* Judge Goldberg authored this opinion before his death on

February 11, 1995.

1 United States Court of Appeals,

Fifth Circuit.

No. 94-10017.

Roy BACCUS, Individually and as Guardian of Larry Baccus, et al.,

Plaintiffs-Appellants,

v.

Linda H. PARRISH, et al., Defendants-Appellees,

John Lelsz, By and Through his Parents and Guardians, Mr. and

Mrs. John Lelsz, and Advocacy, Inc., Intervening-DefendantsAppellees.

Feb. 27, 1995.

A ppeal from the United States District Court for the North ern

District of Texas.

Before POLITZ, Chief Judge, GOLDBERG and DUHÉ, Circuit Judges.

GOLDBERG, Circuit Judge: *

The appellants challenged the creation of a task force

empowered to make recommendations to the governor of Texas on the

closing of certain schools for the mentally r etarded. The

appellants originally brought this challenge in Texas state court

and the appellees removed the case to the Federal District Court

for the Northern District of Texas. The appellants filed a motion

to remand which was subsequently denied by the district court. The

district court then dec lared the case moot and granted the

appellees' motion for summary judgment. The appellants now appeal

the district court's denial of the motion to remand and the grant

of summary judgment. We affirm.2 I

This case arises out of a twenty-year-old class action that

w as settled in 1991. The settlement in L elsz v. Kavanagh, Civil

Action No. 3-85-24 62-H, was made contingent on the closure of

certain state schools for the mentally retarded and on the

condition that Te xas would create community facilities for the

mentally retarded . In response to the settlement agreement, the

Texas Legislature passed H.B. 7, creating the Texas Department of

Mental Health and Mental Retardation State Faci lity Review Task

Force ("Task Force"). The Task Force was charged with making

recommendations to the governor regarding the closure of two state

schools. Final passage of the legislation creating the Task Force

was it self contingent on the district court's acceptance of the

settlement agreement. The district court accepted the settlement

agreement on December 30, 1991, thereby finalizin g the judgment.

Lelsz v. Kavanagh, 783 F.Supp. 286 (N.D.Tex.1991), dismissed, 983

F.2d 1061 (5th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 287,

126 L.Ed.2d 236 (1993).

Roy Baccus, individually and as a guardian of his son, Larry

Baccus, a resident of Mexia State School, filed suit in Texas state

court for declaratory and injunctive relief against the Task Force.

Baccus alleged that one of the Task Force members had been

appointed after the statutory deadline for choosing Task Force

members, and that the legislation creating the Task Force violated

the "one-subject rule" of the Texas Constitution.

Shortly after the suit was filed by Baccus, the Task Force3

recommended that the Mexia and Travis State Schools be closed. The

governor acted on the Task Force's recommendation to close the

Travis school, but did not close the Mexia school. The Task Force

then recommended closing the Fort Worth State Schoo l, which the

governor agreed to do. Baccus then amended his complaint to add

plaintiffs Diane Lois Ward, a resident of the Fort Worth school,

and Steven Terral Higgins, a resident of the Travis school.

Higgins was transferred to the Austin State School as a result of

the closure of the Travis school.

The appellees removed the case to federal court and the case

w as moved to the Western District of Texas, Waco Division. The

case was then transferred to Nor thern District of Texas, Dallas

Division, due to then-Chief Judge Barefoot Sanders' experience with

the Lelsz litigation. The appellants filed a motion to remand the

case to state court on the basis that their cause of action did not

arise under the Constitution, treaties, or laws of the United

States. The district court denied the motion to remand, finding

that the plaintiffs' claim was "in essence a collateral attack on

the Settlement Agreement" in Lelsz.

The district court permitted the Lelsz class and Advocacy,

Inc., an intervenor in Lelsz, to intervene, after which all parties

moved for summary judgment. Prior to ruling on the summary

judgment motions, the district court ordered the appellees to file

affidavits indicating the appellant s' current locations and for

both sides to submit a brief on standing to sue.

In response to the district court's order, the appellees4

submitted an affidavit from Rick Campbell, an Associate

Commissioner for Mental Health and Mental Retardation Services. In

his affidavit, Campbell set forth that the Texas Department of

Mental Health and Mental Retardation did not plan to move Larry

Baccus or Steven Terral Higgins, who were residents of the Mexia

and Austin State Schools. Diane Lois Ward, who was then a resident

of the Fort Worth school, would eventually be moved. Campbell also

stated that all state schools for the mentally retarded operated by

the Texas Department of M ental Health and Mental Retardation met

federal regulations governing intermediate care facilities for

persons with mental retardation.

In September 1993, the distr ict court issued a decision

holding that the case was moot and granting summary judgment in

favor of the appellees. The district court found that Texas was

entitled to unilaterally close these schools for the reasons

particularized, and that the appellants did n ot allege any

particularized injury traceable to the conduct of the appellees.

II

On appeal, the appellants assert that the district court erred

in denying their motion to remand and in granting summary judgment

in favor of the defendants. Each issue will be taken in turn.

A. Was There a Basis for Federal Jurisdiction?

The appellants contend that the case was improperly removed

to federal court because their ca use of action is grounded

exclusively in state law. The general removal statute provides:

Except as otherwise expressly provided by Act of Congress, any

civil action brought in a State court of which the district5

courts of the United States have original jurisdiction, may be

removed by the defendant or the defendants, to the district

court of the United States for the district and division

embracing the place where such action is pending.

28 U.S.C. § 1441(a) (1994). The district court refused to remand

the appellants' case because it deemed their cause of action to be

a collateral attack on the Lelsz settlement agreement. We review

de novo the district court's denial of the motion to remand. D iaz

v. McAl len State Bank, 975 F.2d 1145, 1147 (5th Cir.1992);

F.D.I.C. v. Loyd, 955 F.2d 316, 319 (5th Cir.1992).

Federal jurisdiction is proper where a claim brought in state

court seeks to attack or undermine an order of a federal district

court. V illarreal v. Brown Express, Inc., 529 F.2d 1219, 1221 (5th

Cir.1976); D eauville Assoc. v. Lojoy Corporation, 181 F.2d 5 (5th

Cir.1950). Further, the finding of federal jurisdiction is not

limited to direct attacks on a district court order, but may also

be found where a claim seeks to set aside a provision of a

settlement agreement in a federal case. E yak Native Village v.

Exxon Corp., 25 F.3d 773, 778-79 (9th Cir.1994).

The appellants assert that their claim is exclusively state

related, in that it is controlled by whether the Texas Legislation

at issue is violative of the Texas Constitution. While the

appellants' cause of action nominally arises under the laws and

Constitution of Texas, courts will typically look beyond the face

of a complaint to determine whether removal is proper. V illarreal,

529 F.2d at 1221; 14 Charles A. Wright, Arthur R. Miller & Edward

H. Cooper, Federal Practice and Procedure § 3734 at 543 (1985)

(citing Nunn v. Feltinton, 294 F.2d 450 (5th Cir.1961)).6

The appellants originally brought their suit to prevent the

Task Force from meeting. In their brief, the appellants concede

that their suit, if successful, would ha ve affected the L elsz

settlement agreement. Therefore, their suit is properly

characterized as a collateral attack on the settlement agreement in

Lelsz. Furthermore, the unique nature of the settlement agreement

in Lelsz heightens its conflict with the appellants' suit. The

Lelsz settlement was contingent upo n the passage of certain

remedial measures by the Texas legislature. The Texas Legislature

acted in accordance with the Lelsz settlement agreement in creating

the Task Force, and made final enactment of the Task Force

contingent on the district court 's acceptance of the settlement

agreement. The district court accepted the settlement agreement,

and thereby made the resolution of a protracted dispute dependent

upon the activities of the Task Force. Were the appellants to

succeed with their claims, the entire basis for the settlement in

Lelsz would unravel.

The appellants assert that their concern lies only in the

violations of the Texas Constitution, and that any impact on the

Task Force is incidental. Under other circumstances we might be

inclined to agree. We do not wish to paint with such broad strokes

as to say that any attack on a state's legislation may fall under

federal purview if that legislation is somehow connected to the

resolution of an independent federa l case. However, taking the

appellants' pleadings as a whole, it is clear that the thrust of

their claim is an attack on the settlement agreement in Lelsz, and7

as such, the district court properly denied the appellants' motion

to remand.

B. Is the Appellants' Claim Moot?

Article III of the United States Constitution r equires the

existence of a case or controversy in order to support federal

jurisdiction. U.S. Const., Art. III § 2, cl. 1. Events both

before and after the filing of a claim may render a claimant's case

moot. Mootness doctrine requires that the controversy posed by a

complaint be present "throughout the litigation process." C arr v.

A lta Verde Industries, Inc., 931 F.2d 1055, 1061 (5th Cir.199 1).

I f the parties do not have a legally cognizable interest i n the

o utcome of the case, then it has become moot. D epart ment of

Justic e v. Federal Labor Relations Authority, 991 F.2d 285 (5th

Cir.1993) (citing Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct.

194 4

, 1950-51, 23 L.Ed.2d 491 (1969)). In order to have a

cognizable legal interest in the outcome of a case, the appellants

must demonstrate an injury traceable to the defendants that is

susceptible to some judicial remedy. M onsanto Co. v. FERC, 963

F.2d 827, 829 (5th Cir.1992) (quoting L ewis v. Continental Bank

Corp., 494 U. S. 472, 477, 110 S.Ct. 1249, 1253, 108 L.Ed.2d 400

(1990)). Here, the appellants' interest in this suit is derived

from that of their children. As such, the question before us is

what injury have Larry Baccus, Diane Ward or Steven Higgins

suffered at the hand of the Task Force, and what remedies could the

judiciary provide.

Accor ding to the Campbell affidavit submitted by the8

appellees, Larry Baccus will not be moved by the recommendations of

the Task Force. Steven Higgins has already been moved from the

Travis school to the Austin school, but no further moves are

contemplated. Diane Ward will have to be moved when the Fort Worth

school is closed. Nonetheless, none of the claimants have received

an injury traceable to the actions of the Task Force. The parents

have cited the increased distance that will have to be traveled to

attend the new school. However, the state reserves the right to

unilaterally close a state school for administrative or financial

reasons, even if it means that certain residents will have to

relocate as a result. L elsz, 783 F.Supp. at 298. Diane Ward's

mother also alleges that her daughter was injured when she was

housed with another patient while awaiting the impending closure of

the Fort Wo rth school. However, this is not an injury that is

traceable to the appellees.

The appel lants' case is also moot because even the injuries

they are alleging are not the result of the actions of the Task

Force. The Task Force was created to make non-binding

recommendations to the governor as to which two schools would be

closed. Not only did the Task Force lack the authority to close

the schools in question, but its recommendations did not have to be

followed. In fact, despite the Task Force's recommendation to

close the Mexia school, the governor did not follow it and chose to

close another school. The Task Force's role in recommending which

schools should be closed is too attenuated to be the cause of the

appellants' injuries, even if there some cognizable injury present.9

Without an injury that is traceable to the conduct of the

appellees, the district court was cor rect in declaring the

appellants' case moot.

An exception to mootness doctrine exists where a certain harm

is capable of repetition, yet evades review. M esquite v. Aladdin's

Castle, Inc., 455 U.S. 283, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982);

Southern Pacific Terminal Co. v. Interstate Commerce Com., 219 U.S.

498, 31 S.Ct. 279, 55 L.Ed. 310 (1911). In order to benefit from

this exception the appellants must show that they may be subjected

to some future harm from the appellees. DeFunis v. Odegaard, 416

U.S. 312, 319, 94 S.Ct. 1704, 1707, 40 L.Ed.2d 164 (1974). There

is a dispute between the parties as to whether the Task Force has

continuin g authority to recommend the closure of schools.

Appellants contend that the Task Force does h ave continuing

authority to make closure recommendations, wherea s the appellees

assert the legal authority of the Task Force has expired.

Without resolving these factual difference between the

parties, we hol d that the "capable of repetition, yet evading

review" exception to the mootness doctrine provides no shelter for

the appellants because they have not alleged any legally cognizable

injury traceable to the appellees. The only possible harm the

appellants have alleged consists of the burdens associated with

being forced to travel a greater distance to school when a closer

one has been closed. First, the actual closing of state schools

cannot be laid at the feet of the Task Force when its role is

exclusively to make non-binding recommendations to the govern or.10

Second, the closing of schools for administrative reasons is a

prerogative of the State and is not a legally cognizable injury

inflicted by the Task Force.

For the forgoing reasons, the decision of the district court

in denying the appellants motion to remand and granting summary

judgment in favor of the appellees is AFFIRMED.