TYMKOVICH, Circuit Judge.
The 2012 elections in Sandoval County, New Mexico, were marked by long lines and crowded polling places. Several voters filed a challenge to the County's administration of the election, and the district court concluded that the County's election procedures were so dysfunctional that an immediate remedy was necessary to avoid voter disenfranchisement in the approaching 2014 election. To remedy the anticipated election day problems, the court entered a preliminary injunction that required the County to adhere to new regulations increasing the number of voting centers and voting machines.
County election officials sought interlocutory appellate review of the preliminary injunction prior to the election, but we declined to intervene at that time. The election went off without a hitch, and we must now reach the County's challenge to the injunction. In addition, we must also consider a motion to dismiss the appeal as moot presented by the voters who brought the suit. Concluding the issues raised by the grant of the preliminary injunction have been mooted by the passage of the 2014 election, we grant the motion and dismiss the appeal for lack of jurisdiction.
The administration of the 2012 general election in Rio Rancho — the largest city in Sandoval County, a suburb of Albuquerque — was, in the district court's words, "a complete disaster." Fleming v. Gutierrez, No. 13-CV-222, at *5 (D.N.M. Sept. 12, 2014). The misallocation of election-day resources resulted in long lines, wait times exceeding five hours in some places, and inevitably, would-be voters leaving without voting. Following the election, the Sandoval County Board of Commissioners (Board) passed two resolutions generally condemning the handling of the 2012 election and designating additional voting centers
Also following the election, several County voters (Voters) filed suit in federal district court under 42 U.S.C. § 1983 alleging equal protection and due process violations as well as a violation of the New Mexico Constitution's free-and-open-elections clause. The complaint sought preliminary and permanent injunctive relief relating to "all future elections," a declaration that the County's practices were unconstitutional, and attorney's fees. Supp. App. 122-23 (Second Am. Compl. at 17-18). In September 2014, two months before the election, the district court entered a preliminary injunction that essentially made any discretionary aspects of the Board's resolutions nondiscretionary. The injunction order explicitly stated that it was to "apply to the parties through the November 2014 elections, at which point the Court will inquire whether further matters in this case preclude its dismissal and closure." App. 50.
The County
We denied the motion for expedited review, Fleming v. Gutierrez, No. 142181 (10th Cir. Oct. 16, 2014), and the election took place in November under the force of the injunction. The Voters now ask that we dismiss the appeal of the preliminary injunction as moot. Despite its initial assertion to the contrary in papers filed prior to the election, the County argues that the election did not in fact moot its appeal because (1) it falls within the exception to mootness doctrine for disputes capable of repetition, yet evading review, and (2) the propriety of the injunction remains relevant to whether the Voters will be considered a "prevailing party" for purposes of a prospective application for attorney's fees.
As we explain further below, we agree with the Voters that the challenge to the preliminary injunction is moot. Any claims that are still alive can be litigated in the district court as part of the continuing proceedings over the need for a permanent injunction.
We have statutory jurisdiction to review a district court's interlocutory order granting a preliminary injunction. See 28 U.S.C. § 1292(a)(1). But even so, we might lose our jurisdiction if an interlocutory appeal no longer presents a live case or controversy. In those circumstances, an appeal is moot, and we are without subject matter jurisdiction to reach the merits of the appeal. See Chihuahuan Grasslands Alliance v. Kempthorne, 545 F.3d 884, 891 (10th Cir.2008) ("Mootness is a threshold issue because the existence of a live case or controversy is a constitutional prerequisite to federal court jurisdiction.").
In considering mootness, we ask "whether granting a present determination of the issues offered will have some effect
In this case, a decision affirming or reversing the district court's grant of the preliminary injunction would not have any present-day, real-world effect on the parties because both the election and the effective time period of the injunction have passed. The injunction applied "through the November 2014 elections," App. 50, and the specific relief sought by the County from this court was the vacation of the injunction prior to the election. See Aplt. Br. at 1, 3, 8. We cannot turn back the clock and create a world in which the County does not have to administer the 2014 election under the strictures of the injunction.
Nor does the exception to mootness for conduct capable of repetition yet evading review save this interlocutory appeal. Under this exception, which courts reserve for "exceptional situations," issues under review are not moot if they (1) "evade review" because "the duration of the challenged action is too short to be fully litigated prior to its cessation or expiration," and (2) are "capable of repetition," such that "there is a reasonable expectation that the same complaining party will be subjected to the same action again." Chihuahuan
Whether the exception applies can depend on the posture of the case on appeal. See Thournir, 710 F.2d at 1463-64. For instance, an interlocutory appeal may very well be moot even while the case as a whole remains live because it is capable of repetition. See, e.g., Gjertsen, 751 F.2d at 201; see also 13C Charles Alan Wright et al., Federal Practice and Procedure § 3553.3.1 (3d ed.2008) ("[I]t may be clear that a particular request for relief has become moot, even though other forms of relief may remain available. Once the opportunity for a preliminary injunction has passed, for example, the preliminary injunction issue may be moot even though the case remains alive on the merits."). In this case, for example, asking whether the exception applies to an interlocutory appeal challenging the propriety of the preliminary injunction specifically aimed at the allocation of election-day resources in the completed 2014 election is distinct from the question of whether this suit as a whole is capable of repetition, yet evading review. The latter is an issue we may well confront in due course if one of the parties appeals from a final judgment entered by the district court.
This case reflects one such example of partial mootness. The particular harm of administering the 2014 election under a temporary federal court order will not again be repeated because the 2014 election has passed. Nor will the County's arguments evade review. The Voters' complaint, which sought permanent injunctive relief regarding "all future elections" and declaratory relief, remains pending in the district court.
Notably, the County raised the same legal arguments in their motions for summary judgment and for reconsideration of the district court's denial of summary judgment as they did in opposition to the preliminary injunction.
A review of the case law from other circuits lends support to our view that this appeal is moot. For example, in Independence Party of Richmond County v. Graham, the Second Circuit held the passage of an election mooted an interlocutory appeal from the district court's grant of a preliminary injunction. In that case, the Independence Party sued various county officials under § 1983 seeking injunctive and declaratory relief after the county refused to follow a party resolution that invited unaffiliated voters to participate in the party's primary elections. Prior to the 2004 primary, the district court entered a preliminary injunction ordering the county "to take all necessary steps to ensure that unaffiliated registered voters may participate in the Independence Party primary election ... scheduled for September 14, 2004." Independence Party, 413 F.3d at 255. The county defendants appealed, and while the appeal was pending, the election took place.
The Second Circuit found there was "no question that [the court] ha[d] statutory jurisdiction" pursuant to § 1292, but concluded that no live case or controversy remained. Id. With respect to the county defendants' argument that the issues were capable of repetition yet evading review, the court reasoned:
Id. at 256; see also Stone v. Bd. of Election Comm'rs, 643 F.3d 543, 545 (7th Cir. 2011); Gjertsen v. Bd. of Election Comm'rs, 751 F.2d 199, 201 (7th Cir.1984). The same is true of the appeal before us.
The County has a point that the Voters might be considered a "prevailing party" for purposes of 42 U.S.C. § 1988 having won a preliminary injunction. See Kan. Judicial Watch v. Stout, 653 F.3d 1230, 1238 (10th Cir.2011). But if the County is able to successfully challenge a final judgment entered by the district court and establish that there was no jurisdiction from the outset due to a lack of standing, attorney's fees for a preliminary injunction granted by the district court when it was without jurisdiction would not be appropriate. See Lynch v. Leis, 382 F.3d 642, 646 (6th Cir.2004) ("If [the party] never had standing to bring the case, he is not a proper prevailing party."); Ward v. San Diego Cnty., 791 F.2d 1329, 1334 (9th Cir. 1986) ("Ward's lack of standing in her original challenge rendered illusory the practical outcome she temporarily received (the preliminary injunction). An erroneously granted injunction cannot be the basis for an award of attorneys fees as the prevailing party."); O'Neill v. Coughlan, 490 Fed.Appx. 733, 737-38 (6th Cir.2012) (distinguishing situations where a party is considered prevailing based on relief granted by a court properly exercising power and situations where "the district court should have dismissed [the] case long ago"). Recognizing these various possibilities, however, is not enough to confer jurisdiction on us to reach the merits of this otherwise moot order.
As a final matter, we must decide what, if anything, to do with the district court's injunction order. The Voters ask that we dismiss the appeal as moot and
For the foregoing reasons, we GRANT the motion to dismiss the appeal as moot and DISMISS the appeal for lack of jurisdiction.