     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.

17               Appeal from a judgment of the United States District

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

19   Judge).    The district court granted summary judgment upholding

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

21   policy pursuant to which the defendant distributed funds to

22   student groups.     We conclude that because the challenged policy

23   has been repealed and the plaintiffs have stipulated to having

24   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,

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

26   361 U.S. 363, 367 (1960) (internal quotation marks omitted).

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

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

3    that it has been repealed, that is not the remedy the plaintiffs

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

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

6    defendant Student Association's policies for allocating mandatory

7    student activity fee money to recognized student groups in effect

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

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

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

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

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

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

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

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

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

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

18   $1.00, without any mention of an injunction.   And we could not

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

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

21   declaration that the policy was unconstitutional would be

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

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

24   proper judicial resolution of a 'case or controversy' rather than

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



                                      4
1    affects the behavior of the defendant towards the plaintiff.")

2    (emphasis in original).

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

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

5    decision that would confer any relief to the plaintiffs and

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

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

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

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

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

11   108 F.3d 637, 645 (6th Cir. 1997) (referring to "general rule

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

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

14   (1982) (upholding justiciability of challenge to practice that

15   City had voluntarily ceased but planned to reinstate).

16              The parties' failure to raise in their briefs the

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

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

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

20   the presence or absence of subject matter jurisdiction sua

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

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

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

24   matter jurisdiction).




                                      5
1              For these reasons, the appeal is dismissed as moot and

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

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

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

5    except where actions attributable to one of the parties rendered

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

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

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

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

10   vacatur "avoids giving preclusive effect to a judgment never

11   reviewed by an appellate court" (internal quotation marks

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

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

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

15   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
     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.").

                                      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.




                                    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.
