October 10, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1629
TROY E. BROOKS,
Plaintiff, Appellant,
v.
NEW HAMPSHIRE SUPREME COURT, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Stahl, Circuit Judges.
Philip T. Cobbin on brief for appellant.
Jeffrey R. Howard, Attorney General, and Stephen J. Judge, Senior
Assistant Attorney General, on brief for appellees.
Per Curiam. Plaintiff-appellant Troy E. Brooks appeals
from the district court's dismissal of his case based upon
the abstention doctrine of Younger v. Harris, 401 U.S. 37
(1971). We summarily affirm.
I. Mootness
Subsequent to the district court's dismissal of this
case, the New Hampshire Supreme Court issued its published
opinion in Petition of Troy E. Brooks, 140 N.H. 813 (1996).
The state court held that "[t]he confidentiality provisions
of prior Supreme Court Rule 37(17)(a) and (g) were not
sufficiently narrowly tailored to meet compelling State
interests and accordingly have failed first amendment
scrutiny." The court also noted that Brooks' relevant
alleged conduct "would not run afoul of the rules as they
have been amended," and declared that it would not use its
contempt powers against Brooks pursuant to the pre-amendment
Rule 37(17)(g).
In light of this decision, we find that Brooks' federal
claims for equitable relief are moot. "Under Article III of
the Constitution, federal courts may adjudicate only actual,
ongoing cases or controversies. . . . This case-or-
controversy requirement subsists through all stages of
federal judicial proceedings, trial and appellate." Lewis v.
Continental Bank Corp., 494 U.S. 472, 477 (1990). This court
may address mootness although neither party has raised it.
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See 13A Charles A. Wright, Arthur R. Miller & Edward H.
Cooper, Federal Practice & Procedure, 3533.1, pp. 226-27
(1984 & 1996 Supp.). "Where declaratory relief is sought,
plaintiff must show that there is a substantial controversy
over present rights of 'sufficient immediacy and reality'
requiring adjudication." Boston Teachers Union, Local 66 v.
Edgar, 787 F.2d 12, 15-16 (1st Cir. 1986).
The live controversy between Brooks and the defendants
ended when the New Hampshire Supreme Court issued its
published opinion declaring that the challenged provisions of
Rule 37(17) violated the First Amendment and stating that it
would not use its contempt powers against Brooks pursuant to
the pre-amendment Rule 37(17)(g). All of the injunctive and
declaratory relief that Brooks sought in his federal
complaint was obtained as a result of the state court's
decision. Brooks states in his brief that "the post suit
amendment by defendants is subject to impinging Mr. Brooks'
rights as he is engaged in an ongoing controversy with
attorneys regarding his right as a father." Appellant's
Brief, p. 3. Those hypothetical future claims, however, are
not of sufficient "immediacy and reality" to satisfy the
case-or-controversy requirement. Boston Teachers Union,
Local 66, 787 F.2d at 15-16.
This case does not fall within the exception to the
mootness doctrine for voluntary cessation of allegedly
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illegal conduct. "This exception is meant to prevent
defendants from defeating a plaintiff's efforts to have its
claims adjudicated simply by stopping their challenged
actions, and then resuming their 'old ways' once the case
became moot." Boston Teachers Union, Local 66, 787 F.2d at
16. Given the New Hampshire Supreme Court's decision
declaring the challenged pre-amendment provisions
unconstitutional, there is "'no reasonable expectation that
the wrong will be repeated.'" Preiser v. Newkirk, 422 U.S.
395, 402 (1975) (citations omitted).
II. Attorney's Fees
Brooks argues that the district court erred in
dismissing, rather than staying, the federal action because
it included a request for attorney's fees and costs. In
Quackenbush v. Allstate Ins. Co., 116 S. Ct. 1712, 1728
(1996), the Supreme Court held that "federal courts have the
power to dismiss or remand cases based on abstention
principles only where the relief being sought is equitable or
otherwise discretionary. Because this was a damages action,
we conclude that the District Court's remand order was an
unwarranted application of the Burford doctrine."
Quackenbush, 116 S. Ct. at 1728. Because Brooks' federal
suit was not an action for damages, and the relief it sought
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"is equitable or otherwise discretionary," the abstention-
based dismissal was within the court's power. 1
1
The district court's dismissal of this case is summarily
affirmed. See Loc. R. 27.1.
1 To the extent that Brooks argues that the requirements
1
of Younger have not been met, this court already decided that
issue in its previous decision. See Brooks v. New Hampshire
Supreme Court, 80 F.3d 633, 638-39 (1st Cir. 1996).
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