Dow Jones & Company, Inc. v. Robert P. Kaye , 256 F.3d 1251 ( 2001 )

  •                                                                                     [PUBLISH]
                                FOR THE ELEVENTH CIRCUIT                            FILED
                                                                          U.S. COURT OF APPEALS
                               ------------------------------------------- ELEVENTH CIRCUIT
                                                                                JULY 12, 2001
                                            No. 00-12390
                                                                             THOMAS K. KAHN
                              --------------------------------------------        CLERK
                               D. C. Docket No. 00-00962 CV-AJ
    Publisher of the Wall Street Journal,
    Publisher of the New York Times, et al.,
    ROBERT P. KAYE, in his official
    capacity as Circuit Court Judge
    for the Eleventh Circuit of Florida,
                          Appeal from the United States District Court
                                for the Southern District of Florida
                                            (July 12, 2001)
    Before EDMONDSON, DUBINA and POLITZ*, Circuit Judges.
    C    Honorable Henry A. Politz, U.S. Circuit Judge for the Fifth Circuit, sitting by
    EDMONDSON, Circuit Judge:
           This case requires us to consider whether a challenge in federal court to a
    gag order issued in state court is moot. The final judgment has been entered on the
    state case, but the parties have appealed to the state appellate court. We conclude
    that this appeal is moot and dismiss for lack of jurisdiction.1
           This case arises out of a widely publicized product-liability lawsuit filed in a
    south Florida state court against some tobacco companies. The suit sought to
    recover damages for cigarette addiction. See generally Engle v. R.J. Reynolds
    Tobacco Co., No. 94-8273 (Fla. 11th Jud. Cir. Ct.). Judge Robert Kaye presided
    over the state proceedings.
        Also on appeal are questions of Younger abstention -- see Younger v. Harris, 
    91 S. Ct. 746
    (1971) -- and a First Amendment challenge to the gag order. Because we conclude that the case
    is moot, we say nothing about the substance of these two issues.
           Class plaintiffs2 filed the Engle complaint in 1994. In October 1998, after
    jury selection concluded for the liability phase of Engle, Judge Kay entered this
    gag order:
           All parties and their agents shall adhere to the Florida Rules of Professional
           Conduct. All parties and their agents are prohibited from holding any public
           meetings and/or press conferences or briefings which relate to any facts or
           issues concerning this case. In addition, no party nor their agents are to
           make any public statement, written or oral, which pertains to any court
           proceedings in this case, including any part[y’s] version of the facts, issues,
           merits, and theories of the case. All parties will also refrain from publically
           characterizing any party or witness in this case.
    Judge Kay entered the gag order when he learned that some of the defendant-
    tobacco companies planned a press conference and had already issued a press
    release about the trial. Judge Kaye held a hearing with the parties to discuss the
    gag order before it was issued. But, he prohibited the media from attending the
    hearing. The state-court parties acquiesced in and contributed to the phrasing of
    the written gag order.
           Over a year later, after the liability phase of Engle ended and during the
    compensatory damages phase, some of the tobacco companies moved to vacate the
    gag order. Judge Kaye denied the motion, and the state appellate court sustained
          The class plaintiffs in the underlying Engle litigation are not parties to the federal-court
    the gag order. See R.J. Reynolds Tobacco Co. v. Engle, 
    750 So. 2d 781
    , 781 (Fla.
    3rd D.C.A. 2000). The state appellate court also denied media-entity Dow Jones’s
    motion to intervene in the appeal; Dow Jones participated as amicus curiae in the
    state appeal.
          In March 2000, Dow Jones and several other media entities (collectively,
    “media”) filed a complaint against Judge Kaye in federal court, claiming that the
    19-month old gag order violated a First Amendment right to gather and to
    disseminate news. As relief, the media requested that the district court “enter a
    permanent injunction immediately dissolving the gag order.” The media also filed
    an Emergency Motion for a Temporary Restraining Order, requesting that Judge
    Kaye “be restrained from enforcing [the] ‘gag order’” that he entered in the Engle
    ligitation. Judge Kaye presented a defense. In April 2000, the district court
    denied Judge Kaye’s motion to dismiss and granted the media’s preliminary
    injunction, saying “Judge Kaye is enjoined from enforcing the gag order.” Judge
    Kaye then filed this appeal.
          Meanwhile, in the state court, the Engle trial ended in July 2000 with a $145
    billion punitive damages award. Based on this development in the state trial, the
    media moved to dismiss this appeal as moot. Judge Kaye countered that this case
    was within the capable-of-repetition-yet-evading-review exception to mootness.
          The tobacco companies now have appealed the jury verdict and damage
    awards to the state appellate court. At oral argument, we requested supplemental
    briefing to allow the parties to explain the effect of the state appeal on our question
    of mootness.
          Our jurisdiction is limited, by the Constitution, to “cases” and
    “controversies.” U.S. Const. Art. III § 2. As the Supreme Court has explained, a
    justiciable controversy “must be definite and concrete, touching the legal relations
    of parties having adverse legal interests. It must be a real and substantial
    controversy admitting of specific relief through a decree of a conclusive character,
    as distinguished from an opinion advising what the law would be upon a
    hypothetical state of facts.” Aetna Life ins. Co. v. Haworth, 
    57 S. Ct. 461
    , 464
           “A claim for injunctive relief may become moot if: ‘(1) it can be said with
    assurance that there is no reasonable expectation that the alleged violation will
    recur and (2) interim relief or events have completely and irrevocably eradicated
    the effects of the alleged violations.’” Reich v. Occupational Safety & Health
    Review Comm’n, 
    102 F.3d 1200
    , 1201 (11th Cir. 1997) (quoting County of Los
    Angeles v. Davis, 
    99 S. Ct. 1379
    , 1383 (1979)). When we consider our
    jurisdiction for mootness, we look at the events at the present time, not at the time
    the complaint was filed or when the federal order on review was issued. See Jews
    for Jesus, Inc. v. Hillsborough County Aviation Auth., 
    162 F.3d 627
    , 629 (11th Cir.
    1998) (“A case is moot when events subsequent to the commencement of a lawsuit
    create a situation in which the court can no longer give the plaintiff meaningful
           For now, at least, because final judgment has been entered and the state case
    is on appeal, Judge Kaye no longer has jurisdiction to enforce the gag order.
    See Harrell v. State, 
    197 So. 2d 505
    , 506 (Fla. 1967); Parsons v. Whitaker
    Plumbing of Boca Raton, 
    730 So. 2d 839
    , 840 (Fla. 4th D.C.A. 1999); see also Fla.
    R. App. P. 9.600(b). Although the gag order, on its face, makes no reference to
    when the gag order would expire, Florida law precludes Judge Kay from enforcing
    the gag order now that he has no jurisdiction over the parties.3 Thus, the gag order,
    which the media complained prohibited the parties from speaking to the media, no
    longer seems to prohibit the parties from speaking to the media. So, interim acts
    have completely and irrevocably eradicated the effects of the alleged violation.
           But Judge Kaye argues that a reasonable expectation exists that the alleged
    violation will recur because the Florida appellate court could remand the case for
    retrial.4 We accept that every state trial-court decision in Florida may be subject to
          Judge Kaye, citing Hill v. Dekalb Reg’l Youth Det. Ctr., 
    40 F.3d 1176
     (11th Cir. 1994),
    argues that the district court’s preliminary injunction enjoined the “entire state judiciary,
    including the Florida appellate courts,” because the media sued Judge Kaye in his official
    capacity. But when we said in Hill that “[o]fficial capacity suits represent only another way of
    pleading an action against an entity of which an officer is an agent,” id. at 1184 n.16 (quoting
    Hobbs v. Roberts, 
    999 F.2d 1526
    , 1530 (11th Cir. 1993)), we were talking about qualified
    immunity and money damages, not injunctive relief.
             An injunction against a single state official sued in his official capacity does not enjoin
    all state officials from the prohibited conduct. See Kentucky v. Graham, 
    105 S. Ct. 3099
    , 3106
    n.14 (1985) (“[O]fficial-capacity actions for prospective relief are not treated as actions against
    the State.”). The district court’s preliminary injunction against Judge Kaye does not enjoin
    every other Florida state judge from enforcing a similar gag order.
         This case is different from many of the cases cited by Judge Kaye that conclude a case is not
    moot because a reasonable expectation of recurrence exists. See, e.g., City of Erie v. Pap’s
    120 S. Ct. 1382
    , 1390 (2000) (reasonable expectation of recurrence even though strip club
    owner sold strip club and was no longer involved in nude dancing industry); Allee v. Medrano,
    94 S. Ct. 2191
    , 2197 (1974) (reasonable expectation of recurrence even though union abandoned
    organizing efforts pending First Amendment challenge). Those cases involve voluntary
    cessation of the challenged activity. Often, when a party has voluntarily stopped challenged
    activity in the face of a lawsuit, a reasonable expectation may exist that the party will resume
    that activity if the case is dismissed as moot.
            Here, however, the Engle trial concluded; and the gag order’s force expired due to the
    natural progression of the litigation, not because of the voluntary acts of one party (although we
    recognize that Judge Kaye, as presiding judge, somewhat controlled the litigation’s speed). So,
    we read the cases dealing with voluntary cessation as materially different from this one.
    reversal or remand by a higher state court. But, we will not presume, or even
    suggest, that the trial conducted by Judge Kaye was conducted in error.5 Our
    presumption, in fact, goes in the opposite direction, that is, that the state trial-court
    proceedings complied with the law or, at least, contained no reversible error.
    While we recognize that remand or reversal is a procedural possibility, we refuse to
    overcome the jurisdictional bar of mootness by concluding that we have a
    reasonable expectation that a state trial court’s decision will be reversed or
    remanded. See Nationwide Mut. Ins. Co. v. Burke, 
    897 F.2d 734
    , 739-40 (4th Cir.
    1990) (concluding case moot, based on intervening events by state court, even
    though “state court determination may yet be subject to appeal and possibly to
           So, we conclude that the media’s First Amendment challenge to Judge
    Kaye’s gag order in the Engle case is moot because it presents no live case or
         We do not mean to rule that the Engle case was correctly or incorrectly decided. That
    decision is one for the Florida appellate system, and perhaps even the United States Supreme
    Court, to decide. We only mean that, for purposes of determining whether a federal case is
    moot, we are unwilling to say that pendency of a state appeal inherently means a reasonable
    expectation exists that a state trial court judgment will be reversed or remanded by that state’s
    appellate courts.
           This initial conclusion of mootness, however, does not end our inquiry.
    Judge Kaye has argued that this case fits within one of the exceptions to the
    mootness doctrine; he says it is capable of repetition yet evading review. See B&B
    Chem. Co., Inc. v. United States Envtl. Prot. Agency, 
    806 F.2d 987
    , 990 (11th Cir.
    1986). This exception applies, Judge Kaye argues, because similar disputes
    between media and Florida state judges -- including him -- about gag orders are
    likely to arise in the future and, because of the gag orders’ short-lived nature, these
    gag orders will likely expire before completion of the federal appellate process.
           The narrow capable-of-repetition exception only applies in “exceptional
    situations,” City of Los Angeles v. Lyons, 
    103 S. Ct. 1660
    , 1669 (1983), where “1)
    the challenged action is too short in duration to be fully litigated prior to its
    cessation or termination, and 2) there is a reasonable expectation that the same
    complaining party will be subject to the same action again.”6 B&B Chem. Co., 806
    F.2d at 990.
         We recognize that the second element of the capable-of-repetition exception to mootness is
    similar to the reasonable-expectation-of-recurrence element of mootness. See Jews for Jesus,
    162 F.3d at 629 n.4 (concluding that holding of no reasonable expectation of recurrence
    precludes application of capable-of-repetition doctrine). We will analyze the arguments
    separately because Judge Kaye makes different arguments about why this case has a reasonable
    expectation of recurrence and why this case is capable of repetition yet evades review.
          Judge Kaye relies on a series of Supreme Court cases and on one Eleventh
    Circuit case to say that this case falls within the exception. See Globe Newspaper
    Co. v. Superior Court for Norfolk Co., 
    102 S. Ct. 2613
     (1982); Richmond
    Newspapers, Inc. v. Virginia, 
    100 S. Ct. 2814
     (1980); Gannett Co. v. DePasquale,
    99 S. Ct. 2898
     (1979); Nebraska Press Ass’n v. Stuart, 
    96 S. Ct. 2791
    News-Journal Corp. v. Foxman, 
    939 F.2d 1499
     (11th Cir. 1991). In all of these
    cases, the federal courts applied the capable-of-repetition-yet-evading-review
    exception to conclude that media’s challenges to a state-court restrictive order were
    not moot even though the pertinent trial or hearing had ended and the restrictive
    order had expired. These cases are distinguishable and do not require us to apply
    the capable-of-repetition exception to this case. We are not convinced that a future
    repetition of the interplay of the state and federal orders like the one in this civil
    case is likely to escape review.
          First, the underlying litigation in the precedents involved criminal trials, but
    the Engle case is a civil case. This fact is important for two reasons. First, while a
    gag order may be permitted in civil cases, given that all of the cases cited by Judge
    Kaye are criminal cases, it seems that gag orders are more common in criminal
    cases; so, there may be less chance that this particular civil-litigation situation will
    be repeated.7 Second, as the Supreme Court has noted, “[m]ore often than not,
    criminal trials will be of sufficiently short duration that a closure order ‘will evade
    review, or at least considered plenary review in this Court.’” Richmond
    Newspapers 100 S. Ct. at 2820 (quoting Nebraska Press, 96 S. Ct. at 2797); see
    Globe Newspaper, 102 S. Ct. at 2618; see also U.S. Const. Amend. VI; 18 U.S.C. §
    3161 (Speedy Trial Act); Klopfer v. State of North Carolina, 
    87 S. Ct. 988
    , 994
    (1967). Therefore, a gag order in a criminal case may be more likely to evade
    review than one in a civil case.
           Even when we suppose that the capable-of-repetition exception can apply to
    gag orders in civil cases, the peculiar facts of this case do not support applying the
    capable-of-repetition exception here. Even though Florida state trial judges may in
    the future issue similar gag orders in civil cases, that challenged act is not
    necessarily “in its duration too short to be fully litigated prior to cessation or
    expiration.” See Weinstein v. Bradford, 
    96 S. Ct. 347
    , 349 (1975) (per curium).
    This particular appeal has become moot -- and thus, evades review -- not because
         The facts of the underlying Engle litigation seem unique. The litigation was brought against
    the five largest tobacco companies in the country, was the first smoker-injury class action to
    reach a jury, and resulted in the largest damage award in United States’ history. See Gordon
    Fairclough & Milo Geyelin, Tobacco Companies Rail Against Verdict, Plan to Appeal $144.87
    Billion Award, Wall. St. J., July 17, 2000, at A3.
    of the nature of the challenge, but because of the inaction of the parties. Cf. Super
    Tire Engineering Co. v. McCorkle, 
    94 S. Ct. 1694
    , 1699-1700 (1974) (economic
    strikes, by their nature, do not generally last long enough for appellate review of
    controversies); Roe v. Wade, 
    93 S. Ct. 705
    , 713 (1973) (pregnancy's duration of
    266 days would not allow time for appellate review). Therefore, we will not apply
    the capable-of-repetition exception to avoid mootness.
          In the cases cited by Judge Kaye, the media (who, like the media in this case,
    were not parties to the underlying litigation), immediately challenged the gag
    orders through a variety of judicial avenues and often became parties to the
    litigation. See Richmond Newspapers, Inc., 100 S. Ct. at 2819-20 (in state court,
    media sought hearing on motion to vacate closure on same day order issued;
    moved to intervene, which was granted; petitioned state supreme court for writ of
    mandamus and prohibition; and filed appeal from trial court’s closure order);
    Nebraska Press Ass’n, 96 S. Ct. at 2795-96 (in state court, day after gag order
    entered, media moved to intervene at trial court; 8 days later petitioned district
    court to stay order, applied to state supreme court for writ of mandamus, a stay,
    and expedited appeal); Foxman, 939 F.2d at 1505-6 (in state court, within 18 days
    of gag order, media filed motion for rehearing at district court, petitioned state
    court of appeals for certiorari review, and moved to stay restrictive order; when
    court of appeals did not respond within 60 days of filing of last brief, media filed in
    federal court). Cf. Unabom Trial Media Coalition v. U.S. Dist. Ct. for the E.D. Of
    183 F.3d 949
    , 953 (9th Cir. 1999) (concluding case unlikely to evade review
    where media delayed objections to district court’s closure orders and did not seek
    expedited review).
           In contrast, the parties in this appeal did not respond quickly to the gag order
    or exercise all judicial avenues to challenge the gag order or to defend the gag
    order speedily against challenges once they were made. The media never moved to
    intervene at the state trial court (either when the gag order was first announced or a
    year later when the tobacco companies moved to vacate the gag order), made no
    state motion to stay the gag order, nor sought any mandamus relief from the state
    supreme court.8 Instead, the media waited a year and a half before filing for
    injunctive relief in federal court. Also, no party moved for expedited review in
         These facts are also pertinent to the Younger analysis, which we will not address based on
    our conclusion of mootness. But these facts are pertinent to the mootness analysis for a different
    purpose: not to argue that the media must exhaust state remedies before taking advantage of the
    mootness exception, but instead to argue that the media did nothing for a year and that this kind
    of case is not inherently one capable of repetition yet evading review.
    state or federal court.9 Had the parties responded immediately, we (or the Florida
    Supreme Court or the United States Supreme Court) may well have been able to
    complete review of the gag order before the case became moot. See Foxman, 939
    F.2d at 1507 (noting that gag order evaded review because neither state courts nor
    federal courts completed review before gag order vacated, even though media
    challenged gag order immediately). Cf. Wakefield v. Church of Scientology, 
    938 F.2d 1226
    , 1230 (11th Cir. 1991) (concluding media’s unsuccessful efforts to
    unseal court files and gain access to contempt proceedings not of short duration
    given long period of protracted civil litigation and media’s failure to intervene or
    appeal until late in litigation).
           In short, the capable-of-repetition exception does not apply. We cannot say
    that this kind of state gag order is inherently too short in duration to allow for
    complete review. We are unconvinced of an inherent problem, given the parties’
    particular failures to respond quickly and resourcefully to Judge Kaye’s gag order
    and to the subsequent federal challenge to the state gag order. That future cases
          We note that appeals on expedited review may be resolved in relatively short order . See,
    e.g., Suntrust Bank v. Houghton Mifflin Co., ____ F.3d ___ (11th Cir. May 25, 2001) (expedited
    appeal reversing grant of preliminary injunction 35 days after district court issued order).
    similar to this one will escape review -- applying, in those cases, ordinary “case
    and controversy” standards -- is simply too doubtful.
          Even though we conclude that the appeal is moot, the media argue that we
    should follow our “usual practice” and only dismiss the appeal, leaving intact the
    district court’s federal order preliminarily enjoining Judge Kaye from enforcing the
    gag order. We recognize that sometimes, when reviewing a preliminary injunction,
    we have dismissed only the appeal without vacating the federal district court’s
    order. But in those situations, the preliminary injunction by its own terms had
    expired. See, e.g., Brooks v. Georgia St. Bd. of Elections, 
    59 F.3d 1114
    , 1122 (11th
    Cir. 1995); Tropicana Products Sales, Inc. v. Phillips Brokerage Co., 
    874 F.2d 1581
    , 1582 (11th Cir. 1989).
          We have also said, based on principles of equity, that “[w]here a case
    becomes moot after the district court enters judgment but before the appellate court
    has issued a decision, the appellate court must dismiss the appeal, vacate the
    district court’s judgment, and remand with instructions to dismiss as moot.”
    Bekier v. Bekier, 
    248 F.3d 1051
    , 1056 (11th Cir. 2001) (internal citations and
    quotation omitted); see also Ethredge v. Hail, 
    996 F.2d 1173
    , (11th Cir. 1993)
    (concluding preliminary injunction moot and, thus, vacating district court order to
    “prevent the district court’s opinion from spawning precedential10 consequences”).
            We do not have a proper case now to consider the issues of Younger
    abstention and the First Amendment. In this case, the mootness seems more
    attributable to the inaction of the media than to Judge Kaye (although he never
    sought an expedited appeal nor sought a stay of the federal order pending appeal).
    And, because the federal district court order favors the media, equity favors
    vacating the federal order in these circumstances. See United States v.
    71 S. Ct. 104
    , 107 (1950) (“When [the procedure of vacating a moot
    order] is followed, the rights of all parties are preserved; none is prejudiced by a
    decision which in the statutory scheme was only preliminary.”); see also U.S.
    Bancorp Mortgage Co. v. Bonner Mall P’ship, 
    115 S. Ct. 386
    , 391-92 (1994);
    Bekier, 248 F.3d at 1056.
          We note that generally district court decisions are only persuasive authority and have no
    binding precedential authority beyond the case in which they are entered, and not always in that
    case. See Fishman v. Tobin, Inc. v. Tropical Shipping & Const. Co., Ltd., 
    240 F.3d 956
    , 965
    (11th Cir. 2001). But we mean for this unreviewed federal order to have no collateral or future
    consequences at all.
            Moreover, the command of the district court’s federal order -- enjoining a
    state judge (who was directing only parties before him in an ongoing state case
    about their conduct relative to that case) and potentially subjecting the state judge
    to criminal contempt proceedings in federal court, see Hoover v. Wagner, 
    47 F.3d 845
    , 850-51 (7th Cir. 1995) -- is extraordinary. For these reasons, we will follow
    the more cautious approach and vacate the federal district court’s order, nullifying
    it altogether.11 See Troy St. Univ. v. Dickey, 
    402 F.2d 515
    , 516-17 (5th Cir. 1968).
            So, we DISMISS this appeal for lack of jurisdiction, VACATE the
    preliminary injunction, and REMAND for further proceedings consistent with this
          Where only a preliminary injunction is on appeal, we only have the authority to vacate that
    federal order. See Ethredge, 996 F.2d at 1175-76. Although we think that the entire case may be
    moot, that determination ultimately rests with the district court. Other issues may remain “live”
    that are not before us on appeal.