Freedom From Religion Fdn v. Abbott ( 2023 )

Case: 21-50469 Document: 00516626189 Page: 1 Date Filed: 01/27/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 27, 2023
No. 21-50469 Lyle W. Cayce
Clerk
Freedom From Religion Foundation, Inc.,
Plaintiff—Appellee,
versus
Greg Abbott, Governor of the State of Texas, Chairman of the State
Preservation Board; Rod Welsh, Executive Director of the State
Preservation Board,
Defendants—Appellants.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:16-CV-233
Before Richman, Chief Judge, and Higginbotham and Elrod,
Circuit Judges.
Jennifer Walker Elrod, Circuit Judge:
This case concerns the Texas State Preservation Board—an often un-
noticed state agency charged with preserving and maintaining the Texas Cap-
itol and its grounds. In 1987, the Board issued a regulation known as the Cap-
itol Exhibit Rule. Under that rule, members of the public could submit an
exhibit for display in the Capitol, provided the submission met certain unde-
manding requirements and be sponsored by a qualifying state official.
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In 2015, Governor Greg Abbott directed John Sneed—then the exec-
utive director of the Preservation Board—to remove an exhibit submitted by
Appellant Freedom from Religion Foundation. It is not seriously disputed
that the Foundation’s exhibit satisfied the requirements for display or that
the Board’s removal of the exhibit violated the First Amendment restrictions
concerning speech communicated in a limited public forum. But in 2020, the
Board amended the Capitol Exhibit Rule, significantly increasing its discre-
tion to accept or reject exhibits, and declaring that any accepted exhibit con-
stitutes “government speech.” Finally, last year, the Board repealed the
Rule altogether. Even so, the district court entered judgment for the Foun-
dation, declaring the Defendants’ exclusion of the Foundation’s exhibit to be
unlawful, and ordering them to display the exhibit in the Texas Capitol.
The questions presented are whether the Preservation Board closed
what previously was a limited public forum, and if so, whether that closure
moots the Foundation’s claim that it is being excluded from participation in
that forum. Notwithstanding the Defendants’ wrongful prior exclusion of
the Foundation’s exhibit, we answer both questions in the affirmative. Be-
cause the Foundation’s injury is premised on exclusion from expressing its
message in a public forum, and because the public forum no longer exists, the
permanent injunctive relief ordered by the district court cannot remain.
We therefore must VACATE the injunction entered by the district
court. However, the order and declaratory judgment—declaring that the De-
fendants violate the First Amendment by excluding the Foundation’s exhibit
from a limited public forum—shall remain. And we also note that our holding
does not preclude the Foundation from showing that it is entitled to attorney
fees as the prevailing party under 42 U.S.C. § 1988, given that the Board re-
pealed the Capitol Exhibit Rule in apparent response to the Foundation’s
lawsuit.
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I
As introduced above, this case concerns the State Preservation Board
and the Capitol Exhibit Rule. The Board is composed of the Governor, who
serves as Chairman, Lieutenant Governor, Speaker of the Texas House of
Representatives, a Senator appointed by the Lieutenant Governor, a Member
appointed by the Speaker, and a “representative of the general public” ap-
pointed by the Governor. Tex. Gov’t Code §§ 443.003–.004. In addition,
the Board may appoint an executive director to direct the Board’s day-to-day
operations. Id. § 443.0051.
The Capitol Exhibit Rule was mostly unchanged from its inception in
1987 until it was amended in 2020. At the time this lawsuit was filed, an ap-
plication to display an exhibit in the Capitol was required to satisfy two pri-
mary conditions. 1 First, the exhibit had to be “for a public purpose.” 13 Tex.
Admin. Code § 111.13(c)(2) (2012). A “public purpose” meant “[t]he pro-
motion of the public health, education, safety, morals, general welfare, secu-
rity, and prosperity of all of the inhabitants or residents within the state.” Id.§ 111.13(a)(3). And second, the exhibit had to be recommended by “a state
official sponsor,” id. § 111.13(c)(1), which included the Governor, Lieutenant
Governor, or a Texas Senator or Member of the Texas House of Represent-
atives. Id. § 111.13(a)(4). Acceptance by the Board was mandatory if the pro-
posed exhibit met these requirements. Id. § 111.13(c)(1) (providing that qual-
ifying exhibits “shall be approved and scheduled by the office of the State
Preservation Board”).
1
The regulation also included several other administrative requirements, like that
a “detailed description” of the exhibit accompany the submission. 13 Tex. Admin. Code
§ 111.13(c)(3)(A) (2012). And the regulation also included uncontroversial restrictions,
like that the exhibit not “promote a commercial enterprise.” Id. § 111.13(c)(9)(B). These
administrative requirements and restrictions are not at issue here.
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Such was the state of the law when the events at issue began. In De-
cember of 2014, the Foundation learned that a Christian nativity scene had
been accepted for display in the Capitol. Finding the exhibit to be contrary
to its stated mission concerning the separation of church and state, the Foun-
dation applied to display what it calls a “Bill of Rights” nativity scene. The
display consists of four cutout figures—the Statue of Liberty, George Wash-
ington, Thomas Jefferson, and Benjamin Franklin—standing over a manger
containing the Bill of Rights. The exhibit would also display a banner in front
of the figures, bearing the following text: “Happy Winter Solstice / At this
Season of the Winter Solstice, we honor reason and the Bill of Rights
(adopted December 15, 1791) / Keep State & Church Separate / On Behalf
of Texas Members of the Freedom From Religion Foundation.” 2 The pro-
posal was accompanied by the recommendation of a state representative and
its stated purpose was to “educate the public and celebrate the 224th anni-
versary and the ratification of the Bill of Rights . . . and to educate the public
about the religious and nonreligious diversity within the State.”
The requirements of the Capitol Exhibit Rule apparently satisfied, the
Preservation Board approved the exhibit for display from December 18, 2015,
to December 23. However, on December 22, the Governor directed the Ex-
ecutive Director to remove the display. 3 According to the Governor, the dis-
play “deliberately mock[ed] Christians and Christianity,” did “nothing to
promote morals and the general welfare,” and lacked any legitimate
2
As originally proposed, the banner read: “At this Season of the Winter Solstice,
LET REASON PREVAIL. There are no gods, no devils, no angels, no heaven or hell.
There is only the natural world. Religion is but myth & superstition that hardens hearts &
enslaves minds.” The Foundation amended its first proposal to the language shown above.
3
Mr. Sneed was the executive director at the time at issue. He later left the Preser-
vation Board to serve in the United States Department of Energy, and was succeeded by
Rod Welsh, who was then automatically substituted as a defendant. Fed. R. Civ. P. 25(d).
4
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educational purpose. As such, he contended, the exhibit failed to satisfy the
public-purpose requirement. 13 Tex. Admin. Code § 111.13(c)(2) (2012).
The Executive Director removed the display the same day. 4
The Foundation proceeded to sue the Governor and Executive Direc-
tor in February of 2016. The operative complaint alleges five claims: (1) a
free-speech claim under the First Amendment; (2) an equal-protection claim
under the Fourteenth Amendment; (3) a claim under the Establishment
Clause of the First Amendment; (4) a due-process claim under the Four-
teenth Amendment; and (5) a claim based on the First Amendment, arguing
that the Capitol Exhibit Rule violates the unbridled-discretion doctrine. Only
the free-speech claim is at issue here. 5
The parties filed cross-motions for summary judgment on that claim.
The State defended against the Foundation’s free-speech claim with two ar-
guments: (1) that the exhibits accepted for display in the Capitol are govern-
ment speech and thus not subject to the First Amendment; and (2) that the
Capitol was a limited public forum, and that the Board’s public-purpose re-
quirement was a viewpoint-neutral restriction on speech. The district court
entered judgment for the Foundation, rejecting the argument that the chosen
exhibits are government speech, finding that, under the Capitol Exhibit Rule,
the Capitol was a limited public forum, and concluding that the public-pur-
pose requirement was not viewpoint neutral. As relief, the district court de-
clared the Defendants’ removal of the Foundation’s exhibit to be unlawful,
4
The Foundation also applied in July of 2016 to display the same exhibit, and the
Board denied the application for substantially the same reasons as before.
5
The equal-protection, Establishment-Clause, and due-process claims have since
been dismissed either by agreement or in prior proceedings. In addition, the district court
granted summary judgment to the Defendants on the Foundation’s unbridled-discretion
claim, and the Foundation did not appeal that order.
5
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but did not enter injunctive relief ordering the Defendants to accept future
applications by the Foundation to display the same exhibit. Both parties ap-
pealed. The State did not challenge the merits of the finding that its exclusion
of the Foundation’s exhibit violated the First Amendment, instead arguing
that the district court lacked jurisdiction to enter the judgment. The Foun-
dation contended that the district court should have ordered injunctive relief.
We vacated the judgment of the district court, with two relevant hold-
ings. Freedom from Religion Foundation v. Abbott, 955 F.3d 417 (5th Cir. 2020).
First, we explained that the State was immune from the declaratory judgment
because it was purely retrospective. Id. at 424–26. Second, we instructed the
district court to consider the Foundation’s request for injunctive relief and
to enter “appropriate” prospective relief. Id. at 426. What appeared to be a
straightforward remand, however, was complicated by subsequent amend-
ments to the Capitol Exhibit Rule. One month after we decided the parties’
appeal, the Preservation Board proposed several amendments to the relevant
regulations. 45 Tex. Reg. 3406 (May 22, 2020). After notice and comment,
the Board adopted the amendments with slight modifications. 45 Tex. Reg.
4968 (July 17, 2020).
Several aspects of the amendments relate to the issues presented here.
First, the Board described all accepted displays as government speech, and
required that a statement indicating the State’s approval accompany the dis-
play: “Any exhibit approved and scheduled pursuant to this section by the
office of the State Preservation Board is hereby adopted as government
speech, and shall be accompanied by a statement identifying the State Official
Sponsor and indicating the approval of the office of the State Preservation
Board.” 13 Tex. Admin. Code § 111.13(b) (2021). Second, the Board made
acceptance of a display permissive, rather than mandatory: “Exhibits may be
approved and scheduled by the office of the State Preservation Board.” Id.§ 111.13(d)(1). Third, the Board increased its authority to review exhibits,
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asserting “the right to require the exhibitor to make any changes to the ex-
hibit,” id. § 111.13(d)(5), whereas previously that right was limited to “aes-
thetic changes.” Id. § 111.13(c)(5) (2012). Fourth, the Board removed the
term “morals” from the list of criteria that define whether an exhibit serves
a public purpose. Id. § 111.13(a)(3) (2021).
Before the district court, the State argued that the amendments to the
Capitol Exhibit Rule changed the nature of the display program, closing what
was previously a limited public forum and endorsing all subsequent exhibits
as government speech. As such, the State contended, the Foundation’s free-
speech claim was moot because the underlying injury—exclusion from par-
ticipation in a public forum—no longer existed. The district court rejected
the State’s argument, concluding that, even under the amended Capitol Ex-
hibit Rule, the Capitol was a limited public forum, that, as before, the criteria
for accepting an exhibit were not viewpoint neutral, and that the free-speech
claim was therefore not moot. The district court entered judgment for the
Foundation and ordered two forms of relief. First, the district court enjoined
the Defendants “from excluding the Foundation’s Exhibit from display in
the designated exhibit area of the Texas Capitol Building and the Capitol Ex-
tension.” Freedom from Religion Foundation v. Abbott, 537 F. Supp. 3d 910,
922 (W.D. Tex. 2021). And second, the district court declared that the De-
fendants “violate the Foundation’s First Amendment rights and engage in
viewpoint discrimination as a matter of law when they exclude the Founda-
tion’s Exhibit based on the perceived offensiveness of its message.” Id.The State appealed. In briefing and at oral argument, the State more
or less presented the same arguments it made to the district court. That is,
it argued that the amendments to the Capitol Exhibit Rule closed the public
forum, and that the Foundation’s free-speech claim was moot. But following
the close of briefing, the Preservation Board amended the Rule again. Spe-
cifically, the Board proposed to repeal the regulation altogether. 46 Tex. Reg.
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9146 (Dec. 31, 2021). That proposal was finalized in April of 2022. 47 Tex.
Reg. 1993 (April 15, 2022). The regulation that once supported the Capitol
Exhibit Rule, 13 Texas Administrative Code § 111.13, no longer exists.
Meanwhile, and despite the presence of the district court’s injunction,
the Foundation has not applied to display its Bill of Rights nativity exhibit in
the Capitol. Indeed, the Foundation has not applied at all since its submis-
sions in 2015 and 2016. Nonetheless, the Foundation continues to seek affir-
mance, including in its post-argument submissions. It therefore falls to us to
assess whether the district court was correct to enter judgment for the Foun-
dation and order the Defendants to display the former’s exhibit.
II
The dispositive issue is whether the case is moot in light of the amend-
ment and repeal of the Capitol Exhibit Rule. As recognized before, we review
“questions of federal jurisdiction de novo,” and that class of issues “includes
questions of sovereign immunity . . . and mootness.” Freedom from Religion
Foundation, 955 F.3d at 423 (citations and quotation marks omitted).
A
Article III restricts our jurisdiction to cases and controversies. We are
therefore permitted “to adjudicate only live disputes.” Hinkley v. Envoy Air,
Inc., 968 F.3d 544, 548 (5th Cir. 2020). And a dispute is no longer live when
“the parties lack a legally cognizable interest in the outcome.” Already, LLC
v. Nike, Inc., 568 U.S. 85, 91 (2013) (citation and quotation marks omitted).
In that event, the case has become moot. In addition, a live controversy must
maintain through each stage of the litigation. See Lewis v. Continental Bank
Corp., 494 U.S. 472, 477 (1990) (explaining that jurisdiction must “subsist[]
through all stages of federal judicial proceedings”). As we have previously
said, “‘[t]here must be a case or controversy through all stages of a case’—
not just when a suit comes into existence but throughout its existence.” Yarls
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v. Bunton, 905 F.3d 905, 909 (5th Cir. 2018) (quoting KP v. LeBlanc, 729 F.3d
427, 438 (5th Cir. 2013)). For these reasons, “any set of circumstances that
eliminates actual controversy after the commencement of a lawsuit renders
that action moot.” DeOtte v. Nevada, 20 F.4th 1055, 1064 (5th Cir. 2021)
(quoting Center for Individual Freedom v. Carmouche, 449 F.3d 655, 651 (5th
Cir. 2006)).
The mootness issue often arises where, as here, a statute or regulation
is amended or repealed after plaintiffs bring a lawsuit challenging the legality
of that statute or regulation. In that case, mootness is the default. See Hou-
ston Chronicle Publishing Co. v. League City, 488 F.3d 613, 619 (5th Cir. 2007)
(“It goes without saying that disputes concerning repealed legislation are
generally moot.”); Fantasy Ranch Inc. v. City of Arlington, 459 F.3d 546, 564
(5th Cir. 2006) (“[S]tatutory changes that discontinue a challenged practice
are ‘usually enough to render a case moot, even if the legislature possesses
the power to reenact the statute after the lawsuit is dismissed.’”) (quoting
Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 116 (4th Cir. 2000)); McCorvey
v. Hill, 385 F.3d 846, 849 (5th Cir. 2004) (“Suits regarding the constitution-
ality of statutes become moot once the statute is repealed.”); accord, e.g.,
Board of Trustees of Glazing Health & Welfare v. Chambers, 941 F.3d 1195, 1199
(9th Cir. 2019) (“[I]n determining whether a case is moot, we should pre-
sume that the repeal, amendment, or expiration of legislation will render an
action challenging the legislation moot.”); Ozinga v. Price, 855 F.3d 730, 734
(7th Cir. 2017) (“When a plaintiff’s complaint is focused on a particular stat-
ute, regulation, or rule and seeks only prospective relief, the case becomes
moot when the government repeals, revises, or replaces the challenged law
and thereby removes the complained-of defect.”). Indeed, the Supreme
Court recently applied this principle in New York State Rifle & Pistol Associa-
tion v. City of New York, dismissing the plaintiffs’ case as moot after the City
of New York amended the challenged rule. 140 S. Ct. 1525, 1526 (2020).
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According to these binding principles, we must conclude that this case
is moot because the Foundation’s asserted injury was tied to the existence of
the Capitol Exhibit Rule. That is, the Foundation argues that it was wrong-
fully excluded from displaying its exhibit in a limited public forum. And its
injury necessarily parallels its requested relief. That is, the Foundation re-
quests an injunction ordering the Defendants to display its exhibit in the fo-
rum. But the Board has closed the forum, ending the formal process whereby
members of the public were entitled to apply to the Preservation Board for
permission to display their exhibit in the Capitol.
What is more, the Foundation conceded that the State could close the
public forum by doing exactly what it has done here. That is, it conceded that
“[t]o close the forum the State could simply . . . stop accepting applications
for exhibits. . . . This would immediately change the nature of the Capitol ex-
hibits area.” And so although the Foundation complains that its application
was denied based on its exhibit’s viewpoint, the application process no longer
exists. We are therefore forced to conclude that there is no longer a live con-
troversy between the parties, given that the basis of the controversy, the Cap-
itol Exhibit Rule, was repealed.
Consider the case through the lens of the Foundation’s free-speech
claim. It is not seriously disputed that the State treated the Foundation une-
qually by refusing to display the exhibit at issue. But “the First Amendment
does not tell us which way to cure . . . unequal treatment.” Barr v. American
Ass’n of Political Consultants, Inc., 140 S. Ct. 2335, 2355 (2020) (quoting Sor-
rell v. IMS Health Inc., 564 U.S. 552, 567 (2011)). In general, a governmental
entity has two options to remedy unequal treatment; it can either “extend[]
the benefits or burdens to the exempted class” or “nullify[] the benefits or
burdens for all.” Id. at 2354 (citing Heckler v. Mathews, 465 U.S. 728, 740
(1984)). Instead of levelling up, and allowing the Foundation to participate
in the limited public forum, the State elected to level down and close the
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forum altogether. In other words, the Preservation Board simply “discon-
tinue[d]” the “challenged practice.” Fantasy Ranch, 459 F.3d at 564 (quot-
ing Valero, 211 F.3d at 116). As such, a live controversy no longer exists, and
the case is thus moot. Hinkley, 968 F.3d at 548.
B
However, it is an exception to mootness that “a defendant’s voluntary
cessation of a challenged practice does not deprive a federal court of its power
to determine the legality of the practice.” Friends of the Earth, Inc. v. Laidlaw
Environmental Services, Inc., 528 U.S. 167, 189 (2000) (quoting City of Mes-
quite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)). And in fact, the
Foundation’s central defense against mootness is to assert the voluntary-ces-
sation exception. We must therefore consider whether the exception pre-
vents this case from being moot.
In general, a defendant’s voluntary conduct moots a case only if “it is
absolutely clear that the allegedly wrongful behavior could not reasonably be
expected to recur.” Sossamon v. Texas, 560 F.3d 316, 325 (5th Cir. 2009),
affirmed, 563 U.S. 277 (2011). But governmental entities bear a “‘lighter bur-
den’ . . . in proving that the challenged conduct will not recur once the suit is
dismissed as moot.” Stauffer v. Gearhart, 741 F.3d 574, 582 (5th Cir. 2014)
(quoting Sossamon, 560 F.3d at 325). That is so because we presume that
state actors, as public representatives, act in good faith. See, e.g., Amawi v.
Paxton, 956 F.3d 816, 821 (5th Cir. 2020) (citing Fantasy Ranch, 459 F.3d at
564; Sossamon, 560 F.3d at 325). For this reason, and “[w]ithout evidence to
the contrary, we assume that formally announced changes to official govern-
mental policy are not mere litigation posturing.” Sossamon, 560 F.3d at 325.
Among other things, the government’s ability to reimplement the statute or
regulation at issue is insufficient to prove the voluntary-cessation exception.
See, e.g., Fantasy Ranch, 459 F.3d at 564 (explaining that a case is moot “even
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if the legislature possesses the power to reenact the statute after the lawsuit
is dismissed”); accord National Black Police Ass’n v. District of Columbia, 108
F.3d 346, 349 (D.C. Cir. 1997) (“[T]he mere power to reenact a challenged
law is not a sufficient basis on which a court can conclude that a reasonable
expectation of recurrence exists.”).
We conclude that the voluntary-cessation exception to mootness does
not apply here because nothing in the record suggests that the Board will re-
implement the Capitol Exhibit Rule. More specifically, nothing in the record
suggests that the Board will continue to accept exhibit applications from the
public—but will reject an application from the Foundation based on the ex-
hibit’s viewpoint. The parties quarrel over who bears the burden of proof in
the context of a governmental defendant. But it makes no difference in this
instance whether the State must satisfy a “lighter burden,” Sossamon, 560
F.3d at 325, or if the Foundation must show that the regulation will be put
back in place. Either way, the evidence shows that the regulation has been
formally repealed, with no indication that the Preservation Board intends to
reconsider that decision.
The Foundation counters that the Preservation Board may still display
exhibits in the Capitol, just without any formal display program. For its part,
the State does not dispute this assertion. And in fact, the Preservation Board
clarified that is has authority to display exhibits of its own accord. See 46 Tex.
Reg. at 9146 (“[T]he agency does not need the [Capitol Exhibit] rule in order
to serve its intended purpose of providing for the display of government
speech on the Capitol grounds that educates, informs, and unites.”). Based
on this evidence, the Foundation argues that the State’s wrongful conduct is
reasonably likely to recur, and thus that the case is not moot.
This argument fails because the Foundation’s evidence does not sup-
port its conclusion. True, it seems clear that the Preservation Board intends
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to display exhibits in the Capitol at some point in the future. But there is no
indication that any new display program will be wrongful in the same way that
the prior program was wrongful. Recall that the Foundation’s central com-
plaint as to the previous program is that the Preservation Board accepted ap-
plications from members of the public—but rejected its application based on
the viewpoint of its exhibit. Now, the program for soliciting exhibits from the
public has been eliminated. And so even if the Preservation Board displays
exhibits in the Capitol of its own accord, its doing so would not reimplement
the practice to which the Foundation objects.
The Foundation also points to the Supreme Court’s recent decision
in Shurtleff v. City of Boston, 142 S. Ct. 1583 (2022), arguing that governmen-
tal defendants can violate the First Amendment even without written guide-
lines. That is true, so far as it goes. If the Board adopted an unwritten policy
of accepting exhibits from members of the public and, in determining which
exhibits to accept, discriminated on the basis of an exhibit’s viewpoint, such
a policy would almost certainly violate the First Amendment. Likewise, the
Foundation is in no way precluded from filing a new lawsuit challenging the
constitutionality of such a policy, should one be established. But the problem
for the Foundation is that it can only speculate as to what the Preservation
Board’s new policy will be as it relates to displaying exhibits in the Capitol.
And speculation is insufficient to satisfy the voluntary-cessation exception.
See Amawi, 956 F.3d at 821 (explaining that the case was moot because it was
“remote, and indeed unrealistically speculative, that the[] defendants will
ever again expose the plaintiffs to the claimed injury that prompted the law-
suit”); Sossamon, 560 F.3d at 325 (recognizing that the plaintiff’s allegations
were “too speculative to avoid mooting the case”). 6
6
The Foundation argues that the amendment and subsequent repeal of the Capitol
Exhibit Rule are merely “litigation posturing,” and show that the Preservation Board will
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Shurtleff thus does not support the Foundation’s position. If any-
thing, it cuts in the opposite direction because that case expressly recognizes
that a governmental entity can convert a limited public forum into a forum
for government speech. In Shurtleff, the City of Boston allowed members of
the public to raise a flag on the flagpoles outside the Boston City Hall. The
City had no written policy on this subject, but generally told the public that it
sought to “accommodate all applicants.” 142 S. Ct. at 1592; see id. at 1593
(describing the City’s “come-one-come-all attitude”). However, it denied a
request to fly a Christian flag.
The Supreme Court rejected the City’s argument that the flag-flying
policy was government speech, but made clear that “nothing prevents Bos-
ton from changing its policies going forward.” Shurtleff, 142 S. Ct. at 1593.
The Court also suggested that the City might clarify, as other cities did, that
“flagpoles are not intended to serve as a forum for free expression by the
public” and that flags approved for flying are selected “as an expression of
the City’s official sentiments.” Id. The upshot is that a governmental entity
is certainly entitled to close a limited public forum and instead speak only on
its own behalf. See also Perry Education Ass’n v. Perry Local Educators Ass’n,
460 U.S. 37, 46 (1983) (reiterating that “a state is not required to indefinitely
retain the open character of [a] facility”). Indeed, the Foundation “does not
disagree that the State has the power to . . . close the limited public forum if
it so chooses.” That is precisely what the Preservation Board has done here.
revert to its wrongful conduct if this case is dismissed as moot. But the evidence before us
cannot bear that claim. After the Board amended the regulation, it invited the Foundation
to reapply to display its exhibit. As noted above, the Foundation failed to do so. And so we
have no way of knowing whether the State would have rejected that subsequent application.
Likewise, nothing in the record suggests that the Board has accepted exhibits from mem-
bers of the public since the regulation was repealed, let alone that the Foundation applied
to display its exhibit, and was denied. There is thus no evidence that the Board is using the
regulation changes to continue the same wrongful conduct.
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It no longer wished for the Capitol to be used as a limited public forum and
so repealed the regulation providing for that forum. The possibility that the
Board might use the Capitol to speak on its own behalf does not prevent this
case from being moot. 7
C
Finally, the State stresses that the Foundation’s requests for attorney
fees do not restore what was previously a live controversy. That is correct.
E.g., Lewis, 494 U.S. at 480 (“[An] interest in attorney’s fees is, of course,
insufficient to create an Article III case or controversy where none exists on
the merits of the underlying claim.”) (citation omitted). But we reiterate that
our holding does not prevent the district court from awarding attorney fees.
“[A] determination of mootness neither precludes nor is precluded by an
award of attorneys’ fees. The attorneys’ fees question turns instead on a
wholly independent consideration: whether plaintiff is a prevailing party.”
Staley v. Harris County, 485 F.3d 305, 314 (5th Cir. 2007) (quoting Doe v.
7
The Foundation also cites Speech First, Inc. v. Fenves, 979 F.3d 319 (5th Cir. 2020),
for the proposition that the State must issue a “controlling statement of future intention”
to prove that it will no longer display exhibits submitted by members of the public. But the
facts in Fenves are clearly distinguishable from the ones at issue here. In Fenves, the policies
at issue were speech codes promulgated by the University of Texas. After legal challenges
to the codes, the University proposed changes to the codes, for approval by the Board of
Regents. We explained that the case was not moot, inter alia, because the president’s rep-
resentation that the University did not intend to reimplement the challenged policies, with-
out more, was insufficient to moot the case. Id. at 328–29. Here, by contrast, the Preser-
vation Board has finalized the repeal of the Capitol Exhibit Rule. And unlike in Fenves, the
Board’s action was subject to formal notice and comment. In these circumstances, no state-
ment of future intention is necessary. And what is more, Fenves arose in the distinct context
of “voluntary cessation by a public university.” 979 F.3d at 328; see id. (“This is not the
first appeal in which a public university has had a sudden change of heart, during litigation,
about the overbreadth and vagueness of its speech code, and then advocated mootness un-
der a relaxed standard.”). That fact-specific context does not apply here.
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Marshall, 622 F.2d 118, 120 (5th Cir. 1980)). We express no opinion on the
issue of which side is the prevailing party, as that question is not before us.
III
Having determined that the case is moot, we must now consider what
relief should issue. To recap, the district court rendered judgment for the
Foundation on the latter’s free-speech claim. In so doing, the court: (1) de-
clared that the Defendants violate the First Amendment when they exclude
the Foundation’s exhibit based on its viewpoint; and (2) enjoined the De-
fendants from excluding the exhibit from display in the Capitol.
Where a case becomes moot while on appeal, the historical rule “was
to vacate the judgment” below. Staley, 485 F.3d at 310 (citing United States
v. Munsingwear, Inc., 340 U.S. 36, 39 (1950)). But the Supreme Court tem-
pered that rule in U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513
U.S. 18 (1994). There, the Court explained that the analysis generally re-
quires “the party seeking relief from the status quo” of the judgment to
demonstrate “equitable entitlement to the extraordinary remedy of vaca-
tur.” That inquiry, the Court explained, is consistent with the equitable tra-
dition to “dispose[] of moot cases in the manner most consonant to justice in
view of the nature and character of the conditions which have caused the case
to become moot.” Id. at 26 (quoting Izumi v. U.S. Phillips Corp., 510 U.S. 27,
40 (1993) (Stephens, J., dissenting)).
The Court identified two equitable considerations as particularly rel-
evant to the vacatur analysis. First, a court must consider “whether the party
seeking relief from the judgment below caused the mootness by voluntary ac-
tion.” Bancorp, 513 U.S. at 24. And second, “[a]s always when federal courts
contemplate equitable relief, [the] holding must also take account of the pub-
lic interest.” Id. at 26. In Bancorp and in subsequent cases, the Court has
identified at least two equitable factors that bear on the public interest: (1) the
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value that judicial precedents give “to the legal community as a whole,” id.(citation and quotation marks omitted); and (2) “federalism concern[s]” re-
lating to the “premature adjudication” of a constitutional challenge to a state
law. Arizonans for Official English v. Arizona, 520 U.S. 43, 75, 79 (1997).
We have never understood those factors to be exhaustive. Rather, our
precedents demonstrate that vacatur “depends on the equities of the case,”
Staley, 485 F.3d at 312 (quoting Russman v. Board of Education, 260 F.3d 114,
121 (2d Cir. 2001)), and that there is no “hard and fast rule . . . in fashioning
a remedy for mootness.” Id. Among other things, we have also considered
if the action mooting the dispute is “temporary,” id., as well as whether the
party seeking vacatur is “subject to a money judgment or any injunctive relief
as a result of the district court’s judgment,” Hall v. Louisiana, 884 F.3d 546,
553 (5th Cir. 2018).
Here, equitable considerations weigh both in support of vacatur, and
against. On the one hand, it appears that the Defendants were at least some-
what responsible for the action that mooted this case—the repeal of the Cap-
itol Exhibit Rule. The State denies this conclusion, noting that the Preserva-
tion Board is the entity that repealed the regulation, and arguing that the Gov-
ernor cannot direct the Board’s actions because he constitutes only one of six
board members. And it also observes that the executive director has no vote
on the Board at all.
The State may be correct about the formal limitations of the Gover-
nor’s power, but equity looks beyond superficial distinctions such as these.
See, e.g., Young v. Higbee, 324 U.S. 204, 209 (1945) (“Equity looks to the sub-
stance and not merely to the form.”). The Governor plainly wields signifi-
cant influence over the Preservation Board’s activities, as evidenced by the
executive director’s prompt response to the Governor’s request to remove
the Foundation’s exhibit. No stretch of the imagination is required to
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suppose that the Governor was, at least in part, a moving force behind the
repeal of the Capitol Exhibit Rule—an action that directly accorded with his
previously expressed policy preferences.
Also, like all judicial precedents, the district court’s judgment is valu-
able “to the legal community as a whole.” Bancorp, 513 U.S. at 26. And this
precedent is particularly valuable because it might bear on future state poli-
cies respecting a similar subject, and any related disputes. See Staley, 485
F.3d at 313–14 (“Indeed, the preservation of the district court judgment
serves the judicial and community interests by discouraging relitigation of the
identical issues by the same parties under the same circumstances.”).
On the other hand, the judgment subjects the Defendants to perma-
nent injunctive relief, despite the Preservation Board’s unconditional repeal
of the Capitol Exhibit Rule. Compare Hall, 884 F.3d at 553 (equity did not
require vacatur where the losing party was not subject to injunctive relief);
Staley, 485 F.3d at 312 (equity allowed injunction to remain in place because
the action mooting the case was only temporary). Ordinarily, a permanent
injunction relating to a challenged law or regulation cannot continue after the
law or regulation is removed. That is so because “parties have no power to
require of the court continuing enforcement of rights [a] statute no longer
gives.” System Federation No. 91 v. Wright, 364 U.S. 642, 652 (1961); see also
Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421, 432
(1855) (explaining that after an ordinance “has been modified by the compe-
tent authority, . . . it is quite plain the decree of the court cannot be en-
forced”). These principles show that the public interest is impeded, rather
than furthered, by ordering state officials not to exclude the Foundation from
participation in a program that no longer exists. Indeed, we have previously
said that an injunction is “meaningless” if “there remains no live contro-
versy between the parties.” Fontenot v. McCraw, 777 F.3d 741, 747 (5th Cir.
2015). And it goes without saying that it would pose serious federalism
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concerns for a federal court to order state officials to continue enforcing a
policy that the state agency has repealed. See Arizonans for Official English,
520 U.S. at 75.
Given the competing equitable considerations, we vacate only part of
the district court’s judgment. In light of the particular “equities of the case,”
Staley, 485 F.3d at 312, the permanent injunction disserves the public interest
and must be vacated. But the district court’s order and declaratory judgment
further the public interest insofar as they might provide important guidance
to future disputes. And these aspects of the judgment do not pose the same
sort of federalism concern as does the permanent injunction. We therefore
decline to vacate the order and declaratory judgment.
IV
We are compelled to conclude that the State Preservation Board’s re-
peal of the Capitol Exhibit Rule renders this case moot. Given that the case
became moot while on appeal, we have examined the equities to determine
whether and to what extent the judgment below should be vacated. The per-
manent injunction is VACATED. We otherwise decline to vacate the order
and judgment. This case is REMANDED to the district court for consider-
ation of Freedom from Religion Foundation’s motions for attorney fees, and
other proceedings consistent with this opinion, to the extent necessary.
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