                                                                         F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                         May 30, 2007
                                  TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                        Clerk of Court


 EQ U A L EM PLO Y ME N T
 O PPO RTU N ITY CO M M ISSIO N,

                Plaintiff-Appellee,                      No. 06-1143

 and                                                     (D. Colorado)

 M ELISSA R. W OLFF,                         (D.C. No. 05-CV-177-W DM -M EH )

                Plaintiff-Intervenor-
                Appellee,
           v.
 JO SLIN DRY G O O DS C OM PANY,
 doing business as Dillard's,

                Defendant-Appellant.



                             OR D ER AND JUDGM ENT *


Before M U RPH Y, HOL LOW AY, and TYM KOVICH, Circuit Judges.




       *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
I. Introduction

      The Equal Employment Opportunity Commission (“EEOC”) filed a public

enforcement action against Dillard’s on behalf of an unnamed former employee of

D illard’s and a class of similarly situated individuals. In its complaint, the EEO C

alleged Dillard’s had subjected the employees to sexual harassment in violation of

Title VII of the Civil Rights Act of 1964 (“Title VII”). M elissa W olff, the former

employee who had filed the complaint with the EEOC, moved to intervene and

permission was granted by the district court. Dillard’s then filed a motion to stay

W olff’s intervention pursuant to 9 U.S.C. § 3, based on an arbitration agreement

W olff had signed upon beginning employment. The district court denied the

motion to stay and Dillard’s appealed. W hile the appeal was pending, Dillard’s

and W olff entered into a settlement agreement and W olff’s claims were

subsequently dismissed with prejudice. Because the dismissal of W olff from the

law suit makes it impossible for this court to provide any effective relief, this

court concludes Dillard’s appeal is moot and dismisses the appeal.

II. Background

      W olff applied for a position at Dillard’s and was hired to work as a sales

associate in one of its retail stores. At the time W olff was hired, she received and

signed a document entitled “Agreement to Arbitrate Certain Claims.” The

agreement stated that the employee and the company both agree “to resolve any

and all disputes” in accordance with the incorporated Rules of Arbitration (“the

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Rules”). The Rules provide that “any claim that could be made in a court of law,”

including a claim for “[d]iscrimination or harassment on the basis of . . . sex,”

shall be subject to arbitration. W olff alleged that although she signed the

agreement, she was never provided with a copy of the Rules.

      Soon after W olff began her employment, she filed a police report against

her supervisor, Scott M cGinnis, alleging he had subjected her to offensive and

unwanted sexual advances. M cGinnis confessed to the allegations and was

charged with unlawful sexual contact. Dillard’s subsequently terminated

M cGinnis based in part on these allegations. W olff also filed a complaint with

the EEOC in which she asserted she was subjected to sexual harassment in

violation of Title VII. In her complaint, she stated M cGinnis repeatedly talked

about how pretty she was, asked her to meet him in the parking lot after work,

and called her after work to tell her he was looking for her. She also asserted,

among other things, that while she was completing additional employment

paperw ork in M cGinnis’ office, M cGinnis grabbed her, rubbed her hips, and said

he w anted to kiss her.

      Based upon these allegations, the EEOC filed a public enforcement action

against Dillard’s. The complaint alleged Dillard’s had engaged in an unlawful

employment practice in violation of Title VII by subjecting W olff and other

similarly situated individuals to sexual harassment and failing to take prompt

remedial action to eliminate the harassment. The EEOC sought injunctive relief,

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back pay, compensatory relief, punitive damages, and other “necessary and

proper” relief on behalf of W olff and the class of similarly situated individuals.

      After the EEOC filed its action, W olff filed a motion to intervene,

identifying herself as the charging party in the EEOC complaint and asserting “a

right to bring an individual claim of sexual harassment” based on the allegations

discussed above. The district court granted W olff’s motion to intervene over the

objection of Dillard’s. Dillard’s then filed a motion to stay W olff’s intervention

in the EEOC proceeding pending arbitration, pursuant to 9 U.S.C. § 3. It argued

W olff was bound by the arbitration agreement and therefore could not participate

in the EEOC litigation. The magistrate judge recommended that the district court

grant Dillard’s motion to stay the proceedings as to W olff.

      In response, the EEOC and W olff filed a joint objection to the magistrate

judge’s recommendation. The district court rejected the recommendation and

denied the motion to stay. Relying on language from EEOC v. Waffle House,

Inc., 534 U.S. 279 (2002), it concluded that, as a result of the EEOC enforcement

action, W olff no longer had an independent cause of action that could be subject

to arbitration. Dillard’s then filed this appeal, arguing the district court erred in

denying the motion to stay W olff’s intervention and concluding that W olff had no

independent arbitrable claim.

      Following oral argument, W olff and Dillard’s participated in mediation and

eventually entered into a settlement agreement. Dillard’s and the EEOC,

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however, were unable to reach an agreement. Pursuant to the settlement

agreement, W olff and Dillard’s filed a stipulated dismissal with prejudice in the

district court. The district court then dismissed W olff’s complaint as plaintiff-

intervenor. Nevertheless, the EEOC has expressed its intent to proceed with its

public enforcement action against D illard’s on behalf of W olff and similarly

situated individuals. After reaching the settlement with W olff, Dillard’s filed

with this court a statement informing the court of the settlement and indicating its

position that the appeal is not moot. In response, the EEOC argued the settlement

between W olff and Dillard’s rendered the appeal moot.

III. Analysis

      Pursuant to Article III of the Constitution, federal court jurisdiction is

limited to the adjudication of live cases and controversies. M oongate Water Co.

v. Dona Ana M ut. Domestic W ater Consumers Ass’n, 420 F.3d 1082, 1088 (10th

Cir. 2005). “The controversy must exist at all stages of appellate or certiorari

review, and not simply at the date the action is initiated.” Id. (quotation omitted).

This court has “no power to give opinions upon moot questions or declare

principles of law which cannot affect the matter in issue in the case before it.”

Disability Law Ctr. v. M illcreek Health Ctr., 428 F.3d 992, 996 (10th Cir. 2005)

(quotation omitted). Because the existence of a live case or controversy is a

constitutional prerequisite to federal jurisdiction, mootness is a threshold issue

that must be addressed before this court may reach the merits of an appeal.

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M cClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996). An

appeal must be dismissed as moot “if an event occurs while a case is pending on

appeal that makes it impossible for the court to grant any effectual relief whatever

to a prevailing party.” Church of Scientology v. United States, 506 U.S. 9, 12

(1992) (quotation omitted).

      The EEOC argues the settlement between Wolff and Dillard’s and the

subsequent dismissal of W olff’s claim in intervention render this appeal moot. It

argues that even if this court were to agree with Dillard’s legal argument and

conclude the district court erred in denying its motion to stay W olff’s intervention

pending arbitration, it would be impossible for this court to provide any effectual

relief. This court agrees w ith the EEOC and concludes the appeal is moot.

      The basis for Dillard’s appeal was that the district court erred in concluding

W olff had no arbitrable claim and therefore refusing to grant Dillard’s motion to

stay W olff’s intervention pending arbitration. As a consequence, the sole relief

Dillard’s sought from this court was a reversal of the district court’s denial of the

motion to stay and an order directing the district court to grant the stay. Now that

W olff’s claim has been dismissed from the law suit, however, it no longer matters

whether the district court should have enforced the arbitration agreement and

stayed W olff’s participation in the litigation. In other words, because W olff is no

longer a party to the law suit, there is no claim to be stayed. Further, it is

undisputed that the arbitration agreement which forms the basis of the appeal does

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not bind the EEOC or preclude litigation between the EEOC and Dillard’s, the

only two remaining parties in this case. See W affle House, 534 U.S. at 294.

Thus, even if this court were to conclude W olff’s claim should have been subject

to arbitration and, correspondingly, that the district court erred in denying the

stay, no live controversy remains on this issue and this court cannot grant

Dillard’s any effectual relief. See United States v. Seminole Nation of Okla., 321

F.3d 939, 943 (10th Cir. 2002) (“Once such controversy ceases to exist, the action

is moot and this court lacks jurisdiction to adjudicate the matter.”).

      Dillard’s argues the settlement and dismissal of W olff’s claims do not

render the appeal moot because this court’s resolution of whether W olff had an

independent Title VII claim would affect the character of relief the EEOC could

recover in its ongoing enforcement action. It argues that if the district court

continues to treat W olff as having had no independent Title VII claim, it will

necessarily conclude that W olff has received no compensation for the violation of

her Title VII rights. As a result, Dillard’s argues, the district court will not limit

the relief in the EEOC action and, accordingly, may impermissibly allow “double

recovery.” See W affle House, 534 U.S. at 296-97.

      Even if Dillard’s is correct that the district court’s order on appeal will

influence its determination of appropriate relief in the enforcement action, a

conclusion that is far from certain, such an effect is too attenuated to alone form

the basis for a live case or controversy. W hile D illard’s contends this court’s

                                           -7-
resolution of the underlying issue on appeal “will have some effect in the real

world,” see Kennecott Utah Copper Corp. v. Becker, 186 F.3d 1261, 1266 (10th

Cir. 1999) (quotation omitted), it implicitly concedes that any such effect is

entirely contingent on the EEOC succeeding in the enforcement action. If the

EEOC ultimately does not prevail in its enforcement action, the question of

appropriate relief will become irrelevant and a decision by this court in D illard’s

favor w ould have provided Dillard’s no relief whatsoever. Additionally, even if

the EEOC does succeed, there is no indication it will necessarily seek the “double

recovery” on behalf of Wolff that Dillard’s argues is improper. The practical

effect of this court’s decision therefore depends entirely on (1) the EEOC

prevailing in its enforcement action, (2) the EEOC seeking duplicative relief on

behalf of W olff, and (3) the district court resolving the issue of appropriate relief

in the manner Dillard’s presumes it will. Such contingencies are “too conjectural

and speculative to avoid a finding of mootness.” Jones v. Temmer, 57 F.3d 921,

923 (10th Cir. 1995).

      By urging this court to decide w hether W olff had an independent Title VII

claim prior to settlement, Dillard’s effectively seeks a ruling from this court on an

abstract legal question that may, at some point in the future, have an effect on the

proceedings in the district court. It is well-settled, however, that “a federal court

has no authority to give opinions upon . . . abstract propositions.” Church of

Scientology, 506 U.S. at 12 (quotation omitted). W hile it is certainly true that in

                                          -8-
dismissing this appeal, this court fails to resolve the legal issues underlying

Dillard’s appeal, this court has previously recognized that “[i]n every case

dismissed as moot, legal questions are necessarily left unresolved.” Park County

Res. Council, Inc. v. United States Dep’t of Agric., 817 F.2d 609, 615 (10th Cir.

1987), overruled on other grounds, Vill. of Los Ranchos de Albuquerque v.

M arsh, 956 F.2d 970, 973 (10th Cir. 1992). Nevertheless, “[w]hen the underlying

facts illuminating the legal issue no longer exist,” this court’s exercise of

jurisdiction would constitute “an advisory opinion as to an abstract question of

law” in violation of Article III. Id. Because W olff no longer has a claim against

Dillard’s, the question of whether such a claim would be subject to arbitration is

purely hypothetical and abstract. Thus, Dillard’s appeal of the district court’s

denial of its motion to stay W olff’s intervention pending arbitration is moot.

IV. Conclusion

      For the foregoing reasons, this court dismisses the appeal of the district

court’s denial of D illard’s motion to stay all proceedings with respect to W olff’s

claim pending arbitration.

                                        ENTERED FOR THE COURT



                                        M ichael R. M urphy
                                        Circuit Judge




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