               United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-2477
                         ___________________________

                  James E. Stevenson, III; Sharyn Stevenson

                              lllllllllllllllllllll Plaintiffs

  Heath Adkisson; Lori Adkisson; Ryan Braswell; Melissa Braswell; Oliver
Coppedge; Tracy Coppedge; George A. Hale, III; Stephanie Hale; Jeff Langston;
                             Missy Langston

                     lllllllllllllllllllll Plaintiffs - Appellants

                                            v.

                           Blytheville School District #5

                        lllllllllllllllllllll Defendant - Appellee
                                       ____________

                    Appeal from United States District Court
                for the Eastern District of Arkansas - Jonesboro
                                 ____________

                              Submitted: April 14, 2014
                               Filed: August 8, 2014
                                   ____________

Before SMITH, COLLOTON, and GRUENDER, Circuit Judges.
                           ____________

SMITH, Circuit Judge.
        On April 16, 2013, the Arkansas General Assembly enacted the Public School
Choice Act of 2013 ("the Act"). Act 1227, 2013 Ark. Acts 1227 (Apr. 16, 2013),
codified at Ark. Code Ann. § 6-18-1901 et seq. The Act contains a "broad school
choice transfer option." Teague v. Cooper, 720 F.3d 973, 976 (8th Cir. 2013). But the
Act also contains exemptions. In relevant part, it provides that "'[a] school district
annually may declare an exemption under this section if the school district is subject
to the desegregation order or mandate of a federal court or agency remedying the
effects of past racial segregation.'" Ark. Code Ann. § 6-18-1906(b)(1). The Act
requires a school district to "notify the [Arkansas Department of Education] by April
1" if the district intends to declare an exemption "in the next school year." Id. § 6-18-
1906(b)(3). The "exemptions under the 2013 Act are limited to individual school
districts that are subject to federal desegregation mandates." Teague, 720 F.3d at 977
n.2.

       Heath Adkisson, Lori Adkisson, Ryan Braswell, Melissa Braswell, Oliver
Coppedge, Tracy Coppedge, George A. Hale III, Stephanie Hale, Jeff Langston, and
Missy Langston (collectively, "appellants") have minor children who reside within
the area of the Blytheville School District #5 ("District"). The appellants applied to
transfer their children from the District to neighboring school districts, but the
District's Board of Directors subsequently adopted a resolution to exempt the District
from the 2013 Act under § 6-18-1906(b) on the basis that the District "is subject to
a desegregation order or mandate of a federal court of [sic] agency remedying the
effects of past racial segregation." The appellants brought suit against the District,
alleging that the district violated their constitutional rights when it resolved, for the
2013-2014 school year, to opt-out under § 6-18-1906(b) of the Act. They sued for
violations of their due process and equal protection rights under 42 U.S.C. § 1983 and
for violations of the Arkansas Civil Rights Act. Relevant to the present appeal, the
appellants also sought a preliminary injunction requiring the District to rescind its
resolution declaring the exemption for the 2013-2014 school year under the Act. The



                                          -2-
district court1 denied the preliminary injunction, and the appellants appealed.
Following oral argument, we sua sponte requested supplemental briefing on the issue
of whether the appeal of the order denying the preliminary injunction is moot. We
now hold that the present appeal is moot.



                                    I. Background
       In their motion for a preliminary injunction ("motion"), the appellants
requested, pursuant to Federal Rule of Civil Procedure 65(a), that the district court
enter a preliminary injunction enjoining the District to rescind its resolution to opt out
of the Act for the 2013-2014 school year. Because the terms of the preliminary
injunction are dispositive of our mootness finding, we set forth the relevant portions
of the motion below:

      Plaintiffs, in their Motion for Preliminary Injunction, state:

            1. The plaintiffs request that this Court enter a preliminary
      injunction enjoining Blytheville School District No. 5 ("Blytheville
      School District") to rescind its Resolution to opt out of Act 1227 of
      2013, also known as the Arkansas Public School Choice Act of 2013
      (the "Act") for the upcoming school year. FED. R. CIV. P. 65(a).

             2. The plaintiffs request that the Court set this matter for hearing
      on an expedited basis so that public school-choice transfer applications
      may be considered under the Act before non-resident districts must
      notify applicants of acceptances by August 1, 2013.

                                          ***




      1
       The Honorable Kristine G. Baker, United States District Court for the Eastern
District of Arkansas.

                                           -3-
      7. Based on the facts and the law, plaintiffs’ likelihood of success
on the merits is strong.

      a. Blytheville School District is a state actor under 42
      U.S.C. § 1983 and ARK. CODE ANN. § 16-123-105(a)
      because it is a duly created and existing school district
      under the laws of Arkansas.

      b. Blytheville School District violated plaintiffs' equal
      protection rights under the Fourteenth Amendment to the
      United States Constitution because its Resolution was
      arbitrary and capricious and an irrational act that denies
      plaintiffs the right to be treated the same as other similarly
      situated parents and children in the State of Arkansas.

      c. Blytheville School District violated plaintiffs' procedural
      due process rights under the Fourteenth Amendment to the
      United States Constitution because its Resolution deprives
      the plaintiffs of a protected property interest without
      adequate sufficient process.

      d. Blytheville School District violated plaintiffs'
      substantive due process rights under the Fourteenth
      Amendment to the United States Constitution because its
      Resolution was so completely arbitrary and capricious, and
      made in bad faith, that it shocks the conscience and
      frustrates plaintiffs' rights and expectations under the Act.

                                   ***

      11. The following exhibits are attached to this Motion:

                                 ***
      Exhibit C Board Resolution passed by the Blytheville
      School District on April 29, 2013;

                                   ***

                                   -4-
             WHEREFORE, and for all reasons appearing in the record,
      plaintiffs respectfully request that this Court issue its order:

             a. enjoining Blytheville School District to rescind the
             Resolution for the upcoming school year 2013-14 pending
             determination of the merits of this case.

             b. enjoining Blytheville School District to notify all
             adjoining school districts of the rescission of the
             Resolution;

             c. establishing an expedited briefing period and hearing on
             this matter;

             d. granting all other just and proper relief.

(Emphases added.)

                                      II. Discussion
      We undoubtedly possess "statutory jurisdiction over the instant appeal"
because the appellants' "complaint states federal causes of action under . . . 42 U.S.C.
§ 1983, and the appeal of the district court's [denial of the motion for] preliminary
injunction is permitted by 28 U.S.C. § 1292(a)(1)." Ind. Party of Richmond Cnty. v.
Graham, 413 F.3d 252, 255 (2d Cir. 2005). Section 1291(a)(1) "allows immediate
appeals of '[i]nterlocutory orders of the district courts . . . granting, continuing,
modifying, refusing or dissolving injunctions, or refusing to dissolve or modify
injunctions.'" Id. (alterations in original) (quoting 28 U.S.C. § 1292(a)(1)).

             Statutory authority, however, is not sufficient to satisfy the
      jurisdictional requirements of Article III of the Constitution. We are
      empowered by Article III to render opinions only with respect to "live
      cases and controversies," meaning, among other things, that "'if an event
      occurs while a case is pending on appeal that makes it impossible for the

                                          -5-
      court to grant any effectual relief whatever to a prevailing party,' we
      must dismiss the case, rather than issue an advisory opinion." ABC, Inc.
      v. Stewart, 360 F.3d 90, 97 (2d Cir.2004) (quoting Church of
      Scientology v. United States, 506 U.S. 9, 12, 113 S. Ct. 447, 121 L. Ed.
      2d 313 (1992) (internal quotation marks omitted)); see also Irish Gay
      and Lesbian Organization v. Giuliani, 143 F.3d 638, 648 (2d Cir.1998)
      (emphasizing that mootness is a jurisdictional bar to review that the
      court must recognize regardless of the parties' positions on the question).

Id. at 255–56.

        "[T]he appeal of a preliminary injunction is moot where the effective time
period of the injunction has passed." Brooks v. Georgia State Bd. of Elections, 59
F.3d 1114, 1119 (11th Cir. 1995) (emphases added); cf. Bacon v. Neer, 631 F.3d 875,
877 (8th Cir. 2011) ("[T]he appeal of an order denying a preliminary injunction
becomes moot if the act sought to be enjoined has occurred."); Curtis Industries, Inc.
v. Livingston, 30 F.3d 96 (8th Cir. 1994) (holding that the question of whether a
former employer was entitled to a preliminary injunction commanding former
employees to abide by noncompetition agreements was moot because the restraint on
competition, if valid, lasted only one year, and that year had passed by the time of the
appeal).

      In the present case, the relief requested in the appellants' motion for
preliminary injunction "was limited in its applicability to" the April 29, 2013
Resolution and the 2013-2014 school year. Graham, 413 F.3d at 256.2 Paragraph 1

      2
        See also Pacific Ins. Co. v. Gen'l Dev. Corp., 28 F.3d 1093, 1096 (11th Cir.
1994) (holding that "no meaningful relief remains for us to provide" because "the
injunction we are asked to review has expired by its own terms") Tropicana Prods.
Sales, Inc. v. Phillips Brokerage Co., 874 F.2d 1581 (11th Cir.1989) ("[T]he express
limitation Tropicana's motion set for itself has divested this Court of jurisdiction over
the appeal."); Leedom Management Grp., Inc. v. Perlmutter, 532 F. App'x 893, 895
(11th Cir. 2013) ("There is no live case or controversy regarding these two orders. By

                                          -6-
of the motion asks the district court to enter a preliminary injunction enjoining the
Blytheville District "to rescind its Resolution to opt out" of the 2013 Act "for the
upcoming school year." In ¶ 11, the plaintiffs make clear that by "Resolution" they
mean the "Board Resolution passed by the Blytheville School District on April 29,
2013." The motion pertains only to the April 29, 2013 Resolution; nowhere in their
motion do the appellants ask the court to enjoin the District from passing further
resolutions opting out of the 2013 Act. Moreover, the request for relief clarifies that
the appellants are seeking injunctive relief as it pertains to "the upcoming 2013-2014
school year," not future school years. The 2013-2014 school year is complete, and we
cannot "undo" the school year.

       In summary, nowhere in the motion do the appellants request that the district
court enjoin the District from passing further resolutions opting out of the Act in
future school years, which they could have requested. By the motion's own terms, the
time period in which the requested relief would have been effective has expired. See
Graham, 413 F.3d at 256.

       The appellants recognized the time-sensitive nature of the relief that they
requested as it pertains to the 2013-2014 school year in ¶ 2 of their motion. Paragraph
2 requested that the district court hold a hearing on the motion "on an expedited basis
so that public-school choice transfer applications may be considered under the Act
before non-resident districts must notify applicants of acceptance by August 1, 2013."
The district court granted this request and held an expedited hearing on the motion
prior to the August 1, 2013 deadline. But the appellants never requested an expedited
hearing before this court, and the deadline for non-resident districts to notify


its own terms, the preliminary injunction established by the two orders ended on
December 21, 2012. Therefore, the controversy over its geographic scope is no longer
'definite' or 'concrete,' and we cannot grant 'specific relief through a decree of a
conclusive character.'" (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240–41
(1937))).

                                         -7-
applicants for the 2013-2014 school year has long since passed. The challenged
school year is complete.

       The appellants attempt "to wedge [their] case into the mootness exception for
claims 'capable of repetition, yet evading review,' but this case does not fit." Simes
v. Ark. Judicial Discipline & Disability Comm'n, 734 F.3d 830, 835 (8th Cir. 2013)
(quoting Sosna v. Iowa, 419 U.S. 393, 399–400 (1975)).

       "[A] controversy is capable of repetition, yet evading review where both
       of the following two requirements are met: (1) the challenged action [is]
       in its duration too short to be fully litigated prior to its cessation or
       expiration, and (2) there [is] a reasonable expectation that the same
       complaining party [will] be subjected to the same action again."

Graham, 413 F.3d at 256 (second, third, and fourth alterations in original) (quoting
Van Wie v. Pataki, 267 F.3d 109, 113–14 (2d Cir. 2001)).

       Neither requirement for invoking this exception to the mootness doctrine is
satisfied in the present case. The controversy is not "capable of repetition" because
the requested preliminary injunction pertains only to the appellants' request for an
injunction permitting the appellants' children to exercise their school choice rights
under the 2013 Act for the 2013-2014 school year, not future school years. And, there
is no reasonable expectation that the appellants will be subject to the same action
again with regard to the 2013-2014 school year, as that school year is complete. As
the District points out, the issues implicated by the district court's denial of the motion
for preliminary injunction do not "evade review" "because [a]ppellants' request for
declaratory relief and for a permanent injunction raise the same underlying legal
questions that remain pending before the district court." This means that "[t]he issues
raised by [a]ppellants' request for permanent relief can be fully litigated before the
district court and, following the entry of final judgment in that court, can be reviewed
on appeal in this Court."

                                           -8-
      Finally, the appellants try to evade a mootness finding by arguing that "the
request for preliminary injunctive relief is not limited to a past event but includes 'all
other just and proper relief.'" This argument fails because the clear terms of the
motion—which the appellants crafted—state that the motion pertains to the April 29,
2013 Resolution and the 2013-2014 school year.

                                III. Conclusion
      Accordingly, we dismiss the appeal as moot.

COLLOTON, Circuit Judge, concurring in the judgment.

       Although the question is close, I concur in the judgment on the ground that
while this controversy is “capable of repetition” in relation to the 2014-15 school
year, the controversy need not “evade review” if the plaintiffs seek prompt rulings in
the district court and expedited appellate review on claims for preliminary injunctive
or permanent injunctive and declaratory relief. See Iowa Prot. and Advocacy Servs.
v. Tanager, Inc., 427 F.3d 541, 544 (8th Cir. 2005); Minn. Humane Soc’y v. Clark,
184 F.3d 795, 797 (8th Cir. 1999).
                         ______________________________




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