Vivian Tankships v. Castro ( 2001 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 99-30431
VIVIAN TANKSHIPS CORPORATION,
Plaintiff-Appellant,
VERSUS
STATE OF LOUISIANA,
Intervenor-Appellee,
and
CANDIDO CASTRO; I.F. HINGLE, Sheriff of Plaquemines Parish,
Defendants-Appellees.
Appeal from the United States District Court
For the Eastern District of Louisiana
(No. 98-CV-1671-T)
May 14, 2001
Before POLITZ, BARKSDALE, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge*:
Plaintiff-Appellant Vivian Tankships Corporation (“Vivian”)
appeals the judgment of the district court in favor of defendants
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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Candido Castro and I.F. Hingle. In ruling against Vivian, the
district court found that Louisiana Code of Civil Procedure article
3541 does not violate the Commerce Clause, U.S. CONST. art. I, § 8,
cl. 2, or the Due Process Clause of the Fourteenth Amendment, U.S.
CONST. amend. XIV, § 2, and that article 3541 is not preempted by
the federal vessel documentation regulations at 46 C.F.R. Part 67.
Because we find that Vivian’s claims are moot, we vacate the
judgment of the district court without reaching the issues related
to the constitutionality of article 3541, and remand with
instructions to dismiss.
I.
Castro claims to have suffered a hernia in 1997 while working
on the M/V OVERSEAS VIVIAN (“the vessel”), a United States flagged
vessel owned by Vivian. In March 1998, Castro filed suit in the
25th Judicial District Court for Plaquemines Parish, Louisiana,
against Maritime Overseas Corporation (“Maritime”), believing
Maritime to be the owner of the vessel. The court issued a writ of
attachment against the vessel pursuant to Louisiana Code of Civil
Procedure article 3541. The vessel was attached by Hingle, the
Civil Sheriff of Plaquemines Parish, pursuant to the writ.
Maritime posted a bond for the amount in controversy to have the
vessel released and, upon proving that it was not the owner of the
vessel, successfully moved to have the writ dissolved and the
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posted bond returned.
In June 1998, after the vessel was released and had sailed
out of Louisiana waters, Vivian filed suit against Castro and
Hingle in the Eastern District of Louisiana. Against Castro,
Vivian sought a declaratory judgment that article 3541 was
unconstitutional as a violation of the Commerce Clause and the Due
Process Clause, and that it was preempted by 46 C.F.R. Part 67. In
addition to declaratory relief, Vivian sought damages against
Castro under 42 U.S.C. § 1983 for wrongful attachment, alleging
that the court costs, cost of the bond posted in Plaquemines
Parish, attorneys’ fees, and associated expenses had been accrued
as the result of an unconstitutional attachment procedure. Against
Hingle, Vivian sought declaratory and injunctive relief based on
the alleged unconstitutionality of Louisiana’s non-resident
attachment provisions, and monetary damages for wrongful
attachment. Vivian amended its complaint to drop its claim for
monetary damages against Hingle. The State of Louisiana intervened
solely to defend the constitutionality of the article. Vivian
posted a $200,000 peace bond to prevent the reattachment of its
vessel.
Castro amended his state court complaint in July 1998 to name
Vivian as the defendant. Castro did not seek a new writ of
attachment against the vessel, but exercised jurisdiction against
Vivian through regular service of process. Prior to oral argument
of the instant appeal in Vivian’s federal action, Castro and Vivian
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reached a settlement of Castro’s state court claims, reserving
Vivian’s right to pursue damages for wrongful attachment in its
federal action.
On motion for partial summary judgment, the district court
held that article 3541 was neither unconstitutional nor preempted
by federal registration requirements. On a subsequent motion for
dismissal of Vivian’s remaining claims, the district court
dismissed Vivian’s claim for damages arising from wrongful
attachment and rendered final judgment for the defendants,
concluding that the prior ruling on the constitutionality of the
attachment article settled the question of whether the vessel had
been wrongfully attached. Vivian timely filed a notice of appeal.
II.
We may exercise jurisdiction over this dispute only if it is
an actual case or controversy. U.S. CONST. art. III, § 2, cl. 1;
see also 28 U.S.C. § 2201(a) (explicitly incorporating Article
III’s case or controversy requirement into statute authorizing
declaratory judgment relief); Lawson v. Callahan, 111 F.3d 403, 405
(5th Cir. 1997) (recognizing that Section 2201's “actual
controversy” requirement is identical to Article III’s case or
controversy requirement). This requirement extends to all stages
of litigation; if the litigation loses its characteristic of
presenting a live controversy between two parties subsequent to its
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commencement, then we have lost our power to preside over the
dispute because it has become moot. Powell v. McCormack, 395 U.S.
486, 496 (1969).
An exception to the mootness doctrine has been recognized for
cases that would otherwise be moot but are based on issues
“‘capable of repetition, yet evading review.’” Super Tire Eng’g
Co. v. McCorkle, 416 U.S. 115, 121-22 (1974) (quoting Southern Pac.
Terminal Co. v. ICC, 219 U.S. 498, 515 (1911)). The capable-of-
repetition-yet-evading-review doctrine operates if “(1) the
challenged action was in its duration too short to be fully
litigated prior to its cessation or expiration, and (2) there was
a reasonable expectation that the same complaining party would be
subject to the same action again.” Weinstein v. Bradford, 423 U.S.
147, 149 (1975); see also Seafarers Int’l Union of North America v.
Nat’l Marine Servs., Inc., 820 F.2d 148, 151 (5th Cir. 1987),
abrogated on other grounds by Litton Fin. Printing Div. v. NLRB,
501 U.S. 190, 197 n.1 (1991). “[T]he capable-of-repetition
doctrine applies only in exceptional situations, and generally only
where the named plaintiff can make a reasonable showing that he
will again be subjected to the alleged illegality.” City of Los
Angeles v. Lyons, 461 U.S. 95, 109 (1983).
That “reasonable showing” requires something more than a
speculative suggestion that the present-plaintiff may again be
subjected to the complained-of conduct. Murphy v. Hunt, 455 U.S.
478, 482 (1982) (recognizing that “[t]he Court has never held that
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a mere physical or theoretical possibility was sufficient to
satisfy the test stated in Weinstein. If this were true, virtually
any matter of short duration would be reviewable. Rather, we have
said that there must be a ‘reasonable expectation’ or a
‘demonstrated probability’ that the same controversy will recur
involving the same complaining party.”) (quoting Weinstein, 423
U.S. at 149); see also Lyons, 461 U.S. at 107 n.8 (“It is the
reality of the threat of [impending] injury that is relevant to the
standing inquiry, not the plaintiff’s subjective apprehensions.”).
Where the threat of future allegedly unconstitutional government
action is two steps or more removed from a demonstrably definite
action of the plaintiff, this court and the Supreme Court have
found that government action too “remote and speculative” to defeat
mootness under the capable-of-repetition-yet-evading-review
doctrine. Super Tire, 416 U.S. at 123 (distinguishing the facts
before the Court from cases where governmental seizure of a utility
would only recur if, first, the utility’s workers went on strike,
and second, the governor exercised his discretion to seize the
utility); ITT Rayonier Inc. v. United States, 651 F.2d 343, 345 (5th
Cir. 1981) (refusing to apply the capable-of-repetition-yet-
evading-review doctrine where recurrence required, first, that the
plaintiff alter its pollution discharge policies, and second, that
the EPA choose to pursue action against the plaintiff); see also C.
& S. W. Servs., Inc. v. EPA, 220 F.3d 683, 700-01 (5th Cir. 2000)
(“Dr. Carman’s theory of injury is predicated upon the occurrence
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of a string of future hypotheticals–that road construction will
occur in proximity to the Edwards aquifer, that the construction
crews will use PCB bulk product waste in the roadbed, that PCBs
will leach from the roadbed, and that those PCBs will leach and
contaminate aquifers or waterways. Nothing in the Carman and
Sinclair affidavits suggest that any of these predicate events are
likely to occur.”).
Here, Vivian’s claims based on the allegedly unconstitutional
attachment of the vessel, for declaratory relief against Castro and
injunctive relief against Hingle, are moot because (1) Castro’s
claim against Vivian has been settled, and no possibility of his
seeking attachment of the vessel for that claim remains; (2) Castro
had previously agreed to not seek reattachment of the vessel and,
in fact, sought to invoke personal jurisdiction over Vivian by
other means; (3) Vivian itself had previously posted bond to ensure
that the vessel would not be reattached; and (4) Vivian has not
alleged the existence of any other claims by Castro that could form
the basis for the issuance of a writ of attachment in Plaquemines
Parish against one of its vessels.
Any fear Vivian has that Hingle will again execute a writ of
attachment against one of its vessels, or that a writ of attachment
will even be sought against one of its vessels, is based on
precisely the type of hypothetical harm that has been rejected as
a means of establishing standing (or defeating mootness) both in
this court and in the Supreme Court. See Lyons, 461 U.S. at 107
7
n.8; C. & S. W. Servs., 220 F.3d at 700-01.
Vivian has not made a reasonable showing that the attachment
of the vessel in this case is part of a series of repeated short-
term exercises of the Louisiana attachment article against it, and
cannot show that its vessel will be reattached in this particular
case. Moreover, Vivian’s arguments that its vessels may be
attached in the future are too remote, relying on a series of
speculative conditions: (1) that Vivian will again be sued in a
Louisiana state court, (2) that the future-plaintiff will seek to
have the future-court exercise personal jurisdiction over Vivian
via the article 3541 writ of attachment, (3) that the future-court
will issue the writ of attachment, and (4) that the future-writ
will be executed by the future-sheriff. Without some “reasonable
showing,” this line of speculation is far too remote to trigger the
capable-of-repetition-yet-evading-review doctrine. Super Tire, 416
U.S. at 123; ITT Rayonier, 651 F.2d at 345.
Moreover, assuming arguendo that the execution of a writ of
attachment is a government action capable of repetition, it is not
an action that necessarily evades review. Vivian may raise its
argument that article 3541 is unconstitutional as a defense in the
state courts in any future proceeding. The argument ultimately
evades review here only because Vivian sought to have that argument
reviewed in an alternative, federal forum.1
1
Vivian contends that the Anti-Injunction statute would make
federal court review impossible to obtain if its vessel is again
8
Vivian’s only other claim is its claim for damages for
wrongful attachment to recover court costs, costs of posting bond,
and attorneys’ fees related to the attachment of its vessel in the
state court action.2 Vivian contends that, because the resolution
of this damages claim necessarily requires us to determine if the
attachment procedure is constitutional, i.e., whether the
attachment was “wrongful,” the issue of article 3541's
constitutionality is not moot.
However, it is well-established that, when the only
controversy remaining that arises from the original case and
controversy is the recovery of “sunk costs,” such controversy is
not a legally cognizable dispute that will save an action from the
operation of the mootness doctrine. Lewis v. Cont’l Bank Corp.,
494 U.S. 472, 480 (1990) (“[R]easonable caution is needed to be
sure that mooted litigation is not pressed forward . . . solely in
subject to a Louisiana writ of attachment. Vivian’s contention
misses the thrust of Super Tire, however, which excepted from the
mootness doctrine potentially repetitious actions that may evade
any judicial review. Our traditions of federalism and comity
command that we not exercise this exception to the mootness
doctrine purely to avoid future review of an issue in the state
courts.
2
Though Vivian intimates that it is possible that the arrest of
a vessel may entail significant losses of profit and operating
costs each day, it does so only by reference to losses in other
situations. At no point, in its complaint or in any other
pleadings and arguments, has Vivian alleged that it suffered lost
profits or operating expenses as a result of the attachment in the
instant controversy. The only “damages” that Vivian specifically
seeks in its complaint regarding the allegedly unconstitutional
attachment are the sunk costs in the litigation–attorneys’ fees,
court costs, and the cost of posting bond.
9
order to obtain reimbursement of sunk costs.”); Bank of Marin v.
England, 385 U.S. 99, 111 n.1 (1966) (Fortas, J., dissenting)
(collecting cases that rule that a controversy solely regarding
costs cannot salvage an otherwise moot case); Washington Mkt. Co.
v. District of Columbia, 137 U.S. 62 (1890); 13A CHARLES ALAN WRIGHT,
ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3533.3
at 268-69 & nn. 15, 16 (2d ed. 1984 & Supp. 2000) (“Claims for
costs . . . traditionally have not been thought sufficient to avoid
mootness, presumably on the theory that such incidental matters
should not compel continuation of an otherwise moribund action.”).3
Accordingly, this claim is also moot.
III.
Because we find that all of Vivian’s claims have become moot,
we do not have subject matter jurisdiction to review the merits of
this case. Therefore, we VACATE the judgment of the district
court, and REMAND with instructions to DISMISS Vivian’s complaint
as moot. See Arizonans for Official English v. Arizona, 520 U.S.
43, 71 (1997) (“When a civil case becomes moot pending appellate
adjudication, ‘[t]he established practice . . . in the federal
3
Vivian’s contention that the arrest of its vessel possibly may
entail significant daily profit and operating cost losses amounts
only to another in the series of hypothetical “could haves” and
“maybes” upon which it seeks to hang the subject matter
jurisdiction of this court.
10
system . . . is to reverse or vacate the judgment below and remand
with a direction to dismiss.’”) (quoting United States v.
Munsingwear, Inc., 340 U.S. 36, 39 (1950)).
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