                REVISED January 22, 2010
        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                                Fifth Circuit

                                                              FILED
                                                            January 21, 2010
                                 No. 09-30307
                                                         Charles R. Fulbruge III
                                                                 Clerk

LIBERTARIAN PARTY; LIBERTARIAN PARTY OF LOUISIANA; BOB
BARR; WAYNE ROOT; SOCIALIST PARTY USA; BRIAN MOORE,


                                           Plaintiffs - Appellants
v.

JAY DARDENNE, In His Official Capacity as Louisiana Secretary of State,


                                           Defendant - Appellee



                Appeal from the United States District Court
                    for the Middle District of Louisiana



Before STEWART, DENNIS, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
      Appellants—the Libertarian Party, the Socialist Party, and their
candidates—appeal the district court’s dismissal of their complaint as moot, and
the district court’s denial of their request for fees under Federal Rule of Civil
Procedure (“Rule”) 4(d). Finding no reversible error, we AFFIRM.
             I. FACTS AND PROCEDURAL BACKGROUND
      Appellants were excluded from Louisiana’s 2008 presidential ballot
because they failed to file their qualifying papers by the applicable filing
                                No. 09-30307
deadlines. Pursuant to a Louisiana statute, the filing deadline for the Socialist
Party was September 2, and the filing deadline for the Libertarian Party was
September 5. Because of Hurricane Gustav, the Louisiana Secretary of State
(the “Secretary”) unilaterally allowed parties to file their qualifying papers on
September 8, 2008. Appellants did not file their papers until after the 8th of
September. Because Appellants failed to file their papers by September 8, the
Secretary informed Appellants that they would not be placed on Louisiana’s
2008 presidential ballot.         Appellants then brought this suit against the
Secretary, seeking, among other things, a declaratory judgment stating that the
Secretary’s September 8 deadline was unconstitutional. Appellants contend that
the Secretary lacked the power to set a deadline different from that of the
statute unilaterally.1
       While this suit was pending before the district court, the 2008 presidential
election passed, and, on that basis, the Secretary moved to dismiss Appellants’
complaint as moot. Appellants argued that their complaint was not moot
because their challenge to the Secretary’s September 8 deadline fell under the
“capable of repetition, yet evading review” exception to mootness. The district
court rejected Appellants’ argument and dismissed their complaint as moot.
       Appellants also argued that they were entitled to costs and fees under
Rule 4(d)’s mandatory waiver-of-service provision. The district court denied
Appellants’ motion for costs and fees, finding that the Secretary was not subject
to Rule 4(d)’s mandatory waiver-of-service provision because he was sued in his
official capacity.




       1
          Appellants do not contend, however, that the Secretary was required to set in motion
the statutorily-prescribed method for extending a filing deadline. LA. REV. STAT. ANN. §
18:401.1.B (2009) (stating that the Governor of Louisiana and the Secretary, acting together,
“may . . . suspend or delay any qualifying of candidates”).

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                                  II. DISCUSSION
      In this appeal, Appellants challenge both the mootness finding and the
Rule 4(d) decision. We address each in turn.
A.    Mootness
      Appellants contend that their request for a declaratory judgment stating
that the Secretary’s conduct was unconstitutional is not moot because it falls
under the “capable of repetition, yet evading review” exception to mootness. See
Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 661 (5th Cir. 2006)
(explaining that the “capable of repetition, yet evading review” exception is an
exception to the rule that requires “‘[t]he requisite personal interest that must
exist at the commencement of litigation (standing) [to] continue throughout its
existence (mootness)’” (quoting U.S. Parole Comm’n v. Geraghty, 445 U.S. 388,
397 (1980))). There are two prongs to the “capable of repetition, yet evading
review” exception, and Appellants, who are the plaintiffs, bear the burden of
proving both prongs. Davis v. FEC, 128 S. Ct. 2759, 2769 (2008); Ill. State Bd.
of Elections v. Socialist Workers Party, 440 U.S. 173, 187-88 (1979) (showing that
plaintiffs bear the burden of proof); see Ramming v. United States, 281 F.3d 158,
161 (5th Cir. 2001) (“[T]he plaintiff constantly bears the burden of proof that
jurisdiction does in fact exist.”).
      Whether a case is moot is a question of law that we review de novo. Bayou
Liberty Ass’n v. U.S. Army Corps of Eng’rs, 217 F.3d 393, 396 (5th Cir. 2000)
(citing Harris v. City of Houston, 151 F.3d 186, 189 (5th Cir. 1989)). We find
that Appellants have failed to meet their burden under the exception’s “capable
of repetition” prong.2
      Under the exception’s “capable of repetition” prong, Appellants “must show
either a ‘demonstrated probability’ or a ‘reasonable expectation,’” Oliver v. Scott,


      2
         As a result, we need not reach the question of whether Appellants lack standing to
contest the Secretary’s allegedly unlawful act because they were not harmed by it.

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276 F.3d 736, 741 (5th Cir. 2002), that they will “be subject to the same
[unlawful governmental] action again,” Weinstein v. Bradford, 423 U.S. 147, 149
(1975). A “mere physical or theoretical possibility” is not sufficient to satisfy this
prong of the exception. Murphy v. Hunt, 455 U.S. 478, 482 (1982). The allegedly
unlawful governmental action in this case is the Secretary’s unilateral
establishment of a September 8 filing deadline. Appellants, therefore, must
demonstrate that there is a “reasonable expectation” that the Secretary will
again unilaterally change filing deadlines in the future.
      Appellants primarily rely on evidence showing that Louisiana frequently
encounters hurricanes and tropical storms during presidential qualifying periods
to show that there is a reasonable expectation that the Secretary will
unilaterally change filing deadlines in the future. At most, Appellants’ evidence
shows that the Secretary will have an opportunity to act in the same allegedly
unlawful manner in the future; however, it does not show a reasonable
probability that the Secretary will act in that manner if given the opportunity.
By proving opportunity, Appellants have only demonstrated a “physical or
theoretical possibility” that the Secretary may repeat his actions, and such a
demonstration is insufficient to meet their burden under the “capable of
repetition” prong. Murphy, 455 U.S. at 482; McFarlin v. Newport Special Sch.
Dist., 980 F.2d 1208, 1211 (8th Cir. 1992) (finding that evidence that there would
be an opportunity for the unlawful action to occur again was insufficient to show
“a reasonable probability that the same” action would occur again).
      Appellants also rely on our decision in Moore v. Hosemann, Nos. 09-60272
& 09-60424, 2009 U.S. App. LEXIS 27911 (5th Cir. Dec. 18, 2009) to show that
they have satisfied the exception’s requirements.3 In Moore, we held that a
challenge to the Mississippi Secretary of State’s 5:00 p.m. deadline for filing was


      3
         Moore was decided after oral argument in this case. Appellants addressed this case
in a post-argument Rule 28(j) letter.

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                                 No. 09-30307
not moot because it was “capable of repetition, yet evading review.” Id. at *6-*8.
We found that the challenge in Moore was “capable of repetition” because the
Mississippi Secretary of State “made it plain that he intend[ed] to enforce the
5:00 p.m. deadline in future elections.” Id. at *8. Unlike the Mississippi
Secretary of State, the Secretary here has not made it plain that he intends to
unilaterally change filing deadlines in the future, and Appellants have not
presented any evidence that would show such an intention.4 Therefore, our
decision in Moore does not save Appellants’ complaint from mootness.
       Appellants could have satisfied their burden under the “capable of
repetition” prong if they introduced evidence showing that the Secretary had
unlawfully changed filing deadlines in the past, that the Secretary’s actions
reflect a policy or a consistent pattern of behavior that he has determined to
continue,5 or that the Secretary’s action was prescribed by statute, which is the
type of evidence presented in most election law cases that fall under the
exception.6 Ill. State Bd. of Elections, 440 U.S. at 188. Appellants have failed


       4
           Appellants, relying on an executive order issued by the Governor of Louisiana,
contend that the Secretary’s actions shortened the Governor’s filing deadlines from September
12 to September 8. The Secretary disputes Appellants’ contention; he asserts that his actions
actually extended the filing deadlines and did not shorten them because the Governor’s order
did not extend the filing deadlines to September 12. We need not resolve this dispute because
the proper characterization of the Secretary’s actions is immaterial to this decision. Regardless
of whether the Secretary’s actions were an extension or a shortening, Appellants’ complaint
is still moot because they have failed to meet their burden under the “capable of repetition”
prong.
       5
          In their reply brief, Appellants state that the “Secretary’s policy is that he has the
authority to fix emergency election deadlines,” but they do not present any evidence to support
their assertion that the Secretary has such a policy. Appellants also state in their reply brief
that “the Secretary’s action clearly represents policy; at least the Secretary has never claimed
it does not.” The burden, however, is not on the Secretary to show whether his actions
constitute policy; instead, the burden is on Appellants to show that the Secretary’s actions were
policy, and Appellants have not presented any evidence that would allow them to meet that
burden in this case.
       6
        Appellants assert that their case is an election law case, so it automatically falls
under the “capable of repetition, yet evading review” exception. Appellants’ assertion,
however, relies on the assumption that their case is like most election law cases. This

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to present such evidence.         Because we agree with the district court that
Appellants have failed to present evidence that would allow them to meet their
burden under the “capable of repetition” prong, we conclude that the district
court did not err in dismissing Appellants’ complaint as moot.
B.     Denial of Costs and Fees Under Rule 4(d)
       Appellants argue that the district court erred in denying their request for
costs and fees under Rule 4(d) because the Secretary was sued for prospective
relief in his official capacity and, therefore, subject to Rule 4(d)’s mandatory
waiver-of-service provision. Appellants’ argument is foreclosed by our recent
decision in Moore. In that case, we held that “a state official sued in his official
capacity is not subject to the mandatory waiver-of-service provisions of [R]ule
4(d).” 2009 U.S. App. LEXIS 27911 at *15. Accordingly, we conclude that the
district court did not err in denying Appellants’ motion for costs and fees under
Rule 4(d).
                                  III. CONCLUSION
       For the foregoing reasons, we AFFIRM the district court’s order.




assumption is incorrect. Unlike most election law cases, Appellants’ case does not involve a
challenge to a governmental action done pursuant to an election statute. See, e.g., Davis, 128
S. Ct. at 2770. These challenges are often able to survive mootness under the exception
because courts will assume that the government will enforce the same statute in the future.
See, e.g., FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 463 (2007) (“[T]here is no reason to
believe that the FEC will ‘refrain from prosecuting violations’ of BCRA.”). In cases such as
this, where the challenged governmental action was not done pursuant to a statute, such an
assumption cannot be made, so Appellants cannot simply rely on general election law cases to
support their assertion that the exception applies.

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