Staley v. Harris County TX

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