Victor DiMaio v. Democratic National Committee , 555 F.3d 1343 ( 2009 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JAN 30, 2009
No. 08-13241
THOMAS K. KAHN
________________________
CLERK
D.C. Docket No. 08-00672-CV-T-26-EAJ
VICTOR DIMAIO,
Plaintiff–Appellant,
versus
DEMOCRATIC NATIONAL COMMITTEE,
Defendant–Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 30, 2009)
Before BIRCH and BARKETT, Circuit Judges, and KORMAN,* District Judge.
*
Honorable Edward R. Korman, United States District Judge for the Eastern District of
New York, sitting by designation.
PER CURIAM:
Victor DiMaio appeals from an adverse summary judgment in favor of the
Democratic National Committee (“DNC”) on DiMaio’s complaint alleging that the
DNC violated the Fourteenth Amendment of the Constitution by ruling, prior to
the 2008 presidential primaries, that all but four states were prohibited from
holding their primaries or caucuses before February 5, 2008 and that Florida’s
delegates would not be seated at its convention because it violated this rule. We
dismiss, finding this case moot.
Under Article III of the Constitution, federal courts may only hear “cases or
controversies.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 559–60 (1992). “A
case is moot when it no longer presents a live controversy with respect to which
the court can give meaningful relief.” Ethredge v. Hail, 996 F.2d 1173, 1175
(11th Cir. 1993). In this case, the Democratic National Convention has taken
place, and all of the delegates from Florida ultimately were seated with a full vote.
Thus, there is no live controversy remaining, and there is no meaningful relief that
the court can give with respect to this situation.
A case can still be heard, however, if we lack “assurance that there is no
reasonable expectation that the alleged violation will recur,” Dow Jones & Co. v.
Kaye, 256 F.3d 1251, 1254 (11th Cir. 2001) (quoting Reich v. Occupational
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Safety & Health Review Comm’n, 102 F.3d 1200, 1201 (11th Cir. 1997) (internal
quotations omitted)), or, as it is commonly stated, the situation is “capable of
repetition, yet evading review,” Sierra Club v. U.S.E.P.A., 315 F.3d 1295, 1302
n.11 (11th Cir. 2002). The DNC concedes that although it is more likely than not
that the alleged violation will not recur in 2012, it cannot offer absolute assurance
that it will not recur because the Florida law setting the primary date prior to the
earliest time allowed under DNC rules remains in effect, and the DNC’s timing
rule for the 2012 Democratic National Convention, still over three years away, has
not yet been determined. Nevertheless, as the chronology of this case shows,
should the DNC’s 2012 timing rule ultimately conflict with the Florida law for the
2012 Democratic National Convention, the alleged constitutional violation could
be adjudicated at that time and therefore the alleged wrong does not “evade
review.” See id.
Specifically, the DNC’s timing rule for the 2008 Democratic National
Convention was adopted on August 25, 2007, a year before the Democratic
National Convention. On August 30, 2007, DiMaio filed an action for a
declaratory judgment alleging that the DNC’s announced refusal to seat the
Florida Democratic delegation would violate his constitutional rights. Shortly
after the DNC’s motion to dismiss was argued in September 2007, it was granted
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on the grounds that plaintiff lacked standing and that it was without legal merit.
On March 28, 2008, five months before the Democratic National Convention, we
affirmed the dismissal of the complaint for lack of standing. DiMaio v.
Democratic Nat’l Comm., 520 F.3d 1299 (11th Cir. 2008). We vacated the
alternative holding of the district court, which reached the merits, because it was
without jurisdiction.
Because the dismissal for lack of standing was necessarily without
prejudice, on April 8, 2008, DiMaio filed a new complaint in an effort to address
the standing issue. On May 28, 2008, the defendant’s motion for summary
judgment was granted. While it may have not been possible to fully resolve the
second action before the National Convention, that impossibility was the result of
the inept manner in which the case was litigated. Nevertheless, we observe that
without any expedited schedule, the case has been resolved within ten months
after the complaint was filed.
In sum, we think the record is clear that, even in the unlikely event that the
DNC adopts a similar rule for its 2012 National Convention, a timely filed
challenge to it would not evade review. Consequently, no exception to the
mootness doctrine applies.
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Accordingly, this appeal is DISMISSED, the judgment of the district court
is VACATED, and the case is REMANDED with instructions to dismiss the case
as moot.
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BIRCH, Circuit Judge specially concurring:
I concur dubitante.
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