LIBERTY RESOURCES, INC. and CONSUMER CONNECTION v. Southeastern Pennsylvania Transportation Authority

NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-3702
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LIBERTY RESOURCES, INC. and
CONSUMER CONNECTION
v.
SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY,
Appellant
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On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 99-CV-4837)
District Judge: Honorable Lowell A. Reed, Jr., S.J.
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Argued: December 9, 2002
Before: BECKER, Chief Judge, ROTH and SMITH
Circuit Judges.
(Filed: December 23, 2002)
BRADLEY K. MOSS (ARGUED)
Schnader Harrison
Segal & Lewis LLP
1600 Market Street
Philadelphia, PA 19103
Counsel for Appellant
STEPHEN F. GOLD (ARGUED)
125 South Ninth Street
Suite 700

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Philadelphia, PA 19107
THOMAS H. EARLE
ROBIN RESNICK
Disabilities Law Project
1315 Walnut Street, Suite 400
Philadelphia, PA 19107-4798
Counsel for Appellees
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OPINION
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BECKER, Chief Judge.
Defendant-appellant, Southeastern Pennsylvania Transportation Authority
(“Septa”), appealed to this Court from the Order granting summary judgment in favor of
plaintiffs Liberty Resources, Inc. and Consumer Connection (collectively “LRI”) entered
on January 8, 2001 and from the Order for Final Injunctive Relief entered on August 31,
2001. On June 3, 2002, after the notice of appeal was filed, the District Court entered an
Order terminating the Order for Final Injunctive Relief, pursuant to the clause contained
therein which stated that Septa may seek to have the injunction terminated after six
consecutive months of compliance with the Order. Septa’s appeal from the Order for Final
Injunctive Relief is thus moot because it is no longer required to comply with the District
Court’s mandate. See Harris v. City of Philadelphia, 47 F.3d 1311, 1326 (3d Cir. 1995)
(“As a general principle, once a party has complied with a court order or injunction, and has
not been penalized or suffered any prejudice that could be remedied on appeal, the appeal is
moot.”).

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We also conclude that the appeal from the January 8, 2001 Order granting summary
judgment is moot. The doctrine of mootness requires a court to consider only those
actions which “involve a live case or controversy [that] extends through all phases of
litigation, including appellate review.” County of Morris v. Nationalist Movement, 273
F.3d 527, 533 (3d Cir. 2001). The injunctive order is inextricably tied to the summary
judgment order out of which it grew, and such conflation with the injunction moots the
earlier order as well. Indeed, counsel for plaintiffs conceded at oral argument that the
District Court’s opinion could not be used to preclude the litigation of issues in future
litigation between the parties.
While a defendant’s voluntary compliance will not render an action moot, in the case
at bar, Septa’s actions were not voluntary because it acted in response to the now
terminated Order for Final Injunctive Relief. See Bagby v. Beal, 606 F.2d 411, 414 (3d
Cir. 1979) (“The Supreme Court . . . on many occasions has held cases to be moot when
the event causing mootness was compliance with a lower court injunction.” citing DeFunis
v. Odegaard, 416 U.S. 312 (1974)).
We follow the “settled practice of vacating the district court judgment” when the
issue is moot on appeal. Bagby, 606 F.2d at 414. See also United States v.
Munsingwear, 340 U.S. 36, 41 (1950) (holding that vacatur “is commonly used . . . to
prevent a judgment, unreviewable because of mootness, from spawning any legal
consequences”). However, we will preserve LRI’s right to collect attorney’s fees. In
Morris, this Court held that “an award of attorney’s fees with respect to the trial phases of a

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case is not precluded when a case becomes moot during the pendency of an appeal.” 273
F.3d at 534.
In conclusion, Septa’s appeal will be dismissed as moot, and the matter will be
remanded to the District Court with directions to vacate the judgment entered on January 8,
2001.
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TO THE CLERK:

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Please file the foregoing Opinion.
BY THE COURT:
/s/ Edward R. Becker
Chief Judge

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