Porco, Christopher A v. Trustees IN Univ ( 2006 )


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  •                            In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    No. 05-1670
    CHRISTOPHER PORCO,
    Plaintiff-Appellant,
    v.
    TRUSTEES OF INDIANA UNIVERSITY, et al.
    Defendants-Appellees.
    ____________
    Appeal from the United States District Court for the
    Southern District of Indiana, Indianapolis Division.
    No. 1:03-cv-1388-DFH-VSS—David F. Hamilton, Judge.
    ____________
    ARGUED SEPTEMBER 12, 2005—DECIDED JUNE 22, 2006
    ____________
    Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.
    ROVNER, Circuit Judge. Like many state universities,
    Indiana University charges nonresident students higher
    tuition than their Indiana resident counterparts. Christo-
    pher Porco was born and raised in Michigan, but he at-
    tended law school in Indiana. Shortly after he finished his
    first year at Indiana University School of Law, Porco
    petitioned for reclassification as an Indiana resident for
    purposes of tuition. The University denied Porco’s petition,
    and he thereafter filed suit against the Trustees of Indiana
    University, the Standing Committee on Residence, the
    Chair of the Standing Committee on Residence, and the
    Associate Registrar (collectively, “the University”), all in
    2                                                No. 05-1670
    their official capacities. Porco alleged that the University’s
    system for classifying resident and nonresident students
    violated the Privileges and Immunities, Equal Protection,
    and Due Process Clauses of the United States Constitution.
    He demanded a preliminary injunction to prevent
    the defendants from collecting nonresident tuition from him
    under the University’s classification system, which he
    sought to have declared unconstitutional. The defendants
    moved to dismiss Porco’s suit for lack of standing, and
    moved in the alternative for summary judgment. The
    district court dismissed the suit in part and granted the
    defendants’ motion for summary judgment as to the
    remainder. Porco appeals, but we dismiss his appeal as
    moot for the reasons stated herein.
    I.
    Porco was born in Michigan and attended school in
    DeWitt, Michigan, until his graduation from high school
    in 1997. After graduation, he remained in Michigan, where
    he attended college at Alma College in Alma, Michigan.
    After graduating from college, Porco applied to law schools
    in Indiana, Illinois, and California. He accepted an offer of
    admission from the University of Indiana School of Law and
    moved from Michigan to Indianapolis, Indiana, in August
    2001. Later that same month, he began attending Indiana
    University as a full-time law student.
    The University maintains a set of “Rules Determining
    Resident and Nonresident Status for Indiana University
    Fee Purposes” (“Residency Rules”) setting forth the policy
    under which a student is classified as either a resident or
    nonresident for fee-paying purposes. Under those rules, a
    student is considered a “resident student” if he or she has,
    for reasons other than attending school, “continuously
    resided in Indiana for at least twelve (12) consecutive
    months immediately preceding the first day of classes of the
    No. 05-1670                                                 3
    semester.” If not (subject to certain exceptions irrelevant
    here), the student is classified as a nonresident, and must
    pay a “nonresident fee” as long as he remains “continuously
    enrolled in the University.” Although it is not entirely clear
    from the record what the nonresident fee was at the time
    Porco filed suit, the current nonresident fee for graduate
    level courses is an additional $224.50 per credit hour.
    Porco paid the higher nonresident tuition for his first and
    second semesters of law school. Upon finishing his second
    semester, Porco applied to be classified as an Indiana
    resident. On May 27, 2002, he submitted the University’s
    “Application for Classification as a Resident Student at
    Indiana University for Fee-Paying Purposes.” In it, he set
    forth the steps he had taken that he maintained evidenced
    his status as an Indiana resident. Specifically, Porco had
    registered to vote in Indiana, had obtained an Indiana
    driver’s license, had registered his car in Indiana, and had
    opened an Indiana bank account. He had secured part-time
    employment in Indiana during his second semester of law
    school and also had a full-time summer job at a law firm in
    Indiana. Porco also submitted a “personal statement,” in
    which he professed his intention to reside in Indiana for the
    rest of his life and raise a family there. For example, he
    explained his rejection of an offer of admission from the
    University of San Diego as follows: “I turned down this
    ‘California dream’ because I knew it wasn’t where I
    belong—I belong in Indiana.” He concluded with the
    observation that, “I may not be a Hoosier by birth but I am
    one by choice.”
    Thomas A. May, the Associate Registrar, denied Porco’s
    request. May explained that Porco was ineligible for
    reclassification under Residency Rules 1a and 1b. Rule 1a
    provides that an individual who moves to Indiana from
    another state does not acquire residency (for fee-paying
    purposes) until he resides in the state for at least twelve
    consecutive months, and Rule 1b explains that time spent
    4                                                No. 05-1670
    in Indiana “for the predominant purpose of attending a
    college, university, or other institution of higher education”
    does not count toward the twelve-month requirement. At
    the time he applied for reclassification, Porco had been in
    Indiana just over nine months, and had been attending
    law school for almost that entire time. Thus, May ex-
    plained, he did not meet the criteria for reclassification
    under Rule 1a and 1b.
    Porco appealed May’s decision to the Standing Committee
    on Residence and was granted a hearing on his appeal on
    June 11, 2002. At the hearing, Porco again represented that
    he intended to make Indiana his permanent home, and
    reiterated the things he had done to that end, such as
    obtaining an Indiana driver’s license and staying in Indiana
    to work for the summer. Approximately one month after the
    hearing, Jo Anne Bowen, Chair of the Standing Committee
    on Residence, wrote Porco to inform him that the Commit-
    tee had denied his appeal. Bowen explained that the
    Committee had considered Porco’s reasons for coming to
    Indiana and his reasons for staying, but concluded that his
    predominant purpose in coming was to attend school, and
    that his purpose had not changed. Porco thus paid the
    nonresident fee for Fall semester 2002 and Spring semester
    2003.
    At the beginning of what would be his final semester, Fall
    2003, Porco sued Jo Anne Bowen, Thomas May, the Stand-
    ing Committee on Residence, and the Trustees of Indiana
    University. He alleged that the University’s Residency
    Rules, both facially and as applied to him, violated the
    Equal Protection Clause of the Fourteenth Amendment, the
    Due Process Clause of the Fifth Amendment, and the
    Privileges and Immunities Clause of the Fourteenth
    Amendment. In his complaint, Porco requested, among
    other things, a preliminary injunction ordering the Univer-
    sity to reclassify him as a resident student so that he could
    pay the lower rate of tuition and continue with his classes
    No. 05-1670                                                5
    while the case was pending. Before the court ruled on
    Porco’s request for injunctive relief, the parties reached an
    agreement. In lieu of litigating Porco’s request for injunc-
    tive relief under the time pressures created by the four-
    month semester, they agreed that Porco would tender the
    difference between that semester’s resident and nonresident
    tuition—$5,825.60—to the Clerk of the Court to be dis-
    persed in accordance with the court’s final judgment.
    The University then moved to dismiss Porco’s suit, or, in
    the alternative, for summary judgment. It argued that
    Porco lacked standing to challenge the Residency Rules
    because he had never truly intended to live permanently in
    Indiana, as evidenced by the fact that he had returned to
    Michigan after graduating from law school. Alternatively,
    it argued that Porco’s challenges failed on the merits
    because the Residency Rules were constitutional under
    Vlandis v. Kline, 
    412 U.S. 441
     (1973), and other Supreme
    Court precedent allowing state schools to establish bona
    fide residency criteria for out-of-state students. Porco also
    moved for summary judgment.
    The district court entered judgment for the defendants. It
    broke down Porco’s challenges to the Residency Rules into
    two parts: challenges to the twelve-month durational
    requirement in Rule 1a, and challenges to the “predominant
    purpose” test in Rule 1b. The court agreed with the defen-
    dants that Porco lacked standing to challenge the twelve-
    month residency requirement in 1a. The court concluded
    that the defendants had ultimately denied Porco’s applica-
    tion under Rule 1b (the “predominant purpose” provision),
    and thus none of Porco’s alleged injury was traceable to
    Rule 1a. The court then determined that Porco had stand-
    ing to challenge the “predominant purpose” test in Rule 1b,
    but that his challenge failed on the merits because the rule
    was rationally related to Indiana’s legitimate interest in
    ensuring that only bona fide residents received the in-state
    tuition rate. It thus granted the defendants’ motion to
    6                                                 No. 05-1670
    dismiss as it related to Porco’s challenge to the durational
    portion of the residency rules, and granted summary
    judgment to the defendants on Porco’s remaining claims.
    The court’s judgment included an instruction to the Clerk
    of the Court to distribute the disputed $5,825.60 to the
    defendants. The Clerk did so on March 10, 2004, ten
    business days and fourteen calendar days after the court
    entered judgment (February 24, 2005). On March 14, Porco
    appealed, and he simultaneously moved to stay the execu-
    tion of judgment pending appeal, citing Federal Rule of
    Appellate Procedure 8(a)(1)(A) (instructing litigants to move
    first in the district court for a stay of judgment pending
    appeal). Because the Clerk had already distributed the
    funds upon expiration of the 10-day automatic stay, see Fed.
    R. Civ. P. 62(a), the court denied Porco’s motion to stay the
    judgment as moot.
    II.
    On appeal, Porco reiterates his claim that the University’s
    Residency Rules, both facially and as applied, violate the
    Due Process and Equal Protection Clauses of the Constitu-
    tion. He fails, however, to address the more fundamental
    question with which we must begin: whether his appeal is
    moot because the Clerk has already distributed the dis-
    puted $5,825.60 to the University.
    Article III, § 2 of the Constitution gives federal courts the
    power to adjudicate only “actual, ongoing, controversies.”
    Honig v. Doe, 
    484 U.S. 305
    , 317 (1988); Brown v.
    Bartholomew Consol. Sch. Corp., 
    442 F.3d 588
    , 596 (7th Cir.
    2006). Accordingly, it is well-settled that a federal court
    “has no authority to give opinions upon moot questions or
    abstract propositions, or to declare principles or rules of law
    which cannot affect the matter in issue in the case before
    it.” Church of Scientology v. United States, 
    506 U.S. 9
    , 12
    (1992) (citation and internal quotations omitted). If at any
    No. 05-1670                                                    7
    stage of the proceedings, an event occurs which renders it
    impossible for the court to provide “any effectual relief
    whatever,” to the prevailing party, the case must be
    dismissed. 
    Id.
     (quoting Mills v. Green, 
    159 U.S. 651
    , 653
    (1895)); see also United States v. Balint, 
    201 F.3d 928
    , 936
    (7th Cir. 2000). The University maintains that the Clerk’s
    distribution of the $5,825.60 is just such an intervening
    event. That figure represents the difference between
    resident and nonresident tuition for Porco’s final semester,
    and is concededly the only thing still at issue in Porco’s suit.
    As explained above, the district court’s entry of judgment
    on February 24, 2005 included an instruction to the Clerk
    to “distribute to defendants the funds deposited with the
    court in this action.” Federal Rule of Civil Procedure 62(a)
    provides for a ten-day automatic stay on the execution of
    judgment. See Fed. R. Civ. P. 62(a). Rule 62 also allows an
    appellant to post a supersedeas bond to obtain a stay
    pending appeal. See Fed. R. Civ. P. 62(d). In Porco’s case,
    when the automatic stay expired on March 10, 2005, the
    Clerk distributed the funds. Porco appealed four days later,
    on March 14, and only then did he move to stay the judg-
    ment pending appeal, citing Federal Rule of Appellate
    Procedure 8(a) instead of Rule 62(d). By then, the funds had
    already been released.
    In the ordinary case, Porco’s failure to obtain a stay
    pursuant to Rule 62(d) would not moot his appeal because
    he could seek reimbursement if he succeeded on appeal. See
    Dale M. ex rel. Alice M. v. Bd. of Educ., 
    237 F.3d 813
    , 815
    (7th Cir. 2001) (“A judgment creditor who pays the judg-
    ment pending appeal instead of posting a supersedeas
    bond . . . is entitled to the return of its money if the decision
    is reversed, and so the payment does not moot the appeal
    unless the appellant has relinquished his right to seek
    repayment if he wins.”). However, that is not possible here.
    Indiana University is a part of the state, see Omosegbon v.
    Wells, 
    335 F.3d 668
    , 672 (7th Cir. 2003), and thus the
    8                                                No. 05-1670
    Eleventh Amendment protects the defendants (all sued in
    their official capacities) from satisfying a money judgment.
    See, e.g., Edelman v. Jordan, 
    415 U.S. 651
    , 663 (1974) (“[A]
    suit by private parties seeking to impose a liability which
    must be paid from public funds in the state treasury is
    barred by the Eleventh Amendment.”). Porco agreed in the
    district court to withdraw his claim for injunctive relief
    (which may have come within the Ex parte Young exception
    to the Eleventh Amendment, see Wells, 
    335 F.3d at 673
    ),
    and in exchange the University tendered the disputed sum
    to the Clerk. Because Porco failed to timely seek a stay on
    the execution of the court’s judgment, as he was entitled to
    do under Rule 62(d), Porco’s suit is now essentially one for
    monetary compensation from the state. As such, it is barred
    by the Eleventh Amendment. See Edelman, 
    415 U.S. at 663
    ;
    see also Lapides v. Bd. of Regents, 
    535 U.S. 613
    , 617 (2002)
    (“[A] State is not a ‘person’ against whom a § 1983 claim for
    money damages might be asserted.”); Doe v. Heck, 
    327 F.3d 492
    , 508 n.13 (7th Cir. 2003) (“To the extent the plaintiffs’
    suit against the defendants in their official capacities with
    the Bureau [of Milwaukee Child Welfare] seeks retrospec-
    tive monetary damages, this action constitutes a suit
    against the state that is prohibited by the Eleventh Amend-
    ment.”).
    Porco recognized as much in his motion for a stay pending
    appeal. In that motion, he acknowledged that because the
    defendants are state officials sued in their official capaci-
    ties, without a stay he would “lose his right to an appeal.”
    Despite his apparent awareness that his case would become
    moot if the funds were distributed, Porco’s opening brief on
    appeal makes no mention of the possibility that his appeal
    became moot when the Clerk distributed the funds.
    Instead, Porco waits until his reply brief to respond
    briefly to the University’s contention that the case is moot.
    He then suggests that his case is not moot because if he
    prevailed he could still obtain costs. He also claims that the
    No. 05-1670                                                  9
    district court erred when it denied his motion for a stay
    pending appeal. These arguments, appearing as they do for
    the first time in Porco’s reply brief, are waived. E.g., Hart
    v. Transit Mgmt., 
    426 F.3d 863
    , 867 (7th Cir. 2005) (per
    curiam). Moreover, they are meritless. To support his
    contention that he could still obtain costs, Porco points out
    that the Eleventh Amendment “does not bar monetary
    relief, including costs, ancillary to the [sic] prospective
    injunctive relief.” But Porco no longer has a claim for
    injunctive relief. Not only has he since graduated from
    Indiana University, Porco withdrew his claim for injunctive
    relief when the University deposited the $5,825.60, so his
    contention about costs is irrelevant. As for his claim that
    the district court erred by denying his motion for a stay, it
    is based largely on his own belief that it is “illogical and
    contradicting” that he is allowed 30 days to file a notice of
    appeal but only 10 days to request a stay. We see no
    contradiction in the rule, and the fact that it requires
    some vigilance on the part of the appellant does not make
    it “illogical.” Porco also claims that at the time he moved for
    a stay, he did not know that the Clerk had already executed
    the judgment. He cites no authority, however, suggesting
    that the Clerk had a duty to inform him before distributing
    the funds. See Weinstein v. Schwartz, 
    422 F.3d 476
    , 477 n.1
    (7th Cir. 2005) (reiterating rule that unsupported or
    undeveloped arguments are waived).
    Porco’s arguments boil down to a protest that it is not his
    fault that the funds were distributed. This court rejected a
    similar line of reasoning in Fink v. Cont’l Foundry and
    Mach. Co., 
    240 F.2d 369
     (1957). In Fink, shareholders of
    Continental, a large steel foundry and manufacturing
    company, filed suit to enjoin Continental from liquidating
    and selling its assets to another corporation. 
    Id. at 371
    . The
    district court denied the plaintiffs’ request for a permanent
    injunction, and thereafter Continental moved forward with
    the sale and liquidation pursuant to the terms of a previ-
    10                                                No. 05-1670
    ously agreed-upon purchase agreement. 
    Id.
     This court
    rejected the plaintiffs’ claim that the sale had not mooted
    the appeal. The court explained that, “If plaintiffs desired
    that the status quo be maintained pending appeal means
    were afforded . . . by Rule 62.” 
    Id. at 375
    . The court also
    pointed out that although the plaintiffs “knew Continental
    was contractually bound to sell and transfer its assets . . .
    plaintiffs took no step under Rule 62 . . . to secure from the
    trial court a temporary injunction or stay for the purpose of
    maintaining the status quo pending appeal.” 
    Id. at 374
    . The
    same rationale applies here. The terms of the judgment
    itself informed Porco that the Clerk would distribute the
    funds to the University. Although he could have moved for
    a stay pursuant to Rule 62(d) during the ten-day period
    afforded by Rule 62(a), he did not do so. By the time he did
    move for a stay, it was too late. See Fink, 
    240 F.2d at 373
    (pointing out that plaintiffs could have sought delay in the
    entry of judgment “if more time was required”). In distribut-
    ing the funds the Clerk was simply executing the terms of
    the judgment and thus cannot be blamed for Porco’s current
    predicament. See 
    id. at 375
     (rejecting plaintiffs’ attempt
    to blame defendant for causing case to become moot when
    defendant “did only that which it had a right to do”).
    In sum, Porco’s failure to seek a stay of the district court’s
    judgment before it was executed means that there is no
    relief this court can offer him. Cf. BASF Corp. v. Old World
    Trading Co., 
    979 F.2d 615
    , 616 (7th Cir. 1992) (appealing
    party must seek stay or risk possibility that prevailing
    party will execute judgment on appeal); Fed. Deposit Ins.
    Corp. v. Meyer, 
    781 F.2d 1260
    , 1263-64 (7th Cir. 1986)
    (merely filing appeal without obtaining stay under Rule
    62(d) does not prevent creditor from enforcing judgment).
    The money in dispute has been distributed. Even if Porco’s
    position on appeal had merit, he could not recover the funds
    from the University because it is an arm of the State of
    Indiana and thus protected by the Eleventh Amendment.
    No. 05-1670                                              11
    Cf. Balint, 
    201 F.3d at 936
     (holding that defendants’ appeal
    of restitution order was moot when a codefendant had paid
    restitution in full; court could not “order the City to
    refund . . . money that one of their colleagues paid”).
    We therefore DISMISS Porco’s appeal as moot.
    A true Copy:
    Teste:
    ________________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—6-22-06