                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                 UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                  August 1, 2006

                                                        Charles R. Fulbruge III
                                                                Clerk
                          No. 05-30450



     SANDY MEADOWS; ET AL.,

                                     Plaintiffs,

     SHAMILLE PETERS; BARBARA PEACOCK; KAYODE HOWELL,

                                     Plaintiffs - Appellants,

                                v.

     BOB ODOM; ET AL.,

                                     Defendants,

     BOB ODOM; VAN COX; WALTER IMAHARA; RANDY HARRIS; HAROLD
     TANI; ROGER MAYES; STEPHEN HOOVER; MATTHEW KEPPINGER; PAUL
     COREIL; EMILY STICH; ROB BARRY, III; DONALD KELLY; THOMAS
     SPEDALE; RICHARD HEROMAN,

                                     Defendants - Appellees.



          Appeal from the United States District Court
              for the Middle District of Louisiana
                           (03-CV-960)



Before JONES, Chief Judge, BARKSDALE, and BENAVIDES, Circuit
Judges.

PER CURIAM:*

     Appellants Shamille Peters, Barbara Peacock, and Kayode Howell



     *    Pursuant to 5TH CIR. R. 47.5, this Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
filed this suit contending that the State of Louisiana has violated

their constitutional rights by requiring retail florists to submit

to a licensing examination. The exam is administered by Appellees,

members of the Louisiana Horticulture Commission.                               We, however, do

not reach       this    substantive         legal          question.           While    this   suit

progressed through the federal judicial system, an intervening

event, Hurricane Katrina, has changed the Appellants’ circumstances

in    relation     to     their    claims.                  Because       of     those     changed

circumstances, the case is no longer justiciable.                                     The case is

moot.



                  I.     FACTUAL BACKGROUND          AND   PROCEDURAL HISTORY

       In Louisiana, state law requires at least one licensed retail

florist at any florist business establishment.                                 See LA. REV. STAT.

§ 3:3808(B)(2).         To engage in the profession of retail floristry,

an individual is required to obtain a license for that occupation

or to become engaged with an employer, employee, or supervisor who

has     the    required     license         or       permit.          See       LA.     REV.   STAT.

§§    3:3804(C),(D),      3:3809.           To       obtain       that    required        license,

florists must pass an examination consisting of both written and

practical      portions.          See   LA.          REV.    STAT.    §    3:3807(A),(B)(2).

Appellants are applicants who have failed this examination.

       Appellants challenge the power of Louisiana to regulate the

florist       industry    through       a        suit       for    equitable           relief–both


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declaratory   and   injunctive.      They     argue   that    the   licensing

examination violates the substantive due process, equal protection,

and privileges or immunities clauses of the Fourteenth Amendment

because it is not rationally related to any legitimate governmental

purpose.   Appellees filed a motion to dismiss the equal protection

and privileges or immunities claims.            Shortly thereafter, the

parties filed cross motions for summary judgment on all of the

claims.    The district court granted the motion to dismiss on the

privileges or immunities claim, granted Appellees’ summary judgment

on the remaining two claims, denied Appellants’ summary judgment

motion, and dismissed the action.



                            II.   DISCUSSION

     At oral argument on this case, held on May 1, 2006, it came to

the attention of this Court that, due to Hurricane Katrina and its

aftereffects,   these   Louisianan       Appellants   may    no   longer   have

justiciable claims.1    To assist this Court in making this mootness

determination, we asked Appellants to submit a letter describing

the current circumstance of each Appellant.           On May 11, Appellants



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      “Mootness goes to the heart of our jurisdiction under
Article III of the Constitution. Therefore, we must consider
mootness even if the parties do not raise it, because ‘resolution
of this question is essential if federal courts are to function
within their constitutional spheres of authority.’” Texas Office
of Pub. Util. Counsel v. FCC, 183 F.3d 393, 413 n.16 (5th Cir.
1999) (quoting North Carolina v. Rice, 404 U.S. 244, 245 (1971)).


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submitted that letter, giving a description of each individual

Appellant’s current status.         Appellant Peters has relocated to

Mississippi and enrolled in a two-year medical program at a local

community college. She “has not made any specific plans” to return

to Louisiana.    Appellant Peacock lives in Shreveport, Louisiana,

but she has retired and has “no specific plans to seek full-time

employment as a florist or to open a wedding chapel” (as she

previously had planned).       Counsel has been unable to contact

Appellant   Howell   since   the   storm   and   does   not   have   contact

information for her.

     Appellants, in their letter, did not argue against mootness.

They only requested that, if this Court found the case moot, the

district court’s decision be vacated and remanded with instructions

to dismiss the case as moot.       In response, Appellees, in their May

16 letter, argue that this Court should decide the case to avoid

“waste.”    Appellees further contend, without citation, that the

parties have a continuing interest in the matter.              Taking into

consideration the updated facts and arguments of the parties, we

turn to the issue of justiciability.

     A.     The Mootness Doctrine

     The United States Constitution, Article III, section 2, clause

1, requires the existence of a case or controversy to support our

jurisdiction.    Amar v. Whitley, 100 F.3d 22, 23 (5th Cir. 1996).

The case or controversy doctrine underpins both standing and



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mootness.   Friends of the Earth v. Laidlaw Envtl. Servs. (TOC), 528

U.S. 167, 180 (2000).    Mootness is “the doctrine of standing set in

a time frame:     The requisite personal interest that must exist at

the commencement of litigation (standing) must continue throughout

its   existence   (mootness).”    United   States   Parole   Comm’n   v.

Geraghty, 445 U.S. 388, 397 (1980). The mootness doctrine “ensures

that the litigant’s interest in the outcome continues to exist

throughout the life of the lawsuit . . . including the pendency of

the appeal.”    McCorvey v. Hill, 385 F.3d 846, 848 (5th Cir. 2004).

      Here, there is no live case or controversy and mootness

applies.    We consider Appellants’ claim for injunctive relief

first.   Appellants could not obtain relief through an injunction.

No Appellant has shown that she continues to seek employment as a

florist in Louisiana at this time.      Therefore, no Appellant has

shown that she will be attempting to gain licensure from the state

to be in the florist business.     Therefore, no Appellant has shown

that she will be prevented from gaining that chosen employment

because of the state’s licensing scheme. In other words, enjoining

Louisiana from administering the exam will not afford relief for

these Appellants.      See Honig v. Students of Cal. Sch. for the

Blind, 471 U.S. 148, 149 (1985) (“No order of this Court could

affect the parties’ rights with respect to the injunction we are

called upon to review.”).        Accordingly, Appellants’ claim for

injunctive relief is moot.


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      Second, we consider Appellants’ declaratory relief claim.

Meltzer v. Bd. of Pub. Instruction, 548 F.2d 559, 568 (5th Cir.

1977) (“[Because] appellants have asked for both declaratory and

injunctive     relief     .    .   .   ,   we    have    the     ‘duty   to   decide   the

appropriateness         and    the     merits     of     the     declaratory     request

irrespective of its conclusion as to the propriety of the issuance

of the injunction.’”) (quoting Zwickler v. Koota, 389 U.S. 241, 254

(1967)).      To determine whether the declaratory relief claim is

moot, we examine whether Appellants’ claim falls within a mootness

exception. The only possibly applicable exception for this case is

the “capable of repetition, yet evading review” exception. S. Pac.

Terminal v. Interstate Commerce Comm’n, 219 U.S. 498, 515 (1911).

Under this exception, “[a]lthough a case may be technically moot,

a   federal     court    may       nevertheless         retain     jurisdiction    if   a

continuing controversy exists or if the challenged problem is

likely to recur or is otherwise capable of repetition.”                            Vieux

Carre Prop. Owners v. Brown, 948 F.2d 1436, 1447 (5th Cir. 1991).

      B.      The “Capable of Repetition, yet Evading Review” Exception

      Generally, the capable of repetition doctrine applies only in

“exceptional” situations where two circumstances simultaneously are

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.”                     Spencer v. Kemna, 523


                                             6
U.S. 1, 17 (1998) (internal citation and quotation marks omitted).

As to the second element, Appellants have not shown a “reasonable

expectation” or a “demonstrated probability” that they will reenter

the florist business or retake the exam.         See Oliver v. Scott, 276

F.3d 736, 741 (5th Cir. 2002).       Appellants are retired, no longer

residing in the state, or of unknown whereabouts.             They have no

current plans to apply for a florist license in Louisiana once

again.     Thus, as to these particular Appellants, the allegedly

wrongful behavior by the state reasonably could not be expected to

recur.   Yet, even if they demonstrated this reasonable expectation

of repeated state action, Appellants also fail to meet the other

requirement of the test.

     The   underlying   event   or   condition    is   not   of   such   short

duration that Appellants would be unable to obtain relief from

state action through litigation.         We follow the Supreme Court’s

ruling in Super Tire Engineering Co. v. McCorkle, which examined

the capable of repetition, yet evading review doctrine as it

applies to declaratory actions.          416 U.S. 115 (1974).        In that

case, the Supreme Court held that, where the exception applies, the

circumstances that gave rise to the injury no longer exist at some

point during litigation.    See id. at 125–26.         In other words, the

causal factor necessarily disappears.       For example, in Super Tire,

the Supreme Court was reviewing the mootness of an employer’s

attack on a New Jersey statute that allowed striking workers to


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obtain welfare benefits.       Id. at 116.          Before the case was

resolved, the strike ended.    Id.     Comparing the facts in Super Tire

to such cases as Roe v. Wade, 410 U.S. 113, 166 (1973), and to

cases   involving   state   election     laws,   the   Court   stated    that

“[e]conomic strikes are of comparatively short duration.”               Super

Tire, 416 U.S. at 126.        The Court concluded that a strike’s

termination “like pregnancy at nine months and elections spaced at

year-long or biennial intervals, should not preclude challenge to

state policies that have had their impact and that continue in

force, unabated and unreviewed.        The judiciary must not close the

door to the resolution of the important          questions these concrete

disputes present.”    Id. at 126–27.

     In cases involving strikes, pregnancies, or elections, the

causal event or condition will terminate and preclude a challenge,

unless it is cured by the exception.       Here, there is no underlying

event or condition that will cease before there can be judicial

intervention.   The only thing that has changed in the instant case

is the desire of Appellants to seek employment as a florist in

Louisiana.   That desire may have been dampened or changed because

of the uncontrollable aftereffects of a natural disaster, but each

Appellant has made her choice to no longer pursue a florist

license.     Louisiana’s    licensing     requirement    would   apply     to

Appellants in the same manner now as it did when they initiated the

challenge if they had not abandoned their pursuit of a career in


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retail floristry.      This is a highly different situation than that

presented in Super Tire.       Therefore, the exception articulated in

Super Tire does not apply to the facts presented in the instant

case.     In sum, Appellants fail to meet the mootness exception

applicable to cases capable of repetition, yet evading review.

     C.     Judicial Economy

     Appellees, however, argue that the case should not be deemed

moot because “[t]o abandon the case at an advanced stage may prove

more wasteful than frugal.”         Friends of the Earth, 528 U.S. at

191–92. The Supreme Court, however, also limited that sentiment in

light of the constitutional limits of federal courts:                    “This

argument    from   sunk   costs   does   not   license    courts   to   retain

jurisdiction over cases in which one or both of the parties plainly

lack a continuing interest . . . .”            Id. at 192.     As discussed

above,    Appellants   do   not   have   a   continuing   interest      in   the

litigation.    Therefore, sunk judicial costs are not a relevant

concern.



                             III.   CONCLUSION

     We deeply sympathize with Appellants for the disruption of

their lives caused by Hurricane Katrina.         However, sympathy cannot

remedy the fatal infirmity of their case.           Because this case is

moot, we vacate the district court’s ruling and direct the district

court to dismiss the action. See United States v. Munsingwear, 340



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U.S. 36, 39 (1950) (“The established practice of the Court in

dealing with a civil case from a court in the federal system which

has become moot while on its way here or pending our decision on

the merits is to reverse or vacate the judgment below and remand

with a direction to dismiss.”); see also Harris v. City of Houston,

151 F.3d   186   (5th   Cir.   1998)    (vacating   the   district   court’s

judgment on the basis of mootness and remanding the case with

instructions to dismiss as moot).




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