United States Court of Appeals,
Fifth Circuit.
No. 94-10017.
Roy BACCUS, Individually and as Guardian of Larry Baccus, et al.,
Plaintiffs-Appellants,
v.
Linda H. PARRISH, et al., Defendants-Appellees,
John Lelsz, By and Through his Parents and Guardians, Mr. and
Mrs. John Lelsz, and Advocacy, Inc., Intervening-Defendants-
Appellees.
Feb. 27, 1995.
Appeal from the United States District Court for the Northern
District of Texas.
Before POLITZ, Chief Judge, GOLDBERG and DUHÉ, Circuit Judges.
GOLDBERG, Circuit Judge:*
The appellants challenged the creation of a task force
empowered to make recommendations to the governor of Texas on the
closing of certain schools for the mentally retarded. The
appellants originally brought this challenge in Texas state court
and the appellees removed the case to the Federal District Court
for the Northern District of Texas. The appellants filed a motion
to remand which was subsequently denied by the district court. The
district court then declared the case moot and granted the
appellees' motion for summary judgment. The appellants now appeal
the district court's denial of the motion to remand and the grant
of summary judgment. We affirm.
*
Judge Goldberg authored this opinion before his death on
February 11, 1995.
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I
This case arises out of a twenty-year-old class action that
was settled in 1991. The settlement in Lelsz v. Kavanagh, Civil
Action No. 3-85-2462-H, was made contingent on the closure of
certain state schools for the mentally retarded and on the
condition that Texas would create community facilities for the
mentally retarded. In response to the settlement agreement, the
Texas Legislature passed H.B. 7, creating the Texas Department of
Mental Health and Mental Retardation State Facility Review Task
Force ("Task Force"). The Task Force was charged with making
recommendations to the governor regarding the closure of two state
schools. Final passage of the legislation creating the Task Force
was itself contingent on the district court's acceptance of the
settlement agreement. The district court accepted the settlement
agreement on December 30, 1991, thereby finalizing the judgment.
Lelsz v. Kavanagh, 783 F.Supp. 286 (N.D.Tex.1991), dismissed, 983
F.2d 1061 (5th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 287,
126 L.Ed.2d 236 (1993).
Roy Baccus, individually and as a guardian of his son, Larry
Baccus, a resident of Mexia State School, filed suit in Texas state
court for declaratory and injunctive relief against the Task Force.
Baccus alleged that one of the Task Force members had been
appointed after the statutory deadline for choosing Task Force
members, and that the legislation creating the Task Force violated
the "one-subject rule" of the Texas Constitution.
Shortly after the suit was filed by Baccus, the Task Force
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recommended that the Mexia and Travis State Schools be closed. The
governor acted on the Task Force's recommendation to close the
Travis school, but did not close the Mexia school. The Task Force
then recommended closing the Fort Worth State School, which the
governor agreed to do. Baccus then amended his complaint to add
plaintiffs Diane Lois Ward, a resident of the Fort Worth school,
and Steven Terral Higgins, a resident of the Travis school.
Higgins was transferred to the Austin State School as a result of
the closure of the Travis school.
The appellees removed the case to federal court and the case
was moved to the Western District of Texas, Waco Division. The
case was then transferred to Northern District of Texas, Dallas
Division, due to then-Chief Judge Barefoot Sanders' experience with
the Lelsz litigation. The appellants filed a motion to remand the
case to state court on the basis that their cause of action did not
arise under the Constitution, treaties, or laws of the United
States. The district court denied the motion to remand, finding
that the plaintiffs' claim was "in essence a collateral attack on
the Settlement Agreement" in Lelsz.
The district court permitted the Lelsz class and Advocacy,
Inc., an intervenor in Lelsz, to intervene, after which all parties
moved for summary judgment. Prior to ruling on the summary
judgment motions, the district court ordered the appellees to file
affidavits indicating the appellants' current locations and for
both sides to submit a brief on standing to sue.
In response to the district court's order, the appellees
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submitted an affidavit from Rick Campbell, an Associate
Commissioner for Mental Health and Mental Retardation Services. In
his affidavit, Campbell set forth that the Texas Department of
Mental Health and Mental Retardation did not plan to move Larry
Baccus or Steven Terral Higgins, who were residents of the Mexia
and Austin State Schools. Diane Lois Ward, who was then a resident
of the Fort Worth school, would eventually be moved. Campbell also
stated that all state schools for the mentally retarded operated by
the Texas Department of Mental Health and Mental Retardation met
federal regulations governing intermediate care facilities for
persons with mental retardation.
In September 1993, the district court issued a decision
holding that the case was moot and granting summary judgment in
favor of the appellees. The district court found that Texas was
entitled to unilaterally close these schools for the reasons
particularized, and that the appellants did not allege any
particularized injury traceable to the conduct of the appellees.
II
On appeal, the appellants assert that the district court erred
in denying their motion to remand and in granting summary judgment
in favor of the defendants. Each issue will be taken in turn.
A. Was There a Basis for Federal Jurisdiction?
The appellants contend that the case was improperly removed
to federal court because their cause of action is grounded
exclusively in state law. The general removal statute provides:
Except as otherwise expressly provided by Act of Congress, any
civil action brought in a State court of which the district
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courts of the United States have original jurisdiction, may be
removed by the defendant or the defendants, to the district
court of the United States for the district and division
embracing the place where such action is pending.
28 U.S.C. § 1441(a) (1994). The district court refused to remand
the appellants' case because it deemed their cause of action to be
a collateral attack on the Lelsz settlement agreement. We review
de novo the district court's denial of the motion to remand. Diaz
v. McAllen State Bank, 975 F.2d 1145, 1147 (5th Cir.1992);
F.D.I.C. v. Loyd, 955 F.2d 316, 319 (5th Cir.1992).
Federal jurisdiction is proper where a claim brought in state
court seeks to attack or undermine an order of a federal district
court. Villarreal v. Brown Express, Inc., 529 F.2d 1219, 1221 (5th
Cir.1976); Deauville Assoc. v. Lojoy Corporation, 181 F.2d 5 (5th
Cir.1950). Further, the finding of federal jurisdiction is not
limited to direct attacks on a district court order, but may also
be found where a claim seeks to set aside a provision of a
settlement agreement in a federal case. Eyak Native Village v.
Exxon Corp., 25 F.3d 773, 778-79 (9th Cir.1994).
The appellants assert that their claim is exclusively state
related, in that it is controlled by whether the Texas Legislation
at issue is violative of the Texas Constitution. While the
appellants' cause of action nominally arises under the laws and
Constitution of Texas, courts will typically look beyond the face
of a complaint to determine whether removal is proper. Villarreal,
529 F.2d at 1221; 14 Charles A. Wright, Arthur R. Miller & Edward
H. Cooper, Federal Practice and Procedure § 3734 at 543 (1985)
(citing Nunn v. Feltinton, 294 F.2d 450 (5th Cir.1961)).
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The appellants originally brought their suit to prevent the
Task Force from meeting. In their brief, the appellants concede
that their suit, if successful, would have affected the Lelsz
settlement agreement. Therefore, their suit is properly
characterized as a collateral attack on the settlement agreement in
Lelsz. Furthermore, the unique nature of the settlement agreement
in Lelsz heightens its conflict with the appellants' suit. The
Lelsz settlement was contingent upon the passage of certain
remedial measures by the Texas legislature. The Texas Legislature
acted in accordance with the Lelsz settlement agreement in creating
the Task Force, and made final enactment of the Task Force
contingent on the district court's acceptance of the settlement
agreement. The district court accepted the settlement agreement,
and thereby made the resolution of a protracted dispute dependent
upon the activities of the Task Force. Were the appellants to
succeed with their claims, the entire basis for the settlement in
Lelsz would unravel.
The appellants assert that their concern lies only in the
violations of the Texas Constitution, and that any impact on the
Task Force is incidental. Under other circumstances we might be
inclined to agree. We do not wish to paint with such broad strokes
as to say that any attack on a state's legislation may fall under
federal purview if that legislation is somehow connected to the
resolution of an independent federal case. However, taking the
appellants' pleadings as a whole, it is clear that the thrust of
their claim is an attack on the settlement agreement in Lelsz, and
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as such, the district court properly denied the appellants' motion
to remand.
B. Is the Appellants' Claim Moot?
Article III of the United States Constitution requires the
existence of a case or controversy in order to support federal
jurisdiction. U.S. Const., Art. III § 2, cl. 1. Events both
before and after the filing of a claim may render a claimant's case
moot. Mootness doctrine requires that the controversy posed by a
complaint be present "throughout the litigation process." Carr v.
Alta Verde Industries, Inc., 931 F.2d 1055, 1061 (5th Cir.1991).
If the parties do not have a legally cognizable interest in the
outcome of the case, then it has become moot. Department of
Justice v. Federal Labor Relations Authority, 991 F.2d 285 (5th
Cir.1993) (citing Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct.
1944, 1950-51, 23 L.Ed.2d 491 (1969)). In order to have a
cognizable legal interest in the outcome of a case, the appellants
must demonstrate an injury traceable to the defendants that is
susceptible to some judicial remedy. Monsanto Co. v. FERC, 963
F.2d 827, 829 (5th Cir.1992) (quoting Lewis v. Continental Bank
Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 1253, 108 L.Ed.2d 400
(1990)). Here, the appellants' interest in this suit is derived
from that of their children. As such, the question before us is
what injury have Larry Baccus, Diane Ward or Steven Higgins
suffered at the hand of the Task Force, and what remedies could the
judiciary provide.
According to the Campbell affidavit submitted by the
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appellees, Larry Baccus will not be moved by the recommendations of
the Task Force. Steven Higgins has already been moved from the
Travis school to the Austin school, but no further moves are
contemplated. Diane Ward will have to be moved when the Fort Worth
school is closed. Nonetheless, none of the claimants have received
an injury traceable to the actions of the Task Force. The parents
have cited the increased distance that will have to be traveled to
attend the new school. However, the state reserves the right to
unilaterally close a state school for administrative or financial
reasons, even if it means that certain residents will have to
relocate as a result. Lelsz, 783 F.Supp. at 298. Diane Ward's
mother also alleges that her daughter was injured when she was
housed with another patient while awaiting the impending closure of
the Fort Worth school. However, this is not an injury that is
traceable to the appellees.
The appellants' case is also moot because even the injuries
they are alleging are not the result of the actions of the Task
Force. The Task Force was created to make non-binding
recommendations to the governor as to which two schools would be
closed. Not only did the Task Force lack the authority to close
the schools in question, but its recommendations did not have to be
followed. In fact, despite the Task Force's recommendation to
close the Mexia school, the governor did not follow it and chose to
close another school. The Task Force's role in recommending which
schools should be closed is too attenuated to be the cause of the
appellants' injuries, even if there some cognizable injury present.
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Without an injury that is traceable to the conduct of the
appellees, the district court was correct in declaring the
appellants' case moot.
An exception to mootness doctrine exists where a certain harm
is capable of repetition, yet evades review. Mesquite v. Aladdin's
Castle, Inc., 455 U.S. 283, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982);
Southern Pacific Terminal Co. v. Interstate Commerce Com., 219 U.S.
498, 31 S.Ct. 279, 55 L.Ed. 310 (1911). In order to benefit from
this exception the appellants must show that they may be subjected
to some future harm from the appellees. DeFunis v. Odegaard, 416
U.S. 312, 319, 94 S.Ct. 1704, 1707, 40 L.Ed.2d 164 (1974). There
is a dispute between the parties as to whether the Task Force has
continuing authority to recommend the closure of schools.
Appellants contend that the Task Force does have continuing
authority to make closure recommendations, whereas the appellees
assert the legal authority of the Task Force has expired.
Without resolving these factual difference between the
parties, we hold that the "capable of repetition, yet evading
review" exception to the mootness doctrine provides no shelter for
the appellants because they have not alleged any legally cognizable
injury traceable to the appellees. The only possible harm the
appellants have alleged consists of the burdens associated with
being forced to travel a greater distance to school when a closer
one has been closed. First, the actual closing of state schools
cannot be laid at the feet of the Task Force when its role is
exclusively to make non-binding recommendations to the governor.
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Second, the closing of schools for administrative reasons is a
prerogative of the State and is not a legally cognizable injury
inflicted by the Task Force.
For the forgoing reasons, the decision of the district court
in denying the appellants motion to remand and granting summary
judgment in favor of the appellees is AFFIRMED.
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