                                                                  FILED
                                                      United States Court of Appeals
                                                              Tenth Circuit

                                                              May 5, 2015
                                       PUBLISH            Elisabeth A. Shumaker
                                                              Clerk of Court
                  UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 TERESA FLEMING, DAVID
 DOYLE, and PAULA PAPPONI,

             Plaintiffs - Appellees,
 v.                                                 No. 14-2182
 EDDIE GUTIERREZ, in his individual
 capacity, and EILEEN GARBANGI, in
 her official capacity,

             Defendants - Appellants.
       and
 SALLY PADILLA, in her individual
 capacity, DIANNA DURAN, in her
 official capacity, and SANDOVAL
 COUNTY BOARD OF
 COMMISSIONERS,

             Defendants.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF NEW MEXICO
                 (D.C. NO. 1:13-CV-00222-WJ-SCY)


Submitted on the Briefs:

Thomas C. Bird and Benjamin F. Feuchter, Keleher & McLeod, P.A.,
Albuquerque, New Mexico, and Katherine A. Basham and Mark A. Basham,
Basham & Basham, P.C., Santa Fe, New Mexico, on the briefs for Appellants.
Paul J. Kennedy and Justine Fox-Young, Paul Kennedy & Associates, P.C.,
Albuquerque, New Mexico, and Patrick J. Rogers, Patrick J. Rogers, L.L.C.,
Albuquerque, New Mexico, on the brief for Appellees.


Before TYMKOVICH, GORSUCH, and HOLMES, Circuit Judges.


TYMKOVICH, Circuit Judge.


      The 2012 elections in Sandoval County, New Mexico, were marked by long

lines and crowded polling places. Several voters filed a challenge to the County’s

administration of the election, and the district court concluded that the County’s

election procedures were so dysfunctional that an immediate remedy was

necessary to avoid voter disenfranchisement in the approaching 2014 election. To

remedy the anticipated election day problems, the court entered a preliminary

injunction that required the County to adhere to new regulations increasing the

number of voting centers and voting machines.

      County election officials sought interlocutory appellate review of the

preliminary injunction prior to the election, but we declined to intervene at that

time. The election went off without a hitch, and we must now reach the County’s

challenge to the injunction. In addition, we must also consider a motion to

dismiss the appeal as moot presented by the voters who brought the suit.

Concluding the issues raised by the grant of the preliminary injunction have been




                                         -2-
mooted by the passage of the 2014 election, we grant the motion and dismiss the

appeal for lack of jurisdiction.

                                   I. Background 1

      The administration of the 2012 general election in Rio Rancho—the largest

city in Sandoval County, a suburb of Albuquerque—was, in the district court’s

words, “a complete disaster.” Fleming v. Gutierrez, No. 13-CV-222, at *5

(D.N.M. Sept. 12, 2014). The misallocation of election-day resources resulted in

long lines, wait times exceeding five hours in some places, and inevitably, would-

be voters leaving without voting. Following the election, the Sandoval County

Board of Commissioners (Board) passed two resolutions generally condemning

the handling of the 2012 election and designating additional voting centers and

voting machines for the 2014 election.

      Also following the election, several County voters (Voters) filed suit in

federal district court under 42 U.S.C. § 1983 alleging equal protection and due

process violations as well as a violation of the New Mexico Constitution’s free-

and-open-elections clause. The complaint sought preliminary and permanent

injunctive relief relating to “all future elections,” a declaration that the County’s

practices were unconstitutional, and attorney’s fees. Supp. App. 122–23 (Second



      1
        The facts underlying this suit have been recounted in detail by the district
court. See, e.g., Fleming v. Gutierrez, No. 13-CV-222, at *3–14 (D.N.M. Sept.
12, 2014) (order granting preliminary injunction).

                                          -3-
Am. Compl. at 17–18). In September 2014, two months before the election, the

district court entered a preliminary injunction that essentially made any

discretionary aspects of the Board’s resolutions nondiscretionary. The injunction

order explicitly stated that it was to “apply to the parties through the November

2014 elections, at which point the Court will inquire whether further matters in

this case preclude its dismissal and closure.” App. 50.

      The County 2 filed an interlocutory appeal seeking vacation of the injunction

on the grounds that the Voters lacked standing and were not likely to succeed on

the merits because they had failed to allege purposeful discrimination. The

County also filed a motion for expedited review, based in part on a concern that

the appeal would be rendered moot by the passage of the election. See Aplt.’s

Mot. for Suspension of Appellate Rules and Expedited Review, filed Oct. 10,

2014, at 2 (“Unless this Court addresses Appellants’ challenges to the injunction

before November 4, 2014, Appellants’ appeal will be moot.”).

      We denied the motion for expedited review, Fleming v. Gutierrez, No. 14-

2181 (10th Cir. Oct. 16, 2014), and the election took place in November under the

force of the injunction. The Voters now ask that we dismiss the appeal of the

preliminary injunction as moot. Despite its initial assertion to the contrary in

papers filed prior to the election, the County argues that the election did not in

      2
       We refer to defendants-appellants, Eddie Gutierrez and Eileen
Garbagni—the Director of the Bureau of Elections of Sandoval County and the
County Clerk, respectively—as the “County” for ease of reference.

                                         -4-
fact moot its appeal because (1) it falls within the exception to mootness doctrine

for disputes capable of repetition, yet evading review, and (2) the propriety of the

injunction remains relevant to whether the Voters will be considered a “prevailing

party” for purposes of a prospective application for attorney’s fees.

      As we explain further below, we agree with the Voters that the challenge to

the preliminary injunction is moot. Any claims that are still alive can be litigated

in the district court as part of the continuing proceedings over the need for a

permanent injunction.

                                  II. Discussion

      We have statutory jurisdiction to review a district court’s interlocutory

order granting a preliminary injunction. See 28 U.S.C. § 1292(a)(1). But even

so, we might lose our jurisdiction if an interlocutory appeal no longer presents a

live case or controversy. In those circumstances, an appeal is moot, and we are

without subject matter jurisdiction to reach the merits of the appeal. See

Chihuahuan Grasslands Alliance v. Kempthorne, 545 F.3d 884, 891 (10th Cir.

2008) (“Mootness is a threshold issue because the existence of a live case or

controversy is a constitutional prerequisite to federal court jurisdiction.”).

      In considering mootness, we ask “whether granting a present determination

of the issues offered will have some effect in the real world.” Rio Grande Silvery

Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1110 (10th Cir. 2010). Thus,

“if an event occurs while a case is pending on appeal that makes it impossible for

                                          -5-
the court to grant any effectual relief whatever to a prevailing party, we must

dismiss the case, rather than issue an advisory opinion.” Stevenson v. Blytheville

Sch. Dist. No. 5, 762 F.3d 765, 768 (8th Cir. 2014) (internal quotation marks

omitted); see also Citizen Ctr. v. Gessler, 770 F.3d 900, 907 (10th Cir. 2014). In

the case of an interlocutory appeal taken from the grant of a preliminary

injunction, the appeal is moot “where the effective time period of the injunction

has passed,” Stevenson, 762 F.3d at 768 (emphasis omitted), or where the “act

sought to be enjoined has occurred.” Thournir v. Buchanan, 710 F.2d 1461, 1463

(10th Cir. 1983).

      In this case, a decision affirming or reversing the district court’s grant of

the preliminary injunction would not have any present-day, real-world effect on

the parties because both the election and the effective time period of the

injunction have passed. The injunction applied “through the November 2014

elections,” App. 50, and the specific relief sought by the County from this court

was the vacation of the injunction prior to the election. See Aplt. Br. at 1, 3, 8.

We cannot turn back the clock and create a world in which the County does not

have to administer the 2014 election under the strictures of the injunction.3

      3
         See Jordan v. Sosa, 654 F.3d 1012, 1023 (10th Cir. 2011) (“Events may
supersede the occasion for relief, particularly when the requested relief is
limited.”); Independence Party v. Graham, 413 F.3d 252, 256–57 (2d Cir. 2005)
(“Where the event giving rise to the necessity of preliminary injunctive relief has
passed, the harm-preventing function [of interlocutory appeals] cannot be
effectuated by the successful prosecution of an interlocutory appeal from the
                                                                       (continued...)

                                          -6-
Accordingly, because the election has passed and we cannot grant any effective

relief, the appeal is moot. See Thournir, 710 F.2d at 1462 (“[I]t appears quite

clear to us that any appeal of the injunction order is moot, for the simple reason

that the 1982 election has come and gone.”); see also Stone v. Bd. of Election

Comm’rs, 643 F.3d 543, 544–45 (7th Cir. 2011) (“Because the election has taken

place, Plaintiffs’ [interlocutory] appeal is now moot.”); Independence Party v.

Graham, 413 F.3d 252, 256 (2d Cir. 2005); Freedom Party of N.Y. v. N.Y. Bd. of

Elections, 77 F.3d 660, 662 (2d Cir. 1996) (“After the special election was held,

the controversy became moot.”); Serv. Emps. Int’l Union Local 1 v. Husted, 531

F. App’x 755, 755 (6th Cir. 2013) (“Because this appeal concerns a preliminary

injunction affecting those [completed] elections, and because that injunction has

now expired by its own terms, we dismiss the appeal as moot.”).

      Nor does the exception to mootness for conduct capable of repetition yet

evading review save this interlocutory appeal. Under this exception, which courts

reserve for “exceptional situations,” issues under review are not moot if they

(1) “evade review” because “the duration of the challenged action is too short to


      3
        (...continued)
denial of interim injunctive relief.” (internal quotation marks omitted)); Gjertsen
v. Bd. of Election Comm’rs, 751 F.2d 199, 201 (7th Cir. 1984) (“If we now order
the [preliminary] injunction vacated, as the defendants ask us to do, it will be too
late to take the plaintiffs’ names off the ballot and run the primary without them,
as the primary is over and done with, and the defendants do not ask that it be
ordered rerun.”); Thournir, 710 F.2d at 1463 n.2 (noting the harm-preventing
function of interlocutory appeals).

                                         -7-
be fully litigated prior to its cessation or expiration,” and (2) are “capable of

repetition,” such that “there is a reasonable expectation that the same complaining

party will be subjected to the same action again.” Chihuahuan Grasslands, 545

F.3d at 892 (internal quotations and alterations omitted).

      Whether the exception applies can depend on the posture of the case on

appeal. See Thournir, 710 F.2d at 1463–64. For instance, an interlocutory appeal

may very well be moot even while the case as a whole remains live because it is

capable of repetition. See, e.g., Gjertsen, 751 F.2d at 201; see also 13C Charles

Alan Wright et al., Federal Practice and Procedure § 3553.3.1 (3d ed. 2008) (“[I]t

may be clear that a particular request for relief has become moot, even though

other forms of relief may remain available. Once the opportunity for a

preliminary injunction has passed, for example, the preliminary injunction issue

may be moot even though the case remains alive on the merits.”). In this case, for

example, asking whether the exception applies to an interlocutory appeal

challenging the propriety of the preliminary injunction specifically aimed at the

allocation of election-day resources in the completed 2014 election is distinct

from the question of whether this suit as a whole is capable of repetition, yet

evading review. The latter is an issue we may well confront in due course if one

of the parties appeals from a final judgment entered by the district court. 4

      4
         See Independence Party, 413 F.3d at 256 (“To apply the ‘capable of
repetition yet evading review’ exception to otherwise moot appeals of preliminary
                                                                    (continued...)

                                          -8-
      This case reflects one such example of partial mootness. The particular

harm of administering the 2014 election under a temporary federal court order

will not again be repeated because the 2014 election has passed. Nor will the

County’s arguments evade review. The Voters’ complaint, which sought

permanent injunctive relief regarding “all future elections” and declaratory relief,

remains pending in the district court. 5 No final judgment has yet been entered on

the remaining claims for relief.

      4
       (...continued)
injunctions would . . . impermissibly evade the ordinary rule, pursuant to 28
U.S.C. § 1291, that appellate courts review only ‘final decisions’ of a lower
court.”); Gjertsen v. Bd. of Election Comm’rs, 791 F.2d 472, 475 (7th Cir. 1986)
(“This court held that the issues raised in that appeal [from the preliminary
injunction] were moot because the Board had already held the election. However,
we also noted that, since there was a strong probability that these candidates
would find themselves frustrated by the same signature requirement in the next
election, the underlying action in the district court was not moot.”); Pearlman v.
Vigil-Giron, 71 F. App’x 11, 14 (10th Cir. 2003) (distinguishing the application
of the mootness exception in a case involving an appeal from a final judgment
from a case involving an interlocutory appeal from a decision on a preliminary
injunction).
      5
         At the close of the district court’s hearing on the motion for a preliminary
injunction, Voters’ counsel stated that if the court granted the preliminary
injunction for the 2014 election, the case would be over. Supp. App. 565–66
(“[W]e’re not asking for more nor looking for more than that. . . . [I]f it goes
smoothly, there would be no reason for anybody to be back here after the ‘14
election.”). Similarly, in reply to the County’s opposition to the Voters’ motion
to dissolve the injunction, the Voters stated that they “have in fact received full
relief.” Id. at 238. Despite these assertions, it remains for the district court to
determine on remand whether any claims for relief—particularly the request for a
permanent injunction relating to “all future elections”—remain pending. See
Chihuahuan Grasslands, 545 F.3d at 893 (“For the purpose of determining the
issue of mootness, we will rely on the claims and requests for relief presented in
the Complaint . . . .”).

                                         -9-
      Notably, the County raised the same legal arguments in their motions for

summary judgment and for reconsideration of the district court’s denial of

summary judgment as they did in opposition to the preliminary injunction. 6

Those issues—whether the Voters have standing and whether they failed to allege

purposeful discrimination—will not evade review because the request for a

permanent injunction remains pending and can be reviewed on appeal to this court

from a final judgment. See Rio Grande Silvery Minnow v. Keys, 355 F.3d 1215,

1222 (10th Cir. 2004) (“If the district court enters a final order with which the

parties disagree, they may appeal once again.”); see also Bogaert v. Land, 543

F.3d 862, 864 (6th Cir. 2008) (“Dismissal of these preliminary-injunction appeals,

of course, does not render moot the underlying district court litigation. . . . Should

the district court enter further orders or a judgment in the action pending before

it, an adversely affected party or parties may seek further review in this court as

permitted by the normal appellate process.”); 13C Charles Alan Wright et al.,

Federal Practice and Procedure § 3533.8.2 (3d ed. 2008) (noting the “simplest”

example of disputes that do not evade review are those where “the plaintiff may

be able to continue the present litigation as to claims indistinguishable from the

claims that have been mooted”).


      6
         In fact, the County asks us to review both the preliminary injunction
order and the district court’s denial of their motion to reconsider on the standing
issue at this interlocutory stage because the issues are “inextricably intertwined.”
See Supp. App. 230 (Notice of Appeal); Aplt. Br. at 17–18.

                                         -10-
      A review of the case law from other circuits lends support to our view that

this appeal is moot. For example, in Independence Party of Richmond County v.

Graham, the Second Circuit held the passage of an election mooted an

interlocutory appeal from the district court’s grant of a preliminary injunction. In

that case, the Independence Party sued various county officials under § 1983

seeking injunctive and declaratory relief after the county refused to follow a party

resolution that invited unaffiliated voters to participate in the party’s primary

elections. Prior to the 2004 primary, the district court entered a preliminary

injunction ordering the county “to take all necessary steps to ensure that

unaffiliated registered voters may participate in the Independence Party primary

election . . . scheduled for September 14, 2004.” Independence Party, 413 F.3d at

255. The county defendants appealed, and while the appeal was pending, the

election took place.

      The Second Circuit found there was “no question that [the court] ha[d]

statutory jurisdiction” pursuant to § 1292, but concluded that no live case or

controversy remained. Id. With respect to the county defendants’ argument that

the issues were capable of repetition yet evading review, the court reasoned:

             The harm addressed by the order on appeal is not “capable
             of repetition” because the preliminary injunction pertains
             only to the September 2004 primary election, an event that
             has passed. Nor do the issues implicated by the district
             court’s order “evade review.” The County Party’s requests
             for declaratory relief and a permanent injunction raise the
             same underlying legal questions that are being argued in

                                         -11-
             this appeal. These questions remain pending before the
             district court. There is no reason to believe that the issues
             raised by the County Party’s request for permanent relief
             cannot be fully litigated before that court. And, in due
             course, following the entry of final judgment in that court,
             they can be reviewed on appeal in this court.

Id. at 256; see also Stone v. Bd. of Election Comm’rs, 643 F.3d 543, 545 (7th Cir.

2011); Gjertsen v. Bd. of Election Comm’rs, 751 F.2d 199, 201 (7th Cir. 1984).

The same is true of the appeal before us.

      The County also argues that the appeal is not moot because a ruling on the

merits of the injunction will have a real-world impact on the parties in that it will

affect whether the Voters can recoup attorney’s fees. We disagree. The

possibility that the preliminary injunction will form the basis for a grant of

attorney’s fees does not transform this appeal into a live controversy. As a

general rule, we have said that “a claim of entitlement to attorney’s fees does not

preserve a moot cause of action” although “the expiration of the underlying cause

of action does not [necessarily] moot a controversy over attorney’s fees already

incurred.” Dahlem v. Bd. of Educ. of Denver Pub. Schs., 901 F.2d 1508, 1511

(10th Cir. 1990) (emphasis added) (citations omitted); see also Lewis v. Cont’l

Bank Corp., 494 U.S. 472, 480 (1990) (“This interest in attorney’s fees is, of

course, insufficient to create an Article III case or controversy where none exists

on the merits of the underlying claim.” (citation omitted)). An entitlement to file

a fee petition only means that “a plaintiff may still recover (and a defendant may


                                         -12-
still contest) fees even when the merits have been rendered moot” and not that “an

otherwise moot issue is revived whenever a prevailing party requests or might

request fees.” Citizens for Responsible Gov’t State Political Action Comm. v.

Davidson, 236 F.3d 1174, 1183 (10th Cir. 2000). And where no fee request has

yet been filed, we lack a “final decision from the district court as to whether

Plaintiffs are entitled to fees,” so “the question is not before this court.” Id.

      The County has a point that the Voters might be considered a “prevailing

party” for purposes of 42 U.S.C. § 1988 having won a preliminary injunction.

See Kan. Judicial Watch v. Stout, 653 F.3d 1230, 1238 (10th Cir. 2011). But if

the County is able to successfully challenge a final judgment entered by the

district court and establish that there was no jurisdiction from the outset due to a

lack of standing, attorney’s fees for a preliminary injunction granted by the

district court when it was without jurisdiction would not be appropriate. See

Lynch v. Leis, 382 F.3d 642, 646 (6th Cir. 2004) (“If [the party] never had

standing to bring the case, he is not a proper prevailing party.”); Ward v. San

Diego Cnty., 791 F.2d 1329, 1334 (9th Cir. 1986) (“Ward’s lack of standing in

her original challenge rendered illusory the practical outcome she temporarily

received (the preliminary injunction). An erroneously granted injunction cannot

be the basis for an award of attorneys fees as the prevailing party.”); O’Neill v.

Coughlan, 490 F. App’x 733, 737–38 (6th Cir. 2012) (distinguishing situations

where a party is considered prevailing based on relief granted by a court properly

                                          -13-
exercising power and situations where “the district court should have dismissed

[the] case long ago”). Recognizing these various possibilities, however, is not

enough to confer jurisdiction on us to reach the merits of this otherwise moot

order. 7

       As a final matter, we must decide what, if anything, to do with the district

court’s injunction order. The Voters ask that we dismiss the appeal as moot and

refrain from vacating the district court’s order. The County makes no argument

as to what we should do in the event we find its appeal moot. “In the case of

interlocutory appeals . . . the usual practice is just to dismiss the appeal as moot

and not vacate the order appealed from.” In re Tax Refund Litig., 915 F.2d 58, 59

(2d Cir. 1990) (quoting Gjertsen, 751 F.2d at 202); see also Rio Grande Silvery

Minnow, 355 F.3d at 1222; Serv. Emps. Int’l, 531 F. App’x at 755–56 (collecting

cases); 13C Charles Alan Wright et al., Federal Practice and Procedure

§ 3533.10.3 (3d ed. 2008) (“[I]f the case remains alive in the district court, it is

sufficient to dismiss the appeal without directing that the injunction order be

vacated.”). We see no reason to deviate from the usual practice here.

       7
         Even if the County were correct that the case is not constitutionally moot,
we would nonetheless exercise our remedial discretion and find the appeal
prudentially moot. See Citizen Ctr., 770 F.3d at 909 (“A case is prudentially
moot if circumstances have changed since the beginning of litigation that forestall
any occasion for meaningful relief.” (internal quotations and alterations omitted));
Winzler v. Toyota Motor Sales U.S.A., Inc., 681 F.3d 1208, 1210 (10th Cir. 2012)
(“[I]f events so overtake a lawsuit that the anticipated benefits of a remedial
decree no longer justify the trouble of deciding the case on the merits, equity may
demand not decision but dismissal.”).

                                         -14-
                              III. Conclusion

      For the foregoing reasons, we GRANT the motion to dismiss the appeal as

moot and DISMISS the appeal for lack of jurisdiction.




                                      -15-
