Mary Brazil v. Arkansas Dept of Human Service

United States Court of Appeals

For the Eighth Circuit

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No. 17-2229

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Mary Brazil

lllllllllllllllllllllPlaintiff - Appellant

v.

Arkansas Department of Human Services; John Selig, Director, Department of

Human Services; Andy Allison, Director of Division of Medical Services; Marilyn

Strickland, Chief Operating Officer; Drenda Harkins, Assistant Director; Victor

Sterling, Manager; Doug Nelson, Manager; Tracy Mitchell, Manager

lllllllllllllllllllllDefendants - Appellees

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Appeal from United States District Court

for the Eastern District of Arkansas - Pine Bluff

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Submitted: April 11, 2018

Filed: June 12, 2018

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Before COLLOTON, SHEPHERD, and STRAS, Circuit Judges.

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STRAS, Circuit Judge.

Mary Brazil alleges that her supervisors at the Arkansas Department of Human

Services retaliated against her for filing a civil-rights lawsuit. With her retaliation

claim pending, Brazil changed jobs and is now free of the conditions that caused her

to sue. Because all that remains is a speculative possibility that Brazil will face

further retaliation, we vacate the district court’s judgment, remand the case, and

instruct the district court to dismiss her retaliation claim due to a lack of

subject-matter jurisdiction.

I.

Mary Brazil has spent over three decades working for the Arkansas Department

of Human Services, initially as a typist and more recently as an administrative

assistant. Brazil’s work environment began to deteriorate in 2010 when a

disagreement with her supervisor eventually led her to seek a transfer to another

division. When she did not receive a transfer, she sued the Department and several

of its officials for allegedly violating her civil rights, but none of her claims survived

summary judgment.1

Brazil’s work environment did not improve. Brazil believes that she received

lower performance evaluations in retaliation for the lawsuit. Brazil’s

supervisors—Victor Sterling, Doug Nelson, and Tracy Mitchell—also reassigned her

from performing traditional administrative-assistant tasks to working in a

document-scanning room. The new assignment required heavy lifting, long periods

of sitting, and repetitious activities. Though her official title remained the same,

Brazil regarded the assignment as a demotion because it required manual labor and

diminished her opportunities for promotion.

Brazil filed this lawsuit alleging retaliation and racial discrimination against

the Department and her supervisors. Over a year into the litigation, Brazil changed

positions. In her current job, Brazil reports to different supervisors and performs only

administrative-assistant duties.

1

See Brazil v. Ark. Dep’t of Human Servs., No. 4:13-CV-468-DPM, 2015 WL

1880096, at *3 (E.D. Ark. Apr. 23, 2015).

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For its part, the district court dismissed all of Brazil’s claims, except those

against her former supervisors. For the remaining claims, the court concluded on

summary judgment that Brazil had waived the race-discrimination claim and that the

retaliation claim failed as a matter of law. Only Brazil’s retaliation claim is currently

before us on appeal.

II.

Article III of the Constitution limits the jurisdiction of federal courts to

deciding only “Cases” or “Controversies.” U.S. Const. art. III, § 2, cl. 1. A case or

controversy must be present at the beginning of a lawsuit and must continue

throughout. “[W]hen the issues presented are no longer live or the parties lack a

cognizable interest in the outcome,” a case or controversy under Article III no longer

exists because the litigation has become moot. Already, LLC v. Nike, Inc., 568 U.S.

85, 91 (2013). We have recognized, for example, that a party loses a cognizable

interest when “changed circumstances already provide the requested relief and

eliminate the need for court action.” McCarthy v. Ozark Sch. Dist., 359 F.3d 1029,

1035 (8th Cir. 2004).

The circumstances have materially changed since Brazil first filed her lawsuit.

In addition to her transfer, which placed her under the direction of different

supervisors, the district court has narrowed the action. Early in the case, the court

dismissed the claims against all but Brazil’s former supervisors and separately

concluded that Brazil had waived her race-discrimination claim. Brazil did not appeal

either decision. For the lone claim remaining, one for retaliation against her former

supervisors, Brazil now seeks only injunctive relief requiring the Department to

transfer her to a suitable position under the direction of different supervisors.

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She has already received what she seeks. It is undisputed that she no longer

works in the same division or for the same supervisors. To be sure, a future transfer

could land her back under the control of her former supervisors, who could then

renew their retaliatory efforts. But a speculative possibility of future harm is not

enough to preserve a live case or controversy under Article III. Ashcroft v. Mattis,

431 U.S. 171, 172 n.2 (1977) (per curiam).

To satisfy the case-or-controversy requirement, a plaintiff seeking injunctive

relief to guard against future unlawful conduct must be under a “real and immediate

threat of injury.” City of Los Angeles v. Lyons, 461 U.S. 95, 103 (1983); see also

Mosby v. Ligon, 418 F.3d 927, 933 (8th Cir. 2005). A “conjectural or hypothetical”

possibility of future harm is insufficient. Lyons, 461 U.S. at 102 (internal quotation

marks and citation omitted). We have applied this principle to situations similar to

the one before us today.

For instance, we have held that an action seeking an injunction to alter prison

conditions becomes moot once the plaintiff transfers to another facility. See Smith

v. Hundley, 190 F.3d 852, 855–56 (8th Cir. 1999); Martin v. Sargent, 780 F.2d 1334,

1337 (8th Cir. 1985). It makes no difference that it is theoretically possible that the

plaintiff could return to the original facility and once again face the same conditions.

Cf. McAlpine v. Thompson, 187 F.3d 1213, 1217 (10th Cir. 1999) (holding that a

claim for injunctive relief to change prison conditions is moot once an inmate is

released even if it is theoretically possible that the inmate could violate

supervised-release conditions and be returned to the same prison). Similarly, a

plaintiff who once had his car unlawfully impounded could not seek to enjoin an

impoundment policy absent “evidence [of] a likelihood that he will be subjected [to

it] in the future.” Coleman v. Watt, 40 F.3d 255, 259 (8th Cir. 1994). Even though

there was no doubt that the plaintiff would continue to drive and could potentially

have his car impounded again, we held that he had presented no more than “a

speculative or hypothetical claim of future injury.” Id.

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The possibility of future injury is just as speculative and hypothetical in this

case, and perhaps even more so. Brazil transferred to a different division almost two

years ago and no longer reports to any of the supervisors from whom she seeks relief.

Only a far-fetched sequence of events could lead to additional harm of the sort the

injunction seeks to prevent. The supervisors would need to resume managing her

work, decide to retaliate against her for the unsuccessful lawsuit she filed in 2013,

and follow through with additional retaliatory actions. Cf. Lyons, 461 U.S. at 106

(recounting the highly unlikely sequence of events that would have to occur for the

plaintiff to once again encounter the chokehold policy he challenged). Nothing in the

record suggests that these events will unfold.2 Because Brazil is under no “real and

immediate” threat of future retaliation, her claim for prospective injunctive relief is

moot. Lyons, 461 U.S. at 102; see also Ali v. Cangemi, 419 F.3d 722, 724 (8th Cir.

2005) (en banc) (“If an issue is moot in the Article III sense, we have no discretion

and must dismiss [it] for lack of jurisdiction.”).

III.

We vacate, remand, and instruct the district court to dismiss Brazil’s retaliation

claim due to a lack of subject-matter jurisdiction.

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2

Indeed, Brazil’s counsel conceded at oral argument that “at this point, there

is no prospective injunctive relief that would be sufficient for her.” Oral Argument

Recording at 2:02–2:12, available at http://media.ca8.uscourts.gov/cgi-bin/oaByC

ase.pl?caseno=17-2229&getOA=Search.

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