Lawson

dissenting.

In my view we should deny the motion to substitute parties, dismiss the appeal because the case is moot, and vacate the judgment of the district court. Vacating the judgment is proper under United States v. Munsingwear 1 Justice does not require otherwise, because the district court did not follow the mandate of the Court of Appeals.

Mootness is established here by the motion to substitute parties itself. Federal Rule of Appellate Procedure 43(a) provides for the substitution of parties upon the death of a party. Rule 43(b) provides for substitution “for any reason other than death.” 2 In Sable Communications of California, Inc. v. Pacific Telephone and Telegraph Co., 3 we denied a motion to substitute, because “substitution under Rule 43(b) is appropriate only where necessary and necessary means that a party to the suit is unable to continue, such as where a party becomes incompetent or a transfer of interest in the company or property involved in the suit has occurred.” 4 There is no inability by incompetence in this case, nor is there a “trans *131 fer of interest” in the sense in which it is used in Sable. Sable follows Alabama Power Company v. Interstate…

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 *130 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.”…