                                                                       FILED
                                                           United States Court of Appeals
                                 PUBLISH                           Tenth Circuit

                UNITED STATES COURT OF APPEALS September 5, 2017
                                                              Elisabeth A. Shumaker
                      FOR THE TENTH CIRCUIT                       Clerk of Court
                      _________________________________

EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,

      Plaintiff - Appellant,

v.                                                    No. 16-1340

COLLEGEAMERICA DENVER,
INC., n/k/a Center for Excellence in
Higher Education, Inc., d/b/a
CollegeAmerica,

      Defendant - Appellee.

                       _________________________________

              Appeal from the United States District Court
                      for the District of Colorado
                 (D.C. No. 1:14-CV-01232-LTB-MJW)
                      _________________________________

Susan R. Oxford (P. David Lopez, General Counsel, Jennifer S. Goldstein,
Associate General Counsel, James L. Lee, Deputy General Counsel, Margo
Pave, Assistant General Counsel, and Paul D. Ramshaw, Attorney, on the
briefs), Equal Employment Opportunity Commission, Office of General
Counsel, Washington, D.C, for Plaintiff-Appellant Equal Employment
Opportunity Commission.

Raymond W. Martin (Craig R. May, with him on the brief), Wheeler Trigg
O’Donnell LLP, Denver, Colorado, for Defendant-Appellee
CollegeAmerica Denver, Inc.
                    _________________________________

Before KELLY, MURPHY, and BACHARACH, Circuit Judges.
                  _________________________________
BACHARACH, Circuit Judge.
                  _________________________________

        This appeal grew out of a dispute between a company and its former

employee. In that dispute, the company asserted certain legal positions that

an agency viewed as unlawful. In light of this view, the agency sued the

company in part for unlawful interference with statutory rights.

Responding to this suit, the company disavowed the legal positions known

to concern the agency. The company’s disavowal of these legal positions

led the district court to dismiss the agency’s unlawful-interference claim as

moot.

        For the sake of argument, we may assume that this ruling was correct

at the time. But the company then asserted a new theory against the former

employee, which the agency regarded as a continuation of the unlawful

interference with statutory rights. This development leads us to ask: Did

the agency’s unlawful-interference claim remain moot after the parties

disputed whether the company could lawfully assert its new theory against

the former employee? We think not and reverse the dismissal.

I.      CollegeAmerica’s Assertion of a New Theory After Obtaining
        Dismissal

        The company is CollegeAmerica Denver, Inc., and the former

employee is Ms. Debbi Potts. CollegeAmerica and Ms. Potts resolved a

dispute by entering into a settlement agreement. But CollegeAmerica later



                                      2
came to believe that Ms. Potts had breached the settlement agreement. This

belief led CollegeAmerica to sue Ms. Potts in state court.

      That suit sparked the interest of an agency, the Equal Employment

Opportunity Commission. The EEOC believed that CollegeAmerica’s

interpretation and enforcement of the settlement agreement was unlawfully

interfering with statutory rights enjoyed by Ms. Potts and the EEOC. Based

on this belief, the EEOC sued CollegeAmerica in federal court. The

EEOC’s claims included one for unlawful interference with statutory

rights.

      Seeking to blunt the unlawful-interference claim, CollegeAmerica

disavowed the legal positions known to trouble the EEOC. As a result, the

district court dismissed the unlawful-interference claim as moot.

      But the EEOC also had a retaliation claim, which remained for trial.

Defending against this claim, CollegeAmerica presented a new theory

against Ms. Potts: that she had breached the settlement agreement by

reporting adverse information to the EEOC without notifying

CollegeAmerica. The EEOC believed that by presenting this new theory,

CollegeAmerica was continuing to interfere with Ms. Potts’s and the

EEOC’s statutory rights.

      The EEOC appealed the dismissal of the unlawful-interference claim,

arguing that the claim is not moot in light of CollegeAmerica’s new theory.

We agree.

                                     3
II.    Standard of Review

       We review de novo whether a claim is moot. See WildEarth

Guardians v. Pub. Serv. Co. of Colo., 690 F.3d 1174, 1181 (10th Cir.

2012). In conducting de novo review, we consider which party bore the

burden of proof. Here that party is CollegeAmerica. See id. at 1183.

III.   Mootness and Voluntary Cessation

       Under Article III of the U.S. Constitution, the judicial power of the

federal courts is limited “to deciding actual ‘Cases’ or ‘Controversies.’”

Hollingsworth v. Perry, 570 U.S. ___, 133 S. Ct. 2652, 2661 (2013)

(quoting U.S. Const. art. III, § 2). A case or controversy does not exist

when a claim is moot. 1 Thus, moot claims must be dismissed. See Brown v.

Buhman, 822 F.3d 1151, 1165 (10th Cir. 2016), cert. denied, 137 S. Ct.

828 (2017).

       A claim is moot when a plaintiff loses a personal stake in the

outcome because of some intervening event. Campbell-Ewald Co. v.

Gomez, 577 U.S. ___, 136 S. Ct. 663, 669 (2016). In assessing mootness, we

consider whether a favorable judicial decision would have some effect in

the real world. Wyoming v. U.S. Dep’t of Agric., 414 F.3d 1207, 1212 (10th

Cir. 2005). If a plaintiff no longer suffers an actual injury redressable by a

1
      Mootness can be constitutional or prudential. See Jordan v. Sosa, 654
F.3d 1012, 1023 (10th Cir. 2011). The parties’ arguments discuss
constitutional mootness but not prudential mootness. Like the parties, we
address constitutional mootness rather than prudential mootness.

                                       4
favorable judicial decision, the claim is moot. Ind v. Colo. Dep’t of Corr.,

801 F.3d 1209, 1213 (10th Cir. 2015).

      A special rule applies when the defendant voluntarily stops the

challenged conduct. When the conduct stops, the claim will be deemed

moot only if two conditions exist:

      1.    “‘[I]t is absolutely clear the allegedly wrongful behavior could
            not reasonably be expected to recur.’” 2

      2.    “‘[I]nterim relief or events have completely and irrevocably
            eradicated the effects of the alleged violation.’” 3

IV.   CollegeAmerica’s Failure to Satisfy the First Condition

      In our view, the first condition is not satisfied, 4 for CollegeAmerica

continues to stand by its new theory of how Ms. Potts had breached the

settlement agreement.

      In arguing that the case is moot, CollegeAmerica invokes two

declarations from its general counsel. Through these declarations, the


2
      Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (quoting Friends
of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190
(2000)).
3
      Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d
1096, 1115 (10th Cir. 2010) (quoting Cty. of L.A. v. Davis, 440 U.S. 625,
631 (1979)).
4
     The EEOC suggests that in conducting our voluntary-cessation
analysis, we should consider whether CollegeAmerica has admitted
wrongdoing. For the sake of argument, we may assume that the absence of
an admission does not affect mootness. Even with that assumption, we
would reverse the district court’s determination of mootness.

                                      5
general counsel provided assurance that CollegeAmerica would not take

the positions known to trouble the EEOC.

      The EEOC urges us not to rely on these declarations, pointing to a

theory that CollegeAmerica presented after the filing of the declarations:

that Ms. Potts had breached the settlement agreement by reporting adverse

information to the EEOC without notifying CollegeAmerica. The EEOC

contends that this argument continues CollegeAmerica’s unlawful

interference with statutory rights.

      On appeal, CollegeAmerica stands by its new theory and apparently

plans to present it in the state-court suit against Ms. Potts. 5 These plans

create the potential for CollegeAmerica to repeat its allegedly wrongful

behavior. Thus, CollegeAmerica has not satisfied its burden of

demonstrating the absence of a potential for reoccurrence. In these

circumstances, we cannot find mootness based on voluntary cessation. 6


5
     CollegeAmerica’s state-court suit against Ms. Potts has been abated
and will resume once the federal litigation has ended.
6
      We need not decide whether the district court was right to dismiss
the claim based on the record as it then existed. Regardless of whether the
district court was right at the time, there is now a live case or controversy.
See Smith v. Allen, 502 F.3d 1255, 1267-68 (11th Cir. 2007) (concluding
that a claim was no longer moot because of developments that had taken
place after the district court ruled), abrogated on other grounds by
Sossamon v. Texas, 563 U.S. 277 (2011); Morris v. Lindau, 196 F.3d 102,
111 (2d Cir. 1999) (same conclusion with regard to multiple claims),
abrogated on other grounds by Lore v. City of Syracuse, 670 F.3d 127 (2d
Cir. 2012).

                                       6
V.    An Effect in the Real World

      CollegeAmerica also argues that the case is moot because the

outcome would not affect anything in the real world. We disagree.

      In its state-court suit, CollegeAmerica apparently plans to argue that

Ms. Potts breached the settlement agreement by reporting adverse

information to the EEOC without notifying CollegeAmerica. In the EEOC’s

view, this argument would constitute unlawful interference with Ms.

Potts’s and the EEOC’s statutory rights. Thus, the EEOC is seeking a

permanent injunction prohibiting CollegeAmerica from unlawfully

interfering with the statutory rights of Ms. Potts and the EEOC. Oral Arg.

at 11:36-48.

      If the EEOC prevails on the merits and obtains an injunction,

CollegeAmerica could not present its new theory in the state-court suit

against Ms. Potts. The inability to present this theory would constitute an

effect in the real world, preventing dismissal based on mootness.

VI.   The EEOC’s Alleged Inability to Bring Suit

      The EEOC brings its unlawful-interference claim under 29 U.S.C.

§ 626(f)(4). In district court, CollegeAmerica argued that this claim fails

as a matter of law, reasoning that § 626(f) could not “be used as an

affirmative cause of action, except in one narrow circumstance not

applicable here – when it is used by ‘plaintiffs in an [Age Discrimination

in Employment Act] action when an employer invokes the waiver,’

                                      7
including by seeking declaratory or injunctive relief.” Appellee’s

Supplemental App’x at 42 (quoting Whitehead v. Okla. Gas & Elec. Co.,

187 F.3d 1184, 1191 (10th Cir. 1999)); see id. at 25. The district court did

not address this argument.

      On appeal, CollegeAmerica similarly argues that § 626(f) does not

“‘provide plaintiffs with an independent cause of action for affirmative

relief,’ other than declaratory relief to negate a waiver asserted in an [Age

Discrimination in Employment Act] claim.” Appellee’s Resp. Br. at 26

(quoting Whitehead, 187 F.3d at 1191). We decline to address this issue in

the first instance, for “‘[t]he better practice on issues raised [below] but

not ruled on by the district court is to leave the matter to the district court

in the first instance.’” Rife v. Okla. Dep’t of Pub. Safety, 854 F.3d 637,

653 (10th Cir. 2017) (alterations in original) (quoting Greystone Constr.,

Inc. v. Nat’l Fire & Marine Ins. Co., 661 F.3d 1272, 1290 (10th Cir.

2011)). As a result, we leave this issue for the district court to consider on

remand.

VII. CollegeAmerica’s Newly Raised Basis to Affirm

      CollegeAmerica also argues that “the EEOC sought overly-broad,

unauthorized injunctive and declaratory relief.” Appellee’s Resp. Br. at 29.

But a district court cannot dismiss a claim solely because a plaintiff seeks

excessive or otherwise inappropriate relief. See Holt Civic Club v. City of

Tuscaloosa, 439 U.S. 60, 65 (1978) (“[A] federal court should not dismiss

                                       8
a meritorious constitutional claim because the complaint seeks one remedy

rather than another plainly appropriate one.”); see also id. at 66 (“[A]

meritorious claim will not be rejected for want of a prayer for appropriate

relief . . . .”). 7 Thus, we reject CollegeAmerica’s newly raised argument for

dismissal. 8

VIII. Disposition

      We reverse and remand for further proceedings consistent with this

opinion.




7
        Other circuits have long taken similar positions. See, e.g., Doe v.
U.S. Dep’t of Justice, 753 F.2d 1092, 1104 (D.C. Cir. 1985) (“[I]t need not
appear that the plaintiff can obtain the specific relief demanded as long as
the court can ascertain from the face of the complaint that some relief can
be granted.” (emphases in original)); id. at 1104 n.11 (“‘[P]laintiffs
frequently ask for the stars, and a complaint is not dismissable simply
because its proof would at most entitle the plaintiff to something less
. . . .’” (quoting Am. Jewish Cong. v. Vance, 575 F.2d 939, 950-51 (D.C.
Cir. 1978) (Robinson, III, J., dissenting)); Floyd v. Trice, 490 F.2d 1154,
1158 (8th Cir. 1974) (“Even if a complaint asks for relief beyond that
ordinarily permissible, the appropriate action is to tailor the relief rather
than to dismiss the complaint for failure to state a claim upon which relief
can be granted if in fact cognizable claims are pleaded.”); Norwalk CORE
v. Norwalk Redevelopment Agency, 395 F.2d 920, 925-26 (2d Cir. 1968)
(“[A] complaint should not be dismissed for legal insufficiency except
where there is a failure to state a claim on which some relief, not limited
by the request in the complaint, can be granted.” (emphasis in original)).
8
      CollegeAmerica also defends the legality of a non-disparagement
provision in the settlement agreement. For the sake of argument, we may
assume that the non-disparagement provision is lawful. This assumption
would not affect our analysis.

                                      9
