IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-30779

DARWIN YARLS, JR., LEROY SHAW, JR., and DOUGLAS BROWN, on 

Behalf of Themselves and All Others Similarly Situated, 

 Plaintiffs–Appellants,

v.

DERWYN BUNTON, in his official capacity as Chief District Defender for 

Orleans Parish, Louisiana; JAMES T. DIXON, JR., in his official capacity as 

Louisiana State Public Defender, 

 Defendants–Appellees.

Appeal from the United States District Court

for the Middle District of Louisiana

Before JOLLY, ELROD, and WILLETT, Circuit Judges. 

DON R. WILLETT, Circuit Judge

This is a constitutional challenge to Louisiana public defenders’ 

practice—now discontinued—of placing indigent, non-capital defendants on 

waitlists for appointed counsel. Appellants allege this practice, the result of 

chronic budgetary shortfalls, violates poor defendants’ Sixth and Fourteenth 

Amendments rights to a speedy trial and to assistance of counsel. They seek a 

declaratory judgment that such waitlists are unconstitutional and injunctive 

relief requiring Appellees—the Louisiana State Public Defender and the Chief 

District Defender for Orleans Parish—"to provide competent counsel to 

United States Court of Appeals

Fifth Circuit

FILED

October 4, 2018

Lyle W. Cayce

Clerk

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2

individuals on waiting lists.” (Interestingly, Appellees neither resist federal 

jurisdiction nor oppose Appellants’ requested relief.)

Appellants dub this “a constitutional crisis of unprecedented dimension.”

Certainly, the constitutional safeguards due indigent arrestees awaiting 

representation is a weighty matter. So too is another constitutional safeguard: 

the mootness doctrine derived from Article III’s “case or controversy”

requirement. And on mootness, all parties concede a fundamental point: The

Louisiana Legislature’s recent $5 million reallocation of indigent-defense 

funding has eliminated all waitlists for non-capital defendants. As the State 

Public Defender plainly puts it, “Current waitlists in the districts for noncapital defendants are non-existent.”1 Appellants discount the revenue boost 

as an insufficient stopgap given public defenders’ caseloads. The legal upshot, 

though, is unmistakable: The controversial waitlists are no longer in 

controversy. And no waitlists = no live case or controversy = no jurisdiction.

We thus DISMISS this appeal as moot.

I

Louisiana funds representation for non-capital defendants through 

legislative appropriations at the state level, supplemented by traffic tickets 

and other local fines assessed by each defender district. During a 2015 funding 

shortage, the Orleans Public Defender (OPD) and about 30 other districts 

implemented Restriction of Services (ROS) protocols as a triage measure. The 

protocols resulted from a statewide audit that determined, “in light of current 

caseloads,” OPD was unable to “provide constitutional, ethical representation 

to its clients” as required by the Rules of Professional Conduct. Because the 

 

1 The State Public Defender’s brief adds, “None of the districts currently in restriction 

of services report a waitlist for appointment of counsel for non-capital defendants.”

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Rules are black letter law in Louisiana,2 ROS protocols prescribed waitlists for 

non-capital defendants to keep attorney caseloads within reasonable limits.

This suit originated when Appellants—Darwin Yarls, Jr., Leroy Shaw, 

and Douglas Brown—requested appointed counsel after being arrested on noncapital felony charges in Orleans Parish. The state court appointed OPD to 

represent them. But OPD responded that, due to excessive caseloads and staff 

shortages, it could not accept Appellants as clients and instead placed them on 

a waitlist for appointed counsel. Appellants thus lacked representation for 

preliminary hearings to scrutinize the allegations against them, challenge 

probable cause determinations, or request lower bail. Appellants were 

ultimately detained without counsel for several months. Each has since been 

released.

Appellants filed a proposed class action under 42 U.S.C. § 1983, seeking 

to represent a class of Orleans Parish arrestees who had been waitlisted.

Appellants first requested a declaratory judgment that the waitlists violated 

their Sixth Amendment right to counsel and their Fourteenth Amendment 

rights to equal protection and due process. They asserted that due to Chief 

District Defender Derwyn Bunton’s and OPD’s refusal to represent them, they 

faced “an unduly heightened risk of prolonged and unnecessary pretrial 

detention.” Appellants later amended their complaint to seek injunctive relief

too, specifically requesting that Appellees be ordered to develop a plan to 

provide appointed counsel for each waitlisted defendant and to submit various 

reports.

After several months of negotiation, the parties submitted a Joint Motion 

for Final Declaratory and Partial Injunctive Relief. The accompanying 

 

2 See Walker v. DOT, 817 So. 2d 57, 60 (La. 2002) (“[T]his court has determined that 

the ethical rules which regulate attorneys’ law practices have been recognized as having the 

force and effect of substantive law.”).

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Proposed Order declared that OPD waitlists violated proposed class members’ 

constitutional rights. The district court went another route. It dismissed the 

case, citing Younger abstention, justiciability, and federalism concerns.3

Appellants then filed an unopposed Motion for Relief from Judgment. The 

district court denied the motion, and Appellants appealed.

Then in 2017, after this appeal was filed, the Louisiana Legislature 

amended the Public Defender Act to steer $5 million more to district defenders 

for non-capital indigent defense. Nobody disputes that this added revenue 

eliminated non-capital waitlists. Appellants remained unmoved, however, 

branding Louisiana’s funding for indigent defense “inherently inadequate and 

unreliable,” adding, “conditions in Orleans may soon deteriorate once again,” 

necessitating future waitlists.

II

We review a district court’s Rule 12(b)(6) dismissal de novo and may 

affirm “on any grounds supported by the record, including a party’s lack of 

standing.”4 Lack of standing means lack of jurisdiction. And lack of jurisdiction 

means lack of judicial power. The nub of today’s “dispute” is undisputed: 

Louisiana no longer maintains waitlists for non-capital defendants. The case, 

thus moot, must be dismissed.

A

Article III’s case-or-controversy requirement imposes an “irreducible 

constitutional minimum of standing,”5 which consists of three elements: (1) a 

plaintiff must have suffered an “injury in fact—an invasion of a legally 

protected interest which is . . . concrete and particularized, and . . . actual or 

 

3 See Younger v. Harris, 401 U.S. 37 (1971) (generally barring federal courts, except 

in certain circumstances, from interfering with ongoing state criminal proceedings).

4 Hosein v. Gonzales, 452 F.3d 401, 403 (5th Cir. 2006). 5 Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). 

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imminent”; (2) there must be “a causal connection between the injury and the 

conduct complained of”; and (3) the injury must be likely to be redressed by a 

favorable decision.6

Importantly, having Article III standing at the outset of litigation is not 

enough. “There must be a case or controversy through all stages of a case”—

not just when a suit comes into existence but throughout its existence.7 “A case 

becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for purposes 

of Article III—‘when the issues presented are no longer ‘live’ or the parties lack 

a legally cognizable interest in the outcome.’”8 “No matter how vehemently the 

parties continue to dispute the lawfulness of the conduct that precipitated the 

lawsuit, the case is moot if the dispute ‘is no longer embedded in any actual 

controversy about the plaintiffs’ particular legal rights.’”9

Here, both sides acknowledge that the Louisiana Legislature’s recent 

reallocation of indigent-defense funding has eliminated the practice of putting

non-capital defendants on waitlists. The State Public Defender describes the 

current situation this way: “None of the districts currently in restriction of 

services report a waitlist for the appointment of counsel for non-capital 

defendants.” Simply put, there remains no “live controversy” as to these 

Appellants, and any relief they seek now would be “meaningless.”10 The 

waitlists were controversial, but that controversy has concluded. 

 

6 Fla. Dep’t of Ins. v. Chase Bank of Tex. Nat’l Ass’n, 274 F.3d 924, 929 (5th Cir. 2001) 

(quoting Lujan, 504 U.S. at 560–61).

7 K.P. v. LeBlanc, 729 F.3d 427, 438 (5th Cir. 2013); see also Alvarez v. Smith, 558 U.S. 

87, 92 (2009).

8 Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (quoting Murphy v. Hunt, 455 U.S. 

478, 481 (1982) (per curiam)).

9 Id. at 91 (quoting Alvarez, 558 U.S. at 93).

10 See id; Fontenot v. McCraw, 777 F.3d 741, 747 (5th Cir. 2015) (“Because there 

remains no live controversy between the parties . . . the injunction they seek would be 

meaningless.”).

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And it might not even be a “controversy” at all: Federal courts generally 

refrain from granting relief without the “concrete adverseness which sharpens 

the presentation of issues upon which the court[s] so largely depend[] for 

illumination of difficult constitutional questions.”11 All parties agree that 

waitlists are unconstitutional. They all agree that waitlists for non-capital 

defendants no longer exist. They all agree that this case does not implicate 

abstention concerns, even though a state-government defendant would 

typically object on this basis. They even agree that they disagree: When the 

district court asked the parties whether they agreed too much for a truly 

adversarial proceeding, they—no surprise—agreed that “there was sufficient 

adversity.” This deep-rooted agreement on the central issues of the case gives 

us further pause to address the merits. But because we hold that the dispute

(such as it is) is moot, we need not address “concrete adverseness” today.

B

Of course, a defendant cannot moot a case simply by ending its unlawful 

conduct once sued.12 If this were allowed, “a defendant could engage in 

unlawful conduct, stop when sued to have the case declared moot, then pick up 

where he left off, repeating this cycle until he achieves all his unlawful ends.”13

As we have noted, “Defendant-induced mootness is viewed with caution.”14

“[A]llegations by a defendant that its voluntary conduct has mooted the 

plaintiff’s case require closer examination than allegations that ‘happenstance’

or official acts of third parties have mooted the case.”15 Essentially, the goal is 

 

11 Baker v. Carr, 369 U.S. 186, 204 (1962).

12 City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982).

13 Already, 568 U.S. at 91. 14 Fontenot, 777 F.3d at 747.

15 Envt’l Conservation Org. v. City of Dallas, 529 F.3d 519, 528 n.4 (5th Cir. 2008).

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to determine whether the defendant’s actions are “litigation posturing” or 

whether the controversy is actually extinguished.16

Here, neither side contends the case has ended, though both sides 

concede the waitlists have ended. But no matter whose actions are credited 

with mooting the case—Appellees for discontinuing the waitlists, or the 

Legislature for reallocating the funding—this case neither invokes the 

skepticism normally associated with “defendant-induced mootness” nor raises

suspicions of “litigation posturing.” This is in part because we “are justified in 

treating a voluntary governmental cessation of possibly wrongful conduct with 

some solicitude.”17 Absent evidence to the contrary, we are to presume publicspiritedness, says the Supreme Court. Government officials “in their sovereign 

capacity and in the exercise of their official duties are accorded a presumption 

of good faith because they are public servants, not self-interested private 

parties.”18 So, “[w]ithout evidence to the contrary, we assume that formally 

announced changes to official governmental policy are not mere litigation 

posturing.”19

What’s more, in this case the public defenders largely agreed that 

waitlists were unconstitutional, but argued that inadequate funding tied their 

hands. Indeed, Appellees joined Appellants in urging us to declare the waitlists

unconstitutional. So, it is highly unlikely that the “formally announced 

change[] to official governmental policy”—eliminating non-capital defendant 

 

16 See, e.g., Ctr. for Biological Diversity, Inc. v. BP Am. Prod. Co., 704 F.3d 413, 426 

(5th Cir. 2013).

17 Sossamon v. Lone Star State of Tex., 560 F.3d 316, 325 (5th Cir. 2009), aff’d on other 

grounds sub nom. Sossamon v. Texas, 563 U.S. 277 (2011).

18 Id.

19 Id. 

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waitlists—is “mere litigation posturing.”20 We doubt Appellees will reimplement waitlists on their own initiative.

C

While it is possible that some day, for some reason, waitlists could 

resume, Appellants’ claims do not satisfy the “capable of repetition, yet evading 

review” exception to the mootness doctrine.21 That exception applies only when 

“(1) the challenged action is in its duration too short to be fully litigated prior 

to its cessation or expiration, and (2) there is a reasonable expectation that the 

same complaining party will be subjected to the same action again.”22

The second prong presents a problem for Appellants. The Supreme Court 

has “consistently refused to ‘conclude that the case-or-controversy requirement 

is satisfied by’ the possibility that a party ‘will be prosecuted for violating valid 

criminal laws.’”23 Instead, courts must “assume that [Appellants] will conduct 

their activities within the law and so avoid prosecution and conviction as well 

as exposure to the challenged course of conduct.”24

Here, there is no “reasonable expectation that the same complaining 

party will be subjected to the same action again.”25 Indeed, for that to happen, 

Appellants would need to violate the law again, be apprehended again, and be 

placed on a waitlist while in pretrial custody again. Because we must assume 

 

20 Id. 21 United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1540 (2018) (quoting 

Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1976 (2016)).

22 Turner v. Rogers, 564 U.S. 431, 440 (2011) (cleaned up).

23 Sanchez-Gomez, 138 S. Ct. at 1540–41 (quoting O’Shea v. Littleton, 414 U.S. 488, 

497 (1974)).

24 Id. at 1541; see, e.g., Spencer v. Kemna, 523 U.S. 1, 15 (1998) (reasoning that a suit 

concerning a parole revocation order was moot following the appellant’s release from custody 

because any continuing consequences were “contingent upon [the appellant] violating the 

law, getting caught, and being convicted”).

25 Turner, 564 U.S. at 439–440.

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that Appellants will follow the law rather than flout it, we cannot deem their 

claims “capable of repetition.”

* * *

The funding plight afflicting public defenders is real.26 But under Article 

III, courts may adjudicate only “actual and concrete disputes, the resolutions 

of which have direct consequences on the parties involved.”27 Anything we 

decide regarding Louisiana public defender practices would have zero

consequences on the parties involved. No defender district subject to ROS 

protocols maintains a waitlist for appointed counsel for non-capital defendants.

As the waitlists have disappeared, so too have Appellants’ constitutional 

claims.

III

However this case is framed—a genuinely adversarial effort to enforce 

rights or a coordinated public-relations effort to force funding—Article III 

requires live cases and controversies. Our Constitution has something to say 

about indigent defendants languishing indefinitely in jail without 

representation, but that is not this case—at least not any more. Since this 

appeal was filed, Louisiana lawmakers have reallocated funding for appointed 

counsel sufficient to render the waitlists for non-capital defendants nonexistent. That fiscal action moots this legal action.

As courts cannot redress what they cannot address, we DISMISS.

 

26 The Louisiana State Public Defender contends that fiscal shortfalls persist, even if 

waitlists for non-capital defendants do not: “The chronic underfunding of indigent defense 

continues, and LPDB is unable to fund all aspects of indigent defense with the resources 

allocated by the Louisiana Legislature.”

27 Genesis HealthCare Corp. v. Symczyk, 569 U.S. 66, 71 (2013).

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