Chrystine M. LAWSON, an individual; et al., Plaintiffs-Appellants, v. CITY OF SANTA BARBARA, a Municipal corporation; et al., Defendants-Appellees, 125 F. App'x 129

MEMORANDUM Chrystine Lawson and Campus Labor Action Coalition brought suit against the City of Santa Barbara to challenge the constitutionality of several parade permitting restrictions. On remand from a previous panel of this court, the district court dismissed the suit as moot, in defiance of this court’s mandate. Lawson appealed. We now vacate the decision of the district court and remand.

A panel of our court, reversing Judge Real’s prior dismissal of this case as moot, concluded that while Lawson’s facial challenge was moot, her as-applied challenge is viable, as it is “capable of repetition, yet evading review.” The panel remanded, instructing the district court to “consider the merits” of Lawson’s “as-applied claim” and, as to the facial challenge, to “grant Lawson leave to amend (if she so desires) to clarify whether she in fact seeks such future relief.” The clear and well-settled rule of mandate provides that “[w]hen acting under an appellate court’s mandate, an inferior court is bound by the decree as the law of the case; and must carry it into execution, according to the mandate.

That court cannot vary it, or examine it for any other purpose than execution.” Vizcaino v. United States District Court, 173 F.3d 713, 719 (9th Cir.1999) (citations and quotations omitted). Upon remand, and contrary to the express instructions in our mandate, Judge Real again dismissed the case as moot, without giving Lawson an opportunity to amend her complaint.

Judge Real explicitly substituted his own judgment for that of the panel, and acknowledged that his dismissal was “in spite of the Court of Appeals’ order.” We therefore vacate the district court’s order dismissing this case as moot, and remand for further proceedings. On remand, the court should develop an evidentiary record to adequately consider the pending Motion to Substitute Parties, as well as the government’s opposing contention that the facts underlying that motion demonstrate that the case has become moot since the last district court ruling. We decline to rule at this time on those matters.

See In re First T.D. & Inv., Inc., 253 F.3d 520, 533 n. 11 (9th Cir.2001) (declining to address party’s mootness argument, based on “recent developments” not included in the record, and instructing the district court to consider the argument on remand). Because Judge Real acted in defiance of our mandate, this case is sufficiently “unusual” that “remand to a different judge is proper.” United States v. Reyes, 313 F.3d 1152, 1159 (9th Cir.2002).

We find that the instant dismissal suggests that Judge Real “would reasonably be expected upon remand to have substantial difficulty in putting out of his ... mind previously-expressed views or findings determined to be erroneous.” Id. at 1159. Therefore, upon remand, the Chief Judge of the Central District shall reassign this case to a different district judge. VACATED and REMANDED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.