Sims v. Florida, Department of Highway Safety & Motor Vehicles

TJOFLAT, Circuit Judge,

dissenting in which HILL, KRAVITCH and EDMONDSON, Circuit Judges, join:

In its apparent haste to decide the constitutionality of Fla.Stat. § 320.02(9) (1987), the en banc court glosses over the jurisdictional requirements of well established precedent, and in so doing sets the stage for untold mischief in future cases. I respectfully dissent on four separate grounds.

First, in an effort to circumvent the eleventh amendment bar to this suit, the court, acting sua sponte, substitutes an individual for the State of Florida as the party defendant and then, without giving him notice and an opportunity to be heard, enters judgment against him. This maneuver, which has no foundation in the law, denies the newly named defendant due process in the most elementary and fundamental sense. Second, the majority today decides a case which is plainly moot with respect to one of the two appellees, Myra Holladay Sims. Third, the majority entertains a claim that the remaining appellee, Florida Import and Compliance Association (FICA), lacks standing to assert. Finally, although Sims’ and FICA’s claims were cast as a case arising under the Constitution and laws of the United States, they are actually state law claims that raise a constitutional question in anticipation of a defense. These claims thus fall outside of the court’s subject matter jurisdiction.

Because a full understanding of the claims that Sims and FICA present is essential to the proper resolution of these issues, for purposes of convenience I begin in part I with an analysis of their claims which illustrates that the district court lacked subject matter jurisdiction to entertain this case. My subsequent remarks are organized as follows: In part II, I address the mootness of Sims’ claim; in part III, I discuss FICA’s lack of standing; and in part IV, I criticize the court’s decision to substitute an individual for the State as the party defendant without affording him any of the rudiments of due process.

I.

The complaint in this case presents two separate and distinct claims against the State of Florida: one brought by Sims, the other by FICA. In an effort to give the district court subject matter jurisdiction, Sims and FICA cast their claims as if they arose under the Constitution or laws of the United States, see 28 U.S.C. § 1331 (1982). 1 Their claims, however, are not based on the Constitution or laws of the United States; rather, they are based on state law.

Sims alleges that under Florida law, the State, through its Department of Highway Safety and Motor Vehicles (the Department), is required to title and register 2 her gray market automobile because she has satisfied the requirements Florida imposes on those who wish to title non-gray market automobiles, but that the State refuses to do so. See Fla.Stat. § 320.02(l)-(7). Anticipating the State’s defense, Sims goes on to allege that the State has refused to title her vehicle because she has not complied ■with Fla.Stat. § 320.02(9) by providing the Department with proof, in the form of a bond release letter issued by the National Highway Transportation Safety Administration (NHTSA), that she has satisfied the requirements of the Federal Motor Vehicle Safety Act, 15 U.S.C. § 1397 (1982). Finally, in response to this anticipated defense, Sims presents the federal question that, *1462 she contends, gives the district court, and consequently this court, subject matter jurisdiction to entertain her suit: whether Fla. Stat. § 320.02 (9) is unconstitutional. In effect, Sims asks the court to strike the State’s defense as legally insufficient, see Fed.R.Civ.P. 12(f), and to issue an order compelling the Department to title her gray market automobile. 3

FICA’s claim, which is brought solely in a representative capacity for two groups of claimants, 4 also arises under state, not federal, law. The first group of claimants consists of members who will both import gray market automobiles into Florida and satisfy Florida’s requirements for titling non-gray market automobiles. The second group of claimants consists of FICA members, namely import brokers and mechanics, who charge fees to those who import gray market automobiles after their automobiles are conditionally admitted into the United States. These members contend that enforcement of Fla.Stat. § 320.02(9) is chilling importation of gray market automobiles and thus is causing them to lose business. Unlike Sims, however, no one in either group of FICA claimants seeks an order requiring the Department to title any existing gray market automobile. Rather, they seek an order requiring the Department to title any gray market automobile that may be imported into Florida in the future.

Once properly characterized, Sims’ and FICA’s claims obviously run afoul of the “well-pleaded complaint rule,” which prohibits a claimant from invoking the district court’s federal question jurisdiction by alleging that the defense that the defendant will raise is invalid under federal law. See C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3566 (1984). In the seminal case of Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149 , 29 S.Ct. 42 , 53 L.Ed. 126 (1908), the Supreme Court stated:

It is not enough that the plaintiff alleges some anticipated defense to his cause of action, and asserts that the defense is invalidated by some provision of the Constitution of the United States. Although such allegations show that very likely, in the course of the litigation, a question under the Constitution would arise, they do not show that the suit, that is, the plaintiffs original cause of action, arises under the Constitution.

Id. at 152 , 29 S.Ct. at 43 . The Supreme Court has not wavered in its firm application of this rule, see, e.g., Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 9-11 , 103 S.Ct. 2841, 2846-47 , 77 L.Ed.2d 420 (1983); Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125, 127-28 , 94 S.Ct. 1002, 1004 , 39 L.Ed.2d 209 (1974), and we are bound to follow it.

In sum, the claims Sims and FICA present are founded on state law — the right to receive a title to an automobile is a creature of the Florida legislature, not the Constitution or laws of the United States. 5 The federal questions they raise concern only the constitutionality of the State’s defense. In accord with the decision in Mott- *1463 ley, we should notice sua sponte the absence of subject matter jurisdiction and direct the district court, on receipt of our mandate, to dismiss the case. 6

II.

I turn now to the issue of the mootness of Sims’ claim. At the heart of this controversy is Sims’ impatience with NHTSA’s delay in issuing a bond release letter, required by Fla.Stat. § 320.02(9) to title a gray market automobile. 7 The majority acknowledges that on September 18, 1985— one week after trial and three months before the district court entered final judgment for Sims — NHTSA issued Sims her eagerly awaited bond release letter. Since Sims had already acquired the necessary documentation from the Environmental Protection Agency, she now had all the documents required by Fla.Stat. § 320.02(9), and nothing prevented her from obtaining a title for her automobile. Sims’ attorney should have advised the court of this development immediately; 8 had he done so, the court would have asked counsel whether there was any need to continue the litigation, given that Sims had the power to obtain the precise relief she was asking the court to provide. There can be no question that had the trial court been so informed, it would have dismissed Sims’ claim as moot. 9

Unfortunately, the fact that Sims’ claim had become moot did not surface until oral argument before the three-judge panel which initially heard this appeal. During that argument, Sims’ attorney, in response to an inquiry from the court, confessed that his client had received the NHTSA bond release letter prior to the entry of final judgment in the district court, and that the controversy with the State over her automobile had ended. 10 Sims’ attorney nonetheless urged the panel to proceed with the appeal and rule on the constitutionality of the Florida statute, contending that Sims’ controversy with the State was not moot because it was capable of repetition, yet evading review.

The majority agrees with Sims that her case was not moot when the district court decided it. The majority does so by incant-ing the phrase “capable of repetition, yet evading review,” ante at 1459, as if that phrase possessed some talismanic power to create an article III controversy where, in truth, one does not exist. We know, of course, that the phrase contains no such power; rather, the doctrine merely defines those situations in which a seemingly moot case still meets article Ill’s requirement of a genuine, concrete controversy. As the Supreme Court observed in Los Angeles v. Lyons, 461 U.S. 95, 109 , 103 S.Ct. 1660, *1464 1669 , 75 L.Ed.2d 675 (1983), and DeFunis v. Odegaard, 416 U.S. 312, 319 , 94 S.Ct. 1704, 1707 , 40 L.Ed.2d 164 (1974), these situations are “exceptional” and require the plaintiff to prove that the doctrine’s two requisites are met. See Weinstein v. Bradford, 423 U.S. 147, 149 , 96 S.Ct. 347, 349 , 46 L.Ed.2d 350 (1975).

Because Sims’ claim became moot before the district court entered final judgment, we must look to the record as it stood when the court entered judgment in determining whether the claim was capable of repetition, yet evading review. If that record discloses evidence from which the court could reasonably have concluded that the claim was likely to recur and, if so, would evade review, then the district court had the authority to adjudicate the claim.

The record discloses no evidence to satisfy the first requirement of the doctrine, that the claim is likely to recur; consequently, we need not determine whether the second requirement, evading review, has been met. What the record reveals is a controversy involving a single automobile, a 1976 Mercedes-Benz 450 SEL, that Sims brought to the Port of Jacksonville on April 30, 1985. There is simply nothing in Sims’ complaint or her testimony at trial from which the district court could have found that this controversy might recur, 11 much less, as the cases require, that there was a “reasonable likelihood” or “demonstrated probability” that Sims would assert the same claim against the State at some time in the future. See Honig v. Doe, — U.S. -,-n. 6, 108 S.Ct. 592 , 601 n. 6, 98 L.Ed.2d 686 (1988). The majority does not even attempt to say how Sims’ claim might satisfy this requirement — because, I believe, the attempt would be futile. 12 Instead, the majority simply states that the record shows that a number of other individuals will import gray market automobiles into Florida and will suffer the same injuries as Sims. Because this is not a class action, a showing of future injury to others is immaterial to the issue of whether Sims’ claim will, itself, recur. The law therefore requires that we dismiss Sims’ claim as moot because she has not shown a “reasonable likelihood” or “demonstrated probability” that it will recur.

III.

Because Sims’ claim is moot, we have jurisdiction to entertain this appeal only if the remaining appellee, FICA, has standing on its own to attack Fla.Stat. § 320.02(9). The standing doctrine, like the mootness doctrine, 13 is an aspect of article Ill’s “case or controversy” requirement. As the Supreme Court has stated:

the standing question is whether the plaintiff has alleged such a personal stake in the outcome of the “controversy” as to warrant his invocation of federal-court jurisdiction and to justify exer *1465 cise of the court’s remedial powers on his behalf. The Art. Ill judicial power exists only to redress or otherwise to protect against injury to the complaining party, even though the court’s judgment may benefit others collaterally. A federal court’s jurisdiction therefore can be invoked only when the plaintiff himself has suffered “some threatened or actual injury resulting from the putatively illegal action.”

Warth v. Seldin, 422 U.S. 490, 498-99 , 95 S.Ct. 2197, 2205 , 40 L.Ed.2d 343 (1975) (citations omitted).

FICA concedes that it is not injured by the Department’s enforcement of the statute and consequently does not assert on its own behalf the statute’s unconstitutionality. 14 FICA contends, however, that the Department’s enforcement of the statute affects a number of its members and argues that it may litigate their claims in a representative capacity. 15

Although an association such as FICA may, in some circumstances, have “representative standing” to litigate the claims of its members, see Warth, 422 U.S. at 511 , 95 S.Ct. at 2211-12 , it may do so only if its members would have standing in their own right, had they brought suit themselves. See Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343-45 , 97 S.Ct. 2434, 2441-42 , 53 L.Ed.2d 383 (1977). 16 For the members of FICA to have standing in their own right, they would have to show that they have suffered an actual or threatened injury that is legally cognizable, fairly traceable to the allegedly illegal conduct, and likely to be redressed by a favorable decision. Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472 , 102 S.Ct. 752, 758 , 70 L.Ed.2d 700 (1982); see also Allen v. Wright, 468 U.S. 737, 752 , 104 S.Ct. 3315, 3325 , 82 L.Ed.2d 556 (1984).

FICA attempts to meet its burden of establishing its members’ standing by alleging that Fla.Stat. § 320.02(9) injures its members who import gray market automobiles for commercial or personal use by denying them the right to obtain Florida title, and in effect, the right to drive their gray market automobiles. With respect to its other members — import brokers and mechanics — FICA alleges that they are injured indirectly: because the statute effectively prohibits owners from titling and driving their gray market automobiles pending final admission into the United States, Florida residents may no longer *1466 wish to import gray market automobiles; as a result, the business of the import brokers, who assist owners in the importation of gray market automobiles, and of the mechanics, who modify such automobiles to bring them into compliance with federal emissions and safety standards, will decline. On the basis of these allegations, FICA represents that its “members would have standing to sue in their own right for the relief requested.”

In my view, FICA’s allegations of fact are insufficient as a matter of law to demonstrate that FICA has standing to challenge the State’s enforcement of the statute on behalf of either group of members. I make this statement after accepting as true FICA’s allegations of fact regarding standing, as Warth commands. 17

FICA lacks standing to sue in behalf of the first group — the importers — because the complaint does not identify anyone who has been or will be denied title as a result of the Department’s enforcement of Fla. Stat. § 320.02 (9). Indeed, all that the complaint alleges is that “importers of automobiles for their personal use as well as ... for resale ... support improving opportunities for commerce with foreign nations in the importation, use and sale in the United States of foreign-manufactured automobiles” 18 and, presumably, want Fla.Stat. § 320.02(9) declared unconstitutional. This allegation, by itself, is plainly insufficient to establish injury to the importers.

The importers’ case is indistinguishable from the home builders association’s case in Warth v. Seldin. In Warth, the Rochester Home Builders Association (Home Builders) brought suit against the town of Penfield, New York. Home Builders contended that the town’s ordinance prohibiting low-income housing deprived its members of “substantial business opportunities and profits,” Warth, 422 U.S. at 515 , 95 S.Ct. at 2213 , and sought an order enjoining the ordinance’s enforcement. Home Builders alleged that its members were injured by the ordinance, but failed to identify any member who had attempted to build a low-income housing project in Pen-field. The district court dismissed Home Builders’ complaint for lack of standing. The Court of Appeals for the Second Circuit affirmed. Home Builders thereafter sought review in the Supreme Court.

The Supreme Court agreed with the conclusion of the lower courts and held that Home Builders lacked standing to attack the ordinance. The Court stated:

[Home Builders] can have standing as the representative of its members only if it has alleged facts sufficient to make out a case or controversy had the members themselves brought suit. No such allegations were made. The complaint refers to no specific project of any of its members that is currently precluded either by the ordinance or by respondents’ action in enforcing it. There is no averment that any member has applied to respondents for a building permit or a variance with respect to any current project. Indeed, there is no indication that respondents have delayed or thwarted any project currently proposed by Home Builders' members, or that any of its members has taken advantage of the remedial processes available under the *1467 ordinance. In short, ... Home Builders has failed to show the existence of any injury to its members of sufficient immediacy and ripeness to warrant judicial intervention.

Warth, 422 U.S. at 516 , 95 S.Ct. at 2214 . Similarly, in Anderson v. City of Alpharetta, 770 F.2d 1575, 1582-83 (11th Cir.1985), we affirmed the district court’s holding, which followed Warth’s analysis, that an organization that operated a service to find housing for low-income minority families lacked standing to challenge a statute that forestalled development of a particular housing project because the organization failed to allege that any specific individual had sought, or would seek, housing in the area of the project. In the case before us, as in Warth and Anderson , no factual basis exists in the record to support a finding that FICA’s members have been or will be injured. 19 In the absence of such a basis, we must conclude that FICA lacks standing to maintain this suit on behalf of its members who import gray market automobiles for personal or commercial use.

Nor has FICA demonstrated that it has standing to sue on behalf of its second group of members — import brokers and mechanics. FICA has not identified any one in this group whose business has been adversely affected by the enforcement of Fla.Stat. § 320.02(9). Furthermore, even if FICA had identified someone, there are two reasons why such member, and thus FICA, would lack standing to challenge the statute.

First, the indirect injury the import brokers and mechanics allege that they will suffer is too remote and uncertain to constitute the “injury in fact” required for standing. The possibility that the future enforcement of the statute may cause a significant decrease in the importation of gray market automobiles and that, as a consequence, the import brokers and mechanics may suffer a loss of business is highly speculative, and “ ‘unadorned speculation will not suffice to invoke the federal judicial power.’ ” Diamond v. Charles, 476 U.S. 54, 66 , 106 S.Ct. 1697, 1705 , 90 L.Ed.2d 48 (1986) (denying standing to a pediatrician who argued that enforcement of a law requiring doctors to preserve the lives of aborted fetuses would enlarge the pool of his potential fee-paying patients) (citing Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 44 , 96 S.Ct. 1917, 1927 , 48 L.Ed.2d 450 (1976)). The burden is on the plaintiff to allege concrete injury that is “distinct and palpable” and not “abstract” or “hypothetical.” Allen v. Wright, 468 U.S. 737, 751 , 104 S.Ct. 3315, 3324 , 82 L.Ed.2d 556 (1984).

If, as a matter of policy, we were to follow the majority’s approach and disregard this limitation on the standing of those alleging indirect injury, then we would also have to recognize the claims of anyone else who might allege that the enforcement of Fla.Stat. § 320.02(9) hurt his business. I can think of scores of possible plaintiffs who could allege that “but for” the State’s enforcement of the statute, they would have been better off economically: the banks that would have financed the purchase of the gray market automobiles that were not imported; the banks’ employees; the Port of Jacksonville that would have received the automobiles that were not imported; the Port’s employees; the shipping, trucking, and rail companies that would have transported the imported automobiles to their ultimate destination. In short, under the majority’s approach to standing, the universe of possible plaintiffs is endless.

Even if the import brokers and mechanics could show that they suffer a sufficient *1468 ly concrete injury, their standing in this case has a second defect: the right which they seek to assert — the right to obtain title to a gray market automobile — is not theirs, but rather belongs to the automobile owners. Prudential limitations on the standing doctrine require that “the plaintiff generally must assert his own legal rights or interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth, 422 U.S. at 499 , 95 S.Ct. at 2205 ; see also Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804 , 105 S.Ct. 2965, 2970 , 86 L.Ed.2d 628 (1985); Secretary of State v. Joseph H. Munson Co., 467 U.S. 947, 955 , 104 S.Ct. 2889 , 2846, 81 L.Ed.2d 786 (1984). The reasons for this rule are twofold. “The limitation ‘frees the Courts ... from premature interpretations of statutes in areas where their constitutional application might be cloudy,’ and it assures the court that the issues before it will be concrete and sharply presented.” Joseph H. Munson, 467 U.S. at 955 , 104 S.Ct. at 2846 (citing United States v. Raines, 362 U.S. 17, 22 , 80 S.Ct. 519, 523 , 4 L.Ed.2d 524 (1960)). 20 This rule requires us to hold that the import brokers and mechanics do not have third party standing to challenge Fla.Stat. § 320.02(9).

Finally, I address the majority’s assertion that if the various groups of FICA members “do not have standing, then no individual or entity would have the requisite standing.” Ante at 1459. The majority makes this assertion, in a last ditch effort to find standing for FICA’s claim, squarely in the face of Supreme Court pronouncements that such an assertion is meaningless. As the Supreme Court has repeatedly stated, “ ‘[t]he assumption that if [the plaintiffs] have no standing to sue, no one would have standing, is not a reason to find standing.’ ” Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 489 , 102 S.Ct. 752, 767 , 70 L.Ed.2d 700 (1982) (quoting Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 227 , 94 S.Ct. 2925, 2935 , 41 L.Ed.2d 706 (1974)).

To summarize, I conclude that none of FICA’s members have standing to challenge Fla.Stat. § 320.02(9). FICA therefore lacks “representational standing” to challenge the statute on their behalf. Because Sims’ claim is moot and FICA lacks standing, no “case or controversy” exists over which this court may exercise its judicial power. We therefore should remand this case to the district court with the instruction that it be dismissed.

IV.

This case began as a suit against the State and one of its agencies — a suit barred by the eleventh amendment. 21 It is well settled that, in the absence of the state’s consent, only suits seeking injunctive relief against a named state official, as opposed to a state department or agency, are exempted from the eleventh amendment proscription. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 102 , 104 S.Ct. 900, 909 , 79 L.Ed.2d 67 (1984). The complaint filed by Sims and FICA does not fall within this exemption because it did not name the director of the Department of Highway Safety and Motor Vehicles or any other state official as a party defendant. 22 *1469 The majority recognizes that this suit cannot be maintained against the named defendants — the State of Florida and the Department. 23 Yet, instead of vacating the district court’s judgment and remanding the case to the district judge for the entry of a judgment of dismissal, 24 the majority, acting sua sponte, simply substitutes an individual — the director of the Department 25 — for the State as the party defendant, and then enters judgment against him. As the following discussion manifests, the majority’s maneuver, which is accomplished without any advance notice to the director, is not only unprecedented, it is unprincipled, constituting a denial of due process in the most elementary and fundamental sense.

Due process — for that matter common sense — requires that an individual against whom a permanent injunction is to be entered be given notice of the claims against him and an opportunity to be heard. See generally Fed.R.Civ.P. 65; see also C. Wright & A. Miller, Federal Practice and Procedure § 2956 (1973). Where, as here, the individual does not voluntarily appear in the case and consent to the entry of *1470 judgment, due process requires that he be served with process and given a chance to respond to his adversary’s claim. To me, this notion is “due process in the primary sense,” Joint Anti-Fascist Refugee Comm. v. McGrath, 841 U.S. 123 , 161, 71 S.Ct. 624, 643 , 95 L.Ed. 817 (1951) (Frankfurter, J.) (quoting Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673, 681 , 50 S.Ct. 451, 454 , 74 L.Ed. 1107 (1930)). “It is a rule as old as the law ... that no one shall be personally bound until he has had his day in court.” Galpin v. Page, 85 U.S. (18 Wall.) 350, 368 , 21 L.Ed. 959 (1873).

I have no doubt that the judges making up the majority subscribe to this principle of fairness. They could have honored this principle by vacating the district court’s judgment and remanding the case to the district court with instructions that that court either dismiss the plaintiffs’ suit without prejudice or permit the plaintiffs to amend their complaint, substitute the director of the Department as the party defendant, and begin their case anew — as I have noted. See supra note 24. But this would have denied the majority the power, under article III, of deciding the constitutionality of Fla.Stat. § 320.02(9). The majority knows that if we were to decide the constitutionality of this statute and at the same time vacate the district court’s judgment, we would be rendering an archetypical provisional decision — the sort of decision article III precludes us from making. See Escambia County v. McMillan, 466 U.S. 48, 51 , 104 S.Ct. 1577, 1579 , 80 L.Ed.2d 36 (1984) (Federal courts do not decide constitutional questions unnecessarily.); Flast v. Cohen, 392 U.S. 83, 96 , 88 S.Ct. 1942, 1950 , 20 L.Ed.2d 947 (1968) (“ ‘[TJhe oldest and most consistent thread in the federal law of justiciability is that the federal courts will not give advisory opinions.’ ”) (quoting C. Wright, Federal Courts 34 (1963)). Our decision would be provisional because it would take effect only if the district court, on remand, granted the plaintiffs leave to amend, rejected the jurisdictional arguments I have advanced here, and reached the merits of the plaintiffs’ constitutional attack on the Florida statute. Only then would our provisional decision have meaning; it would be persuasive authority for the decision on the merits that the district court would then be called upon to make.

The only way the majority can decide this case without transgressing article Ill’s prohibition against provisional decisions is to do what it has done: substitute the director of the Department for the State as the party defendant and treat the district court’s judgment as having been entered against him. This is not a case, however, in which the law permits such a substitution. A court of appeals can substitute a state official as the party defendant only in cases in which his predecessor in office has been sued in his official capacity. In such cases, Fed.R.App.P. 43(c)(1) provides for substitution automatically; the successor official becomes bound to the district court’s judgment without being served with process and accorded a hearing. A hearing is not required because the law presumes that the successor’s interest, qua office holder, has been fully represented in the proceedings by his predecessor.

This is, instead, a case in which the new party’s predecessor has never appeared in the case; consequently, due process requires that the new party be served with process and provided an opportunity to be heard. This is the necessary, and plain, implication of Rule 43(c)(1): unless the new party is the “successor” of a “public officer” who has been sued “in his official capacity,” due process precludes his automatic substitution at the appellate level as inherently prejudicial.

The majority circumvents Rule 43(c)(1) by fashioning a new rule: a state official may be substituted for the state as the party defendant where the state fails to plead the sovereign immunity defense in the district court and is reluctant to urge the defense on appeal, and neither the state nor its substituted official will be prejudiced by the substitution. 26 The majority’s *1471 rule is bizarre and illegal. The majority implies that it would have granted the director the right to service of process and a hearing — in the district court — if the state had not “reluctantly” raised the sovereign immunity defense. The majority also implies that it would have granted the director such fundamental due process if its sua sponte issuance of the injunction against the director, 27 and its subjection of him to the district court’s contempt power, worked any prejudice against him.

Finally, even if it could be said that the majority’s new rule is valid — that it passes constitutional muster and is not foreclosed by Rule 43(c)(1) — I would remand the case to the district court to accord the director his due process rights. I would do so because, contrary to the majority’s view, (1) the State’s urging of the sovereign immunity defense has not been “reluctant,” and (2) enjoining a state officer without notice and an opportunity to be heard is inherently prejudicial.

V.

For the foregoing reasons, I respectfully dissent.

. 28 U.S.C. § 1331 (1982) provides: “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” Because Sims and all of the members of FICA are citizens of the State of Florida, appellees could not invoke the district court’s diversity of citizenship subject matter jurisdiction. See 28 U.S.C. § 1332 (1982).

. For convenience, I hereinafter use “title” to refer to the relief Sims seeks, namely the issuance of title to and registration for her gray market automobile.

. In addition to an order compelling the Department to title her gray market automobile, Sims also asks the court, in a common prayer for relief with FICA, to enjoin the future enforcement of Fla.Stat. § 320.02(9). Sims, however, does not allege that she intends to import another gray market automobile and that she therefore needs such relief. Because prospective relief is not necessary to make Sims’ whole, and since equity does not grant that which is not needed, we should not read the complaint as including a prayer by Sims that the State be enjoined from enforcing § 320.02(9).

. For simplicity, I refer to FICA’s members collectively as importers, import brokers, and mechanics. See infra note 15 for the description of FICA’s members contained in the complaint. In the text, I divide them into two groups: the first consisting of the importers, the second consisting of import brokers and mechanics.

.If one considers how Sims would have proceeded had she filed suit in state court, the state law basis of Sims’ claim becomes obvious. Sims would have petitioned the state circuit court (Florida’s trial court of general jurisdiction) to issue a writ of mandamus compelling the director of the Department to title her automobile. The director, in his answer to Sims' petition, would have alleged that Sims was not entitled to relief because she had not complied with Fla.Stat. § 320.02(9). Sims, in turn, would have moved the court to strike that defense as insufficient on the ground that it was barred by federal law.

. The majority does not address this question— whether Sims’ and FICA’s claims are based on federal or state law. By ignoring it, the majority disregards its continuing duty to ensure that the district court had subject matter jurisdiction to entertain the case.

. At the time Sims filed suit, NHTSA had a backlog of 14,000 compliance applications awaiting approval. Because of this backlog, an owner could expect to wait up to nine months for NHTSA to issue a bond release letter.

. The Supreme Court has made it plain that counsel have an affirmative obligation to call the court's attention to facts which suggest mootness. See Board of License Comm’rs v. Pastore, 469 U.S. 238, 240 , 105 S.Ct. 685, 686 , 83 L.Ed.2d 618 (1985).

. The district court's dispositive opinion plainly relied on Sims’ counsel’s representation that NHTSA had not yet issued the bond release letter: "Sims still has not received a bond release letter from NHTSA, and it is not likely that she will receive one in the near future because in July 1985, NHTSA had 14,000 forms to review. The seed of Sims’ complaint lies in this bureaucratic traffic jam.”

.Counsel of course recognized that the panel had a duty to satisfy itself that the controversy before it was still live. See C & C Prods., Inc. v. Messick, 700 F.2d 635, 636 (11th Cir.1983) (“The case must be viable at all stages of the litigation; it is not sufficient that the controversy was live only at its inception.”). Once an appellate court determines that the controversy has ended, it must remand the matter to the trial court with directions that the judgment be vacated and the matter dismissed, see United States v. Munsingwear, Inc., 340 U.S. 36, 39-40 , 71 S.Ct. 104, 106-07 , 95 L.Ed. 36 (1950), even when, as the majority notes, ante at 1459 n. 15, the parties desire a decision on the merits and "agree” that the case is not moot. See DeFunis v. Odegaard, 416 U.S. 312, 316 , 94 S.Ct. 1704, 1706 , 40 L.Ed.2d 164 (1974).

. The "mere possibility” that Sims would bring another gray market automobile into Florida would not have been enough to satisfy the "capable of repetition” requirement and thereby create an article III controversy for the district court to decide. See Murphy v. Hunt, 455 U.S. 478, 482 , 102 S.Ct. 1181, 1183-84 , 71 L.Ed.2d 353 (1982); Morgan v. Roberts, 702 F.2d 945, 947 (11th Cir.1983).

. Sims suggests in her brief to this court on rehearing en banc that her controversy with the State might recur when she seeks to re-register her automobile each year as required by Fla. Stat. § 320.055 (1987). This suggestion is baseless for two reasons. First, a controversy over re-registration would not be a recurrence of the controversy described in Sims’ complaint. Second, assuming that it would be, there is no reason to believe that any such controversy will arise because we know that Sims possesses the documents required for annual re-registration under Fla.Stat. § 320.055, which are the same as those required for initial registration under Fla. Stat. 320.02(9).

.The standing and mootness inquiries are closely related. See Warth v. Seldin, 422 U.S. 490 , 499 n. 10, 95 S.Ct. 2197 , 2205 n. 10, 45 L.Ed.2d 343 . The standing inquiry asks whether the plaintiff — as opposed to someone else — is entitled to relief, while mootness focuses on “whether the occasion for judicial intervention persists.” Id. One commentator has defined mootness as “the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)." Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363 , 1384 (1973), cited in United States Parole Comm'n v. Geraghty, 445 U.S. 388, 397 , 100 S.Ct. 1202, 1209 , 63 L.Ed.2d 479 (1980).

. To have standing in its own right FICA would have to allege injury to itself, as an association, rather than to its members. See Center for Auto Safety v. National Highway Traffic Safety Admin., 793 F.2d 1322 , 1328-29 n. 41 (D.C.Cir.1986).

. In the complaint, FICA alleged that it is comprised of

persons and Florida business entities who support improving opportunities for commerce with foreign nations in the importation, use and sale in the United States of foreign-manufactured automobiles that are converted in this country to comply with emission and safety standards of the Clean Air Act and the Vehicle Safety Act. Plaintiff FICA’s members include importers of automobiles for their personal use as well as importers for sale, or dealers; brokers of import transactions; owners and operators of automotive conversion and compliance facilities, equipped to comply with safety standards established pursuant to the Vehicle Safety Act; and owners and operators of specialized automotive testing laboratories, equipped to comply or verify compliance with emission standards established pursuant to the Clean Air Act.

The record discloses almost nothing else about FICA. The only other reference to FICA is contained in the testimony of Gary Sims, appellee Sims’ husband, who is the secretary of FICA. Gary Sims testified that FICA "is a group of individuals that either import automobiles as dealers, they convert them as conversion people, they sell the automobile parts to the people who convert them, they, — they own the testing facilities, they are individuals who import cars for their personal use.”

.In addition, FICA must show that "the interests it seeks to protect are germane to the [association’s] purpose [and that] neither the claim asserted nor the relief requested requires the participation of individual members of the lawsuit.” Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343 , 97 S.Ct. 2434, 2441 , 53 L.Ed.2d 383 (1977); see also Pennell v. City of San Jose, — U.S. -, 108 S.Ct. 849, 855 , 99 L.Ed.2d 1 (1988); International Union, United Auto., Aero. & Agric. Implement Workers of America v. Brock, 477 U.S. 274, 281-82 , 106 S.Ct. 2523, 2529 , 91 L.Ed.2d 228 (1986).

. The Supreme Court in Warth stated:

For purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party. At the same time, it is within the trial court’s power to allow or to require the plaintiff to supply, by amendment to the complaint or by affidavits, further particularized allegations of fact deemed supportive of plaintiffs standing. If, after this opportunity, the plaintiffs standing does not adequately appear from all materials of record, the complaint must be dismissed.

422 U.S. 490, 501-02 , 95 S.Ct. 2197, 2206-07 (citations omitted). In order to determine the standing question, I not only take the allegations in the complaint as true, but I also deem FICA’s complaint as amended to conform to any evidence relevant to standing introduced at trial. See Fed.R.Civ.P. 15(b).

. At trial, FICA presented no further evidence concerning the standing of this group of members; hence, we must decide the standing of this group, and thus of FICA, on the basis of the factual allegations quoted in the text.

. The holdings of Warth and Anderson are squarely on point and would seem to control our decision. Inexplicably, the majority ignores these holdings. It cites Warth solely for the elementary principle that in ruling on a motion to dismiss for lack of standing, a court must accept the plaintiffs allegations of fact as true, and it fails even to acknowledge Anderson’s existence. What are the district judges of our circuit to do the next time a defendant challenges the plaintiffs standing under Warth and Anderson , and the plaintiff, in response, cites today's holding?

. The limitation is subject to exception where there is (1) a close relationship between the third party and the party whose rights are asserted, and (2) the existence of obstacles preventing the latter from asserting its rights on behalf of itself, see Singleton v. Wulff, 428 U.S. 106, 113-16 , 96 S.Ct. 2868, 2874-75 , 49 L.Ed.2d 826 (1976), but these conditions are not present in this case.

. The eleventh amendment provides:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S. Const. amend. XI. As it has been interpreted, the eleventh amendment proscription applies to suits brought by a citizen against his own state or an agency of the state. See Hans v. Louisiana, 134 U.S. 1, 10 , 10 S.Ct. 504, 505 , 33 L.Ed. 842 (1890); see also Welch v. State Dep’t of Highways & Public Transp., 483 U.S. 468 , 107 S.Ct. 2941, 2945-46, 2949-53 , 97 L.Ed.2d 389 (1987).

.The complaint named the Attorney General of Florida, Jim Smith, as a defendant solely because Fla.Stat. § 86.091 (1987) requires the plaintiff in a suit in state court that challenges the constitutionality of a Florida statute to notify the Attorney General of the suit by serving him a copy of the complaint. This statute does *1469 not apply to suits in federal court. Accordingly, since Sims and FICA sought no relief against the attorney general, they moved the district court to dismiss him from the case. The State, having no reason to oppose the motion, agreed to the dismissal, and on August 29, 1985 the district court entered an order dropping the attorney general as a party defendant.

.The majority seems to recognize this point reluctantly. The majority notes that the State did not present the sovereign immunity defense until the panel that initially considered this appeal raised the issue, and appears to criticize the panel for doing so with the following statement: " ‘[w]e have never held that [the eleventh amendment defense] is jurisdictional in the sense that it must be raised and decided by this court on its own motion.’ Patsy v. Board of Regents of the State of Florida, 457 U.S. 496 , 515 n. 19, 102 S.Ct. 2557 , 2567 n. 19 [ 73 L.Ed.2d 172 ] (1982).” See ante at 1460.

Although the State did not plead the sovereign immunity defense in the district court, the “defense sufficiently partakes of the nature of a jurisdictional bar so that it need not [have been] raised in the trial court.” Edelman v. Jordan, 415 U.S. 651, 678 , 94 S.Ct. 1347, 1363 , 39 L.Ed.2d 662 (1974). Patsy does not prohibit an appellate court from sua sponte raising the issue of sovereign immunity, as the majority implies. The Supreme Court in Patsy merely noted that, because the parties before it had not briefed the eleventh amendment issue and because the possibility existed that the state had statutorily waived the defense as to the particular circumstances of the suit, the Court deemed it inappropriate for it, rather than the district court, to decide the issue. Patsy, 457 U.S. at 515 n. 19, 102 S.Ct. at 2567 n. 19. The Court therefore reversed the district court’s dismissal, which was based on an erroneous view that exhaustion of state remedies is required in section 1983 cases, and suggested that the district court address the eleventh amendment question on remand. Id. In contrast to Patsy , both parties to this action have fully briefed the eleventh amendment issue, and at oral argument before the en banc court the State vigorously pressed for dismissal on eleventh amendment grounds. Also in contrast to Patsy , there is no possibility that the State has waived sovereign immunity in this case. The Florida constitution requires "specific, clear, and unambiguous language in a statute to constitute a waiver of sovereign immunity.” Manatee County v. Town of Longboat Key, 365 So.2d 143, 147 (Fla.1978). Sims and FICA have not argued, nor has this court uncovered, the existence of such a legislative enactment. Accordingly, the panel’s action in raising the eleventh amendment issue was not "unwarranted.”

. This court could defer ruling on the jurisdictional issues that I have discussed and, as an alternative disposition, direct that on receipt of our mandate the district court grant the plaintiffs leave to amend their complaint — by dropping the State and the Department from the suit, substituting for them the director of the Department as party defendant, and making new allegations of fact demonstrating the director’s liability to the plaintiffs — and, then, that process be served upon the new defendant. The majority tacitly rejects this alternative because such a disposition would, obviously, prevent it from deciding the constitutionality of Fla.Stat. § 320.02(9). Moreover, the majority knows that if this case were remanded to the district court — with instructions that that court grant the plaintiffs leave to amend, as described above — the merits may not be reached. After granting the plaintiffs leave to amend, the district court might dismiss the case for lack of subject matter jurisdiction or a justiciable controversy because Sims’ claim is moot and FICA lacks standing to sue.

. After the three-judge panel assigned to this case raised the eleventh amendment issue at oral argument, Sims and FICA filed a motion to add Charles Brantley, the director of the Department, as a party defendant. The panel denied the motion on May 26, 1987, and Sims and FICA have not renewed it. The court therefore acts sua sponte in substituting Brantley as the party defendant at this time.

. In the majority’s words, its action in substituting the director as the party defendant and binding him to the district court’s injunction cannot be considered as unfair because of “the *1471 state’s initial waiver of the defense, the state’s reluctance to urge the issue before the in banc court, and the lack of prejudice to the state and its officials_” See ante at 1460.

. The en banc court’s decision binding the director, in his official capacity, to the injunction issued against the State and the Department is tantamount to the issuance of an injunction against him.