802 F.3d 1090 - Norsworthy v. Beard — 802 F.3d 1090

¶1 *1091Jose A. Zelidon-Zepeda, Deputy Attorney General; Thomas S. Patterson; Supervising Deputy Attorney General; Jonathan L. Wolff, Senior Assistant Attorney General; Kamala D. Harris, Attorney General of California, San Francisco, CA, for Defendants-Appellants.

¶2Herman J. Hoying and Christopher J. Banks, Morgan Lewis & Bockius LLP, San Francisco, CA; Ilona M. Turner, Jennifer Orthwein, and Shawn T. Meerkam-per, Transgender Law Center, Oakland, CA, for Plaintiff-Appellee.

¶3Paul R.Q. Wolfson and Thomas C. Kost, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC; Alan E. Sehoen-feld and Adriel I. Cepeda Derieux, Wilmer Cutler Pickering Hale and Dorr LLP, New York, N.Y.; Felicia H. Ellsworth, Wilmer Cutler Pickering Hale and Dorr LLP, Boston, MA, for Amici Curiae American Civil Liberties Union et al.

¶4Sanford Jay Rosen and Aaron J. Fischer, Rosen Bien Galvan & Grunfeld LLP, San Francisco, CA, for Amici Curiae Bay Area Lawyers for Individual Freedom.

¶5Barry Levenstam, Jenner & Block LLP, Chicago, IL; Lisa J. Kohn, Jenner & Block LLP, Los Angeles, CA; Devi M. Rao, Jenner & Block LLP, Washington, DC, for Amici Curiae Medical and Mental Health Professionals: World Professional Association for Transgender Health and GLMA: Health Professionals Advancing LGBT Equality.

¶6Before: STEPHEN REINHARDT, A. WALLACE TASHIMA, and CONSUELO M. CALLAHAN, Circuit Judges.

¶8OPINION

¶9PER CURIAM:

¶10Plaintiff Michelle Norsworthy, a transgendered woman, has been incarcerated in the California prison system since 1987. In 2000, she was diagnosed with gender' dysphoria and, several years thereafter, petitioned the California Department of Corrections and Rehabilitation (“CDCR”) for sex reassignment surgery, a procedure that would transform her sex characteristics from male to female. After CDCR denied the petition, Norsworthy sued, alleging that the denial amounted to cruel and unusual punishment under the Eighth Amendment. The district court issued a preliminary injunction ordering the defendants to provide Norsworthy with sex reassignment surgery. CDCR appealed under 28 U.S.C. § 1292(a)(1). This court stayed the preliminary injunction pending appeal.

¶11While this appeal was pending— one day prior to oral argument — Norswor-*1092thy was released on parole from the California prison system. The defendants contend that the case became moot once CDCR released Norsworthy. We agree. “An inmate’s release from prison while his claims are pending generally will moot any claims for injunctive relief relating to the prison’s policies unless the suit has been classified as a class action.” Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir.1995). Norsworthy does not seriously dispute that the case became moot upon her release.

¶12Here, the district court entered a mandatory injunction requiring CDCR to perform sex reassignment surgery. Although automatic vacatur is “the ‘established practice’ ... whenever mootness prevents appellate review,” an exception to this practice exists when a case is mooted “not due to ‘happenstance’ but ‘when the appellant has by his own act caused the dismissal of the appeal.’ ” Dilley, 64 F.3d at 1369-70 (quoting Ringsby Truck Lines, Inc. v. Western Conference of Teamsters, 686 F.2d 720, 722 (9th Cir.1982)). Defendants argue that vacatur is appropriate as to the entirety of the district court’s determination because an “independent parole suitability review process” mooted the case. Where “the facts surrounding” a prisoner’s release “are not sufficiently developed in the record ... to determine” whether the release occurred through happenstance or the defendants’ actions, the appropriate course is to remand to the district court to determine whether to vacate its order. Id. at 1371. We therefore remand to the district court so that it can determine whether this appeal became moot through happenstance or the defendants’ own actions.1 If the latter is the *1093case, the district court should consider the factors under Ringsby to determine whether to vacate its preliminary injunction order.

¶13Accordingly, this appeal is dismissed as moot, and we remand this case to the district court so that it can determine whether to vacate its preliminary injunction order, as well as to consider the question of the award of attorneys’ fees.

¶14DISMISSED and REMANDED with directions.

¶15. The dissent charges that our decision to remand because it is unclear whether defendants' actions mooted the case "approaches sophistry.” Our precedent, however, requires that we remand in such circumstances. See Dilley, 64 F.3d at 1371. Moreover, although our dissenting colleague may be willing to accept the defendants' assertions regarding the independence of the parole review process, we are not so convinced. Before Nor-sworthy filed this suit, a panel of the parole board had on several prior occasions denied her parole. It last did so in March 2013 for a three-year term, meaning that Norsworthy's next parole hearing should in the ordinary course have come in March 2016. Four months after Norsworthy filed this suit in February 2014, however, the parole board decided to advance the date of her next parole hearing. That hearing was then delayed and, in the meantime, the district court granted the motion for a preliminary injunction in April 2015. A little over a month later, Nor-sworthy finally had a parole hearing, at which point a parole board panel approved her application.

¶16By statute, both the full parole review board and governor can review a panel decision within a certain time. See Cal.Penal Code §§ 3041, 3041.2. Here, if both the full parole board and governor had let these statutory periods lapse without action, the parole determination would have become final on October 18, 2015. As it happened, this court asked the parties on July 20 to provide an update regarding Norsworthy's parole and address whether the parole board panel’s decision mooted the case. In their response, defendants informed us for the first time that the full parole board had at some point approved the panel's decision and that defendants "anticipate[d]” a final decision from the governor by August 7 that, if favorable to Norsworthy, would insure that she would "be released from prison in August.” The governor did indeed approve Norsworthy’s parole on August 7. Nevertheless, Norsworthy argued that oral argument should proceed as scheduled on August 13 because CDCR planned to release her on August 14, meaning that she would still be incarcerated on the date of oral argument. Defendants reply— filed on. August 12, the eve of oral argument — . informed us that Norsworthy had in fact been released that very morning. The reply did not divulge why Norsworthy’s release date had changed.

¶17Far from "sophistry,” these coincidences indicate that there is at least some chance that defendants influenced the. parole process. At this point, however, all we can say is that the circumstances of Norsworthy’s release are *1093somewhat unusual. Because we can say no more, we are unwilling to express a view of what happened without full knowledge of all the facts that the district court should consider in the first instance. •

¶18CALLAHAN, Circuit Judge,

¶19concurring in the dismissal and dissenting from the remand:

¶20Everyone agrees that this appeal is moot. Ms. Norsworthy has been released from, custody by the California Department of Corrections and Rehabilitation (“CDCR”). Accordingly, in addition to dismissing this appeal we should vacate the mandatory preliminary injunction ordering CDCR to provide Ms. Norsworthy with sex reassignment surgery.

¶21The majority’s remand is based on legal error and unnecessarily prolongs this litigation. The majority admits that vacatur is appropriate unless “the appellant has by his own act caused the dismissal of the appeal.” Dilley v. Gunn, 64 F.3d 1365, 1369-70 (9th Cir.1995). The majority does not say that this has happened; it only protests that the facts surrounding Ms. Norsworthy’s release “are not sufficiently developed.”

¶22This approaches sophistry. The’process by which the Parole Board determined that Ms. Norsworthy’s confinement was no longer required and the Governor’s review of that decision are set forth fully in the documents that have been submitted to the Court. There is no real doubt that the Parole Board and the Governor are not subject to or responsible to the CDCR.1

¶23Moreover, the remand simply encourages unnecessary litigation over a mandatory preliminary injunction that everyone agrees is moot. In contrast, the vacatur of the injunction would have no effect on Ms. Norsworthy’s assertion that she remains entitled to attorney’s fees.

¶24The mandatory preliminary injunction should be vacated.