UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
S U M M A R Y O R D E R
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY
NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE
CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF
THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL
OR RES JUDICATA.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the United States
Courthouse, Foley Square, in the City of New York, on the 22nd day of April one thousand nine hundred and
ninety-eight.
Present: HONORABLE AMALYA L. KEARSE,
HONORABLE ROGER J. MINER,
Circuit Judges,
HONORABLE JOHN F. KEENAN,
District Judge 1
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LATINO OFFICERS ASSOCIATION, NEW YORK, INC. and ANTHONY MIRANDA, in his capacity as
President of the Latino Officers Association, New York, Inc. on behalf of its members,
Plaintiffs-Appellees,
v.
No. 97-9013
CITY OF NEW YORK, POLICE DEPARTMENT OF THE CITY OF NEW YORK, RUDOLPH W.
GIULIANI, Mayor of the City of New York, and HOWARD SAFIR, Police Commissioner of the City of New
York,
Defendants-Appellants.
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Appearing for Appellants: Stuart D. Smith, Ass't Corp. Counsel, N.Y., N.Y.
Counsel of Record for Appellees, who failed to file a brief or otherwise appear: Jonathan N. Fuchs, N.Y., N.Y.
Appeal from the United States District Court for the Southern District of New York.
This cause came on to be heard on the transcript of record from the United States District Court for the
Southern District of New York, and was argued by counsel for appellants.
ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the appeal be and it
hereby is dismissed as moot.
Defendants City of New York and its Police Department (the "Department"), et al., appeal from an order of the
United States District Court for the Southern District of New York, Kimba M. Wood, Judge, granting a
preliminary injunction prohibiting the Department from barring members of plaintiff Latino Officers Association
(the "Association") from marching in their police uniforms behind an Association banner in parades on August
10, 1997, August 17, 1997, September 14, 1997, and October 12, 1997. The district court found, inter alia, that
plaintiffs had demonstrated a substantial likelihood of success on the merits of their claim that the Department
policy in question violated Association members' rights under the First Amendment. On appeal, in addition to
their argument on the merits, defendants contend that the present appeal is not moot despite the fact that the
parades in question have already occurred, on the ground that the matter is capable of repetition yet evading
review. We disagree and dismiss the appeal.
A case becomes moot when "the issues presented are no longer live," Murphy v. Hunt, 455 U.S. 478, 481
(1982) (per curiam) (internal quotation marks omitted), as when "it [is] impossible for [the] court, through the
exercise of its remedial powers, to do anything to redress" the alleged wrong, Dennin v. Connecticut
Interscholastic Athletic Conference, 94 F.3d 96, 100 (2d Cir. 1996) (internal quotation marks omitted). An
appeal from a preliminary injunction is moot when the terms of the injunction have been fully and irrevocably
carried out. See, e.g., Honig v. Students of the California School for the Blind, 471 U.S. 148, 149 (1985) (per
curiam) (holding appeal moot where tests ordered by preliminary injunction had been carried out); University of
Texas v. Camenisch, 451 U.S. 390, 398 (1981). When a case has become moot on appeal, the proper course of
action is usually to dismiss the appeal. See, e.g., id. at 398; Haley v. Pataki, 60 F.3d 137, 142 (2d Cir. 1995).
The mootness doctrine generally does not require dismissal where the challenged conduct is "capable of
repetition, yet evading review." Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S.
498, 515 (1911); see, e.g., Carroll v. President and Commissioners of Princes Anne, 393 U.S. 175, 178-79
(1968); Muhammad v. City of New York Department of Corrections, 126 F.3d 119, 123 (2d Cir. 1997). Outside
of the class-action context, this exception does not apply unless, inter alia, the duration of the challenged action
is "too short to be fully litigated prior to its cessation or expiration." Weinstein v. Bradford, 423 U.S. 147, 149
(1975) (per curiam).
The present appeal, though promptly filed and expedited, as discussed in greater detail below, no longer
presents live issues. The order from which the appeal was taken granted plaintiffs relief only with respect to
certain specific parades; all of those parades have passed. No decision by this Court with respect to that
preliminary injunction can affect the rights, duties, or conduct of the parties with respect to those parades. The
appeal therefore presents no live issues with respect to the order appealed from.
Further, although there is a strong possibility that the same controversy will recur between
these parties with respect to future parades, we see no valid reason why the issues should
evade review. First, the underlying lawsuit, in which plaintiffs challenge, inter alia, the
Departmental policies that have led to denial of the marching permission Association
members desire, remains pending in the district court. Presumably the rights and duties of
the parties will eventually be adjudicated; those issues would then be subject to appellate
review. Second, in the interim, should Association members wish to march in future
parades before their rights are finally adjudicated, they may request Department
permission; should that permission be denied, plaintiffs may again seek interim injunctive
relief; should such relief be granted, defendants may again appeal. If defendants move for
expedited review of such a new injunction, this Court, in order to avoid having the matter
become moot, would no doubt grant expedited review--as we did in the present case,
only to see expedited review thwarted by plaintiffs.
The present appeal was expedited by order of this Court and was originally scheduled to
be heard in October 1997 prior to the last of the parades in which the preliminary
injunction permitted Association members to march in uniform behind the Association
banner. Plaintiffs' counsel Jonathan N. Fuchs, however, proceeded to engage in
recalcitrant behavior. He did not serve or file a brief; he did not request an extension of
time; he did not offer any explanation for failing to defend the decision won in the district
court; he did not respond to any of the numerous messages left at his office by the Clerk
of this Court. Eventually, noting that plaintiffs' failure to file a brief on appeal hindered our
ability to give the decision of the district court appropriate review, we entered an order
sua sponte on October 6, 1997, adjourning the appeal, stating that it could be argued at a
later date if it did not become moot, and staying the preliminary injunction to the extent
that it permitted members of the Association to march in uniform behind the Association's
banner on October 12, 1997.
Although the present appeal is moot, we would not expect that a future appeal from a
new preliminary injunction, if one is entered, would become moot before defendants
would have an opportunity to obtain either appellate review of or relief from that
injunction. The duration of the controversy embodied in such a new preliminary injunction
will no doubt depend on, inter alia, how long in advance of a given parade date the
plaintiffs request Department permission, how long it takes the Department to rule on that
request, and how long it takes plaintiffs to seek a preliminary injunction barring the
Department from interfering with the desired marching (if indeed, they seek such an
injunction; we are informed that plaintiffs did not move for an injunction after being denied
the requested permission with respect to the recent St. Patrick's Day Parade).
Presumably, defendants would need very little time to file their brief on appeal, having
already submitted briefs on the merits in connection with this appeal. We would thus
anticipate that the appeal would be sharply expedited in order to permit review of any
new preliminary injunction before it too becomes moot. Of course, if plaintiffs again refuse
to file a brief defending the decision of the district court, they will again run the risk of
having a preliminary injunction in their favor stayed.
We have considered all of defendants' arguments against mootness and have found them
to be without merit. We conclude that there is no live controversy for this appeal, and that
although a new preliminary injunction may be entered, it will not likely disadvantage
defendants while evading appellate review. Accordingly, the present appeal is dismissed
on the ground that it is moot. Although we do not vacate the preliminary injunction entered
by the district court, we express no view as to the merits of that decision.
Costs to defendants.
---- Begin EndNotes ----
1 Honorable John F. Keenan, of the United States District Court for the Southern District
of New York, sitting by designation.