                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 14-3468
                       ___________________________

  Teresa Bierman; Kathy Borgerding; Linda Brickley; Carmen Gretton; Beverly
        Ofstie; Scott Price; Tammy Tankersley; Kim Woehl; Karen Yust

                     lllllllllllllllllllll Plaintiffs - Appellants

                                          v.

  Governor Mark Dayton, in His Official Capacity as Governor of the State of
 Minnesota; Josh Tilsen, in His Official Capacity as Commissioner of the Bureau
    of Mediation Services; Emily Johnson Piper, in Her Official Capacity as
Commissioner of the Minnesota Department of Human Services; SEIU Healthcare
                                    Minnesota

                     lllllllllllllllllllll Defendants - Appellees
                                      ____________

                   Appeal from United States District Court
                  for the District of Minnesota - Minneapolis
                                 ____________

                          Submitted: October 21, 2015
                             Filed: March 22, 2016
                                 ____________

Before RILEY, Chief Judge, SMITH and SHEPHERD, Circuit Judges.
                              ____________
RILEY, Chief Judge.

       Nine individual providers of direct support services (collectively, homecare
providers) challenge the constitutionality of a Minnesota statute designating them
state employees for the purpose of unionization. See Minn. Stat. § 179A.54. The
homecare providers timely filed this interlocutory appeal from the district court’s1
denial of their renewed motion preliminarily to enjoin the state from holding an
election and certifying an exclusive representative. See 28 U.S.C. § 1292(a)(1). We
dismiss this present appeal as moot.

I.     BACKGROUND
       On May 24, 2013, Minnesota Governor Mark Dayton signed the Individual
Providers of Direct Support Services Representation Act (Act). See Minn. Stat.
§ 179A.54. The Act designates individual providers of direct support services
(individual providers) as state employees solely for the purpose of the Public
Employment Labor Relations Act (PELRA), Minn. Stat. § 179A. Id., subdiv. 2.

       PELRA authorizes Minnesota public employees to form and join a union and
to elect an exclusive representative for the purpose of collective bargaining with the
state government. See §§ 179A.03, subdiv. 6, 179A.12. Under the Act, a union that
wishes to become the exclusive representative of individual providers may petition
the commissioner of the Bureau of Mediation Services (BMS) to conduct a mail
ballot election pursuant to the process directed by PELRA. See §§ 179A.54, subdiv.
10, 179A.12, subdiv. 3. If a union receives the majority of the votes cast, the BMS
commissioner certifies it as the exclusive representative. See § 179A.12, subdiv. 10.




      1
       The Honorable Michael J. Davis, then Chief Judge, United States District
Court for the District of Minnesota.

                                         -2-
       On July 8, 2014, Services Employees International Union Healthcare
Minnesota (SEIU) petitioned the BMS commissioner to initiate an election under the
Act. The BMS mailed ballots to individual providers on August 1, 2014, with
instructions to return the ballot by August 25, 2014.

       On July 28, 2014, the homecare providers brought this action under 42 U.S.C.
§ 1983 against Governor Dayton, BMS Commissioner Josh Tilsen, the Minnesota
Department of Human Services (DHS) Commissioner,2 (collectively, state) and SEIU,
challenging the constitutionality of the Act. In Count I, the homecare providers
claimed the election of an exclusive representative under the Act violates their First
Amendment right to freedom of association because it compels them to associate with
a union. In Count II, the homecare providers alleged submitting their right to
freedom of association to a “majority vote” violated the First Amendment. Two days
after the homecare providers filed suit, they moved for an expedited preliminary
injunction. In their motion, the homecare providers asked the district court to
“enjoin[] the Defendants from implementing or enforcing the [Act]. . . . In particular,
Plaintiffs move the Court to enjoin the Defendants from conducting an election to
certify, and from certifying [SEIU] as the exclusive representative of Plaintiffs and
other individual providers.”

       Reviewing the motion, the district court decided the homecare providers’ claim
on Count I was not ripe for review because the homecare providers suffered “no
hardship” while the “outcome of the election [was] uncertain.” The district court
explained, “If SEIU does not receive a majority of the votes cast, then Count I will
be moot. If SEIU does receive a majority of the votes cast, then Plaintiffs may renew
their motion as to Count I.” The district court concluded Count II was “not likely to
succeed on the merits.”


      2
     DHS Commissioner Emily Johnson Piper has been substituted for former DHS
Commissioner Lucinda Jesson. See Fed. R. App. P. 43(c)(2).

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       Out of nearly 27,000 eligible individual providers, the BMS received 5,849
valid ballots—3,543 of which were votes for SEIU. On August 26, 2014, the BMS
commissioner certified SEIU as the exclusive representative of individual providers.
On August 27, 2014, the homecare providers renewed their motion for an expedited
preliminary injunction as to Count I, as the district court suggested. The district court
nonetheless denied the motion, deciding the homecare providers were unlikely to
succeed on the merits because the Act does not infringe the homecare providers’ First
Amendment rights. The homecare providers appeal the district court’s denial of their
renewed motion for a preliminary injunction.

II.    DISCUSSION
       Although the denial of a preliminary injunction is immediately appealable, see
28 U.S.C. § 1292(a)(1), “the appeal of an order denying a preliminary injunction
becomes moot if the act sought to be enjoined has occurred.” Bacon v. Neer, 631
F.3d 875, 877 (8th Cir. 2011); see Minn. Humane Soc’y v. Clark, 184 F.3d 795, 797
(8th Cir. 1999) (explaining that without a “live case or controversy,” a case becomes
moot and we no longer have jurisdiction over the matter). “As mootness relates to
justiciability and our power to hear a case, ‘we must consider it even [if] the parties
have not raised it.’” Bacon, 631 F.3d at 877-78 (quoting Olin Water Servs. v.
Midland Research Labs., Inc., 774 F.2d 303, 306 n.3 (8th Cir. 1985)).

       “The purpose of a preliminary injunction is merely to preserve the relative
positions of the parties until a trial on the merits can be held.” Univ. of Tex. v.
Camenisch, 451 U.S. 390, 395 (1981); cf. CMM Cable Rep., Inc. v. Ocean Coast
Props., Inc., 48 F.3d 618, 620 (1st Cir. 1995) (“[T]he impetus behind the statutory
exception to the ‘final judgment’ rule that allows an immediate appeal of an order
refusing a preliminary injunction is to prevent irreparable harm to a litigant who,
otherwise, might triumph at trial but be left holding an empty bag.”).




                                          -4-
      At this point, reversal of the denial of preliminary injunctive relief would not
adequately address the harm the homecare providers sought to prevent when moving
for a preliminary injunction. The event the homecare providers attempted to
stop—the election and subsequent certification of SEIU as the exclusive
representative—has already occurred. Therefore, we must dismiss this appeal as
moot. See Indep. Party of Richmond Cty. 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 cannot be effectuated by the successful
prosecution of an interlocutory appeal from the denial of interim injunctive relief.’”
(quoting CMM Cable Rep., Inc., 48 F.3d at 621)); Operation King’s Dream v.
Connerly, 501 F.3d 584, 591 (6th Cir. 2007) (deciding injunctive relief seeking to
prevent a proposal from reaching the ballot was moot because the election had since
taken place, the proposal was approved, and the Michigan constitution had been
amended); cf. Pope v. County of Albany, 687 F.3d 565, 570 (2d Cir. 2012) (“Courts
may understandably hesitate to void elections that have already been conducted as a
form of preliminary equitable relief, preferring to take such action only upon a final
determination that plaintiffs are entitled to permanent relief.”).3

       During oral argument, the homecare providers proposed, as a matter of law,
their initial request for relief encompasses the decertification of SEIU. In Stevenson
v. Blytheville School District No. 5, we rejected a similar argument in which the
plaintiffs attempted to evade the mootness doctrine by arguing their “request for


      3
        We also note, between the time the homecare providers filed notice of this
interlocutory appeal and oral argument, the state and SEIU reached a collective
bargaining agreement, which was approved by the Minnesota legislature and went
into effect on July 1, 2015. In their reply brief, the homecare providers emphasized
“[t]heir claim is not based on the favorability or unfavorability of the terms of any
potential contract negotiated by the SEIU.” Rather, the homecare providers allege the
certification of the exclusive provider, “in and of itself,” violates their First
Amendment rights.

                                         -5-
preliminary injunctive relief [was] not limited to a past event but includes ‘all other
just and proper relief.’” Stevenson v. Blytheville Sch. Dist. No. 5, 762 F.3d 765, 770
(8th Cir. 2014). Observing the plaintiffs’ motion pertained only to a particular
resolution applying in one school year, we rejected plaintiffs’ argument on the “clear
terms of the motion.” Id. In the present case, the homecare providers’ motion for a
preliminary injunction applied, on its face, to the then-ongoing mail ballot election.
The homecare providers explicitly requested in their motion that the district court
“enjoin the Defendants from conducting an election to certify, and from certifying
[SEIU] as the exclusive representative of Plaintiffs and other individual providers,”
both of which the state has since done.

       Considering the district court’s treatment of the homecare providers’ motions,
deciding the preliminary injunction was not ripe until after the election and
certification happened, but cf., Parrish v. Dayton, 761 F.3d 873, 876 (8th Cir. 2014)
(dissolving an injunction pending appeal for lack of ripeness when no union had
petitioned to become an exclusive representative and “[t]he election of an exclusive
representative [was] not certainly impending”), at which point we now decide it is
moot, we recognize the temptation to apply the mootness doctrine exception for
issues that are “‘capable of repetition, yet evading review.’” Minn. Humane Soc’y,
184 F.3d at 797 (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975)). This
exception applies “only in exceptional situations,” City of Los Angeles v. Lyons, 461
U.S. 95, 109 (1983), where “(1) the challenged action is of too short a duration to be
fully litigated prior to its cessation or expiration, and (2) there is a reasonable
expectation that the same complaining party will be subject to the same action again.”
Minn. Humane Soc’y, 184 F.3d at 797.

      The applicability of this exception “can depend on the posture of the case on
appeal.” Fleming v. Gutierrez, 785 F.3d 442, 446 (10th Cir. 2015). See generally
Indep. Party of Richmond Cty., 413 F.3d at 256 (“To apply the ‘capable of repetition
yet evading review’ exception to otherwise moot appeals of preliminary injunctions

                                         -6-
would, moreover, impermissibly evade the ordinary rule, pursuant to 28 U.S.C.
§ 1291, that appellate courts review only ‘final decisions’ of a lower court.”).

       Here, the resulting harm from the certification of SEIU as the exclusive
representative is not capable of repetition because SEIU has already been certified,
and the underlying legal issues do not evade review because the homecare providers’
challenge to the Act is still pending before the district court. See Fleming, 785 F.3d
at 446 (distinguishing the application of this exception to an interlocutory appeal
relating to a since-completed election from “the question of whether th[e] suit as a
whole is capable of repetition, yet evading review”); Stevenson, 762 F.3d at 770
(explaining the underlying legal issues implicated in the motion for a preliminary
injunction will not “evade review” because appellants’ requests for permanent relief
“remain pending before the district court” (internal citation omitted)); Doe No. 1 v.
Reed, 697 F.3d 1235, 1240 (9th Cir. 2012) (providing examples of cases involving
inherently limited durations, including challenges relating to pregnancy, prior
restraint on free speech, and cases “that only present live controversies in brief
periods before an election”). Upon careful consideration, this exception does not
apply to the homecare providers’ appeal. The appeal is moot and should be
dismissed. See Stevenson, 762 F.3d at 770; Fleming, 785 F.3d at 449.

III.   CONCLUSION
       We dismiss this appeal for lack of jurisdiction.
                       ______________________________




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