       IN THE UNITED STATES COURT OF APPEALS
                                       United States Court of Appeals
                FOR THE FIFTH CIRCUIT           Fifth Circuit

                                                                 FILED
                                                                August 16, 2010

                              No. 10-30585                      Lyle W. Cayce
                                                                     Clerk

HORNBECK OFFSHORE SERVICES, L.L.C.; BEE MAR - WORKER BEE,
L.L.C.; NORTH AMERICAN FABRICATORS, L.L.C.; BEE MAR, L.L.C.;
OFFSHORE SUPPORT SERVICES, L.L.C.; ET AL,

                                       Plaintiffs - Appellees
v.

KENNETH LEE SALAZAR, also known as Ken Salazar, In His Official
Capacity as Secretary, United States Department of the Interior; UNITED
STATES DEPARTMENT OF THE INTERIOR; MICHAEL R. BROMWICH,
In His Official Capacity as Director, Bureau of Ocean Energy Management,
Regulation and Enforcement; BUREAU OF OCEAN ENERGY
MANAGEMENT, REGULATION AND ENFORCEMENT, formerly known as
Minerals Management Service,

                                       Defendants - Appellants

FLORIDA WILDLIFE FEDERATION;
CENTER FOR BIOLOGICAL
DIVERSITY; NATURAL RESOURCES
DEFENSE COUNCIL; SIERRA
CLUB; DEFENDERS OF WILDLIFE,

                                       Intervenor Defendants
- Appellants

                     ______________________________

           Appeal from the United States District Court for the
                       Eastern District of Louisiana
                     ______________________________

Before JOLLY, DEMOSS, and DENNIS, Circuit Judges.
PER CURIAM ORDER:
       Before the panel is the July 30, 2010 motion, filed by the Secretary,
seeking to vacate the preliminary injunction of the May 28, 2010 drilling
moratorium (the May 28 Moratorium), on grounds of mootness. While the
Secretary has asserted substantial reasons suggesting mootness, this panel
has an insufficient record on which to address or decide at this time the
mootness issue for the following reasons:
       1. The Motion was filed with this panel after:
              a.     the Secretary filed a notice of appeal of the district court’s
order for a preliminary injunction on the May 28 Moratorium on June 24,
2010, pursuant to 28 U.S.C. § 1292(a)(1);**
              b.     the Secretary filed a motion to stay enforcement of the
preliminary injunction on June 25, 2010;
              c.     the motion to stay was denied on July 8, 2010;
              d.     the Secretary “rescinded and superseded” the May 28
Moratorium and issued the July 12, 2010 drilling moratorium (the July 12
Moratorium); and
              e.     the only record before this court is the appellate record
supporting the initial notice of appeal of the preliminary injunction on the
May 28 moratorium.
       2.     Due to the timing and circumstances described in the preceding
paragraph, the insufficiency of the appellate record does not permit us to
determine the facts, evidence, or expert testimony on which the Secretary
relied in issuing the July 12 Moratorium, and customarily this panel does not




       **
          Appellees also filed a declaratory judgment action on the merits of the May 28
Moratorium before the district court. Because the district court has not yet ruled on the
merits of the May 28 Moratorium, it is not part of the appeal to this court and is not before
this panel.
engage in the task of making such factual determinations in the first
instance.
      Because the mootness issue, if meritorious, should be decided at the
earliest time possible to avoiding wasting the time and resources of the
parties and the courts, we enter the following ORDER:
      The case is hereby REMANDED to the district court with instructions
that it consider the controversies raised by the Motion to Vacate the
Preliminary Injunction as Moot. The district court is instructed to conduct an
appropriate hearing, calling witnesses if necessary, which will permit the
district court to issue findings of fact and conclusions of law responsive to the
following questions:
            a.    Whether the Secretary has the authority under the
provisions of the Outer Continental Shelf Lands Act and the Administrative
Procedures Act to declare the provisions of the May 28 Moratorium to be
withdrawn, cancelled, and no longer in force and effect, especially given that
the May 28 Moratorium is the subject of a preliminary injunction issued by
the district court and an appeal filed by the Secretary under the provisions of
28 U.S.C. § 1292(a)(1).
            b.    Whether the evidence upon which the Secretary relied in
issuing the July 12 Moratorium and not asserted in the May 28 Moratorium
was available or unavailable to the Secretary when the May 28 Moratorium
was issued, and the nature of such additional evidence.
            c.    With respect to the scope and substance of the May 28
Moratorium and the July 12 Moratorium, what are the differences, if any,
and, considering such differences and any other circumstances—including
changed conditions, changed facts, and changed positions or subsequent
conduct of the parties—whether the preliminary injunction of the May 28
Moratorium was mooted by the issuance of the July 12 Moratorium.
      This is a LIMITED REMAND. This panel therefore retains jurisdiction
over the original interlocutory appeal of the preliminary injunction of the May
28 Moratorium, and jurisdiction over the determination of the Secretary’s
mootness contention.
      We instruct the district court and the parties to expedite the requests of
this limited remand. At the conclusion of the hearing and upon the district
court’s ruling, we instruct the district court to promptly file with the Clerk of
this Court the supplemented record and its findings and conclusions. The
parties shall have ten (10) days after such filing by the district court to file
simultaneous briefs with the Clerk of this Court.
      All briefing and arguments are hereby held in abeyance until further
orders of this panel. Accordingly, the setting of the interlocutory appeal for
oral argument on Wednesday, September 1, 2010 is withdrawn.
DENNIS, Circuit Judge, dissenting:
      I disagree with the order canceling oral argument and remanding this
case to the district court to decide (1) whether the Secretary is empowered by
the Outer Continental Shelf Lands Act to supersede his May 28 moratorium
order with his July 12 moratorium order, given that the first moratorium
order is subject to the preliminary injunction which has been appealed to us;
(2) whether evidence upon which the Secretary relied in his July 12
moratorium order was available when he issued his May 28 moratorium
order; and (3) whether the Secretary’s second moratorium order mooted his
first moratorium order and what are the differences between them.
      The interpretation of the powers of the Secretary under the Outer
Continental Shelf Lands Act is a legal question which this court is competent
to determine without necessitating a remand of this case to the district court.
Whether the district court’s preliminary injunction was properly issued is the
subject of the appeal now before us and must be decided by us before its effect
upon the Secretary’s powers can be determined. Assuming my colleagues are
correct that a comparison between the Secretary’s two moratorium orders and
two administrative records supporting them is necessary to our deciding the
Secretary’s motion to dismiss the preliminary injunction as moot, it is not
necessary or prudent to remand this case to the district court to obtain those
orders or records because we already have them.1 Finally, by all indications,


      1
       “[T]he record in an informal adjudication is the information the agency
considered at the time it reached the decision and its contemporaneous
findings. A court is left with the responsibility for assuring that the
information submitted to it has not been compiled for the litigation but was in
fact the information and findings the agency actually relied upon. . . . The
concept of the ‘record’ in administrative adjudications must be flexible. . . .
[M]any administrative adjudications need not replicate trial procedure and
hence the record in these proceedings must be allowed to differ from the
records compiled in formal proceedings.” 32 Charles Alan Wright et al.,
Federal Practice and Procedure § 3244, at 404-05 (1st ed. 2006).
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the present case and the preliminary injunction is not moot because the case
falls within at least three exceptions to the mootness doctrine.


                                       1.
      We have appellate jurisdiction to review the district court’s order
granting a preliminary injunction based on its determination under the
Administrative Procedures Act that the Secretary acted arbitrarily, based on
the administrative agency’s record, in issuing his May 28 moratorium of
deepwater drilling in the Gulf of Mexico. Our decision of whether the district
court justifiably enjoined the Secretary’s May 28 moratorium order will also
depend ultimately on whether, based on the administrative agency record, it
appears that the Secretary’s actions, in issuing his May 28 moratorium order,
were arbitrary, capricious or unlawful. This is not an ordinary civil suit upon
which the district court conducted a bench trial in which the parties
introduced the evidence directly into the court record; it is instead a judicial
review of an administrative agency’s order based on the agency’s
administrative record supporting that order.
      On July 12, the Secretary issued his second moratorium order
superseding his first May 28 moratorium order. Subsequently, the Secretary
moved this court to dismiss the district court’s injunction on the grounds it
had been mooted by his second and superseding moratorium order. In support
of his motion, the Secretary filed in this court his administrative agency
record supporting his July 12 second moratorium order.
      Consequently, because we already have both of the Secretary’s
moratorium orders and both of the administrative agency records supporting
those orders on file in this court, it is not necessary or prudent for us to
remand the case to the district court to take additional evidence for that
purpose. Neither this court nor the district court has jurisdiction to
reconstruct the administrative agency’s records upon which the Secretary
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based his actions in issuing his May 28 and July 12 moratorium orders.
Therefore, remanding the case to the district court to further develop the
record with respect to the Secretary’s moratorium orders is unnecessary,
futile and legally erroneous.


                                       2.
      This court’s motion panel was impressed by the plaintiffs’ showing of
severe economic distress and accordingly granted an expedited appeal which
has been set down before us for oral argument on September 1, 2010.
Remanding this case to the district court will require us to upset that oral
argument and thereby unduly delay our decision and defeat our previous
order of expedition. In my opinion we can decide whether this case is moot
from the record before us without referring to the Secretary’s second
moratorium order and supporting administrative record, and in any event, if
we need that order and record, we have them because the Secretary filed
them here with his mootness motion. Therefore, it would be more just and
expeditious for us not to waste time in remanding this case, but to defer the
Secretary’s motion to dismiss for mootness until we can discuss the motion
with counsel for the parties at oral argument, or else order the parties to file
memoranda immediately on whether we currently have all of the orders and
administrative records necessary to decide whether the injunction and the
case is moot. Further, it might be simpler and in the best interests of all of
the parties—to which they might stipulate—for us to simply proceed to decide
this matter promptly after the scheduled oral argument based on the two
moratorium orders and the two administrative records we now have.


                                      3.
     From every indication, neither the district court’s preliminary injunction
judgment nor the proceedings upon which it was based is moot, because this
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case falls within at least three of the exceptions to the mootness doctrine, viz.,
the voluntary cessation exception, the wrong capable of repetition yet evading
review exception, and the collateral consequences exception.
      “A case is not to be dismissed as moot if the defendant voluntarily ceases
the allegedly improper behavior but is free to return to it at any time.” Erwin
Chemerinsky, Federal Jurisdiction 139 (5th ed. 2007). “A case might become
moot if subsequent events made it absolutely clear that the allegedly wrongful
behavior could not reasonably be expected to recur. [However,] [t]he heavy
burden of persua{ding} the court that the challenged conduct cannot
reasonably be expected to start up again lies with the party asserting
mootness.” Id. at 141 (braces in original; brackets added) (quotation marks
omitted) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 189 (2000)). Thus, “the Court . . . has held that a repeal of a
challenged law does not render a case moot if there is a reasonable possibility
that the government would reenact the law if the proceedings were dismissed.”
Id. at 142 (citing City of Mesquite v. Aladdin’s Castle, Inc, 455 U.S. 283
(1982)). For instance, “[i]n Northeastern Florida Contractors v. Jacksonville,
[508 U.S. 656 (1993),] the Court refused to dismiss as moot a challenge to a
city ordinance that provided preference in contracting for minority-owned
businesses.” Id. at 142. “The Court explained that . . . ‘it [did not] matter that
the new ordinance differs in certain respects from the old one.’” Id. (quoting
Northeastern Fla. Contractors, 508 U.S. at 622). “The Court said that the new
statute posed the same basic constitutional question and thus repeal of the
earlier law did not moot the case.” Id. Similarly, the issuance of a second
moratorium, bearing many if not all of the attributes of the first moratorium,
should not moot the case. The arbitrary and capricious analysis posed by one
is similar to that passed by the other. Moreover, the Department of Interior
(“DOI”) has not carried its burden to show that the alleged wrongful behavior

                                        8
will not reoccur. If anything, the DOI’s decision to issue a second moratorium
with a similar scope to the first, based on similar evidence, counsels towards
assuming that if the first moratorium was arbitrary and capricious, then that
wrongful conduct has recurred with the second and could again recur through
later moratoriums.
      The exception for wrongs capable of repetition yet evading review is
“[p]erhaps the most important exception to the mootness doctrine.’”
Chemerinsky, supra, at 135. “[S]ome injuries occur and are over so quickly
that they always will be moot before the federal court litigation process is
completed.” Id. “When such injuries are likely to recur, the federal court may
continue to exercise jurisdiction over the plaintiff’s claim notwithstanding the
fact that it has become moot.” Id. (citing as “[a] seminal case” Southern Pac.
Terminal Co. v. ICC, 219 U.S. 498, 514-15 (1911), and stating that the case
allowed “a challenge to an Interstate Commerce Commission order that had
expired because the Court concluded that consideration of such orders should
not be defeated ‘as they might be, . . . by short term orders, capable of
repetition, yet evading review’” (alteration in Chemerinsky)). In Spencer v.
Kemna, 523 U.S. 1 (1998), the Court laid out a two-part test for the capable of
repetition yet evading review doctrine. It stated the doctrine should apply
“where the following two circumstances [are] simultaneously present: (1) the
challenged action [is] in its duration too short to be fully litigated prior to
cessation or expiration, and (2) there [is] a reasonable expectation that the
same complaining party [will] be subject to the same action again.” Id. at 17
(alterations in original) (quoting Lewis v. Continental Bank Corp., 494 U.S.
472, 481 (1990) (quotation marks omitted) .
      This exception clearly applies to the present case, granting us authority
to continue to exercise jurisdiction over the plaintiffs’ claims that the DOI’s
original drilling moratorium was arbitrary and must be set aside under the

                                       9
APA. First, as shown by the facts of the present case, the duration of the
moratorium is too short for it to be fully litigated prior to the cessation or
expiration of the moratorium. The DOI’s initial 6-month moratorium on
deepwater drilling would have expired on November 30, 2010. Regardless of
the second moratorium, it is unlikely, if not impossible, that, even under our
expedited schedule, all litigation and appeals regarding the first moratorium
would have been completed by November 30. Second, as the second
moratorium amply demonstrates, it is reasonable that the same complaining
party can be subject to the same injury. The DOI openly acknowledges that
the second moratorium reaches the same rigs as the prior moratorium and has
similar effects. Thus, to the extent that the plaintiffs were harmed by the prior
moratorium, they are similarly harmed by the new one.
      Moreover, I believe that the instant case is likely not to be moot because
there are “collateral consequences” stemming from the instant litigation.
“[G]enerally, [under the collateral consequences doctrine] so long as the
federal court’s decision is likely to have some effect in the future, the case
should not be dismissed even though the plaintiff’s primary injury has
passed.” Chemerinsky, supra, at 134. “The Supreme Court decision in Super
Tire Engineering Co. v. McCorkle [416 U.S. 115 (1974)] is particularly
instructive.” Id. “During a labor strike, the employers whose plants were
struck filed a lawsuit challenging a state law that permitted strikers to receive
public assistance through state welfare programs.” Id. at 134-35. “Although
the strike ended before the completion of the federal court litigation, the Court
held that the case was not moot because a federal court decision could
substantially affect future labor-management negotiations.” Id. at 135. Like in
Super Tire, a decision on whether the first moratorium was arbitrary and
capricious could inform and affect the parties’ future actions. It would allow
the DOI to know what kind of evidentiary record would be sufficient to sustain

                                       10
similar agency action in the future. Moreover, it would inform the plaintiffs
about the risk of future moratoriums and thus allow them to alter their
business models to take account of such risk. In this manner, the resolution of
the instant appeal has collateral consequences and thus it should not be
considered moot.
      In sum, neither this case nor the district court’s preliminary injunction
appears to be moot. We have every record and document necessary to decide
the Secretary’s mootness motion and this case on the merits. Therefore, a
futile remand of this case to the district court and cancellation of the oral
argument will do injustice to all of the parties by delaying rather than
expediting our decision of the mootness motion and this appeal on the merits.




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