In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1670
CHRISTOPHER PORCO,
Plaintiff-Appellant,
v.
TRUSTEES OF INDIANA UNIVERSITY, et al.
Defendants-Appellees.
____________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:03-cv-1388-DFH-VSS—David F. Hamilton, Judge.
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ARGUED SEPTEMBER 12, 2005—DECIDED JUNE 22, 2006
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Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.
ROVNER, Circuit Judge. Like many state universities,
Indiana University charges nonresident students higher
tuition than their Indiana resident counterparts. Christo-
pher Porco was born and raised in Michigan, but he at-
tended law school in Indiana. Shortly after he finished his
first year at Indiana University School of Law, Porco
petitioned for reclassification as an Indiana resident for
purposes of tuition. The University denied Porco’s petition,
and he thereafter filed suit against the Trustees of Indiana
University, the Standing Committee on Residence, the
Chair of the Standing Committee on Residence, and the
Associate Registrar (collectively, “the University”), all in
2 No. 05-1670
their official capacities. Porco alleged that the University’s
system for classifying resident and nonresident students
violated the Privileges and Immunities, Equal Protection,
and Due Process Clauses of the United States Constitution.
He demanded a preliminary injunction to prevent
the defendants from collecting nonresident tuition from him
under the University’s classification system, which he
sought to have declared unconstitutional. The defendants
moved to dismiss Porco’s suit for lack of standing, and
moved in the alternative for summary judgment. The
district court dismissed the suit in part and granted the
defendants’ motion for summary judgment as to the
remainder. Porco appeals, but we dismiss his appeal as
moot for the reasons stated herein.
I.
Porco was born in Michigan and attended school in
DeWitt, Michigan, until his graduation from high school
in 1997. After graduation, he remained in Michigan, where
he attended college at Alma College in Alma, Michigan.
After graduating from college, Porco applied to law schools
in Indiana, Illinois, and California. He accepted an offer of
admission from the University of Indiana School of Law and
moved from Michigan to Indianapolis, Indiana, in August
2001. Later that same month, he began attending Indiana
University as a full-time law student.
The University maintains a set of “Rules Determining
Resident and Nonresident Status for Indiana University
Fee Purposes” (“Residency Rules”) setting forth the policy
under which a student is classified as either a resident or
nonresident for fee-paying purposes. Under those rules, a
student is considered a “resident student” if he or she has,
for reasons other than attending school, “continuously
resided in Indiana for at least twelve (12) consecutive
months immediately preceding the first day of classes of the
No. 05-1670 3
semester.” If not (subject to certain exceptions irrelevant
here), the student is classified as a nonresident, and must
pay a “nonresident fee” as long as he remains “continuously
enrolled in the University.” Although it is not entirely clear
from the record what the nonresident fee was at the time
Porco filed suit, the current nonresident fee for graduate
level courses is an additional $224.50 per credit hour.
Porco paid the higher nonresident tuition for his first and
second semesters of law school. Upon finishing his second
semester, Porco applied to be classified as an Indiana
resident. On May 27, 2002, he submitted the University’s
“Application for Classification as a Resident Student at
Indiana University for Fee-Paying Purposes.” In it, he set
forth the steps he had taken that he maintained evidenced
his status as an Indiana resident. Specifically, Porco had
registered to vote in Indiana, had obtained an Indiana
driver’s license, had registered his car in Indiana, and had
opened an Indiana bank account. He had secured part-time
employment in Indiana during his second semester of law
school and also had a full-time summer job at a law firm in
Indiana. Porco also submitted a “personal statement,” in
which he professed his intention to reside in Indiana for the
rest of his life and raise a family there. For example, he
explained his rejection of an offer of admission from the
University of San Diego as follows: “I turned down this
‘California dream’ because I knew it wasn’t where I
belong—I belong in Indiana.” He concluded with the
observation that, “I may not be a Hoosier by birth but I am
one by choice.”
Thomas A. May, the Associate Registrar, denied Porco’s
request. May explained that Porco was ineligible for
reclassification under Residency Rules 1a and 1b. Rule 1a
provides that an individual who moves to Indiana from
another state does not acquire residency (for fee-paying
purposes) until he resides in the state for at least twelve
consecutive months, and Rule 1b explains that time spent
4 No. 05-1670
in Indiana “for the predominant purpose of attending a
college, university, or other institution of higher education”
does not count toward the twelve-month requirement. At
the time he applied for reclassification, Porco had been in
Indiana just over nine months, and had been attending
law school for almost that entire time. Thus, May ex-
plained, he did not meet the criteria for reclassification
under Rule 1a and 1b.
Porco appealed May’s decision to the Standing Committee
on Residence and was granted a hearing on his appeal on
June 11, 2002. At the hearing, Porco again represented that
he intended to make Indiana his permanent home, and
reiterated the things he had done to that end, such as
obtaining an Indiana driver’s license and staying in Indiana
to work for the summer. Approximately one month after the
hearing, Jo Anne Bowen, Chair of the Standing Committee
on Residence, wrote Porco to inform him that the Commit-
tee had denied his appeal. Bowen explained that the
Committee had considered Porco’s reasons for coming to
Indiana and his reasons for staying, but concluded that his
predominant purpose in coming was to attend school, and
that his purpose had not changed. Porco thus paid the
nonresident fee for Fall semester 2002 and Spring semester
2003.
At the beginning of what would be his final semester, Fall
2003, Porco sued Jo Anne Bowen, Thomas May, the Stand-
ing Committee on Residence, and the Trustees of Indiana
University. He alleged that the University’s Residency
Rules, both facially and as applied to him, violated the
Equal Protection Clause of the Fourteenth Amendment, the
Due Process Clause of the Fifth Amendment, and the
Privileges and Immunities Clause of the Fourteenth
Amendment. In his complaint, Porco requested, among
other things, a preliminary injunction ordering the Univer-
sity to reclassify him as a resident student so that he could
pay the lower rate of tuition and continue with his classes
No. 05-1670 5
while the case was pending. Before the court ruled on
Porco’s request for injunctive relief, the parties reached an
agreement. In lieu of litigating Porco’s request for injunc-
tive relief under the time pressures created by the four-
month semester, they agreed that Porco would tender the
difference between that semester’s resident and nonresident
tuition—$5,825.60—to the Clerk of the Court to be dis-
persed in accordance with the court’s final judgment.
The University then moved to dismiss Porco’s suit, or, in
the alternative, for summary judgment. It argued that
Porco lacked standing to challenge the Residency Rules
because he had never truly intended to live permanently in
Indiana, as evidenced by the fact that he had returned to
Michigan after graduating from law school. Alternatively,
it argued that Porco’s challenges failed on the merits
because the Residency Rules were constitutional under
Vlandis v. Kline, 412 U.S. 441 (1973), and other Supreme
Court precedent allowing state schools to establish bona
fide residency criteria for out-of-state students. Porco also
moved for summary judgment.
The district court entered judgment for the defendants. It
broke down Porco’s challenges to the Residency Rules into
two parts: challenges to the twelve-month durational
requirement in Rule 1a, and challenges to the “predominant
purpose” test in Rule 1b. The court agreed with the defen-
dants that Porco lacked standing to challenge the twelve-
month residency requirement in 1a. The court concluded
that the defendants had ultimately denied Porco’s applica-
tion under Rule 1b (the “predominant purpose” provision),
and thus none of Porco’s alleged injury was traceable to
Rule 1a. The court then determined that Porco had stand-
ing to challenge the “predominant purpose” test in Rule 1b,
but that his challenge failed on the merits because the rule
was rationally related to Indiana’s legitimate interest in
ensuring that only bona fide residents received the in-state
tuition rate. It thus granted the defendants’ motion to
6 No. 05-1670
dismiss as it related to Porco’s challenge to the durational
portion of the residency rules, and granted summary
judgment to the defendants on Porco’s remaining claims.
The court’s judgment included an instruction to the Clerk
of the Court to distribute the disputed $5,825.60 to the
defendants. The Clerk did so on March 10, 2004, ten
business days and fourteen calendar days after the court
entered judgment (February 24, 2005). On March 14, Porco
appealed, and he simultaneously moved to stay the execu-
tion of judgment pending appeal, citing Federal Rule of
Appellate Procedure 8(a)(1)(A) (instructing litigants to move
first in the district court for a stay of judgment pending
appeal). Because the Clerk had already distributed the
funds upon expiration of the 10-day automatic stay, see Fed.
R. Civ. P. 62(a), the court denied Porco’s motion to stay the
judgment as moot.
II.
On appeal, Porco reiterates his claim that the University’s
Residency Rules, both facially and as applied, violate the
Due Process and Equal Protection Clauses of the Constitu-
tion. He fails, however, to address the more fundamental
question with which we must begin: whether his appeal is
moot because the Clerk has already distributed the dis-
puted $5,825.60 to the University.
Article III, § 2 of the Constitution gives federal courts the
power to adjudicate only “actual, ongoing, controversies.”
Honig v. Doe, 484 U.S. 305, 317 (1988); Brown v.
Bartholomew Consol. Sch. Corp., 442 F.3d 588, 596 (7th Cir.
2006). Accordingly, it is well-settled that a federal court
“has no authority to give opinions upon moot questions or
abstract propositions, or to declare principles or rules of law
which cannot affect the matter in issue in the case before
it.” Church of Scientology v. United States, 506 U.S. 9, 12
(1992) (citation and internal quotations omitted). If at any
No. 05-1670 7
stage of the proceedings, an event occurs which renders it
impossible for the court to provide “any effectual relief
whatever,” to the prevailing party, the case must be
dismissed. Id. (quoting Mills v. Green, 159 U.S. 651, 653
(1895)); see also United States v. Balint, 201 F.3d 928, 936
(7th Cir. 2000). The University maintains that the Clerk’s
distribution of the $5,825.60 is just such an intervening
event. That figure represents the difference between
resident and nonresident tuition for Porco’s final semester,
and is concededly the only thing still at issue in Porco’s suit.
As explained above, the district court’s entry of judgment
on February 24, 2005 included an instruction to the Clerk
to “distribute to defendants the funds deposited with the
court in this action.” Federal Rule of Civil Procedure 62(a)
provides for a ten-day automatic stay on the execution of
judgment. See Fed. R. Civ. P. 62(a). Rule 62 also allows an
appellant to post a supersedeas bond to obtain a stay
pending appeal. See Fed. R. Civ. P. 62(d). In Porco’s case,
when the automatic stay expired on March 10, 2005, the
Clerk distributed the funds. Porco appealed four days later,
on March 14, and only then did he move to stay the judg-
ment pending appeal, citing Federal Rule of Appellate
Procedure 8(a) instead of Rule 62(d). By then, the funds had
already been released.
In the ordinary case, Porco’s failure to obtain a stay
pursuant to Rule 62(d) would not moot his appeal because
he could seek reimbursement if he succeeded on appeal. See
Dale M. ex rel. Alice M. v. Bd. of Educ., 237 F.3d 813, 815
(7th Cir. 2001) (“A judgment creditor who pays the judg-
ment pending appeal instead of posting a supersedeas
bond . . . is entitled to the return of its money if the decision
is reversed, and so the payment does not moot the appeal
unless the appellant has relinquished his right to seek
repayment if he wins.”). However, that is not possible here.
Indiana University is a part of the state, see Omosegbon v.
Wells, 335 F.3d 668, 672 (7th Cir. 2003), and thus the
8 No. 05-1670
Eleventh Amendment protects the defendants (all sued in
their official capacities) from satisfying a money judgment.
See, e.g., Edelman v. Jordan, 415 U.S. 651, 663 (1974) (“[A]
suit by private parties seeking to impose a liability which
must be paid from public funds in the state treasury is
barred by the Eleventh Amendment.”). Porco agreed in the
district court to withdraw his claim for injunctive relief
(which may have come within the Ex parte Young exception
to the Eleventh Amendment, see Wells, 335 F.3d at 673),
and in exchange the University tendered the disputed sum
to the Clerk. Because Porco failed to timely seek a stay on
the execution of the court’s judgment, as he was entitled to
do under Rule 62(d), Porco’s suit is now essentially one for
monetary compensation from the state. As such, it is barred
by the Eleventh Amendment. See Edelman, 415 U.S. at 663;
see also Lapides v. Bd. of Regents, 535 U.S. 613, 617 (2002)
(“[A] State is not a ‘person’ against whom a § 1983 claim for
money damages might be asserted.”); Doe v. Heck, 327 F.3d
492, 508 n.13 (7th Cir. 2003) (“To the extent the plaintiffs’
suit against the defendants in their official capacities with
the Bureau [of Milwaukee Child Welfare] seeks retrospec-
tive monetary damages, this action constitutes a suit
against the state that is prohibited by the Eleventh Amend-
ment.”).
Porco recognized as much in his motion for a stay pending
appeal. In that motion, he acknowledged that because the
defendants are state officials sued in their official capaci-
ties, without a stay he would “lose his right to an appeal.”
Despite his apparent awareness that his case would become
moot if the funds were distributed, Porco’s opening brief on
appeal makes no mention of the possibility that his appeal
became moot when the Clerk distributed the funds.
Instead, Porco waits until his reply brief to respond
briefly to the University’s contention that the case is moot.
He then suggests that his case is not moot because if he
prevailed he could still obtain costs. He also claims that the
No. 05-1670 9
district court erred when it denied his motion for a stay
pending appeal. These arguments, appearing as they do for
the first time in Porco’s reply brief, are waived. E.g., Hart
v. Transit Mgmt., 426 F.3d 863, 867 (7th Cir. 2005) (per
curiam). Moreover, they are meritless. To support his
contention that he could still obtain costs, Porco points out
that the Eleventh Amendment “does not bar monetary
relief, including costs, ancillary to the [sic] prospective
injunctive relief.” But Porco no longer has a claim for
injunctive relief. Not only has he since graduated from
Indiana University, Porco withdrew his claim for injunctive
relief when the University deposited the $5,825.60, so his
contention about costs is irrelevant. As for his claim that
the district court erred by denying his motion for a stay, it
is based largely on his own belief that it is “illogical and
contradicting” that he is allowed 30 days to file a notice of
appeal but only 10 days to request a stay. We see no
contradiction in the rule, and the fact that it requires
some vigilance on the part of the appellant does not make
it “illogical.” Porco also claims that at the time he moved for
a stay, he did not know that the Clerk had already executed
the judgment. He cites no authority, however, suggesting
that the Clerk had a duty to inform him before distributing
the funds. See Weinstein v. Schwartz, 422 F.3d 476, 477 n.1
(7th Cir. 2005) (reiterating rule that unsupported or
undeveloped arguments are waived).
Porco’s arguments boil down to a protest that it is not his
fault that the funds were distributed. This court rejected a
similar line of reasoning in Fink v. Cont’l Foundry and
Mach. Co., 240 F.2d 369 (1957). In Fink, shareholders of
Continental, a large steel foundry and manufacturing
company, filed suit to enjoin Continental from liquidating
and selling its assets to another corporation. Id. at 371. The
district court denied the plaintiffs’ request for a permanent
injunction, and thereafter Continental moved forward with
the sale and liquidation pursuant to the terms of a previ-
10 No. 05-1670
ously agreed-upon purchase agreement. Id. This court
rejected the plaintiffs’ claim that the sale had not mooted
the appeal. The court explained that, “If plaintiffs desired
that the status quo be maintained pending appeal means
were afforded . . . by Rule 62.” Id. at 375. The court also
pointed out that although the plaintiffs “knew Continental
was contractually bound to sell and transfer its assets . . .
plaintiffs took no step under Rule 62 . . . to secure from the
trial court a temporary injunction or stay for the purpose of
maintaining the status quo pending appeal.” Id. at 374. The
same rationale applies here. The terms of the judgment
itself informed Porco that the Clerk would distribute the
funds to the University. Although he could have moved for
a stay pursuant to Rule 62(d) during the ten-day period
afforded by Rule 62(a), he did not do so. By the time he did
move for a stay, it was too late. See Fink, 240 F.2d at 373
(pointing out that plaintiffs could have sought delay in the
entry of judgment “if more time was required”). In distribut-
ing the funds the Clerk was simply executing the terms of
the judgment and thus cannot be blamed for Porco’s current
predicament. See id. at 375 (rejecting plaintiffs’ attempt
to blame defendant for causing case to become moot when
defendant “did only that which it had a right to do”).
In sum, Porco’s failure to seek a stay of the district court’s
judgment before it was executed means that there is no
relief this court can offer him. Cf. BASF Corp. v. Old World
Trading Co., 979 F.2d 615, 616 (7th Cir. 1992) (appealing
party must seek stay or risk possibility that prevailing
party will execute judgment on appeal); Fed. Deposit Ins.
Corp. v. Meyer, 781 F.2d 1260, 1263-64 (7th Cir. 1986)
(merely filing appeal without obtaining stay under Rule
62(d) does not prevent creditor from enforcing judgment).
The money in dispute has been distributed. Even if Porco’s
position on appeal had merit, he could not recover the funds
from the University because it is an arm of the State of
Indiana and thus protected by the Eleventh Amendment.
No. 05-1670 11
Cf. Balint, 201 F.3d at 936 (holding that defendants’ appeal
of restitution order was moot when a codefendant had paid
restitution in full; court could not “order the City to
refund . . . money that one of their colleagues paid”).
We therefore DISMISS Porco’s appeal as moot.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-22-06