Appeal from orders of the United States District Court for the Southern District of New York, Richard Owen, J., refusing to convene a three-judge court and denying preliminary and permanent injunctions against the Cadet Honor Code of the United States Military Academy. Appeal dismissed as moot.
Smith and Feinberg, Circuit Judges and Tenney, District Judge.*fn*
In early June 1976, Cadet Timothy D. Ringgold filed suit in the United States District Court for the Southern District of New York against the United States of America and officials of the Department of the Army and the United States Military Academy, seeking to prevent defendants from applying the Academy's Cadet Honor Code to him and others similarly situated. After denying preliminary motions by Ringgold,*fn1 Judge Richard Owen in September 1976 granted summary judgment for defendants. On appeal, Ringgold presses in this court several constitutional challenges to the Honor Code, but we have not considered them because the appeal is moot.
In April 1976, at a meeting with the Undersecretary of the Army, Ringgold had asserted that there were many instances of cheating at the Academy. Word of this disclosure reached the Cadet Honor Committee, which eventually concluded that Ringgold had violated the Honor Code prohibition on "toleration" of the offenses of others. On August 17, 1976, before Ringgold's case was submitted to the Board of Officers under the Army's procedural regulations, Ringgold voluntarily resigned from the Academy, effective September 1, 1976.
Ringgold's resignation moots this appeal. Although the suit was filed as a class action, Judge Owen never certified the class so we have only the claim of Ringgold before us. The Article III limitation of federal jurisdiction to "Cases" and "Controversies" has been interpreted to mean that we are "without power to decide questions that cannot affect the rights of litigants in the case" before us. North Carolina v. Rice, 404 U.S. 244, 246, 30 L. Ed. 2d 413, 92 S. Ct. 402 (1971). When he resigned voluntarily, after filing suit and while the district judge was considering the case on the merits, Ringgold removed himself from the Honor Code's purview. Thus, a decision on the validity of the Code or its application would not now affect him. This case does not fall within the exception to the mootness doctrine for disputes that are "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 55 L. Ed. 310, 31 S. Ct. 279 (1911). Ringgold's own action, not the nature of his claim or the alleged wrong, has frustrated his quest for review. And although Ringgold has applied to the Academy for readmission, we cannot assume that he will be readmitted, again violate the Honor Code and be prosecuted once more.*fn2 Moreover, nothing prevents another cadet from raising the same general attack on the Honor Code or the procedures for administering it.
Appeal dismissed as moot, with instructions to the district court to vacate the judgment on ...