Alta Bumpus v. Donald E. Clark
Alta BUMPUS, Et Al., Plaintiffs-Appellants, v. Donald E. CLARK, Et Al., Defendants-Appellees
Opinion of the Court
ORDER
The petition for rehearing is denied. The opinion of this court Bumpus v. Clark, 681 F.2d 679 (9th Cir.1982), is withdrawn and the case is remanded to the district court with direction to dismiss the case as moot. Great Western Sugar Co. v. Nelson, 442 U.S. 92, 93 , 99 S.Ct. 2149, 2150 , 60 L.Ed.2d 735 (1979); see United States v. Munsingwear, Inc., 340 U.S. 36, 39 , 71 S.Ct. 104, 106 , 95 L.Ed. 36 (1950). Our opinion was filed on July 16, 1982. The appellants (plaintiffs below) were all residents of Edgefield Manor, a nursing home operated by Multnomah County, Oregon. Edgefield Manor was closed by the County on April 20, 1982. All residents were removed prior to closure. The totality of the relief appellants sought was related to the threatened *827 closure of Edgefield Manor. Both the subject matter of the action and the plaintiff class (as alleged and certified) were inextricably tied to the existence and continued operation of Edgefield Manor. No decree by the district court granting injunctive or declaratory relief can undo the closure, specify procedures for closing, or prevent the transfer of plaintiffs. Plaintiffs did not request reopening of the home. No relief requested by plaintiffs can be granted. The court is without power “to decide questions that cannot affect the rights of litigants in the case before [it].” North Carolina v. Rice, 404 U.S. 244, 246 , 92 S.Ct. 402, 404 , 30 L.Ed.2d 413 (1971). We have no article III jurisdiction over cases in which the district court has lost the power to grant relief if the appellate court were to reverse the judgment. E.g., St. Pierre v. United States, 319 U.S. 41, 42-43 , 63 S.Ct. 910, 911 , 87 L.Ed. 1199 (1943); Friends of the Earth, Inc. v. Bergland, 576 F.2d 1377, 1378-79 (9th Cir.1978).
The full court has been advised of the suggestion for an en banc rehearing and no judge of the court has requested a vote on the suggestion for rehearing en banc. Fed. R.App. 35(b). The suggestion for a rehearing en banc is hereby denied.
Dissent
FARRIS, Circuit Judge,
dissenting:
During the months that this matter was under submission, the nursing home was closed and the surviving plaintiffs were transferred to other facilities. I agree with the majority’s conclusion that “[n]o decree by the district court granting injunctive or declaratory relief can undo the closure, specify procedures for closing, or prevent the transfer of plaintiffs.” In spite of this, the case is not moot. These same plaintiffs may well be subjected to a similar closure and involuntary transfer to yet another institution. The issues as to their status and rights within the Medicaid program have not been mooted by the closing of Edgefield Manor. The situation is “capable of repetition yet evading review.” Southern Pacific Terminal Co. v. ICC, 219 U.S. 498 , 31 S.Ct. 279 , 55 L.Ed. 310 (1911). In so concluding, I do not ignore Security Bancorp v. Board of Governors of the Federal Reserve System, 655 F.2d 164 (9th Cir.1979), vacated 454 U.S. 1118 , 102 S.Ct. 962 , 71 L.Ed.2d 105 (1981).
I therefore respectfully dissent from the decision to withdraw the opinion.
Combined text as published — syllabus, headnotes and all opinions in one document
702 F.2d 826
Alta BUMPUS, et al., Plaintiffs-Appellants, v. Donald E. CLARK, et al., Defendants-Appellees.
No. 77-2883.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 6, 1980. Reassigned May 10, 1982. Decided March 29, 1983.
Michael H. Marcus, Portland, Or., for plaintiffs-appellants.
John B. Leahy, Portland, Or., for defendants-appellees.
Appeal from the United States District Court for the District of Oregon.
Before HUG, FLETCHER and FARRIS, Circuit Judges.
ORDER 1
The petition for rehearing is denied. The opinion of this court Bumpus v. Clark, 681 F.2d 679 (9th Cir.1982), is withdrawn and the case is remanded to the district court with direction to dismiss the case as moot. Great Western Sugar Co. v. Nelson, 442 U.S. 92, 93 , 99 S.Ct. 2149, 2150 , 60 L.Ed.2d 735 (1979); see United States v. Munsingwear, Inc., 340 U.S. 36, 39 , 71 S.Ct. 104, 106 , 95 L.Ed. 36 (1950). Our opinion was filed on July 16, 1982. The appellants (plaintiffs below) were all residents of Edgefield Manor, a nursing home operated by Multnomah County, Oregon. Edgefield Manor was closed by the County on April 20, 1982. All residents were removed prior to closure. The totality of the relief appellants sought was related to the threatened closure of Edgefield Manor. Both the subject matter of the action and the plaintiff class (as alleged and certified) were inextricably tied to the existence and continued operation of Edgefield Manor. No decree by the district court granting injunctive or declaratory relief can undo the closure, specify procedures for closing, or prevent the transfer of plaintiffs. Plaintiffs did not request reopening of the home. No relief requested by plaintiffs can be granted. The court is without power "to decide questions that cannot affect the rights of litigants in the case before [it]." North Carolina v. Rice, 404 U.S. 244, 246 , 92 S.Ct. 402, 404 , 30 L.Ed.2d 413 (1971). We have no article III jurisdiction over cases in which the district court has lost the power to grant relief if the appellate court were to reverse the judgment. E.g., St. Pierre v. United States, 319 U.S. 41, 42-43 , 63 S.Ct. 910, 911 , 87 L.Ed. 1199 (1943); Friends of the Earth, Inc. v. Bergland, 576 F.2d 1377, 1378-79 (9th Cir.1978).
2
The full court has been advised of the suggestion for an en banc rehearing and no judge of the court has requested a vote on the suggestion for rehearing en banc. Fed.R.App. 35(b). The suggestion for a rehearing en banc is hereby denied.
FARRIS, Circuit Judge, dissenting:
3
During the months that this matter was under submission, the nursing home was closed and the surviving plaintiffs were transferred to other facilities. I agree with the majority's conclusion that "[n]o decree by the district court granting injunctive or declaratory relief can undo the closure, specify procedures for closing, or prevent the transfer of plaintiffs." In spite of this, the case is not moot. These same plaintiffs may well be subjected to a similar closure and involuntary transfer to yet another institution. The issues as to their status and rights within the Medicaid program have not been mooted by the closing of Edgefield Manor. The situation is "capable of repetition yet evading review." Southern Pacific Terminal Co. v. ICC, 219 U.S. 498 , 31 S.Ct. 279 , 55 L.Ed. 310 (1911). In so concluding, I do not ignore Security Bancorp v. Board of Governors of the Federal Reserve System, 655 F.2d 164 (9th Cir.1979), vacated 454 U.S. 1118 , 102 S.Ct. 962 , 71 L.Ed.2d 105 (1981).
4
I therefore respectfully dissent from the decision to withdraw the opinion.
How later courts describe this case
Explanatory parentheticals written by citing courts — 1 in all; the most informative distinct ones are shown.
-
(“Section 1396a(a)(19) must be considered in light of the legislative scheme as a whole. The Medicaid program is not intended to meet all the medical needs of recipients.”)
Cited by 27 cases
View all citing references →Relies on it most ⓘ
- David A. Clarke v. United States
- Stewart v. Bernstein
- Chalfin v. Beverly Enterprises, Inc.
- Evans v. Bank of New York Trust Co., N.A.
- Independent Union of Flight Attendants v. Pan American World Airways, Inc., and Pan Am Corporation
- Brian Bruggeman by and Through His Parents, Kenneth and Carol Bruggeman v. Rod Blagojevich
Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.