CA5 (11.19.04)

"There's no such thing as being a little bit moot."
So said the Fifth Circuit in Scruggs v. Lowman, filed yesterday. The case, an interesting study in mootness affecting appellate jurisdiction, answers this question: What's an appellate court to do with an appeal if the case became moot before the lower court rendered judgment? Must the appellate court dismiss the appeal for lack of jurisdiction, thus allowing the lower court's judgment, even though null, to stand? Answer: Even though the appellate court has no jurisdiction to decide the merits, it retains power to vacate the lower court judgment.

Eleventh Amendment and Ex Parte Young
In other news, the Fifth Circuit denied both panel and en banc rehearing in McCarthy v. Hawkins. Seven judges dissented from the denial of en banc rehearing (Smith, Jolly, Jones, Barksdale, Garza, Clement, and Pickering). The dissenters agreed with Judge Garza's panel dissent: "[A] challenge to the constitutionality of a statute underlying a [suit under Ex parte Young, 209 U.S. 123 (1908),] is a proper subject of an Eleventh Amendment immunity analysis and that consideration of such a challenge is within the scope of an interlocutory appeal from the denial of a claim of Eleventh Amendment immunity."