United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 24, 2007
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 04-20667
_____________________
KAY STALEY,
Plaintiff - Appellee,
versus
HARRIS COUNTY, TEXAS,
Defendant - Appellant.
__________________________________________________________________
Appeals from the United States District Court
for the Southern District of Texas
_________________________________________________________________
Before JONES, Chief Judge, KING, JOLLY, HIGGINBOTHAM, DAVIS, SMITH,
WIENER, BARKSDALE, GARZA, DeMOSS, BENAVIDES, STEWART, DENNIS,
CLEMENT, PRADO, and OWEN, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
We voted this case en banc to decide whether, in the factual
context presented, the display of a Bible in a monument dedicated
to a philanthropic citizen and located on the grounds of the Harris
County Civil Courthouse, violates the Establishment Clause. The
district court ordered the Bible removed. We decline, however, to
reach the merits of this appeal. Instead, we hold that the case is
moot because only days before oral argument in this en banc case,
the County removed the monument from the public grounds and placed
it in storage, to permit the ongoing renovation of the Courthouse
and its grounds. Furthermore, it is not known when, where, or
under what circumstance the monument and Bible will be restored on
the Courthouse grounds. Because the case is moot, we must decide
whether to vacate the district court judgment. This decision rests
upon equitable principles, and we conclude that the County has not
met its burden of showing that it is entitled to the equitable
relief of vacatur. We therefore DISMISS the appeal and REMAND the
case solely for a determination of appropriate attorneys’ fees.
I.
In our panel opinion, 461 F.3d 504, we set out the history of
the Mosher monument. The monument was erected on the Harris County
Civil Courthouse grounds in 1956 in honor of Houstonian
philanthropist William S. Mosher and was refurbished and
rededicated in 1995. See id. at 505-07. In considering whether
the display of the Bible in the monument violated the Establishment
Clause, we emphasized that Establishment Clause analysis is
context-specific and fact-intensive. See id. at 510-13. In the
specific context of the refurbishment and rededication of the
monument, the panel majority concluded that the display of the
Bible violated the Establishment Clause and thus affirmed the
district court’s judgment ordering the Bible removed. See id. at
513-15. The County timely petitioned for rehearing en banc, which
we granted.
About two months before oral argument of this en banc case, it
came to our attention that the Courthouse had closed for
renovations and would likely remain closed for a few years.
2
Accordingly, the Court asked the parties to brief these changes as
they affected the “case or controversy” requirement of Article III
of the U.S. Constitution.
In response, Harris County informed the Court that the
monument was scheduled to be removed and placed in storage during
the renovations of the Courthouse, and that the renovations would
not be completed until 2009 at the earliest. On January 19, 2007,
only four days before we heard oral argument as an en banc court,
Harris County removed the monument and placed it in storage.
Harris County specifically has asserted that it will display the
monument again after the renovations are complete.
II.
The question before us is whether this appeal is moot. The
district court ordered the Bible removed from the monument because
it concluded that the placement of the Bible in the monument
violated the Establishment Clause in the context of the facts of
this case. Because the monument and Bible are no longer displayed,
the County asks us to hold that the case has become moot, to
dismiss the appeal, and to vacate the judgment. We review
questions of mootness de novo. Ctr. for Individual Freedom v.
Carmouche, 449 F.3d 655, 659 (5th Cir. 2006), cert. denied, 127
S.Ct. 938 (2007).
Furthermore, the County emphasizes that no decision has been
made regarding when, where, or under what circumstances the
monument will be displayed again in the future. According to the
3
County, then, the monument’s future is too speculative to determine
whether the monument will violate the Establishment Clause in the
future. This raises questions of ripeness, which we also review de
novo. Id. In determining the constitutionality of a religious
display, the Supreme Court has made clear that “under the
Establishment Clause detail is key.” McCreary County, Ky. v. ACLU
of Ky., 545 U.S. 844, 867-68 (2005) (citing County of Allegheny v.
ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 595 (1989) (“[T]he
question is what viewers may fairly understand to be the purpose of
the display. That inquiry, of necessity, turns upon the context in
which the contested object appears”) (internal quotation marks and
citation omitted)).
The importance of facts and context is evident from the
respective outcomes in two recent Supreme Court decisions
addressing the constitutionality of Ten Commandments displays. See
McCreary, 545 U.S. at 844; Van Orden v. Perry, 545 U.S. 677 (2005).
In both McCreary and Van Orden, the issue before the Supreme Court
was whether a Ten Commandments display violated the Establishment
Clause. See McCreary, 545 U.S. at 850; Van Orden, 545 U.S. at 681.
The two cases, however, involved very different facts, and based on
the specific facts and context of each case, the Supreme Court
upheld the display in Van Orden but struck down the displays in
McCreary. See McCreary, 545 U.S. at 881; Van Orden, 545 U.S. at
692.
4
In Van Orden, the Court upheld a Ten Commandments display on
the Texas State Capitol grounds. Van Orden, 545 U.S. at 692. In
its opinion, the plurality distinguished the display from classroom
Ten Commandments displays held unconstitutional in Stone v. Graham,
449 U.S. 39 (1980) (per curiam), noting a “far more passive use of
those texts than was the case in Stone.” Van Orden, 545 U.S. at
691. Similarly, in his opinion concurring in the judgment in Van
Orden,1 Justice Breyer emphasized the importance of specific facts:
“While the Court’s prior tests provide useful guideposts ... no
exact formula can dictate a resolution to such fact-intensive
cases.” Van Orden, 545 U.S. at 700 (Breyer, J., concurring)
(internal citations omitted). Relying on the specific facts and
context surrounding the Ten Commandments display on the Texas State
Capitol grounds, Justice Breyer concluded that the display in this
“borderline case” did not violate the Establishment Clause and was
distinguishable from other Ten Commandments displays held
unconstitutional by the Supreme Court, including the displays in
McCreary. See id. at 700-03.
In McCreary, the Court struck down Ten Commandments displays
in two Kentucky county courthouses. The two counties had installed
1
For the purposes of our case today, Justice Breyer’s
concurrence is the controlling opinion in Van Orden. See Marks v.
United States, 430 U.S. 188, 193 (1977) (“When a fragmented Court
decides a case and no single rationale explaining the result enjoys
the assent of five Justices, the holding of the Court may be viewed
as that position taken by those Members who concurred in the
judgments on the narrowest grounds.” (internal quotations
omitted)).
5
a display in their respective courthouses, and after the ACLU sued,
the counties replaced them with a second set of displays.
McCreary, 545 U.S. at 851-53. The district court ordered the
second set of displays removed, and the counties installed a third
set of displays, which the district court also ordered removed.
Id. at 854-57. In its analysis, the Supreme Court looked to the
purpose of the Ten Commandments displays, explaining that “purpose
needs to be taken seriously under the Establishment Clause and
needs to be understood in light of context.” Id. at 874. The
Court held the first and second displays unconstitutional based on
the specific facts surrounding the displays. Id. at 868-70. The
Court also struck down the third set of displays, and in doing so,
the Court looked to the displays’ historical contexts and evaluated
them in the light of the first and second sets of displays. Id. at
871-72.
In this light, we see that this appeal is moot. Staley, an
attorney, claimed Article III standing because she passed the
monument going to and from the Courthouse in the course of her
occupation. Out of sight in some warehouse, the monument no longer
raises the potential Establishment Clause violations that offended
Staley. It follows that the appeal is no longer required either to
establish or to protect Staley’s First Amendment rights. See,
e.g., Harris v. City of Houston, 151 F.3d 186, 189 (5th Cir. 1998)
(“we find it beyond dispute that a request for injunctive relief
6
generally becomes moot upon the happening of the event sought to be
enjoined”).
Additionally, any dispute over a probable redisplay of the
Mosher monument is not ripe because there are no facts before us to
determine whether such a redisplay might violate the Establishment
Clause. Indeed, no decision has been made regarding any aspect of
the future display of the monument. In the absence of this
evidence, we are unable to conduct the fact-intensive and context-
specific analysis required by McCreary and Van Orden. Thus, any
claim that the Establishment Clause may be violated after the
Courthouse and grounds have been renovated, is not ripe for review.
See United States v. Carmichael, 343 F.3d 756, 761 (5th Cir. 2003)
(“A claim is not ripe for review if ‘it rests upon contingent
future events that may not occur as anticipated, or indeed may not
occur at all.’” (citing Texas v. United States, 523 U.S. 296, 300
(1998) (internal quotation marks omitted))).
III.
A.
Having concluded that this appeal is moot, we must now decide
whether to vacate the district court judgment. In deciding whether
to vacate, we first turn to the decisions of the Supreme Court. As
reflected in United States v. Munsingwear, Inc., 340 U.S. 36
(1950), historically, the established rule was to vacate the
judgment if the case became moot on appeal. Id. at 39; see also
Duke Power Co. v. Greenwood County, S.C., 299 U.S. 259, 267 (1936).
7
In U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S.
18 (1994), however, the Supreme Court rejected the longstanding
rule reflected in Munsingwear, see id. at 23-24.
In U.S. Bancorp, the Supreme Court stepped back from the
“automatic” vacatur that almost invariably had followed a finding
of mootness on appeal. See id. The Ninth Circuit had held that a
mortgagor could not proceed with a foreclosure sale because the
mortgagee had filed for bankruptcy. Id. at 20. Once the case was
before the Supreme Court, the parties settled and thus mooted the
case. Id. The mortgagor, U.S. Bancorp, then asked the Supreme
Court to vacate the decision of the Ninth Circuit. Id. In
contemplating whether to vacate, the Supreme Court took the
occasion to examine anew the general principles governing questions
of vacatur. Reviewing its precedents, the Supreme Court observed:
“From the beginning we have disposed of moot cases in the manner
most consonant to justice in view of the nature and character of
the conditions which have caused the case to become moot.” Id. at
24 (internal quotations and citations omitted). The Supreme Court
made clear and emphasized that vacatur is an “extraordinary” and
equitable remedy, see id. at 25-26; thus, vacatur is to be
determined on a case-by-case basis, governed by facts and not
inflexible rules. In weighing the equities, the Supreme Court
noted from its precedents “[t]he principal condition to which we
have looked is whether the party seeking relief from the judgment
below caused the mootness by voluntary action.” See id. at 24.
8
Thus, for example, “vacatur must be granted where mootness results
from the unilateral action of the party who prevailed in the lower
court.” Id. at 23. Furthermore, “[a] party who seeks review of
the merits of an adverse ruling, but is frustrated by the vagaries
of circumstance, ought not in fairness be forced to acquiesce in
the judgment.” Id. at 25. In response to an argument that both
parties agreed to the settlement and therefore both parties were
“jointly responsible,” the Supreme Court clarified that 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.” Id. at 26 (emphasis added). As
a component in determining the grant of equitable relief, the
Supreme Court also acknowledged the public interest, e.g., whether
vacatur might be abused by the losing party to advance a legal
position rejected by the lower court. See id. at 26-27. In the
light of these general equitable principles, the Supreme Court
ultimately denied vacatur to U.S. Bancorp because a party settling
a case has “voluntarily forfeited his legal remedy” of vacatur.
See id. at 25.
Three years after its decision in U.S. Bancorp, the Supreme
Court decided Arizonans for Official English v. Arizona, 520 U.S.
43 (1997), and, applying the equitable principles articulated in
U.S. Bancorp, concluded that vacatur was “the equitable solution.”
Arizonans, 520 U.S. at 75. In Arizonans, the plaintiff prevailed
in the district court, but while the case was on appeal, she
9
resigned from her public sector employment and mooted the case.
Id. at 72. The case thus mooted by her voluntary actions unrelated
to the litigation, the plaintiff then asked the Supreme Court to
leave the district court judgment in place. See id. at 74.
Notwithstanding that the case had been mooted by her voluntary
actions unrelated to the litigation, the Supreme Court rejected her
request and, without raising the question of whether the plaintiff
intended her actions to moot the case, concluded that “the
‘exceptional circumstances’ that abound in this case,” coupled with
a federalism concern, warranted vacatur. See id. at 75 (quoting
U.S. Bancorp, 513 U.S. at 29). Thus, in Arizonans, the Supreme
Court decided, on equitable grounds, the question of vacatur
against the party voluntarily causing mootness. See id. Since
Arizonans, the Supreme Court does not appear to have spoken on the
issue of vacatur.2
2
Since U.S. Bancorp and Arizonans, our Court has decided
questions of vacatur not inconsistent with the equitable principles
in U.S. Bancorp. For example, in cases mooted by actions that were
clearly unattributable to the voluntary actions of the parties, we
have consistently vacated. See Murphy v. Fort Worth Independent
School District, 334 F.3d 470, 471 (5th Cir. 2003) (per curiam)
(vacating because the appellee’s graduation was “happenstance” and
not “the voluntary action of the losing party”); AT&T Commc’ns of
the Sw., Inc. v. City of Dallas, Tex., 243 F.3d 928, 930-31 (5th
Cir. 2001) (vacating because the case was mooted by enactment of a
state statute and repeal of a city ordinance, not the “voluntary
action” of the appellant); AT&T Commc’ns of the Sw., Inc. v. City
of Austin, 235 F.3d 241, 244 (5th Cir. 2000) (vacating because the
case was mooted by enactment of a state statute, not the “voluntary
action” of the appellant); Pederson v. La. State Univ., 213 F.3d
858, 883 (5th Cir. 2000) (vacating because the appellee university
was “frustrated by the vagaries of circumstance”, that is, by the
appellant’s graduation). Similarly, in cases mooted by the
10
B.
Thus, in the light of the above, we now turn to consider
whether Harris County has met its burden of demonstrating an
“equitable entitlement to the extraordinary remedy of vacatur.”
See U.S. Bancorp, 513 U.S. at 26. Here, it is clear that Harris
County caused this case to become moot by voluntarily removing the
monument. Although the timing of the removal may be open to
question, we acknowledge that the bottom-line cause of the removal
was related to the ongoing renovations. Against this background,
the County’s basic argument is that its voluntary removal of the
monument was unrelated to the case and was not done with the intent
of mooting the case. Therefore, according to the County, the
mootness occurred by mere “happenstance”, and it is entitled to
vacatur as the usual default remedy under Munsingwear.
voluntary actions or inactions of a party, we have decided the
vacatur question in favor of the party that did not cause the case
to become moot. See Goldin v. Bartholow, 166 F.3d 710, 718-22 (5th
Cir. 1999) (vacating because appellees caused the mootness by
failing to substitute the proper defendant); Sierra Club v.
Glickman, 156 F.3d 606, 620 (5th Cir. 1998) (refusing to vacate
because the appellant mooted the case by voluntarily complying with
the district court’s judgment); Harris, 151 F.3d at 189-91
(vacating the district court judgment after the appellee city
mooted the case by completing the proposed annexation).
Nevertheless, even though these cases stand for the proposition
that the party causing mootness does not get the benefit of the
judgment below, none of these cases speak directly to the facts
before us today, and as we have indicated, U.S. Bancorp requires
that we determine vacatur after examining the equities of this
case. See U.S. Bancorp, 513 U.S. at 25-26.
11
As discussed above, the Supreme Court rejected the uniform
rule reflected in Munsingwear when it decided U.S. Bancorp. See
513 U.S. at 23-24. It is U.S. Bancorp, not the earlier case of
Munsingwear, that controls our decision today, and, as we have
indicated, U.S. Bancorp requires that we look at the equities of
the individual case. See id. at 25-26.
Nevertheless, it is true that the mootness in U.S. Bancorp
arose out of the litigation itself (settlement of the case) and it
might be said that the losing party intended to moot the case by
settling it. Among the post-U.S. Bancorp cases, the best support
for the County’s position seems to be Russman v. Board of
Education, 260 F.3d 114 (2d Cir. 2001).3 In Russman, the Second
Circuit acknowledged that under U.S. Bancorp, vacatur “depends on
the equities of the case,” and the “primary concern is the fault of
the parties in causing the appeal to become moot.” Id. at 121. In
Russman, the school prevailed in the district court; the plaintiff-
appellant student, Russman, then voluntarily withdrew from the
school and thus mooted the case while on appeal. Id. at 118-19.
The Second Circuit acknowledged that, generally, “where the
appellant has caused the mootness, we may dismiss the appeal
without vacating the district court’s judgment.” Id. at 122.
Notwithstanding this general rule, the Second Circuit followed a
3
See also Khodara Envtl., Inc. v. Beckman, 237 F.3d 186 (3d
Cir. 2001); Nat’l Black Police Assoc. v. Dist. of Columbia, 108
F.3d 346 (D.C. Cir. 1997); Dilley v. Gunn, 64 F.3d 1365 (9th Cir.
1995).
12
different approach in Russman (the “Russman approach”) to the
remedy of vacatur: “However, we believe conduct that is voluntary
in the sense of being non-accidental, but which is entirely
unrelated to the lawsuit, should not preclude our vacating the
decision below.” Id. (emphasis added). The Second Circuit went on
to vacate the district court judgment. Id. at 123.
We note, however, that even under the Russman approach, the
language “should not preclude” does not set out a hard and fast
rule; there is no language in Russman that bars other equitable
considerations -– if they happen to be present -– in fashioning a
remedy for mootness. We further note that the Supreme Court has
never required, or even suggested, such an approach although it has
had ample opportunity to do so. Whether a party’s voluntary
conduct was not done with specific intent to moot the case is
certainly one factor we may consider, but the absence of such
specific intent does not outweigh other equitable factors.
Here, for example, three equitable factors distinguish this
case from Russman, and indeed, from the other cases that have
applied the Russman approach, see Khodara Envtl., 237 F.3d at 195;
Nat’l Black Police Assoc., 108 F.3d at 351-54; cf. Dilley, 64 F.3d
at 1370-71 (remanding). First, in none of those cases did a party
obtain full relief in the district court, and on appeal, before the
opposing party took actions mooting the case. Second, in none of
those cases did a party assert outright that its actions mooting
the case were only temporary. And third, in those cases, the
13
district court judgment had a greater effect on non-parties to the
litigation. See Russman, 260 F.3d at 118 (district court held that
the U.S. Constitution and New York law do not require on-site
special education services at private parochial school); Khodara
Envtl., 237 F.3d at 191-92 (district court held federal statute
facially unconstitutional); Nat’l Black Police Assoc., 108 F.3d at
348 (district court held initiative limiting campaign contributions
unconstitutional and enjoined enforcement); Dilley, 64 F.3d at 1367
(district court held that prison failed to provide inmates with
constitutionally adequate access to the law library and ordered
changes in the library’s policies). Here, in contrast, this case
is fact and party specific.4
C.
Having considered the arguments favoring the County, we now
turn to the equities in favor of preserving the district court
judgment. Here, Staley prevailed not only in the district court
but also before a panel of this Court.5 Should we vacate, Staley
will be denied her judgment, not because her claim lacked merit,
nor because of her choices or acts, but for the reason that Harris
4
Given these differences, the equities in the decisions of
our sister circuits are different from the equities in this case.
Accordingly, we are not creating a circuit split because, like the
decisions of our sister circuits, we are deciding this case based
on the facts and the equities before us.
5
Of course, here, only the district court judgment survives.
When the Court voted the case en banc, the panel opinion was
automatically abrogated. See Freeman v. Tex. Dept. of Criminal
Justice, 369 F.3d 854, 864 n.12 (5th Cir. 2004).
14
County, by its “last-minute” voluntary acts, removed (temporarily)
the monument from public viewing.
In weighing the equitable considerations in this case, we also
consider the County’s conduct in the course of mooting the case.
Here, not only did the County’s voluntary actions cause this case
to become moot, but, more importantly, the County has pledged to
display the monument again after the renovations. Additionally,
although the County was well aware of the renovations ever since
the Harris County Commissioners Court approved the “Master
Preservation Plan” in February 2004, it has failed to keep the
courts updated on the status of the renovations or to suggest
mootness until we raised the question. In fact, the County never
apprised the courts that renovations could have a possible impact
on this litigation. Instead, it was Staley’s attorney who raised
the matter at trial when he asked Harris County Judge Robert Eckels
on direct examination whether the monument would be removed; Judge
Eckels replied that the plans were not well-enough developed to
answer the question. After trial, as many months passed, the case
proceeded to appeal in this Court, through the panel, the en banc
petitions, and the en banc vote without the County ever having
suggested that the monument -– the center of the litigation –-
could be removed at any time, ending the controversy, even though
“[i]t is the duty of counsel to bring to [our] attention, ‘without
delay,’ facts that may raise a question of mootness.” See
Arizonans, 520 U.S. at 68 n.23. When we raised the issue, Harris
15
County proceeded on its own volition to remove the monument only
days before oral argument, and now it seeks advantage of its
conduct, asking us to hold the case moot and vacate the district
court judgment against it. The totality of this conduct does not
support the County’s obligation to demonstrate an “equitable
entitlement to the extraordinary remedy of vacatur.” See U.S.
Bancorp, 513 U.S. at 26.
Finally, the County has not shown how the public interests
weigh in its favor. See id. at 27 (considering the public
interests). Indeed, 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. Of course, whether any
future case involving the Mosher monument is proscribed by the
district court judgment and injunction will depend on its own facts
and circumstances, and that question, if it arises, will fall
within the determination of the district court in the first
instance.
D.
Weighing the equities before us, we dispose of this case “in
the manner most consonant to justice,” see U.S. Bancorp, 513 U.S.
at 24, and conclude that Harris County has not carried its burden
of demonstrating an “equitable entitlement to the extraordinary
remedy of vacatur,” see id. at 26. Balancing the relevant
16
considerations and considering the totality of the equities, we
leave the district court judgment in place.6
IV.
The final and separate question before us is the question of
attorneys’ fees. “[A] determination of mootness neither precludes
nor is precluded by an award of attorneys’ fees. The attorneys’
fees question turns instead on a wholly independent consideration:
whether plaintiff is a ‘prevailing party.’” Doe v. Marshall, 622
F.2d 118, 120 (5th Cir. 1980). To qualify as a prevailing party,
“[a]ll that is required is that the plaintiff obtain the primary
relief sought.” Id.7
Given our opinion today, Staley has obtained the primary
relief she sought and therefore remains the prevailing party . See
id. As a prevailing party, she is entitled to appropriate
attorneys’ fees. See id.
V.
6
As to Judge DeMoss’s suggestion to the district court that
it consider modifying its injunction on remand, see ___ F.3d at ___
(DeMoss, J., dissenting), we emphasize that “[o]rdinarily, the
purpose of a motion to modify an injunction is to demonstrate that
changed circumstances make the continuation of the order
inequitable.” ICEE Distrib., Inc. v. J&J Snack Foods Corp., 445
F.3d 841, 850 (5th Cir. 2006) (quoting Black Assoc. of New Orleans
Fire Fighters v. City of New Orleans, La., 853 F.2d 347, 354 (5th
Cir. 1988)). Here, changed circumstances do not render the
district court’s injunction “inequitable.” See id.
7
The Supreme Court’s decision in Buckhannon Board and Care
Home, Inc. v. West Virginia Department of Health and Human
Resources, 532 U.S. 598 (2001), does not preclude attorney’s fees
in this case because Staley, unlike the plaintiffs in Buckhannon
Board, prevailed in the district court, see id. at 600-02.
17
Because the Mosher monument has been placed in storage
indefinitely and is no longer available for public viewing, the
appeal is DISMISSED as moot. We decline to vacate the district
court’s judgment, and we REMAND the case to the district court
solely for a determination of appropriate attorneys’ fees for
Staley.
DISMISSED and REMANDED.
18
EMILIO M. GARZA, Circuit Judge, with whom EDITH BROWN CLEMENT and
PRISCILLA R. OWEN, Circuit Judges, join, dissenting:
Because I disagree with the majority’s determination that this
case is moot on the present record, I respectfully dissent.
If this case is moot, it is because))as the majority
recognizes))“Harris County, by its ‘last-minute’ voluntary acts,
[has] removed (temporarily) the monument from public viewing.”
What the majority wholly ignores, however, is the well-settled rule
“that ‘a defendant’s voluntary cessation of a challenged practice
does not deprive a federal court of its power to determine the
legality of the practice.’” Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (quoting City
of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)).
Otherwise, “the courts would be compelled to leave ‘[t]he defendant
. . . free to return to his old ways.’” Id. (quoting City of
Mesquite, 455 U.S. at 289 n.10). Accordingly, “the standard . . .
for determining whether a case has been mooted by the defendant’s
voluntary conduct is stringent: ‘A case might become moot if
subsequent events made it absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to recur.’” Id.
(quoting United States v. Concentrated Phosphate Exp. Ass’n, 393
U.S. 199, 203 (1968)). The party asserting mootness))in this case
19
Harris County1))bears the “‘heavy burden of persua[ding]’ the court
that the challenged conduct cannot reasonably be expected to start
up again.” Id.
Despite the majority’s assertion to the contrary, it is not at
all clear that Harris County’s voluntary removal of the monument
caused this case to become moot. Rather, Harris County’s placement
of the monument in storage pending completion of the Courthouse
renovations mooted this case only if that act made it absolutely
clear that the Establishment Clause violation alleged to have
occurred in this case could not reasonably be expected to recur.
Id. at 193. This is a disputed factual matter, as to which no
record has been developed because the issue of mootness was raised
for the first time by this Court. Although Harris County asserts
in its appellate brief that the redesign of the Courthouse will
make it a “physical impossibility” to return the monument to its
precise former location, such an assertion is not sufficient to
satisfy the heavy burden of persuasion borne by Harris County,
particularly since Harris County has made clear its intention to
1
As the majority points out, upon learning that the
Courthouse had closed for renovations and would likely remain
closed for a few years, this Court asked the parties to brief that
change of circumstances as it pertained to issues stemming from
Article III’s case or controversy requirement, including but not
limited to standing and mootness. In response, Harris County took
the position in its brief and at oral argument that changed
circumstances mooted the case because the monument was being placed
in storage until the renovations were completed. Thus, Harris
County is the party asserting mootness in this case.
20
redisplay the monument once the renovations are complete. See
Concentrated Phosphate Exp. Ass’n, 393 U.S. at 203 (citing United
States v. W.T. Grant Co., 345 U.S. 629, 633 (1953)); Gates v. Cook,
376 F.3d 323, 337 (5th Cir. 2004). Without any factual development
on the nature and extent of the Courthouse renovations and what, if
any, lasting impact they will have on the monument, it cannot “be
said with assurance that there is no reasonable expectation that
the alleged violation will recur” or that Harris County’s recent
actions “have completely and irrevocably eradicated the effects of
the alleged violation.” County of Los Angeles v. Davis, 440 U.S.
625, 631 (1979) (internal quotation marks and citations omitted).2
I would therefore remand this case to the district court for
factfinding on these issues and for an initial mootness
determination.
2
Indeed, the majority’s discussion of the equities that
favor keeping the district court’s judgment in place))which
emphasizes that Harris County’s removal of the monument is only
temporary and that preserving the lower court judgment will serve
to discourage the parties from relitigating “the identical issues
. . . under the same circumstances in the future”))only highlights
the fact that we cannot be assured without an underlying record
that Harris County will not resume its allegedly unconstitutional
conduct.
21
Harold R. DeMoss, Jr., Circuit Judge, with whom Jerry E.
Smith, Circuit Judge, joins, dissenting in part:
I concur in the majority’s conclusion that this case
is moot. However, because I believe that vacatur of the
district court’s judgment and permanent injunction is
appropriate, I respectfully dissent in part.
Properly framed, the question is whether vacatur is
appropriate when voluntary action taken by an appellant
moots a case, but the action taken is completely
unrelated to the litigation. The question should be
answered in the affirmative.
Admittedly, the few vacatur rules given to us by the
Supreme Court do not directly answer the question, and
our Court has not yet squarely addressed it. However,
every other circuit court to address the issue has
determined that vacatur is appropriate under such
circumstances.
For example, in Russman v. Board of Education, the
Second Circuit was forced to decide whether vacatur was
warranted after the plaintiff-appellant student
voluntarily withdrew from school, thereby mooting the
22
case between her and the defendant-appellee school board.
260 F.3d 114, 117-18 (2d Cir. 2001). The student’s reason
for leaving school was preplanned and unrelated to the
lawsuit. Id. at 123. In determining that vacatur was
appropriate, the court provided and explained all of the
rules and reasoning that our Court needs to answer the
question in this case. Because the Russman court so
eloquently stated its position, below I quote from large
portions of the opinion.
The court began with the basic rules of a vacatur:
In general, where the appellee has caused the
case to become moot, we vacate . . . . On the
other hand, where the appellant has caused the
mootness, we may dismiss the appeal without
vacating the district court's judgment.
Id. at 121-22 (citations omitted).
The court went on to explain the rationale behind the
general rules:
If we were to vacate where the party that lost
in the district court has taken action to moot
the controversy, the result would be to allow
that party to eliminate its loss without an
appeal and to deprive the winning party of the
judicial protection it has fairly won.
Id. at 122 (citations omitted).
23
Then, the court applied that understanding to the narrow
question presented, the same question we are presented
with in this case:
[N]ot all actions taken by an appellant that
cause mootness necessarily bar vacatur of the
district court's judgment. For an appellant's
conduct to constitute “forfeiture” of the
benefit of vacatur . . . we believe [the
appellant] must have intended that the appeal
become moot, either in the sense that mootness
was his purpose or that he knew or should have
known that his conduct was substantially likely
to moot the appeal. Accordingly, an appellant's
conduct that is undertaken with an intent to
escape the collateral consequences of the
decision below may defeat vacatur . . . .
Similarly, if the appellant's conduct of the
litigation itself causes mootness, such as where
he settles the case or fails to prosecute the
appeal, the appellant must know that the appeal
will be mooted and thus vacatur will usually be
inappropriate.
Id. at 122-23 (citations omitted).
Finally, the court crafted the precise rule, a rule we
should adopt:
[C]onduct that is voluntary in the sense of
being non-accidental, but which is entirely
unrelated to the lawsuit, should not preclude
our vacating the decision below.
Id. at 23 (emphasis added) (citations omitted).
24
This rule has been adopted by every other circuit
that has addressed this precise issue. Khodara Envtl.,
Inc. v. Beckman, 237 F.3d 186, 195 (3d Cir. 2001) (Alito,
J.) (vacating the district court’s judgment because the
appellant’s voluntary action that mooted the case was not
taken “to overturn an unfavorable precedent,” but rather
was taken for “reasons totally independent of the pending
lawsuit”); Nat. Black Police Ass’n v. Dist. of Columbia,
108 F.3d 346, 351-52 (D.C. Cir. 1997) (vacating because
the appellant’s actions were not taken for the
manipulative purpose of mooting the case; rather, they
were taken for reasons unrelated to the lawsuit); Dilley
v. Gunn, 64 F.3d 1365, 1372 (9th Cir. 1995) (remanding a
moot case to the district court with instructions to
vacate unless the court found that appellant’s action was
voluntary and related to the lawsuit).
Applying the rationale of every circuit court to
address the issue, it is clear that in this case vacatur
of the district court’s judgment and injunction is
appropriate. It cannot reasonably be said that Harris
County’s refurbishment of the Old Civil Courts Building,
25
an action that is voluntary only in the sense that it is
non-accidental, is in any way related to this litigation.
In fact, the decision to close and refurbish the building
was made years before Staley’s filing of this lawsuit,
and would have occurred even if this lawsuit was never
commenced.1 Therefore, the refurbishment of the building,
an action completely unrelated to this litigation,
indirectly mooted this case. Under such circumstances,
our well-established practice of vacating judgments and
remedies in moot cases should control.
No other relevant factor suggests that we should
leave in place the district court’s judgment and
injunction. Indeed, although the majority states that its
decision is based on its balancing of the equities in
this case, it cites no relevant factors that weigh in
favor of not vacating.2 For example, in some cases it can
1
The Old Civil Courts Building closed on April 28, 2006, and
the new courthouse opened the following Monday, on May 1, 2006.
2
Although the majority states that three equitable factors
unique to this case weigh in favor of not vacating, those novel
factors are unpersuasive because they are either irrelevant,
factually inaccurate or based on a faulty premise.
First, the majority relies on Staley’s “temporary victory”
before the original three-judge panel of this Court. I fail to see
the relevance of this alleged factor. Harris County timely
26
be argued that a factor weighing against vacatur is the
theory that judicial precedents are presumptively valid
petitioned for rehearing. A majority of this en banc Court agreed
that the Establishment Clause issue warranted rehearing before the
entire Court. Simply put, the decision to rehear the case abrogated
the panel’s decision, and it matters not whether that decision was
made in Staley’s favor. In our legal reality, the panel decision no
longer exists (except, of course, for very limited purposes such as
explaining the procedural history of the case or the parties’
arguments throughout the litigation). Indeed, this en banc Court
has not spoken on the merits of the district court’s decision or
the original panel’s decision. Thus, to the extent that the
majority implies that Staley has some sort of an equitable interest
in the judgment and remedy, it is mistaken. Of course, the
majority’s implication is somewhat of a self-fulfilling prophecy:
Staley has an interest in the judgment and remedy because the
majority has not vacated them; had it vacated them, she would have
no such interest in them.
Second, the majority concludes that not vacating is equitable
because Harris County has stated that its removal of the monument
is only temporary. To start, this factor is relevant only if it is
presumed that redisplaying the monument is unconstitutional. This
is a faulty premise, however, because this Court has not addressed
the constitutionality of the monument. More importantly, this
factor is based on a factual inaccuracy. Harris County stated in
its brief and at oral argument that the possibility existed that it
would redisplay the monument. It is also possible, however, that
Harris County will not redisplay the monument. It is also possible
that Harris County will redisplay the monument, but in a different
location or different context. The possibilities are endless, and
not nearly as predicable as the majority states. In any event,
contrary to the majority’s assertion, Harris County has not stated
that the monument will be redisplayed at all.
Finally, the majority contends that equity favors not vacating
because the district court’s judgment and remedy in this case have
little effect on non-parties to this litigation. This will come as
a big surprise to millions of Harris County residents who have had
a possibly constitutional public monument removed at the request of
one individual. I am confident most readers will immediately see
the fallacy in the contention that the parties in a religious
display case are the only ones affected by its outcome. Perhaps
this contention is rooted in the majority’s apparent presupposition
that the monument is unconstitutional even though we have not
reached the issue.
27
and helpful to the legal community; therefore, even in
moot cases, they sometimes should be left in tact. See
U.S. Bancorp Mortgage Co. v. Bonner Mall P’ship, 513 U.S.
18, 26 (1994). That theory is not applicable here. First,
the theory was not intended to apply to district court
precedent, which merely is persuasive and is not binding
on other courts. See Russman, 260 F.3d at 122 n.2.3
Furthermore, and more importantly here, the district
court’s judgment and injunction in this case, which were
based on Supreme Court Establishment Clause
jurisprudence, are of practically no precedential value
to anyone because they preceded the Supreme Court’s
decisions in Van Orden and McCreary County. Without
question, these two cases are now the starting point of
any religious display analysis. (The original panel
opinions in this case, which of course were vacated by
3
Moreover, the Supreme Court noted several times that its
holding in U.S. Bancorp is strictly limited to the proposition
“that mootness by reason of settlement does not justify vacatur .
. . .” U.S. Bancorp, 513 U.S. at 29 (emphasis added). “[T]he case
before us involves only a motion to vacate, by reason of settlement
. . . .” Id. at 28 (emphasis added). The case before us involves
mootness by reason of a preplanned renovation project, not
voluntary settlement.
28
our grant of en banc reconsideration on November 17,
2006, focused almost entirely on Van Orden and McCreary
County.) Therefore, the district court’s judgment and the
injunction that followed were based on precedent that is
certainly outdated and perhaps completely irrelevant.
There is absolutely no equity in leaving intact an
opinion, judgment or remedy that is based on superseded
precedent. Therefore, this factor actually favors
vacatur.
Similarly, as I mentioned previously, the majority’s
decision to not vacate is contrary to the decisions by
other circuits to vacate under similar circumstances.
There is no equity in creating a circuit split to leave
in place the judgment and remedy in this case; our usual
course is to avoid such splits if at all possible.
I recognize that a majority of this Court somehow
finds that the equities favor not vacating. Of course,
this holding does not preclude Harris County from
petitioning the district court for a modification of its
injunction. “Modification of an injunction is appropriate
when the legal or factual circumstances justifying the
29
injunction have changed.” ICEE Distribs., Inc. v. J&J
Snack Foods, Corp., 445 F.3d 841, 850 (5th Cir. 2006)
(Jolly, J.). Given the significant factual changes that
have occurred since the injunction was entered, including
the closure, continued vacancy, and plan to renovate the
Old Civil Courts Building, in addition to the removal of
the Mosher monument, a request by Harris County for the
district court to modify the injunction clearly would be
appropriate. In addition, the Supreme Court’s (supposed)
clarification of the Establishment Clause in McCreary
County and Van Orden, discussed supra, may also provide
a basis for the district court to revisit the continuing
propriety of the injunction.
I would vacate the judgment and injunction entered
below, but recognizing that a majority of this Court
disagrees, I simply note that there exists a strong basis
for modification.
30