Bankwest, Inc. v. Thurbert E. Baker ( 2006 )


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  •                                                                     [PUBLISH]
    
                  IN THE UNITED STATES COURT OF APPEALS
    
                          FOR THE ELEVENTH CIRCUIT            FILED
                            ________________________ U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                                  No. 04-12420                    APR 28, 2006
                            ________________________            THOMAS K. KAHN
                                                                    CLERK
                       D. C. Docket No. 04-00988-CV-1-MHS
    
    BANKWEST, INC.,
    ADVANCE AMERICA, CASH ADVANCE CENTERS OF GEORGIA, INC.,
    COMMUNITY STATE BANK,
    FIRST AMERICAN CASH ADVANCE OF GEORGIA, LLC,
    CASH AMERICA FINANCIAL SERVICES, INC.,
    GEORGIA CASH AMERICA, INC.,
    FIRST BANK OF DELAWARE,
    CREDITCORP OF GEORGIA, LLC,
    COUNTY BANK OF REHOBOTH BEACH, DELAWARE,
    EXPRESS CHECK ADVANCE OF GEORGIA, LLC,
    
                                                               Plaintiffs-Appellants,
    
                                        versus
    
    THURBERT E. BAKER, Attorney General of the State of Georgia,
    CATHY COX, Secretary of State, for the State of Georgia,
    in their official capacities,
    
                                                             Defendants-Appellees.
    
                            ________________________
    
                     Appeals from the United States District Court
                         for the Northern District of Georgia
                           _________________________
    
                                   (April 28, 2006)
    Before CARNES, HULL and HILL, Circuit Judges.
    
    PER CURIAM:
    
          This appeal having been remanded by the en banc court to this panel,
    
    BankWest, Inc. v. Baker, __ F.3d __ (11th Cir. Apr. 27, 2006) (en banc), we have
    
    before us the issue of whether Appellants’ appeal from the district court’s May 13,
    
    2004 order denying their motions for a preliminary injunction is now moot. After
    
    review, we conclude that it is. Accordingly, we vacate our own prior decision in
    
    this case, BankWest, Inc. v. Baker, 
    411 F.3d 1289
     (11th Cir.), reh’g granted, 
    433 F.3d 1344
     (11th Cir. 2005) (en banc), vacated __ F.3d __ (11th Cir. Apr. 27, 2006)
    
    (en banc), vacate the district court’s May 13, 2004 order, BankWest, Inc. v. Baker,
    
    
    324 F. Supp. 2d 1333
     (N.D. Ga. 2004) (denying preliminary injunction), and
    
    dismiss this appeal as moot.
    
    I.    Factual Background
    
          A.     The Parties’ Loan Programs
    
          The four Appellant banks are BankWest, Inc. (“BankWest”), County Bank
    
    of Rehoboth Beach, Delaware (“County Bank”), Community State Bank (“CSB”),
    
    and First Bank of Delaware (“FBD”). The Appellant banks are state-chartered
    
    institutions located in South Dakota and Delaware. Each bank entered into a
    
    servicing agreement with one or more of the Appellant non-bank parties, who are
    
    
    
                                              2
    Advance America, Cash Advance Centers of Georgia, Inc. (“Advance America”),
    
    First American Cash Advance of Georgia, LLC (“First American”), Cash America
    
    Financial Services, Inc. (“Cash America”), Georgia Cash America, Inc. (“Georgia
    
    Cash America”), Creditcorp of Georgia, LLC (“Creditcorp”), and Express Check
    
    Advance of Georgia, LLC (“Express Check”). The four Appellant banks are
    
    paired with their in-state agents as follows:
    
                 •      BankWest and Advance America
    
                 •      CSB and First American, Cash America, and Georgia Cash
                        America
    
                 •      County Bank and Express Check
    
                 •      FBD and Creditcorp
    
          Appellants, banks and agents, contended that the banks were making loans
    
    to Georgians using the non-bank agents in Georgia. The type of loans at issue in
    
    this case are short-term loans that are single-advance, single-payment loans, in
    
    amounts up to $500 for terms of four to forty-five days, with maturity dates
    
    generally coinciding with the borrower’s next payday, so that the loans are termed
    
    “payday loans.” At maturity, the borrower is required to repay the principal plus a
    
    finance charge of anywhere from 17% to 27% of the amount advanced, depending
    
    on the term of the loan. For a two-week loan, these finance charges are equivalent
    
    to an annual percentage rate of interest between 443% and 520%.
    
                                               3
          The particular payday loan programs at issue in this appeal are evidenced by
    
    the consumer loan agreement and the separate servicing agreement provided by
    
    BankWest, which we have been led by the parties to believe are typical of those
    
    used by all four banks and their in-state agents. Prior to the enactment of the
    
    Georgia Act at issue, Appellants were making and administering the type of
    
    payday loan program reflected in the loan and servicing agreements in the record.
    
          B.     Procedural History
    
          In April 2004, the Georgia legislature enacted Senate Bill 157, 2004 Ga.
    
    Laws 440, now codified at Ga. Code Ann. §§ 16-17-1 to 16-17-10 (the “Act”).
    
    The Act provides that its effective date is May 1, 2004.
    
          Shortly after the Act was passed, each of the four Appellant banks, joined by
    
    its Georgia agent or agents, filed a complaint (the “complaints”) against the
    
    Appellees, the Georgia Attorney General and the Georgia Secretary of State (the
    
    “State”). Each complaint sought a temporary restraining order and preliminary and
    
    permanent injunctive relief against enforcement of the Act, as well as a declaratory
    
    judgment that the provisions of the Act that apply to their payday loan programs
    
    and servicing agreements, which predated the Act, were preempted by federal law
    
    and were unconstitutional. The district court consolidated the four cases and heard
    
    argument on the motions for a preliminary injunction.
    
    
    
                                              4
          Because the Act was scheduled to go into effect on May 1, 2004, the district
    
    court entered a temporary restraining order prohibiting enforcement of the Act
    
    against Appellants in their respective conduct of their payday loan businesses at
    
    issue in the case.
    
          Two days before the temporary restraining order was set to expire, the
    
    district court denied Appellants’ motions for a preliminary injunction and refused
    
    to enter an injunction pending appeal. The district court found that Appellants had
    
    failed to demonstrate a likelihood of success on the merits as to any of their claims.
    
    The court also concluded that the balance of harms favored the State and weighed
    
    against issuing an injunction and that enjoining enforcement of the Act would
    
    harm the public interest.
    
          Appellants then filed notices of appeal as well as motions asking this Court
    
    to issue an injunction pending appeal. We denied the motions for an injunction
    
    pending appeal.
    
          On June 10, 2005, a panel of this Court affirmed the district court’s
    
    preliminary injunction ruling in a 2-1 decision. See BankWest, 
    411 F.3d 1289
    . On
    
    December 28, 2005, this Court en banc granted Appellants’ petition for rehearing
    
    en banc and vacated the panel decision. See BankWest, Inc. v. Baker, 
    433 F.3d 1344
     (11th Cir. 2005).
    
    
    
                                               5
          On March 15, 2006, while the case was being briefed at the en banc stage,
    
    the State filed a suggestion of mootness. The State contends that this appeal is now
    
    moot as a result of regulatory actions or activities of the Federal Deposit Insurance
    
    Corporation (“FDIC”) that, as a practical matter, have caused the Appellant banks
    
    not only to cease making the type of short-term loans at issue but also to withdraw
    
    from the servicing agreements that were the subject of the preliminary injunction
    
    ruling. In short, the State argues that Appellants are no longer pursuing or even
    
    poised to pursue or resume the particularized short-term loan program and
    
    servicing agreements that were the subject of the preliminary injunction motions
    
    and this appeal. Appellants filed responses to the suggestion of mootness, which
    
    we detail later, most of which contend that the appeal is not moot.
    
          On April 27, 2006, the en banc Court vacated its order granting rehearing en
    
    banc and remanded the appeal to the panel to address the mootness issue,
    
    BankWest, __ F.3d __ (11th Cir. Apr. 27, 2006), which we now do.
    
    II.   Discussion
    
          A.     Cessation of Payday Loans and Servicing Agreements
    
          The State’s suggestion of mootness represents that as a result of the
    
    regulatory actions or activities of the FDIC, the Appellant banks have ceased
    
    making the type of payday loans at issue in this appeal and have withdrawn from
    
    
    
                                              6
    the servicing agreements or agency relationships with the Appellant non-bank
    
    parties also at issue here.
    
           Appellants do not contest the State’s factual representations, and indeed,
    
    their written responses appear to concede them. For example, BankWest’s
    
    response to the suggestion of mootness acknowledges that
    
           the FDIC . . . advised BankWest that it should exit the payday lending
           business unless it could immediately present to the FDIC a plan as to
           how it intended to satisfy the FDIC’s stated concerns . . . . At this
           time, BankWest has elected not to pursue such a plan with the FDIC,
           and is effectively out of the classic payday lending business in
           Georgia . . . .
    
    BankWest Response to Suggestion of Mootness at 7. Similarly, CSB’s response
    
    states that “[b]ecause of regulatory pressure from the FDIC unrelated to the merits
    
    of this case, the Bank is in the process of discontinuing its Payday Loan program . .
    
    . .” CSB Response to Suggestion of Mootness at 2.
    
           Likewise, County Bank’s response states that
    
           [i]n 2005, the FDIC issued its Guidelines on Payday Lending which
           became effective in July, 2005. As a result of these new federal rules
           that limited the number and duration of payday loans, County Bank
           made a determination that it was no longer profitable for County Bank
           to be involved with this type of lending. As of December 14, 2005,
           County Bank ceased offering “payday” loans and, as of December 31,
           2005, County Bank ended its relationships with all of its loan
           servicers.
    
    County Bank and Express Check Response to Suggestion of Mootness at 3-4. In
    
    
    
                                              7
    the same vein, FBD’s response states that “[t]he State’s suggestion of mootness
    
    with respect to . . . [FBD] . . . is based on a press release issued by FBD . . . to the
    
    effect that the Bank has been forced by the [FDIC] to discontinue making ‘payday
    
    loans.’” FBD Response to Suggestion of Mootness at 1. FBD does not contest
    
    that it issued the press release, which the State provided to this Court, or that it has
    
    stopped making the type of payday loans at issue here.
    
          As we have already noted, this appeal involves a specific type of short-term
    
    loan program in Georgia, termed payday lending, that was conducted through a
    
    particular set of loan and servicing agreements. The amounts, terms, duration, and
    
    conditions of the short-term loans at issue and the extensive provisions of the
    
    servicing agreements formed the factual foundation of the preliminary injunction
    
    ruling in the district court and framed the issues on appeal. See BankWest, 324 F.
    
    Supp. 2d at 1339-40; BankWest, 411 F.3d at 1292-96; BankWest, 411 F.3d at
    
    1312-14 (Carnes, J., dissenting).
    
          Given the recent developments and significant change in factual
    
    circumstances, including the complete collapse of the factual underpinning of the
    
    preliminary injunction ruling, we agree with the State that the present appeal from
    
    the preliminary injunction ruling no longer presents a justiciable controversy
    
    within the meaning of Article III of the Constitution. We now discuss the case-or-
    
    
    
                                                8
    controversy constraint on our jurisdiction and then explain why we must dismiss
    
    this appeal as moot.
    
          B.     Case-or-Controversy Principles
    
          “The rule that federal courts may not decide cases that have become moot
    
    derives from Article III’s case and controversy requirement.” Sierra Club v. EPA,
    
    
    315 F.3d 1295
    , 1299 (11th Cir. 2002); see also U.S. Const. art. III, § 2. “‘[A]n
    
    action that is moot cannot be characterized as an active case or controversy.’” Al
    
    Najjar v. Ashcroft, 
    273 F.3d 1330
    , 1335 (11th Cir. 2001) (citation omitted). The
    
    “case-or-controversy requirement subsists through all stages of federal judicial
    
    proceedings, trial and appellate.” Lewis v. Cont’l Bank Corp., 
    494 U.S. 472
    , 477,
    
    
    110 S. Ct. 1249
    , 1253 (1990); accord Horton v. City of St. Augustine, 
    272 F.3d 1318
    , 1326 (11th Cir. 2001).
    
          “Dismissal of a moot case is required because mootness is jurisdictional.”
    
    Sierra Club, 315 F.3d at 1299. “The ‘case or controversy’ constraint imposes a
    
    ‘dual limitation’ known as ‘justiciability’ on federal courts.” De La Teja v. United
    
    States, 
    321 F.3d 1357
    , 1361 (11th Cir. 2003) (citations omitted). “‘The doctrine of
    
    justiciability prevents courts from encroaching on the powers of the elected
    
    branches of government and guarantees that courts consider only matters presented
    
    in an actual adversarial context.’” Id. (citations omitted).
    
    
    
                                               9
           As the Supreme Court has defined the doctrine of mootness, “‘a case is moot
    
    when the issues presented are no longer ‘live’ or the parties lack a legally
    
    cognizable interest in the outcome.’” Id. at 1362 (citing Powell v. McCormack,
    
    
    395 U.S. 486
    , 496, 
    89 S. Ct. 1944
    , 1951 (1969)). A case can become moot either
    
    “due to a change in [factual] circumstances, or . . . [due to] a change in the law.”
    
    Coral Springs St. Sys., Inc. v. City of Sunrise, 
    371 F.3d 1320
    , 1328 (11th Cir.
    
    2004). “If a lawsuit is mooted by subsequent developments, any decision a federal
    
    court might render on the merits of [the] case would constitute an [impermissible]
    
    advisory opinion.” Nat’l Adver. Co. v. City of Miami, 
    402 F.3d 1329
    , 1332 (11th
    
    Cir. 2005), cert. denied, __ U.S. __, 
    126 S. Ct. 1318
     (2006); see also Coral Springs,
    
    371 F.3d at 1328. “An appellate court simply does not have jurisdiction under
    
    Article III ‘to decide questions which have become moot by reason of intervening
    
    events.’” Brooks v. Ga. State Bd. of Elections, 
    59 F.3d 1114
    , 1119 (11th Cir.
    
    1995) (citations omitted). “[T]he Article III ‘case or controversy’ requirement
    
    mandates that the case be viable at all stages of the litigation; ‘it is not sufficient
    
    that the controversy was live only at its inception.’” Id. (citation omitted). We
    
    determine on a case-by-case basis whether a case or controversy exists. GTE
    
    Directories Publ’g Corp. v. Trimen Am., Inc., 
    67 F.3d 1563
    , 1567 (11th Cir. 1995);
    
    Hendrix v. Poonai, 
    662 F.2d 719
    , 721-22 (11th Cir. 1981).
    
    
    
                                                10
          C.     Application of Case-or-Controversy Principles to This Appeal
    
          Application of these well-established case-or-controversy principles to this
    
    appeal is not difficult. The payday loan programs that formed the heart of, and
    
    gave rise to, the preliminary injunction ruling are no longer being used by any of
    
    the Appellants. More importantly, the FDIC has taken certain regulatory action
    
    and Appellants have now abandoned their servicing agreements and are no longer
    
    in a position to offer, or resume offering, the payday loans that were the subject of
    
    the preliminary injunction ruling. As a result, Appellants no longer have a legally
    
    cognizable interest in obtaining an injunction against enforcement of the Act as it
    
    might have applied to their making and administering these particular types of
    
    payday loans and servicing agreements. See De La Teja, 321 F.3d at 1362 (stating
    
    that a case is moot when the parties lack a legally cognizable interest in the
    
    outcome).
    
          Indeed, the motions for a preliminary injunction and the district court’s
    
    ruling on them were specific as to the particular loan program reflected in the loan
    
    and servicing agreements in the record. Stated another way, the appeal before us is
    
    about the validity of the Act as applied to a specific type of payday loan said to be
    
    between the Appellant banks and Georgia borrowers, and serviced and marketed
    
    through a specific type of servicing agreement between the banks and a specific
    
    
    
                                              11
    type of non-bank agent in Georgia. We recognize that the parties still dispute
    
    whether the Act is legally valid. However, Appellants have not just ceased but
    
    have exited the payday loan business reflected in the loan and servicing agreements
    
    in the record. For that reason, they no longer have a legally cognizable interest in
    
    the issue of whether the Act can be validly applied to those loans and servicing
    
    agreements. In short, there is no actual adversarial context for our ruling in this
    
    appeal. See id. at 1361 (noting that “‘courts consider only matters presented in an
    
    actual adversarial context’”) (citation omitted). Thus, this appeal of the district
    
    court’s denial of Appellants’ motions for a preliminary injunction no longer
    
    presents a live controversy.1
    
           Appellants, or at least some of them, raise two primary arguments as to why
    
    their appeal of the preliminary injunction ruling is not moot. We address each
    
    argument in turn.
    
           D.     Collection of Pre-Act Loans
    
           Three of the Appellants (BankWest, Express Check, and Creditcorp) argue
    
    that the appeal is not moot because they already own or may purchase loans that
    
    were made before the effective date of the Act, which they have not collected.
    
    
    
           1
            We have before us only the appeal from the denial of a preliminary injunction, and that
    is what we hold is moot. We do not have before us the issue of whether the complaints
    themselves are moot. That is an issue for the district court to decide.
    
                                                   12
    They say that they are afraid to collect those loans because of the threat that the
    
    Act’s sanctions will be applied to them. They contend that the Act cannot be
    
    validly applied to those loans, and therefore, the State should be enjoined from
    
    attempting to apply it to them.
    
           More specifically, BankWest states that it “had loans outstanding of over
    
    $8,100,000 representing funds advanced on Small Excess Rate Loans prior to the
    
    effective date of the Act” that it stopped collecting due to the “risk of violating” the
    
    Act. BankWest Response to Suggestion of Mootness at 3, 5. BankWest asserts
    
    that if the Act were deemed to be preempted, it “would evaluate whether to resume
    
    collection activities or sell its portfolio, taking into account the relevant costs and
    
    benefits.” Id. at 5.2
    
           One servicer, Express Check, asserts that in April 2004, it acquired all of
    
    County Bank’s uncollected pre-Act loans, worth approximately $385,232, and that
    
    it ceased collecting those loans as of the effective date of the Act. Additionally,
    
    Creditcorp, another servicer, states that it “intends to collect loans currently
    
    
    
           2
             Notably, in their June 4, 2004 panel brief, BankWest and Advance America advised the
    Court that “Advance America has been forced to cease all loan origination activity on behalf of
    [BankWest] and will only remain open to accept principal payments for [BankWest] on loans
    made by BankWest prior to May 1, 2004, and during the term of the TRO.” This indicates that
    two years ago, when initially appealing the district court’s order denying them preliminary
    injunctive relief, BankWest and Advance America apparently believed that they could collect on
    their pre-Act loans, a position that conflicts with their recent responses to the State’s suggestion
    of mootness.
    
                                                     13
    outstanding to [FBD] . . . if the Georgia law is preempted,” although Creditcorp
    
    concedes that it “has not purchased any of the loans made by FBD” and is only
    
    “informed” that “FBD would need Creditcorp to collect those loans in Georgia” if
    
    and when the Georgia law was overturned. Decl. of Creditcorp President Steve
    
    Scoggins at 2 (“Scoggins Decl.”).
    
          The insurmountable hurdle for Appellants is that these uncollected loans, by
    
    Appellants’ own admission, were made prior to the effective date of the Act, and in
    
    this case, the State has never suggested that the Act applies retroactively to loans
    
    made before the effective date of the Act. Indeed, the State conceded in the district
    
    court that the Act does not apply to pre-Act loans, the district court agreed,
    
    BankWest, 324 F. Supp. 2d at 1356, and no party has suggested in its appellate
    
    briefs that the Act does apply to pre-enactment loans.
    
          Therefore, although some Appellants own or may purchase uncollected pre-
    
    Act loans, there is no case or controversy as to those loans. See Graham v.
    
    Butterworth, 
    5 F.3d 496
    , 500 (11th Cir. 1993) (where Florida Attorney General
    
    and local state attorney had “repeatedly stated that the statute does not prohibit the
    
    appellants’ proposed conduct . . . [,] the appellees [could not] enforce [the] statute
    
    against the appellants,” and the case was “render[ed] . . . moot”); see also Christian
    
    Coal. of Ala. v. Cole, 
    355 F.3d 1288
    , 1293 (11th Cir. 2004) (case was moot where
    
    
    
                                               14
    the “supposed ‘enforcement policy’” of a regulatory body was evidenced only by a
    
    withdrawn advisory opinion and the plaintiffs could be “reasonably certain” that
    
    charges would never be filed under the enforcement policy). Indeed, Appellants
    
    make no allegation that the State or anyone else has threatened to prosecute them
    
    under the Act for their pre-Act loans.
    
          Furthermore, even without the Georgia Attorney General’s explicit
    
    concession, there would be no credible or objectively reasonable threat of future
    
    enforcement of the Act against these pre-Act loans. Cf. Doe v. Pryor, 
    344 F.3d 1282
    , 1287-88 (11th Cir. 2003) (plaintiffs lacked standing to challenge a statutory
    
    provision where there was no credible threat of their being prosecuted under it after
    
    the state attorney general had stated that it could not be constitutionally applied to
    
    them and where fear of prosecution was not “objectively reasonable”). Georgia
    
    law is clear that the Act does not apply to these pre-Act loans. The Georgia
    
    Supreme Court has held that a statute applies only prospectively unless the statute
    
    itself expressly states otherwise. See Polito v. Holland, 
    258 Ga. 54
    , 55, 
    365 S.E. 2d
     273, 273 (1988) (substantive statutes “prescribe for the future and that is the
    
    construction to be given unless there is a clear contrary intention shown”). The
    
    Act contains no statement that it applies retroactively, and thus, under Georgia law,
    
    it applies only prospectively. Furthermore, the Georgia Code itself provides that
    
    
    
                                               15
    “[l]aws prescribe only for the future; they cannot impair the obligation of contracts
    
    nor, ordinarily, have a retrospective operation.” Ga. Code Ann. § 1-3-5 (emphasis
    
    added). Thus, because prosecution under the Act as to pre-Act loans clearly would
    
    be contrary to Georgia law, as well as to the clear and unequivocal position of the
    
    Georgia Attorney General, this appeal is moot in spite of the existence of the pre-
    
    Act loans.
    
          There never was any controversy in this appeal about whether the Act can be
    
    applied to the uncollected loans that were made before the Act’s effective date.
    
    Although, as we will explain later, mootness requires that we vacate the district
    
    court’s order, the district court in this case concluded, as we do, that “[u]nder
    
    Georgia law, a statute is presumed to apply only prospectively unless it expressly
    
    states otherwise.” BankWest, 324 F. Supp. 2d at 1356. On that basis, the district
    
    court rejected the Appellants’ claims that the Georgia statute was “an
    
    unconstitutional ex post facto law insofar as the de facto lender provisions
    
    criminalize loans that were legally made before the effective date of the Act.” Id.
    
    That ruling—that the Act did not apply to loans made prior to the effective date of
    
    the Act—was not contested on appeal by any party. This is yet another indication
    
    that there is no credible or objectively reasonable threat of prosecution under the
    
    Act against Appellants with regard to their pre-Act loans.
    
    
    
                                               16
           Accordingly, we reject Appellants’ argument that this appeal is not moot due
    
    to uncollected, pre-Act loans.
    
           E.      New Loan Programs
    
           Three Appellants (CSB, FBD, and Creditcorp) argue that this appeal is not
    
    moot because they intend to develop, or are in the process of developing, a new
    
    consumer loan program, and the presence of the Act interferes with their ability to
    
    develop new loan products.3 For example, CSB’s response to the suggestion of
    
    mootness indicates that “at the same time as it is winding down its Payday Loan
    
    program, [it] is actively working on a different consumer lending program (the
    
    “New Program”) with Plaintiff Cash America Financial Services, Inc. . . .” CSB
    
    Response to Suggestion of Mootness at 2-3 (emphasis added). CSB argues that its
    
    new, but different, loan program might comply with the FDIC’s new rules but still
    
    violate the Act.
    
           Similarly, while FBD is discontinuing the particular payday loan program
    
    that is the subject of this appeal, FBD asserts that the Act “defines the term
    
    ‘payday loans’ much more broadly than does the FDIC” and more broadly than the
    
    type of payday loans that FBD is discontinuing. FBD Response to Suggestion of
    
    
    
           3
             To the extent that the other Appellants adopt these arguments as their own, or argue that
    if the case is not moot as to one party it is not moot as to all parties, we consider those arguments
    as well.
    
                                                     17
    Mootness at 1. From this statement, FBD also argues that it may develop a new
    
    loan program that may comply with the FDIC’s new rules but that may still violate
    
    the Act. Additionally, Creditcorp indicates that it “would consider marketing these
    
    bank products in Georgia” if the Act were declared invalid. Scoggins Decl. at 1.
    
          The fact that some Appellants may be retooling their business plans, may
    
    develop another type of short-term loan, and may enter into new servicing
    
    agreements with the non-bank parties in Georgia does not keep this appeal from
    
    being moot. The precise nature of the new but different loan programs and the
    
    manner in which they are to be administered in Georgia remain far too speculative
    
    and abstract at this juncture to create an actual case or controversy. See Church of
    
    Scientology of Cal. v. United States, 
    506 U.S. 9
    , 12, 
    113 S. Ct. 447
    , 449 (1992)
    
    (“It has long been settled that a federal court has no authority ‘to give opinions
    
    upon moot questions or abstract propositions . . . .’”) (citation omitted).
    
    Furthermore, there has been no showing that even if Appellants were to create new
    
    loan programs and enter into new servicing agreements, they would be able to
    
    satisfy the relevant regulatory authorities. The mere possibility of new loan
    
    programs is not sufficient to present a justiciable controversy. If we addressed
    
    issues that might arise, we would be rendering an advisory opinion on future
    
    conduct and events that may never occur, something which Article III does not
    
    
    
                                               18
    permit us to do.
    
          Based on a speculative, abstract set of factual circumstances that may or may
    
    not come to pass, Appellants are asking this Court to declare preempted and
    
    unconstitutional an Act of the Georgia legislature. It may or may not be that a
    
    future loan program, if one is developed by Appellants and if it does not run afoul
    
    of regulatory authorities, could justify a motion for leave to amend the complaint,
    
    or a new motion for a preliminary injunction, if the future turns out the way
    
    Appellants hope it does. But those “if’s,” that speculation, and those contingencies
    
    cannot keep the current appeal of the preliminary injunction ruling, tied as it is to
    
    the prior loan programs and servicing agreements, from being moot. See Ethredge
    
    v. Hail, 
    996 F.2d 1173
    , 1174-76 (11th Cir. 1993) (where plaintiff’s initial motion
    
    for a preliminary injunction was specific in seeking relief so that plaintiff could
    
    display stickers critical of former President Bush, who was no longer in office,
    
    appeal was moot because the administrative order at issue only forbade stickers
    
    critical of the “Commander in Chief”; plaintiff’s “propensity to criticize
    
    Presidential policies” and likelihood of criticizing future presidents did not present
    
    a live controversy as to the appeal of the district court’s preliminary injunction
    
    ruling); Wakefield v. Church of Scientology of Cal., 
    938 F.2d 1226
    , 1229 n.1 (11th
    
    Cir. 1991) (“This [C]ourt reviews the case tried in the district court; it does not try
    
    
    
                                               19
    ever-changing theories parties fashion during the appellate process.”).
    
           In sum, there is a justiciability gap in this case because Appellants have
    
    discontinued their old loan programs and servicing agreements and have not
    
    replaced them with any new ones presenting the same legal issues that were
    
    decided by the district court when it denied Appellants’ motions for preliminary
    
    injunction. If we were to rule on those legal issues, which are no longer presented,
    
    we would be “overstepping our judicial authority” by rendering an “impermissible
    
    advisory opinion about a non-existing” set of facts. Cole, 355 F.3d at 1293.
    
           Thus, we reject Appellants’ claims that their intent, aspirations, or ongoing
    
    efforts to develop a new loan program that they hope will dodge any FDIC
    
    objections but think may still violate the Act keeps this current appeal from
    
    becoming moot.
    
    III.   Conclusion
    
           For all of the foregoing reasons, we conclude that the district court’s denial
    
    of Appellants’ motions for a preliminary injunction—the only ruling at issue in this
    
    appeal—is moot. This conclusion compels us to dismiss this appeal and to vacate
    
    the district court’s order, because “when an issue in a case becomes moot on
    
    appeal, [we] not only must dismiss as to the mooted issue, but [we must] also
    
    vacate the portion of the district court’s order that addresses it.” De La Teja, 321
    
    
    
                                              20
    F.3d at 1364; see also Soliman v. United States, 
    296 F.3d 1237
    , 1243 (11th Cir.
    
    2002) (“Under our precedent, when a case becomes moot on appeal, [we] must not
    
    only dismiss the case, but also vacate the district court’s order.”).
    
          Our well-established practice of vacating the district court’s order when we
    
    dismiss a moot appeal “clears the path for future relitigation of the issues between
    
    the parties and eliminates a judgment, review of which was prevented through
    
    happenstance.” Soliman, 296 F.3d at 1243 (citations and quotation marks omitted).
    
    If Appellants do eventually create new loan programs and enter into new servicing
    
    agreements that are not blocked by the regulatory authorities but are prohibited by
    
    the Act, Appellants should not be “forced to acquiesce in [the district court’s]
    
    moot, adverse decision” without having had the benefit of full appellate review on
    
    the merits of that decision. Al Najjar, 273 F.3d at 1340; see also De La Teja, 321
    
    F.3d at 1364. Rather, if all these events and contingencies do occur, the parties
    
    may then elect to litigate the issues created by the new loan programs and new
    
    servicing agreements. Accordingly, we vacate our prior decision, BankWest, 
    411 F.3d 1289
    , we vacate the district court’s May 13, 2004 order denying the motions
    
    for preliminary injunctive relief, BankWest, 
    324 F. Supp. 2d 1333
    , and we dismiss
    
    this appeal as moot.
    
          PRIOR DECISION VACATED, DISTRICT COURT ORDER
          VACATED, AND APPEAL DISMISSED.
    
                                               21
    

Document Info

DocketNumber: 04-12420

Filed Date: 4/28/2006

Precedential Status: Precedential

Modified Date: 2/19/2016

Authorities (21)

Brooks v. GA State Bd. of Elections , 59 F.3d 1114 ( 1995 )

GTE Directories v. Trimen America , 67 F.3d 1563 ( 1995 )

Mazen Al Najjar v. John Ashcroft , 273 F.3d 1330 ( 2001 )

Larry Horton v. City of St. Augustine , 272 F.3d 1318 ( 2001 )

Doe v. Pryor , 344 F.3d 1282 ( 2003 )

Pittman v. Cole , 355 F.3d 1288 ( 2004 )

Coral Springs Street Systems v. City of Sunrise , 371 F.3d 1320 ( 2004 )

National Advertising Co. v. City of Miami , 402 F.3d 1329 ( 2005 )

Powell v. McCormack , 395 U.S. 486 ( 1969 )

Lewis v. Continental Bank Corp. , 494 U.S. 472 ( 1990 )

Church of Scientology of Cal. v. United States , 506 U.S. 9 ( 1992 )

Dr. Joseph Hendrix and Dr. John Wayne Hendrix v. Dr. P. v. ... , 662 F.2d 719 ( 1981 )

Margery Wakefield v. The Church of Scientology of ... , 938 F.2d 1226 ( 1991 )

jesse-ethredge-v-robert-hail-deputy-base-commander-of-robins-air-force , 996 F.2d 1173 ( 1993 )

Hon. Gary G. Graham and Christopher Litras v. Robert A. ... , 5 F.3d 496 ( 1993 )

Nabil Soliman v. United States of America, on Behalf of Ins , 296 F.3d 1237 ( 2002 )

sierra-club-southern-organizing-committee-for-economic-and-social-justice , 315 F.3d 1295 ( 2002 )

Carlos Gustavo De La Teja v. United States of America, John ... , 321 F.3d 1357 ( 2003 )

bankwest-inc-advance-america-cash-advance-centers-of-georgia-inc , 411 F.3d 1289 ( 2005 )

Polito v. Holland , 258 Ga. 54 ( 1988 )

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