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U.S. v. JONES
Opinion Summary — United States Court of Appeals, Fourth Circuit (NIEMEYER, Circuit Judge)
Factual and Procedural Background
The Citadel, a state-supported military college, maintained a male-only admissions policy until 1996. In early 1993 Shannon Faulkner applied and was admitted without The Citadel's knowledge that she was female; upon discovery her admission was revoked. Faulkner sued alleging sex-based equal protection violations; the United States later intervened. The district court issued a preliminary injunction permitting Faulkner to attend day classes but not join the Corps of Cadets. After a 1994 bench trial the district court found The Citadel's male-only policy unconstitutional and ordered Faulkner admitted; this court affirmed the merits in part and modified the remedy in 1995, allowing admission by August 12, 1995 unless a satisfactory parallel program for women were approved by the district court. The State proposed a parallel program at Converse College (SCIL); discovery and scheduling disputes followed and trial was postponed and then stayed pending the Supreme Court's review in United States v. Virginia (VMI). Faulkner briefly joined the Corps in August 1995 but withdrew. Nancy Mellette moved to intervene; the district court allowed intervention, dismissed Faulkner's claim as moot, and denied class certification (Oct. 3, 1995). After the Supreme Court's June 26, 1996 VMI decision, The Citadel announced it would admit women and admitted four women in August 1996. Mellette and the United States filed motions seeking declarations and remedial orders; the district court issued an August 14, 1996 remedial order declaring the Converse plan inadequate, enjoining The Citadel to adopt a policy admitting women, and directing development of an assimilation plan. While this appeal was pending, the United States and The Citadel negotiated a consent decree entered May 23, 1997 resolving issues between them. The Citadel and South Carolina appealed portions of the August 14, 1996 order and earlier orders; Mellette cross-appealed the denial of class certification.
Legal Issues Presented
- Whether portions of the district court's August 14, 1996 order were moot or void for lack of jurisdiction (standing) after The Citadel abandoned its male-only policy and admitted women.
- Whether the district court had jurisdiction to grant the United States' motion directing development of an assimilation plan and to place assimilation under court supervision.
- Whether the district court properly declared the proposed parallel program at Converse College inadequate without a prior trial or factfinding and despite South Carolina's abandonment of that plan.
- Whether the district court abused its discretion in earlier orders (July 22, 1994; July 24, 1995; October 3, 1995) regarding the Equal Protection determination, discovery/scheduling, and intervention.
- Whether the district court abused its discretion in denying Mellette's motion for class certification and whether Mellette had standing to represent a class.
Arguments of the Parties
Appellants (The Citadel and State of South Carolina)
- Contended that the district court's orders (including the August 14, 1996 order) were moot and unnecessary because The Citadel abandoned its male-only policy and had admitted women.
- Argued Mellette lacked standing and that a motion to dismiss her claims for lack of standing was pending in district court.
- Challenged the district court's orders of July 22, 1994; July 24, 1995; and October 3, 1995.
Appellees
- The United States (government) sought only a remedial order to identify steps and measures appropriate for an orderly integration of women into the Corps of Cadets and an implementation schedule.
- Nancy Mellette (private plaintiff/intervenor) sought a declaratory judgment that The Citadel's male-only policy was unconstitutional, that the Converse plan was inadequate, an injunction preventing resumption of the male-only policy, and a timetable for a remedial plan under court supervision; she cross-appealed the denial of class certification.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| United States v. Virginia, 518 U.S. 515, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) | Holding that VMI's male-only policy violated Equal Protection and that the Mary Baldwin parallel program was inadequate as a remedy. | Used to explain The Citadel's decision to admit women and to assess adequacy of parallel programs; prompted the district court's and parties' remedial actions. |
| United States v. Virginia ("VMI I"), 976 F.2d 890, 900 (4th Cir. 1992), aff'd, 518 U.S. 515, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) | Earlier Fourth Circuit discussion of available remedy (parallel program) in similar VMI litigation. | Referenced in background and to contextualize remedies considered available before Supreme Court's decision. |
| Faulkner v. Jones, 10 F.3d 226, 233 (4th Cir. 1993) | Affirmance of preliminary injunction permitting Faulkner to attend day classes; reasoning about disruption and not altering the military program. | Cited for background on earlier interlocutory relief and court's view on day classes versus Corps integration. |
| Faulkner v. Jones, 858 F. Supp. 552, 569 (D.S.C. 1994) | District court's 1994 merits finding that The Citadel's male-only policy violated the Equal Protection Clause and remedy ordering admission. | Referenced as the district court judgment underlying subsequent appellate review and remedial proceedings. |
| Faulkner v. Jones, 51 F.3d 440, 442 (4th Cir.), cert. denied, 516 U.S. 938, 116 S.Ct. 352, 133 L.Ed.2d 248 (1995) | Fourth Circuit's 1995 affirmance on merits and modification of remedy (admission deadline unless satisfactory parallel program offered). | Formed the procedural context requiring either admission by specified date or presentation of acceptable parallel program. |
| Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60, 112 S.Ct. 2130, 2135-36, 119 L.Ed.2d 351 (1992) | Articulates the three-part Article III standing test (injury in fact, causation, redressability). | Applied to conclude Mellette lacked standing as of August 1996 because The Citadel had rescinded its male-only policy and Mellette had committed to West Point. |
| Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975) | Defines the purpose of standing doctrine—whether litigant entitled to have court decide the dispute. | Referenced in explaining standing's role in separation of powers and litigant entitlement. |
| Iron Arrow Honor Soc'y v. Heckler, 464 U.S. 67, 71-72, 104 S.Ct. 373, 375-76, 78 L.Ed.2d 58 (1983) | Voluntary discontinuance of challenged activity does not necessarily moot a lawsuit. | Used to evaluate mootness; court nonetheless found strong evidence that The Citadel was unlikely to return to the male-only policy. |
| United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897-98, 97 L.Ed. 1303 (1953) | Standards about reasonable likelihood of repetition when defendant voluntarily ceases challenged conduct. | Quoted to support conclusion there was "no reasonable likelihood" the wrong would be repeated given Citadel's actions and consent decree. |
| County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979) | Similar authority on mootness and cessation of challenged conduct. | Referenced in connection with mootness analysis supporting vacatur of parts of the district court's order. |
| Ardrey v. United Parcel Serv., 798 F.2d 679, 682 (4th Cir. 1986) | District court's discovery orders reviewed for abuse of discretion. | Applied to affirm the district court's July 24, 1995 discovery/scheduling order. |
| Hill v. Western Elec. Co., Inc., 672 F.2d 381, 385-86 (4th Cir. 1982) | District court's intervention determinations reviewed for abuse of discretion. | Applied to affirm the district court's October 3, 1995 order allowing Mellette to intervene. |
| Burks v. Oklahoma Publ'g Co., 81 F.3d 975, 978 (10th Cir. 1996) | District court's scheduling orders reviewed for abuse of discretion. | Used by analogy to support appellate review standard for the district court's scheduling decision. |
| In re A.H. Robins Co., Inc., 880 F.2d 709, 728-29 (4th Cir. 1989) | District court's class certification determinations reviewed for abuse of discretion. | Applied to affirm denial of class certification; court also noted Mellette lacked standing to represent a class. |
Court's Reasoning and Analysis
The court reviewed the August 14, 1996 order in parts. It distinguished the government's motion from Mellette's: the government's motion sought court-supervised development of an assimilation plan, and the court found jurisdiction to grant that relief. The Citadel conceded at oral argument that its challenge to the government's portion was waived and moot in light of the consent decree entered May 23, 1997; the Fourth Circuit affirmed the district court insofar as it directed development and court review of an assimilation plan.
As to Mellette's motion, the court applied the Lujan standing test (injury in fact, causation, redressability). It concluded that by June 28, 1996 The Citadel had rescinded its male-only policy, and Mellette had in April 1996 committed to attend USMAPS and later received an appointment to West Point. Because Mellette no longer suffered a concrete, particularized, actual or imminent injury as of August 1996, she lacked Article III standing and the district court's grant of her motion was void for lack of jurisdiction.
The court further reasoned that the district court's declaration that the proposed Converse College parallel program violated the Equal Protection Clause was unsupported: no trial or factfinding on that program had been conducted, discovery had been incomplete, the trial date had been stayed pending VMI, and South Carolina subsequently abandoned pursuit of the Converse plan in favor of admitting women to The Citadel. For these reasons the district court had no basis to find the abandoned Converse plan inadequate.
On mootness and voluntary cessation, the court acknowledged the principle that voluntary discontinuance does not automatically moot a case (Iron Arrow) but found persuasive evidence—The Citadel's immediate adoption of coeducation after VMI, active recruitment of women, admission of four women, and a later consent decree with the government—demonstrating there was no reasonable likelihood the male-only policy would be resumed. Accordingly, injunction provisions directed at preventing resumption were vacated where they rested solely on Mellette's motion.
Finally, the court reviewed earlier district-court orders for abuse of discretion: it declined to revisit the July 22, 1994 merits finding (previously reviewed), and it affirmed the July 24, 1995 discovery/scheduling order and the October 3, 1995 intervention order as within the district court's discretion. It also affirmed denial of class certification on the ground Mellette lacked standing and the district court did not abuse its discretion.
Holding and Implications
HOLDING: The Fourth Circuit vacated portions of the district court's August 14, 1996 order and affirmed the remainder. Specifically, the court vacated (1) the district court's declaration that the proposed parallel program at Converse College violated the Equal Protection Clause and (2) the injunction enjoining The Citadel from continuing its formerly male-only admissions policy insofar as those provisions rested on Mellette's motion (because Mellette lacked standing). The court affirmed the portions of the August 14 order granting the United States' motion to develop and supervise an assimilation plan. The court also affirmed the district court's orders of July 22, 1994; July 24, 1995; and October 3, 1995, and affirmed the district court's denial of class certification.
Implications: The direct effect is that the district court's August 14, 1996 order is partly vacated and partly affirmed as described above; the government's remedial supervision and assimilation-plan authority remained intact (and later the parties entered a consent decree resolving issues between the United States and the defendants). The opinion does not purport to announce a new legal rule beyond applying established standing, mootness, and abuse-of-discretion principles to the facts of this case.
Disposition: August 14, 1996 order affirmed in part and vacated in part; orders of July 22, 1994, July 24, 1995, and October 3, 1995 affirmed.
August 14, 1996 Order affirmed in part and vacated in part and Orders of July 22, 1994, July 24, 1995, October 3, 1995, affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge
WIDENER and Judge HAMILTON joined.
OPINION
NIEMEYER, Circuit Judge.
This appeal adds yet another chapter to the continuing litigation over The Citadel's formerly male-only admissions policy. Following the Supreme Court's decision in United States v. Virginia, 518 U.S. 515, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) (holding that VMI's unconstitutional male-only admissions policy could not be remedied with the parallel women's program at Mary Baldwin College), The Citadel announced that it had abandoned its male-only policy and was admitting women to its Corps of Cadets. Thereafter, on August 14, 1996, the district court entered an order declaring that The Citadel's earlier proposed parallel program at Converse College was unconstitutional and enjoining The Citadel to end its male-only policy. Contending that the court's order, as well as other orders entered earlier by the court, were moot and unnecessary, The Citadel and the State of South Carolina appealed. Nancy Mellette, the private plaintiff in this case, cross-appealed, challenging the district court's refusal to certify a class action under Federal Rule of Civil Procedure 23.
For the reasons that follow, we vacate portions of the district court's August 14, 1996 order and affirm the remainder. We also affirm the other orders challenged by The Citadel and Mellette.
I
The Citadel is a state-supported four-year military college located in Charleston, South Carolina. Throughout its 154-year history, until 1996, The Citadel maintained a policy of admitting only men to its Corps of Cadets. It did admit women to other educational programs.
In early 1993, The Citadel admitted Shannon Faulkner, not aware of her gender. When it discovered that Faulkner was female, however, it revoked her admission. Faulkner filed this action, on her own behalf and on behalf of a class, alleging that The Citadel's actions denied her equal protection of the laws because of her sex in violation of the Fourteenth Amendment and seeking an order compelling her admission and prohibiting The Citadel's discriminatory admissions policy. Shortly thereafter, the United States intervened as plaintiff and named South Carolina as an additional defendant.
In August 1993, the district court entered a preliminary injunction, ordering that Faulkner be allowed to attend day classes at The Citadel but not, pending the litigation, to enter the Corps of Cadets. In affirming that order, we concluded that "[w]hile the presence of a female in the day classes may be disruptive in the first days, an order permitting Faulkner's attendance is not tantamount at this time to integrating or altering the military program at The Citadel." Faulkner v. Jones, 10 F.3d 226, 233 (4th Cir. 1993). We also noted that as of that time South Carolina had not indicated an interest in creating a parallel women's program, which we had indicated, in connection with similar litigation involving the Virginia Military Institute, was available to remedy an equal protection violation. See United States v. Virginia (" VMI I"), 976 F.2d 890, 900 (4th Cir. 1992), aff'd, 518 U.S. 515, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996).
Following a two-week bench trial in the spring of 1994 on the merits of Faulkner's claim, the district court found that The Citadel's male-only admissions policy violated the Equal Protection Clause and ordered The Citadel to admit Faulkner to the Corps of Cadets beginning in the fall of 1994 and to plan for the admission of other women in the fall of 1995. See Faulkner v. Jones, 858 F. Supp. 552, 569 (D.S.C. 1994). Pending appeal, we stayed that order with the effect that it postponed Faulkner's admission date. In April 1995, we affirmed the district court's determination on the merits but modified the remedy. See Faulkner v. Jones, 51 F.3d 440, 442 (4th Cir.), cert. denied, 516 U.S. 938, 116 S.Ct. 352, 133 L.Ed.2d 248 (1995). Recognizing that August 12, 1995, was the latest date that Faulkner could enter the Corps of Cadets if she were to be admitted, we ruled that she would have to be admitted at that time, unless before then the State of South Carolina offered a satisfactory parallel program for women, approved by the district court.
In response to our decision, The Citadel and the State of South Carolina filed a proposed plan on June 5, 1995, to create a parallel program at Converse College called the South Carolina Institute of Leadership for Women (SCIL). The discovery that followed thereafter in connection with the district court's consideration of the plan was highly contested, requiring continuous court intervention. On July 24, 1995, the district court issued an order concluding that discovery could not be completed before August 12, 1995, when Faulkner was required to report as a member of the Corps of Cadets, and accordingly it scheduled a discovery cutoff for October 15, 1995, with a trial to commence on November 6, 1995. In ruling, the court said:
The problem is, the defendants have not done what they said they would. Instead of speeding the discovery process up, they have slowed it down. Instead of being open and fair as they promised, it has been business as usual for the defendants. They have failed to respond properly to discovery requests in violation of the rules of this court, and they have made legitimate objections to discovery that seem to serve little or no useful purpose for them but delay the completion of discovery significantly.
From entry of this order, The Citadel and South Carolina sought a stay from us in order to postpone Faulkner's entry into the Corps of Cadets, which we denied. See Faulkner v. Jones, 66 F.3d 661, 662 (4th Cir.), cert. denied, 516 U.S. 938, 116 S.Ct. 352, 133 L.Ed.2d 248 (1995).
Faulkner joined the Corps of Cadets on August 12, 1995. Shortly thereafter, however, on August 18, 1995, she withdrew because of illness.
When Faulkner withdrew from The Citadel, The Citadel and South Carolina moved to dismiss her suit as moot. In response Nancy Mellette, another applicant to The Citadel, moved to intervene as a plaintiff. With her motion, she also renewed Faulkner's motion for class certification, on which the court had not yet ruled. By order dated October 3, 1995, the district court granted Mellette's motion to intervene, granted the defendant's motion to dismiss Faulkner's claim as moot, and denied Mellette's motion for class certification.
In the fall of 1995, while the parties were preparing to go to trial on the adequacy of South Carolina's proposed parallel program at Converse College, the Supreme Court granted a writ of certiorari in the VMI case. In that case, the Fourth Circuit had approved Mary Baldwin College as an appropriate parallel program to remedy the equal protection violations in Virginia. See United States v. Virginia (" VMI II"), 44 F.3d 1229 (4th Cir. 1995), rev'd, 518 U.S. 515, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). Accordingly, the district court granted The Citadel's motion to stay trial of South Carolina's proposed program at Converse College until the Supreme Court had ruled in the VMI case on the program at Mary Baldwin College.
While waiting for the Supreme Court to issue its opinion in VMI and about six months after the district court granted Mellette's motion to intervene as the private plaintiff, Mellette decided not to attend The Citadel. Instead, in April 1996 she accepted the offer of the United States Military Academy at West Point to enter its preparatory program. She is now enrolled at West Point.
On June 26, 1996, the Supreme Court issued its decision in VMI. See United States v. Virginia, 518 U.S. 515, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). The Court affirmed VMI I, holding that Virginia's exclusion of women from VMI denied women equal protection under the Fourteenth Amendment, and reversed VMI II, holding that the parallel program at Mary Baldwin College was not adequate to remedy the equal protection violation because it did not afford women the educational experience equal to that which VMI afforded men. The Court stated:
In myriad respects other than military training, VWIL does not qualify as VMI's equal. VWIL's student body, faculty, course offerings, and facilities hardly match VMI's. Nor can the VWIL graduate anticipate the benefits associated with VMI's 157-year history, the school's prestige, and its influential alumni network.Id. at ___, 116 S.Ct. at 2284.
Two days after the Supreme Court announced its decision in VMI, The Citadel's Board of Visitors voted to end the male-only admissions policy and to admit women to The Citadel's Corps of Cadets. It announced, "Effective immediately, The Citadel will accept qualified female applicants into the Corps of Cadets." Following this announcement, The Citadel actively sought to recruit female applicants, and four women entered the Corps of Cadets in August 1996.
A few weeks later, Mellette filed a motion requesting that the district court enter an order (1) declaring that the Converse College remedial plan was inadequate in view of the Supreme Court's decision, (2) permanently enjoining The Citadel and South Carolina from continuing or resuming the male-only admissions policy, and (3) setting a timetable for the development and adoption of a remedial plan for the full integration of women into the Corps of Cadets. The United States also filed a motion, but it requested only a remedial order for the assimilation of women into the Corps of Cadets. The Citadel and South Carolina opposed these motions as moot. They also filed a motion for an order declaring that the July 22, 1994 order (finding that The Citadel had violated the Equal Protection Clause) was moot and dismissing Nancy Mellette's suit on the ground that she had decided months before not to attend The Citadel. The Citadel also submitted a plan to the court for assimilating women into the Corps of Cadets.
On August 14, 1996, the district court issued a final remedial order on these motions except the motion to dismiss Mellette's suit. After noting in the order that it had previously found the male-only admissions policy to violate the Equal Protection Clause, the court declared that the parallel program at Converse College did not conform with the Equal Protection Clause of the Fourteenth Amendment; it enjoined The Citadel to adopt a policy that requires the admission of women; and it enjoined The Citadel to develop a plan for the assimilation of women into the Corps of Cadets, subject to court review.
After the four female applicants entered the Corps of Cadets in the fall of 1996, two claimed that they had been hazed and, at the end of their first semester, withdrew from The Citadel. In view of the federal government's interest in the case, the government and The Citadel thereafter negotiated a consent decree for the assimilation of female cadets, which was entered on May 23, 1997. This order resolved all issues between the United States and the defendants.
From the August 14, 1996 order, The Citadel and South Carolina took this appeal. In addition to challenging the August 14 order, they challenge the district court's orders of July 22, 1994 (declaring the male-only admissions policy unconstitutional), July 24, 1995 (postponing trial of the Converse College program), and October 3, 1995 (granting Mellette's motion to intervene). Mellette filed a crossappeal challenging the district court's order of October 3, 1995 (refusing to certify a class action under Federal Rule of Civil Procedure 23).
II
We address first The Citadel's contention that the district court's August 14, 1996 order should be vacated because of mootness. The Citadel notes that following the Supreme Court's decision in VMI, it not only abandoned the male-only admissions policy but also admitted four women. It argues that the only reason Mellette pursued the order was to enhance her claim for attorneys fees. It also contends that Mellette lacks standing and that a motion to dismiss her claims was, and remains, pending in the district court.
The August 14 order was entered on the motions of both Mellette and the government. Mellette's motion sought a declaratory judgment that The Citadel's male-only admissions policy is unconstitutional and that the proposed parallel program at Converse College is "inadequate." It also sought an injunction prohibiting The Citadel from resuming the male-only admissions policy and setting a timetable for the development of a remedial plan under court supervision. The government's motion was limited to a request that the court "identify steps and measures necessary and appropriate for an orderly integration of women into the Corps of Cadets and an implementation schedule."
Following a hearing, the district court granted the motions of both Mellette and the government and entered an order on August 14, 1996, which (1) recited the fact that it had held The Citadel's male-only admissions policy unconstitutional in 1994 and had been affirmed in doing so by the Fourth Circuit; (2) declared the proposed parallel program at Converse College in violation of the Equal Protection Clause; (3) enjoined The Citadel to adopt a policy requiring the admission of women to the Corps of Cadets; and (4) enjoined The Citadel to develop a plan "for the assimilation of women," which provides for court review "on a regular, timely basis."
Because of the consent order entered between the United States and the defendants on May 23, 1997, while this appeal was pending, The Citadel agreed at oral argument that its challenge to the order granting the government's motion has been waived and is moot. Furthermore, the government has a legitimate interest in enforcing the laws against sexual discrimination, and, in our order in Faulkner v. Jones, 51 F.3d at 448, we remanded the case to the district court to establish a schedule for defendants to "formulate, adopt, and implement a plan that conforms with the Equal Protection Clause . . . and to oversee implementation of the state's plan." Notwithstanding the Supreme Court's VMI decision limiting the remedies available and The Citadel's announcement abandoning its male-only admissions policy, the district court had jurisdiction to grant the government's motion to develop an assimilation plan under the court's supervision. Any doubt about whether The Citadel and South Carolina could challenge the court's jurisdiction was eliminated when the defendants voluntarily negotiated with the government and agreed to a consent order adopting a plan. Accordingly, insofar as the August 14 order grants the government's motion and directs The Citadel to develop a plan "for the assimilation of women" under court review, we affirm the order.
Insofar as the August 14 order grants Mellette's motion, however, the defendant's position has merit. At the time that the district court granted Mellette's motion, it had before it The Citadel's motion to dismiss Mellette as a plaintiff on the grounds that she lacked standing. The Citadel renews this argument on appeal. It points out, first, that on June 28, 1996, it officially rescinded its male-only admissions policy, meaning that as of that date Mellette was not legally prohibited from attending The Citadel. Furthermore, Mellette acknowledges that in April 1996, she signed a contract with West Point obliging her to attend the United States Military Academy Preparatory School (USMAPS) in Fort Monmouth, New Jersey, for the 1996-1997 school year. This was the first step in Mellette's efforts to receive an appointment to West Point itself. More importantly, in making this commitment, Mellette demonstrated that she had no intention of attending The Citadel. Her only interest in The Citadel in August 1996, when the district court granted her motion, was a hypothetical one based on the possibility that her efforts to attend West Point might fail. In fact, in the spring of 1997 Mellette received an appointment to West Point, where she is currently enrolled. Under these circumstances, we agree with the defendant that Mellette lacks standing to prosecute this lawsuit and, therefore, that the district court's August 14 order granting Mellette's motion is void for lack of jurisdiction.
Before a party may pursue a claim in federal court, she must have standing. The standing doctrine derives from the constitutional principle of separation of powers, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60, 112 S.Ct. 2130, 2135-36, 119 L.Ed.2d 351 (1992), and is directed at the question "whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). In order to have standing, a plaintiff must meet three criteria:
First, the plaintiff must have suffered an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan, 504 U.S. at 559-61, 112 S.Ct. at 2136 (alteration in original) (citations, internal quotation marks, and footnote omitted). The party seeking to establish standing carries the burden of demonstrating each of these three elements. Id. at 561, 112 S.Ct. at 2136-37.
In this case, the injury originally suffered by Mellette was The Citadel's refusal to admit her into its Corps of Cadets because of her sex. In light of The Citadel's subsequent adoption of a coeducational admissions policy in June 1996 and Mellette's own decision in April 1996 to attend USMAPS, however, we do not believe that as of August 1996 when the district court granted her motion, Mellette was suffering from any "injury" which met the requirements set forth by the Supreme Court in Lujan. As explained above, to meet the requirements of the standing doctrine, a party's injury must be "concrete and particularized" and "actual or imminent," not "conjectural or hypothetical." Once The Citadel removed the barriers which prevented Mellette from attending the school, and once Mellette herself decided to attend another military college, she ceased to possess standing to sue for Article III purposes. Consequently, when the district court granted her motion it lacked jurisdiction and, therefore, the part of its August 1996 order granting Mellette's motion is void.
Moreover, the second prong of the district court's August 14 order, declaring that the proposed parallel program at Converse College violated the Equal Protection Clause, followed from no prior trial or fact-finding. Indeed, in the summer of 1995, after South Carolina decided that it would propose a parallel program at Converse College, the court concluded that discovery had not been sufficiently completed on the subject to try the case and review the program. To remedy that deficiency, the court postponed trial until November 1995. That trial date was subsequently stayed pending Supreme Court review of the VMI case. To date, no trial has been conducted on the parallel program. More importantly, however, no trial is now necessary because South Carolina has abandoned its pursuit of the proposed parallel program for women at Converse College as a remedy and has decided instead to admit women to The Citadel. We conclude that for this reason also the district court had no basis to find that the abandoned program at Converse College, on which it had never conducted a hearing, was inadequate.
In its August 14 order, the district court also granted Mellette's motion for injunctive relief. But, again, we have been directed to no evidence that the injunction was necessary or justified. Nothing in the record indicates that The Citadel had any intention of returning to a male-only admissions policy. Indeed, all of the evidence points the other way. The Citadel adopted a policy of co-education immediately after the Supreme Court's decision in VMI; it announced the change and actively solicited applications from women; and it admitted four women in the fall of 1996. Its intent not to return to the male-only admissions policy was manifested again later when it negotiated and agreed to a consent decree with the government, to which it is now legally bound, addressing assimilation problems. While it is well established that the voluntary discontinuance of challenged activities by a defendant does not necessarily moot a lawsuit, see Iron Arrow Honor Soc'y v. Heckler, 464 U.S. 67, 71-72, 104 S.Ct. 373, 375-76, 78 L.Ed.2d 58 (1983), the Citadel and South Carolina have pointed to powerful evidence that "`there is no reasonable likelihood that the wrong will be repeated.'" Id. (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897-98, 97 L.Ed. 1303 (1953) (citation omitted)); see also County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979). We note additionally that the United States, which does have standing on these matters, has not argued that South Carolina and The Citadel are likely to revert to the male-only policy. It has argued only that the decision to admit women includes within it a requirement that the court adopt a meaningful plan to make the policy work.
For all of the reasons given, we vacate the provisions of the district court's August 14, 1996 order declaring that the proposed parallel program at Converse College violates the Equal Protection Clause and enjoining The Citadel from continuing its formerly male-only admissions policy, and we affirm the remainder of that order.
III
The Citadel and South Carolina also request that we vacate the district court's orders of July 22, 1994 (finding that defendants violated the Equal Protection Clause), July 24, 1995 (delaying trial on the parallel program at Converse College), and October 3, 1995 (granting Mellette's motion to intervene). We have already reviewed the July 1994 order, see Faulkner v. Jones, 51 F.3d at 450, and refuse to do so again. Moreover, we find that the district court's July 1995 order regulating discovery and scheduling the trial date, as well as its October 1995 order allowing Mellette to intervene, are matters of discretion, on which we find no abuse. See Ardrey v. United Parcel Serv., 798 F.2d 679, 682 (4th Cir. 1986) (district court's discovery orders reviewed for abuse of discretion); Hill v. Western Elec. Co., Inc., 672 F.2d 381, 385-86 (4th Cir. 1982) (district court's intervention determinations reviewed for abuse of discretion); Burks v. Oklahoma Publ'g Co., 81 F.3d 975, 978 (10th Cir. 1996) (district court's scheduling orders reviewed for abuse of discretion).
Similarly, on Mellette's cross-appeal seeking to review the district court's October 1995 order refusing to certify a class action in this case, we affirm. Not only does Mellette lack standing to represent a class, but she has also not demonstrated that the district court abused its discretion. See In re A.H. Robins Co., Inc., 880 F.2d 709, 728-29 (4th Cir. 1989) (noting that district court's class action certification determinations are reviewed for abuse of discretion).
In summary, we vacate a portion of the August 14, 1996 order and affirm the remainder, and we affirm the district court's orders of July 22, 1994, July 24, 1995, and October 3, 1995.
IT IS SO ORDERED.
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