintiffs have conceded, for present purposes, that they

6    suffered no harm from the denial of funding to their organization

7    under the challenged policy.

8              This appeal therefore concerns only the plaintiffs'

9    facial challenge to the policy.   But the funding policy

10   challenged by the plaintiffs is no longer in place at SUNY-

11   Albany.   The SA amended its constitution in the Spring of 2003 to

12   include regulations on funding that explicitly require viewpoint

13   neutrality.   The plaintiffs have made clear that this lawsuit

14   does not challenge the new funding policy, and there is no

15   indication that the former, challenged funding policy will be

16   reinstated.

17             We are thus asked to consider the constitutionality of

18   a funding policy that is no longer in effect, and that is not

19   alleged to have caused the plaintiffs harm when it was in effect.

20   This we cannot do.   We are restricted to deciding "actual

21   controversies by a judgment which can be carried into effect, and

22   not to give opinions upon moot questions or abstract

23   propositions, or to declare principles of law which cannot affect

24   the matter in issue in the case before [us]."   Local No. 8-6,




                                       3
1    Oil, Chem. and Atomic Workers Int'l Union, AFL-CIO v. Missouri,

2    361 U.S. 363, 367 (1960) (internal quotation marks omitted).

3              There is no judgment we could issue here that could be

4    effective.   Even if we could enjoin the challenged policy now

5    that it has been repealed, that is not the remedy the plaintiffs

6    are currently seeking.   In their stipulation, they have agreed

7    that "with regard to the claim in the complaint that the

8    defendant Student Association's policies for allocating mandatory

9    student activity fee money to recognized student groups in effect

10   on February 14, 2003 were unconstitutional on [their] face, the

11   plaintiffs are entitled to an award of nominal damages in the

12   amount of one dollar ($1.00) upon the [District] Court's

13   determination set forth in the transcript of the Court's bench

14   Decision."   See Stipulation of Settlement and Order, College

15   Standard Magazine v. Student Ass'n of the State Univ. of N.Y. at

16   Albany, No. 03 Civ. 0505 (N.D.N.Y. Mar. 30, 2005), Doc. No. 107

17   (Feb. 2, 2007).   The district court's judgment, from which the

18   plaintiffs have not cross-appealed, similarly reflects that the

19   parties stipulated to an amount of damages in the total sum of

20   $1.00, without any mention of an injunction.   And we could not

21   order damages for any harm the policy inflicted on the plaintiffs

22   because the as-applied challenge has been conceded.   Any

23   declaration that the policy was unconstitutional would be

24   strictly advisory.   Cf. Hewitt v. Helms, 482 U.S. 755, 761 (1987)

25   ("The real value of the judicial pronouncement –- what makes it a



                                      4
1    proper judicial resolution of a 'case or controversy' rather than

2    an advisory opinion –- is in the settling of some dispute which

3    affects the behavior of the defendant towards the plaintiff.")

4    (emphasis in original).

5               In light of the repeal of the challenged policy and the

6    concession as to the as-applied challenge, we cannot issue a

7    decision that would confer any relief to the plaintiffs and

8    therefore lack jurisdiction over this appeal.   See, e.g., Church

9    of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992)

10   ("appeal must be dismissed" as moot where court cannot grant

11   "'any effectual relief whatsoever'" (quoting Mills v. Green, 159

12   U.S. 651, 653 (1895)); see also Ky. Right to Life, Inc. v. Terry,

13   108 F.3d 637, 645 (6th Cir. 1997) (referring to "general rule

14   that legislative repeal of a statute renders a case moot"); cf.

15   City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289

16   (1982) (upholding justiciability of challenge to practice that

17   City had voluntarily ceased but planned to reinstate).

18              The parties' failure to raise in their briefs the

19   question of whether this appeal is moot for the foregoing reasons

20   does not allow us to proceed despite the absence of a live case

21   or controversy.   "[W]e have an independent obligation to consider

22   the presence or absence of subject matter jurisdiction sua

23   sponte."   Joseph v. Leavitt, 465 F.3d 87, 89 (2d Cir. 2006); see

24   also, e.g., Muhammad v. City of New York Dep't of Corr., 126 F.3d




                                      5
1    119, 122-23 (2d Cir. 1997) (mootness is an issue of subject

2    matter jurisdiction).

3              For these reasons, the appeal is dismissed as moot and

4    the judgment of the district court is vacated.1   "It is well-

5    established that, when a matter becomes moot on appeal, federal

6    appellate courts will generally vacate the lower court's judgment

7    except where actions attributable to one of the parties rendered

8    the appeal moot . . . ."   Catanzano v. Wing, 277 F.3d 99, 108 (2d

9    Cir. 2001) (internal quotation marks omitted).    See United States

10   v. Munsingwear, Inc., 340 U.S. 36, 39-40 (1950); see also Van Wie

11   v. Pataki, 267 F.3d 109, 115 (2d Cir. 2001) (explaining that

12   vacatur "avoids giving preclusive effect to a judgment never

13   reviewed by an appellate court" (internal quotation marks

14   omitted)).   Cf. Russman v. Bd. of Educ. of Enlarged City Sch.

15   Dist. of City of Watervliet, 260 F.3d 114, 122 (2d Cir. 2001)

16   (noting exception to general rule of vacatur where "appellant has

17   caused the mootness").2

          1
           Because we vacate the judgment of the district court on
     the basis of the mootness of the appeal, we need not determine
     whether this case was moot while it was pending before the
     district court, which it may have been. See concurring opinion
     of Calabresi, J. If it was, of course, we would also be
     required to vacate the district court's decision for that
     independent reason.
          2
           The actions of the appellant SA did not cause the
     mootness. The challenged policy had already been repealed before
     the district court ruled on the facial challenge. Following that
     ruling, the parties stipulated to the entry of summary judgment
     against the plaintiffs on the as-applied challenge, thus
     effectively agreeing that the plaintiffs had suffered no harm
     from the policy. Cf. Russman, 260 F.3d at 122 ("[W]hen the

                                      6
1                              CONCLUSION

2             For the foregoing reasons, the appeal is dismissed for

3   want of jurisdiction, and the district court judgment is vacated.

4   The case is remanded to the district court and the court is

5   directed to dismiss the Verified Complaint as moot.




    appellee has caused the case to become moot, we vacate the
    district court's judgment to prevent the appellee from insulating
    a favorable decision from appellate review.").

                                    7
 1   CALABRESI, Circuit Judge, concurring:

 2           I agree with everything substantive in the per curiam opinion 1 and join it in full. I

 3   add a few lines because I think it is worthwhile to point out that this case was in fact

 4   moot at the district court level.

 5           In Spring 2003, the defendant Student Association abolished the challenged

 6   funding policy. In September 2005, the district court granted the Plaintiffs’ summary

 7   judgment motion as to liability. In October 2006, the parties entered into the stipulation

 8   that—we have held—caused this case to become moot. Then, in February 2007, final

 9   judgment was entered, and the Student Association timely appealed.

10           The event which led us to find that this case is moot happened between the district

11   court’s grant of summary judgment and the entry of final judgment below. I write to

12   underscore that even after summary judgment has been granted, if, before the entry of

13   final judgment, something occurs that causes a case to cease to be an Article III case or

14   controversy, that action becomes moot and should be dismissed forthwith. This is so

15   because the “case-or-controversy requirement subsists through all stages of federal

16   judicial proceedings,” Spencer v. Kemna, 523 U.S. 1, 7 (1998) (internal quotation marks

17   omitted); see also Altman v. Bedford Cent. Sch. Dist., 245 F.3d 49, 70 (2d Cir. 2001).

18           Moreover, the fact that the case was moot before the district court entered final

19   judgment forecloses any possible claim by the Plaintiffs for attorneys’ fees under 42

20   U.S.C. § 1988(b). “Whether [a plaintiff] can be deemed a ‘prevailing party’ in the

21   District Court, even though its judgment was mooted after being rendered but before the

22   losing party could challenge its validity on appeal, is a question of some difficulty.”

     1
       I would, however, for the sake of Latin, substitute “[nostra]” for “sua” in the quotation
     from Joseph v. Leavitt, 465 F.3d 87, 89 (2d Cir. 2006), ante, at 5.
1   Lewis v. Continental Bank Corp., 494 U.S. 472, 483 (1990); see also Diffenderfer v.

2   Gomez-Colon, 587 F.3d 445, 454 (1st Cir. 2009) (answering the question in the

3   affirmative and collecting other cases doing the same). But that question cannot arise in

4   this case. “Since the judgment below is vacated on the basis of an event that mooted the

5   controversy before the [district court’s] judgment issued, [the Plaintiffs were] not, at that

6   stage, . . . ‘prevailing part[ies]’ as [they] must be to recover fees under § 1988.” Lewis,

7   494 U.S. at 483.
