FILED
NOT FOR PUBLICATION
MAR 30 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROQUE ROCKY DE LA FUENTE, No. 16-56261
Plaintiff-Appellant, D.C. No.
2:16-cv-03242-MWF-GJS
v.
ALEX PADILLA, California Secretary of MEMORANDUM*
State and STATE OF CALIFORNIA,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Argued and Submitted March 10, 2017
Pasadena, California
Before: PAEZ, BERZON, and CHRISTEN, Circuit Judges.
Roque “Rocky” De La Fuente (“De La Fuente”) sought to have his name
listed as an independent presidential candidate on the November 2016 California
general election ballot. He refused, however, to comply with California Elections
Code §§ 8400 and 8403 (“Sections 8400 and 8403”), which impose signature
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
requirements on aspiring independent presidential candidates. Pursuant to 42
U.S.C. § 1983, De La Fuente filed a lawsuit against California Secretary of State
Alex Padilla (“Secretary”) and the State of California, challenging Sections 8400
and 8403 as unconstitutional under the First and Fourteenth Amendments, as well
as under the Elections Clause, U.S. Const. art. I, § 4, cl. 1.
In August 2016, De La Fuente filed a motion for a preliminary injunction,
seeking to enjoin the Secretary from enforcing Sections 8400 and 8403 against
him, and from printing the November 2016 general election ballot without De La
Fuente’s name listed as a candidate for President of the United States. The district
court denied De La Fuente’s motion, concluding that he failed to demonstrate a
likelihood of success on the merits.
De La Fuente appealed the district court’s order denying his motion for a
preliminary injunction. A motions panel of this court denied De La Fuente’s
emergency motion for an injunction pending appeal. The Secretary did not include
De La Fuente’s name on the November 2016 general election ballot, and now
argues that this appeal is moot. We agree, and therefore dismiss the appeal.
“The court . . . has no jurisdiction over an appeal that has become moot.”
Akina v. Hawaii, 835 F.3d 1003, 1010 (9th Cir. 2016) (per curiam). “An
interlocutory appeal of the denial of a preliminary injunction is moot when a court
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can no longer grant any effective relief sought in the injunction request.” Id. In
this case, we no longer may grant any effective relief. The November 2016 general
election is over, and there is no present risk that Sections 8400 and 8403 will be
applied to De La Fuente.
Although there is an exception to the mootness doctrine for “disputes that
are capable of repetition, yet evading review,” id. at 1011 (internal quotation marks
omitted), that exception has no applicability in this instance. Indeed, “[t]hat
exception is reserved for extraordinary cases in which (1) the duration of the
challenged action is too short to be fully litigated before it ceases, and (2) there is a
reasonable expectation that the plaintiffs will be subjected to the same action
again.” Id. (internal quotation marks omitted). Here, even assuming that De La
Fuente intends to run as an independent presidential candidate in 2020, there is
ample time to resolve his challenge to Sections 8400 and 8403 prior to that
election.
In dismissing the appeal as moot, we express no opinion on the merits of the
district court’s order. Because we dismiss the appeal, the Secretary’s motion for
judicial notice (Dkt. No. 16) is denied as moot.
DISMISSED.
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