USCA1 Opinion

October 10, 1996

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 96-1629

TROY E. BROOKS,

Plaintiff, Appellant,

v.

NEW HAMPSHIRE SUPREME COURT, ET AL.,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________
Selya and Stahl, Circuit Judges.
______________

____________________

Philip T. Cobbin on brief for appellant.

________________
Jeffrey

R. Howard, Attorney General, and Stephen J. Judge, Sen

________________

Assistant Attorney General, on brief for appellees.

____________________

____________________

Per Curiam.
__________

Plaintiff-appellant Troy

E. Brooks appeals

from

the district court's

the abstention

(1971).

dismissal of his

doctrine of

Younger v.
_______

case based upon

Harris, 401
______

U.S. 37

We summarily affirm.

I. Mootness
________

Subsequent

case, the

to the

district court's

New Hampshire

dismissal of

Supreme Court issued

its published

opinion in Petition of Troy E. Brooks, 140 N.H.

___________________________

The

of

state court held

prior

Supreme

sufficiently

interests

scrutiny."

Court Rule

court

alleged conduct "would

37(17)(a)

tailored

accordingly

The

813 (1996).

that "[t]he confidentiality provisions

narrowly

and

this

to

have

also noted

not run

meet

and

compelling

failed

that

(g) were

not

State

first

amendment

Brooks'

relevant

afoul of the

rules as

they

have

been amended," and declared

that it would

contempt powers against Brooks pursuant to

not use its

the pre-amendment

Rule 37(17)(g).

In light

claims

of this decision, we find that Brooks' federal

for equitable relief are moot.

the Constitution, federal courts

ongoing

cases

controversy

or

may adjudicate only actual,

controversies.

requirement

"Under Article III of

subsists

through

This

all

federal judicial proceedings, trial and appellate."

case-or-

stages

of

Lewis v.
_____

Continental Bank Corp., 494 U.S. 472, 477 (1990).

______________________

This court

may address

raised it.

mootness although

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neither party has

See
___

13A

Charles A.

Wright, Arthur

R.

Miller &

Edward H.

3533.1,

pp. 226-27

"Where declaratory relief

is sought,

Cooper, Federal Practice & Procedure,

______________________________

(1984 &

1996 Supp.).

plaintiff must

over

show that there is

present rights

of 'sufficient

requiring adjudication."

a substantial controversy

immediacy

and reality'

Boston Teachers Union, Local 66 v.

________________________________

Edgar, 787 F.2d 12, 15-16 (1st Cir. 1986).

_____

The live controversy

ended

when

the

New

between Brooks and the

Hampshire

Supreme

Court

defendants

issued

its

published opinion declaring that the challenged provisions of

Rule

37(17) violated the First Amendment and stating that it

would not use its contempt

powers against Brooks pursuant to

the pre-amendment Rule 37(17)(g).

declaratory

relief

that

complaint

was obtained

decision.

Brooks

amendment by

rights

as

attorneys

Brief,

All of the injunctive

Brooks

as

sought

a result

states in

is engaged

regarding his

p. 3.

his

federal

the state

court's

his brief that

defendants is subject to

he

of

in

in

right

an

"the post

suit

impinging Mr. Brooks'

ongoing

as a

and

controversy with

father."

Appellant's

Those hypothetical future claims, however, are

not

of sufficient

case-or-controversy

"immediacy

and reality"

requirement.

to satisfy

the

Boston Teachers Union,

________________________

Local 66, 787 F.2d at 15-16.

________

This

mootness

case does

doctrine

not

for

fall within

voluntary

-3-

the exception

cessation

of

to the

allegedly

illegal

conduct.

defendants from

claims

and then

became moot."

Given

declaring

exception

is

meant

defeating a plaintiff's efforts

adjudicated

actions,

16.

"This

simply

by

stopping

resuming their 'old

to

to have its

their

challenged

ways' once

the case

Boston Teachers Union, Local 66, 787

________________________________

the

the

New

Hampshire

challenged

unconstitutional,

there is "'no

the wrong will be

repeated.'"

Supreme

prevent

Court's

pre-amendment

F.2d at

decision

provisions

reasonable expectation that

Preiser v. Newkirk,
_______
_______

422 U.S.

395, 402 (1975) (citations omitted).

II. Attorney's Fees

_______________

Brooks

argues

that

the

district

court

erred

in

dismissing, rather

it

included a

Quackenbush
___________

than staying, the federal

request for

power

to

attorney's fees

v. Allstate Ins. Co., 116

___________________

(1996), the Supreme

dismiss

action because

and costs.

S.

Ct. 1712,

In

1728

Court held that "federal courts have the

or

remand

cases

based

on

abstention

principles only where the relief being sought is equitable or

otherwise discretionary.

we conclude

that the

Because

this was a damages action,

District Court's remand

unwarranted

application

Quackenbush,
___________

116 S.

of

Ct. at 1728.

the

order was

Burford
_______

Because

suit was not an action for damages, and the

an

doctrine."

Brooks' federal

relief it sought

-4-

"is

equitable or

otherwise discretionary,"

the abstention-

based dismissal was within the court's power. 1

1

The district court's dismissal of this case is summarily

_________

affirmed.
________

See Loc. R. 27.1.

___

____________________

1 To the extent
1

that Brooks argues that

the requirements

of Younger have not been met, this court already decided that
_______
issue in its

previous decision. See Brooks v.

___ ______

New Hampshire
_____________

Supreme Court, 80 F.3d 633, 638-39 (1st Cir. 1996).

_____________

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