IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 18, 2009
No. 09-60272
consolidated with Charles R. Fulbruge III
No. 09-60424 Clerk
BRIAN MOORE,
Plaintiff-Appellant,
versus
DELBERT HOSEMANN,
in His Official Capacity as Mississippi Secretary of State,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Mississippi
Before JONES, Chief Judge, SMITH and DeMOSS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Brian Moore sued the Mississippi Secretary of State (the “Secretary”) after
being left off that state’s 2008 presidential ballot. The district court dismissed
the suit as moot and denied Moore’s motion for costs and fees under Federal
Rule of Civil Procedure 4(d)(2). We reverse the dismissal and remand because,
No. 09-60272
although the case is not moot, we must abstain. Moore’s challenge, like many
election disputes, is based on an interpretation of uncertain state law, which
should be resolved at the state level before we consider wading into a constitu-
tional thicket. We affirm the denial of costs and fees.
I.
Moore was the 2008 presidential candidate for the Socialist Party USA and
was also selected as the Natural Law Party’s presidential candidate on the Mis-
sissippi ballot. Mississippi law requires all presidential candidates to submit
their qualifying papers to the Secretary “not less than sixty days previous to the
day of the election.” MISS. CODE ANN. § 23-15-785(2). For the 2008 election, the
sixty-day deadline fell on Friday, September 5. The statute does not explicitly
provide a specific time of day by which a candidate’s papers must be filed on the
due date, but in accordance with another statute, the Secretary’s office closes at
5:00 p.m.
On September 5, shortly after 5:00 p.m., taxi drivers hired by Moore ar-
rived at the Secretary’s office to deliver Moore’s papers, but the office had closed.
The drivers deposited Moore’s papers at the doorstep and left. Because Moore
did not meet the filing deadline, his name was left off the ballot.1
On September 16, Moore sued Delbert Hosemann in his official capacity
as Secretary, seeking a preliminary injunction to certify Moore for the presiden-
tial ballot and a preliminary and permanent injunction to prevent the Secretary
from enforcing any unauthorized deadlines for ballot qualification of presidential
candidates. Moore argued that his constitutional rights were violated when the
Secretary imposed the deadline without express legislative authority. The dis-
trict court denied Moore’s request for a preliminary injunction on September 29.
1
Moore’s vice-presidential running mate, Stewart Alexander, and the Natural Law Par-
ty were also parties. Moore alone appeals.
2
No. 09-60272
We subsequently denied Moore’s motion for a stay and preliminary injunction.
Moore appealed the denial of an injunction to this court but voluntarily with-
drew his appeal after the election had occurred.
Though the opportunity for an injunction had ended, Moore continued to
seek a declaratory judgment that the 5:00 p.m. deadline was unconstitutional.
The district court granted the Secretary’s motion to dismiss the complaint as
moot under Federal Rule of Civil Procedure 12(c). In response to Moore’s argu-
ment that his claim fell under the “capable of repetition, yet evading review” ex-
ception to mootness, the court found that there was no “reasonable expectation”
or “demonstrated probability” that Moore or any other Natural Law Party presi-
dential candidates would “again miss what they now know to be the 5:00 p.m.
deadline” for filing. The court recognized that this circuit has applied the moot-
ness exception when other individuals in the political process might challenge
a law, but held that in the present matter it did “not seem reasonably likely that
other prospective presidential/vice-presidential candidates will fail to timely file
their qualifying papers before . . . the office closes at 5:00 p.m.”
Moore moved for costs and fees pursuant to Federal Rule of Civil Proce-
dure 4(d) on the theory that the Secretary had not satisfied a mandatory require-
ment to waive service. The district court denied the motion.
On appeal, Moore renews his arguments that his claim falls under the “ca-
pable of repetition, yet evading review” exception and that the 5:00 p.m. deadline
is unconstitutional. Specifically, Moore contends that the Secretary exceeded his
authority in violation of Article II, § 1, cl. 2 of the United States Constitution,
which provides that each state shall choose presidential electors “in such manner
as the Legislature thereof may direct.” (Emphasis added.) The upshot of the
unauthorized deadline, says Moore, is that Mississippi violated his and voters’
First and Fourteenth Amendment rights to participate in the political process.
3
No. 09-60272
Moore also appeals the denial of his motion for costs and fees.2
II.
We first address whether this case is nonjusticiable because the comple-
tion of the election renders it moot. We review questions of subject matter juris-
diction, including the justiciability issue of mootness, de novo. Ctr. for Individu-
al Freedom v. Carmouche, 449 F.3d 655, 659 (5th Cir. 2006).
Mootness is “the doctrine of standing in a time frame. The requisite per-
sonal 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). “Generally, any set of circumstances that
eliminates actual controversy after the commencement of a lawsuit renders that
action moot.” Ctr. for Individual Freedom, 449 F.3d at 661. The Secretary con-
tends that such is the case here, that the occurrence of the November 2008 elec-
tion means that Moore can no longer seek meaningful redress for the constitu-
tional violations he alleges.
An important exception to the mootness doctrine, however, is “attacks on
practices that no longer directly affect the attacking party, but are ‘capable of
repetition’ while ‘evading review.’” Alvarez v. Smith, No. 08-351, 2009 U.S.
LEXIS 8941, at *10-*11 (U.S. Dec. 8, 2009) (citing Fed. Election Comm’n v. Wis.
Right to Life, Inc., 551 U.S. 449, 462 (2007); S. Pac. Terminal Co. v. ICC, 219
U.S. 498, 515 (1911)). To invoke that exception, a party must show that “(1) the
challenged action is in its duration too short to be fully litigated prior to cessa-
tion or expiration, and (2) there is a reasonable expectation that the same com-
plaining party will be subject to the same action again.” Wis. Right to Life, 551
2
Two appeals were docketed: No. 09-60272, the appeal of the dismissal as moot; and
No. 09-60424, the appeal of the dismissal of the motion for costs and fees. The appeals have
been consolidated.
4
No. 09-60272
U.S. at 462.
Moore satisfies the first prong: Election controversies are paradigmatic
examples of cases that cannot be fully litigated before the particular controversy
expires. See Ctr. for Individual Freedom, 449 F.3d at 661. We turn then, to the
second prong. There is good reason to suppose that Moore might fail that re-
quirement, because he has not averred that he is likely to run for President
again.
Following the lead of the Supreme Court, however, in election cases we
have applied the second prong somewhat loosely. In Center for Individual Free-
dom, id. at 662, we held that “even if it were doubtful” that the plaintiff would
again be affected by the allegedly offending election statute, “precedent sug-
gest[ed] that [the] case [was] not moot, because other individuals certainly
[would] be affected by the continuing existence” of the statute.3 It is true that
the Supreme Court’s most recent election law decisions, Davis v. FEC, 128 S. Ct.
2759 (2008), and Wisconsin Right to Life both noted that the plaintiffs had al-
leged they would again be adversely affected by the complained-of law. But the
Court still “has not . . . dismissed an election case as moot where the plaintiff
failed to allege that he would be governed by the same flawed law in the next
election.” Kucinich v. Tex. Democratic Party, 563 F.3d 161, 164 (5th Cir. 2009).
Thus, we remain “unwilling to dismiss [a] case as moot when ‘the issues properly
presented, and their effects . . . will persist as the [restrictions] are applied in
future elections.’” Id. at 165 (citing Storer, 415 U.S. at 737 n.8).
That is the situation here. The Secretary has made it plain that he in-
tends to enforce the 5:00 p.m. deadline in future elections. He adds that the
chance is very small that Moore or any other presidential candidate will miss the
3
Cf. Storer v. Brown, 415 U.S. 724, 737 n.8 (1974) (“The 1972 election is long over, and
no effective relief can be provided to the candidates or voters, but this case is not moot, since
the issues properly presented, and their effects on independent candidacies, will persist as the
California statutes are applied in future elections.”).
5
No. 09-60272
deadline again. That is beside the point, however. As long as the complained-of
deadline is in place, future candidates in Mississippi will be subject to it and will
need to conform to its demands. Thus, the effects of the deadline will persist.
Given the election law context, Moore’s complaint satisfies both prongs of the
mootness exception.
III.
Although Moore’s constitutional claim survives mootness, we decline to
reach the merits. Instead, we remand and urge the district court to consider
whether to abstain on the basis of Railroad Commission v. Pullman Co., 312
U.S. 496 (1941).
In Pullman, plaintiffs challenged, on both federal constitutional and state
law grounds, the authority of the Texas Railroad Commission to issue a racially
discriminatory order. The Supreme Court abstained from deciding the case, be-
cause it found that if Texas courts were to strike down the Commission’s action
on state law grounds, it would be unnecessary to decide the federal constitution-
al question.
As the Court later explained, the moral of Pullman was that “federal
courts should abstain from decision when difficult and unsettled questions of
state law must be resolved before a substantial federal constitutional question
can be decided. By abstaining in such cases, federal courts will avoid both un-
necessary adjudication of federal questions and ‘needless friction with state poli-
cies.’” Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984) (quoting Pullman,
312 U.S. at 500). “[F]or Pullman abstention to be appropriate . . . it must involve
(1) a federal constitutional challenge to state action and (2) an unclear issue of
state law that, if resolved, would make it unnecessary for us to rule on the feder-
al constitutional question.” Nationwide Mut. Ins. Co. v. Unauthorized Practice
of Law Committee, 283 F.3d 650, 653 (5th Cir. 2002). In other words, “[g]eneral-
6
No. 09-60272
ly, Pullman abstention is appropriate only when there is an issue of uncertain
state law that is fairly subject to an interpretation [by a state court] which will
render unnecessary or substantially modify the federal constitutional question.”
Baran v. Port of Beaumont Nav. Dist., 57 F.3d 436, 442 (5th Cir. 1995).
Pullman abstention is appropriate here. Moore challenges the Secretary’s
official actions on federal constitutional grounds. He alleges that by enforcing
the 5:00 p.m. deadline without express direction from the legislature, the Secre-
tary devised his own manner of appointing presidential electors, in violation of
Article II. As a result, Moore claims, his First and Fourteenth Amendment
rights to political participation were violated.
Moreover, the existence of a federal constitutional question is entirely con-
tingent on an unresolved interpretation of Mississippi law. The Secretary ar-
gues that by closing his office at 5:00 p.m. he was not creating election rules, but
merely following the existing laws enacted by the legislature. He points to provi-
sions of the Mississippi Code that provide for regular office hours. All state of-
fices, for example, are required to operate between 8:00 a.m. and 5:00 p.m., and
the Secretary is required to operate eight hours each weekday. See MISS. CODE
ANN. §§ 25-1-98, 7-3-3. In the Secretary’s view, then, he did not add to, or even
interpret, the sixty-day deadline in § 23-15-785(2), but rather complied with the
strict letter of three interrelated state statutes.
Moore contends that, to the contrary, because § 23-15-785(2) does not con-
tain its own mention of a closing time, the Secretary was required to keep his of-
fice open until midnight on September 5. Moore points out that a number of oth-
er Mississippi election statutes do mention 5:00 p.m. filing deadlines and that
presidential absentee ballots have a later receipt deadline than do ballots for
other offices.4
4
See MISS. CODE ANN. §§ 23-15-299(3), 23-15-309(1), 23-15-359(3), 23-15-361(1), 23-15-
(continued...)
7
No. 09-60272
The question of state law here is at leastSSand perhaps even more thanSS
“fairly subject” to the Secretary’s understanding. We abstain from deciding this
question of state law prematurely, however, because an authoritative answer
from the Mississippi courts in the Secretary’s favor would also dispose of any fed-
eral constitutional question. We therefore remand the constitutional claim to
the district court and urge it, likewise, to consider whether to abstain.
IV.
Moore claims he is entitled to costs and fees under rule 4(d), which re-
quires certain defendants, upon request, to waive service, and which allows
plaintiffs to cover expenses related to service if the defendant does not waive.
The district court found that Moore’s motion for costs and fees was without
merit. We agree.
Rule 4’s mandatory waiver provisions apply only to “[a]n individual, cor-
poration, or association that is subject to service under Rule 4(e), (f), or (h).”
FED. R. CIV. P. 4(d)(1). State governments, municipal corporations, and “other
state-created governmental organization[s],” along with the federal government
and foreign sovereigns, are not subject to mandatory waiver. As the 1993 Advis-
ory Committee Note to rule 4(d) explains:
The United States is not expected to waive service for the reason
that its mail receiving facilities are inadequate to assure that the
notice is actually received by the correct person in the Department
of Justice. The same principle is applied to agencies, corporations,
and officers of the United States and to other governments and enti-
ties subject to service under subdivision (j). Moreover, there are pol-
icy reasons why governmental entities should not be confronted
with the potential for bearing costs of service in cases in which they
ultimately prevail.
4
(...continued)
721(3), 23-15-807(e), 23-15-637.
8
No. 09-60272
Moore argues that the Secretary, even when sued in his official capacity,
should be considered an “individual” for purposes of rule 4’s mandatory waiver
provision. He is incorrect. The Advisory Committee Note expressly states that the
rationale for shielding the United States from the mandatory waiver-of-service
provisions also applies to its “agencies, corporations, and officers” and similarly “to
other governments and entities subject to service under subdivision (j).” Although
neither the rule nor the Advisory Committee note attempts to define which state
“entities” are similarly shielded from the mandatory waiver provisions, the most
reasonable reading of rule 4 affords state officers facing official capacity suits the same
consideration given to federal officers in the same position.
Nor is Moore’s reliance on First Circuit caselaw persuasive. In two in-
stances, that circuit held that state officials sued in their individual capacities
should receive process as individuals under rule 4(e) (and its predecessor) rather
than as state government entities under rule 4(j). See Echevarria-Gonzales v.
Gonzales-Chapel, 849 F.2d 24 (1st Cir. 1988); Caisse v. DuBois, 346 F.3d 213 (1st
Cir. 2003). Neither Echevarria nor Caisee, however, addressed whether a state
official was subject to mandatory waiver obligations under rule 4(d); instead,
both cases concerned whether plaintiffs had made adequate service on state
official defendants. For the reason stated above, we disagree with the First
Circuit’s reading of rule 4, at least insofar as the First Circuit’s reasoning
subjects state officers to the mandatory waiver provisions of the rule.5
A number of other courts have held that state officers sued in their official
5
The parties placed great emphasis on the holding in Will v. Michigan Dep’t of State
Police, 491 U.S. 58 (1989) that, for the purposes of a 42 U.S.C. § 1983 action for money
damages, “a suit against a state official in his or her official capacity is a suit against the
official’s office,” and also on the dictum that “a state official in his or her official capacity, when
sued for injunctive relief, would be a person under § 1983.” Will, 491 U.S. at 71, 71 n.10. This
emphasis on Will is misplaced. The question here is not about the definition of a “person”
under § 1983, but rather the definition of an “individual” under rule 4.
9
No. 09-60272
capacities are subject to service under rule 4(j) or its predecessor.6 We join them
in saying that a state official sued in his official capacity is not subject to the
mandatory waiver-of-service provisions of rule 4(d). Thus, we affirm the dismis-
sal of Moore’s motion for costs and fees.
For the reasons explained, the judgment is AFFIRMED in part and
REVERSED and REMANDED in part.
6
See, e.g., Libertarian Party v. Dardenne, 2009 WL 790149, at *5 (M.D. La. Mar. 24,
2009); Mack v. Fox, 2008 WL 4832995, at *3 (M.D.N.C. Nov. 4, 2008); Chapman v. N.Y. State
Div. for Youth, 227 F.R.D. 175, 179-80 (N.D.N.Y 2005); Randall v. Crist, 2005 WL 5979678,
at *2 (N.D. Fla. Nov. 1, 2005); Gaynor v. Martin, 77 F. Supp. 2d 272, 282 (D. Conn. 1999); Ban-
erjee v. Roberts, 641 F. Supp. 1093 (D. Conn. 1986).
10