United States v. Fowler

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 5, 1998
• Docket: 97-6241
• Status: Unpublished

Opinion

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withdrawn.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

-2- 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

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,

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,

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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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

-3- 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

-6- 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

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,

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,

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

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,

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

-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).

-6-