     Case: 17-11450      Document: 00514925011         Page: 1    Date Filed: 04/22/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                                                              FILED
                                    No. 17-11450                          April 22, 2019
                                  Summary Calendar
                                                                         Lyle W. Cayce
                                                                              Clerk
SEPTIMUS ANDERSON,

                                                 Petitioner-Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 2:17-CV-57


Before STEWART, Chief Judge, and GRAVES and DUNCAN, Circuit Judges.
PER CURIAM: *
                         ON PETITION FOR REHEARING
       The appellant’s petition for panel rehearing is granted. The prior panel
opinion, Anderson v. Davis, No. 17-11450 (5th Cir. Dec. 3, 2018), is withdrawn,
and the following opinion is substituted therefor.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 17-11450     Document: 00514925011      Page: 2   Date Filed: 04/22/2019


                                  No. 17-11450

      Septimus Anderson appeals the district court’s denial of his 28 U.S.C.
§ 2254 petition, challenging his prison disciplinary conviction, which resulted
in the loss of commissary, recreation and phone privileges, and a reduction in
custody classification, as violative of due process. Following his disciplinary
conviction, the Texas Parole Board rescinded its decision to award him
conditional release to In Prison Therapeutic Community Treatment, which, if
completed successfully, would result in parole, and it imposed a one-year setoff
for parole consideration. Anderson requested that the disciplinary conviction
be overturned and that his punishment be rescinded so that his parole decision
could be reinstated.
      After denying habeas relief, the district court granted Anderson a
certificate of appealability on the issue of whether due process was implicated
where a prisoner has been “approved for release to parole but a prison
disciplinary proceeding punishment results in a withdrawal of the parole
release which had previously been granted and extends the imprisonment for
one year.” However, while the instant appeal was pending, in October 2018,
Anderson was released on parole.
      “Whether an appeal is moot is a jurisdictional matter, since it implicates
the Article III requirement that there be a live case or controversy.” United
States v. Heredia-Holguin, 823 F.3d 337, 340 (5th Cir. 2016) (internal
quotation marks and citation omitted).           Under the case-or-controversy
requirement, “[t]o invoke the jurisdiction of a federal court, a litigant must
have suffered, or be threatened with, an actual injury traceable to the
defendant and likely to be redressed by a favorable judicial decision.” Id.
(quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990)). The Supreme
Court has explained that the “case-or-controversy requirement subsists
through all stages of federal judicial proceedings, trial and appellate . . . . The



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                                  No. 17-11450

parties must continue to have a ‘personal stake in the outcome’ of the lawsuit.”
Spencer v. Kemna, 523 U.S. 1, 7 (1998). “A case becomes moot only when it is
impossible for a court to grant any effectual relief whatever to the prevailing
party.” Heredia-Holguin, 823 F.3d at 340 (internal quotation marks and
citation omitted).
        Here, Anderson’s release on parole renders moot his request to have his
previously authorized parole reinstated. See Heredia-Holguin, 823 F.3d at
340. Consequently, there is no live case or controversy, and the instant appeal
must be dismissed for lack of jurisdiction. See id.; see also Spencer, 523 U.S.
at 7.
        Anderson also cites Alvarez v. Smith, 558 U.S. 87 (2009), in support of
his request that this court vacate the district court’s judgment. See Hall v.
Louisiana, 884 F.3d 546, 550 (5th Cir. 2018) (“An appellate court’s authority
to vacate a district court’s judgment when a pending appeal has become moot
is 28 U.S.C. § 2106.”). In Alvarez, the Supreme Court concluded that, because
the circumstances of that case indicated that mootness resulted from
“happenstance” rather than settlement and because there were no
considerations of fairness or equity which tilted against vacatur, remand to the
district court with instructions to dismiss was appropriate. 558 U.S. at 94–97
(“We consequently conclude that we should follow our ordinary practice,
thereby ‘clear[ing] the path for future relitigation of the issues.’” (citing United
States v. Munsingwear, Inc., 340 U.S. 36, 40 (1950)).
        Here, Anderson’s appeal became moot because he was released on parole.
We are not persuaded under the facts of this case that Anderson’s acceptance
of parole constituted the type of “settlement” contemplated by the Supreme
Court in U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 20 (1994)
(“Bancorp and Bonner stipulated to a consensual plan of reorganization, which



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                                 No. 17-11450

received the approval of the Bankruptcy Court. The parties agreed that
confirmation of the plan constituted a settlement that mooted the
case.”). Accordingly, the event which mooted Anderson’s appeal, his being
released on parole, favors the category of “happenstance” rather than
settlement and thus counsels against vacatur. Alvarez, 558 U.S. at 95 (“[W]e
conclude that the terminations here fall on the ‘happenstance’ side of the
line.”).
       We are still required, however, to determine whether any considerations
of fairness or equity weigh against vacatur. Id. Although historically, the
established rule when a civil case became moot on appeal was to vacate the
district court’s judgment, the Supreme Court has since articulated that
vacatur is not automatic but is instead an “extraordinary” remedy warranted
when a case-by-case weighing of the equities indicates that it is appropriate.
Staley v. Harris Cty., Tex., 485 F.3d 305, 310 (5th Cir. 2007) (en banc) (citing
Bancorp, 513 U.S. at 23–26). “The burden is on the party seeking relief from
the status quo of the lower court judgment to demonstrate equitable
entitlement to the extraordinary remedy of vacatur.” Staley, 485 F.3d at 310
(internal quotation marks and citation omitted).
       Here, Anderson has failed to show how considerations of fairness or
equity entitle him to the extraordinary remedy of vacatur. Id. Moreover, as the
respondent argues, this court has acknowledged that the public interest weighs
against vacatur because “the preservation of the district court judgment serves
the judicial and community interests by discouraging relitigation of the
identical issues by the same parties under the same circumstances.” Id. at 313–
14. For these reasons, we deny Anderson’s request for equitable vacatur of the
district court’s judgment.
       APPEAL DISMISSED WITHOUT PREJUDICE.



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