Milwaukee Police Ass'n v. Board of Fire & Police Commissioners

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2314

M ILWAUKEE P OLICE A SSOCIATION AND

M ELISSA R AMSKUGLER,

Plaintiffs-Appellants,

v.

B OARD OF F IRE & P OLICE C OMMISSIONERS OF

THE C ITY OF M ILWAUKEE, E DWARD F LYNN , AND THE

C ITY OF M ILWAUKEE,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 09-C-1192—Rudolph T. Randa, Judge.

A RGUED S EPTEMBER 25, 2012—D ECIDED F EBRUARY 26, 2013

Before K ANNE, T INDER, and H AMILTON, Circuit Judges.

K ANNE, Circuit Judge. In June 2009, Melissa Ramskugler

found herself trapped in a frustrating liminal state. She

had satisfied the State of Wisconsin’s requirements to

become a police officer but had not yet completed the

additional probationary period mandated by Milwau-

kee’s Board of Fire & Police Commissioners. As a result,

2 No. 11-2314

when the Board fired Ramskugler, it claimed it did not

need to follow Wisconsin’s statutorily prescribed proce-

dures for terminating police officers. Feeling that she

was treated unfairly, Ramskugler sued. The Milwaukee

Police Association, the union representing Milwau-

kee officers, joined her. Together, they claimed that

Ramskugler was wrongfully deprived of property

without due process. After the district court granted

summary judgment in favor of the defendants, the plain-

tiffs appealed. Prior to oral argument, however, Rams-

kugler signed a complete settlement and release.

The union never had standing to bring suit on its own

behalf, and any claims previously derived from its mem-

bership are now moot. Accordingly, we dismiss this

appeal.

I. B ACKGROUND

In Wisconsin, police recruits must successfully

complete a period of probation before becoming fully

qualified officers. Statewide requirements are set by the

Law Enforcement Standards Board (“LESB”) and include

over 400 hours of training. See Wis. Stat. § 165.85. After

a recruit completes this curriculum, the local police

department requests that the LESB certify the recruit as

a “law enforcement officer.” In the City of Milwaukee,

however, LESB certification does not end the proba-

tionary period. As a city with a population over 150,000

people, Milwaukee is classified under Wisconsin law as

a “1st class” city. See Wis. Stat. § 62.05(1)(a). First class

cities have their own boards of fire and police commis-

No. 11-2314 3

sioners, which have the authority to “adopt rules to

govern the selection and appointment” of city police

officers. Wis. Stat. § 62.50(3)(b). Milwaukee’s Board has

interpreted that provision as conveying authority to

adopt more demanding probation requirements than

those mandated by the LESB. Specifically, no new recruit

in Milwaukee becomes a full officer until she has

accrued sixteen months of “actual active service.” Board

Rule XI, Section 7(a). Because the LESB curriculum is

often completed in less than sixteen months, a police

recruit in Milwaukee can remain in probationary

status even after satisfying the statewide requirements.

Melissa Ramskugler found herself mired in that

precise predicament. Ramskugler’s probation with the

Milwaukee Police Department (“the Department”) began

on October 8, 2007. Just three days later, Ramskugler

injured her right knee during training. To give her re-

cuperation time, the Department assigned Ramskugler

to clerical duties for approximately one month. Then,

in November, she was given 2.5 months of leave for

surgery on the injured knee. Ramskugler subsequently

returned to duty but remained in a clerical capacity for

a number of months. In that time, she obtained medical

clearance for unrestricted duty and then had to wait

for the next recruit class to begin.

On June 8, 2008, Ramskugler started training with that

class. Unfortunately, two weeks before graduating in

November, Ramskugler re-injured the same knee. She

had already completed the course requirements, how-

ever, so the Department still sent her name to the LESB

4 No. 11-2314

for certification. After more leave and a second surgery

on her knee, Ramskugler returned to clerical duties on

January 27, 2009. Then, in March, the LESB certified her.

At that point, Ramskugler was a “law enforcement

officer,” as defined by the LESB. Yet, she was still on

probation in the eyes of the Milwaukee Board. The

Board did not consider Ramskugler’s time performing

clerical duties as “actual active service.” Therefore, she

still had several more months of service to complete

before fulfilling Milwaukee’s sixteen-month proba-

tionary period. Doing so proved elusive for Ramskugler.

Months later, she had still failed to obtain a new medical

clearance for unrestricted duty. As a result, on June 11,

2009, Police Chief Flynn notified the Board that he had

terminated Ramskugler for being unable to proceed with

required training.

Subsequently, Ramskugler, along with the Milwaukee

Police Association (“MPA”), filed suit in the Milwaukee

County Circuit Court. Together, they argued that Rams-

kugler was deprived of property without due pro-

cess. Specifically, when firing Ramskugler, the Board

did not follow the provisions of Wis. Stat. § 62.50(11)-(18),

which set out mandatory procedures for terminating

police officers. These provisions require, for example,

discharge only “for cause and after trial,” Wis. Stat.

§ 62.50(11), and continued pay while a charge against

an officer is pending, Wis. Stat. § 62.50(18).1 Importantly,

1

When Ramskugler was discharged, § 62.50(18) guaranteed

continued pay and benefits to discharged officers pending a

(continued...)

No. 11-2314 5

these protections apply only to a “member of the police

force” or a “member of the force”—the two terms used

consistently throughout the provisions. See Wis. Stat.

§ 62.50(11)-(18). The statute, however, does not define

“member of the force,” nor does it distinguish proba-

tionary officers when using the term. In the absence of

further guidance, Ramskugler argued that the protec-

tions should apply to anyone who has completed the

state training requirements and has been certified by

the LESB.

The Board disagreed. It countered that Wis. Stat.

§ 62.50(3)(b) gives it the authority to set rules governing

appointment of officers; therefore, an appointee does

not become a “member of the force” until completing

the city’s extended probation. Since Ramskugler

had completed only the state, but not the city, require-

ments, the Board could end her employment without

following the statutorily prescribed procedures. See

Board Rule XI, Section 7(a). According to Ramskugler,

this reading of the statute is too broad; the state legisla-

ture did not give local boards the authority to extend

probationary periods beyond the time mandated by

the LESB.

1

(...continued)

due process review hearing. See Milwaukee Police Ass’n, Local 21

v. City of Milwaukee, 757 N.W.2d 76, 79 (Wis. Ct. App. 2008)

(quoting previous version of the statute). The statute was

later amended and now applies only to suspended officers.

See Wis. Stat. § 62.50(18).

6 No. 11-2314

The co-defendants—the Board, Edward Flynn (the

Police Chief), and the City—removed the case to the

United States District Court for the Eastern District of

Wisconsin. On May 23, 2011, that court issued an order

granting the defendants’ motion for summary judgment.

For unknown reasons, the district court did not address

the claims with respect to the MPA in that ruling. On

June 8, Ramskugler and the MPA timely filed a notice

of appeal. They challenged the grant of summary

judgment and requested that we certify two questions to

the Wisconsin Supreme Court: (1) whether the protec-

tions afforded by Wis. Stat. § 62.50 apply to someone in

Ramskugler’s position; and (2) whether the Board has

the authority to create probation requirements that

exceed those set by the LESB.

On July 15, while this appeal was pending, Ramskugler

signed a Settlement Agreement and General Release. This

Agreement released all claims against the defendants

and waived any right to a hearing or other process that

Ramskugler may have had. The Agreement also pro-

vided Ramskugler with $150,000 “for alleged compensa-

tory damages, for alleged personal physical injuries,

and for disputed workers’ compensation claims and

attorneys fees.” (Dkt. 11-2 at ¶ 3.) The Agreement, how-

ever, allowed for this appeal to continue “as a declaratory

judgment action only.” (Id. at preamble.) On July 21, the

MPA signed a separate Agreement that pledged not to

seek damages or attorney’s fees if it succeeded in this

appeal. (Dkt. 11-3 at ¶ 1.) Again, the Agreement allowed

this suit to proceed solely as a declaratory judgment. (Id.

No. 11-2314 7

at preamble.) The MPA has not identified any other

union member in Ramskugler’s position.2

II. A NALYSIS

To begin, we note that we need only address the claims

as they relate to the MPA. At oral argument, Appellants’

counsel acknowledged that, at most, only the MPA

could now bring suit. We agree. Under the Settlement

Agreement, Ramskugler no longer has a personal stake

in the outcome of this case. She has received monetary

compensation, waived any right to a hearing she may

have had, and has released all other potential claims. There

is no further relief this court can grant. Accordingly,

Ramskugler no longer satisfies the requirements of

federal jurisdiction. See Camreta v. Greene, 131 S. Ct. 2020,

2028 (2011) (“parties must have the necessary stake not

only at the outset of litigation, but throughout its course”);

see also Ameritech Corp. v. Int’l Bhd. of Elec. Workers, Local 21,

543 F.3d 414, 419 (7th Cir. 2008) (“settlements on appeal

2

Another probationary officer, Justin Solsvig, had also joined

the Amended Complaint. Solsvig stopped participating in

the suit midway through litigation; he neither joined

Ramskugler’s motion for summary judgment nor responded

to the Board’s reciprocal motion, which listed him as a party.

As a result, the district court granted summary judgment

against Solsvig in a footnote, and he did not file a Notice of

Appeal. We specifically asked the MPA at oral argument

whether another union member on the record was or had

been in Ramskugler’s position. Counsel said no.

8 No. 11-2314

generally result in the dismissal of an appeal”). The

MPA, however, still seeks reversal of the summary judg-

ment and certification of the two aforementioned ques-

tions to the Wisconsin Supreme Court. Appellees con-

tend that the MPA no longer has standing to bring

this claim and that, alternatively, its claims are also

moot. We address each argument in turn.

A. Standing

Article III, § 2 of the Constitution limits the jurisdiction

of federal courts to “Cases” or “Controversies.” Arizonans

for Official English v. Arizona, 520 U.S. 43, 64 (1997). As

such, federal courts are prohibited from rendering ad-

visory opinions; they cannot divine on “abstract dis-

pute[s] about the law.” Alvarez v. Smith, 130 S. Ct. 576, 580

(2009). This restriction is implemented in the principles

of justiciability, including standing. Flast v. Cohen, 392

U.S. 83, 95 (1968). Some components of standing derive

directly from Article III and are thus mandatory, whereas

other components are prudential and discretionary.

Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11-12

(2004). The requirements imposed by the Constitution

are three-fold: a litigant must show (1) that she has

“suffered a concrete and particularized injury that is

either actual or imminent”; (2) “that the injury is fairly

traceable to the defendant”; and (3) “that it is likely that

a favorable decision will redress that injury.” Massa-

chusetts v. EPA, 549 U.S. 497, 517 (2007) (citing Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). When an

organization seeks to assert standing, it can do so either

No. 11-2314 9

on behalf of itself or on behalf its members. The latter is

called associational standing. Here, the MPA claims it

has standing under both approaches.

1. Standing on Behalf of the MPA Itself

To bring suit in its own right, an organization must

itself satisfy the requirements of standing. See Havens

Realty Corp. v. Coleman, 455 U.S. 363, 378-79 (1982); see

also Disability Rights Wis., Inc. v. Walworth Cnty. Bd. of

Supervisors, 522 F.3d 796, 800 (7th Cir. 2008). Here, the

MPA fails to do so. It does not assert any injury to itself

as an entity. Rather, the MPA only alleges injuries to its

members, and such injuries are insufficient to establish

standing on an organization’s own behalf. Illustrating

this distinction well, Crawford v. Marion County Election

Board warrants consideration. 472 F.3d 949 (7th Cir. 2007)

(Crawford I), aff’d, 553 U.S. 181 (2008) (Crawford II). In

Crawford I, this court found that the Democratic Party

had standing in its own right to challenge the constitu-

tionality of a new Indiana law requiring voters to

present a photo ID. 472 F.3d at 951. Specifically, because

the Party alleged that it would be forced “to devote

resources to getting to the polls those of its supporters

who would otherwise be discouraged by the new law

from bothering to vote,” the organization itself had the

requisite injury-in-fact. Id.3

3

Although the Supreme Court agreed on little else when

reviewing this court’s opinion, a majority of the Justices ex-

(continued...)

10 No. 11-2314

Here, in contrast, the MPA has not pled any injury to

itself. In the Amended Complaint, the entire discussion

of the MPA’s interest was to claim that, “as a result of

having a duty to represent and advise its members on

matters related to [this litigation], the MPA possesses a

tangible interest in knowing the law as it may impact

its members, as well as ensuring that its members are

afforded due process.” (Am. Compl. at ¶ 3.) This

pleading leaves little doubt that the MPA’s claim to

standing derives entirely from its members. There is no

mention of any injury to the MPA as an organization,

such as having to expend greater resources to defend

members who were wrongfully terminated. Such failure

to allege injury in a complaint is fatal to standing, not-

withstanding new arguments made on appeal. See Disa-

bility Rights Wis., 522 F.3d at 801.

Yet, relying on North Shore Gas Co. v. EPA, the MPA

argues that the “probabilistic benefit” described in its

Amended Complaint is sufficient to confer standing.

930 F.2d 1239, 1242 (7th Cir. 1991). That theory miscon-

strues our precedent. In North Shore, the namesake com-

pany sought to enjoin construction of a boat slip that

would have made an environmental clean-up operation

more costly. Id. at 1241. Because the EPA had identified

North Shore as a party potentially responsible for pollu-

3

(...continued)

plicitly approved of how we handled the standing issue.

Crawford II, 553 U.S. at 189 n.7 (Stevens, J., lead opinion); id.

at 209 n.2 (Souter, J., dissenting).

No. 11-2314 11

tion to the site in question (and thus responsible for

the clean-up), North Shore could have been saddled

with that additional expense. Id. Ironically, the EPA was

compelling another company to construct the boat slip

that would have made the clean-up more expensive. Id.

In seeking an injunction, North Shore claimed that the

EPA failed to file the requisite environmental impact

statement and to obtain the necessary permit. Id. at 1241-

42. The EPA responded by challenging North Shore’s

standing. Id. at 1242. We held that “North Shore has

standing in the Article III sense—it would derive a

benefit if it won the suit, mainly because the construc-

tion of the new slip may increase the cost of cleaning

up the . . . site and North Shore may be socked with

that cost.” Id.

The result in North Shore is distinguishable from this

case. North Shore had standing not simply because it

stood to benefit from the outcome of the case but

because it also stood to lose money if the slip was con-

structed. Such economic harm is the prototypical injury-

in-fact. In other words, North Shore does not abrogate

the injury-in-fact requirement; it merely restates it. In

light of the above, the MPA has not presented this court

with a cognizable injury to itself. The MPA pled only

that it stood to benefit from knowing how the law limits

the Board’s powers. This mere desire for information

is not cognizable without a corresponding injury-in-fact,

which the MPA has not pled. Therefore, the organization

does not satisfy the first requirement for standing and

cannot bring suit on its own behalf. Addressing the

12 No. 11-2314

MPA’s own claims would produce an advisory opinion—

a task we cannot undertake.

In so holding, we do not imply that federal courts can

never hear cases regarding prospective injuries. To the

contrary, prospective injury, such as the threat of enforce-

ment, can indeed present a cognizable injury-in-fact.

See, e.g., Ctr. for Individual Freedom v. Madigan, 697 F.3d

464, 473-74 (7th Cir. 2012). We need not discuss such

principles here, however, since the MPA has pled no

injury at all, no less a prospective one.

2. Associational Standing

The MPA’s chances do not end there. Organizations

can also bring suit through associational standing—that is,

standing on behalf of their members. United Food &

Commer. Workers Union, Local 571 v. Brown Grp., Inc., 517

U.S. 544, 552 (1996). An organization has associational

standing if “ ‘([1]) its members would otherwise have

standing to sue in their own right; ([2]) the interests it

seeks to protect are germane to the organization’s

purpose; and ([3]) neither the claim asserted nor the

relief requested requires the participation of individual

members in the lawsuit.’ ” Id. at 553 (quoting Hunt v. Wash.

State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977)). The

first two of these requirements derive from Article III,

while the third is prudential. See id. at 555-57.

At this point, it is critical to distinguish between

mootness and standing. Standing is evaluated at the time

suit is filed. See, e.g., Friends of the Earth, Inc. v. Laidlaw

No. 11-2314 13

Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000) (“we

have an obligation to assure ourselves that [Friends of the

Earth] had Article III standing at the outset of the litiga-

tion”); Pollack v. U.S. Dep’t of Justice, 577 F.3d 736, 743 n.2

(7th Cir. 2009) (“a plaintiff must establish standing at

the time suit is filed and cannot manufacture standing

afterwards”); Perry v. Vill. of Arlington Heights, 186 F.3d

826, 830 (7th Cir. 1999) (“[t]he requirements of standing

must be satisfied from the outset”). In contrast, “[w]hen

a party with standing at the inception of the litigation

loses it due to intervening events, the inquiry is really

one of mootness.” Parvati Corp. v. City of Oak Forest,

630 F.3d 512, 516 (7th Cir. 2010).

The latter is the case here. Assuming the MPA had

standing when litigation began, its standing must have

derived from a member, because (as we have already

held) the MPA could not have brought suit on its own

behalf. Furthermore, only Ramskugler can continue

to serve as the member satisfying the first requirement

of associational standing. Two officers (including

Ramskugler) were listed in the Amended Complaint,

but the other stopped participating in the suit midway

through litigation and no longer has an active claim.

In addition, the MPA’s counsel said at oral argument

that the union has no other member in Ramskugler’s

position. Thus, with only Ramskugler left, whether this

appeal can proceed depends upon whether her Settle-

ment Agreement shattered the MPA’s standing. Because

Ramskugler signed that Agreement over a month after

filing this appeal, the question is one of mootness, not

standing.

14 No. 11-2314

This distinction highlights the difference between the

two ways in which the MPA sought to sue. The claims

allegedly brought on the MPA’s own behalf are appropri-

ately settled under the doctrine of standing. The MPA

could not have filed those claims in the first instance,

regardless of Ramskugler’s settlement, because the

MPA never pled any injury-in-fact to itself. In contrast,

the claims brought on behalf of members are more ap-

propriately decided as a question of mootness because

the MPA likely had associational standing at the time

the complaint was filed. We addressed the requirements

of associational standing here, however, because they

bear heavily on the mootness analysis that follows.

B. Mootness

When considering the mootness of this case, we must

address two separate inquiries. First, we consider gen-

eral mootness doctrine. Then, we address the exception

for parties who continue to seek declaratory relief

from an ongoing policy, even after the specific event

precipitating the challenge has become moot. The

MPA’s case presents that situation. We established

earlier that we can no longer grant relief to Ramskugler.

But, according to the MPA, there is an ongoing policy

at issue: the Board’s claimed authority to terminate

an LESB-certified officer without providing statutory

process, so long as the officer is still in the city’s extended

probationary period. See Board Rule XI, Section 7(a). As

we will discuss later, there is some tension between

applying general mootness doctrine and allowing policy

No. 11-2314 15

challenges to proceed. Yet, we need not resolve any

potential discrepancy today. Here, both approaches lead

to the same result: the MPA’s claims brought on behalf

of its members are now moot.

1. General Mootness Doctrine

As alluded to earlier, mootness is “the doctrine of

standing set in a time frame”; that is, “[t]he requisite

personal interest that must exist at the commencement of

the litigation (standing) must continue throughout its

existence (mootness).” Friends of the Earth, 528 U.S. at

189; Arizonans for Official English, 520 U.S. at 68 n.22;

Parvati Corp., 630 F.3d at 516. Thus, mootness doc-

trine requires re-evaluating the standing requirements

throughout litigation. If at any point the plaintiff would

not have standing to bring suit at that time, the case

has become moot.

Yet, after using this “time frame” notion to describe

mootness for decades, the Supreme Court has recently

recognized that the approach is “not comprehensive.”

Friends of the Earth, 528 U.S. at 190. Specifically, the

Court said that the “time frame” conception does not

account for some well-established exceptions to

mootness—a defendant’s voluntary cessation of conduct

and situations “capable of repetition, yet evading re-

view.” Id. If the mootness inquiry ended at re-evaluating

standing, then cases falling within these exceptions

would fail, even though settled mootness doctrine

allows them to proceed. Notwithstanding these atypical

cases, we have continued to use the “time frame” con-

16 No. 11-2314

ception as a generally accurate description of the rela-

tionship between standing and mootness. See, e.g.,

Parvati Corp., 630 F.3d at 516; Laskowski v. Spellings, 546

F.3d 822, 824 (7th Cir. 2008). Our sister circuits have

done the same. See, e.g., La. Envtl. Action Network v. City

of Baton Rouge, 677 F.3d 737, 744 (5th Cir. 2012); Lebron

v. Rumsfeld, 670 F.3d 540, 561-62 (4th Cir. 2012); Diop v.

ICE/Homeland Sec., 656 F.3d 221, 226 (3d Cir. 2011); Sanford

v. MemberWorks, Inc., 625 F.3d 550, 556 (9th Cir. 2010);

Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1189

n.16 (11th Cir. 2007); Ramirez v. Sanchez Ramos, 438 F.3d

92, 97 (1st Cir. 2006).

Applying the “time frame” approach to this case, we

find that any claims the MPA may have originally had

on behalf of its members are now moot. Because the

inquiry centers on whether the requirements for

standing “continue throughout [the] existence” of the

litigation, Friends of the Earth, 528 U.S. at 189, we return to

the prerequisites of associational standing. Here, the

controversy surrounds the first requirement: whether

any “members would otherwise have standing to sue

in their own right.” United Food & Commer. Workers

Union, 517 U.S. at 553. Ramskugler no longer fulfills

that role for the MPA. If she were to file suit today, she

would lack standing because she does not have a

redressable claim—her Settlement Agreement waived

any sort of relief this court could grant her. Without

establishing standing in her own right, Ramskugler

cannot be used by the MPA to satisfy the first require-

ment of associational standing.

No. 11-2314 17

Furthermore, the MPA does not have any other

members who could fulfill that requirement. Neither in

its briefs, nor at oral argument, did the MPA reference

any other person in Ramskugler’s very specific liminal

state: an individual, who was certified by the LESB, but

not yet through the Board’s extended probationary

period, and was thus terminated without the protec-

tions accorded by Wisconsin statute. Without another

member in that particularized position, the MPA cannot

assert associational standing. Therefore, if mootness

were merely a question of standing in a time frame, then

the MPA’s claims would be unquestionably moot.

2. Mootness in Challenges to Ongoing Policies

Our mootness inquiry, however, is not complete. Some

cases hold that disputes over an ongoing policy may

continue, even after the specific offense precipitating the

suit has become moot. See, e.g., Super Tire Eng’g Co. v.

McCorkle, 416 U.S. 115, 121-24 (1974); Del Monte Fresh

Produce Co. v. United States, 570 F.3d 316, 321 (D.C. Cir.

2009); Or. Advocacy Ctr. v. Mink, 322 F.3d 1101, 1118 (9th

Cir. 2003). In those cases, if a litigant challenges the

policy through a declaratory judgment, then the case

should proceed when “ ‘the facts alleged, under all the

circumstances, show that there is a substantial con-

troversy, between parties having adverse legal interests,

of sufficient immediacy and reality to warrant the

issuance of a declaratory judgment.’ ” Super Tire Eng’g

Co., 416 U.S. at 122 (quoting Md. Cas. Co. v. Pac. Coal & Oil

Co., 312 U.S. 270, 273 (1941)). In addition, the ongoing

18 No. 11-2314

policy must be a “continuing and brooding presence”

that “casts . . . a substantial adverse effect on the in-

terests of the petitioning parties.” Id.

The foundational Supreme Court case establishing

this mootness exception is Super Tire Engineering Co. v.

McCorkle, 416 U.S. 115. In that case, New Jersey state

regulations provided welfare benefits to striking work-

ers. Id. at 116. A company sought two forms of relief: an

injunction to prevent the State from using funds for

those benefits and a declaratory judgment to find that

several federal laws preempted the state regulations. Id.

at 118-19. Before the district court could rule, the strike

at issue ended. Id. at 120. Although the district court

still reached the merits, the Third Circuit remanded

with instructions to dismiss the case as moot. Id. at 120-

21. The Supreme Court, however, found that the claim

for declaratory relief still presented a live controversy.

Id. at 122. Even though intervening events had settled

the act precipitating the suit, the case was not moot

because “the challenged governmental activity . . . has not

evaporated or disappeared, and, by its continuing and

brooding presence, casts . . . a substantial adverse effect

on the interests of the petitioning parties.” Id. The

Court also found that the case fit within the “capable of

repetition, yet evading review” exception, but that was

merely an alternative holding. Id. at 125-26.

Subsequent cases support finding a separate excep-

tion for mootness when a suit challenges a policy

with the kind of lasting effects discussed in Super Tire

Engineering Co. See, e.g., Reno v. Bossier Parish Sch. Bd., 528

No. 11-2314 19

U.S. 320, 327-28 (2000) (declaratory judgment on the

propriety of electoral redistricting is not moot, even

when the next election will not occur until after data

from the next census becomes available, because the

previous redistricting, if valid, will form the baseline

upon which to judge future redistricting), superseded on

other grounds by statute, 42 U.S.C. § 1973c(c); Del Monte

Fresh Produce Co., 570 F.3d at 321 (“a plaintiff’s challenge

will not be moot where it seeks declaratory relief as to

an ongoing policy”); N.Y. Civil Liberties Union v. Grandeau,

528 F.3d 122, 129-30 (2d Cir. 2008) (Sotomayor, J.) (chal-

lenge to an order to report certain billboard expenses

as lobbying activity is not moot, even when the dispute

about the particular billboard has ended, because there

was a challenge to an alleged ongoing policy); Borden v.

Sch. Dist. of Twp. of E. Brunswick, 523 F.3d 153, 165 n.6

(3d Cir. 2008) (challenge by school board to the district

court’s finding that a regulation was facially unconstitu-

tional is not moot, even when the contract of the faculty

member challenging the regulation expired, because the

school board cannot enforce the regulation as to any

other faculty members); Harris v. City of Houston, 151 F.3d

186, 191 n.5 (5th Cir. 1998) (“[r]equests for declaratory

relief may sustain a suit only when the claims challenge

some ongoing underlying policy rather than merely

attacking an isolated action”) (internal quotation marks,

brackets, and ellipses omitted); City of Houston v. Dep’t of

Hous. & Urb. Dev., 24 F.3d 1421, 1428 (D.C. Cir. 1994) (“[i]t

is well-established that if a plaintiff challenges both a

specific agency action and the policy that underlies that

action, the challenge to the policy is not necessarily

20 No. 11-2314

mooted merely because the challenge to the particular

agency action is moot”).

There is tension, however, between applying the

“time frame” approach to mootness and preserving

challenges to ongoing policies. Typically, when a

concrete dispute ends, the individual involved would

no longer have the ability to bring suit (and would thus

lack “standing in a time frame”). Yet, cases like those

discussed above have proceeded, and the Supreme

Court did not explicitly mention this exception as one

overlooked by the time frame conception. Friends of the

Earth, 528 U.S. at 190-91. For that reason, it is tempting

to lump these cases into the “capable of repetition, yet

evading review” exception. Doing so would smooth out

any incongruity, as the Supreme Court did acknowl-

edge the incompleteness of the “time frame” approach

when that exception applies. Id. at 190. In fact, the

“capable of repetition, yet evading review” exception

could be an alternative holding for some cases in which

challenges to ongoing policies are not moot. See Super

Tire Eng’g Co., 416 U.S. at 125-26.

In other situations, however, using the “capable of

repetition, yet evading review” exception is more like

fitting a stepsister’s oversized foot into Cinderella’s

dainty glass slipper. This narrow exception “applies

only where (1) the challenged action is in its duration

too short to be fully litigated prior to cessation or ex-

piration, and (2) there is a reasonable expectation that

the same complaining party will be subject to the

same action again.” United States v. Juvenile Male, 131 S. Ct.

No. 11-2314 21

2860, 2865 (2011) (per curiam) (internal quotation marks

and brackets omitted). The Ninth Circuit, in particular,

has shoehorned ongoing policy challenges into that

exception. Its case law creates a new variant of the “cap-

able of repetition, yet evading review” exception for

such disputes, even when the parties would not other-

wise qualify for the exception as articulated doctrinally.

See L.A. Unified Sch. Dist. v. Garcia, 669 F.3d 956, 958

n.1 (9th Cir. 2012). Still, the Ninth Circuit has only

applied this expanded exception when a civil class

action would be inappropriate—namely, cases involving

treatment of criminal defendants or prisoners. See Alvarez

v. Hill, 667 F.3d 1061, 1065 (9th Cir. 2012); see also L.A.

Unified Sch. Dist., 669 F.3d at 958 n.1; United States v.

Brandau, 578 F.3d 1064, 1067-68 (9th Cir. 2009); United States

v. Howard, 480 F.3d 1005, 1010-11 (9th Cir. 2007); Or.

Advocacy Ctr., 322 F.3d at 1117-18. Considering that the

parties here have neither asked us to adopt nor to broaden

the Ninth Circuit’s already expanded approach (both of

which would be required to apply it to this case), we

need not address that question. Furthermore, without

adopting the Ninth Circuit’s reading of the exception,

this case plainly does not fall within the standard

“capable of repetition, yet evading review” doctrine.

There is no indication that the due process challenge of

a probationary officer is too ephemeral to be sustained

over the course of litigation. Rather, this concrete

dispute ended only because Ramskugler voluntarily

settled with the Board.

Without the escape hatch of the “capable of repetition,

yet evading review” exception, we return to the tension

22 No. 11-2314

between the “time frame” approach and the exception

for challenges to policies with a “continuing and

brooding presence,” Super Tire Engineering Co., 416 U.S.

at 122. It seems likely, given that the Supreme Court

has already acknowledged the incompleteness of the

“time frame” approach, that these ongoing policy cases

simply represent another way in which the approach

does not account for an exception to mootness doctrine.

Alternatively, one could view the “brooding presence”

of a policy as an ongoing injury within the “time frame”

of litigation. Only a few cases, however, clearly adopt

that analysis, and, given the difficulty of cabining such

a concept, we are reluctant to resolve the matter in

that way without explicit briefing on the issue. A still

third interpretation: perhaps federal courts are only

prohibited from deciding cases when the issue is moot

but have prudential discretion when merely the

personal stake is moot. See Matthew I. Hall, The Partially

Prudential Doctrine of Mootness, 77 Geo. Wash. L. Rev.

562, 599 (2009).

Regardless, we do not need to answer definitively

how the Super Tire Engineering Co. exception fits into the

broader scheme of mootness doctrine. That question is

for another day. Rather, applying the explicit language

of Super Tire Engineering Co. resolves the issue here. To

qualify for that mootness exception, the ongoing policy

must “by its continuing and brooding presence, cast[ ] . . .

a substantial adverse effect on the interests of the peti-

tioning parties.” Super Tire Engineering Co., 416 U.S. at

122. Nothing of that sort exists here. As discussed, the

MPA has not proffered any other member who is faced

No. 11-2314 23

with Ramskugler’s predicament. Further still, the MPA

has not referenced someone who was in that position

previously, which implies that Ramskugler was merely

trapped in a sparsely populated limbo. The MPA has

not even pled a single injury-in-fact. As such, the MPA

has given us no reason to find the continuing policy

a “brooding presence” over it, much less one with a

“substantial adverse effect.” Id. This case is now “an

abstract dispute about the law” not linked to the rights

of a particular plaintiff. Alvarez v. Smith, supra, 130 S. Ct.

at 580. Federal courts cannot produce advisory opinions

on such issues. It does not matter that the parties

agreed to allow this suit to proceed as a declaratory

judgment. They do not get to make that decision. Parties

cannot contract around the limitations of federal court

jurisdiction. Commodity Futures Trading Comm’n v. Schor,

478 U.S. 833, 850-51 (1986).

3. The Relationship Between Ripeness and Mootness

Before concluding, a note on ripeness is warranted.

When some of our sister circuits have considered chal-

lenges to policies that raise mootness concerns, they

have addressed the cases under the doctrine of ripeness.

See, e.g., Grandeau, 528 F.3d at 130-34 (analyzing a chal-

lenge to an alleged policy using ripeness doctrine

because it was unclear to what extent the policy was

officially adopted and to what extent the policy would

be enforced in the future); Reg’l Mgmt. Corp. v. Legal

Servs. Corp., 186 F.3d 457, 465-66 (4th Cir. 1999) (analyzing

24 No. 11-2314

a challenge to an ongoing policy against disclosing

certain documents under FOIA using ripeness doctrine,

when eventual receipt of the documents made the

initial offense precipitating the challenge moot). Because

this case was framed on appeal as a question of

mootness, and that question was outcome determina-

tive, we thought it the appropriate ground on which to

rule. That said, we acknowledge that ripeness would

have been a cleaner means by which to reach the

same outcome.

Like mootness, but unlike standing, ripeness is re-

evaluated throughout the course of litigation. See

Anderson v. Green, 513 U.S. 557, 559 (1995) (per curiam)

(when evaluating ripeness, “ ‘it is the situation now

rather than the situation at the time of the decision

under review that must govern’ ”) (internal brackets

omitted) (quoting Reg’l Rail Reorg. Act Cases, 419 U.S. 102,

140 (1974)). An inquiry into ripeness involves con-

sidering “ ‘the fitness of the issues for judicial decision’

and ‘the hardship to the parties of withholding court

consideration.’ ” Wis. Right to Life State PAC v. Barland,

664 F.3d 139, 148 (7th Cir. 2011) (quoting Pac. Gas & Elec.

Co. v. State Energy Res. Conservation & Dev. Comm’n, 461

U.S. 190, 201 (1983)). Here, the second factor is disposi-

tive. As discussed earlier, the lack of injury pled by

the MPA shows that it will face no hardship by with-

holding consideration. In fact, at oral argument, the

MPA admitted that it saw no obstacle to waiting until

the situation happens again to bring suit. We think that

is the correct thing to do.

No. 11-2314 25

III. C ONCLUSION

For the foregoing reasons, we D ISMISS this appeal.

2-26-13