Pro-Life Cougars, et al v. Univ of Houston, et al

United States Court of Appeals
Fifth Circuit
F I L E D
May 7, 2003
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
No. 02-20868
_______________
PRO-LIFE COUGARS AND JEANNE S. TULLOS,
Plaintiffs-Appellees,
VERSUS
UNIVERSITY OF HOUSTON, ET AL.,
Defendants,
DR. ELWYN C. LEE,
IN HIS OFFICIAL CAPACITY AS VICE PRESIDENT
FOR STUDENT AFFAIRS OF THE UNIVERSITY OF HOUSTON;
DR. WILLIAM F. MUNSON,
IN HIS OFFICIAL CAPACITY AS ASSISTANT VICE PRESIDENT
FOR STUDENT DEVELOPMENT & DEAN
OF STUDENTS UNIVERSITY OF HOUSTON,
Defendants-Appellants.
_________________
Appeals from the United States District Court
for the Southern District of Texas
m H-02-CV-219
____________

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Before SMITH, DENNIS, and CLEMENT,
Circuit Judges.
PER CURIAM:*
University of Houston officials appeal a
preliminary injunction, and refusal to dissolve
that injunction, prohibiting the enforcement of
the university’s student expressive activity pol-
icy. Because, during the pendency of this
appeal, the district court granted summary
judgment for Pro-Life Cougars, we dismiss the
appeal as moot.
I.
Pro-Life Cougars, a registered student or-
ganization at the university, applied for a per-
mit to display a “Justice for All Exhibit.” The
organization requested to display the exhibit in
Butler Plaza, a high-pedestrian traffic area
located in the center of the university’s main
campus. The exhibit, which measures approxi-
mately fifty by sixty feet, advocates a view-
point on abortion and related issues.
Dean of Students William Munson denied
the permit after determining the event was
“potentially disruptive.” Under the universi-
ty’s policy on expressive student activity, pro-
posed events deemed potentially disruptive by
the dean of students could not be held in But-
ler Plaza.1 Instead, Munson gave Pro-Life
Cougars the option of displaying the Justice
for All Exhibit in three alternate sites, none of
which the organization considered acceptable.
Pro-Life Cougars sued Munson, Vice Presi-
dent for Student Affairs Dr. Elwyn C. Lee, and
the university, contending that the policy
violates the First and Fourteenth Amendments
of the United States Constitution. The district
court preliminarily enjoined university officials
from enforcing the policy so as to impose any
prior restraint in Butler Plaza. The order
stated that the policy delegated to the dean of
students “overly broad, unfettered, and abso-
lute discretion to impose prior restraint on
student expressive activities.”
The university adopted a successor policy
banning all student expressive activity from
Butler Plaza.2 The district court denied the
university’s motion to dissolve the preliminary
injunction, finding that the new policy did not
moot the first policy, primarily because the
university continued to defend its constitution-
ality. The university appealed the preliminary
injunction and refusal to dissolve.
Pro-Life Cougars amended its complaint to
add claims arguing that the second policy also
violates the First Amendment. After denying
the university’s motion to stay proceedings
pending appeal, the district court granted par-
tial summary judgment on March 13, 2003,
declaring the first policy unconstitutional es-
sentially for the same reasons stated in the pre-
liminary injunction order.
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
1 The university maintains that all student
groups were denied access to Butler Plaza as an
interim measure while the student expressive ac-
tivity policy was under review.
2 Pro-Life Cougars was still able to display the
Justice for All Exhibit in Butler Plaza. In addition
to enjoining enforcement of the first policy, the
preliminary injunction specifically prevented the
university from denying Pro-Life Cougars access
to Butler Plaza.

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II.
We have appellate jurisdiction to review a
preliminary injunction and the refusal to dis-
solve that injunction. 28 U.S.C. § 1292(a)(1).
Where, however, a decision on the merits is
rendered during the appeal of a preliminary in-
junction, the preliminary injunction becomes
moot, and we lose jurisdiction.3 In other
words, the preliminary injunction merges with
the decision on the merits. The defendants
“will be able to obtain as broad a review on the
merits of the order granting the permanent
injunction as they could have obtained on ap-
peal from the order granting the preliminary
injunction.” La. World Exposition, 746 F.2d
at 1038.
Of course, this is not the case where the
final judgment does not resolve the issue raised
by the appeal of the preliminary injunction.
For example, in Stacey G. v. Pasadena Indep.
Sch. Dist., 695 F.2d 949, 955 (5th Cir. 1983),
we reviewed a preliminary injunction requiring
a school district to pay the interim private
school costs of a child who sought the provi-
sion of public special education services. The
final judgment requiring the school district to
provide special education services did not
moot the subject of the preliminary injunction.
Id. Here, the issues raised by the preliminary
injunction and final disposition of Pro-Life
Cougar’s claims are the sameSSthe constitu-
tionality of the first policy.
The appeal is DISMISSED for want of jur-
isdiction. We express no view on the merits of
this appeal or any related litigation.
3 E.g., Grupo Mexicano de Desarrollo, S.A. v.
Alliance Bond Fund, Inc., 527 U.S. 308, 314
(1999) (“Generally, an appeal from the grant of a
preliminary injunction becomes moot when the trial
court enters a permanent injunction, because the
former merges into the latter.”); La. World Ex-
position, Inc. v. Logue, 746 F.2d 1033, 1038 (5th
Cir. 1984) (“Once an order granting a permanent
injunction is entered, the order granting the prelimi-
nary injunction is merged with it, and an appeal is
proper only from the order granting the permanent
injunction.”).

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