* Pursuant to 5TH CIR. R. 47.5, we have determined that this opinion should

not be published and is not precedent except under the limited circumstances set

forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 96-30036

_______________

CHRISTINA M. GOUDEAU,

Plaintiff-Appellant,

VERSUS

DENTAL HEALTH SERVICES, INC.,

d/b/a Landmark Dental Care,

JAMES L. JEANSONNE,

BARRY D. GATHRIGHT,

CLEVELAND C. CARPENTER III,

and MYRON D. CULBERSON,

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Middle District of Louisiana

(93-CV-449)

_________________________

August 29, 1997

Before JOLLY, SMITH, and DENNIS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Christina Goudeau appeals a FED. R. CIV. P. 11 sanction barring

her from introducing the testimony of a witness at trial. We

dismiss the appeal.
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I.

This case arises out of Goudeau's employment as a dental

assistant at Dental Health Services, Inc. (“Dental Health”). In

1990, Goudeau and another dental assistant, Darla Mickelborough,

began to suspect that a management program Dental Health had

purchased from a California consulting company was actually a

vehicle of indoctrination for the Church of Scientology. According

to Goudeau, when they expressed concern about this, they were

discriminated against and, at least in her case, ultimately

terminated.

Goudeau hired attorney Durward Casteel and filed a religious

discrimination complaint with the EEOC, which assigned investigator

Rosabela Miranda to the case. On July 10, 1992, Mickelborough came

to Casteel's office and was interviewed over the telephone by

Miranda. At the end of the interview, Casteel told Miranda and

Mickelborough that he would have the tape of it transcribed and

reviewed by Mickelborough for accuracy. Casteel subsequently made

a number of substantive changes to the transcript and had Mickelborough approve it as altered, although without specifically

indicating to her what he had changed.

Goudeau obtained a right-to-sue letter from the EEOC and filed

suit against Dental Health in May 1993. Dental Health filed a

motion to dismiss under FED. R. CIV. P. 12(b)(6), which the district

court converted into a motion for summary judgment upon its

consideration of material outside the complaint. In opposition to
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the motion, Goudeau submitted an affidavit by Mickelborough to

which the altered transcript was attached. 

The “transcript,” despite having been substantively changed in

a number of places, still appeared in the question-and-answer form

of an actual interview. Goudeau's counsel also submitted a

separate affidavit in which he stated: “On July 10, 1992, I

participated in a telephone conference with the EEOC investigator,

Rosabela Miranda, and Darla Mickelborough, a former employee of

[Dental Health]. Mrs. Mickelborough executed an affidavit which

incorporated a transcript of that telephone conference.” Both

affidavits were sworn.

The district court denied the motion for summary judgment on

February 22, 1994, and the case proceeded to discovery. On

July 22, 1995, Dental Health deposed Mickelborough and discovered

that the “transcript” that had been submitted in opposition to

summary judgment was actually an embellished version of Mickelborough's interview. Dental Health moved for rule 11 sanctions on

August 31. The district court submitted to a magistrate judge both

the sanctions issue and the separate question of whether Dental

Health was an “employer” within the meaning of title VII of the

Civil Rights Act of 1964 § 701(b), 42 U.S.C. § 2000e(b).

On October 10, 1995, the district court dismissed the suit for

lack of subject matter jurisdiction, adopting the magistrate

judge's conclusion that Dental Health did not fall within

title VII's definition of “employer.” Goudeau filed a notice of
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appeal from this judgment on November 6. On December 4, the court

adopted the magistrate judge's recommendation that the motion for

sanctions be denied but ordered that “as a sanction for violating

Rule 11, the plaintiff be barred from introducing the testimony of

Darla Mickelborough, in any form, at any trial or evidentiary

hearing in this matter. On January 4, 1996, Goudeau entered a

separate notice of appeal from that order.

We stayed Goudeau's first appeal (the one challenging the

dismissal for lack of subject matter jurisdiction) when the Supreme

Court agreed to hear Walters v. Metropolitan Educ. Enters.,

117 S. Ct. 660 (1997), a case presenting precisely the same issue

as to title VII's definition of “employer” that had led the

district court to dismiss the instant case. After Walters was

decided, the parties filed a joint motion to dismiss the first

appeal pursuant to FED. R. APP. P. 42(b), which this court granted

on April 17, 1997. The core of the case is thus now back before

the district court, and the previously-entered final judgment

remains in place. The second appeal, which was stayed pending the

outcome of the first, is presently before this court.

II.

Although the parties have not briefed the issue, we have a

continuing obligation to examine the basis of our jurisdiction.

See, e.g., Burt v. Ware, 14 F.3d 256, 257 (5th Cir. 1994) (per
6

curiam). In particular, “[b]ecause of our limited jurisdiction, we

must always be vigilant to ensure that we have subject matter

jurisdiction, addressing the issue sua sponte if need be.” Ceres

Gulf v. Cooper, 957 F.2d 1199, 1207 n.16 (5th Cir. 1992).

“It has long been settled that a federal court has no

authority 'to give opinions upon moot questions or abstract

propositions, or to declare principles or rules of law which cannot

affect the matter in issue in the case before it.'” Church of

Scientology v. United States, 506 U.S. 9, 12 (1992) (quoting Mills

v. Green, 159 U.S. 651, 653 (1895)). That is, “[a]n actual case or

controversy must exist . . . when a suit is instituted and at all

stages of appellate review in order to avoid mootness.” Brown v.

Liberty Loan Corp., 539 F.2d 1355, 1358 (5th Cir. 1976). A

question is moot, inter alia, when “an event occurs while a case is

pending on appeal that makes it impossible for the court to grant

'any effectual relief whatever' to a prevailing party.” Church of

Scientology, 506 U.S. at 12 (quoting Mills, 159 U.S. at 653)).

The appeal of the dismissal for lack of subject matter

jurisdictionSSlack of an “employer” within the meaning of title

VII, to be preciseSShas now itself been voluntarily dismissed, and

the mandate has issued. The district court has taken no further

action on the case, and the final judgment it entered in October

1995 remains in place. But the sanction Goudeau is appealing still

goes only to the admissibility of Mickelborough's testimony at
 

1 In the interest of judicial economy, we note that even were the final

judgment reopened and the case placed back on the trial calendar, the sanctions

would be non-appealable until the entry of a new final judgment. This court has

unambiguously held that rule 11 sanctions may not be appealed under the

collateral order doctrine. See Schaffer v. Iron Cloud, Inc., 865 F.2d 690,

691-92 (5th Cir 1989); Click v. Abilene Nat'l Bank, 822 F.2d 544, 545 (5th Cir.

1987). Although we have created an exception to this rule for certain appeals

by sanctioned attorneys, see, e.g., Chaves v. The M/V Medina Star, 47 F.3d 153,

155-56 (5th Cir. 1995), it does not apply here. 

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trial, a trial that the final judgment indicates will never take

place. That is, so long as the final judgment remains intact, the

sole effect of the sanction is to bar Goudeau from introducing

testimony at a trial that will never happen, rendering her appeal

of it moot. Because mootness is jurisdictional, we therefore must

dismiss the appeal. See, e.g., Escobedo v. Estelle, 655 F.2d 613,

614 (5th Cir. Unit A Sept. 1981) (“[M]ootness goes to the heart of

the federal courts' subject-matter jurisdiction under article III,

section 2 of the Constitution, and [] we are bound to ascertain

whether we possess that subject-matter jurisdiction whether it is

challenged by the litigants or not . . . .”).1

The appeal is DISMISSED for want of jurisdiction.