# Petition for Writ of Certiorari — Fox v. Board of Trustees of the State University > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1706%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1995 - **Citation:** 515 U.S. 1169 ## Text Ort FIL&D No 9 41819 MAY 21995 peigge Fic bE oid ERK SUPREME COURT OF THE UNITED STATES October Term, 1994 TODD FOx, EDWARD R. DETWEILER, STEPHANIE VAIANO, JAMES B. CULLEN, CHRISTINE MARIE ODELL, STEVEN GAWLEY, DANIEL ALTMAN, PHILIP JAY BOTWINIK, JEFFREY S. ZELLAN, JACLYN BERNSTEIN, GLEN MAGPANTAY, WILLIAM WEITZ, COREY ANTHONY, DIEGO MUNOZ, EDWARD FAGAN, BAYCAN FIDELI, JODIE GREEN and JEFFREY LUKS, Petitioners, v. THE BOARD OF TRUSTEES OF THE STATE UNIVERSITY OF NEW YORK, and CLIFTON R. WHARTON, JR., individually and as Chancellor of the Board of Trustees, and THE STATE UNIVERSITY OF NEW YORK COLLEGE AT CORTLAND, and JAMES M. CLARK, individually and as President of the College at Cortland, and THE STATE UNIVERSITY OF NEW YORK AT BINGHAMTON, and CLIFFORD D. CLARK, individually and as President of the State University of New York at Binghamton, and THE STATE UNIVERSITY OF NEW YORK AT ALBANY, and VINCENT O’LEARY, individually and as President of the State University of New York at Albany, and THE STATE UNIVERSITY OF NEW YORK COLLEGE OF ARTS AND SCIENCES AT POTSDAM, and HUMPHREY TOMKIN, individually and as President of the College of Arts and Sciences at Potsdam, Respondents. Petition for Writ of Certiorari to the United States Court of Appeals for the Second Circuit PETITION FOR WRIT OF CERTIORARI Henry T. Reath Counsel of Record Wayne A. Mack Marc H. Perry James C. King DUANE, MORRIS & HECKSCHER One Liberty Place Philadelphia, PA 19103-7396 (215) 979-1000 Attorneys for Petitioners PACKARD PRESS® / APPELLATE DIVISION, 1617 JFK BOULEVARD, PHILA, PA. 19103 (215) 563-9000 40 QUESTION PRESENTED FOR REVIEW This is an important constitutional case that was started over twelve years ago, by a group of students and representa- tive leaders in student government at a state university, to vin- dicate their first amendment rights. The case was decided by this Court almost six years ago in June, 1989, when the Court ruled in substantial part in the students’ favor, finding that the challenged regulation infringed on the students’ pure free speech rights. The Court remanded the case to the court below to resolve the commercial speech issues under a modi- fied standard of first amendment analysis. Due to incredible delays, all plaintiffs had graduated or withdrawn from the defendant university by the time the case came back to the District Court on remand. The District Court originally permitted plaintiffs to amend the complaint to add new parties, but then some 22 months later reversed its order and dismissed the case as moot under Article III for lack of a case or controversy. The Second Circuit Court of Appeals affirmed. The Question Presented for Review is whether the moot- ness doctrine: e isa rigid and inflexible jurisdictional bar in every case, regardless of circumstances, based solely on the “case or controversy” provision of Article III of the US. Constitution, as held by the court below; or whether it ® has sufficient flexibility to permit a case challenged for mootness to remain under federal jurisdiction to final judgment, for example, by permitting an amendment of the complaint to substitute new plaintiffs, as this Court and other courts have ruled; and ¢ avoid premature termination of a case, that could deny plaintiffs their opportunity, not only to fully pre- vail on the merits, but also, as the prevailing parties, to recover their legal fees; — thereby putting at risk con- gressional intent encouraging private litigation to pre- serve individual constitutional rights. LIST OF PARTIES Plaintiffs are Todd Fox, Edward R. Detweiler, Stephanie Vaiano, James B. Cullen, Christine Marie Odell, Steven Gaw- ley, Daniel Altman, Philip Jay Botwinik, Jeffrey S. Zellan, Jaclyn Bernstein, Glen Magpantay, William Weitz, Corey Anthony, Diego Munoz, Edward Fagan, Baycan Fideli, Jodie Green and Jeffrey Luks. Defendants are The Board of Trustees of the State Uni- versity of New York, and Clifton R. Wharton, Jr., individually and as Chancellor of the Board of Trustees, and the State University of New York College at Cortland, and James M. Clark, individually and as President of the College at Cort- land, and the State University of New York at Binghamton, and Clifford D. Clark, individually and as President of the State University of New York at Binghamton, and the State University of New York at Albany, and Vincent O’Leary, indi- vidually and as President of the State University of New York at Albany, and the State University of New York College of Arts and Sciences at Potsdam, and Humphrey Tomkin, indi- vidually and as President of the College of Arts and Sciences at Potsdam. TABLE OF CONTENTS Page QUESTION PRESENTED FOR REVIEW.......___. i i SS ii sAmae GOP AUTHORITIOS......................... vi Sr 2 STATEMENT OF JURISDICTION.................. 2 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED...................... 3 STATEMENT OF THE CASE....................... 3 REASONS FOR GRANTING THE WRIT........_.. 7 1. This Court Should Grant Certiorari to Resolve Per- sistent Conflicts Among the Lower Courts Over the Application of the Mootness Doctrine.........___ 7 2. The Confusion and Conflicts in the Application of the Mootness Doctrine Are Revealed by Numerous Cases, Learned Commentaries, and Recent State- ments by the Justices of this Court............... 8 A. The confusion has been commented on by the Second and Sixth Circuits .................... 8 B. The confusion has been the subject of many Send 9 C. The confusion has been recognized in Opinions EEE SESS Se ae an nee ne 1] D. The mootness doctrine as historically applied by this Court is flexible and “riddled with excep- gt SASS UE i a a 13 E. There are serious and recurring conflicts among NN nai bork beh ox sac .c... 16 ill TABLE OF CONTENTS—(Continued) Page (1) There are conflicts regarding the significance of a student plaintiff’s graduation from a GotemGant WOUTIOR «ww ccc ccc ceccnsees 18 (2) There are conflicts regarding the plaintiffs’ right to amend a complaint to correct an alleged mootness problem................. 19 (3) There are conflicts regarding the correct application of the capable of repetition, yet evading review exception to the mootness IE os ks 48 occas Wis Webel cen deaens 19 (4) There are conflicts regarding the correct application of the representative action exception to the doctrine of mootness ...... 21 (5S) This case presents the Court with the oppor- tunity to resolve the conflicts ............. p+ 3. This Case Illustrates the Inequities and Waste of Judicial Resources from the Rigid and Inflexible Application of the Mootness Doctrine............. 22 A. This Court’s resources should not be wasted once this Court accepts jurisdiction ............ 23 B. A party should not be rewarded for a belated ge gr ee mr r Pere 24 C. Two simple procedural expedients to avoid mootness should have been utilized............ 25 (1) Representative capacity. .................. 25 (2) Amendment to add new parties............ 27 LD. FUCGRNE CAMGRGOTURIONI. 2.5 055s cc ccsccesvccenss 27 PE TEE «66% wns ks 0 oe ees ncun cbdeeneedacees 30 iv TABLE OF CONTENTS—( Continued) Page APPENDIX Timeline of procedural history of case ................ la Outline of oral argument presented to Second Circuit. . . 3a Court of Appeals’ Order denying Petition for Rehearing 4a Fox v. Board of Trustees, 42 F.3d 135 (2d Cir. 1994)..... 6a Fox v. Board of Trustees, 148 ER.D. 474 (N.D.N.Y. WOME Adu hese aaneee Kiedis ivackbica 23a Fox v. Board of Trustees, 764 F. Supp. 747 (N.D.N.Y. SOE db vSiaeik watches eweiiass cedade none S4a Fox v. Board of Trustees, 492 U.S. 469 SEs bean kde as 76a Remand Order by Second Circuit to District Court... .. 96a Constitutional and Statutory Provisions ............... 98a TABLE OF AUTHORITIES Cases: Page American Party v. White, 415 U.S. 767 (1974) .......... 22 Bender v. Williamsport Area Sch. Dist., 741 F.2d 538 (3d Cir. 1984), vacated on other grounds, 475 U.S. 534 a kar 5b Kenda eek 640 beGke ber nen eewaa~ens 19 Board of Educ. v. Rowley, 458 U.S. 176 (1982) ......... 15 Brandon v. Board of Educ., 635 F.2d 971 (2d Cir. 1980), cert. denied, 434 U.S. 1123 (1961)... 2. cececccvess 21 Brock v. Roadway Express, Inc., 481 U.S. 252 (1987).... 15 Burlington N. R.R. Co. v. Brotherhood of Maintenance of Way Employes, 481 U.S. 429 (1987)............... 15 California Coastal Comm’n v. Granite Rock Co., 480 U.S. EN 65 kusé0sbne8' 6000 cnsaesaiesaeh ideas 15 Carroll v. Blinken, 768 F. Supp. 1030 (S.D.N.Y. 1991), aff'd in part, rev'd in part on other grounds, 957 F.2d 991 (2d. Cir. 1992), cert. denied, 113 S. Ct. 300 DP GHikslhokaak sd keiss kas eamwan kena a ewes a 20 Christopher P. v. Marcus, 915 F.2d 794 (2d Cir. 1990), cert. ee ee Gi. BED CRUE oo hee cccccunvcersane 20 Curtis v. Des Moines, 995 F.2d 125 (8th Cir. 1993) ...... 28 Democratic Party of United States v. Wisconsin, 450 U.S. SE 6s aw bn keeeeseudk eon tees wean 15 Doe v. Sullivan, 938 F.2d 1370 (D.C. Cir. 1991)......... 20 First Nat’l Bank v. Bellotti, 435 U.S. 765 (1978)......... 16 Gannett Co. v. DePasquale, 443 U.S. 368 (1979) ........ 16 Globe Newspaper Co. v. Superior Court, 457 U.S. 596 DN. 4 64d See cehdnened eee eaken ans cuaeah eee 15 Heldman v. Sobol, 962 F.2d 148 (2d Cir. 1992).......... 9, 20 Hensley v. Eckerhart, 461 U.S. 424 (1983). ............. 28 vi TABLE OF AUTHORITIES—(Continued) Cases: Page Honig v. Doe, 484 U.S. 305 (1988) ............. 9, 11-12, 23 International Org. of Masters v. Brown, 498 U.S. 466 INE Ui od Gg uuidd Ge bated h cbaue asada us vids dae 14 Johnston-Loehner v. O’Brien, 859 F. Supp. 575 (M.D. Fla. SE hd sine t uses wt kb kd baa Wl me diinn Woa dob hie de kiec os 20 Jones v. Illinois Dep’t of Rehabilitation Servs., 689 F.2d We PE AAG RDA he ohnccdenebewuscueons 19 Kellogg v. Shoemaker, 46 F.3d 503 (6th Cir. 1995) ....... 9 Lewis v. Continental Bank Corp., 494 U.S. 472 (1990)... 27 Liner v. Jafco, Inc., 375 U.S. 301 (1964) ............... 13 Meyer v. Grant, 486 U.S. 414 (1988) ........0.00..0.... 15 Moore v. Ogilvie, 394 U.S. 814 (1969) ................. 22 Mullaney v. Anderson, 342 U.S. 415 (1952). .......... 27, 30 Norman v. Reed, 502 U.S. 279 (1992) ................. 15 Pinette v. Capitol Square Review & Advisory Bd., 30 F.3d 675 (6th Cir. 1994), cert. granted, 115 S. Ct. 787 Skchas hn ese cbnndn eeene dais aie bean antes 18 Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) 15 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 Nhe Orit waeedd'ekdasevende aiad os cka sus ua cs 16 Riverside v. Rivera, 477 U.S. 561 (1986) ............... 28 Roe v. Wade, 410 U.S. 113 (1973) ................... 13-14 SEC v. Sloan, 436 U.S. 103 (1978) .................... 16 Smith v. Lower Merion Township, Civ. A. No. 90-7501, 1991 WL 205023 (E.D. Pa. Oct. 7, 1991)........... 26 Sosna v. Iowa, 419 U.S. 393 (1975). .......000.0.00005. 21 United States v. New York Tel. Co., 434 U.S. 159 (1977) . 16 Vii TABLE OF AUTHORITIES—(Continued) Cases: Page United States Parole Comm’n v. Geraghty, 445 U.S. 388 Ad oa: dca heenesawekdueenaceenertnuenens 14, 21 United States v. Frumento, 552 F.2d 534 (3d Cir. 1977)... 16 Vitek v. Jones, 445 U.S. 480 (1980). ........ 0... ee eee 16 Washegesic v. Bloomingdale Pub. Sch., 33 F3d 679 (6th Cir. 1994), petition for cert. filed, 63 USLW 3644 A Ee SNS a hnneabeeN eka Neeeeedeuseiet cee 18 Wisconsin Dep’t of Industry, Labor & Human Relations v. Gould, Inc., 475 U.S. ZA2 (19GG). oc cc cccccccsess i Constitutional Provisions: ee Re Oe OS Oe lh er Pree er rer ee passim Statutes and Rules: Be Se he BREED CATO noes en canny erneesesnceses 2 Be Rs BOE CUE hb vc tee cdininennastvetens 25, 28 i os ais as ba ke al kb baa 5, 27 Re | gp : Se err ere rer 5, 27, PO es Gat AS be ec ond anes seesacvsaeseusaies 5, 27,20 g Re) fer rer errr Por ery ry ee 26 Miscellaneous: Currie, Federal Courts (1962). .....0.scccccccccesess ae 5, 13A Charles A. Wright, et al., Federal Practice and Pro- cedure, §3533.1 (1984 & Supp. 1994)............ 11, 17 Evan Tsen Lee, Deconstitutionalizing Justiciability: The Example of Mootness, 105 Harv. L. Rev. 605 TABLE OF AUTHORITIES—(Continued) Miscellaneous: Page Arthur R. Miller, Comment, Of Frankenstein Monsters and Shining Knights: Myth, Reality, and the “Class Action Problem,” 92 Harv. L. Rev. 664 (1979)...... 26 Henry P. Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363 (1973).......... 17 Gene R. Nichol, Jr., Moot Cases, Chief Justice Rehnquist, and the Supreme Court, 22 Conn. L. Rev. 703 SNE G5 5 oe bed nado s bad ved dadedciwesks 9,17 William Simon, Class Actions — Useful Tool or Engine of Destruction, 35 F.R.D. 375 (1972). ...........0000- 26 Corey C. Watson, Comment, Mootness and the Constitu- tion, 86 Nw. U. L. Rev. 143 (1991)................ 10 Timothy Wilton, The Class Action in Social Reform Liti- gation: In Whose Interest?, 63 B.U. L. Rev. 597 Saha bee cael coe te is canedéccctivdoe 26 Note, The Mootness Doctrine in the Supreme Court, 88 BG Fev HOE 0d CA PPOD hn ko ob 05.44 0bddn ohccn vas 22 ix IN THE SUPREME COURT OF THE UNITED STATES October Term, 1994 TODD FOX, EDWARD R. DETWEILER, STEPHANIE VAIANO, JAMES B. CULLEN, CHRISTINE MARIE ODELL, STEVEN GAWLEY, DANIEL ALTMAN, PHILIP JAY BOTWINIK, JEFFREY S. ZELLAN, JACLYN BERNSTEIN, GLEN MAGPANTAY, WILLIAM WEITZ, COREY ANTHONY, DIEGO MUNOZ, EDWARD FAGAN, BAYCAN FIDELI, JODIE GREEN and JEFFREY LUKS, Petitioners, v. THE BOARD OF TRUSTEES OF THE STATE UNIVERSITY OF NEW YORK, and CLIFTON R. WHARTON, JR., individually and as Chancellor of the Board of Trustees, and THE STATE UNIVERSITY OF NEW YORK COLLEGE AT CORTLAND, and JAMES M. CLARK, individually and as President of the College at Cortland, and THE STATE UNIVERSITY OF NEW YORK AT BINGHAMTON, and CLIFFORD D. CLARK, individually and as President of the State University of New York at Binghamton, and THE STATE UNIVERSITY OF NEW YORK AT ALBANY, and VINCENT O’LEARY, individually and as President of the State University of New York at Albany, and THE STATE UNIVERSITY OF NEW YORK COLLEGE OF ARTS AND SCIENCES AT POTSDAM, and HUMPHREY TOMKIN, individually and as President of the College of Arts and Sciences at Potsdam, Respondents. Petition for Writ of Certiorari to the United States Court of Appeals for the Second Circuit PETITION FOR WRIT OF CERTIORARI Petitioners respectfully request that a writ of certiorari issue to review the judgment entered by the United States Court of Appeals for the Second Circuit in this proceeding on February 3, 1995. 2 OPINIONS BELOW The opinion of the Court of Appeals for the Second Cir- cuit of December 9, 1994 is reported at 42 F.3d 135 (2d Cir. 1994), and reprinted in the Appendix (“App.”) to this Petition at 6a. The February 3, 1995 Order of the Second Circuit deny- ing plaintiffs’ petition for rehearing or rehearing en banc is reprinted at App. 4a. The Second Circuit’s opinion affirmed the May 7, 1993 Order and Opinion of the United States District Court for the Northern District of New York, which is reported at 148 F.R.D. 474 (N.D.N.Y. 1993), and reprinted at App. 23a. That decision reversed the District Court’s own prior May 24, 1991 decision, which is reported at 764 F. Supp. 747 (N.D.N.Y. 1991), and reprinted at App. 54a. This Court’s decision of June 29, 1989, with specific instructions on remand to the Second Circuit is reported at 492 U.S. 469 (1989), and reprinted at App. 76a. The Second Circuit’s September 26, 1989 Order remanding the case to the District Court is reprinted at App. 96a. The District Court’s decision of June 3, 1983, granting preliminary injunctive relief is reported at 565 F. Supp. 754 (N.D.N.Y. 1983). The District Court’s decision of June 12, 1986, following trial is reported at 649 F. Supp. 1393 (N.D.N_Y. 1986). That decision was reversed by the Second Circuit Court of Appeals on March 11, 1989, in a decision reported at 841 F.2d 1207 (2d Cir. 1988). The District Court’s original decision of October 3, 1988, on remand from the Second Circuit, is reported at 695 F. Supp. 1409 (N.D.N.Y. 1988). STATEMENT OF JURISDICTION The final judgment of the Court of Appeals for the Sec- ond Circuit was entered on February 3, 1995. On February 3, 1995, plaintiffs’ request for rehearing or rehearing en banc was denied. See App. at 4a. This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1) (1993). 3 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The constitutional and statutory provisions involved are US. Const. Art. Ill, § 2; Fed.R.Civ. P. 1; Fed.R.Civ. P. 15 and Fed.R.Civ. P. 21. The pertinent text of these provisions is included in the Appendix at App. 98a-99a. STATEMENT OF THE CASE This action involves the constitutionality of a regulation, which was enacted by the Board of Trustees of the State Uni- versity of New York (SUNY), and which prohibits students and their guests from meeting and hearing commercial presen- tations by business invitees and non-commercial presentations by professional invitees, such as lawyers, doctors or tutors. The regulation applies across all SUNY campuses, including in the students’ rented dormitory rooms. This case was previously before this Court in 1989, when the Court held that both commercial and pure free speech rights were at issue and remanded to the Court of Appeals to decide whether the regulation passed muster under the stan- dards announced in that opinion. 492 U.S. 469, 486 (1989), App. at 92a. Incredibly, these issues have never been resolved and the past six years have been spent litigating the issue of mootness.' 1982 — The Original Action The case began more than twelve years ago in December, 1982. On December 3, 1983, the District Court preliminarily enjoined the SUNY regulation on the ground that it infringed on the students’ commercial speech rights. 565 F. Supp. 757, 771 (N.D.N.Y. 1983). The District Court concluded that although SUNY may have legitimate purposes for the policy, it was apparently premised on “undifferentiated fear or appre- hension.” Id. at 765. Thus, there was no evidence that the “blanket prohibition” directly advanced those purposes OF 1. A timeline of the procedural history of this case detailing the extraordinary delays over the last thirteen years is attached at App. la. 4 that the purposes could not be served as well by less restric- tive restraints on speech. 565 F. Supp. 754. Following a non-jury trial on the merits, the District Court on December 12, 1986, dissolved its preliminary injunc- tion and sustained the SUNY policy. 649 F. Supp. 1393. (N.D.N.Y. 1986). Although the District Court found that there was evidence of less restrictive measures that would further the intended purposes of the ban, the Court concluded that the regulation affected only commercial speech and was thus sustainable under the rational basis analysis. Jd. at 1401-02. 1986-1988 — Appeal to the Second Circuit On appeal, the Second Circuit reversed and remanded, ruling that the “SUNY Regulation survived constitutional scrutiny below only because the First Amendment nghts of students were ignored.” 841 F.2d 1207, 1214 (2d Cir. 1988). The Court rejected the rational basis analysis applied by the District Court in favor of a “least restrictive means” test. Jd. 1988 — First Remand to the District Court On October 3, 1988, the District Court on remand struck down the SUNY regulation as a violation of the students’ commercial speech rights. 695 F. Supp. 1409, 1413 (N.D.NLY. 1988). The District Court found that the regulation did not directly advance the state’s interests and that the regulation was more extensive than necessary. Jd. at 1414. 1989 — Decision and Remand Order by this Court A writ of certiorari, sought by SUNY, was granted by this Court on the same day that the District Court issued its opin- ion striking down the regulation. Following receipt of briefs and oral argument on February 22, 1989, this Court issued its decision on June 29, 1989. Justice Scalia writing for the major- ity held that Resolution 66-156 not only prohibits commercial speech, but also pure non-commercial speech, which is entitled to the fullest protection of the First Amendment. 492 U‘S. at 481-82, App. 88a-89a. The Court declined to enter judgment for the plaintiffs on this issue because they had not filed a 5 cross-petition for certiorari. It remanded the case to the Sec- ond Circuit for determination of: ¢ the validity of the application of the regulation to pure non-commercial speech; e whether the regulation was narrowly tailored in its application to commercial speech; and e¢ whether Resolution 66-156 may be constitutionally infirm due to “its substantial overbreadth.” 492 US. at 486, App. at 92a. Justice Blackmun, in a dissenting opinion, readily found the resolution to be substantially overbroad and stated it should be struck down immediately “in order to avoid chilling protected speech during the pendency of proceedings on remand.” 492 U.S. at 488-89, App. at 94a-95a (Blackmun, J., dissenting). 1989-1993 — Remand to the District Court and Dismissal for Mootness On June 26, 1989, the Second Circuit rejected plaintiffs’ application for that court to decide the open issues, and remanded this case to the District Court, explicitly quoting the remand instructions in the Supreme Court opinion. App. at 97a. On May 24, 1991, nearly two years after the case was remanded from this Court, the District Court ruled the case was moot because the plaintiffs were no longer SUNY stu- dents. 764 F. Supp. 747, 757 (N.D.N.Y. 1991), App. at 71a. However, the Court granted plaintiffs leave to amend their Complaint to add current SUNY students as plaintiffs, recog- nizing that granting plaintiffs leave to amend would cause no prejudice to defendants and would advance the resolution of this case on the merits.? 764 F. Supp. at 758, App. at 73a-74a. Plaintiffs in turn filed an amended complaint naming current SUNY students as plaintiffs. 2. See Fed. R. Civ. P., 1, 15(a), and 21, reprinted in App. at 98a-99a. 6 On May 7, 1993 (nearly four years after the remand order), the District Court issued an opinion which reversed its prior opinion that had permitted plaintiffs to amend their Complaint to add new plaintiffs. The District Court dismissed the case as moot because of the absence of a “case or contro- versy” under Article III of the Constitution. 148 F.R.D. 474, 489 (N.D.N.Y. 1993), App. at 53a. The court ruled that it had “no leeway” to permit an amended complaint, suggesting that plaintiffs should have brought a class action lawsuit or should now institute a new action. 148 F.R.D. at 483-84, App. at 41a- 42a. 1994-1995 — Appeal to the Second Circuit: Dismissal Affirmed and Petition for Rehearing Denied Plaintiffs appealed the order and decision of the District Court to the Second Circuit Court of Appeals, which affirmed the District Court’s ruling. 42 F.3d 135 (2d Cir. 1994), App. at 6a. The Court of Appeals ruled that the mootness doctrine was based on the case or controversy requirement of Article III of the Constitution and, as a result, the Court applied the doctrine rigidly. Although several plaintiffs filed affidavits indicating that they wished to re-enroll at SUNY to complete their education or to obtain graduate degrees, the Court of Appeals held that the case was not “capable of repetition, yet evading review”. 42 F.3d at 143, App. at 21a-22a. The Court agreed with the District Court that it did not have the power to allow plaintiffs to amend their complaint to join additional students as plaintiffs once the case became moot. 42 F.3d at 144, App. at 22a. On February 3, 1995, without opinion, the Court denied Plaintiffs’ Petition for Reargument. App. at 4a. In its opinion, the Court rejected plaintiffs’ argument, based on the cases discussed below, that the mootness doctrine is e “prudential and flexible, not rigid;” and that e “there are strong reasons to override the mootness doc- trine where a case, rooted in federal jurisdiction, is accepted by the U.S. Supreme Court.” 3. See Outline of Oral Argument, Points #1 and 9, App. at 3a. This 7 REASONS FOR GRANTING THE WRIT 1. This Court Should Grant Certiorari to Resolve Persistent Conflicts Among the Lower Courts Over the Application of the Mootness Doctrine. This Court should once and for all clear up the disagree- ment in this Court, and conflicts below, regarding the basis for and the application of the mootness doctrine. Because of the current state of confusion regarding the mootness doctrine, its application can as demonstrated by this case: ¢ Constitute an incredible waste of judicial resources and squander the valuable expertise and time of dedicated judges, particularly the members of this Court, where, as here, follow- ing briefs and oral argument, the Court handed down a major decision and remanded for further review which has not yet taken place. ¢ Reward defendants for delaying and prolonging litiga- tion rather than changing their unconstitutional conduct. In this case, SUNY, the party which sought certiorari did not raise the mootness claim until after it had lost its principal issue on appeal, when it had notice of the facts supporting its mootness argument before the case was argued before this Court. By this delay, defendants were able to continue to this day their unconstitutional conduct and prevent the plaintiffs from establishing their right to relief and possibly to recover fees for their counsel as prevailing parties. ¢ Require further costly litigation to resolve issues this Court directed be resolved six years ago, which could have been avoided by two simple procedural expedients: © determining the action was not moot because it was brought in a representative capacity; and © permitting an amendment under Fed. R. Civ. P. 15 and 21 to add additional parties. ¢ Finally, there are adverse judicial consequences, where the mootness doctrine is unfairly applied to parties, who are not responsible for the long delays as in this case. outline was presented to the panel and opposing counsel at the time of oral argument and all points #1-9 were stressed by plaintiffs’ counsel throughout the argument. 8 It can further undermine an already waning public confi- dence in the judicial system’s will and ability to decide impor- tant public issues promptly and efficiently. This is particularly so with regard to the student plaintiffs in this case, as repre- sentative leaders in student government, in their first exposure to the U.S. legal system, and the over 1,500,000 students from colleges and universities throughout the country, on whose behalf amicus briefs were filed in 1989 in this Court.‘ Furthermore, permitting a defendant to prematurely ter- minate an action by asserting a mootness defense, may pre- clude plaintiffs from seeking recovery of legal fees as the pre- vailing party. This will have a “chilling effect” on the willingness of the private bar to make legal services available to such students, particularly where, as here, there is no claim asserted for monetary damages.‘ 2. The Confusion and Conflicts in the Application of the Mootness Doctrine Are Revealed by Numerous Cases, Learned Commentaries, and Recent Statements by the Justices of this Court. A. The confusion has been commented on by the Second and Sixth Circuits. This case raises a critical, debated and unresolved issue regarding the doctrine of mootness. Hundreds of cases are decided by the federal courts each year involving the doctrine of mootness and a wide array of constitutional issues. Because the precise contours of the doctrine remain in dispute, how- ever, it has been applied in an inconsistent and totally unpre- dictable manner by the courts. Both the Second and Sixth Circuit Courts of Appeals have recently observed that the basis for and application of the mootness doctrine are much in dispute: 4. See Amicus brief filed in this action in this Court on December 20, 1988, on behalf of Student Association of the State University of New York, Inc.; Arizona Students’ Association; California State Student Association; Colorado Student Association; Connecticut Student Association; Michigan Collegiate Coalition, Inc.; Oregon Student Lobby; Rutgers College Govern- ing Association; Rutgers University Legislative Affairs Council; and United Council of University of Wisconsin Student Government, Inc. 5. See further discussion below at Section 3.D., pp. 27-29. 9 ¢ Former Chief Judge Oakes of the Second Circuit has stated that “[rjecently, members of the Supreme Court and commentators have questioned the nexus between the moot- ness doctrine and Article III.” Heldman v. Sobol, 962 F.2d * 48, 154 n. 7 (2d Cir. 1992). ¢ The Sixth Circuit raised similar questions regarding the mootness doctrine even more recently, noting that “consider- able controversy surrounds the mootness doctrine” after this Court’s decision in Honig v. Doe, 484 U.S. 305 (1988). Kellogg v. Shoemaker, 46 F.3d 503, 507 (6th Cir. 1995). There the Court of Appeals summarized the competing views of mootness: ¢ Article III Based: One view holds that the mootness doctrine “is fundamentally tied to the case and contro- versy language of Article Ill, and, therefore, the court may only review if there is a justiciable issue.” Jd. (emphasis added). ¢ Prudential Doctrine: Another view is that the moot- ness doctrine “is more flexible, and may be used to accomplish prudential concerns to avoid the squander- ing of judicial resources after the decisional process is underway.” Jd. (emphasis added). B. The confusion has been the subject of many legal commentaries. Legal commentaries have also noted the ongoing debate in the courts regarding the doctrine of mootness: ¢ One commentator has stated that “mootness law is both internally inconsistent and, more often, difficult to square with other aspects of federal justiciability law.” Gene R. Nichol, Jr., Moot Cases, Chief Justice Rehnquist, and the Supreme Court, 22 Conn. L. Rev. 703, 708 (1990). According to Dean Nichol, “[t]rying to square a constitutional aversion to moot cases with the reality that at least several members of the Supreme Court have likely meant to reach the merits of the substantive dispute, or else they would not have accepted the case for review, has caused eminent jurists — with some frequency — to say very silly and indefensible things . . . Insti- tutionally, it can do the Court little good for such arguments to find their way into published opinions.” Jd. at 708-10. ee 10 ¢ Another commentator has described the court’s treat- ment of mootness as “unprincipled and chaotic.” Corey C. Watson, Comment, Mootness and the Constitution, 86 Nw. U. L. Rev. 143, 145 (1991). According to this author, the core of the dispute is the constitutional question: “Is mootness rooted to article III of the Constitution, or is it a prudential doctrine, a product of judicial policy?” Jd. at 146. ¢ Yet another commentator has stated that the Supreme Court has come close to “reexamining the supposed constitu- tional underpinnings of justiciability” in mootness cases and “hinted that it might be willing to make incursions into the orthodox view that Article III lies at the core of justiciability.” Evan Tsen Lee, Deconstitutionalizing Justiciability: The Example of Mootness, 105 Harv. L. Rev. 605, 609 (1992). Pro- fessor Lee has argued that “imparting constitutional status on the justiciability doctrines is inconsistent with the venerable principle that the federal courts should reserve for Congress a significant role in overseeing the contours of their jurisdic- tion.” Jd. at 609. Professor Lee has further noted that the text, history and structure of Article III do not support the position that the mootness doctrine is constitutionally based. Jd. at 608- 09, 636-43. ¢ Professors Wright, Miller and Cooper in their treatise on Federal Practice and Procedure have also noted the confu- sion in the courts regarding the doctrine of mootness. They have written that resort to Article III language does not resolve the confusion: Despite the clear separation in received theory between mootness principles mandated by Article III, and prin- ciples merely of remedy or judicial administration, most decisions do not undertake any explanation of the sources drawn upon. ... The core of both Article II] and remedial doctrines, in short, is a search for the possibility that granting a present determination of the issues offered, and perhaps the entry of more specific orders, will have some effect in the real world. Resort to Article III language does not 11 advance the search, and there is little prospect that clear lines will be drawn between constitutional and prudential doctrines. 13A Charles A. Wright, et al., Federal Practice and Procedure, § 3533.1, at 225-26 (1984 & Supp. 1994) (footnotes omitted). C. The confusion has been recognized in Opinions of this Court. The basis for and application of the mootness doctrine has also been recently debated by members of this Court. Chief Justice Rehnquist has observed that if Article ITI is truly the basis for mootness, there can be no exceptions to the doc- trine because Article III has no exceptions. Honig v. Doe, 484 U.S. 305, 330 (1988) (Rehnquist, C.J., concurring). The Chief Justice explained in Honig that: If it were indeed Art. III which — by reason of its requirement of a case or controversy for the exercise of federal judicial power — underlies the mootness doc- trine, the “capable of repetition, yet evading review” exception relied upon by the Court in this case would be incomprehensible. Article III extends the judicial power of the United States only to cases and controversies; it does not except from this requirement other lawsuits which are “capable of repetition, yet evading review.” If our mootness doctrine were forced upon us by the case or controversy requirement of Art. III itself. we would have no moxe power to decide lawsuits which are “moot” but which also raise questions which are capable of rep- etition but evading review than we would to decide cases which are “moot” but raise no such questions. Id. (Rehnquist, C.J., concurring) (emphasis added). The Chief Justice went on to state: “The logical conclusion to be drawn from these [mootness] cases, and from the historical develop- ment of the principle of mootness, is that while an unwilling- ness to decide moot cases may be connected to the case or controversy requirement of Art. III, it is an attenuated con- nection that may be overridden where there are strong rea- sons to override it.” Jd. at 331 (Rehnquist, C.J., concurring) (emphasis added). 12 The decision in Honig dramatically illustrates the diffi- culty a court faces when dealing with a mootness issue and the perceived connection to Article III. The plaintiff in Honig alleged that he was denied educational services to which he was entitled under the Education of the Handicapped Act. By the time the case worked its way to this Court, the plaintiff had dropped out of school. Obviously, tremendous resources had been expended in litigating the case and the Court deemed the issues involved worthy of certiorari. Accordingly, although there was no affirmative showing that the plaintiff would re-enter the state school system, the Court ruled that the case was not moot because there was a “reasonable expectation” that he would seek to complete his education. /d. at 318 n.6. Justice Brennan, writing for the majority of the Court, held that the courts will maintain jurisdiction where there is a reasonable (not probable) likelihood that the litigant will again be wronged in a similar way and that any resulting claim will otherwise evade review. Jd. at 319-320. The majority explained that the concern in such cases is whether the contro- versy is “capable of repetition and not ... whether the claim- ant had demonstrated that a recurrence of the dispute was more probable than not.” Jd. at 319 n.6. Justice Scalia and Justice O’Connor dissented from the majority’s opinion in Honig. Their opinion cautioned that the majority’s opinion was “fraught with potential for future mis- chief,” and that the majority’s interpretation of a “reasonable expectation” had been “deprived of all meaning,” for the Court was free to “give it whatever application it wishes with- out fear of effective contradiction.” Jd. at 333, 337 (Scalia and O’Connor, J.J., dissenting). The dissent argued that the “capable of repetition” exception was limited to exceptional cases in whicn there is a demonstrated probability that the liti- gant will suffer the same problem that created the litigation. Id. at 333 (Scalia and O’Connor, J.J., dissenting). Chief Justice Rehnquist took issue with both the majority and the dissent. In his concurring opinion, he concluded that mootness “may be overridden where there are strong reasons to override it.” Jd. at 331 (Rehnquist, C.J., concurring). For 13 example, where a case became moot after a grant of certiorari, the Chief Justice argued that the doctrine of mootness should be abandoned altogether or relaxed. The Chief Justice stressed the unique resources squandered in such cases and the responsibility of the Supreme Court to decide the law of the land as it affects all the people, not just the litigants. Jd. at 332 (Rehnquist, C.J., concurring). D. The mootness doctrine as historically applied by this Court is flexible and “riddled with exceptions.” Even the most cursory review of this Court’s decisions regarding mootness confirms Chief Justice Rehnquist’s view that the connection between mootness and Article III is an attenuated one that may be overridden where there are strong reasons to do so. The Supreme Court’s first mention of Article III in con- nection with mootness did not come until a 1964 case, Liner v. Jafco, Inc., 375 U.S. 301 (1964), which the Court found not to be moot at all. See Lee, Deconstitutionalizing Mootness, 105 Harv. L. Rev. at 611. As support for the Article III linkage, the Court cited two law review articles. “One of these articles was quite equivocal about the Article III linkage, and the other was content to rely entirely on the proposition that a moot case is neither a case nor a controversy in the constitutional sense — a claim that is far from self-evident.” Jd. at 612. Seven years later in Roe v. Wade, 410 U.S. 113 (1973), the Court again dealt with the issue of mootness. The plaintiff in Roe was pregnant when she began her suit in 1970 and that pregnancy obviously had ended by the time the Supreme Court rendered its decision in 1973. Responding to the argu- ment that the case was moot, Justice Blackmun’s majority opinion explained that if the termination of the pregnancy deprived the Court of jurisdiction, there could never be an appellate review of decisions on abortion laws. Jd. at 125. The majority opinion did not explain, however, how the plaintiff retained a personal stake in the outcome of the case so as to satisfy Article III. Once her pregnancy ended, the plaintiff in Roe had no more personal stake in the outcome of the case a RR IR 14 than any other child-bearing woman in the jurisdiction. Nev- ertheless, the case was found not to be moot. /d. In United States Parole Commission v. Geraghty, 445 U.S. 388 (1980), this Court continued to debate the relationship between mootness and the “case or controversy” requirement of Article III. There it held that an action brought on behalf of a class does not become moot on the expiration of the named plaintiff’s substantive claim. Jd. at 404. Justice Black- mun, writing for the majority, explained that the mootness doctrine had a “flexible character.” Jd. at 400. “Art. III justi- ciability is ‘not a legal concept with a fixed content or suscep- tible of scientific verification,” but “‘one of uncertain and shifting contours.’ ” Jd. at 400-01 (citation: omitted). The Court stated that it was rejecting a “strict, formalistic view of Art. III,” noting that the mootness doctrine is “riddled with exceptions ... and in creating each exception, the Court has looked to practicalities and prudential considerations.” /d. at 404-06 & n. 11 (emphasis added). “The resulting doctrine can be characterized, aptly, as ‘flexible’.” Id. Roe and Geraghty are not unusual opinions in this respect. As demonstrated below, on at least seventeen other occasions, this Court has held that when significant constitu- tional issues are at stake, the mootness doctrine is flexible. The Court has found a wide range of possible issues capable of repetition. Not one of these important constitutional deci- sions would have been rendered were Article III an absolute bar. ISSUE FOUND TO BE CAPABLE OF CASE REPETITION Norman v. Reed, 502 U.S. 279, Unsuccessful candidate may 287-88 (1992) again run for election and be denied the right to use party name on ballot International Org. of Masters v. Unsuccessful candidate may Brown, 498 U.S. 466, 473 (1991) again run for union office and be denied the right to union’s mailing list CASE Meyer v. Grant, 486 U.S. 414, 417-18 n.2 (1988) Burlington N. R.R. Co. v. Broth- erhood of Maintenance of Way Employes, 481 U.S. 429, 436 (1987) Brock v. Roadway Express, Inc., 481 U.S. 252, 257-58 (1987) California Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 578 (1987) Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 6 (1986) Wisconsin Dep’t of Industry, Labor & Human Relations v. Gould, Inc., 475 U.S. 282, 285 n.3 (1986) Board of Educ. v. Rowley, 458 U.S. 176, 186-87 n.9 (1982) Globe Newspaper Co. v. Supe- rior Court, 457 U.S. 596, 602-03 (1982) Democratic Party of United States v. Wisconsin, 450 U.S. 107, 115 n.13 (1981) ISSUE FOUND TO BE CAPABLE OF REPETITION Proponents of initiative may again wish to pay petition cir- culators to obtain signatures On initiative petition Union may again find itself involved in labor dispute and wish to picket secondary rail- roads not involved in dispute Company may again attempt to discharge employee in retaliation for refusing to oper- ate an unsafe vehicle without allowing employee an eviden- tiary hearing Company may again submit mining pians for national for- est that would trigger con- tested permit requirement Newspaper may again seek access to and be denied access to transcript of preliminary hearing Company may again violate the NLRA three times and be debarred from doing business in the state School district may again enact plan with similar deficiencies Press may again wish to attend and be excluded from rape trial involving a victim under 18 State may again wish to use prohibited process in choosing delegates for national conven- ition 16 ISSUE FOUND TO BE CAPABLE OF CASE REPETITION Richmond Newspapers, Inc. v. Press may again wish to attend Virginia, 448 U.S. 555, 563 and be prohibited from attend- (1980) ing trial Vitek v. Jones, 445 U.S. 480, Prison may again attempt to 486-87 (1980) transfer prisoner to mental hospital without evidentiary hearing Gannett Co. v. DePasquale, 443 Press may again wish to attend U.S. 368, 377-78 (1979) and be excluded from pretrial hearing SEC v. Sloan, 436 U.S. 103, Investor may again hold stock 108-10 (1978) of company subjected to sum- mary suspension order by SEC First Nat’! Bank v. Bellotti, 435 Company may again wish to U.S. 765, 774-75 (1978) contribute money in an effort to influence voters United States v. New York Tel. Company may again be forced Co., 434 U.S. 159, 165 n.6 to allow pen register surveil- (1977) lance It is clear from the above-cited cases and countless others that this Court has treated mootness as a prudential doctrine to enable it to decide cases on appeal whenever a decision on the merits would help give true and concrete meaning to important public values. The exceptions to the mootness doc- trine have been created and applied as a means to that end, not as the end itself. As the Third Circuit has stated, the exceptions to the mootness doctrine have been found “so as to satisfy the true governing consideration behind the Court’s decision—that of having review available when significant interests are at stake.” United States v. Frumento, 552 F.2d 534, 540 (3d Cir. 1977) (emphasis added). E. There are serious and recurring conflicts among the Circuits. As this Court has debated the issue of mootness, the lower federal courts have been in a quandary to balance pru- a 17 dential concerns with the rigid “case or controversy” approach. The recognized “exceptions” to the mootness doc- trine have been interpreted and applied by the lower courts in conflicting manners to achieve varying ends. In the process, Article III, which is of great significance in other contexts, has been trivialized.® In certain cases, the doctrine has been applied rigidly and inflexibly in order to avoid reaching the merits of the case. One commentator has stated that “mootness is a convenient tool for avoiding ‘hard’ cases.” Henry P. Monaghan, Constitu- tional Adjudication: The Who and When, 82 Yale LJ. 1363, 1384 n. 141 (1973). Another has stated similarly that only “[dlifficult cases are moot.” Currie, Federal Courts 89 n.3 (1982). The underlying issues in such cases remain unresolved and, instead of spending time analyzing the merits of the case, the appellate court is left to debate the nuances of the doc- trine of mootness. In other cases, the courts have strained for ways to avoid mootness by relying on a number of inconsistent exceptions to allow the case to proceed to the merits. Professors Wright, Miller and Cooper have stated that courts will “conjure up” a possibility or recurrence to accomplish such ends. 13A Charles A. Wright, et al., Federal Practice and Procedure, § 3533.1, at 226 (emphasis added). Another commentator has remarked that eminent jurists often “say very silly and indefensible things” to fit an otherwise moot case within an exception. Nichol, Moot Cases, Chief Justice Rehnquist and the Supreme Court, 22 Conn. L. Rev. at 703. The end result is that the doctrine of mootness is applied by the lower courts in an illogical and incoherent manner. Both plaintiffs and defendants are subject to the whim of a particular judge as to whether the mootness challenge will succeed or fail. The appellate process has become bogged down with deciding mootness issues, rather than the underly- ing constitutional issues involved. Because those underlying issues are not resolved, new litigation ensues. The result is quite simply confusion at worst and inconsistency at best. 6. Article III is reprinted in App. at 98a. 18 (1) There are conflicts regarding the significance of a student plaintiff's graduation from a defen- dant institution. Second Circuit vs. Sixth Circuit The claims of the students in this case were found by the Second Circuit to be moot because they left the defendant institution while the case was on appeal. This result conflicts with Washegesic v. Bloomingdale Public Schools, 33 F.3d 679 (6th Cir. 1994), petition for cert. filed, 63 USLW 3644 (Feb 15, 1995), where a student brought an action to compel his high school to remove a portrait of Jesus Christ from being dis- played in the hallway of the school. Because the student- plaintiff graduated during the pendency of the appeal, the defendants moved to dismiss the case as moot. The Sixth Cir- cuit concluded that the case was not moot because “any par- ent, employee or former student who uses the school facilities and suffers actual injury would have standing to sue.” Jd. at 683.7 The facts of Washegesic and the facts of the instant case are indistinguishable. Plaintiffs’ Amended Complaint in this case specifically alleges that the challenged regulation infringes upon the plaintiffs’ rights to both “host and/or attend in the privacy of their own or another student’s dormitory room a meeting to discuss with a business invitee such topics as the students, in the exercise of their own free choice, decide that they want to participate in.” Amended Complaint, {28 (emphasis added). The students could return as visitors like the student in Washegesic and be subject to the same uncon- stitutional regulation. 7. The Sixth Circuit appears to have taken a very liberal approach to the mootness issue. See, e.g., Pinette v. Capitol Square Review & Advisory Bd., 30 F.3d 675 (6th Cir. 1994), cert. granted, 115 S. Ct. 787 (1995) (claims brought by KKK not moot even though activity terminated because KKK or some other organization may seek access in the future). 19 (2) There are conflicts regarding the plaintiffs’ right to amend a complaint to correct an alleged mootness problem. Second Circuit vs. Third Circuit The Second Circuit ruled in this case that mootness pre- vented plaintiffs from amending their complaint to add new students as plaintiffs. 43 F3d at 144, App. at 22a. This conflicts with the Third Circuit’s decision in Bender v. Williamsport Area School District, 741 F.2d 538 (3d Cir. 1984), vacated on other grounds, 475 U.S. 534 (1986), where that Court held that where students who had brought a com- plaint had since graduated, it was appropriate to allow an amendment to the complaint to substitute new student- plaintiffs. Jd. at 542 n.4. The Court reasoned that because the significant constitutional issue was capable of repetition and because there was no prejudice to the school district, leave to amend to substitute new student plaintiffs should be granted. Id. (3) There are conflicts regarding the correct appli- cation of the capable of repetition, yet evading review exception to the mootness doctrine. Second Circuit vs. Seventh Circuit The Second Circuit ruled that issues in this case were not capable of repetition although there was evidence that the student plaintiffs contemplated re-enrolling at SUNY to pur- sue their education. For example, one student had left SUNY only two credits shy of graduation. He filed an affidavit indi- cating that he “definitely plan[ned]” to return to SUNY to complete his degree. Other students filed affidavits stating that they intended to take graduate courses at SUNY. Other courts have found similar facts to satisfy the capable of repetition exception. In Jones v. Illinois Department of Rehabilitation Services, 689 F.2d 724, 727-28 (7th Cir. 1982), the Seventh Circuit held that a case brought by a deaf college student who graduated before appeal was not moot where 20 there was a possibility that student could continue or attend graduate school. The Court of Appeals stated that “although [plaintiff] disclaims any current intent to attend graduate school, that is a possibility that cannot be discounted in today’s society ...” Id. at 728.8 Conflicts within the Second Circuit Even the same court has entered conflicting decisions on the application of the mootness doctrine in the very factual issue scenario raised in Honig. Compare Heldman v. Sobol, 962 F.2d 148, 157 n.9 (2d Cir. 1992) with Christopher P. v. Mar- cus, 915 F.2d 794, 803-04 (2d Cir. 1990), cert. denied, 498 U.S. 1123 (1991), where the Second Circuit reached opposite con- clusions regarding the mootness of claims brought by handi- capped children who were no longer enrolled in the defendant schools. Conflicts Among Current Justices While Sitting on the Circuit Court of Appeals for the District of Columbia The disagreement regarding the correct application of the capable of repetition exception is perhaps best illustrated by the debate between two current members of this Court while sitting on the Circuit Court of Appeals for the District of Columbia. Justice, then Circuit Judge, Ginsburg, wrote the majority opinion in Doe v. Sullivan, 938 F.2d 1370 (D.C. Cir. 1991), 8. See also Johnston-Loehner v. O’Brien, 859 F. Supp. 575, 578 (M.D. Fla. 1994) (Suit brought by elementary school student challenging certain school policy on constitutional grounds. After suit was filed student trans- ferred to private school. Court found that there was a reasonable expecta- tion that the student could switch schools again and be subject to the same policy as before); Carroll v. Blinken, 768 F. Supp. 1030, 1031 n.1 (S.D.N_Y. 1991), aff’d in part, rev’d in part on other grounds, 957 F.2d 991 (2d Cir. 1992), cert. denied, 113 S. Ct. 300 (1992) ( SUNY students sought to enjoin aS unconstitutional certain allocations of a student activity fee. After the trial was concluded, plaintiff was academically dismissed from SUNY. The court found the case not moot because the student would not be prohibited from re-applying to SUNY at a later date and being re-admitted, at which time the student would face the same allocation of a student activity fee). 21 where a serviceman brought an action challenging an FDA interim regulation permitting the Defense Department to use unapproved drugs on military personnel in the Desert Storm operation. Although the Desert Storm operation was con- cluded by che time the case reached to the appellate court, the majority held that the case was not moot because it was capable of repetition. The Court, through Circuit Judge Gins- burg, recognized the flexible character of the mootness doc- trine and the need to apply the standard prudentially and without excessive stringency. Id. at 1379. Acknowledging that the “recurrence prospect here does not qualify as a strong probability”, the Court relied on Honig to support the appli- cation of the exception under these circumstances. Jd. at 1378 n.13. Justice, then Circuit Judge, Thomas strongly dissented. He reasoned that the case was moot because there was no showing that the plaintiff may again be involved in a war in which he would face a medical threat that requires the admin- istration of investigational drugs. Jd. at 1386 (Thomas, J., dis- senting). (4) There are conflicts regarding the correct appli- cation of the representative action exception to the doctrine of mootness. Further confusion exists regarding the exception to the doctrine of mootness for representative actions: e In Sosna v. Iowa, 419 U.S. 393, 401 (1975), this Court held that the mootness of a named plaintiff's individual claim after a class had been certified does not render the action moot. e In United States Parole Commission v. Geraghty, 445 U.S. 388, 404 (1980), the Court extended this exception to actions brought on behalf of a class even though the class was never certified. e In this case, the Court of Appeals ruled that such an exception only applied where the case was initially filed as a class action. 42 F.3d at 142, App. at 19a-20a. This ruling con- flicts with other decisions, such as Brandon v. Board of Edu- cation, 635 F.2d 971 (2d Cir. 1980), cert. denied, 454 U.S. 1123 22 (1981), where the case, which started as a class action but was never so declared, was held not moot despite the students’ graduation because the students were acting in a representa- tional capacity for members of the organization Jd. at 973 n.1.9 (5) This case presents the Court with the opportu- nity to resolve the conflicts. In sum, the Second Circuit’s decision in this case not only reveals a sharp and persistent split among the federal circuit courts of appeal on the exceptions to the mootness doctrine, but also creates a split as to whether a party has a right to amend to remedy the mootness. There is no clear and concise standard determining when one case is moot and when another is not. The effect of this situation is that persons who reside in different jurisdictions might see their significant con- stitutional issues decided on the facts of their case while indi- viduals in other jurisdictions with the same set of facts might not be afforded the same opportunity. Accordingly, in order to promote a more cohesive, less acrimonious and more consistent circuit court system, this Court should grant the Petition for Writ of Certiorari not solely for the benefit of the parties here, but for the benefit of all litigants who seek guidance from this Court on fundamen- tal constitutional issues such as are presented in this case. 3. This Case Illustrates the Inequities and Waste of Judicial Resources from the Rigid and Inflexible Application of the Mootness Doctrine. The mootness doctrine was never intended to be used as a sword or a shield to legitimize unconstitutional conduct. The system suffers, the Constitution is tarnished, and litigants and society lose confidence in the ability and independence of the 9. One commentator has noted that “nothing in the [representational capacity] rationale itself precludes its application to cases involving group interests in which the plaintiff did not file suit on behalf of a class.” Note, The Mootness Doctrine in the Supreme Court, 88 Harv. L. Rev. 373, 388 (1974); see also American Party v. White, 415 U.S. 767, 770 n.1 (1974); Moore v. Ogilvie, 394 U.S. 814, 816 (1969). 23 courts. This applies particularly to the instant case where uni- versity students’ good faith efforts to vindicate an unconstitu- tional infringement of their First Amendment rights, have been made a mockery of by the delays in this case, which now drags on into its 13th year. The case, which was started in 1982, is still undecided, and is now under the cloud of a mootness defense, asserted for the first time by SUNY on remand to the district court, and only after it lost its principal argument on appeal to this Court. A. This Court’s resources should not be wasted once this Court accepts jurisdiction. Once this Court has assumed jurisdiction, this Court’s valuable resources should not be wasted and disregarded by the application of the mootness doctrine. This Court should make clear that once it has decided to hear an important case, receive briefs and oral argument, write a definitive opinion, and remand the case to be decided under a modified standard of review, a party should not be permitted to assert a moot- ness defense, thereby prevailing on the court below to avoid deciding the very issues as remanded by this Court. This position, based on common sense and judicial economy, has been advocated by Mr. Chief Justice Rehnquist, concurring in Honig v. Doe. There, he concluded his concur- rence with the following statement: I would leave the mootness doctrine as established by our cases in full force and effect when applied to the earlier stages of a lawsuit, but I believe that once this Court has undertaken a consideration of a case, an exception to that principle is just as much warranted as where a case is “capable of repetition, yet evading review.” 484 U.S. at 332 (Rehnquist, C.J., concurring) (emphasis added). Chief Justice Rehnquist, in an earlier section of his con- currence, explained the rationale for the rule posited above. Cautioning against “squandering” the “unique resources” of time spent by the Court on briefs, oral argument and confer- ring, he stated: 24 To me the unique and valuable ability of this Court to decide a case — we are, at present, the only Art. III court which can decide a federal question in such a way as to bind all other courts — is a sufficient reason either to abandon the doctrine of mootness altogether in cases which this Court has decided to review, or at least to relax the doctrine of mootness in such a manner as the dissent accuses the majority of doing here. Id. (Rehnquist, C.J., concurring) (emphasis added). B. A party should not be rewarded for a belated claim of mootness. A party who seeks certiorari should not be permitted to prevail on a mootness defense that it asserted only after it lost its principal argument on appeal, particularly when it had notice of the facts supporting its claim of mootness before oral argument in this Court. It was the defendant university, SUNY, that sought certio- rari review and lost: — contending that its right to restrict its students’ free speech should be measured by the “rational basis” test under the “public forum analysis.” This Court dis- agreed, ruling that pure speech rights were involved and adopting a more rigorous standard for analysis of restrictions on commercial speech. The Court held that on remand, SUNY had the burden to affirmatively establish that its regulation directly advanced its interests and was no more extensive than necessary. 492 U.S. at 480, App. at 87a. In other words, as Mr. Justice Scalia wrote for the Court, there must be a “ ‘fit? between the legislature’s ends and the means chosen to accomplish those ends,” and the regulation must be “narrowly tailored to achieve its desired objective.” Id. Additionally, the record in the court below established that defendant SUNY, was on notice of the facts supporting its mootness claim, (i.e., that by August 1988, all of the student plaintiffs had either graduated or withdrawn) well before this case was finally briefed and argued before this Court on Feb- ruary 22, 1989. 25 However, as the party seeking review in this Court, SUNY did not assert this defense in the District Court until February 5, 1990, some 7 months after this Court came down with its decision and remand order of June 29, 1989, and after, as noted above, SUNY had lost the principal issue it had raised on appeal. Furthermore, SUNY should not be rewarded by being allowed by an assertion of mootness to continue to this day (i) its unconstitutional conduct infringing on its stu- dents’ pure free speech rights;!° (ii) to prevent the student plaintiffs from establish- ing their rights to total relief and thereby; (iii) avoid having to pay plaintiffs, as the prevailing parties, the attorneys’ fees incurred." As noted in section 1 above, such action by a defendant, particularly where as here, no damage claims are brought, could have serious public policy consequences by the “chilling effect” on the private bar’s willingness to get involved in diffi- cult constitutional cases. To the contrary, as the Congress has declared in adopting 28 U.S.C. § 1988, one of its principal rea- sons was to promote the “private attorney general” concept to encourage the private bar to get involved in just these kinds of cases. C. Two simple procedural expedients to avoid mootness should have been utilized. The mootness issue in this case could easily have been avoided by two simple expedients: (1) Representative capacity: The Court refused to recog- nize as was vigorously argued below, that the action was brought by responsible leaders in student government as rep- resentatives of the student body, that included two elected presidents of student government, one elected vice president and a number of other elected representatives of the student 10. See fn. 15 below, containing colloquy at oral argument where Judge Winter inquired why SUNY had not modified its Regulation, — at least with respect to its limitations on pure free speech declared unconstitutional by this Court almost 6 years ago - June 29, 1989. 11. See discussion below at fn. 14. 26 association. Such a representative action should be found to survive a mootness claim and avoid, as noted below, the cum- bersome, expensive and needless class action procedural device. This Court should make clear that an individual plain- tiff or group of plaintiffs can sue in a representative capacity: * to vindicate fundamental, constitutional rights; * that will effect all others similarly situated; * to continue with the lawsuit, even after graduation, if necessary, until it is resolved; ¢ without being forced to seek monetary damages or to resort to the cumbersome and expensive’? class action device of Fed. R. Civ. P. 23, as a procedural device sim- ply to avoid having the mootness defense invoked. A contrary rule encourages and promotes costly and com- plex class action litigation, with frequently spurious claims for damages, to resolve claims w'ch could be more easily and appropriately resolved on an individual basis. 12. The class action procedural device, used principally in antitrust and tort damage cases, has been the subject of much criticism, in part because of its procedural complexities, with class certification, notice and opt out pro- visions. See William Simon, Class Actions — Useful Tool or Engine of Destruction, 55 F.R.D. 375, 389 (1972); and Arthur R. Miller, Comment, Of Frankenstein Monsters and Shining Knights: Myth, Reality, and the “Class Action Problem”, 92 Harv. L. Rev. 664 (1979). More germane to actions such as this, seeking to establish constitutional rights where no damage claims are sought, is a thoughtful article by Timo- thy Wilton, The Class Action In Social Reform Litigation: In Whose Inter- est?, 63 B.U. L. Rev. 597 (1983). There, the author at page 599 stresses two fundamental points: ¢ First, plaintiffs may recover the same relief and attorneys’ fees in a non-class action against the government agency as they could in a class action. * Second, the only significant difference between class and non-class litigation is the binding effect on the class if the plaintiff loses. To the same effect, see Smith v. Lower Merion Township, Civ. A. No. 90-7501, 1991 WL 205023 (E.D.Pa. Oct. 7, 1991) (Court denies class action certification in a challenge to the constitutionality of a zoning ordinance in order to avoid “the full panoply of procedural paper work” involved in a class action. The court stated the pivotal issue — the ordinance’s legality “is nerfectly amenable to resolution by one individual test case.”). 27 (2) Amendment to add new parties: This Court should reassert the broad discretionary power of judges to allow the amendment of a complaint to add additional parties under Fed. R. Civ. P. 15a) and 2113 in the interest of securing “the just, speedy, and inexpensive determination of every action.” Fed. R. Civ. P 1. In Mullaney v. Anderson, 342 U.S. 415 (1952), this Court permitted a similar amendment to substitute new plaintiffs for a plaintiff who did not have standing, rea- soning that “to dismiss the present petition and require new plaintiffs to start over in the district court would entail needless waste and run counter to effective judicial administra- tion.” Id. at 417. See also Lewis v. Continental Bank Corp., 494 U.S. 472, 482 (1990) (moot case remanded to district court to allow amendment of complaint). There is no reason why a similar amendment should not have been permitted here. D. Judicial Considerations By way of summation, there are as noted above other important judicial considerations impacted by the application of the mootness doctrine in a case such as this: e Judicial resources are squandered and wasted on need- less debates concerning mootness rather than the underlying issues. Litigants and courts strain to find reasons to demon- strate that the case is capable of repetition, often damaging their own credibility. e The litigants face needless expense and delay More- over, costly and unnecessary class action litigation (See fn. 12 above) is brough to avoid mootness issues. ° The public confidence in the will and ability of the jus- tice system to promptly decide important public issues is fur- ther undermined. This is particularly so with respect to the young people in our colleges and universities who find their case moot, while other individuals pressing other claims are found to fall within an exception. 13. Fed. R. Civ. P. 15(a) states that leave to amend “shall be freely granted” and Fed. R. Civ. P. 21 grants the power to add parties “at any stage of the action.” 28 e Finally, as noted in section 1 above, such action by defendant can defeat a plaintiff's claims as a prevailing party under 28 U.S.C. 1988; and could have serious consequences by “its chilling effect” on the private bar’s willingness to get involved in such cases.!4 In fact, the record at oral argument on December 16, 1993, in this very case, before a panel of the Second Circuit Court of Appeals, on plaintiff’s appeal from the District Court’s finding of mootness, establishes this very point — SUNY’s real metive, in pressing its mootness defense so vig- orously, was to avoid the State’s liability to plaintiffs for legal fees, extending over a twelve year period.!5 14. As Congress has declared in adopting 28 U.S.C. § 1988, one of its principal reasons was to promote the “private attorney general” concept to encourage the private bar to get involved in just these kinds of cases: See Riverside v. Rivera, 477 U.S. 561, 577 (1986), (“Congress enacted § 1988 specifically to enable plaintiffs to enforce the civil rights laws even where the amount of damages at stake would not otherwise make it feasible for them to do so.”); Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (Congressional purpose in enacting § 1988 was to ensure effec- tive access to the judicial process for persons with civil rights griev- ances); Curtis v. Des Moines, 995 F.2d 125, 129 (8th Cir. 1993) (clear Congressional intent and purpose of § 1988 was to encourage attorneys to prosecute constitutional violations). 15. During argument by SUNY’s counsel, the electronic transcript of the record furnished by the Clerk’s Office for the Second Circuit Court of Appeals shows that Judge Winter perceptively identified one of the under- lying critical issues in this case, when he stated to SUNY’s counsel: BY JUDGE WINTER: The real problem in this case is that the case has gone on for twelve years and if the mootness argument prevails, the state gets to hang onto legal fees that the plaintiffs would be entitled to in a losing first amendment case, and obviously we can see why this point is very heavily litigated. BY MR. SMIRLOCK: You talk about a losing First Amendment case. So far not so your honor. We are back in the District Court from adju- dication. Obviously legal fees are at issue here. (emphasis added) Almost at the very end of SUNY’s counsel’s argument, Judge Winter asked SUNY why the State was taking such a “rigid position” in not modi- fying the Regulation at least as to pure free speech. The colloquy below, and particularly SUNY’s counsel’s answer as high- lighted, further corroborates the concern regarding a rigid application of the mootness defense to a case such as this. 29 Such misapplication of the mootness doctrine is neither right nor fair and should be corrected by this Court. BY JUDGE WINTER: I just have one other question. What is wrong with reforming the statute to exclude from its coverage people such as doctors, lawyers and others who might be invited on the campus to per- form a service, particularly an emergency service, to allow it? Why is the state taking such a rigid position on the regulation? BY MR. SMIRLOCK: I think partly because of the attorney's fees, Your Honor. I will be glad to submit the brief that we have put in the District Court on the merits. I think strategically we’re taking the posi- tion for the same reason they’re taking the position and just not start- ing over with new plaintiffs. 30 CONCLUSION For the foregoing reasons, Petitioners respectfully pray that the Court issue a Writ of Certiorari to review the judg- ment of the Court of Appeals for the Second Circuit.'® Respectfully submitted, DUANE, MORRIS & HECKSCHER "’ Henry T. Reath Counsel of Record Wayne A. Mack Marc H. Perry James C. King One Liberty Place Philadelphia, PA 19103-7396 (215) 979-1000 Attorneys for Petitioners 16. This Court may wish to consider summary disposition of this mat- ter, in light of the argument and cases cited at Section 2.C. pp. 11-13, par- ticularly Chief Justice Rehnquist’s concurrence in Honig v. Doe, discussed above at Section 3.A. pp. 23-24, to the effect that once this Court assumes jurisdiction and receives briefs and hears oral argument, the case should remain in the federal judicial system until all the issues are decided. Alternatively, the Court could order that plaintiffs are permitted to amend their complaint to join new plaintiffs under Fed. R. Civ. P. 15(a) and 21, as was done by this Court in Mullaney v. Anderson, 342 U.S. at 417. See also discussion in Section 3.C. (2) above at p. 27. 17. Counsel of Record wishes to acknowledge and thank Judith Bernstein-Baker, Director of the Public Service Program at the University of Pennsylvania Law School, and the following students at the Law School, who have provided valuable pro bono assistance, through the Public Service Program, by conducting extensive legal research for this Petition: Hessup Chung Robert K. Khedouri APPENDIX Time Line — Fox v. Board of Trustees 12/2/82 - Action Filed 6/3/83 — Opinion and Order of District Court granting preliminary injunction (565 F. Supp. 754) 9/10/84 — Amended Complaint filed 9/24/86 to 10/1/86 — Trial 12/12/86 — Opinion and Order of Judge McCurn dismissing the complaint (649 F. Supp. 1393) 4/7/87 — Plaintiffs’ Notice of Appeal filed with Second Circ uit 3/11/88 — Opinion and Order U. S. Court of Appeals for the Second Circuit reversing and remanding (841 F. 2d 1207) 6/9/88 — Petition for Writ of Certiorari in the United States Supreme Court filed by defendants 10/3/88 — Writ of Certiorari granted by the United States Supreme Court (488 U. S. 815) 10/3/88 — Opinion and Order of District Court striking down Resolution 66-156 (695 F. Supp. 1409) 6/29/89 — Opinion and Remand Order by the United States Supreme Court ( 492 U. S. 469) 9/26/89 - Remand Order by the U. S. Court of Appeals for the Second Circuit to the District Court 12/13/89 — Telephone conf. with District Court re: procedure / briefing schedule for resolution of case 2/5/90 — Briefs filed with District Court +— '82-’87 —» <— 1988 —» <’8§9-'’W + la 2a Time Line — Fox v. Board of Trustees 5/24/91 — Opinion and Order of District Court ruling case moot but granting plaintiffs’ leave to amend the Complaint (764 F. Supp. 747) 6/5/91 — Defendants’ Motion For Order Reversing Prior Order To Allow Plaintiffs To Amend Complaint Or Certifying Prior Order For Immediate Appeal 6/20/91 — Amended Verified Complaint adding new student plaintiffs filed 7/2/9\ — Plainuffs’ Brief in Opposition to Defendants Motion for Reconsideration filed 5/7/93 — District Court reverses order permitting arnendment of parties, and dismisses case for mootness (148 F.R.D. 474) 5/20/93 — Plaintiffs’ Motion For Reconsideration filed with District Court 6/23/93 — Plaintiffs’ Motion for Reconsideration denied by the District Court 7/7/93 — Plaintiffs’ Appeal filed with the United States Court of Appeals for the Second Circuit 12/19/94 — Court of Appeals’ Decision affirming District Court dismissal of case as moot (42 F. 3rd 135) 2/3/95 — Court of Appeals denies Petition for Rehearing 5/2/95 — Plaintiffs file Petition for Certiorari with the Supreme Court Revised -—1991 + 1993 + 1995 113 i 4 4 3a Outline of Oral Argument Presented to The Second Circuit NINE REASONS WHY THIS CASE IS NOT MOOT 1. ARTICLE 1 — PRUDENTIAL AND FLEXIBLE, NOT RIGID [Honig, Gerraghty, Brotherhood of Teamsters, Held- man] Appellants’ Brief at 13-16, Reply Brief at 5-7. 2. “REASONABLE LIKELIHOOD” ISSUES WILL RECUR — EVADE REVIEW [Honig, Carroll] Appellants’ Brief at 17-19, Reply Brief at 8-14. 3. PLAINTIFFS, AS INVITEES NOT DEPENDENT ON STATUS AS STUDENTS Appellants’ Brief at 16-17, Reply Brief at 14-16. 4. SIGNIFICANT CONSTITUTIONAL INTERESTS AT STAKE [Super Tire, Brotherhood of Teamsters] Appellants’ Brief at 20-21, Reply Brief at 7-8. 5. A REPRESENTATIONAL CAPACITY [Brandon, Trachtman] Appellants’ Brief at 33-35, Reply Brief at 14-17. 6. WAIVER AND DISTRICT COURT DELAY [cf. Honig] Appellants’ Brief at 16-24, Reply Brief at 15-21. 7. RIGHT TO AMEND TO ADD ADDITIONAL PLAIN- TIFFS UNDER FED. R. CIV. P 15 AND 21 [Mullaney, Hack- ner, Diffenderfer, Bender] Appellants’ Brief at 24-27, 31-32, Reply Brief at 21-23. 8. PLAINTIFFS WERE ENTITLED TO NOMINAL DAM- AGES UNDER FED. R. CIV. P. 54(b) [Beyah, Sapp] Appel- lants’ Brief at 28-31, Reply Brief at 21-23. 9. “STRONG REASONS” TO OVERRIDE MOOTNESS DOCTRINE: — e.g. WHERE CASE ROOTED IN FED. JURISDICTION IS ACCEPTED BY U.S. SUPREME COURT — Chief Justice Rehnquist — Concurrence in Honig; (See Attached Concurring Opinion) cf. Heldman, (Oakes, C.J.) 962 F.2d 148, at 153 fn. 7. 4a UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT UNITED STATES COURT HOUSE 40 FOLEY SQUARE NEW YORK 10007 GEORGE LANGE Ill CLERK At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse in the City of New York, on the 3rd day of February, one thousand nine hundred and ninety-five. TODD FOX, EDWARD R. DETWEILER, STEPHANIE VAIANO, JAMES B. . UNITED STATES COURT CULLEN, CHRISTINE MARIE ODELL,_ : OF APPEALS STEVEN GAWLEY, DANIEL ALTMAN, : FILED PHILIP JAY BOTWINIK, JEFFREY S. , ZELLAN, JACLYN BERNSTEIN, GLEN. FEB 03 1995 MAGPANTAY, WILLIAM WEITZ, . GEORGE LANGE III. COREY ANTHONY, DIEGO MUNOZ, : CLERK EDWARD FAGAN, BAYCAN FIDELI,__: : JODIE GREEN and JEFFREY LUKS, , SECOND CIRCUIT Plaintiffs-Appellants, . v. ° THE BOARD OF TRUSTEES OF THE STATE UNIVERSITY OF NEW YORK : and CLIFTON R. WHARTON, JR., : Dkt No: 93-7715 individually and as Chancellor of the : Board of Trustees and THE STATE UNIVERSITY OF NEW YORK COLLEGE AT CORTLAND, and JAMES: M. CLARK, individually and as President of : the College at Cortland, and THE STATE: UNIVERSITY OF NEW YORK AT BINGHAMTON, and CLIFFORD D. CLARK, individually and as President of the State University of New York at Binghamton, and THE STATE UNIVERSITY OF NEW YORK AT ALBANY, and VINCENT O’LEARY, individually and as President of the State : University of New York at Albany, and THE : STATE UNIVERSITY OF NEW YORK COLLEGE OF ARTS AND SCIENCES AT POTSDAM, and HUMPHREY TOMKIN, individually and as President of the College of Arts and Sciences at Potsdam, : Defendants-Appellees. : Sa A petition for rehearing containing a suggestion that the action be reheard in banc having been filed herein by the appellants Todd Fox et al. Upon consideration by the panel that decided the appeal, it is Ordered that said petition for rehearing is DENIED. It is further noted that the suggestion for rehearing in banc has been transmitted to the judges for the court in regular active service and to any other judge that heard the appeal and that no such judge has requested that a vote be taken thereon. FOR THE COURT GEORGE LANGE III, Clerk By: _/s/ Carolyn Clark Campbell Carolyn Clark Campbell, Chief Deputy Clerk 6a Todd FOX, Edward R. Detweiler, Stephanie Vaiano, James B. Cullen, Christine Marie Odell, Steven Gawley, Daniel Alt- man, Philip Jay Botwinik, Jeffrey S. Zellan, Jaclyn Bern- stein, Glen Magpantay, William Weitz, Corey Anthony, Diego Munoz, Edward Fagan, Baycan Fideli, Jodie Green and Jeffrey Luks, Plaintiffs-Appellants, v. The BOARD OF TRUSTEES OF THE STATE UNIVER- SITY OF NEW YORK and Clifton R. Wharton, Jr., indi- vidually and as Chancellor of the Board of Trustees and the State University of New York College at Cortland, and James M. Clark, individualy and as President of the College at Cortland, and the State University of New York at Bing- hamton, and Clifford D. Clark, individually and as President of the State University of New York at Binghamton, and the State University of New York at Albany, and Vincent O’Leary, individually and as President of the State Univer- sity of New York at Albany, and the State University of New York College of Arts and Sciences at Potsdam, and Hum- phrey Tomkin, individually and as President of the College of Arts and Sciences at Potsdam, Defendants-Appellees. No. 780, Docket 93-7715. United States Court of Appeals, Second Circuit. Argued Dec. 16, 1993. Decided Dec. 9, 1994. Students brought action against state university seeking declaratory and injunctive relief on First Amendment grounds against regulation that operated to bar private commercial businesses from engaging in sales demonstrations in students’ dormitory rooms. The United States District Court for the Northern District of New York, 649 F.Supp. 1393, entered judgment denying relief. The Court of Appeals reversed and remanded, 841 F.2d 1207. State university and related parties petitioned for certiorari. Thereafter, the District Court granted relief to students, 695 F.Supp. 1409, but those proceedings 7a were stayed when Supreme Court granted petition for certio- rari. The Supreme Court, 492 U.S. 469, set forth appropriate standard and remanded matter for determination of validity of regulation. The Court of Appeals, 764 F.Supp. 747, issued mandate remanding matter. The District Court, Neal P. McCurn, J., dismissed case as moot, 148 F.R.D. 474, and stu- dents appealed. The Court of Appeals, Mahoney, Circuit Judge, held that: (1) claim of mootness could not be waived; (2) action was moot because students were no longer enrolled at university; (3) claim for nominal damages or claim of rep- resentational capacity would not be read into complaint to preclude mootness; and (4) complaint was not within excep- tion to mootness doctrine for issues capable of repetition, yet evading review. Affirmed. Mootness was matter of subject matter jurisdiction that could not be waived and that could be raised at any time. U.S.C.A. Const. Art. 3, § 2, cl. 1. Defects in subject matter jurisdiction cannot be waived and may be raised at any time during proceedings. U.S.C.A. Const. Art. 3, § 2, cl. 1; Fed.Rules Civ. Proc.Rule 12(h)(3) 28 U.S.C.A. Action by students seeking declaratory and injunctive relief on First Amendment grounds against state university regulation that operated to bar private commercial businesses from engaging in sales demonstrations in students’ dormitory rooms was moot, where students were no longer enrolled at university; relief sought in complaint could provide no legally cognizable benefits to students once they had left state univer- sity system. U.S.C.A. Const. Art. 3, § 2, cl. 1; Amend. 1 Case is “moot,” and accordingly federal courts have no jurisdiction over litigation, when parties lack legally cogni- zable interest in outcome; plaintiff must have “personal stake” in litigation to have legally cognizable interest. U.S.C.A Const. Art. 3, § 2, cl. 1. See publication Words and Phrases for other judicial con- structions and definitions. Nominal damages are available in actions alleging viola- tions of constitutionally protected rights. 8a Request for nominal damages would not be read into stu- dents’ complaint challenging constitutionality of state univer- sity regulation barring private commercial businesses from engaging in sales demonstrations in students’ dormitory rooms, so as to stave off dismissal for mootness based upon fact that students were no longer enrolled at university, as it appeared that available Eleventh Amendment and qualified immunity defenses would have precluded any successful claim for money damages and there was no final judgment pursuant to which complete relief could be granted. U.S.C.A. Const. Art. 3, § 2, cl. 1; Amends. 1, 11; Fed.Rules Civ.Proc.Rule 54(c), 28 U.S.C.A. Students challenging constitutionality of state university regulation barring private commercial businesses from engag- ing in sales demonstrations in students’ dormitory rooms would not be regarding as having litigated case in representa- tional capacity, so as to stave off dismissal for mootness based upon fact that students were no longer enrolled at university, where students did not make any attempt to have class certi- fied and in fact never alleged in their pleading that they were bringing action on behalf of themselves and all other similarly situated. U.S.C.A. Const. Art. 3, § 2, cl. 1; Fed.Rules Civ.Proc.Rule 23, 28 U.S.C.A. Students’ suit challenging under First Amendment state university regulation barring private commercial businesses from engaging in sales demonstrations in students’ dormitory rooms did not come within exception to mootness doctrine, after students were no longer enrolled at university, for issues capable of repetition, yet evading review, as there was no rea- son to believe that issue presented could not be litigated in four-year span of standard undergraduate education and there was no reasonable expectation beyond bare statement of intention of reenrollment that same students would be sub- jected to same action again. U.S.C.A. Const. Art. 3, § 2, cl. 1; Amend. 1. Once case was moot, it was no longer justiciable in fed- eral court and had to be dismissed, and plaintiffs could not be permitted to amend their complaint to add additional parties. US.C.A. Const. Art. 3, § 2, cl. 1. 9a Henry T. Reath, Philadelphia, PA (Wayne A. Mack, Rich- ard W. Riley, Marc H. Perry, Duane, Morris & Heckscher, of counsel), for plaintiffs-appellants. Daniel Smirlock, Asst. Atty. Gen. of the State of New York, Albany, NY (Robert Abrams, Atty. Gen. of the State of New York, Peter H. Schiff, Deputy Sol. Gen. of the State of New York, Nancy A. Spiegel, Asst. Atty. Gen. of the State of New York, of counsel), for defendants-appellees. Before: MAHONEY and WALKER, Circuit Judges, and EGINTON, District Judge.* MAHONEY, Circuit Judge: Plaintiffs-appellants (“Plaintiffs”), individuals who at or following the commencement of this action were students in the State University of New York (“SUNY”) system, appeal from a judgment entered May 11, 1993 in the United States District Court for the Northern District of New York, Neal P. McCurn, Judge, that dismissed as moot their amended com- plaint (the “Complaint”) seeking declaratory and injunctive relief on First Amendment grounds against a SUNY regula- tion that operated to bar private commercial businesses from engaging in sales demonstrations in students’ dormitory rooms, and denied leave to file and amended complaint. See Fox v. Board of Trustees of the State Univ., 148 FR.D 474 (N.D.N.Y.1993) (“Fox VI’) (opinion supporting judgment). In a prior memorandum-decision and order entered May 24, 1991, the district court had concluded that Plaintiffs’ claims were moot because all of the Plaintiffs were no longer SUNY students and thus could not benefit from the declaratory and injuctive relief sought in the Complaint, rejecting various con- tentions by Plaintiffs to the contrary that are reiterated on this appeal and addressed subsequently in this opinion. See Fox v. Board of Trustees of the State Univ., 764 F-Supp. 747, 751-57 (N.D.N.Y.1991) (“Fox V”). The court has also ruled, however, that Plaintiffs could further amend the Complaint by adding additional plaintiffs who could benefit from declaratory or *The Hon. Warren W. Eginton, United States District Judge for the District of Connecticut, sitting by designation. 10a injunctive relief, and thus stave off dismissal. See id. at 757-59. On June 10, 1991, defendants-appellees (“Defendants”) moved for modification of this order, seeking dismissal of the Complaint due to mootness without leave to amend to cure the defect. See Fox VJ, 148 FR.D. at 476. The court reaffirmed its finding that the claims was moot, but granted Defendants’ motion to modify the court’s prior order, denied leave to amend the Complaint, and dismissed the Compalint. See Fox VI, 148 FR.D. at 489. On this appeal, Plaintiffs argue that the district court erred in: (1) dismissing the Complaint as moot; (2) failing to altow amendment of the Complaint; and (3) failing to enter judgment in Plaintiffs’ favor. We conclude that because the relief sought in the Complaint could provide no benefit to Plaintiffs’ once they were no longer students in the SUNY system, and because this case does not fall within any excep- tion to the doctrine of mootness, the district court properly dismissed the case as moot. Further, we conclude that the absence of any remaining Plaintiffs with a legally cognizable personal interest in the outcome of the litigation precludes any amendment of the Complaint to add additional plaintiffs. We accordingly affirm the judgment of the district court. Background The facts of this case have been extensively detailed sev- eral times during the course of this protracted litigation, and will be recounted here only as necessary to elucidate the issues presented on this appeal. This case arose when Todd Fox, a student at SUNY Cortland, was deined permission to host, in his dormitory room on the SUNY Cortland campus, a cook- ware demonstration sponsored by American Future Systems, Inc. (“AFS”), “a corporation engaged in selling cookware . . . to college students through group demonstrations.” Fox V, 764 F.Supp. at 749 n. 1. Fox was denied permission to host such an event pursuant to SUNY Resolution No. 66-156 (the “Resolu- tion”), which provides in pertinent part that: No authorization will be given to private commercial enterprises to operate on State University campuses or in lla facilities furnished by the University other than to pro- vide for food, legal beverages, campus bookstore, vend- ing, linen supply, laundry, dry cleaning, banking, barber and beautician services and cultural events. Fox V, 764 F.Supp. at 749. Following the denial of permission for Fox to host the demonstration, AFS, an AFS representative, and Fox com- menced this action, claiming that the Resolution violated their First Amendment rights and seeking a preliminary injunction premitting Fox to host an AFS-sponsored cookware demon- stration in his dormitory rooms. See id.; see also Fox v. Board of Trustees of the State Univ., 841 F.2d 1207, 1208 (2d Cir.1988) (“Fox IT”), rev’d and remanded, 492 U.S. 469, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989). The district court initially concluded that the Resolution would not satisfy the requirements set forth by the Supreme Court for the regulation of commercial speech in Central Hudson Gas & Electric Corp. v. Public Ser- vice Comm'n, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), because the Resolution did not “directly advance the governmental interests asserted,” and was “more extensive than necessary to service such interests.” American Future Sys. v. State Univ., 565 F.Supp. 754, 767 (N.Y.D.N.Y.1983) (“AFS V. SUNY”); see also Fox V, 764 F.Supp. at 749-50. Accordingly, the court issued the preliminary injunction sought by the plaintiffs in that case. See AFS v. SUNY, 565 F.Supp. at 770-71; see also Fox V, 764 F.Supp. at 750. Following the issuance of the preliminary injunction, the complaint was amended to challenge “interim” regulations promulgated by SUNY after the court issued the injunction, to drop the AFS representative as a plaintiff, to add as plaintiffs several students at other SUNY campuses, and to add as defendants SUNY officials at those campuses. See Fox V, 764 F.Supp. at 750; Fox Il, 841 F2d at 1210 n. 1. The court extended the prelimninary injuction to these additional defen- dants. See Fox II, 841 F.2d at 1210 n. 1. The amended com- plaint was tried to the district court, which dismissed the com- plaint and granted judgment for Defendants, holding that SUNY “ha[d] not created a public forum for the commercial 12a speech at issue,” and that the Resolution was “viewpoint- neutral and rea onable in relation to the forum’s purpose.” Fox v. Board of Trustees of the State Univ. of New York, 649 F.Supp. 1393, 1401 (N.D.N.Y.1986) (“Fox I”), rev’d and remanded, 841 F.2d 1207 (2d Cir.1988), rev’d and remanded, 492 U.S. 469 (1989); See also Fox V, 764 FSupp. at 750.! The plaintiffs appealed to this court. During the pendency of that appeal, AFS withdrew as a party and proceeded only as an amicus. See Fox II, 841 F.2d at 1208; see also Fox V, 764 F.Supp. at 750. This court reversed the district court’s judg- ment and remanded for the district court to determine whether the Resolution directly advanced the asserted govern- mental interests and whether the Resolution was the least restrictive means available to advance those interests. Fox I/, 841 F.2d at 1213-14. Upon remand, and while a petition for certiorari filed by Plaintiffs was pending, the district court ruled that, assuming that the Resolution and the interim regulations directly advanced SUNY’s asserted interests, neither the Resolution nor the interim regulations were “the least restrictive means for advancing those interests.” Fox v. Board of Trustees of the State Univ., 695 F.Supp. 1409, 1413-14 (N.D.N.Y.1988) (“Fox III”). Accordingly, the court held that both the Resolution and the interim regulations violated the First Amendment. /d. at 1414. However, on the same day that the district court’s deci- sion was issued, October 3, 1988, the Supreme Court granted the petition for certiorari. Board of Trustees of the State Univ. v. Fox, 488 U.S. 815, 109 S.Ct. 52, 102 L.Ed.2d 31 (1988). Accordingly, the proceedings in the district court were stayed pending the Supreme Court’s decision in the case. See Fox V, 764 F.Supp. at 750 & n. 17. The Supreme Court concluded that SUNY could adopt speech-restrictive regulations that “employ([] not necessarily the least restrictive means but . . . a means narrowly tailored to achieve the desired objective.” Board of Trustees of the 1. The court declined to consider separately the challenge to the interim regulations. See Fox I, 649 F.Supp. at 1402, see also Fox V, 764 F.Supp. at 750 n. 10. 13a State Univ. v. Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 3034-35, 106 L.Ed.2d 388 (1989) (“Fox IV”); see also Fox II, 841 F.2d at 1215 (Mahoney, J., dissenting). Also noting that the Reso- lution allegedly infringed upon some noncommercial spech, thereby posing a question of overbreadth, see Fox IV, 492 U.S. at 481-84, 109 S.Ct. at 3035-37, the Supreme Court reversed the judgment of this court and remanded for a “determination _. . of the validity of [the Resolution’s} application to the com- mercial and noncommercial speech [at issue]; and, if its appli- cation to speech in either such category is found to be valid, for determination whether its substantial overbreadth none- theless makes it unenforceable.” Id. at 486, 109 S.Ct. at 3038. This court then issued a mandate remanding the case to the district court, consistent with the directive of the Supreme Court. See Fox V, 764 F.Supp. at 751. By this time, the remaining Plaintiffs were no longer stu- dents in the SUNY system. See id. Upon remand, the district court thoroughly examined the issue of mootness, and, as pre- viously recited, concluded, in Fox V that the case was moot because the remaining Plaintiffs were no longer SUNY stu- dents and had no “legally cognizable interest in the outcome” of the case. Id. at 751, 758-59. The court also concluded, how- ever, that “grant[ing] plaintiffs leave to amend their complaint will cause no prejudice to the defendants and will advance this matter to a resolution on its merits.” Jd. at 759. Accordingly, the court granted Plaintiffs leave to amend the Complaint to include current SUNY students as plaintiffs, and declined to dismiss the Complaint. /d. Defendants then moved for modification of this order, seeking a dismissal of the Complaint due to mootness, rather than allowing an amendment of the Complaint to cure the defect. Fox VI, 148 F.R.D. at 476. Further, although the Plain- tiffs had not formally moved for reconsideration of the moot- ness determination in Fox V, in the interest of completeness the court considered arguments advanced by Plaintiffs for reconsideration of the court’s conclusion that the case was moot. See Fox VI, 148 F.R.D. at 477 n. 6. The court reaffirmed its finding that the case was moot, but granted Defendants’ motion for reconsideration, ordering that “that portion of 14a [Fox V] which permitted plaintiffs to amend their complaint pursuant to Rule 15(a) [to avoid a dismissal for mootness] be deleted,” 148 F.R.D. at 489, and dismissed the Complaint. Jd. On May 19, 1993, Plaintiffs sought reconsideration of Fox V/ in the district court, and the court denied that motion on June 23, 1993. This appeal followed. Discussion Plaintiffs argue primarily that: (1) the Defendants waived their right to assert a defense based on mootness; (2) the Complaint should be read to include a claim for nominal dam- ages; (3) the case is not moot because Plaintiffs sued in a rep- resentational capacity; (4) the case falls within the “capable of repetition, yet evading review” exception to mootness; and (5) the court should have permitted the amendment of the com- plaint to add additional plaintiffs. We consider these argu- ments in turn. A. Waiver and Mootness. [1] Plaintiffs’ “waiver” argument ignores the jurisdic- tional nature of the Article II] requirement that federal courts adjudicate only “Cases” and “Controversies.” See DeFunis v. Odegaard, 416 U.S. 312, 316, 94 S.Ct. 1704, 1705-06, 40 L.Ed.2d 164 (1974) (per curiam) (“The inability of the federal judiciary ‘to review moot cases derives from the requirement of Art. III of the Constitution under which the exercise of judicial power depends upon the existence of a case or contro- versy.’ ” (quoting Liner v. Jafco, Inc., 375 U.S. 301, 306 n. 3 84 S.Ct. 391, 394 n. 3, 11 L.Ed.2d 347 (1964))).? 2. Plaintiffs point to a statement in a concurring opinion by Chief Jus- tice Rehnquist in Honig v. Doe, 484 U.S. 305, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988), that “while an unwillingness to decide moot cases may be connected to the case or controversy requirement of Art. III, it is attenuated connec- tion that may be overridden when there are strong reasons to override it.” Id. at 331, 108 S.Ct. at 608 (Rehnquist, C.J., concurring). They also invoke an observation in Heldman v. Sobol, 962 F.2d 148, 154 n. 7 (2d Cir. 1992), that the mootness doctrine may be premised upon prudential, rather than 15a [2] When a case becomes moot, the federal courts “lack{ ] subject matter jurisdiction over the action.” New York City Employees’ Retirement Sys. v. Dole Food Co., 969 F.2d 1430, 1433 (2d Cir.1992). Defects in subject matter jurisdiction cannot be waived and may be raised at any time during the proceedings. See Alston v. Cough- lin, 109 F.R.D. 609, 612 (S.D.N.Y.1986) (“The mootness doctrine is an elemental limitation on federal judicial power, and its effect may not be waived by a party.”); see also Fed. R.Civ.P. 12(h)(3). [3, 4] A case is moot, and accordingly the federal courts have no jurisdiction over the litigation, when “ ‘the parties lack a legally cognizable interest in the out- come.” ’ County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1950-51, 23 L.Ed.2d 491 (1969)); see also North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971) (per curiam) (“federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them); Bragger v. Trinity Capi- tal Enter. Corp., 30 F.3d 14, 16 (2d Cir.1994) (same). The required legally cognizable interest has alternatively been described as a requirement that a plaintiff have a “personal stake” in the litigation. See United States Parole Comm'n v. Geraghty, 445 U.S. 388, 396, 100 S.Ct. NOTES (Continued) constitutional, considerations. See also United States v. IBT, 955 F.2d 171, 174 (2d Cir.1992) (recognizing “flexible” nature of mootness doctrine). In our view, both the Honig majority opinion, 484 U.S. at 317-18, 108 S.Ct. at 601, and the subsequent, unanimous rulings of the Court in Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78, 110 S.Ct. 1249, 1253-54, 108 L.Ed.2d 400 (1990), make it quite clear that the mootness doctrine is based upon the case or controversy requirement of Article III of the Constitution. We are fortified in this conclusion by the Court's recent, unanimous decla- ration that “no statute could authorize a federal court to decide the merits of a legal question not posed in an Article III case or controversy. For that purpose, a case must exist at all stages of appellate review.” U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, __ U.S. __, —., 115 S.Ct. 386, 389, 130 L.Ed.2d 233 (1994) (citations omitted). l6a 1202, 1208, 63 L.Ed.2d 479 (1980); see also Franks v. Bowman Transp. Co., 424 U.S. 747, 755, 96 S.Ct. 1251, 1259-60, 47 L.Ed.2d 444 (1976); Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). “(T]he mootness doctrine ensures that the litigant’s interest in the outcome continues to exist throughout the life of the lawsuit, including the pendency of the appeal” Cook v. Colgate Univ., 992 F.2d 17, 19 (2d Cir.1993) (cita- tions omitted) (equitable claims against university mooted by graduation of plaintiffs). This court has con- sistently held that students’ declaratory and injunctive claims against the universities that they attend are mooted by the graduation of the students, because after their graduation and absent a claim for damages, “ ‘it becomes impossible for the courts, through the exercise of their remedial powers, to do anything to redress the injury.’ ” Cook, 992 F.2d at 19 (quoting Alexander v. Yale Univ., 631 F.2d 178, 183 (2d Cir.1980)). The relief sought in the Complaint could provide no legally cognizable benefits to Plaintiffs once they had left the SUNY sys- tem. See Cook, 992 F.2d at 19.5 Accordingly, the district court applied well settled law and concluded that this case was moot. Further, the condition of mootness is not a defense that could be waived by the Defendants, but rather is a condition that deprives the court of subject matter jurisdiction. B. Nominal Damages as Precluding Mootness [5] The inability of the courts to provide relief to Plain- tiffs after they left the SUNY system is logically dependent upon the absence of a claim for damages, because relief in the form of damages for a past violation of their constitutional rights is not adversely affected by that departure. See Univer- sity of Tex. v. Camenisch, 451 U.S. 390, 393-94, 101 S.Ct. 1830, 1832-33, 68 L.Ed.2d 175 (1981); Cook, 992 F.2d at 19; Stokes v. Village of Wurtsboro, 818 F.2d 4, 6 (2d Cir.1987) (collecting 3. We address in section D of this Discussion Plaintiffs’ claim that pos- sible future attendance at a SUNY unit by one or more Plaintiffs precludes a determination of mootness. ee LLL LL 17a authorities). It is clear that nominal damages are available in actions alleging violations of constitutionally protected rights. See, e.g., Carey v. Piphus, 435 U.S. 247, 266-67, 98 S.Ct. 1042, 1053-54, 55 L.Ed.2d 252 (1978). Plaintiffs argue that because they are seeking to recover nominal damages, this case is not moot. [6] This contention fails primarily because “there is abso- lutely no specific mention in [the Complaint] of nominal dam- ages. Nor can a request for such damages be inferred from the language of [the Complaint].” Fox V, 764 F.Supp. at 756. Plain- tiffs advance three arguments in support of their claim that they should nonetheless be entitled to pursue nominal dam- ages and thereby stave off a dismissal for mootness: (1) the prayer in the Complaint for “such other relief as the Court deems just and proper” (in addition to declaratory relief and attorney fees*) provides a basis for an award of nominal dam- ages; (2) Fed.R.Civ.P. 54(c), which provides that “every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party’s pleadings,” also provides a basis to award nominal damages; and (3) in any event, they should be permitted to amend the complaint to seek nominal damages. The Primary case relied upon by Plaintiffs is Sapp v. Ren- froe, 511 F.2d 172 (Sth Cir. 1975). In Sapp, the plaintiff sued a high school, seeking declaratory and injunctive relief against the school for assertedly denying him admission in violation of his constitutional rights. Although the plaintiff had graduated from another high school by the conclusion of the trial, the court concluded that the actual damages proved by the plain- tiff (i.e., the tuition paid to the other high school) saved the case from being moot even though the complaint did not request damages relief. See id at 175-76. The actual disposition in Sapp, however, was as follows: “Since we find Sapp’s demand for compensatory damages, the 4. Plaintiffs do not contend on appeal that their claim to attorney fees precludes a determination of mootness. Any such claim would be barred by Lewis, 494 U.S. at 480, 110 S.Ct. at 1255. 18a only demand which has not been rendered moot by his gradu- ation, to be barred by the qualified immunity of [the defen- dants], we affirm the judgment of the district court [dismissing Sapp’s complaint].” Jd. at 175. Defendants in this case contend that if a damages claim had been asserted in the Complaint, they would succeessfully have defended against that claim in their official capacities by asserting an Eleventh Amendment defense, see Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989), and in their individual capacities by asserting a qualified immunity defense. See Harlow v. Fitzgerald, 457 U.S. 800 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). These arguments are persuasive. Will would indeed bar a § 1983 claim for damages against Defendants in their official capacities, because “neither a State nor its officials acting in their official capacities are ‘persons’ under § 1983.” Will, 491 US. at 71, 109 S.Ct. at 2312. As to qualified immunity, in view of the tortured history of this case, it can hardly be maintained that the rights which Plaintiffs seek to vindicate in this litiga- tion were “clearly established,” see Harlow, 457 U.S. at 818, 102 S.Ct. at 2738, when they commenced this suit in Decem- ber 1982, Plaintiffs’ protestations to the contrary notwith- standing. It thus seems apparent that defenses available to Defendants would have precluded any successful claim for money damages, nominal or otherwise, in this case. We are especially reluctant in these circumstances to read a damages claim into the Complaint’s boilerplate prayer for “such other relief as the Court deems just and proper,” or to conclude that the district court should have exercised its dis- cretion to permit an amendment of the Complaint to seek nominal damages. As to Fed.R.Civ.P. 54(c), there is no “final judgment” for Plaintiffs in this case upon which the rule may operate. As Plaintiffs point out, there was such a final judg- ment in Fox III on remand from our decision in Fox II, but that judgment was stayed and is effectively inoperative in view of the Supreme Court’s decision in Fox IV. Plaintiffs invoke our ruling in Beyah v. Coughlin, 789 F.2d 986, 989 (2d Cir.1986), that a claim for nominal damages can suffice to avoid mootness when claims for injunctive and a 19a declaratory relief have become moot The complaint in Beyah, however, explicitly sought compensatory and punitive dam- ages. See id. at 987; see also Fox VI, 148 F.R.D. at 479. Espe- cially in the circumstances presented here, we perceive no basis to allow a belated claim for damages “to breathe life into a moribund dispute.” McCabe v. Nassau County Medical Ctr. 453 F.2d 698, 702 (2d Cir.1971); see also R.S. & V. Co. v. Atlas Van Lines, 917 F.2d 348, 351 (7th Cir.1990) (failure to seek actual or nominal damages rendered contract claim moot); Goichman v. City of Aspen, 590 F.Supp. 1170, 1173-74 (D.Col.1984) (plaintiff's individual claims deemed moot when he was entitled only to nominal damages and “no prayer appears in the Complaint for such nominal damages”), aff'd on other grounds and remanded, 859 F.2d 1466 (10th Cir.1988). C. Representational Capacity. [7] Plaintiffs also assert that the case is not moot because they were litigating in a representational capacity. As the dis- trict court noted, however, Plaintiffs “obviously have not made any attempt to have a class certified under Fed.Rule Civ.Proc. 23.” Fox V, 764 FSupp. at 754. As we recently stated, “in gen- eral, if the claims of the named plaintiffs become moot prior to class certification, the entire action becomes moot.” Comer v. Cisneros, 37 F.3d 775, 798 (2d Cir.1994) (citing Board of Sch. Comm’rs v. Jacobs, 420 U.S. 128, 129-30, 95 S.Ct. 848, 849-50, 43 L.Ed.2d 74 (1975) (per curiam)); see also Ahmed v. Univer- sity of Toledo, 822 F.2d 26, 27 (6th Cir.1987). Plaintiffs point out that in Trachtman v. Anker, 563 F.2d 512, 514 n. 1 (2d Cir.1977), cert. denied, 435 US. 925, 98 S.Ct. 1491, 55 L.Ed.2d 519 (1978), and Brandon v. Board of Educa- tion, 487 F.Supp. 1219, 1224-25 (N.D.N.Y.), aff'd, 635 F.2d 971 (2d Cir.1980), cert. denied, 454 U.S. 1123, 102 S.Ct. 970, 71 L.Ed.2d 109 (1981), both decided after Jacobs, high-school- student plaintiffs were found to have a continuing stake in liti- gation even after their graduation from high school because the court concluded that they were suing in a representational capacity, in spite of the fact that no class certification had occurred. In both Anker and Brandon however, the pleadings explicitly asserted that the student plaintiffs were acting in a 20a representative capacity on behalf of themselves and other sta- dents similarly situated. See Anker, 563 F.2d at 514 n. 1; Bran- don, 487 F.Supp. at 1224-25. These cases are therefore distinguishable because “the pleadings before the court here do not demonstrate that plain- tiffs are bringing this action on behalf of themselves and all others similarly situated.” Fox V, 764 F.Supp. at 754; cf Cook, 992 F.2d at 20 (“Unlike Brandon and Trachtman, . . . the com- plaint herein sought .. . relief solely on behalf of the plaintiffs individually, not as representatives. ...”). In Brandon further- more, some of the student-plaintiffs had not yet graduated, see 487 F.Supp. at 1224, and a viable damages claim remained in the case. See id, at 1225. D. “Capable of Repetition, Yet Evading Review” Exception to Mootness. [8] Plaintiffs argue that this case falls within the “capable of repetition, yet evading review” exception to mootness. In cases such as this, in which, as we have just explained, plain- tiffs have sued in an individual rather than a representational capacity, this exception to mootness applies only if: “(1) the challenged action was in its duration too short to be fully liti- gated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982) (per curiam) (emphasis added); see also Lewis, 494 U.S. at 481, 110 S.Ct. at 1256; Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975) (per curiam). Addressing the first prong of this test, there is no reason to believe that the issue presented by this case could not be litigated in the four-year span of a standard undergraduate education. The present litigation has taken considerably longer because, inter alia, this court reversed the district court’s articulation of the governing rule of law, and the Supreme Court in turn reversed this court on that issue. Now that the Supreme Court has defined the applicable rule, how- ever, there is no reason to anticipate a similarly lengthy course of litigation if the issue were presented in a fresh lawsuit. In 2la any event, the available mechanism of a class action would preclude a dismissal for mootness. As to the second prong of the Murphy test, we have described the requisite likelihood of repetition as a “demon- strated probability” or a “reasonable expectation.” Deeper Life Christian Fellowship, Inc. v. Sobol, 948 F.2d 79, 82 (2d Cir.1991); see also McFarlin v. Newport Special Sch. Dist., 980 F.2d 1208, 1211 (8th Cir.1992) (“A mere ‘physical or theoreti- cal possibility’ is insufficient; a ° “demonstrated probability” ’ must be shown.” (quoting Murphy, 455 U.S. at 482, 102 S.Ct. at 1183 (quoting Weinstein, 423 U.S. at 149, 96 S.Ct. at 349))). Plaintiffs argue that one of their number could return to the SUNY system as a graduate student, and thus be subjected to the Resolution in the future. In support of this contention, Plaintiffs seek to supplement the record on appeal by proffer- ing affidavits indicating that one of the Plaintiffs left the SUNY system lacking two credits for graduation and intends to complete his studies at SUNY, and that there is “a very real possibility and a reasonable expectation” that four other Plaintiffs who graduated may take some additional courses at SUNY “within the next few years.” The motion to supplement the record was granted by the author of this opinion prior to oral argument, subject to recon- sideration by the panel, as a matter of administrative conve- nience. However, this evidence is not a proper supplement to the record as contemplated by Fed.R.App.P. 10(e). See Deeper Life, 948 F.2d at 82 (questioning whether court should con- sider affidavit not before district court but submitted on appeal to demonstrate case not moot); cf Lewis, 494 U.S. at 480, 110 S.Ct. at 1255 (Court “not disposed to accept such an affidavit as dispositive, without providing [adversary] the opportunity of rebuttal”). Plaintiffs were certainly on notice that the justiciability of the case was at issue when the district court issued Fox V in May 1991. Accordingly, there was ample opportunity to present any appropriate affidavits to the district court in the two years that ensued between Fox V and Fox VI. In any event, consideration of the affidavits would not affect the outcome of this case. They merely show that several of the Plaintiffs have expressed an intention to return to the & Fe +S a , 22a SUNY system.’ There is no indication that any of the Plain- tiffs have even applied to the SUNY system, much less been accepted. The bare statement of intention is insufficient to escape mootness. Cf. Deeper Life, 948 F.2d at 82 (no exception to mootness based upon affidavit expressing intent to engage in conduct that would resuscitate litigated issue when, despite affidavit and previous similar predictions, such conduct had not occurred). In this case, moreover, the expressed intention to return to the SUNY system is not solely within Plaintiffs’ power to accomplish; they would also have to be accepted by a school in the SUNY system. E. Further Amendment of Plaintiffs’ Complaint. [9] Plaintiff, also sought to avoid dismissal by amending their complaint to add additional student plaintiffs who were still attending SUNY institutions. We affirm substantially for the reasons stated in the thorough analysis of district court in its opinion granting defendants’ motion for modification. See Fox VI, 148 F.R.D. at 482-89. The district court correctly con- cluded that once a case is moot, it is no longer justiciable in federal court and must be dismissed. See id. at 483. Accord- ingly, the district court did not abuse its discretion in denying Plaintiffs permission to amend their complaint after the case had become moot. CONCLUSION The judgment of the district court is affirmed. 5. In a postargument submission pursuant to Fed. R.App.P. 28(j), Plain- tiffs called to our attention Washegesic v. Bloomingdale Public Schools, 33 F.3d 679 (6th Cir.1994), in which a student at a high school sued to have a religious picture removed from the school on First Amendment grounds, and graudated from the school after achieving a favorable district court decision that the defendants appealed to the Sixth Circuit Court of Appeals. The Sixth Circuit ruled that the appeal was not moot because the promi- nently placed painting impacted upon visitors to the school as well as stu- dents, and the plaintiff continued to visit the school on a regular basis. See 33 F.3d at 681. Assuming that this case is correctly decided, it is distinguish- able. The Complaint asserts the rights of students, not visitors, to host and attend sales demonstrations in dormitories on SUNY campuses. 23a Plainiiffs’ motions to compel are granted but only to the extent noted above. SO ORDERED. Todd FOX, Edward R. Detweiler, Stephanie Vaiano, James B. Cullen, Christine Marie Odell, Steven Gawley, Daniel Alt- man, Philip Jay Botwinik, Jeffrey S. Zellan and Jaclyn Bernstein, Plaintiffs, Vv. The BOARD OF TRUSTEES OF the STATE UNIVER- SITY OF NEW YORK, and Clifton R. Wharton Jr., Indi- vidually and as Chancellor of the Board of Trustees and the State University of New York College at Cortland, and James M. Clark, Individually and as President of the Col- lege at Cortland, and the State University at Binghamton, and Clifford D. Clark, Individually and as President of the State University of New York at Binghamton, and Vincent O’ Leary, Individually and as President of the State Univer- sity of New York at Albany, and the State University of New York College of Arts and Sciences at Potsdam, and Hum- phrey Tomkin, Individually and as President of the College of Arts and Sciences at Potsdam, Defendants. No. 82-CV-1363. United States District Court, N.D. New York. May 7, 1993. Corporation and students brought action seeking declara- tory and injunctive relief against board of trustees of state university system based upon refusal of universities and offi- cials to permit corporation to conduct product demonstrations in campus dormitory rooms. The United States District Court for the Northern District of New York, 649 F.Supp. 1393, granted relief in part, and appeal was taken. The Court of Appeals, 841 F.2d 1207, reversed and remanded. On remand, the District Court, 695 FSupp. 1409, granted relief. Subse- quently, the Supreme Court granted petition for wnt of certio- 24a rari. The Supreme Court, 492 U.S. 469, 109 S.Ct. 3028, 106 L.Ed.2d 388, reversed decision of Court of Appeals and remanded. On remand, the District Court, 764 F.Supp. 747, allowed amendment of complaint. University defendants filed motion for reconsideration. The District Court, McCurn, Senior District Judge, held that: (1) action was moot when plaintiff students had graduated, and (2) complaint could not be amended to substitute currently enrolled students as plain- tiffs. So ordered. Plaintiffs’ argument for reconsideraton would be consid- ered, even though defendants, not plaintiffs, had moved for reconsideration, since consideration of argument would be consistent with liberal manner in which district court had over- looked, where possible, procedural irregularities by parties to litigation. Fed.Rules Civ.Proc.Rule 54(b), 28 U.S.C.A. Rule allowing final judgment to grant relief to which party in whose favor it is rendered is entitled, empowers court to award prevailing party relief justified by evidence adduced at trial, even if such relief was not specifically requested in that party’s pleading. Fed.Rules Civ.Proc.Rule 54(c), 28 U.S.C.A. Rule allowing final judgment to grant relief to which party in whose favor it is rendered is entitled could not be used as vehicle for reviving otherwise moot action by allowing nominal damages claim to be read into complaint after action became moot. Fed.Rules Civ.Proc.Rule 54(c), 28 U.S.C.A. Nominal damages may be available in civil rights action, even without a showing of actual injury. Mere availability of nominal damages cannot by itself save case from becoming moot. Allegation in complaint that amount in controversy exceeded sum of $10,000, exclusive of interest and costs, did not adequately put defendants on notice that plaintiffs were seeking nominal damages, and, thus, did not preclude dis- missal of action on mootness grounds; jurisdiction in case was not predicated on diversity of citizenship. Fact that “wherefore” clause in complaint requested such other relief [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1706%3A1. Public record. Not legal advice.