Milwaukee Police Ass'n v. Board of Fire & Police Commissioners , 708 F.3d 921 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2314
M ILWAUKEE P OLICE A SSOCIATION AND
M ELISSA R AMSKUGLER,
Plaintiffs-Appellants,
v.
B OARD OF F IRE & P OLICE C OMMISSIONERS OF
THE C ITY OF M ILWAUKEE, E DWARD F LYNN , AND THE
C ITY OF M ILWAUKEE,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 09-C-1192—Rudolph T. Randa, Judge.
A RGUED S EPTEMBER 25, 2012—D ECIDED F EBRUARY 26, 2013
Before K ANNE, T INDER, and H AMILTON, Circuit Judges.
K ANNE, Circuit Judge. In June 2009, Melissa Ramskugler
found herself trapped in a frustrating liminal state. She
had satisfied the State of Wisconsin’s requirements to
become a police officer but had not yet completed the
additional probationary period mandated by Milwau-
kee’s Board of Fire & Police Commissioners. As a result,
2 No. 11-2314
when the Board fired Ramskugler, it claimed it did not
need to follow Wisconsin’s statutorily prescribed proce-
dures for terminating police officers. Feeling that she
was treated unfairly, Ramskugler sued. The Milwaukee
Police Association, the union representing Milwau-
kee officers, joined her. Together, they claimed that
Ramskugler was wrongfully deprived of property
without due process. After the district court granted
summary judgment in favor of the defendants, the plain-
tiffs appealed. Prior to oral argument, however, Rams-
kugler signed a complete settlement and release.
The union never had standing to bring suit on its own
behalf, and any claims previously derived from its mem-
bership are now moot. Accordingly, we dismiss this
appeal.
I. B ACKGROUND
In Wisconsin, police recruits must successfully
complete a period of probation before becoming fully
qualified officers. Statewide requirements are set by the
Law Enforcement Standards Board (“LESB”) and include
over 400 hours of training. See Wis. Stat. § 165.85. After
a recruit completes this curriculum, the local police
department requests that the LESB certify the recruit as
a “law enforcement officer.” In the City of Milwaukee,
however, LESB certification does not end the proba-
tionary period. As a city with a population over 150,000
people, Milwaukee is classified under Wisconsin law as
a “1st class” city. See Wis. Stat. § 62.05(1)(a). First class
cities have their own boards of fire and police commis-
No. 11-2314 3
sioners, which have the authority to “adopt rules to
govern the selection and appointment” of city police
officers. Wis. Stat. § 62.50(3)(b). Milwaukee’s Board has
interpreted that provision as conveying authority to
adopt more demanding probation requirements than
those mandated by the LESB. Specifically, no new recruit
in Milwaukee becomes a full officer until she has
accrued sixteen months of “actual active service.” Board
Rule XI, Section 7(a). Because the LESB curriculum is
often completed in less than sixteen months, a police
recruit in Milwaukee can remain in probationary
status even after satisfying the statewide requirements.
Melissa Ramskugler found herself mired in that
precise predicament. Ramskugler’s probation with the
Milwaukee Police Department (“the Department”) began
on October 8, 2007. Just three days later, Ramskugler
injured her right knee during training. To give her re-
cuperation time, the Department assigned Ramskugler
to clerical duties for approximately one month. Then,
in November, she was given 2.5 months of leave for
surgery on the injured knee. Ramskugler subsequently
returned to duty but remained in a clerical capacity for
a number of months. In that time, she obtained medical
clearance for unrestricted duty and then had to wait
for the next recruit class to begin.
On June 8, 2008, Ramskugler started training with that
class. Unfortunately, two weeks before graduating in
November, Ramskugler re-injured the same knee. She
had already completed the course requirements, how-
ever, so the Department still sent her name to the LESB
4 No. 11-2314
for certification. After more leave and a second surgery
on her knee, Ramskugler returned to clerical duties on
January 27, 2009. Then, in March, the LESB certified her.
At that point, Ramskugler was a “law enforcement
officer,” as defined by the LESB. Yet, she was still on
probation in the eyes of the Milwaukee Board. The
Board did not consider Ramskugler’s time performing
clerical duties as “actual active service.” Therefore, she
still had several more months of service to complete
before fulfilling Milwaukee’s sixteen-month proba-
tionary period. Doing so proved elusive for Ramskugler.
Months later, she had still failed to obtain a new medical
clearance for unrestricted duty. As a result, on June 11,
2009, Police Chief Flynn notified the Board that he had
terminated Ramskugler for being unable to proceed with
required training.
Subsequently, Ramskugler, along with the Milwaukee
Police Association (“MPA”), filed suit in the Milwaukee
County Circuit Court. Together, they argued that Rams-
kugler was deprived of property without due pro-
cess. Specifically, when firing Ramskugler, the Board
did not follow the provisions of Wis. Stat. § 62.50(11)-(18),
which set out mandatory procedures for terminating
police officers. These provisions require, for example,
discharge only “for cause and after trial,” Wis. Stat.
§ 62.50(11), and continued pay while a charge against
an officer is pending, Wis. Stat. § 62.50(18).1 Importantly,
1
When Ramskugler was discharged, § 62.50(18) guaranteed
continued pay and benefits to discharged officers pending a
(continued...)
No. 11-2314 5
these protections apply only to a “member of the police
force” or a “member of the force”—the two terms used
consistently throughout the provisions. See Wis. Stat.
§ 62.50(11)-(18). The statute, however, does not define
“member of the force,” nor does it distinguish proba-
tionary officers when using the term. In the absence of
further guidance, Ramskugler argued that the protec-
tions should apply to anyone who has completed the
state training requirements and has been certified by
the LESB.
The Board disagreed. It countered that Wis. Stat.
§ 62.50(3)(b) gives it the authority to set rules governing
appointment of officers; therefore, an appointee does
not become a “member of the force” until completing
the city’s extended probation. Since Ramskugler
had completed only the state, but not the city, require-
ments, the Board could end her employment without
following the statutorily prescribed procedures. See
Board Rule XI, Section 7(a). According to Ramskugler,
this reading of the statute is too broad; the state legisla-
ture did not give local boards the authority to extend
probationary periods beyond the time mandated by
the LESB.
1
(...continued)
due process review hearing. See Milwaukee Police Ass’n, Local 21
v. City of Milwaukee, 757 N.W.2d 76, 79 (Wis. Ct. App. 2008)
(quoting previous version of the statute). The statute was
later amended and now applies only to suspended officers.
See Wis. Stat. § 62.50(18).
6 No. 11-2314
The co-defendants—the Board, Edward Flynn (the
Police Chief), and the City—removed the case to the
United States District Court for the Eastern District of
Wisconsin. On May 23, 2011, that court issued an order
granting the defendants’ motion for summary judgment.
For unknown reasons, the district court did not address
the claims with respect to the MPA in that ruling. On
June 8, Ramskugler and the MPA timely filed a notice
of appeal. They challenged the grant of summary
judgment and requested that we certify two questions to
the Wisconsin Supreme Court: (1) whether the protec-
tions afforded by Wis. Stat. § 62.50 apply to someone in
Ramskugler’s position; and (2) whether the Board has
the authority to create probation requirements that
exceed those set by the LESB.
On July 15, while this appeal was pending, Ramskugler
signed a Settlement Agreement and General Release. This
Agreement released all claims against the defendants
and waived any right to a hearing or other process that
Ramskugler may have had. The Agreement also pro-
vided Ramskugler with $150,000 “for alleged compensa-
tory damages, for alleged personal physical injuries,
and for disputed workers’ compensation claims and
attorneys fees.” (Dkt. 11-2 at ¶ 3.) The Agreement, how-
ever, allowed for this appeal to continue “as a declaratory
judgment action only.” (Id. at preamble.) On July 21, the
MPA signed a separate Agreement that pledged not to
seek damages or attorney’s fees if it succeeded in this
appeal. (Dkt. 11-3 at ¶ 1.) Again, the Agreement allowed
this suit to proceed solely as a declaratory judgment. (Id.
No. 11-2314 7
at preamble.) The MPA has not identified any other
union member in Ramskugler’s position.2
II. A NALYSIS
To begin, we note that we need only address the claims
as they relate to the MPA. At oral argument, Appellants’
counsel acknowledged that, at most, only the MPA
could now bring suit. We agree. Under the Settlement
Agreement, Ramskugler no longer has a personal stake
in the outcome of this case. She has received monetary
compensation, waived any right to a hearing she may
have had, and has released all other potential claims. There
is no further relief this court can grant. Accordingly,
Ramskugler no longer satisfies the requirements of
federal jurisdiction. See Camreta v. Greene, 131 S. Ct. 2020,
2028 (2011) (“parties must have the necessary stake not
only at the outset of litigation, but throughout its course”);
see also Ameritech Corp. v. Int’l Bhd. of Elec. Workers, Local 21,
543 F.3d 414, 419 (7th Cir. 2008) (“settlements on appeal
2
Another probationary officer, Justin Solsvig, had also joined
the Amended Complaint. Solsvig stopped participating in
the suit midway through litigation; he neither joined
Ramskugler’s motion for summary judgment nor responded
to the Board’s reciprocal motion, which listed him as a party.
As a result, the district court granted summary judgment
against Solsvig in a footnote, and he did not file a Notice of
Appeal. We specifically asked the MPA at oral argument
whether another union member on the record was or had
been in Ramskugler’s position. Counsel said no.
8 No. 11-2314
generally result in the dismissal of an appeal”). The
MPA, however, still seeks reversal of the summary judg-
ment and certification of the two aforementioned ques-
tions to the Wisconsin Supreme Court. Appellees con-
tend that the MPA no longer has standing to bring
this claim and that, alternatively, its claims are also
moot. We address each argument in turn.
A. Standing
Article III, § 2 of the Constitution limits the jurisdiction
of federal courts to “Cases” or “Controversies.” Arizonans
for Official English v. Arizona, 520 U.S. 43, 64 (1997). As
such, federal courts are prohibited from rendering ad-
visory opinions; they cannot divine on “abstract dis-
pute[s] about the law.” Alvarez v. Smith, 130 S. Ct. 576, 580
(2009). This restriction is implemented in the principles
of justiciability, including standing. Flast v. Cohen, 392
U.S. 83, 95 (1968). Some components of standing derive
directly from Article III and are thus mandatory, whereas
other components are prudential and discretionary.
Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11-12
(2004). The requirements imposed by the Constitution
are three-fold: a litigant must show (1) that she has
“suffered a concrete and particularized injury that is
either actual or imminent”; (2) “that the injury is fairly
traceable to the defendant”; and (3) “that it is likely that
a favorable decision will redress that injury.” Massa-
chusetts v. EPA, 549 U.S. 497, 517 (2007) (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). When an
organization seeks to assert standing, it can do so either
No. 11-2314 9
on behalf of itself or on behalf its members. The latter is
called associational standing. Here, the MPA claims it
has standing under both approaches.
1. Standing on Behalf of the MPA Itself
To bring suit in its own right, an organization must
itself satisfy the requirements of standing. See Havens
Realty Corp. v. Coleman, 455 U.S. 363, 378-79 (1982); see
also Disability Rights Wis., Inc. v. Walworth Cnty. Bd. of
Supervisors, 522 F.3d 796, 800 (7th Cir. 2008). Here, the
MPA fails to do so. It does not assert any injury to itself
as an entity. Rather, the MPA only alleges injuries to its
members, and such injuries are insufficient to establish
standing on an organization’s own behalf. Illustrating
this distinction well, Crawford v. Marion County Election
Board warrants consideration. 472 F.3d 949 (7th Cir. 2007)
(Crawford I), aff’d, 553 U.S. 181 (2008) (Crawford II). In
Crawford I, this court found that the Democratic Party
had standing in its own right to challenge the constitu-
tionality of a new Indiana law requiring voters to
present a photo ID. 472 F.3d at 951. Specifically, because
the Party alleged that it would be forced “to devote
resources to getting to the polls those of its supporters
who would otherwise be discouraged by the new law
from bothering to vote,” the organization itself had the
requisite injury-in-fact. Id.3
3
Although the Supreme Court agreed on little else when
reviewing this court’s opinion, a majority of the Justices ex-
(continued...)
10 No. 11-2314
Here, in contrast, the MPA has not pled any injury to
itself. In the Amended Complaint, the entire discussion
of the MPA’s interest was to claim that, “as a result of
having a duty to represent and advise its members on
matters related to [this litigation], the MPA possesses a
tangible interest in knowing the law as it may impact
its members, as well as ensuring that its members are
afforded due process.” (Am. Compl. at ¶ 3.) This
pleading leaves little doubt that the MPA’s claim to
standing derives entirely from its members. There is no
mention of any injury to the MPA as an organization,
such as having to expend greater resources to defend
members who were wrongfully terminated. Such failure
to allege injury in a complaint is fatal to standing, not-
withstanding new arguments made on appeal. See Disa-
bility Rights Wis., 522 F.3d at 801.
Yet, relying on North Shore Gas Co. v. EPA, the MPA
argues that the “probabilistic benefit” described in its
Amended Complaint is sufficient to confer standing.
930 F.2d 1239, 1242 (7th Cir. 1991). That theory miscon-
strues our precedent. In North Shore, the namesake com-
pany sought to enjoin construction of a boat slip that
would have made an environmental clean-up operation
more costly. Id. at 1241. Because the EPA had identified
North Shore as a party potentially responsible for pollu-
3
(...continued)
plicitly approved of how we handled the standing issue.
Crawford II, 553 U.S. at 189 n.7 (Stevens, J., lead opinion); id.at 209 n.2 (Souter, J., dissenting).
No. 11-2314 11
tion to the site in question (and thus responsible for
the clean-up), North Shore could have been saddled
with that additional expense. Id. Ironically, the EPA was
compelling another company to construct the boat slip
that would have made the clean-up more expensive. Id.In seeking an injunction, North Shore claimed that the
EPA failed to file the requisite environmental impact
statement and to obtain the necessary permit. Id. at 1241-
42. The EPA responded by challenging North Shore’s
standing. Id. at 1242. We held that “North Shore has
standing in the Article III sense—it would derive a
benefit if it won the suit, mainly because the construc-
tion of the new slip may increase the cost of cleaning
up the . . . site and North Shore may be socked with
that cost.” Id.
The result in North Shore is distinguishable from this
case. North Shore had standing not simply because it
stood to benefit from the outcome of the case but
because it also stood to lose money if the slip was con-
structed. Such economic harm is the prototypical injury-
in-fact. In other words, North Shore does not abrogate
the injury-in-fact requirement; it merely restates it. In
light of the above, the MPA has not presented this court
with a cognizable injury to itself. The MPA pled only
that it stood to benefit from knowing how the law limits
the Board’s powers. This mere desire for information
is not cognizable without a corresponding injury-in-fact,
which the MPA has not pled. Therefore, the organization
does not satisfy the first requirement for standing and
cannot bring suit on its own behalf. Addressing the
12 No. 11-2314
MPA’s own claims would produce an advisory opinion—
a task we cannot undertake.
In so holding, we do not imply that federal courts can
never hear cases regarding prospective injuries. To the
contrary, prospective injury, such as the threat of enforce-
ment, can indeed present a cognizable injury-in-fact.
See, e.g., Ctr. for Individual Freedom v. Madigan, 697 F.3d
464, 473-74 (7th Cir. 2012). We need not discuss such
principles here, however, since the MPA has pled no
injury at all, no less a prospective one.
2. Associational Standing
The MPA’s chances do not end there. Organizations
can also bring suit through associational standing—that is,
standing on behalf of their members. United Food &
Commer. Workers Union, Local 571 v. Brown Grp., Inc., 517
U.S. 544, 552 (1996). An organization has associational
standing if “ ‘([1]) its members would otherwise have
standing to sue in their own right; ([2]) the interests it
seeks to protect are germane to the organization’s
purpose; and ([3]) neither the claim asserted nor the
relief requested requires the participation of individual
members in the lawsuit.’ ” Id. at 553 (quoting Hunt v. Wash.
State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977)). The
first two of these requirements derive from Article III,
while the third is prudential. See id. at 555-57.
At this point, it is critical to distinguish between
mootness and standing. Standing is evaluated at the time
suit is filed. See, e.g., Friends of the Earth, Inc. v. Laidlaw
No. 11-2314 13
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000) (“we
have an obligation to assure ourselves that [Friends of the
Earth] had Article III standing at the outset of the litiga-
tion”); Pollack v. U.S. Dep’t of Justice, 577 F.3d 736, 743 n.2
(7th Cir. 2009) (“a plaintiff must establish standing at
the time suit is filed and cannot manufacture standing
afterwards”); Perry v. Vill. of Arlington Heights, 186 F.3d
826, 830 (7th Cir. 1999) (“[t]he requirements of standing
must be satisfied from the outset”). In contrast, “[w]hen
a party with standing at the inception of the litigation
loses it due to intervening events, the inquiry is really
one of mootness.” Parvati Corp. v. City of Oak Forest,
630 F.3d 512, 516 (7th Cir. 2010).
The latter is the case here. Assuming the MPA had
standing when litigation began, its standing must have
derived from a member, because (as we have already
held) the MPA could not have brought suit on its own
behalf. Furthermore, only Ramskugler can continue
to serve as the member satisfying the first requirement
of associational standing. Two officers (including
Ramskugler) were listed in the Amended Complaint,
but the other stopped participating in the suit midway
through litigation and no longer has an active claim.
In addition, the MPA’s counsel said at oral argument
that the union has no other member in Ramskugler’s
position. Thus, with only Ramskugler left, whether this
appeal can proceed depends upon whether her Settle-
ment Agreement shattered the MPA’s standing. Because
Ramskugler signed that Agreement over a month after
filing this appeal, the question is one of mootness, not
standing.
14 No. 11-2314
This distinction highlights the difference between the
two ways in which the MPA sought to sue. The claims
allegedly brought on the MPA’s own behalf are appropri-
ately settled under the doctrine of standing. The MPA
could not have filed those claims in the first instance,
regardless of Ramskugler’s settlement, because the
MPA never pled any injury-in-fact to itself. In contrast,
the claims brought on behalf of members are more ap-
propriately decided as a question of mootness because
the MPA likely had associational standing at the time
the complaint was filed. We addressed the requirements
of associational standing here, however, because they
bear heavily on the mootness analysis that follows.
B. Mootness
When considering the mootness of this case, we must
address two separate inquiries. First, we consider gen-
eral mootness doctrine. Then, we address the exception
for parties who continue to seek declaratory relief
from an ongoing policy, even after the specific event
precipitating the challenge has become moot. The
MPA’s case presents that situation. We established
earlier that we can no longer grant relief to Ramskugler.
But, according to the MPA, there is an ongoing policy
at issue: the Board’s claimed authority to terminate
an LESB-certified officer without providing statutory
process, so long as the officer is still in the city’s extended
probationary period. See Board Rule XI, Section 7(a). As
we will discuss later, there is some tension between
applying general mootness doctrine and allowing policy
No. 11-2314 15
challenges to proceed. Yet, we need not resolve any
potential discrepancy today. Here, both approaches lead
to the same result: the MPA’s claims brought on behalf
of its members are now moot.
1. General Mootness Doctrine
As alluded to earlier, mootness is “the doctrine of
standing set in a time frame”; that is, “[t]he requisite
personal interest that must exist at the commencement of
the litigation (standing) must continue throughout its
existence (mootness).” Friends of the Earth, 528 U.S. at
189; Arizonans for Official English, 520 U.S. at 68 n.22;
Parvati Corp., 630 F.3d at 516. Thus, mootness doc-
trine requires re-evaluating the standing requirements
throughout litigation. If at any point the plaintiff would
not have standing to bring suit at that time, the case
has become moot.
Yet, after using this “time frame” notion to describe
mootness for decades, the Supreme Court has recently
recognized that the approach is “not comprehensive.”
Friends of the Earth, 528 U.S. at 190. Specifically, the
Court said that the “time frame” conception does not
account for some well-established exceptions to
mootness—a defendant’s voluntary cessation of conduct
and situations “capable of repetition, yet evading re-
view.” Id. If the mootness inquiry ended at re-evaluating
standing, then cases falling within these exceptions
would fail, even though settled mootness doctrine
allows them to proceed. Notwithstanding these atypical
cases, we have continued to use the “time frame” con-
16 No. 11-2314
ception as a generally accurate description of the rela-
tionship between standing and mootness. See, e.g.,
Parvati Corp., 630 F.3d at 516; Laskowski v. Spellings, 546
F.3d 822, 824 (7th Cir. 2008). Our sister circuits have
done the same. See, e.g., La. Envtl. Action Network v. City
of Baton Rouge, 677 F.3d 737, 744 (5th Cir. 2012); Lebron
v. Rumsfeld, 670 F.3d 540, 561-62 (4th Cir. 2012); Diop v.
ICE/Homeland Sec., 656 F.3d 221, 226 (3d Cir. 2011); Sanford
v. MemberWorks, Inc., 625 F.3d 550, 556 (9th Cir. 2010);
Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1189
n.16 (11th Cir. 2007); Ramirez v. Sanchez Ramos, 438 F.3d
92, 97 (1st Cir. 2006).
Applying the “time frame” approach to this case, we
find that any claims the MPA may have originally had
on behalf of its members are now moot. Because the
inquiry centers on whether the requirements for
standing “continue throughout [the] existence” of the
litigation, Friends of the Earth, 528 U.S. at 189, we return to
the prerequisites of associational standing. Here, the
controversy surrounds the first requirement: whether
any “members would otherwise have standing to sue
in their own right.” United Food & Commer. Workers
Union, 517 U.S. at 553. Ramskugler no longer fulfills
that role for the MPA. If she were to file suit today, she
would lack standing because she does not have a
redressable claim—her Settlement Agreement waived
any sort of relief this court could grant her. Without
establishing standing in her own right, Ramskugler
cannot be used by the MPA to satisfy the first require-
ment of associational standing.
No. 11-2314 17
Furthermore, the MPA does not have any other
members who could fulfill that requirement. Neither in
its briefs, nor at oral argument, did the MPA reference
any other person in Ramskugler’s very specific liminal
state: an individual, who was certified by the LESB, but
not yet through the Board’s extended probationary
period, and was thus terminated without the protec-
tions accorded by Wisconsin statute. Without another
member in that particularized position, the MPA cannot
assert associational standing. Therefore, if mootness
were merely a question of standing in a time frame, then
the MPA’s claims would be unquestionably moot.
2. Mootness in Challenges to Ongoing Policies
Our mootness inquiry, however, is not complete. Some
cases hold that disputes over an ongoing policy may
continue, even after the specific offense precipitating the
suit has become moot. See, e.g., Super Tire Eng’g Co. v.
McCorkle, 416 U.S. 115, 121-24 (1974); Del Monte Fresh
Produce Co. v. United States, 570 F.3d 316, 321 (D.C. Cir.
2009); Or. Advocacy Ctr. v. Mink, 322 F.3d 1101, 1118 (9th
Cir. 2003). In those cases, if a litigant challenges the
policy through a declaratory judgment, then the case
should proceed when “ ‘the facts alleged, under all the
circumstances, show that there is a substantial con-
troversy, between parties having adverse legal interests,
of sufficient immediacy and reality to warrant the
issuance of a declaratory judgment.’ ” Super Tire Eng’g
Co., 416 U.S. at 122 (quoting Md. Cas. Co. v. Pac. Coal & Oil
Co., 312 U.S. 270, 273 (1941)). In addition, the ongoing
18 No. 11-2314
policy must be a “continuing and brooding presence”
that “casts . . . a substantial adverse effect on the in-
terests of the petitioning parties.” Id.The foundational Supreme Court case establishing
this mootness exception is Super Tire Engineering Co. v.
McCorkle, 416 U.S. 115. In that case, New Jersey state
regulations provided welfare benefits to striking work-
ers. Id. at 116. A company sought two forms of relief: an
injunction to prevent the State from using funds for
those benefits and a declaratory judgment to find that
several federal laws preempted the state regulations. Id.
at 118-19. Before the district court could rule, the strike
at issue ended. Id. at 120. Although the district court
still reached the merits, the Third Circuit remanded
with instructions to dismiss the case as moot. Id. at 120-
21. The Supreme Court, however, found that the claim
for declaratory relief still presented a live controversy.
Id. at 122. Even though intervening events had settled
the act precipitating the suit, the case was not moot
because “the challenged governmental activity . . . has not
evaporated or disappeared, and, by its continuing and
brooding presence, casts . . . a substantial adverse effect
on the interests of the petitioning parties.” Id. The
Court also found that the case fit within the “capable of
repetition, yet evading review” exception, but that was
merely an alternative holding. Id. at 125-26.
Subsequent cases support finding a separate excep-
tion for mootness when a suit challenges a policy
with the kind of lasting effects discussed in Super Tire
Engineering Co. See, e.g., Reno v. Bossier Parish Sch. Bd., 528
No. 11-2314 19
U.S. 320, 327-28 (2000) (declaratory judgment on the
propriety of electoral redistricting is not moot, even
when the next election will not occur until after data
from the next census becomes available, because the
previous redistricting, if valid, will form the baseline
upon which to judge future redistricting), superseded on
other grounds by statute, 42 U.S.C. § 1973c(c); Del Monte
Fresh Produce Co., 570 F.3d at 321 (“a plaintiff’s challenge
will not be moot where it seeks declaratory relief as to
an ongoing policy”); N.Y. Civil Liberties Union v. Grandeau,
528 F.3d 122, 129-30 (2d Cir. 2008) (Sotomayor, J.) (chal-
lenge to an order to report certain billboard expenses
as lobbying activity is not moot, even when the dispute
about the particular billboard has ended, because there
was a challenge to an alleged ongoing policy); Borden v.
Sch. Dist. of Twp. of E. Brunswick, 523 F.3d 153, 165 n.6
(3d Cir. 2008) (challenge by school board to the district
court’s finding that a regulation was facially unconstitu-
tional is not moot, even when the contract of the faculty
member challenging the regulation expired, because the
school board cannot enforce the regulation as to any
other faculty members); Harris v. City of Houston, 151 F.3d
186, 191 n.5 (5th Cir. 1998) (“[r]equests for declaratory
relief may sustain a suit only when the claims challenge
some ongoing underlying policy rather than merely
attacking an isolated action”) (internal quotation marks,
brackets, and ellipses omitted); City of Houston v. Dep’t of
Hous. & Urb. Dev., 24 F.3d 1421, 1428 (D.C. Cir. 1994) (“[i]t
is well-established that if a plaintiff challenges both a
specific agency action and the policy that underlies that
action, the challenge to the policy is not necessarily
20 No. 11-2314
mooted merely because the challenge to the particular
agency action is moot”).
There is tension, however, between applying the
“time frame” approach to mootness and preserving
challenges to ongoing policies. Typically, when a
concrete dispute ends, the individual involved would
no longer have the ability to bring suit (and would thus
lack “standing in a time frame”). Yet, cases like those
discussed above have proceeded, and the Supreme
Court did not explicitly mention this exception as one
overlooked by the time frame conception. Friends of the
Earth, 528 U.S. at 190-91. For that reason, it is tempting
to lump these cases into the “capable of repetition, yet
evading review” exception. Doing so would smooth out
any incongruity, as the Supreme Court did acknowl-
edge the incompleteness of the “time frame” approach
when that exception applies. Id. at 190. In fact, the
“capable of repetition, yet evading review” exception
could be an alternative holding for some cases in which
challenges to ongoing policies are not moot. See Super
Tire Eng’g Co., 416 U.S. at 125-26.
In other situations, however, using the “capable of
repetition, yet evading review” exception is more like
fitting a stepsister’s oversized foot into Cinderella’s
dainty glass slipper. This narrow exception “applies
only where (1) the challenged action is in its duration
too short to be fully litigated prior to cessation or ex-
piration, and (2) there is a reasonable expectation that
the same complaining party will be subject to the
same action again.” United States v. Juvenile Male, 131 S. Ct.
No. 11-2314 21
2860, 2865 (2011) (per curiam) (internal quotation marks
and brackets omitted). The Ninth Circuit, in particular,
has shoehorned ongoing policy challenges into that
exception. Its case law creates a new variant of the “cap-
able of repetition, yet evading review” exception for
such disputes, even when the parties would not other-
wise qualify for the exception as articulated doctrinally.
See L.A. Unified Sch. Dist. v. Garcia, 669 F.3d 956, 958
n.1 (9th Cir. 2012). Still, the Ninth Circuit has only
applied this expanded exception when a civil class
action would be inappropriate—namely, cases involving
treatment of criminal defendants or prisoners. See Alvarez
v. Hill, 667 F.3d 1061, 1065 (9th Cir. 2012); see also L.A.
Unified Sch. Dist., 669 F.3d at 958 n.1; United States v.
Brandau, 578 F.3d 1064, 1067-68 (9th Cir. 2009); United States
v. Howard, 480 F.3d 1005, 1010-11 (9th Cir. 2007); Or.
Advocacy Ctr., 322 F.3d at 1117-18. Considering that the
parties here have neither asked us to adopt nor to broaden
the Ninth Circuit’s already expanded approach (both of
which would be required to apply it to this case), we
need not address that question. Furthermore, without
adopting the Ninth Circuit’s reading of the exception,
this case plainly does not fall within the standard
“capable of repetition, yet evading review” doctrine.
There is no indication that the due process challenge of
a probationary officer is too ephemeral to be sustained
over the course of litigation. Rather, this concrete
dispute ended only because Ramskugler voluntarily
settled with the Board.
Without the escape hatch of the “capable of repetition,
yet evading review” exception, we return to the tension
22 No. 11-2314
between the “time frame” approach and the exception
for challenges to policies with a “continuing and
brooding presence,” Super Tire Engineering Co., 416 U.S.
at 122. It seems likely, given that the Supreme Court
has already acknowledged the incompleteness of the
“time frame” approach, that these ongoing policy cases
simply represent another way in which the approach
does not account for an exception to mootness doctrine.
Alternatively, one could view the “brooding presence”
of a policy as an ongoing injury within the “time frame”
of litigation. Only a few cases, however, clearly adopt
that analysis, and, given the difficulty of cabining such
a concept, we are reluctant to resolve the matter in
that way without explicit briefing on the issue. A still
third interpretation: perhaps federal courts are only
prohibited from deciding cases when the issue is moot
but have prudential discretion when merely the
personal stake is moot. See Matthew I. Hall, The Partially
Prudential Doctrine of Mootness, 77 Geo. Wash. L. Rev.
562, 599 (2009).
Regardless, we do not need to answer definitively
how the Super Tire Engineering Co. exception fits into the
broader scheme of mootness doctrine. That question is
for another day. Rather, applying the explicit language
of Super Tire Engineering Co. resolves the issue here. To
qualify for that mootness exception, the ongoing policy
must “by its continuing and brooding presence, cast[ ] . . .
a substantial adverse effect on the interests of the peti-
tioning parties.” Super Tire Engineering Co., 416 U.S. at
122. Nothing of that sort exists here. As discussed, the
MPA has not proffered any other member who is faced
No. 11-2314 23
with Ramskugler’s predicament. Further still, the MPA
has not referenced someone who was in that position
previously, which implies that Ramskugler was merely
trapped in a sparsely populated limbo. The MPA has
not even pled a single injury-in-fact. As such, the MPA
has given us no reason to find the continuing policy
a “brooding presence” over it, much less one with a
“substantial adverse effect.” Id. This case is now “an
abstract dispute about the law” not linked to the rights
of a particular plaintiff. Alvarez v. Smith, supra, 130 S. Ct.
at 580. Federal courts cannot produce advisory opinions
on such issues. It does not matter that the parties
agreed to allow this suit to proceed as a declaratory
judgment. They do not get to make that decision. Parties
cannot contract around the limitations of federal court
jurisdiction. Commodity Futures Trading Comm’n v. Schor,
478 U.S. 833, 850-51 (1986).
3. The Relationship Between Ripeness and Mootness
Before concluding, a note on ripeness is warranted.
When some of our sister circuits have considered chal-
lenges to policies that raise mootness concerns, they
have addressed the cases under the doctrine of ripeness.
See, e.g., Grandeau, 528 F.3d at 130-34 (analyzing a chal-
lenge to an alleged policy using ripeness doctrine
because it was unclear to what extent the policy was
officially adopted and to what extent the policy would
be enforced in the future); Reg’l Mgmt. Corp. v. Legal
Servs. Corp., 186 F.3d 457, 465-66 (4th Cir. 1999) (analyzing
24 No. 11-2314
a challenge to an ongoing policy against disclosing
certain documents under FOIA using ripeness doctrine,
when eventual receipt of the documents made the
initial offense precipitating the challenge moot). Because
this case was framed on appeal as a question of
mootness, and that question was outcome determina-
tive, we thought it the appropriate ground on which to
rule. That said, we acknowledge that ripeness would
have been a cleaner means by which to reach the
same outcome.
Like mootness, but unlike standing, ripeness is re-
evaluated throughout the course of litigation. See
Anderson v. Green, 513 U.S. 557, 559 (1995) (per curiam)
(when evaluating ripeness, “ ‘it is the situation now
rather than the situation at the time of the decision
under review that must govern’ ”) (internal brackets
omitted) (quoting Reg’l Rail Reorg. Act Cases, 419 U.S. 102,
140 (1974)). An inquiry into ripeness involves con-
sidering “ ‘the fitness of the issues for judicial decision’
and ‘the hardship to the parties of withholding court
consideration.’ ” Wis. Right to Life State PAC v. Barland,
664 F.3d 139, 148 (7th Cir. 2011) (quoting Pac. Gas & Elec.
Co. v. State Energy Res. Conservation & Dev. Comm’n, 461
U.S. 190, 201 (1983)). Here, the second factor is disposi-
tive. As discussed earlier, the lack of injury pled by
the MPA shows that it will face no hardship by with-
holding consideration. In fact, at oral argument, the
MPA admitted that it saw no obstacle to waiting until
the situation happens again to bring suit. We think that
is the correct thing to do.
No. 11-2314 25
III. C ONCLUSION
For the foregoing reasons, we D ISMISS this appeal.
2-26-13