Case: 15-10623   Date Filed: 11/05/2015   Page: 1 of 4


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-10623
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 3:12-cv-00183-MCR-CJK



BAYOU LAWN & LANDSCAPE SERVICES,
CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA,
NATIONAL HISPANIC LANDSCAPE ALLIANCE,
SILVICULTURAL MANAGEMENT ASSOCIATES INC.,
PROFESSIONAL LANDCARE NETWORK, et al.,

                                             Plaintiffs - Appellees,

versus

SECRETARY, U.S. DEPARTMENT OF LABOR,
PORTIA WU,
In her official capacity as United States
Assistant Secretary of Labor,

                                             Defendants - Appellants.

                      ________________________

               Appeal from the United States District Court
                   for the Northern District of Florida
                     ________________________

                            (November 5, 2015)
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Before MARCUS, WILLIAM PRYOR, and MARTIN, Circuit Judges.

PER CURIAM:

      In February 2012, the United States Department of Labor (DOL) issued a

regulation related to the administration of the H-2B visa program. See Temporary

Non-Agricultural Employment of H-2B Aliens in the United States, 77 Fed. Reg.

10,038 (Feb. 21, 2012). The H-2B program allows foreign nationals to enter the

United States for temporary non-agricultural work. See 8 U.S.C.

§ 1101(a)(15)(H)(ii)(b). DOL’s 2012 regulation altered how and when employers

could hire and pay workers through the program. In April 2012, Plaintiffs-

Appellees filed a lawsuit challenging DOL’s authority to issue this regulation. In

December 2014, the district court granted summary judgment against the

government, holding that the United States Department of Homeland Security

(DHS) had rulemaking authority in relation to the H-2B program and DOL did not.

In so holding, the district court vacated the rule and permanently enjoined the

government from enforcing it. The government filed this appeal.

      The facts underlying the district court ruling have since changed. In April

2015, DOL and DHS jointly issued a new set of rules governing the H-2B

program. See Temporary Non-Agricultural Employment of H-2B Aliens in the

United States, 80 Fed. Reg. 24,042 (Apr. 29, 2015); Wage Methodology for the

Temporary Non-Agricultural Employment H-2B Program, 80 Fed. Reg. 24,146-01


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(Apr. 29, 2015). These regulations, issued between the date on which the

government filed its initial brief and the date the Plaintiffs-Appellees filed their

response, superseded the 2012 rule challenged in this lawsuit. Plaintiffs-Appellees

acknowledge that the new regulations may have mooted their lawsuit. They

nonetheless suggest that these new regulations are also an invalid exercise of

rulemaking authority, while at the same time recognizing that this question is not

now before us. The government filed a reply brief arguing the case should be

dismissed as moot.

      The new rules issued by DOL and DHS require us to address issues that the

parties did not and could not have raised in the district court. “By well settled

convention, appellate courts generally will not consider an issue or theory that was

not raised in the district court.” F.D.I.C. v. Verex Assur., Inc., 

, 395

(11th Cir. 1993). However, this convention normally applies to claims that could

have been raised in earlier proceedings but were waived, whereas the mootness

issue here could not have been presented in the district court. And unlike the

waiver rule, “mootness is jurisdictional.” Sierra Club v. E.P.A., 

,

1299 (11th Cir. 2002). That being the case, we are certainly vested with the power

to decide a case has become moot during the pendency of the appeal and dismiss it

on that basis. Indeed, once we conclude a case is moot, we not only have power to

dismiss but an obligation to do so. See 

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      Here, we lack the benefit of the district court’s reasoned consideration of

whether the new regulations actually moot this proceeding or whether any

exception to the mootness doctrine would allow a federal court to adjudicate some

aspect of the case. We vacate the district court’s order and remand to allow the

district court to decide in the first instance what effect the new rules have had on

this case.

      VACATED and REMANDED.




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