UNITED STATES v. BOARD OF MANAGERS OF WALKER TOWER CONDOMINIUM (2021)

United States Court of Appeals, Ninth Circuit.2021-07-22No. No. 20-55781

Summary · law.co

Holding. The appellate court vacated the district court's order enforcing the consent judgment and dismissed the appeal as moot because the property sale had already been completed, leaving no live controversy for the court to address.

The United States brought a civil forfeiture action against a condominium at Walker Tower in New York. The condominium's board agreed to surrender all rights in the property through a consent judgment but later attempted to exercise a right of first refusal under the building's bylaws when the government moved to sell the property to a third party. The district court ruled that the consent judgment extinguished the board's right of first refusal and denied the board's request to stay that order.

By the time the board appealed, the government had already completed the sale to a third party. The appellate court concluded that the appeal had become moot because no effective relief could be granted—even if the board were correct that its right of first refusal survived the consent judgment, that right could not be exercised once the sale was finished. The board's only remaining remedies, if any, would need to be pursued in state court.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a moot appeal should be dismissed
Whether a right of first refusal survives a consent judgment in a forfeiture action
Whether an appellate court has jurisdiction when the underlying harm cannot be remedied

Procedural posture

The board appealed the district court's order denying its request to stay enforcement of a consent judgment and upholding forfeiture of its right of first refusal to purchase a condominium unit.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

The United States initiated this civil forfeiture action against a Walker Tower condominium located in New York, New York. The Board of the Walker Tower association entered a consent judgment with the government, agreeing to surrender “all right, title, and interest” in the property. When the government sought to sell the property to a third party, the Board attempted to invoke its right of first refusal (“ROFR”) as provided by the condominiums bylaws.

After the United States moved to enforce the consent judgment, the district court held that the Board had forfeited its ROFR. The district court denied the Boards request to stay its order. The Board did not request a stay before this court. The government proceeded to sell the property to a third party. The Board appealed. Having completed the sale, the United States now argues the appeal is moot. We agree.

Article III jurisdiction must exist “at all stages of review, not merely at the time the complaint is filed.” Vegas Diamond Props., LLC v. FDIC, 669 F.3d 933, 936 (9th Cir. 2012) (simplified). And jurisdiction is lost “if no present controversy exists as to which an appellate court can grant effective relief.” Id. That is the case here. Even if the consent judgment did not extinguish its ROFR, the Board would not be able to exercise that right because the sale has already occurred. See In Def. of Animals v. U.S. Dept of Interior, 648 F.3d 1012, 1013 (9th Cir. 2011) (per curiam) (appeal to prevent roundup of wild horses moot where roundup had already been conducted).

The Board argues that the appeal is not moot because there are still potential avenues for relief. But before the district court, the Board moved only for a declaration that its ROFR survived the consent judgment and for an order directing the government to close the sale with the Boards designee. The sale is complete, however, and the harm to the Board cannot be “undone” by granting the Boards requested relief. Am. Horse Prot. Assn, Inc. v. Watt, 679 F.2d 150, 151 (9th Cir. 1982) (per curiam). As the Board conceded, any relief must now be sought in state court. This appeal is therefore moot.

When an appeal becomes moot, our “ordinary practice” is to vacate the order or judgment being appealed. Lewis v. Continental Bank Corp., 494 U.S. 472, 482, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990); see United States v. Munsingwear, Inc., 340 U.S. 36, 40, 71 S.Ct. 104, 95 L.Ed. 36 (1950) (“When that procedure is followed, the rights of all parties are preserved[.]”). Accordingly, we VACATE the district courts order granting the governments motion to enforce the consent judgment and DISMISS the appeal.

FOOTNOTES

. We also grant the Boards unopposed motion for judicial notice (Dkt. No. 40), and the governments motion to file a late response to the Boards motion (Dkt. No. 45).