Cox v. Phillips, 4th Cir. (1998)

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
RICKY A. COX; SCOTT A.
TRACHTENBERG; FOREST EDGE FARMS,
INCORPORATED; CRAVEN COUNTY
LIVESTOCK ASSOCIATION; WADE S.
DUNBAR, III,
Plaintiffs-Appellants,
and
THOMAS L. MCCOY,
Plaintiff,
v.
DONALD L. PHILLIPS, individually and in
his official capacity as Chairman and
member of the Craven County Board
of Commissioners; CHARLES F. TYSON,
No. 97-2207
individually and in his official capacity
as Vice-Chairman and member of the
Craven County Board of
Commissioners; LEE K. ALLEN,
Individally and in his official capacity
as a member of the Craven County
Board of Commissioners; GARY BLEAU,
Individually and in his official capacity
Board of Commissioners; JOHNNIE
SAMPSON, JR., Individually and in his
official capacity as a member of the
Craven County Board of
Commissioners; ALBERT H. TOON, In
his official capacity as a member of
the Craven County Board of

Commissioners; EARL WRIGHT,
Individually and in his official capacity
Board of Commissioners; CRAVEN
COUNTY, NORTH CAROLINA,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
Malcolm J. Howard, District Judge.
(CA-97-57-4-H)
Argued: April 7, 1998
Decided: May 5, 1998
Before WILKINSON, Chief Judge, and HAMILTON and
MICHAEL, Circuit Judges.
_________________________________________________________________
Vacated and remanded by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Isaac Clark Wright, Jr., WARD & SMITH, P.A., New
Bern, North Carolina, for Appellants. Trawick Hamilton Stubbs, Jr.,
STUBBS & PERDUE, P.A., New Bern, North Carolina, for Appellees. ON BRIEF: Robert E. Futrell, Jr., WARD & SMITH, P.A.,
New Bern, North Carolina, for Appellants. David J. Haidt, STUBBS
& PERDUE, P.A., New Bern, North Carolina, for Appellees.
_________________________________________________________________
2
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Craven County enacted a temporary moratorium on certain intensive livestock operations. The district court dismissed plaintiffs' complaint challenging the moratorium and seeking declaratory and
injunctive relief. During the course of this appeal, the county's moratorium expired. This case is therefore moot. Accordingly, we vacate
the judgment of the district court and remand the case with directions
that it be dismissed.
I.
On February 25, 1997, the Craven County Board of Commissioners adopted an ordinance placing a moratorium on most new intensive
livestock operations and the expansion of existing operations in the
county. Craven County, N.C., Ordinance Providing For A Moratorium On Intensive Livestock Operations in Craven County, North
Carolina (Feb. 25, 1997) ("Ordinance"). The ordinance defined intensive livestock operations to include any enclosure, pen, feedlot, building or group of buildings intended for the confined feeding, breeding,
raising or hold of animals where animal waste may accumulate or
where vegetative cover cannot be maintained due to the concentration
of animals. Ordinance 1(a). According to the ordinance's preamble,
the Board was concerned about the environmental and health risks
associated with these operations such as water contamination and disease transmission. The Board enacted the moratorium in order to
study the growth of intensive livestock operations and to determine
whether to regulate them. The moratorium lasted through February
16, 1998.
At the time the moratorium took effect, plaintiff Thomas L. McCoy
was upgrading and expanding his swine farm in Craven County.
Plaintiffs Ricky A. Cox, Wade S. Dunbar, III, and Scott A. Trachten3
berg had undertaken extensive preparations for a large swine farm in

Craven County and had formed Forest Edge Farms, Incorporated to
own and operate it. After the Board declined to exempt their activities
from the moratorium, these parties, as well as the Craven County
Livestock Association, filed suit against the board members and the
county. Their complaint alleged violations of the United States Constitution and North Carolina law. In their prayer for relief, plaintiffs
requested only a declaratory judgment that the moratorium was
invalid, an injunction prohibiting its enforcement, and other relief as
the court should deem just and proper. Plaintiffs did not request
money damages. Subsequently, McCoy settled his claims with the
defendants. Following a hearing, the district court found no violation
of federal law and dismissed the state law claims without prejudice.
This appeal followed.
II.
Initially, we must determine whether we have jurisdiction over this
appeal. Plaintiffs seek only a declaration that Craven County's moratorium is invalid and an injunction against its enforcement. That moratorium, however, ended on February 16, 1998. Its expiration
therefore renders this case moot, and we lack jurisdiction to consider
the merits of plaintiffs' claims.
Article III of the Constitution limits the judicial power to "actual,
ongoing cases or controversies." Lewis v. Continental Bank Corp.,
494 U.S. 472, 477 (1990) (citations omitted); see U.S. Const. art. III,
2. Federal courts cannot decide questions not affecting the rights of
litigants in the case before them; a decision under such circumstances
would be tantamount to rendering an advisory opinion. Preiser v.
Newkirk, 422 U.S. 395, 401 (1975); North Carolina v. Rice, 404 U.S.
244, 246 (1971) (per curiam). To avoid this possibility, the "case-orcontroversy requirement subsists through all stages of federal judicial
proceedings, trial and appellate." Lewis, 494 U.S. at 477. Thus, an
actual controversy must exist "at all stages of review, not merely at
the time the complaint is filed." Arizonans for Official English v.
Arizona, 117 S. Ct. 1055, 1068 (1997) (internal quotation marks and
citations omitted); see Burke v. Barnes, 479 U.S. 361, 363 (1987).
When a law no longer remains in effect, cases challenging that law
and requesting only prospective equitable relief ordinarily become
4
moot. See Burke, 479 U.S. at 363; Diffenderfer v. Central Baptist

Church, 404 U.S. 412, 414 (1972) (per curiam). For example, this circuit has found moot a challenge to a statute when the legislature
repealed it after the district court's entry of judgment. Maryland
Highways Contractors Ass'n, Inc. v. Maryland, 933 F.2d 1246, 124950 (4th Cir. 1991). That case, involving only a request for declaratory
and injunctive relief, had "lost its character as a present, live controversy of the kind that must exist if we are to avoid advisory opinions
on abstract propositions of law." Id. at 1249 (internal quotation marks
and citation omitted); see Jordahl v. Democratic Party of Va., 122
F.3d 192, 198 (4th Cir. 1997), cert. denied, 118 S. Ct. 856 (1998). Of
course our concerns about the need for a continuing controversy in
cases of repealed laws apply equally to cases where laws have expired
by their own terms. See Burke, 479 U.S. at 363. Thus, we agree with
those circuits that have found "[a]s a general rule, if a challenged law
. . . expires, the case becomes moot." Native Village of Noatak v.
Blatchford, 38 F.3d 1505, 1510 (9th Cir. 1994) (citations omitted);
accord Associated Gen. Contractors of Conn., Inc. v. City of New
Haven, 41 F.3d 62, 67 (2d Cir. 1994).
Plaintiffs' challenge to the Craven County moratorium has become
moot. The complaint, as plaintiffs' counsel acknowledged at oral
argument, does not request money damages. It requests only declaratory and injunctive relief. That relief, however, would have no legal
effect now that the moratorium has expired. Though a live controversy undoubtedly existed when plaintiffs filed their complaint, that
controversy has ended. Any ruling on the merits of plaintiffs' claims,
therefore, would amount to nothing more than an advisory opinion on
an expired law.
This case does not fall within an exception to the mootness doctrine. This is not a case capable of repetition yet evading review. See
Southern Pac. Terminal Co. v. ICC, 219 U.S. 498 (1911). In the event
the county adopts another ordinance, ample opportunity exists for
judicial review. See National Black Police Ass'n v. District of
Columbia, 108 F.3d 346, 350-51 (D.C. Cir. 1997); Associated General Contractors, 41 F.3d at 66 n.7; Native Village of Noatak, 38 F.3d
at 1509-10. Nor does the county's voluntary decision to set a time
limit on the moratorium require us to reach the merits of this case. See
City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283 (1982). The
5
Board of Commissioners set the moratorium's expiration date before

this lawsuit had been filed; thus, it cannot be said that the Board acted
in an attempt to avoid an adverse judgment. See, e.g., National Black
Police Ass'n, 108 F.3d at 349-50; Associated General Contractors, 41
F.3d at 66.
III.
When a case becomes moot on appeal, the ordinary course is to
vacate the judgment below and remand the case for dismissal.
Arizonans for Official English, 117 S. Ct. at 1071; United States v.
Munsingwear, Inc., 340 U.S. 36, 39 (1950); Suarez Corp. Indus. v.
McGraw, 125 F.3d 222, 228 (4th Cir. 1997). We see no need to depart
from this "established practice." Arizonans for Official English, 117
S. Ct. at 1071 (quoting Munsingwear, 340 U.S. at 39). We therefore
vacate the judgment of the district court and remand the case with
directions to dismiss the complaint.
VACATED AND REMANDED
6

Cox v. Phillips, 4th Cir. (1998)

Uploaded by

Copyright:

Available Formats

Cox v. Phillips, 4th Cir. (1998)

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Cox v. Phillips, 4th Cir. (1998)

Uploaded by

Copyright:

Available Formats

UNPUBLISHED

UNITED STATES COURT OF APPEALS

the Craven County Board of

Unpublished opinions are not binding precedent in this circuit. See

berg had undertaken extensive preparations for a large swine farm in

moot. See Burke, 479 U.S. at 363; Diffenderfer v. Central Baptist

Board of Commissioners set the moratorium's expiration date before

You might also like

Pfad - The Proxy pFad of © 2024 Garber Painting. All rights reserved.