United States v. Fowler

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-6241
CHARLES R. FOWLER, a/k/a Charles
R. Fowler, Sr.; VIRGINIA LEE
MICKLE, f/k/a Virginia L. Fowler,
Defendants-Appellants,
and
COMMISSIONERS OF THE LAND
OFFICE, sued as State of Oklahoma
ex rel.; GRADY COUNTY
TREASURER; GRADY COUNTY
BOARD OF COUNTY
COMMISSIONERS; THE FARM
CREDIT BANK OF WICHITA; J. M.
JACKSON,
Defendants.
ORDER
Filed July 27, 1998
Before BALDOCK, EBEL, and MURPHY, Circuit Judges.
Plaintiff-appellee United States of America has filed a petition for
rehearing of the order and judgment filed June 5, 1998. Upon consideration
thereof, the petition is granted, and the order and judgment filed June 5, 1998, is
withdrawn. The attached order and judgment is substituted in its place.
Entered for the Court
Patrick Fisher, Clerk
By:
Keith Nelson
Deputy Clerk
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 27 1998
FOR THE TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-6241
(D.C. No. CIV-96-1018-T)
CHARLES R. FOWLER, a/k/a Charles (W.D. Okla.)
R. Fowler, Sr.; VIRGINIA LEE
MICKLE, f/k/a Virginia L. Fowler,
Defendants-Appellants,
and
COMMISSIONERS OF THE LAND
OFFICE, sued as State of Oklahoma
ex rel.; GRADY COUNTY
TREASURER; GRADY COUNTY
BOARD OF COUNTY
COMMISSIONERS; THE FARM
CREDIT BANK OF WICHITA; J. M.
JACKSON,
Defendants.
ORDER AND JUDGMENT *
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before BALDOCK, EBEL, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
The federal government filed suit to collect on notes in default held by the
Farm Service Agency (FSA), formerly the Farmers Home Administration, and to
foreclose on the farm of defendants-appellants Charles R. Fowler and Virginia
Lee Mickle, which served as collateral for the notes. 1 Subsequently, the
government sought partial summary judgment against appellants. Appellants did
not deny owing the debt; rather, they argued the action should be stayed due to a
United States Department of Agriculture (USDA) suspension of foreclosures in
cases with pending complaints of discrimination. The district court rejected their
argument and entered partial summary judgment in favor of the government. The
district court held that because the notes had been referred to the United States
Attorney for foreclosure and collection and the United States Attorney had filed a
1
The other defendants, who are not parties to this appeal, claim liens on the
farm.
-2-
complaint before the USDA issued its suspension policy, the USDA’s policy
suspending foreclosure sales did not affect this action. Appellants appealed.
First, we must consider whether we have jurisdiction to consider this
appeal. The government moved to dismiss the appeal for lack of jurisdiction
because the district court had not adjudicated all claims against all parties when
appellants filed their notice of appeal and because the district court’s order
granting partial summary judgment did not comply with the requirements of
Fed. R. Civ. P. 54(b). Subsequently, the district court entered an order certifying
the order appealed from as immediately appealable pursuant to Rule 54(b). See
Lewis v. B.F. Goodrich Co., 850 F.2d 641, 645 (10th Cir. 1988). Accordingly,
we deny the government’s motion to dismiss.
The next jurisdictional issue we must consider is mootness. Although the
government has not challenged our appellate jurisdiction on mootness grounds,
we consider the issue of mootness sua sponte. See McClendon v. City of
Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996); see also Golfland
Entertainment Ctrs., Inc. v. Peak Inv., Inc. (In re BCD Corp.), 119 F.3d 852, 856
(10th Cir. 1997) (“We address the issue of mootness as a threshold question
because in the absence of a live case or controversy, we have no subject-matter
jurisdiction over an appeal.”).
“‘The exercise of judicial power under Art. III of the Constitution depends
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on the existence of a case or controversy. . . . [A] federal court has neither the
power to render advisory opinions nor to decide questions that cannot affect the
rights of litigants in the case before them.’” Jones v. Temmer, 57 F.3d 921, 922
(10th Cir. 1995) (quoting Preiser v. Newkirk, 422 U.S. 395, 401 (1975) (further
quotation omitted)). Thus, a live case or controversy must exist at all stages of
federal proceedings. See McClendon, 100 F.3d at 867.
After the district court ruled, but before appellants filed their notice of
appeal, the Office of Civil Rights of the USDA reviewed Mr. Fowler’s claims of
discrimination, determined that there was no evidence of discrimination, and
advised that the FSA should not delay any further processing. 2 See Supplemental
App. of Appellee at 8. 3 Based on the evidence presented by appellants, the USDA
intends to resume foreclosure sales after an individual case is reviewed and the
review shows no discrimination. See App. of Appellants at 41; see also
Supplemental App. of Appellee at 6 (“This foreclosure suspension is effective
2
Appellants stated in their brief that Mr. Fowler’s discrimination claim
perhaps was pending as of October 21, 1997. See Appellants’ Br. at 7 (“His
discrimination claim was still being processed as of October 21, 1997. If this
claim is still ongoing . . . .”). The memorandum from the Office of Civil Rights
was dated June 30, 1997. Appellants did not file a reply brief rebutting this
evidence.
3
Although this evidence was not part of the district court’s record, it need
not be stricken because mootness concerns events occurring after the district court
rendered its decision. See Southern Utah Wilderness Alliance v. Smith , 110 F.3d
724, 729 (10th Cir. 1997).
-4-
until further guidance is provided by the National Office.”).
The agency’s determination of Mr. Fowler’s discrimination claim therefore
moots the controversy between appellants and the government. Thus, we must
refrain from exercising jurisdiction as no live case or controversy remains. See
Green v. Branson, 108 F.3d 1296, 1299 (10th Cir. 1997). Any “past exposure to
alleged illegal conduct does not establish a present live controversy” since there
are no “continuing present effects.” McClendon, 100 F.3d at 867. Accordingly,
we dismiss this appeal as moot since it is impossible to grant appellants effective
relief. See Johnson v. Board of County Comm’rs, 85 F.3d 489, 492 (10th Cir.),
cert. denied, 117 S. Ct. 611 (1996). Because mootness occurred due to
circumstances beyond appellants’ control, they are entitled to have the district
court’s order vacated insofar as it rejected their stay argument and determined the
USDA’s suspension policy did not apply to this case. See Southern Utah
Wilderness Alliance v. Smith, 110 F.3d 724, 725, 730 (10th Cir. 1997) (vacating
part of district court’s judgment relating to particular claim and remanding with
directions that claim be dismissed); McClendon, 100 F.3d at 868 (remanding to
district court to vacate parts of orders).
For the first time on appeal, appellants argue that if the discrimination
policy only applies to black farmers, Mr. Fowler’s equal protection rights have
been violated. Also, for the first time on appeal, they argue the merits of Mr.
-5-
Fowler’s discrimination claim. We will not consider these new arguments. See
Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992).
This appeal is DISMISSED as moot. We REMAND this case to the district
court with directions to vacate the portion of its order addressing appellants’
request for a stay. The government’s motion to dismiss for lack of jurisdiction is
DENIED. The new evidence presented for the first time on appeal by appellants
is stricken. See United States v. Farnsworth, 92 F.3d 1001, 1009 n.5 (10th Cir.),
cert. denied, 117 S. Ct. 596 (1996).
Entered for the Court
David M. Ebel
Circuit Judge
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 5 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-6241
(D.C. No. CIV-96-1018-T)
CHARLES R. FOWLER, a/k/a Charles (W.D. Okla.)
R. Fowler, Sr.; VIRGINIA LEE
MICKLE, f/k/a Virginia L. Fowler,
Defendants-Appellants,
and
COMMISSIONERS OF THE LAND
OFFICE, sued as State of Oklahoma
ex rel.; GRADY COUNTY
TREASURER; GRADY COUNTY
BOARD OF COUNTY
COMMISSIONERS; THE FARM
CREDIT BANK OF WICHITA; J. M.
JACKSON,
Defendants.
ORDER AND JUDGMENT ****
****
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before BALDOCK , EBEL , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
The federal government filed suit to collect on notes in default held by the
Farm Service Agency (FSA), formerly the Farmers Home Administration, and to
foreclose on the farm of defendants-appellants Charles R. Fowler and Virginia
Lee Mickle, which served as collateral for the notes. 1
Subsequently, the
government sought partial summary judgment against appellants. Appellants did
not deny owing the debt; rather, they argued the action should be stayed due to a
United States Department of Agriculture (USDA) suspension of foreclosures in
cases with pending complaints of discrimination. The district court rejected their
argument and entered partial summary judgment in favor of the government. The
district court held that because the notes had been referred to the United States
Attorney for foreclosure and collection and the United States Attorney had filed a
1
The other defendants, who are not parties to this appeal, claim liens on the
farm.
-2-
complaint before the USDA issued its suspension policy, the USDA’s policy
suspending foreclosure sales did not affect this action. Appellants appealed.
First, we must consider whether we have jurisdiction to consider this
appeal. The government moved to dismiss the appeal for lack of jurisdiction
because the district court had not adjudicated all claims against all parties when
appellants filed their notice of appeal and because the district court’s order
granting partial summary judgment did not comply with the requirements of
Fed. R. Civ. P. 54(b). Subsequently, the district court entered an order certifying
the order appealed from as immediately appealable pursuant to Rule 54(b). See
Lewis v. B.F. Goodrich Co. , 850 F.2d 641, 645 (10th Cir. 1988). Accordingly,
we deny the government’s motion to dismiss.
The next jurisdictional issue we must consider is mootness. Although the
government has not challenged our appellate jurisdiction on mootness grounds,
we consider the issue of mootness sua sponte. See McClendon v. City of
Albuquerque , 100 F.3d 863, 867 (10th Cir. 1996); see also Golfland
Entertainment Ctrs., Inc. v. Peak Inv., Inc. (In re BCD Corp.) , 119 F.3d 852, 856
(10th Cir. 1997) (“We address the issue of mootness as a threshold question
because in the absence of a live case or controversy, we have no subject-matter
jurisdiction over an appeal.”).
-3-
“‘The exercise of judicial power under Art. III of the Constitution depends
on the existence of a case or controversy. . . . [A] federal court has neither the
power to render advisory opinions nor to decide questions that cannot affect the
rights of litigants in the case before them.’” Jones v. Temmer , 57 F.3d 921, 922
(10th Cir. 1995) (quoting Preiser v. Newkirk , 422 U.S. 395, 401 (1975) (further
quotation omitted)). Thus, a live case or controversy must exist at all stages of
federal proceedings. See McClendon , 100 F.3d at 867.
After the district court ruled, but before appellants filed their notice of
appeal, the Office of Civil Rights of the USDA reviewed Mr. Fowler’s claims of
discrimination, determined that there was no evidence of discrimination, and
advised that the FSA should not delay any further processing. 2
See Supplemental
App. of Appellee at 8. 3
Based on the evidence presented by appellants, the USDA
intends to resume foreclosure sales after an individual case is reviewed and the
review shows no discrimination. See App. of Appellants at 41; see also
2
Appellants stated in their brief that Mr. Fowler’s discrimination claim
perhaps was pending as of October 21, 1997. See Appellants’ Br. at 7 (“His
discrimination claim was still being processed as of October 21, 1997. If this
claim is still ongoing . . . .”). The memorandum from the Office of Civil Rights
was dated June 30, 1997. Appellants did not file a reply brief rebutting this
evidence.
3
Although this evidence was not part of the district court’s record, it need
not be stricken because mootness concerns events occurring after the district court
rendered its decision. See Southern Utah Wilderness Alliance v. Smith , 110 F.3d
724, 729 (10th Cir. 1997).
-4-
Supplemental App. of Appellee at 6 (“This foreclosure suspension is effective
until further guidance is provided by the National Office.”).
The agency’s determination of Mr. Fowler’s discrimination claim therefore
moots the controversy between appellants and the government. Thus, we must
refrain from exercising jurisdiction as no live case or controversy remains. See
Green v. Branson , 108 F.3d 1296, 1299 ( 10th Cir. 1997). Any “past exposure to
alleged illegal conduct does not establish a present live controversy” since there
are no “continuing present effects.” McClendon , 100 F.3d at 867. Accordingly,
we dismiss this appeal as moot since it is impossible to grant appellants effective
relief. See Johnson v. Board of County Comm’rs , 85 F.3d 489, 492 (10th Cir.),
cert. denied , 117 S. Ct. 611 (1996). Because mootness occurred due to
circumstances beyond appellants’ control, they are entitled to have the district
court’s decision vacated and the case remanded with instructions to dismiss. See
McClendon , 100 F.3d at 868; Jones , 57 F.3d at 923.
For the first time on appeal, appellants argue that if the discrimination
policy only applies to black farmers, Mr. Fowler’s equal protection rights have
been violated. Also, for the first time on appeal, they argue the merits of Mr.
Fowler’s discrimination claim. We will not consider these new arguments. See
Walker v. Mather (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992).
-5-
This appeal is DISMISSED as moot. The district court’s opinion is
VACATED, and the case is REMANDED with instructions to dismiss. The
government’s motion to dismiss for lack of jurisdiction is DENIED. The new
evidence presented for the first time on appeal by appellants is stricken. See
United States v. Farnsworth , 92 F.3d 1001, 1009 n.5 (10th Cir.), cert. denied ,
117 S. Ct. 596 (1996).
Entered for the Court
David M. Ebel
Circuit Judge
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