Spencer Tunick v. Howard Safir, in His Official Capacity as the Police Commissioner of the City of New York, and the City of New York

VAN GRAAFEILAND,

Senior Circuit Judge, dissenting:

When I dissented from my colleagues’ unsuccessful request for certification to the New York Court of Appeals, see Tunick v. Safir, 209 F.3d 67, 96-100 (2d Cir.2000), I relied upon the following undisputed facts:

1. On July 13,1999, Tunick filed a complaint in the Southern District of New York in which he asked the court to enjoin the defendants from interfering with a planned photo shoot of nude models to be held on July 19, 1999 on Madison Street in New York City. Id. at 96.
2. On the same day, Tunick served an order to show cause why an order should not be issued enjoining the defen*143dants from interfering with the Madison Street photo shoot. Id. at 97.
3. In the opening paragraph of the district court’s Opinion and Order, it described Tunick’s application as follows:
Plaintiff Spencer Tunick seeks a preliminary injunction that will enjoin defendants from arresting or interfering with Tunick and 75 to 100 nude models, to be placed in an abstract formation on Madison Street between Catherine and Market streets at 5:30 a.m. on Sunday July 18,1999.
4. In the closing paragraph of the Opinion and Order, the district court, in rejecting the City’s “time, place and manner” argument, said:
Most importantly, given the fact that the City has been unable to offer a single alternative location, I am not convinced that the time, place and manner restriction is narrowly tailored or that it is [sic] has no reference to the content of the regulated speech. Having first suggested alternative sites might be agreeable and then failing to pinpoint a single alternative location, the City cannot expect this Court to simply take its word that the restriction is reasonable and that the proposed location and date is an inappropriate time and place for the nude photo shoot. Accordingly, the photo shoot will proceed on Sunday morning at 5:30 a.m. at the proposed location but it shall not last beyond 6:30 a.m. and the nudity of the models will be limited to the representation given by plaintiff. The Police Department is directed to provide a suitable police presence.

It is my understanding that the photo shoot requested by Tunick was not held until June 4, 2000. Moreover, it was not held on Madison Street. Instead, it was conducted at an “alternative location”, an area between Mangin and Baruch Streets, located about a mile to the northeast of Madison Street. The controversy between the parties relative to a Madison Street shoot, if not already moot when I wrote my original dissent, clearly became moot when the parties decided to conduct the shoot on Mangin Street. “[FJederal courts may adjudicate only actual, ongoing cases or controversies.” Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) (citations omitted); see also United States v. Alaska S.S. Co., 253 U.S. 113, 116, 40 S.Ct. 448, 64 L.Ed. 808 (1920); Arthur v. Manch, 12 F.3d 377, 380 (2d Cir.1993).

This being so, I see no need to further muddy the waters in which this case has been submerged by discussing the absence of the uniformity between my colleagues that is essential to a true per curiam opinion. Separately-submitted, multi-page opinions, which agree only in a result that was not effected, should not remain on the record as precedential authority in future Second Circuit litigation.

The appeal should be dismissed, and the matter remanded to the district court with instructions to dismiss the complaint. See United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S.Ct. 104, 95 L.Ed. 36 (1950); In re Chateaugay Corp., 988 F.2d 322, 325 (2d Cir.1993).