Prier v. Steed

F I L E D
United States Court of Appeals
Tenth Circuit

August 8, 2006
PU BL ISH
Elisabeth A. Shumaker
UNITED STATES COURT O F APPEALS Clerk of Court

TENTH CIRCUIT

STACEY D. PRIER,

Plaintiff - Appellant,
v.
No. 05-3251
GARY E. STEED, SEDGW ICK
CO UNTY SHERIFF,

Defendant - Appellee.

Appeal from the United States District Court
for the District of K ansas
(D.C. No. 04-CV-1387-JTM )

Larry G. M ichel, Kennedy Berkley Yarnevich & W illiamson, Chartered, Salina,
Kansas for the Plaintiff-Appellant.

Ed L. Randels, Office of the County Counselor, W ichita, Kansas, for the
Defendant-Appellee.

Before TA CH A, Chief Judge, BA LD OC K, and LUCERO, Circuit Judges.

L UC ER O, Circuit Judge.

Stacy Prier, a former employee of the Sedgwick County Sheriff’s Office,

appeals a district court declaratory judgment that she is prohibited from carrying a

firearm under federal law following her conviction in M unicipal Court in W ichita,
Kansas for disorderly conduct by fighting. Prior to final resolution of the

declaratory judgment claim, Prier dismissed with prejudice her underlying claim

that she was terminated from her employment in violation of the federal Family

M edical Leave Act (“FM LA”). Because the FM LA claim was dismissed, no

justiciable case or controversy exists as required by Article III of the constitution,

and thus this case is now moot. For this reason, we DISM ISS for lack of subject

matter jurisdiction.

I

W hile employed as a Sedgwick County Deputy Sheriff, Stacy Prier slapped

her husband during a domestic altercation at their home in W ichita, Kansas. She

was charged with violating W ichita’s domestic battery statute and, pending

resolution of the charges against her, the Sheriff’s Office relieved Prier of her

firearm but allowed her to continue employment as a civilian. Prier became

concerned that under the Brady Act, 18 U.S.C. § 922(g)(9), she would be

permanently prohibited from carrying a firearm if she was convicted of domestic

battery. Such a prohibition would prevent her from continuing her employment as

a Sedgwick County Deputy Sheriff because she would be unable to maintain her

certification as a law enforcement officer. 1 In an effort to avoid this result,

1
18 U.S.C. § 922(g)(9) (commonly referred to as the “Brady Act”) provides
that “[i]t shall be unlawful for any person . . . who has been convicted in any
court of a misdemeanor crime of domestic violence, to ship or transport in
(continued...)

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Prier’s counsel sought and obtained assurances from the prosecutor, Sedgwick

County Sheriff Gary Steed, an attorney with the Sedgwick C ounty Counselor’s

office, and additional Kansas law enforcement personnel that a guilty plea to a

reduced charge of disorderly conduct would not affect her certification. 2

Once Prier was sufficiently satisfied that her employment was not in

jeopardy, she pled no contest to disorderly conduct by fighting in violation of

Section 5.24.010(a) of the Code of the City of W ichita. 3 Soon thereafter, Prier

1
(...continued)
interstate or foreign commerce, or possess in or affecting commerce, any firearm
or amm unition; or to receive any firearm or ammunition which has been shipped
or transported in interstate or foreign commerce.”

Section 921(a)(33) of title 18 defines a “misdemeanor crime of domestic
violence” as an offense that:

(i) is a misdemeanor under Federal or State law; and
(ii) has, as an element, the use or attempted use of physical
force or the threatened use of a deadly weapon, committed by
a current or former spouse, parent, or guardian of the victim,
by a person with whom the victim shares a child in common,
by a person who is cohabitating with or has cohabitated with
the victim as a spouse, parent, or guardian, or by a person
similarly situated to a spouse, parent, or guardian of the
victim.
2
Prier’s counsel admits that he discussed only the effects of a general
conviction of disorderly conduct, as opposed to the more specific conviction of
disorderly conduct by fighting.
3
Section 5.24.010 of the W ichita M unicipal Code defines “disorderly
conduct” as follows:
Disorderly conduct is, with knowledge or probable cause to believe that
such acts will alarm, anger or disturb others or provoke an assault or other
(continued...)

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notified her supervisors at the Sheriff’s Office about the outcome of her criminal

proceedings and informed them that her conviction would not preclude her

reinstatement. Based on Prier’s representations, she was re-qualified for use of a

firearm and resumed her position as a Deputy Sheriff.

Relations between Prier and her supervisor, Captain M cKeel, grew sour

during the following month. Prier tells us M cKeel’s displeasure was the result of

his disappointment with her numerous absences immediately following her

reinstatement, despite the fact that these absences were approved as family and

medical leave. In any event, Captain M cKeel obtained a copy of the court records

relating to her conviction, and soon notified Prier that she had been recommended

for termination. Two weeks later, Prier w as terminated. In a letter explaining its

decision, the Sheriff’s Office informed Prier that she was fired because of her

lengthy disciplinary history and her M unicipal Court conviction, which reflected

poorly on the Sheriff’s Office. The Sheriff’s Office’s take on the matter was that

her conviction precluded her from possessing a firearm under the Brady Act,

making it impossible for her to do her job within the confines of federal law.

3
(...continued)
breach of peace:
(a) Engaging in braw ling or fighting; or
(b) Disturbing an assembly, meeting, or procession, not unlaw ful in
its character; or
(c) Using offensive obscene, or abusive language or engaging in
noisy conduct, tending to reasonably arouse alarm, anger or
resentment in others.

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 After failing to obtain relief through the Sheriff’s Office’s internal

grievance procedures and Kansas state court system, Prier filed suit in federal

court against Steed, alleging retaliatory discharge under the FM LA. Steed filed a

motion to dismiss, arguing that her termination was clearly justified as she was

unable to perform her job because she could not possess a firearm following her

M unicipal Court conviction. After the district court denied Steed’s m otion to

dismiss, Prier amended her complaint to include a claim for a declaratory

judgment that her M unicipal Court conviction did not disqualify her from

carrying a sidearm under federal law. Cross-motions for sum mary judgment were

filed by the parties on the declaratory judgment claim. W hile those motions were

pending, the parties agreed to dismiss the FM LA claim without prejudice. Citing

our unpublished decision in W oods v. City and County of Denver, 62 Fed. Appx.

286, 290 (10th Cir. 2003), which held that construction of the Brady Act

“standing alone, is not a cause of action, nor does it confer federal question

jurisdiction,” the district court found that the parties’ joint dismissal of the FM LA

claim deprived it of subject matter jurisdiction over the declaratory judgment

action, and dismissed the case. The Declaratory Judgment Act does not extend

the jurisdiction of federal courts; it only “enlarge[s] the range of remedies

available. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950).

Pow er to issue declaratory judgments must lie in some independent basis of

jurisdiction. Id Because the FM LA claim was dismissed without prejudice, Prier

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was able to file a second suit in federal district court using a complaint identical

to the one previously dismissed. At the outset of the second litigation, the parties

entered into a settlement agreement: Prier agreed to dismiss her claim under the

FM LA with prejudice following resolution of the declaratory judgment action in

exchange for the opportunity to be re-employed by the Sheriff’s Office.

Following the script laid out in the settlement agreement, both parties

immediately filed cross-motions for sum mary judgment on the declaratory

judgment claim, and the district court concluded that continued presence of the

FM LA claim provided it with jurisdiction to resolve the declaratory judgment

issue. Addressing the merits of Prier’s claim, the district court entered a

declaratory judgment that Prier’s conviction disqualified her from carrying a

sidearm under the Brady Act. Pursuant to their settlement agreement, Prier then

moved to dismiss the FM LA claim with prejudice, which was granted. Prier now

appeals the district court’s grant of declaratory judgment in favor of Steed.

II

Having dismissed her underlying FM LA claim with prejudice, Prier asks us

to determine the validity of a defense to that claim. W e cannot accommodate her

request. Article III of the Constitution requires that we only decide cases or

controversies, and thus prohibits us from resolving hypothetical legal questions

like the one before us, relevant only to the resolution of an already dismissed

dispute.

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 Although neither party has raised this issue, we have an obligation to

conduct an independent de novo review to “determine whether a case is moot

before proceeding to the merits.” C itizens for Responsible G overnment State

Political A ction Committee v. Davidson, 236 F.3d 1174, 1182 (10th Cir. 2000).

W e review for mootness “not only . . . at the initiation of the lawsuit, but . . . at

all stages of appellate or certiorari review.” Fischbach v. N.M . Activities Ass’n,

38 F.3d 1159, 1160 (10th Cir. 1994).

“Constitutional mootness doctrine is grounded in the Article III

requirement that federal courts may only decide actual ongoing cases or

controversies.” Seneca-Cayuga Tribe of Okla. v. Nat’l Indian Gaming Comm’n,

327 F.3d 1019, 1028 (10th Cir. 2003) (internal quotation and citations omitted).

If the issues in a case before us are “no longer live or the parties lack a legally

cognizable interest in the outcome,” the case is moot. Davidson, 236 F.3d at 1182

(internal citations and quotations omitted). A case may also become 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 of Ca. v. United States, 506 U.S. 9, 12 (1992) (quoting M ills v.

Green, 159 U.S. 651, 653 (1895)). “The crucial question is whether granting a

present determination of the issues offered . . . will have some effect in the real

world.” Davidson, 236 F.3d at 1182 (internal citations and quotations omitted).

Cf. Utah Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d 1248, 1263 (10th

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Cir. 2004) (M cConnell, J., concurring) (“It is not enough that a plaintiff wishes to

have the moral satisfaction of a judicial ruling that he w as right and his adversary

was wrong; the relief sought must have legal effect in determining the present and

future rights and obligations of the parties.”).

Actions under the Declaratory Judgment Act must comport with the same

mootness principles as any other suit. Cardtoons L.C. v. M ajor League Baseball

Players Ass’n, 95 F.3d 959, 965 (10th Cir. 1996); M iller v. Udall, 368 F.2d 548,

549 (10th Cir. 1966). Such actions will be moot unless the effect of our decision

settles “some dispute which affects the behavior of the defendant toward the

plaintiff.” Cox v. Phelps Dodge Corp., 43 F.3d 1345, 1348 (10th Cir. 1994).

Prier contends that this dispute is not moot. Her “employment with the

Sheriff,” she argues, “is completely dependent on the legal effect of her municipal

court conviction.” Steed agrees, noting Prier dismissed her FM LA claim in

exchange for the “opportunity” to be re-employed by the Sheriff’s Office “subject

to the decision in the declaratory judgment action.” Both parties are mistaken:

Any decision on our part would not resolve a “dispute which affects the behavior

of the defendant toward the plaintiff.” See Cox, 43 F.3d at 1348.

In Calderon v. Ashmus, 523 U.S. 740, 746 (1998), the Supreme Court

addressed an analogous issue. There, an inmate sought a declaratory judgment

that a federal habeas petition he planned to file would not be untimely under the

Antiterrorism and Effective Death Penalty Act. The Court held that no justiciable

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case or controversy under Article III was presented because the underlying

controversy was whether respondent was entitled to federal habeas relief, and a

decision by the Court would not resolve that controversy. Id. “[A]ny judgment in

this action would not resolve the entire case or controversy . . . , but would

merely determine a collateral legal issue governing certain aspects of their

pending or future suits,” and would have “have no coercive impact on the legal

rights or obligations of either party.” Id. at 747, 749. The Court specifically

stated that parties cannot bring declaratory judgment claims as to the validity of a

defense that may be raised in a future suit. Id. at 747.

Before us, the underlying controversy between these parties is whether the

Sheriff’s O ffice illegally terminated Prier. W hen Prier originally filed suit in

federal court alleging that her termination violated the FM LA, a case and

controversy was clearly present. However, the parties no longer seek a

determination as to the lawfulness of the actions of the Sheriff’s Office; Prier

dismissed that claim with prejudice. All that remains is a claim for a declaratory

judgment with respect to a collateral legal issue, whether Steed’s affirmative

defense to Prier’s claim under the FM LA was valid.

Resolution of this issue will have no coercive effect on the legal rights or

obligations of either party. It is true that Prier’s employment with the Sheriff’s

Office as a deputy is dependent on her ability to obtain certification as a law

enforcement officer. However, a declaratory judgment by this court that Prier is

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able to carry a firearm may provide Prier with the opportunity for reinstatement,

but will not provide Prier w ith a legal basis to demand reinstatement, or require

the Sheriff’s Office to change its behavior in any way tow ard Prier. M oreover,

Prier has not demonstrated a good chance of being likewise injured in the future:

Indeed, she has dismissed her claim to having been injured at all. See Facio v.

Jones, 929 F.2d 541, 544 (10th Cir. 1991) (holding that plaintiff cannot maintain

an independent declaratory judgment action unless he or she “can demonstrate a

good chance of being likew ise injured in the future”). As such, a declaratory

judgment in favor of Prier “would amount to nothing more than a declaration that

[she] w as wronged.” Green v. Branson, 108 F.3d 1296, 1300 (10th Cir. 1997).

Steed concedes that our jurisdiction is “tenuous,” but argues w e should

determine, nonetheless, that jurisdiction exists in this case. His arguments are

clearly meritless. That the parties stipulate that jurisdiction exists is of no import.

“[N]o action of the parties can confer subject-matter jurisdiction upon a federal

court. Thus, the consent of the parties is irrelevant” Ins. Corp. of Ireland, Ltd. v.

Compagnie des Bauxites de G uinee, 456 U.S. 694, 702 (1982); nor does Steed’s

claim that the parties relied on our subject matter jurisdiction in agreeing to fully

dismiss the FM LA claim affect our conclusion that the case is moot. Contrary to

Steed’s suggestion, there is no general federal “reliance” jurisdiction. Id.

(“Principles of estoppel do not apply”). Article III permits federal courts only to

decide cases or controversies, and the actions of the parties cannot rewrite the

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limitations imposed by the constitution. These legal propositions should not

surprise the parties; they are the same ones articulated by the district court in its

order dismissing this case for lack of jurisdiction before Prier refiled her

complaint. 4 Finally, the agreement that Prier has the opportunity to reapply for

her position as a Deputy Sheriff if we issued a declaratory judgment favorable to

her does not confer jurisdiction on this court. Federal courts do not have

jurisdiction to settle wagers between citizens about the meaning of federal law. A

conclusion that jurisdiction exists in this case would significantly undermine the

case or controversy requirement of Article III.

III

Accordingly, the case is DISM ISSED. See U.S. Bancorp M ortgage Co. v.

Bonner M all Partnership, 513 U.S. 18, 28 (1994) (proper procedure for addressing

cases that become moot on appeal due to settlement is dismissal, not vacature).

4
Because we conclude that the case is moot, we need not address a second
underlying question raised by this appeal: whether the parties colluded to create
an actual case or controversy before the district court. Steed states in his brief
that, when Prier refiled her complaint after it was dismissed for lack of
jurisdiction, “it was the intent of the parties [for] the [district] court to construe
[certain Brady Act] provisions.” It is clearly established that colluding to create
federal jurisdiction is strictly prohibited. United States v. Johnson, 319 US 302,
305 (1943).

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