Petition for Writ of Certiorari — Libertarian Party v. Dardenne

Supreme Court. U.S.

No. 091223 APR 9- 2010

OFFICE OF THE CLERK

In The

Supreme Court of the Anited States

LIBERTARIAN PARTY, et al.,

Petitioners,

JAY DARDENNE,

Louisiana Secretary of State,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

PETITION FORA WRIT OF CERTIORARI

MARK R. BROWN

Counsel of Record

303 E. Broad Street

Columbus, OH 43215

(614) 236-6590

(614) 236-6956 (fax)

mbrown@law.capital.edu

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether state officials sued in their official ca-

pacities for prospective relief under 42 U.S.C. § 1983

and Ex parte Young, 209 U.S. 123 (1908), are subject

to service of process as individuals under Rule 4(e) or

must be served as states under Rule 4()).

2. Whether the Fifth Circuit erred by requiring that

Petitioners submit evidence to overcome a motion to

dismiss based on mootness under Rule 12(b).

3. Whether the Fifth Circuit erroneously deter-

mined that Petitioners’ challenge to Louisiana’s exclu-

sion of their presidential candidates from the 2008

ballot is moot because it is not “capable of repetition

yet evading review.”

LIST OF PARTIES

The names of the Petitioners are:

Libertarian Party, Libertarian Party of Louisiana, Bob

Barr, Wayne Root, Socialist Party USA, and Brian

Moore.

The name of the Respondent is:

Jay Dardenne, in his official capacity as Louisiana

Secretary of State.

TABLE OF CONTENTS

QUESTIONS PRESENTED

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ORB als (OE AS EEG P ies BOOS vice iss ticevsccesionsaunenssaves

OPINIONS BELOW

CONSTITUTIONAL, STATUTORY AND RULES

PROVISIONS INVOLVED

I.

IV.

The Circuits are Split Over Whether Rule

4(e) Applies to State Officials Sued in

Their Official Capacities for Prospective

Relief Under 42 U.S.C. § 1983

The Fifth Circuit Erred by Requiring Evi-

dence to Rebut a Rule 12(b) Motion to Dis-

MISS BASSE ON NOOtTIGES ......<.<.sccccscsccevesesess

The Fifth Circuit Erred by Holding Non-

Legislative Action to a More Demanding

Standard Under the Capable of Repetition

EINE ss co ciccivsacrcis eee

The Fifth Circuit Erroneously Confused

Mootness With Standing

CONCLUSION

TABLE OF CONTENTS -—- Continued

APPENDIX

January 21, 2010 Opinion of the United States

Court of Appeals for the Fifth Circuit

March 24, 2009 Rulings on Motions by the

United States District Court for the Middle

District of Louisiana

TABLE OF AUTHORITIES

Page

CASES

American Civil Liberties Union of Ohio v. Taft,

SOO ©.00 CEL (GER Cir. ZOO) ......cccecnscccccccccsssccce 22, 25

Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) ............. 18, 19

Becker v. Federal Elections Commission, 230

ee ee Oe Ge I atin vesdckcscaracvanvacveredicasvnoennsens 25

Bell Atlantic Corp. v. Twombly, 550 U.S. 544

eee eer ry ea ype puget ee Ole eee 18, 19

Bennett v. Spear, 520 U.S. 154 (1997) ................. 18, 19

Bradley v. Lunding, 424 U.S. 1309 (1976)........0........ 21

ercaun ©. CoROte, B11 Uo. SES (AGT S) oa vveciecsccscevscacceses. 19

Bush v. Gore, 681 U.S. OS (200) cn iccccicccccccccccccvcocseccoces 6

Bush v. Palm Beach County Canvassing Board,

ee Wt tee oe yoo as scurs nen cavdcuncoinmleementann 6

Caisse v. DuBois, 346 F.3d 213 (1st Cir. 2003)....11, 12, 13

Echevarria-Gonzalez v. Gonzalez-Chapel,

849 F.2d 24 (1st Cir. 1988)... oe. 11, 12, 13,14

Ex parte Young, 209 U.S. 123 CIS0B).....<......cc0s0sce.0000s. 15

Federal Election Commission v. Wisconsin

Right to Life, 551 U.S. 449 (2007) ...........0........2... 20

Friends of the Earth, Inc. v. Laidlaw Environ-

mental Services (TOC), Inc., 528 U.S. 167

SEIN 103555 ss ou cosasnelaitaun cacenemennin endl auaei keer tiene 23, 24, 25

Gannette Co., Inc. v. DePasquale, 443 U.S. 368

SI os. rcnalainavedpueansecumere ace orn cad ed coon e ee ee 20

TABLE OF AUTHORITIES — Continued

Gerstein v. Pugh, 420 U.S. 103 (1973) ...................000 20

Fearer v. Molo, S02 U.S. 21 CIDB1) ......cccccsccssccceccscensses 15

Hans v. Louisiana, 134 U.S. 1 (1890)

Honig v. Doe, 484 U.S. 305 (1988).............0..000..... 21

Kentucky v. Graham, 473 U.S. 159 (1985)..........0...... 15

Libertarian Party of Ohio v. Brunner, 567

F Supp. 2d 1006 (S.D. Ohio 2008)

Marcello v. Maine, 238 F.R.D. 113 (D. Me. 2006)

Meyer v. Grant, 486 U.S. 414 (1988)..........00.. 19

McMillian v. Monroe County, 520 U.S. 781

(1997)

Moore v. Hosemann, 591 F.3d 741 (5th Cir.

2009), cert. filed, 78 U.S.L.W. 3501 (Feb. 17,

2010) (No. 09-982) 10, 14, 16, 22

Moore v. Ogilvie, 394 U.S. 814 (1969)...................0606 19

Morse v. Republican Party of Virginia, 517 U.S.

186 (1996)

Mosley v. Douglas County Correctional Center,

192 F.R.D. 282 (D. Neb. 2000)

Nebraska Press Association v. Stuart, 427 U.S.

539 (1976)

Norman v. Reed, 502 U.S. 279 (1992) ...... eee. 19

Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581

(1999)

Rosario v. Rockefeller, 410 U.S. 752 (1973)............... 19

TABLE OF AUTHORITIES — Continued

Steel Co. v. Citizens for a Better Environment,

523 U.S. 838 (1998)

Stotanoff v. Commissioner of Motor Vehicles,

208 F.3d 204 (2d Cir. 2000) (Table) (2000 WL

287720)

United States v. Quattone, 402 F.3d 304 (2d Cir.

BD na ven ck Urocuntaa ne

Whatley v. District of Columbia, 188 F.R.D. 1

(D.D.C. 1999).............

Will v. Michigan Department of State Police,

491 U.S. 58 (1989)

FEDERAJ., STATUTES

28 U.S.C. § 1254(1)

28 U.S.C. $ 2403(b)

42 U.S.C. § 1983

FEDERAL RULES

Federal Rule of Civil Procedure 4(d)

Federal Rule of Civil Procedure 4(d)(2)

Federal Rule of Civil Procedure 4(e)

Federal Rule of Civil Procedure 4(i)

Federal Rule of Civil Procedure 4(i)(1)

Federal Rule of Civil Procedure 4(i)(2)

Federal Rule of Civil Procedure 4(i)(3)

TABLE OF AUTHORITIES — Continued

Page

Federal Rule of Civil Procedure 4()j) .................. passim

Federal Rule of Civil Procedure &

Federal Rule of Civil Procedure 12(b)

Federal Rule of Civil Procedure 12(b)(1)......

Federal Rule of Civil Procedure 12(b)(6).

STATE CONSTITUTIONS AND STATUTE:

La. Const., art. 4, § 7........

La. Rev. Stat. 8:401.1

§ 1

La. Rev. Stat. § 18:1253(E)

§ 29

La. Rev. Stat. :-724.D(1)

MISCELLANEOUS

C. WRIGHT & A. MILLER, 4A FEDERAL PRACTICE

& PROCEDURE § 1110 (1987)

PETITION FOR WRIT OF CERTIORARI

Petitioners seek a Writ of Certiorari to review a

final judgment of the United States Court of Appeals

for the Fifth Circuit (entered January 21, 2010 with

rehearing denied on March 15, 2010), affirming the

District Court’s dismissal of Petitioner’s Complaint

under Federal Rule of Civil Procedure 12(b) and

denying Petitioners’ motion for costs and attorney’s

fees under Federal Rule of Civil Procedure 4(@).

—____—-4

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Fifth Circuit (Haynes, Stewart and Dennis, JJ.)

is reported at 595 F.3d 215 (5th Cir. 2010), and is

included in the Appendix. See App., infra, at 1. The

final judgment of the United States District Court for

the Middle District of Louisiana is not reported and is

reproduced in the Appendix. See App., infra, at 10.

a % —

STATEMENT OF JURISDICTION

The judgment of the United States Court of

Appeals for the Fifth Circuit was entered on January

21, 2010. Rehearing was denied on March 15, 2010.

See App., infra, at 26. The jurisdiction of this Court is

invoked pursuant to 28 U.S.C. § 1254(1).

— ¢

CONSTITUTIONAL, STATUTORY AND

RULES PROVISIONS INVOLVED

U.S. Const., art. IT, § 1, cl. 2:

Kach State shall appoint, in such Manner as

the Legislature thereof may direct, a Num-

ber of Electors,... .

La. Rev. Stat. § 18:401.1:

A. Due to the possibility of an emergency or

common disaster occurring before or during a

regularly scheduled or special election, and

in order to ensure maximum citizen par-

ticipation in the electoral process and pro-

vide a safe and orderly procedure for persons

seeking to qualify or exercise their right to

vote, to minimize to whatever degree pos-

sible a person’s exposure to danger during

declared states of emergency, and to protect

the integrity of the electoral process, it is

hereby found and declared to be necessary to

designate a procedure for the emergency sus

pension or delay and rescheduling of qual-

ifying, early voting, and elections.

B. The governor may, upon issuance of an

executive order declaring a state of emer-

gency or impending emergency, suspend or

delay any qualifying of candidates, early vot-

ing, or elections. The governor shall take

such action only upon the certification of the

secretary of state that a state of emergency

exists. A clerk of court, as the chief election

officer of the parish, may bring to the atten-

tion of the secretary of state any difficulties

La

occurring in his parish due to natural dis-

asters.

Rev. Stat. § 29:724.D(1):

In addition to any other powers conferred

upon the governor by law, he may do any or

all of the following:

Suspend the provisions of any regulatory

statute prescribing the procedures for con-

duct of state business, or the orders, rules, or

regulations of any state agency, if strict com-

pliance with the provisions of any statute,

order, rule, or regulation would in any way

prevent, hinder, or delay necessary action in

coping with the emergency.

Federal Rule of Civil Procedure 4(d):

Waiving Service.

(1) Requesting a Waiver. An individual,

corporation, or association that is subject to

service under Rule 4(e), (f), or (h) has a duty

to avoid unnecessary expenses of serving the

summons. The plaintiff may notify such a de-

fendant that an action has been commenced

and request that the defendant waive service

of a summons.

(2) Failure to Waive. if a defendant lo

cated within the United States fails, without

good cause, to sign and return a waiver

requested by a plaintiff located within the

United States, the court must impose on the

defendant:

(A) the expenses later incurred in making

service; and

(KB) the reasonable expenses, including

attorney's fees, of any motion required to

collect those service expenses.

Federal Rule of Civil Procedure 4(e):

Serving an Individual Within a Judicial

District of the United States. Unless

federal law provides otherwise, an individual

- other than a minor, an incompetent person,

or a person whose waiver has been filed —

may be served in a judicial district of the

United States by:

(1) following state law for serving a sum-

mons in an action brought in courts of

general jurisdiction in the state where the

district court is located or where service is

made; or

(2) doing any of the following:

(A) delivering a copy of the summons and

of the complaint to the individual personally;

(B) leaving a copy of each at the indi-

vidual’s dwelling or usual place of abode with

someone of suitable age and discretion who

resides there; or

ts)

(C) delivering a copy of each to an agent

authorized by appointment or by law to re-

ceive service of process.

Federal Rule of Civil Procedure 4()):

Serving a Foreign, State, or Local

Government.

(2) State or Local Government. A state, a

municipal cerporation, or any other state-

created governmental organization that is

subject to suit must be served by:

(A) delivering a copy of the summons and

of the complaint to its chief executive orficer;

or

(B) serving a copy of each in the manner

prescribed by that state’s law for serving a

summons or like process on such a defen-

dant.

STATEMENT OF THE CASE

Petitioners filed suit under 42 U.S.C. § 1983,

Article II, § 1, cl. 2, of the United States Constitution,

and the First and Fourteenth Amendments, against

Respondent, Louisiana’s Secretary of State, in his

official capacity, on September 15, 2008. They sought

prospective relief, claiming that the Secretary had

unconstitutionally refused their qualifying papers for

Louisiana’s presidential ballot.

6

Hurricane Gustav hit Louisiana over the 2008

Labor Day weekend. It closed the state’s offices on the

day presidential qualifying papers were due, Sep-

tember 2, 2008, see La. Rev. Stat. § 18:1253(E), and

for several days thereafter. For this reason, the Gov-

ernor of Louisiana, acting pursuant to an express

delegation of power from the Legislature, see La. Rev.

Stat. § 29:724.D(1), on August 29, 2008, issued an

Executive Order (BJ 08-92) extending deadlines in all

“legal, administrative and regulatory proceedings” to

September 12, 2008. Petitioners, the Libertarian

Party of Louisiana and Socialist Party USA, filed

their qualifying papers with the Secretary by this

September 12, 2008 deadline.

Upon reopening on Monday, September 8, 2008,

however, the Secretary announced a different deadline

— September 8 — for presidential qualifying papers.

Because they had no warning, were still suffering from

the aftermath of Hurricane Gustav, and had relied on

the Governor’s previously announced September 12

deadline, neither the Libertarian nor Socialist Parties

qualified their presidential candidates by this date.

Petitioners’ complained that the Secretary lacked

constitutional authority under Article II, § 1, cl. 2, of

the United States Constitution to establish a dead-

line, let alone shorten the one put in place by the

Governor pursuant to his statutory authority. Article

II delegates to the state “Legislature” the power to

regulate presidential elections. See Bush v. Gore, 531

U.S. 98, 111 (2000) (C.J., concurring); Bush v. Palm

Beach County Canvassing Board, 531 U.S. 70, 77

(2000); Libertarian Party of Ohio v. Brunner, 567

F. Supp. 2d 1006, 1011 (S.D. Ohio 2008) (holding that

secretary of state has no authority under Article II to

set deadline in presidential election).

Faced with a natural disaster that closed the

state’s offices from September 1 through September 7,

2008, Petitioners argued below, Louisiana’s Governor

properly exercised authority delegated to him by the

Legislature. The Secretary, in contrast, possessed no

delegated authority to establish a deadline, and ig-

nored Louisiana’s two statutory delegations to the

Governor to establish emergency deadlines. See La.

Rev. Stat. § 29:724.D(1); id. § 18:401.1.

The District Court issued a preliminary injunc-

tion on September 22, 2008 placing the Libertarian

Party’s presidential ticket on the ballot." See App.,

infra, at 12. The Secretary took an emergency appeal

on September 25, 2008. Id. The Fifth Circuit on

September 26, 2008 stayed the injunction. Jd. The

Libertarian Party sought emergency relief from this

Court, but the Court refused to intervene on October

7, 2008. See 129 S. Ct. 359 (2008). The election was

held on November 4, 2008 without the Petitioners’

presidential candidates’ names on the ballot.

Acting pursuant to Rule 4(d), Petitioners had

(contemporaneously with filing their complaint)

' It did not order the Socialist Party’s candidates on the bal-

lot because it questioned whether they otherwise satisfied Loui-

siana’s ballot access requirements.

8

requested that the Secretary waive service of process.

The Secretary refused. Petitioners thereafter served

the Secretary under Rule 4(e) and moved the District

Court to award costs and attorney’s fees as provided

in Rule 4(d).

Following the election, the District Court granted

the Secretary’s Rule 12(b) motion to dismiss. It

concluded that the case was moot notwithstanding

the “capable of repetition yet evading review” doc-

trine. App., infra, at 18. It also denied Petitioners’

Rule 4(d) motion for costs and fees, holding that Rule

4(e) (and hence Rule 4(d)) does not apply to state

officials sued in their official capacities under 42

U.S.C. § 1983. Id. at 24.

The Fifth Circuit affirmed on both points. It

concluded that the controversy was moot and did not

qualify under the “capable of repetition yet evading

review” exception. App., infra, at 8. It rejected

>«

Petitioners’ “capable of repetition” argument because,

it concluded, Petitioners did not prove “either a ‘dem-

onstrated probability’ or a ‘reasonable expectation,’

that they will ‘be subject to the same [unlawful

governmental) action again.)’” /d. at 4-5 (citations

omitted).

Petitioners’ alleged that Louisiana had experi-

enced at least ten named hurricanes over the course

of the last twenty years — all in late August and

September — had election dates and qualifying dead-

lines altered by the Secretary in the past, has two

statutes specifically designed to address the problem

9

of deadlines and natura] disasters (like hurricanes),

see La. Rev. Stat. § 29:724.D(1); id. § 18:401.1, will

likely have elections and candidates’ qualifying dead-

lines disrupted by storms in the future, and will

continually need dates and deadlines modified. Still,

the Fifth Circuit concluded the case was moot: “At

most, [Petitioners’] evidence shows that the Secretary

will have an opportunity to act in the same allegedly

unlawful manner in the future; however, it does not

show a reasonable probability that the Secretary will

act in that manner if given the opportunity.” See

App., infra, at 5.

The Fifth Circuit reasoned that something more

than a mere “opportunity” was needed. Petitioners

needed to present evidence

showing that the Secretary had unlawfully

changed filing deadlines in the past, that the

Secretary’s actions reflect a policy or a con-

sistent pattern of behavior that he has deter-

mined to continue, or that the Secretary’s

action was prescribed by statute, which is

the type of evidence presented in most elec-

tion law cases that fall under the exception.

Id. at 7. Because Petitioners failed to present this

“evidence,” they did not satisfy their burden of

proving the case was not mooted by the election.

The Fifth Circuit made much of the fact that the

challenged wrongdoing constituted an executive deci-

sion. Hence, a more demanding “likelihood of recur-

rence” standard was appropriate:

10

luJnlike most election law cases, [Peti-

tioners’] case does not involve a challenge to

a governmental] action done pursuant to an

election statute. These challenges are often

able to survive mootness under the exception

because courts will assume that the govern-

ment will enforce the same statute in the

future. In cases such as this, where the chal-

lenged governmental action was not done

pursuant to a statute, such an assumption

cannot be made, so [Petitioners] cannot sim-

ply rely on general election law cases to

support their assertion that the exception

applies.

Id. at 6-7 n.6.

Relying on the Fifth Circuit’s recent decision in

Moore v. Hosemann, 591 F.3d 741, 746-47 (5th Cir.

2009), cert. filed, 78 U.S.L.W. 3501 (Feb. 17, 2010)

(No. 09-982), the court also rejected Petitioners’ Rule

4(d) claim to costs and fees. According to Moore, state

officials sued in their official capacities for prospec-

tive relief under § 1983 are the state; they therefore

must be served under Rule 4(4j). Because Rule 4(e)

does not apply, neither does the waiver provision in

Rule 4(d). App., izfra, at 8.

+

11

REASONS FOR GRANTING THE WRIT

l. ‘The Circuits are Split Over Whether Rule

4(e) Applies to State Officials Sued in

Their Official Capacities for Prospective

Relief Under 42 U.S.C. § 1983.

Rule 4(d) requires that defendants either waive

service or suffer the plaintiff’s costs. See Fed. R. Civ.

P. 4(d)(2). Not all defendants, however, are required

to waive service. According to Rule 4(d), only those

defendants subject to service under Rules 4(e), (f),

and (h) are subject to this duty. In particular, the

United States, which must be served under Rule 4(j),

is not subject to Rule 4(d). Likewise, state and local

governmental defendants “subject to suit” are served

under Rule 4(j).

The First and Second Circuits have concluded

that state officials sued in their official capacities for

prospective relief under 42 U.S.C. § 1983 are subject

to service as individuals under Rule 4(e). The First

Circuit explained in Echevarria-Gonzalez v. Gonzalez-

Chapel, 849 F.2d 24, 29 (1st Cir. 1988), that official-

capacity claims against state officials are governed by

the Rule applicable to individual service, at that time

Rule 4(d)(1):°

Although we imagine that in most or all

cases where a state officer is sued in his

* Rule 4(d)(1)’s requirements for individual service are now

included in Rule 4(e). See Catsse v. DuBois, 346 F.3d 213, 216

(1st Cir. 2003)

official capacity, the state has a major

interest in the outcome, the officer remains

the actual party to the action. A state officer

is often sued in his official capacity because

the Eleventh Amendment forbids a direct

action against the state. See Ex Parte Young,

209 U.S. 123 (1908).

The court explained that “lilf the Eleventh Amend-

ment bars an action against the state, then the latter

is not ‘subject to suit’? pursuant to Rule 4(d)(6), and

thus the rule is inapplicable.” Jd. (citing C. WRIGHT &

A. MILLER, 4A FEDERAL PRACTICE & PROCEDURE § 1110

(1987)).° The court therefore concluded:

The action is against an individual, albeit in

his official capacity, and not against the

state. Although the state ... has a great in-

terest in the outcome, it will be the ind1-

vidual ... who in an official capacity is going

to be bound by the judgment, and who can be

held in contempt if a court order is dis-

obeyed.... We therefore hold that service

upon a state officer in his official capacity is

sufficient if made pursuant to Rule 4(d)(1).

Id. 29-30.

The First Circuit reiterated this conclusion in

Caisse v. DuBois, 346 F.3d 213 (1st Cir. 2003), a

§ 1983 prison conditions action filed against state

3 y . . . °

Rule 4(d)\6)’s provisions for serving government are now

included in Rule 4(j).

13

corrections officers in both their individual and offi-

cial capacities. The First Circuit expressly rejected

the claim that Rule 4) applied: “service of process for

public employees sued in their official capacities is

governed by the rule applicable to serving indi-

viduals.” Jd. at 216. The Court accordingly ruled that

“to serve the defendants in either an individual or of-

ficial capacity, [the plaintiff] had to comply with Fed.

R. Civ. P. 4(e) providing for service of process on in-

dividuals.” Jd.

The Second Circuit has endorsed this result. In

Stoianoff v. Commissioner of Motor Vehicles, 208 F.3d

204 (2d Cir. 2000) (Table) (2000 WL 287720), where a

pro se plaintiff failed to comply with Rule 4(4j) when

serving a state official sued in his official capacity, the

Second Circuit observed: “service here may be

effected pursuant to Rule 4(e), which provides for ser-

vice upon individuals generally. See, e.g., Echevarria-

Gonzalez v. Gonzalez-Chapel, 849 F.2d 24, 28-30 (1st

Cir. 1988) (holding that service on state officer in his

official capacity is sufficient if made pursuant to

predecessor to Rule 4(e).”).*

‘ Several district courts have held that because Rule 4(e)

applies to official-capacity actions under § 1983, Rule 4(d)\(2)’s

waiver requirement also applies. See, e.g., Marcello v. Maine,

238 F.R.D. 113, 115 (D. Me. 2006) (holding that § 1983 action

against a state judge in his official capacity was governed by

Rule 4(e) and hence Rule 4(d)); Whatley v. District of Columbia,

188 F.R.D. 1, 2 (D.D.C. 1999) (holding that “municipal govern-

ment employees are subject to Rule 4(d)(2) of the Federal Rules

of Civil Procedure when sued in both their individual and official

(Continued on following page)

14

The Fifth Circuit here relied on its previous

decision in Moore v. Hosemann, 591 F.3d 741, 746-47

(5th Cir. 2009), cert. filed, 78 U.S.L.W. 3501 (Feb. 17,

2010) (No. 09-982), which expressly rejected the First

Circuit’s interpretation of Rules 4(e) and 4(j). See

App., infra, at 8. In Moore, the Fifth Circuit drew an

equation between suits against federal agents, which

are subject to the service requirements of Rule 4(i),°

and suits against state officers. “(T]he most rea-

sonable reading of rule 4 affords state officers facing

official capacity suits the same consideration given to

federal officers in the same position.” Moore, 591 F.3d

at 747.

As pointed out by the First Circuit in Echevarria-

Gonzalez, 849 F.2d at 29, this logic ignores the plain

language of Rule 4G), which requires that state gov-

ernmental defendants must be “subject to suit” for its

service requirements to apply. The law has been clear

for one hundred years that states and their agencies

are protected by the Eleventh Amendment; they are

not subject to suit in federal court. See Hans v.

Louistana, 134 U.S. 1, 16 (1890) (“The suability of a

State ... was a thing unknown to the law. This has

been so often laid down and acknowledged by courts

and jurists that it is hardly necessary to be formally

capacities”); Mosley v. Douglas County Correctional Center, 192

FLR.D. 282, 283-84 (D. Neb. 2000) (same).

* Rule 4(i)(2) provides that when a federal officer is sued in

an official capacity, the United States must be served under Rule

4()(1).

asserted.”). Only by suing a state official by name

under the fiction of Ex parte Young, 209 U.S. 123,

159-60 (1908) (stating that when sued for injunctive

relief for violating the Constitution the state official is

“stripped of his official or representative character

and is subjected in his person to the consequences of

his individual conduct”), can one avoid the Eleventh

Amendment — and this is precisely because official-

capacity suits are not suits against states.

This constitutional distinction between states

and their officials was extended as a statutory matter

to § 1983 litigation in Will v. Michigan Department of

State Police, 491 U.S. 58 (1989). There, this Court

ruled that states are never proper defendants under

§ 1983. Rather, a § 1983 plaintiff must sue a state

official by name in his official capacity. This is proper

“because ‘official-capacity actions for prospective re-

lief are not treated as actions against the State.’” Jd.

at 71 n.10 (quoting Kentucky v. Graham, 473 U.S.

159, 167 n.14 (1985); citing Ex parte Young, 209 U.S.

123, 159-60 (1908)) (emphasis added).”

° Official-capacity actions against states and/or state offi

cers for money damages are not cognizable under § 1983. See

Will, 491 U.S. at 71. Thus, the only recognized oflicial-capacity

action against a state officer under § 1983 is that authorized by

Ex parte Young. See Will, 491 U.S. at 71 n.10. Of course, state

officials can be sued for money damages as individuals. See

Hafer v. Melo, 502 U.S. 21, 25 (1991). There is no question but

that these “individual-capacity” actions are governed by Rule

4(e). If an individual-capacity action calls into doubt a state stat-

ute, Rule 5.1(a) requires that the state’s atte ™ney general be

(Continued on following page)

16

Because the Fifth Circuit’s conclusions in Moore uv.

Hosemann, 591 F.3d 741 (5th Cir. 2009), cert. filed, 78

U.S.L.W. 3501 (Feb. 17, 2010) (No. 09-982), and below

contradict that of the First and Second Circuits

certiorari 1s proper.

Il. The Fifth Circuit Erred by Requiring Evi-

dence to Rebut a Rule 12(b) Motion to

Dismiss Based on Mootness.

The Fifth Circuit below repeatedly complained

that Petitioners had not presented “evidence” to show

that the Secretary was reasonably likely to fix

clection deadlines in the future. In doing so, it

ignored the procedural posture of the case — dismissal

under Rule 12(b).’

To use one example, the Fifth Circuit rejected

Petitioners’ claim that the Secretary assumed the

power (albeit unconstitutionally) to alter deadlines,

noticed. See also 28 U.S.C. § 2403(b) (providing that state must

be allowed to intervene). Compare Federal RKule of Civil Pro-

cedure 4(i)(3) (federal officials sued in their individual capacities

A |

are subject to service as individuals under Rule 4(e) and United

States must also be served)

' The Seeretary’s motion to dismiss did not state whether it

relied on Rule 12(b)(1) or Rule 12(b)(6). Nor did the District

Court’s opinion clarify this point; rather, it simply dismissed

under Rule 12(b). See App., infra, at 10 & 18 n.21. Under either,

plaintiffs are entitled to have their allegations taken as true and

all reasonable inferences drawn in their favor. Evidence is not

required. See Steel Co. v. Citizens for a Better Environment, 523

U.S. 83, 104 (1998).

L'/

this authority constituted “policy” under Louisiana

law, and was likely to be exercised again in the

future:

Appellants state that the “Secretary’s policy

is that he has the authority to fix emergency

election deadlines,” but they do not present

any evidence to support their assertion that

the Secretary has such a policy. Appellants

also state in their reply brief that “the

Secretary's action clearly represents policy;

at least the Secretary has never claimed it

does not.” The burden, however, is not on the

Secretary to show whether his actions consti-

tute policy; instead, the burden is on Appel-

lants to show that the Secretary's actions

were policy, and Appellants have not pre-

sented any evidence that would allow them to

meet that burden in this case.

App., infra, at 7 n.5 (emphasis added).

Given the posture of the present case, Petitioners

are not required to present evidence. At the Rule

12(b) dismissal stage, all factual allegations are to he

It is clear that the Louisiana Secretary of State is a “final

authority,” see McMillian v. Monroe County, 520 U.S. 781, 787

(1997) (holding that sheriff was a final authority whose single

decision made policy for Alabama), responsible for making policy

in Louisiana in the context of elections. La. Const., art. 4, § 7

(“The secretary of state shall head the department and shall be

the chief election officer of the state. He shall prepare and certify

the ballots for all elections, promulgate all election returns, and

administer the election laws ') (emphasis added)

18

taken as true and all plausible inferences must be

drawn in the plaintiff’s favor. See generally Bell At-

lantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft

v. Igbal, 129 8S. Ct. 1937 (2009).

This Court in Bennett v. Spear, 520 U.S. 154, 168

(1997), made clear that this same standard applies to

Article III’s jurisdictional issues:

while a plaintiff must “set forth” by affidavit

or other evidence ‘specific facts’ to survive a

motion for summary judgment, ... , [a]t the

pleading stage, general factual allegations of

injury resulting from the defendant’s conduct

may suffice, for on a motion to dismiss we

“oresumle] that general allegations embrace

those specific facts that are necessary to

support the claim.”

(Emphasis added). See also Steel Co. v. Citizens for a

Better Environment, 523 U.S. 83, 104 (1998) (“This

case 1s on appeal from a Rule 12(b) motion to dismiss

on the pleadings, so we must presume that the

general allegations in the complaint encompass the

specific facts necessary to support those allegations.”).

Here, Petitioners alleged that Louisiana had

experienced at least ten named hurricanes over the

course of the last twenty years (all in late August and

September), had election dates and qualifying dead-

lines unilaterally altered by the Secretary in the past,

has two statutes specifically designed to deal with the

problem (hence showing that the Legislature realizes

it will recur), will likely have elections and candidates’

qualifying deadlines disrupted by storms in the

19

future, and will continually need dates and deadlines

modified. Further, Petitioners assert for all these

reasons that the Secretary will likely take it upon

himself — contrary to Louisiana law and Article II — to

move deadlines in the future.

These allegations and reasonable inferences

present a plausible claim that the Secretary remains

“capable” of altering election deadlines in the future.

The Fifth Circuit’s rejection of Petitioners’ allegations

for lack of evidence, as well as its requirement that

evidence be presented at the dismissal stage to estab-

lish patterns of past wrongs and a likelihood of future

wrongdoing, contradicts this Court’s holdings in

Bennett, Steel Co., Twombly, and Iqbal. Certiorari is

proper.

Ill. The Fifth Circuit Erred by Holding Non-

Legislative Action to a More Demanding

Standard Under the Capable of Repeti-

tion Doctrine.

Election controversies are routinely preserved by

the “capable of repetition” exception. There is gen-

erally too little time to resolve ballot disputes or cam-

paign finance controversies before the close of the

election cycle — they “evade review” — and they fre-

quently will recur if not resolved — making them

“capable of repetition.” See, e.g., Norman v. Reed, 502

U.S. 279 (1992); Meyer v. Grant, 486 U.S. 414 (1988);

Brown v. Chote, 411 U.S. 452 (1973); Rosario ov.

Rockefeller, 410 U.S. 752 (1973); Moore v. Ogilvie, 394

U.S. 814 (1969). Without the “capable of repetition”

20

doctrine, many election disputes — like the present

one — would escape constitutional scrutiny.

This Court recently reiterated that the “capable

of repetition yet evading review” doctrine, in the

context of election cases, governs “as applied” chal-

lenges as well as facial attacks. See Federal Election

Commission v. Wisconsin Right to Life, 551 U.S. 449,

463 (2007). Moreover, this Court has never suggested

that a more demanding analysis applies to as-applied

challenges, let alone challenges directed at policies

put in place by non-legislative actors.

For example, in Nebraska Press Association v.

Stuart, 427 U.S. 539 (1976), where a state judge

issued a gag order preventing the press from report-

ing a criminal trial, the Court concluded that expira-

tion of the order did not moot the case: “the District

Court may enter another restrictive order to prevent

a resurgence of prejudicial publicity....” Jd. at 546.

“The dispute between the State and the petitioners

who cover events throughout the State is thus

‘capable of repetition.’” Id. at 547. See also Gerstein v.

Pugh, 420 U.S. 103 (1975) (finding state judge’s denial

of probable cause hearing capable of repetition);

Gannette Co., Inc. v. DePasquale, 443 U.S. 368 (1979)

(holding judge’s order closing proceedings capable of

9

repetition)

> Nor has the Court even limited the “capable of repetition”

doctrine to governmental action. In Morse v. Republican Party of

Virginia, 517 U.S. 186, 235 n.48 (1996), for example, the Court

(Continued on following page)

2)

In Honig v. Doe, 484 U.S. 305 (1988), to use

another example, the plaintiffs prospectively chal-

lenged disciplinary action taken by school officials

under the federal Education of the Handicapped Act.

Even though the plaintiffs’ child left the school

district and was no longer threatened with expulsion,

the Court concluded that his challenge to the school

officials’ disciplinary conduct was “capable of repeti-

tion yet evading review.” /d. at 318-19. No state

statute was challenged; rather, the challenge was di-

rected at the school officials’ executive action. See also

Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 594

n.6 (1999) (holding that transfer of disabled plaintiff

by state officials did not moot controversy under

Americans With Disabilities Act and § 1983).

And in Bradley v. Lunding, 424 U.S. 1309 (1976),

Justice Stevens (sitting in his capacity as Circuit

Justice), stayed an Illinois election officials’ executive

decision to resolve ballot access priorities by lottery.

Justice Stevens did not inquire whether the agency’s

decision was authorized by state statute, or somehow

an application of statutory law; rather, he simply

stated that the decision was “presumably” capable of

repetition so that the intervening election would not

moot the case. Jd. at 1311-12.

The Fifth Circuit’s application of a different,

more demanding analysis to executive wrongdoing

applied the doctrine to an ad hoc decision by the Republican

Party to impose a $45 filing fee on convention delegates.

22

contradicts these precedents, as well as holdings in

several circuits (including the Fifth). In Moore v.

Hosemann, 551 F.3d 449 (5th Cir. 2009), cert. filed, 78

U.S.L.W. 3501 (Feb. 17, 2010) (No. 09-982), after all,

the Fifth Circuit ruled that Mississippi’s Secretary of

State’s decision to shorten Mississippi's filing dead-

line for presidential candidates was “capable of repe-

tition.” It did not apply a different, more demanding

analysis."

Nor did the Sixth Circuit apply a more demand-

ing analysis in American Civil Liberties Union of

Ohio v. Taft, 385 F.3d 641, 647 (6th Cir. 2004), which

held that Ohio’s governor’s refusal to call a special

congressional (House) election was “capable of repeti-

tion” even though another regular election had been

held and the 108th Congress had convened. The gov-

ernor’s ad hoc executive decision was not authorized

by statute, nor was the governor applying an Ohio

law. His refusal to call an election is identical in form

to the Secretary’s refusal here to accept Petitioners’

qualifying papers in the present case.

Then-Judge Sotomayor in United States v.

Quattone, 402 F.3d 304, 309 (2d Cir. 2005), likewise

concluded that a judge’s gag order — prohibiting the

press from reporting jurors’ names — was not mooted

by the close of trial and expiration of the order: “We

* Petitioners sought rehearing en banc because of this obvi-

vus conflict, but the Fifth Circuit declined further review. See

App., infra, at 26.

23

agree with appellants that the order at issue in this

case was too short in duration to be fully litigated

prior to its expiration, and that there is a reasonable

expectation that these same appellants will face a

similar restrictive order in the future.” It obviously

did not matter to then-Judge Sotomayor that the gag

order was put in place on an ad hoc basis by a non-

legislative actor.

The Fifth Circuit’s application of a more demand-

ing standard contradicts this Court’s, as well as

Second and Sixth Circuit, precedents. Certiorari is

proper.

IV. The Fifth Circuit Erroneously Confused

Mootness With Standing.

This Court in Honig v. Doe, 484 U.S. 305, 319 n.6

(1988), observed that it has routinely “found contro-

versies capable of repetition based on expectations

that, while reasonable, were hardly demonstrably

probable.” (Emphasis added and citations omitted).

The Court went on to state that its “concern in these

cases, as in all others involving potentially moot

claims, was whether the controversy was capable of

repetition and not... whether the claimant had dem-

onstrated that a recurrence of the dispute was more

probable than not.” Jd. (emphasis in original).

Even though the Court in Honig did not precisely

define “capable,” it later in Friends of the Earth, Inc.

v. Laidlaw Environmental Services (TOC), Inc., 528

U.S. 167, 190 (2000), gave the term meaning. Laidlaw

24

established that the “capable of repetition” doctrine

requires less certainty than Article Ill standing: “lhe

plain lesson ... is that there are circumstances in

which the prospect that a defendant will engage in (or

resume) harmful conduct may be too speculative to

support standing, but not too speculative to overcome

mootness.” Id.

The Court in Laidlaw used the “capable of repe-

tition” doctrine as an example. “When ... a mentally

disabled patient files a lawsuit challenging her con-

finement in a segregated institution, her postcom-

plaint transfer ... will not moot the action, despite

the fact that she would have lacked initial standing

had she filed the complaint after the transfer.” Jd. at

190-91 (citing Olmstead v. L.C. ex rel. Zimring, 527

U.S. 581, 594 n.6 (1999)). “To abandon the case at an

advanced stage may prove more wasteful than frugal.

This argument from sunk costs ... surely highlights

an important difference between the two doctrines.”

528 U.S. at 191-92 (emphasis added).

The Fifth Circuit’s approach erroneously con-

flates standing and mootness. As demonstrated by

the Fifth Circuit’s requirement that Petitioners “in-

troducel ] evidence showing that the Secretary had

unlawfully changed filing deadlines in the past, that

the Secretary’s actions reflect a policy or a consistent

pattern of behavior that he has determined to con-

tinue, or that the Secretary’s action was prescribed by

statute,” App., infra, at 7, it forced Petitioners to

establish standing all over again after the election.

25

Several Circuits have rejected this approach. The

Sixth Circuit in American Civil Liberttes Union ov.

Taft, 385 F.3d 641, 646 (6th Cir. 2004), where the

court concluded that the governor’s refusal to call a

special election was “capable of repetition,” stated

that “standing and mootness serve different purposes:

. These different purposes are reflected in well-

established exceptions to the mootness doctrine, in-

cluding the doctrine that a case will not become moot

if the injury is capable of repetition, while evading

review.” (Citing Laidlaw).

Becker v. Federal Elections Commission, 230 F.3d

381 (1st Cir. 2000), to use another example, made

much of the Laidlaw distinction. Even though it con-

cluded that Ralph Nader’s standing to challenge the

presidential debates presented a “close” question, id.

at 386, it found his challenge was clearly not mooted

by the 2000 election. Like most election challenges, it

was “capable of repetition yet evading review.” /d. at

389. The court warned against “conflating” the two

inquiries, id. at 386 n.3, and stated that “questions of

standing and questions of mootness are distinct, and

it is important to treat them separately.” Jd.”

Conflating standing and mootness contradicts

this Court’s decision in Laidlaw as well as decisions

‘' Chief Judge Torruella disagreed with the standing and

mootness determinations. See id. at 397 (Torruella, C.J., con-

curring).

26

from the First and Sixth Circuits. Certiorari is prop-

er.

CONCLUSION

For the foregoing reasons, Petitioners respect-

fully request that the Petition for Writ of Certiorari

be granted.

Respectfully submitted,

MarK R. BROWN

Counsel of Record

303 E. Broad Street

Columbus, OH 43215

(614) 236-6590

(614) 236-6956 (fax)

App. 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

09-30307

LIBERTARIAN PARTY; LIBERTARIAN PARTY OF

LOUISIANA; BOB BARR; WAYNE ROOT; SOCIALIST

PARTY USA; BRIAN MOORE,

Plaintiffs-Appellants

v.

JAY DARDENNE, In His Official Capacity as

Louisiana Secretary of State,

Defendant-Appellee

Appeal from the United States District Court

for the Middle District of Louisiana

(Filed Jan. 21, 2010)

Before STEWART, DENNIS, and HAYNES, Circuit

Judges.

HAYNES, Circuit Judge:

Appellants — the Libertarian Party, the Socialist

Party, and their candidates — appeal the district

court’s dismissal of their complaint as moot, and the

district court’s denial of their request for fees under

App. 2

Federal Rule of Civil Procedure (“Rule”) 4(d). Finding

no reversible error, we AFFIRM.

FACTS AND PROCEDURAL BACKGROUND

Appellants were excluded from Louisiana’s 2008

presidential ballot because they failed to file their

qualifying papers by the applicable filing deadlines.

Pursuant to a Louisiana statute, the filing deadline

for the Socialist Party was September 2, and the

filing deadline for the Libertarian Party was

September 5. Because of Hurricane Gustav, the

Louisiana Secretary of State (the “Secretary”) uni-

laterally allowed parties to file their qualifying papers

on September 8, 2008. Appellants did not file their

papers until after the 8th of September. Because

Appellants failed to file their papers by September 8,

the Secretary informed Appellants that they would

not be placed on Louisiana’s 2008 presidential ballot.

Appellants then brought this suit against the

Secretary, seeking, among other things, a declaratory

judgment stating that the Secretary’s September 8

deadline was unconstitutional. Appellants contend

that the Secretary lacked the power to set a deadline

different from that of the statute unilaterally.’

1

Appellants do not contend, however, that the Secretary

was required to set in motion the statutorily-prescribed method

for extending a filing deadline, LA. Rev. STAT. ANN. § 18:401.1.B

(2009) (stating that the Governor of Louisiana and the

Secretary, acting together, “may ... suspend or delay any

qualifying of candidates”).

App. 3

While this suit was pending before the district

court, the 2008 presidential election passed, and, on

that basis, the Secretary moved to dismiss Appellants’

complaint as moot. Appellants argued that their

complaint was not moot because their challenge to

the Secretary’s September 8 deadline fell under the

“capable of repetition, yet evading review” exception

to mootness. The district court rejected Appellants’

argument and dismissed their complaint as moot.

Appellants also argued that they were entitled to

costs and fees under Rule 4(d)’s mandatory waiver-of-

service provision. The district court denied

Appellants’ motion for costs and fees, finding that the

Secretary was not subject to Rule 4(d)’s mandatory

waiver-of-service provision because he was sued in

his official capacity.

Ii. DISCUSSION

In this appeal, Appellants challenge both the

mootness finding and the Rule 4(d) decision. We

address each in turn.

A. Mootness

Appellants contend that their request for a

declaratory judgment stating that the Secretary’s

conduct was unconstitutional is not moot because it

falls under the “capable of repetition, yet evading

review” exception to mootness. See Ctr. for Individual

Freedom v. Carmouche, 449 F.3d 655, 661 (5th Cir.

App. 4

2006) (explaining that the “capable of repetition, yet

evading review” exception is an exception to the rule

that requires “‘[t]he requisite personal interest that

must exist at the commencement of litigation

(standing) |to] continue throughout its existence

(mootness)’” (quoting U.S. Parole Comm’n v.

Ceraghty, 445 U.S. 388, 397 (1980))). There are two

prongs to the “capable cf repetition, yet evading

review” exception, and Appellants, who are the

plaintiffs, bear the burden of proving both prongs.

Davis v. FEC, 128 8. Ct. 2759, 2769 (2008); Ill. State

Bd. of Elections v. Socialist Workers Party, 440 U.S.

173, 187-88 (1979) (showing that plaintiffs bear the

burden of proof); see Ramming v. United States, 281

F.3d 158, 161 (5th Cir. 2001) (“[T)he plaintiff

constantly bears the burden of proof that jurisdiction

does in fact exist.”).

Whether a case is moot is a question of law that

we review de novo. Bayou Liberty Ass’n v. U.S. Army

Corps of Eng’rs, 217 F.3d 393, 396 (5th Cir. 2000)

(citing Harris v. City of Houston, 151 F.3d 186, 189

(5th Cir. 1989)). We find that Appellants have failed

to meet their burden under the exception’s “capable of

repetition” prong.

Under the exception’s “capable of repetition”

prong, Appellants “must show either a ‘demonstrated

As a result, we need not reach the question of whether

Appellants lack standing to contest the Secretary’s allegedly

unlawful act because they were not harmed by it

App. 5

probability’ or a ‘reasonable expectation,” Oliver uv.

Scott, 276 F.3d 736, 741 (5th Cir. 2002), that they will

“be subject to the same [unlawful governmental]

action again,” Weinstein v. Bradford, 423 U.S. 147,

149 (1975). A “mere physical or theoretical possibility”

is not sufficient to satisfy this prong of the exception.

Murphy v. Hunt, 455 U.S. 478, 482 (1982). The

allegedly unlawful governmental action in this case is

the Secretary’s unilateral establishment of a

September 8 filing deadline. Appellants, therefore,

must demonstrate that there is a “reasonable expec-

tation” that the Secretary will again unilaterally

change filing deadlines in the future.

Appellants primarily rely on evidence showing

that Louisiana frequently encounters hurricanes and

tropical storms during presidential qualifying periods

to show that there is a reasonable expectation that

the Secretary will unilaterally change filing deadlines

in the future. At most, Appellants’ evidence shows

that the Secretary will have an opportunity to act in

the same allegedly unlawful manner in the future;

however, it does not show a reasonable probability

that the Secretary will act in that manner if given the

opportunity. By proving opportunity, Appellants have

only demonstrated a “physical or theoretical possibility”

that the Secretary may repeat his actions, and such a

demonstration is insufficient to meet their burden

under the “capable of repetition” prong. Murphy, 455

U.S. at 482; McFarlin v. Newport Special Sch. Dist.,

980 F.2d 1208, 1211 (8th Cir. 1992) (finding that

evidence that there would be an opportunity for the

App. 6

unlawful action to occur again was insufficient to

show “a reasonable probability that the same” action

would occur again).

Appellants also rely on our decision in Moore uv.

Hosemann, Nos. 09-60272 & 09-60424, 2009 U.S.

App. LEXIS 27911 (5th Cir. Dec. 18, 2009) to show

that they have satisfied the exception’s require-

ments. In Moore, we held that a challenge to the

Mississippi Secretary of State’s 5:00 p.m. deadline for

filing was not moot because’ it was “capable of

repetition, yet evading review.” Jd. at *6-"8. We found

that the challenge in Moore was “capable of

repetition” because the Mississippi Secretary of State

“made it plain that he intendled]} to enforce the 5:00

p.m. deadline in future elections.” Jd. at *8. Unlike

the Mississippi Secretary of State, the Secretary here

has not made it plain that he intends to unilaterally

change filing deadlines in the future, and Appellants

have not presented any evidence that would show

such an intention.’ Therefore, our decision in Moore

does not save Appellants’ complaint from mootness.

Moore was decided after oral argument in this case

Appellants addressed this case in a post-argument Rule 28()

letter

Appellants, relying on an executive order issued by the

Governor of Louisiana, contend that the Secretary’s actions

shortened the Governor’s filing deadlines from September 12 to

September 8. The Secretary disputes Appellants’ contention; he

asserts that his actions actually extended the filing deadlines

and did not shorten them because the Governor's order did no‘

extend the filing deadlines to September 12. We need not reso! ve

(Continued on following page)

App. 7

Appellants could have satisfied their burden

under the “capable of repetition” prong if they

introduced evidence showing that the Secretary had

unlawfully changed filing deadlines in the past, that

the Secretary’s actions reflect a policy or a consistent

pattern of behavior that he has determined to

continue, or that the Secretary’s action was pre-

scribed by statute, which is the type of evidence

presented in most election law cases that fall under

the exception.® /ii. State Bd. of Elections, 440 U.S. at

this dispute because the proper characterization of the

Secretary's actions is immaterial to this decision. Regardless of

whether the Secretary’s actions were an extension or a

shortening, Appellants’ complaint is still moot because they

have failed to meet their burden under the “capable of

repetition” prong.

° In their reply brief, Appellants state that the “Secretary’s

policy is that he has the authority to fix emergency election

deadlines,” but they do not present any evidence to support their

assertion that the Secretary has such a policy. Appellants also

state in their reply brief that “the Secretary’s action clearly

represents policy; at least the Secretary has never claimed it

docs not.” The burden, however, is not on the Secretary to show

whether his actions constitute policy; instead, the burden is on

Appellants to show that the Secretary’s actions were policy, and

Appellants have not presented any evidence that wouid allow

them to meet that burden in this case.

° Appellants assert that their case is an election law case,

so it automatically falls under the “capable of repetition, yet

evading review” exception. Appeilants’ assertion, however, relies

on the assumption that their case is like most election law cases.

This assumption is incorrect. Unlike most election law cases,

Appellants’ case does not involve a challenge to a governmental

action done pursuant to an election statute. See, e.g., Davis, 128

S.Ct. at 2770. These challenges are often able to survive

(Continued on following page)

App. 8

188. Appellants have failed to present such evidence.

Secause we agree with the district court that

Appellants have failed to present evidence that would

allow them to mect their burden under the “capable

of repetition” prong, we conclude that the district

court did not err in dismissing Appellants’ complaint

as moot.

B. Denial of Costs and Fees Under Rule 4(d)

Appellants argue that the district court erred in

denying their request for costsd |sic] fees under Rule

4(d) because the Secretary was sued for prospective

relief in his official capacity and, therefore, subject to

Rule 4(d)’s mandatory waiver-of-service provision.

Appellants’ argument is foreclosed by our recent

decision in Moore. In that case, we held that “a state

official sued in his official capacity is not subject to

the mandatory waiver-of-service provisions of |RJule

A(d).” 2009 U.S. App. LEXIS 27911 at *15. Accord-

ingly, we conclude that the district court did not err in

denying Appellants’ motion for costs and fees under

Rule 4(d).

mootness under the exception because courts will assume that

the government will enforce the same statute in the future. See,

e.g. FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 463 (2007)

(“[TJhere is no reason to believe that the FEC will ‘refrain from

prosecuting violations’ of BCRA.”). In cases such as this, where

the challenged governmental action was not done pursuant to a

statute, such an assumption cannot be made, so Appellants

cannot simply rely on general election law cases to support their

assertion that the exception applies.

App. 9

WI. CONCLUSION

For the foregoing reasons, we AFFIRM the

district court’s order.

App. 10

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

LIBERTARIAN PARTY, CIVIL ACTION

LIBERTARIAN PARTY OF = |

Q. -582-.J.

LOUISIANA, BOB BARR. —

WAYNE ROOT, SOCIALIST

PARTY USA, BRIAN MOORE,

STEWART ALEXANDER

VERSUS

JAY DARDENNE,

In his official capacity as

Louisiana Secretary of State

RULING ON MOTIONS

This matter is before the court on a Motion to

Dismiss Case as Moot (Doc. 48) filed by Defendant,

Jay Dardenne, in his official capacity as Secretary of

State, against Plaintiffs the Libertarian Party, the

Libertarian Party of Louisiana, Bob Barr, and Wayne

Root, (hereinafter the “Libertarian Party”) and the

Socialist Party USA, Brian Moore, and Stewart Alex-

ander (hereinafter the “Socialist Party”). Additionally

before this court are a Motion to Amend Complaint

(Doc. 44) and a Motion for Costs and Attorney’s Fees

under Rule 4(d) (Doc. 45), both filed by Plaintiffs

against Defendant. Oral arguments were conducted

on these motions on February 19, 2009. Jurisdiction

exists pursuant to 28 U.S.C. § 1331.

App. 11

Factual Background

On September 15, 2008, Plaintiffs filed a Com-

plaint (Doc. 1) against Defendant contending actions

of the Secretary of State violated the First and Four-

teenth Amendments to the United States Constitu-

tion and 42 U.S.C. § 1983, alleging that state closure

of offices for non-essential purposes on September 2,

2008 (for the Socialist Party) and September 5, 2008

(for the Libertarian Party) and not affording a rea-

sonable time thereafter for submission of qualifying

papers to be placed on the Louisiana presidential

election ballot, unconstitutionally denied them ballot

access. The complaint alleged the Secretary of State’s

extension of the deadline for acceptance of qualifying

papers through September 8, the first day the office

was fully reopened, was null and void under U.S.

Constitution, Art. II, § 1, cl. 2, and 42 U.S.C. § 1983;

that failure to provide notice of the September 8

extension violated due process and 42 U.S.C. § 1983;

and that the Septemnber 8 deadline was arbitrary and

capricious and violated due process. Plaintiffs de-

manded declaratory and injunctive relief under 42

U.S.C. § 1983 and 28 U.S.C. § 2201 for alleged uncon-

stitutional enforcement of allegedly ultra vires and

arbitrary deadlines.

A hearing was held on September 22, 2008, on

the motion for preliminary injunction, the request for

temporary restraining order having been denied on

September 16, 2008 (Doc. 4). The motion (Doc. 2)

requested that the Secretary of State be ordered to

cease and desist enforcement of the September 2 and

App. 12

September 8 deadlines and accept the qualifying

papers tendered by the Libertarian Party on Sep-

tember 10 and by the Socialist Party on September

11, and that the names of Bob Barr and Wayne Root

(Libertarian Party) and Brian Moore and Stewart

Alexander (Socialist Party) be placed on the Loui-

siana 2008 presidential election ballot.

After the hearing on September 22, 2008, the

preliminary injunction was granted as to the Liber-

tarian Party and denied as to the Socialist Party

(Doc. 20). The Secretary of State was ordered to re-

print the absentee by mail ballots for the presidential

election in Louisiana to include the candidates and

electors for the Libertarian Party. The ruling was

stayed until September 25, 2008, to allow for appeal.

The Secretary of State filed notice of appeal on

September 25, 2008, and moved the Fifth Circuit,

pursuant to Fed. R. App. P. 8, to stay the injunction

pending appeal. On September 26, 2008, the Fifth

Circuit granted the stay (Doc.28), finding that the

Secretary of State had made a showing ot likelihood

of success on the merits of the appeal.

z Mootness

Defendant argues that, with the occurrence of the

November 4, 2008, presidential election, all issues in

this case as presented in the Complaint (Doc. 1) are

moot. Plaintiffs agree that any challenge to the

App. 13

preliminary injunction is moot,’ but believe that other

issues in this case remain alive. Plaintiffs seek per-

manent relief declaring Defendant’s September 2,

2008, and September 8, 2008, deadlines unconsti-

tutional and permanently enjoining their enforce-

ment. Plaintiffs also seek to add claims for damages

in an amended complaint which was not included in

the initial complaint.

“A claim becomes moot when ‘the issues pre-

sented are no longer ‘live’ or the parties lack a legally

- . - 2 -

cognizable interest in the outcome.’” Furthermore, as

the Fifth Circuit noted in Environmental Conser-

‘ . ° ‘ 3

vation Organization v. City of Dallas’:

ace

Mootness is the doctrine of standing in a

time frame. The requisite personal interest

that must exist at the commencement of liti-

gation (standing) must continue throughout

its existence (mootness).” If a case has been

rendered moot, a federal court has no con-

stitutional authority to resolve the issues

‘ Appeal from the United States District Court for the

Middle District of Louisiana (Doc. 61, p. 3 of 3).

* Smith v. Winter, 782 F.2d 508, 510 (5th Cir. 1986), citing

Powell v. UcCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1951, 23

L.Ed.2d 491, 502 (1969).

* 529 F.3d 519, 524-525 (5th Cir. 2008).

* Center for Individual Freedom v. Carmouche, 449 F.3d

655, 661 (5th Cir. 2006) (quoting U.S. Parole Comm'n uv.

Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 63 L.Ed.2d 479

(1980)).

App. 14

that it presents.” Therefore, before con-

sidering any other matters raised by the

parties, we are obliged to “resolve the out

standing question as a threshold matter of

jurisdiction.’””

In deciding whether the entire complaint is moot,

the parties agree that the Court must consider

whether a recognized exception to the mootness doc-

trine for “the class of controversies capable of repeti-

tion yet evading review” is applicable.* The exception

can be invoked for the Complaint’s (Doc. 1) claims for

declaratory relief if two elements are met: “(L) [T]he

challenged action was in its duration too short to be

fully litigated prior to its cessation or expiration, and

(2) there was a reasonable expectation that the same

In Re Scruggs, 392 F.3d at 128.

" Cole v. Gen. Motors Corp., 484 F.8d 717, 721 (5th Cir.

2007).

" First National Bank of Boston v. Bellotti, 435 U.S. 765,

774, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978).

Plaintiffs cite the case of Boagert v. Land, 543 F.3d 862,

864 (6th Cir. 2008), for the proposition that while the holding of

an election moots interlocutory challenges to awards and denials

of preliminary relief, “[dJismissal of these preliminary-injunction

appeals ... does not render moot the underlying district court

litigation.” Thus, Plaintiffs argue that the “capable of repetition,

yet evading review” doctrine can save Plaintiffs’ claims to per-

manent prospective relief. However, as explained below, Plain-

tiffs’ claims are not capable of repletion [sic], yet evading review

and this doctrine is inapplicable.

App. 15

complaining party would be subjected to the same

action again.”

In Center for Individual Freedom v. Carmouche,”

suit was brought under the Civil Rights Act, 42

U.S.C. § 1988, and the Declaratory Judgment Act, 28

U.S.C. § 2201, and plaintiffs sought both injunctive

and declaratory relief, the Fifth Circuit found that

“Controversy surrounding election laws, including

campaign finance regulations, is one of the paradig-

matic circumstances in which the Supreme Court has

found that full litigation can never be completed

before the precise controversy (a particular election)

has run its course,” and that “suits challenging the

validity of state election laws” satisfy the first prong

of the exception.

Plaintiffs are correct that “suits challenging the

validity of state election laws are classic examples of

cases in which the issues are capable of repetition,

yet evading review.” However, the Court agrees with

Defendant that the requests for declaratory judgment

made in the Complaint (Doc. 1) do not challenge the

validity of state election laws, except as arising under

a particular combination of events, events that are

unusual and unlikely to occur again. The first request

for declaratory relief does not challenge “the validity

* Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46

L.Kd.2d 350 (1975).

" 449 F.3d 655, 661 (5th Cir. 2006).

” 7.

App. 16

of a state election law” but, rather, an action by the

Secretary of State in extending the qualifying dead-

line to September 8, 2008. The second request for

declaratory relief does challenge a state election law,

setting the September 2, 2008 deadline, but only as

applied in the unusual facts of this specific case, an

office closure for non-essential purposes caused by a

hurricane while the office remained open for essential

purposes such as qualifying. Thus, this Court finds

that this is not a “suit challenging the validity of a

state election law” on its face so as to satisfy the first

prong of the mootness exclusion.

In order for the second prong to apply (a rea-

sonable expectation that the same complaining party

would be subjected to the same action again) plain-

tiffs must make such a showing. Isolated actions do

not fall under the exception to mootness. Requests for

declaratory relief may sustain a suit only when the

claims “challenge .. . some ongoing underlying policy”

rather than “merely attackling] an isolated ... ac-

tion,” and a litigant should be able to “show the exis-

tence of an immediate and definite governmental action

or policy that has adversely affected and continues to

affect a present interest,” in order for declaratory

relief to save a suit from mootness.

* City of Houston v. HUD, 24 F.3d 1421, 1429 (D.C. Cir.

1994).

' Super Tire Engineering Co. v. McCorkle, 416 U.S. 115,

125-126, 94 S.Ct. 1694, 1700, 40 L.Ed. 1 (1974) (emphasis

added).

App. 17

Plaintiffs believe that the focus of this situation

should be “whether Defendant might again attempt

to regulate elections.” However, the cases show that

the likely to reoccur inquiry is directed to the plain-

tiff, the challenger of the law, whether the plaintiff

will again be subjected to the same alleged injury,

and not to the law itself. In Weinstein v. Bradford,’

the Supreme Court enunciated the second prong of

the exception as: “there was a reasonable expectation

that the same complaining party would be subjected

to the same action again.” In Center for Individual

Freedom v. Carmouche,” the Fifth Circuit recognized

“the Court does not always focus on whether a par-

ticular plaintiff is likely to incur the same injury,” but

nonetheless still considered whether others in plain-

tiffs’ position would be subjected to the challenged

static condition, the challenged law.

In Carmouche, the Fifth Circuit stated that

“precedent suggests that this case is not moot, be-

cause other individuals certainly will be affected by

the continuing existence of the CFDA.”” Neither the

Plaintiffs in the instant case nor any other indi-

viduals have been or even can be shown to “be af-

fected by the continuing existence” of anything. This

Plaintiffs’ Response to Defendant's Motion to Dismiss /

Doc. 52, p.8.

'* 423 U.S. 147, 149 (1975).

" 449 F.3d at 662.

Id.

App. 18

Court believes that the isolated act of which Plaintiffs

complain is not continuing in nature.

In International Union v. Dana Corporation’ the

Sixth Circuit found that a situation was not “capable

of repetition” since “the combination of events which

forced the [plaintiffs] to seek legal action ... is

° ° 919 .

unusual and unlikely to occur again.” In the instant

matter, it is highly unlikely that Plaintiffs will again

fail to qualify before the last day for qualifying for a

presidential election, on days when the Secretary of

State’s office will be closed for non-essential purposes

due to hurricane conditions, but open for the essential

purposes of qualifying for a presidential election.’

Therefore, this Court finds that the entire case pre-

sented by the Complaint (Doc. 1) is moot as it is not

“capable of repetition”, and there is no “reasonable

expectation that the same complaining party would

: 921

be subjected to the same action again.’

697 F.2d 718 (6th Cir. 1983)

Id. at 723

Additionally, had the office been completely closed during

the end of the qualifying ‘penod, Louisiana law provides a

method for “rescheduling of qualifying,” allowing the Secretary

of State to certify to the governor that a state of emergency

exists, after which the Governor “may” issue and order to “delay

any qualifying of candidates.” La. R.S. 18:401.1.

Plaintiffs are correct that in a motion to dismiss such a:

this one, they are entitled to the benefit of the doubt under Bell

Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1969 (2007). That

“benefit of the doubt”, however, is not strony enough to overcome

this Court’s finding of mootness

App. 19

It. The Proposed Amendment

Federal Rule of Civil Procedure 15(a) provides

that leave to amend pleadings “shall be freely given

when justice so requires.” Although Rule 15 “evinces

a bias in favor of granting leave to amend,’ it is not

automatic,” and a decision to grant leave is with

the discretion of the trial court.” The trial court has

the discretion to consider numerous factors in evalu

ating whether to allow amendment,” but a denial of

leave to amend must be supported by a “substantial

reason.”

As mentioned above, all issues in this case as

presented in the Complaint (Doc. 1) became moot

with the occurrence of the November 4, 2008 election

If allowed, this amendment will permit a case which

has become moot, and over which this Court has no

jurisdiction, to continue. This is certainly a “substan

tial reason” to deny the proposed amendment.

Plaintiffs argue that even if their claim for per-

manent prospective relief is moot their claim for

Matter of Southmark, 88 F.3d 311, 314 (5th Cir. 1996),

citing Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th

Cir. 1981)

Id. citing Wimm v. edack Eckerd Corp.,

(5th Cir. 1993),

Id. citing Louisiana v. Litton Mortgage Co., 50 F.3d 1298,

1302-03 (5th Cir. 1995)

U.S. ex rel. Marcy v. Rowan Companies, In

384, 391 (5th Cir. 2008)

Southmark, 88 F.3d at 314

App. 20

money damages remains alive. This argument is

without merit. In Fox v. Board of Trustees of the State

University of New York,” the Second Circuit held that

“once a case is moot, it is no longer justiciable in

federal court and must be dismissed,” and that “the

district court did not abuse its discretion in denying

Plaintiffs permission to amend their complaint after

the case had become moot.” Before reaching this

conclusion, the court stated that “the inability of the

courls to provide relief to Plaintiffs ... is logically

dependent upon the absence of a claim for damages

™ The Plaintiffs in Fox argued that because they

were seeking to recover nominal damages; they be-

lieved that the case was not moot. The Second Circuit

disagreed, however, stating that this contention failed

“primarily because there is absolutely no specific

mention in [the Complaint] of nominal damages. Nor

can a request of such damages be inferred from the

language of [the Complaint].”

Plaintiffs are correct that a damage claim may

survive a mootness challenge.” However, Plaintiffs’

12 F.3d 135 (2nd Cir. 1994

Id. at 144

ld

Id

Id. at 14]

Harris v. City of Houston, 151 F.3d 186, 191 n. 6 (5th Cir

1998) (noting that a claim for “even nominal damages” can pre-

serve a claim against a mootness challenge); See also City of Los

Angeles v. Lyons, 461 U.S. (1980) (where the plaintiff was found

to have standing to seek damages for past injuries caused by an

(Continued on following page)

App. 21

argument that the proposed amendment in this case

relates back to the date of the filing of the original

complaint is incorrect. Since the Plaintiffs’ original

Complaint (Doc. 1) became moot before an amend-

ment was allowed, “the federal courts have no juris-

diction over the litigation,” and Plaintiffs now “lack a

legally cognizable interest in the outcome.”” The Fox

case is not limited, as the Plaintiffs assert, to pre-

venting only amendments adding plaintiffs after a

complaint becomes moot, and Plaintiffs have failed to

, , , ; 34

cite any authority saying otherwise.

The Fifth Circuit case of Gospel Lighthouse

Church, Inc. v. City of Dallas” is most factually on

point. In Gospel, the Fifth Circuit upheld a district

court grant of a motion to dismiss on mootness

grounds; and upheld the district court denial of

an amendment to the complaint, proposed after

unconstitutional application of a chokehold even though he had

no standing to pursue equitable relief to prevent choke-holds

from being used in the future)

Fox, 42 F.3d at i40

Plaintiffs claim that the amendment should be allowed

based upon the case of Building and Construction Trades Coun

cil of Buffalo, New York and Vicinity v. Downtown Development,

Inc., 448 F.3d 138, 151 (2nd Cir. 2006). However, this case is

inapphcable since damage claims in Downtown Development (in

the form of civil penalty requests) had previously been made on

the initial complaint, unlike in the instant case, where no dam-

age claims had been presented to this Court prior to the case

becoming moot.

999 F 2d 1580 (5th Cir. 1993).

App. 22

mootness occurred, adding parties and a damage

claim. The Fifth Circuit found:

“We hold that in the particular circum-

stances of this case the district court did not

abuse its discretion in finding that the

mootness of the claim bars this suit.”

“‘The requisite personal injury that must

exist at the time of the commencement of the

litigation (standing) must continue through-

out its existence’... Moreover, the mootness

doctrine requires that the controversy posed

by the plaintiff’s complaint be ‘live’ not only

at the time the plaintiff files the complaint

but also throughout the litigation process.”

re eee

“Gospel lost its personal stake in the out

come when the zoning change resolved its

dispute. Thus, the resolution of Gospel’s con-

troversy by the zoning change renders this

case moot and further litigation unneces-

sary.”

eK

“Because the controversy has been resolved

and the plaintiff/appellant’s claims are there-

fore moot, federal subject matter jurisdiction

no longer exists.”

“Because Gospel’s claims are moot, there is

no case or controversy.”

App. 23

The timing in Gospel is similar to the timing in

this case. In Gospel, the initial complaint was filed,

and after the zoning change, the case was found to be

moot. Thereafter, the court denied Gospel’s motion to

permit an amended complaint joining additional par-

ties and adding claims for damages. In the instant

case, the initial complaint was filed, and with the oc-

currence of the election, this case has become moot.

Thus, Plaintiffs are precluded from amending their

complaint, and consequently, adding claims for dam-

35

ages.

III. Costs and Attorney’s Fees

The Complaint in the instant case (Doc. 1) was

brought against Defendant, Jay Dardenne, in his

official capacity as Louisiana Secretary of State. The

United States Supreme Court has found that a suit

against an Official in his official capacity “is not a suit

against the official personally, for the real party in

interest is the entity.(”]”’ Dardenne, in his official

capacity, is not a person to whom Fed. R. Civ. Pro.

4(d) applies, as that rule applies only to those subject

Since this Court finds that Piaintiffs are not permitted to

amend their complaint based on the foregoing reasons, this

Court need not address Defendants additional arguments in op-

position to Plaintiffs’ proposed amendment.

- Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099,

87 L.Ed. 114 (1985).

App. 24

to service under Rule 4(e), (f), or (h).”” Service on a

defendant sued in his official capacity must be made

under Rule 4Q), as suing a state official in his official

capacity is ultimately a suit against the state.”

Therefore, Defendant’s reliance on Fed. R. Civ. Pro.

4(j) as the appropriate method for service is reason-

able, and Plaintiff’s claim for costs and attorney’s

fees under Rule 4(d) is without merit.

tule 4(e) concerns “an individual — other than a minor, an

incompetent person, Or a person whose waiver has been filed

[who] may be served in a judicial district of the United States.”

Rule 4(f) applies to service on an individual in a foreign country.

Rule 4(h) deals only with service upon “a domestic or foreign

corporation, or a partnership or other unincorporated associa-

tion that is subject to suit under a common name.”

Plaintiffs cite a footnote from Will v. Michigan Depart-

ment of State Police, 491 U.S. 58, 71 (1989) which states: “Of

course, a state official in his or her official capacity, when sued

for injunctive relief, would be a person under §1983 because

‘official-capacity actions for prospective relief are not treated as

actions against the State.’” Jd. at 71 n. 10. However, as ex-

plained by the Advisory Committee Notes to the 1993 Amend

ments to Fed. R. Civ. Pro. 4: “The request for waiver of service

may be sent only to defendants subject to service under subdi-

vision (e), (f), or (h). The United States is not expected to waive

service for the reason 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 ap-

plied to agencies, corporations, and officers of the United States

and to other governments and entities subject to service under

subdivision (j). Moreover, there are policy reasons why govern

ment entities should not be confronted with the potential for

bearing costs of service in case in which they ultimately prevail.”

App. 25

Conclusion

Accordingly, the Motion to Dismiss Case as Moot

(Doc. 48) by Defendant Jay Dardenne, in his official

capacity as Louisiana Secretary of State, is hereby

GRANTED. The Motion to Amend Complaint (Doc.

44) by Plaintiffs, the Libertarian Party and the So-

cialist Party, is hereby DENIED. The Motion for

Costs and Attorney’s Fees under Rule 4(d) (Doc. 45)

by Plaintiffs, the Libertarian Party and the Socialist

Party, is hereby DENIED.

Signed in Baton Rouge, Louisiana, on March 24,

2009.

/s/ J Brady

JUDGE JAMES J. BRADY

UNITED STATES

DISTRICT COURT

MIDDLE DISTRICT

OF LOUISIANA

App. 26

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-30307

LIBERTARIAN PARTY; LIBERTARIAN PARTY OF

LOUISIANA; BOB BARR; WAYNE ROOT;

SOCIALIST PARTY USA; BRIAN MOORE,

Plaintiffs-Appellants

v.

JAY DARDENNE, In His Official Capacity

as Louisiana Secretary of State,

Defendant-Appellee

Appeal from the United States District Court

for the Middle District of Louisiana, Baton Rouge

(Filed Mar. 15, 2010)

ON PETITION FOR REHEARING EN BANC

(Opinicn 1/21/2010, 5 Cir., . , F.3d _)

Before STEWART, DENNIS, and HAYNES, Circuit

Judges.

PER CURIAM:

(X) Treating the Petition for Rehearing En Banc as

a Petition for Panel Rehearing, the Petition for Panel

App. 27

Rehearing is DENIED. No member of the panel nor

judge in regular active service of the court having

requested that the court be polled on Rehearing En

Banc (FED. R. App. P. and 5TH Cir. R. 35), the Petition

for Rehearing En Banc is DENIED.

( ) Treating the Petition for Rehearing En Banc as

a Petition for Panel Rehearing, the Petition for Panel

Rehearing is DENIED. The court having been polled

at the request of one of the members of the court and

a majority of the judges who are in regular active

service and not disqualified not having voted in favor

(FED. R. App. P. and 5TH Cir. R. 35), the Petition for

Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

3-15-2010

/s/ [Illegible|

United States Circuit Judge