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Earl Ringo, Jr.; Russell Bucklew; Leon Taylor; John E. Winfield v. George A. Lombardi; Terry Russell; John Doe

May 8, 2012

EARL RINGO, JR.; RUSSELL BUCKLEW; LEON TAYLOR; JOHN E. WINFIELD; RODERICK NUNLEY; JOHN C. MIDDLETON; JEFFREY R. FERGUSON; ALLEN L. NICKLASSON; JOSEPH FRANKLIN; MARK CHRISTESON; WILLIAM L. ROUSAN; DAVID BARNETT; CECIL CLAYTON; MICHAEL ANTHONY TAYLOR; HERBERT SMULLS; DAVID ZINK, APPELLANTS,
v.
GEORGE A. LOMBARDI; TERRY RUSSELL; JOHN DOE, APPELLEES.



Appeal from the United States District Court for the Western District of Missouri.

The opinion of the court was delivered by: Riley, Chief Judge.

Submitted: March 15, 2012

Before RILEY, Chief Judge, SMITH and SHEPHERD, Circuit Judges.

Appellants are Missouri state prisoners convicted of first-degree murder and sentenced to death. George A. Lombardi is the Director of the Missouri Department of Corrections (DOC) and is ultimately responsible for executions in Missouri.

Lombardi oversees and supervises the execution process, and has authority to change the type and dosage of drugs used in Missouri's lethal-injection protocol. Terry Russell is the Warden of the Eastern Regional Diagnostic and Correctional Center where the executions are performed.

Missouri's lethal-injection protocol involves administering three drugs: sodium thiopental to anesthetize the prisoner and render him unconscious, pancuronium bromide to paralyze him and stop his breathing, and potassium chloride to stop the prisoner's heart. On December 2, 2010, appellants filed suit in the district court seeking a declaration that Missouri's lethal-injection protocol violates the Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq., and the Federal Food, Drug and Cosmetic Act (FDCA), 21 U.S.C. § 301 et seq. Appellants also requested "an injunction prohibiting [Lombardi and the other appellees] from carrying out executions in a manner that violates these statutes."

On August 15, 2011, the district court granted appellees' summary judgment motion, concluding appellants lacked standing under Article III of the United States Constitution because they failed to "demonstrate a cognizable injury in fact."Appellants appeal from the district court's final order and judgment. We conclude the case is moot, and we reverse and vacate the district court's judgment.

I. DISCUSSION

"The exercise of judicial power under Art. III of the Constitution depends on the existence of a case or controversy." Preiser v. Newkirk, 422 U.S. 395, 401 (1975). "The express limitation of the Declaratory Judgment Act to cases 'of actual controversy' is explicit recognition of this principle." Golden v. Zwickler, 394 U.S. 103, 110 (1969) (quoting 28 U.S.C. § 2201). "[A]n actual controversy must be extant at all stages of review, not merely at the time the complaint is filed." Preiser, 422 U.S. at 401.

"When a case on appeal no longer presents an actual, ongoing case or controversy, the case is moot and the federal court no longer has jurisdiction to hear it." Neighborhood Transp. Network, Inc. v. Pena, 42 F.3d 1169, 1172 (8th Cir. 1994). "As mootness relates to justiciability and our power to hear a case, 'we must consider it even though the parties have not raised it.'" Bacon v. Neer, 631 F.3d 875, 877 (8th Cir. 2011) (quoting Olin Water Servs. v. Midland Research Labs., Inc., 774 F.2d 303, 306 n.3 (8th Cir. 1985)).

"[A] federal court has neither the power to render advisory opinions nor 'to decide questions that cannot affect the rights of litigants in the case before them.'" Preiser, 422 U.S. at 401 (quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971) (per curiam)).

To be cognizable in a federal court, a suit 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.

Rice, 404 U.S. at 246 (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41 (1937) (internal marks omitted)).

The difference between an abstract question and a 'controversy' contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties ...


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