IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-60272 

 consolidated with

No. 09-60424

BRIAN MOORE,

Plaintiff-Appellant,

versus

DELBERT HOSEMANN, 

in His Official Capacity as Mississippi Secretary of State,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Mississippi

Before JONES, Chief Judge, SMITH and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Brian Moore sued the Mississippi Secretary of State (the “Secretary”) after

being left off that state’s 2008 presidential ballot. The district court dismissed

the suit as moot and denied Moore’s motion for costs and fees under Federal

Rule of Civil Procedure 4(d)(2). We reverse the dismissal and remand because,

United States Court of Appeals

Fifth Circuit

F I L E D

December 18, 2009

Charles R. Fulbruge III

Clerk
No. 09-60272

 Moore’s vice-presidential running mate, Stewart Alexander, and the Natural Law Par- 1

ty were also parties. Moore alone appeals.

2

although the case is not moot, we must abstain. Moore’s challenge, like many

election disputes, is based on an interpretation of uncertain state law, which

should be resolved at the state level before we consider wading into a constitutional thicket. We affirm the denial of costs and fees.

I.

Moore was the 2008 presidential candidate for the Socialist Party USA and

was also selected as the Natural Law Party’s presidential candidate on the Mississippi ballot. Mississippi law requires all presidential candidates to submit

their qualifying papers to the Secretary “not less than sixty days previous to the

day of the election.” MISS. CODE ANN. § 23-15-785(2). For the 2008 election, the

sixty-day deadline fell on Friday, September 5. The statute does not explicitly

provide a specific time of day by which a candidate’s papers must be filed on the

due date, but in accordance with another statute, the Secretary’s office closes at

5:00 p.m.

On September 5, shortly after 5:00 p.m., taxi drivers hired by Moore arrived at the Secretary’s office to deliver Moore’s papers, but the office had closed.

The drivers deposited Moore’s papers at the doorstep and left. Because Moore

did not meet the filing deadline, his name was left off the ballot.1

On September 16, Moore sued Delbert Hosemann in his official capacity

as Secretary, seeking a preliminary injunction to certify Moore for the presidential ballot and a preliminary and permanent injunction to prevent the Secretary

from enforcing any unauthorized deadlines for ballot qualification of presidential

candidates. Moore argued that his constitutional rights were violated when the

Secretary imposed the deadline without express legislative authority. The district court denied Moore’s request for a preliminary injunction on September 29.
No. 09-60272

3

We subsequently denied Moore’s motion for a stay and preliminary injunction.

Moore appealed the denial of an injunction to this court but voluntarily withdrew his appeal after the election had occurred.

Though the opportunity for an injunction had ended, Moore continued to

seek a declaratory judgment that the 5:00 p.m. deadline was unconstitutional.

The district court granted the Secretary’s motion to dismiss the complaint as

moot under Federal Rule of Civil Procedure 12(c). In response to Moore’s argument that his claim fell under the “capable of repetition, yet evading review” exception to mootness, the court found that there was no “reasonable expectation”

or “demonstrated probability” that Moore or any other Natural Law Party presidential candidates would “again miss what they now know to be the 5:00 p.m.

deadline” for filing. The court recognized that this circuit has applied the mootness exception when other individuals in the political process might challenge

a law, but held that in the present matter it did “not seem reasonably likely that

other prospective presidential/vice-presidential candidates will fail to timely file

their qualifying papers before . . . the office closes at 5:00 p.m.” 

Moore moved for costs and fees pursuant to Federal Rule of Civil Procedure 4(d) on the theory that the Secretary had not satisfied a mandatory requirement to waive service. The district court denied the motion.

On appeal, Moore renews his arguments that his claim falls under the “capable of repetition, yet evading review” exception and that the 5:00 p.m. deadline

is unconstitutional. Specifically, Moore contends that the Secretary exceeded his

authority in violation of Article II, § 1, cl. 2 of the United States Constitution,

which provides that each state shall choose presidential electors “in such manner

as the Legislature thereof may direct.” (Emphasis added.) The upshot of the

unauthorized deadline, says Moore, is that Mississippi violated his and voters’

First and Fourteenth Amendment rights to participate in the political process.
No. 09-60272

 Two appeals were docketed: No. 09-60272, the appeal of the dismissal as moot; and 2

No. 09-60424, the appeal of the dismissal of the motion for costs and fees. The appeals have

been consolidated.

4

Moore also appeals the denial of his motion for costs and fees.2

II.

We first address whether this case is nonjusticiable because the completion of the election renders it moot. We review questions of subject matter jurisdiction, including the justiciability issue of mootness, de novo. Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 659 (5th Cir. 2006).

Mootness is “the doctrine of standing in a time frame. The requisite personal interest that must exist at the commencement of litigation (standing) must

continue throughout its existence (mootness).” United States Parole Comm’n v.

Geraghty, 445 U.S. 388, 397 (1980). “Generally, any set of circumstances that

eliminates actual controversy after the commencement of a lawsuit renders that

action moot.” Ctr. for Individual Freedom, 449 F.3d at 661. The Secretary contends that such is the case here, that the occurrence of the November 2008 election means that Moore can no longer seek meaningful redress for the constitutional violations he alleges.

An important exception to the mootness doctrine, however, is “attacks on

practices that no longer directly affect the attacking party, but are ‘capable of

repetition’ while ‘evading review.’” Alvarez v. Smith, No. 08-351, 2009 U.S.

LEXIS 8941, at *10-*11 (U.S. Dec. 8, 2009) (citing Fed. Election Comm’n v. Wis.

Right to Life, Inc., 551 U.S. 449, 462 (2007); S. Pac. Terminal Co. v. ICC, 219

U.S. 498, 515 (1911)). To invoke that exception, a party must show that “(1) the

challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” Wis. Right to Life, 551
No. 09-60272

Cf. Storer v. Brown, 415 U.S. 724, 737 n.8 (1974) (“The 1972 election is long over, and 3

no effective relief can be provided to the candidates or voters, but this case is not moot, since

the issues properly presented, and their effects on independent candidacies, will persist as the

California statutes are applied in future elections.”).

5

U.S. at 462.

Moore satisfies the first prong: Election controversies are paradigmatic

examples of cases that cannot be fully litigated before the particular controversy

expires. See Ctr. for Individual Freedom, 449 F.3d at 661. We turn then, to the

second prong. There is good reason to suppose that Moore might fail that requirement, because he has not averred that he is likely to run for President

again.

Following the lead of the Supreme Court, however, in election cases we

have applied the second prong somewhat loosely. In Center for Individual Freedom, id. at 662, we held that “even if it were doubtful” that the plaintiff would

again be affected by the allegedly offending election statute, “precedent suggest[ed] that [the] case [was] not moot, because other individuals certainly

[would] be affected by the continuing existence” of the statute. It is true that 3

the Supreme Court’s most recent election law decisions, Davis v. FEC, 128 S. Ct.

2759 (2008), and Wisconsin Right to Life both noted that the plaintiffs had alleged they would again be adversely affected by the complained-of law. But the

Court still “has not . . . dismissed an election case as moot where the plaintiff

failed to allege that he would be governed by the same flawed law in the next

election.” Kucinich v. Tex. Democratic Party, 563 F.3d 161, 164 (5th Cir. 2009).

Thus, we remain “unwilling to dismiss [a] case as moot when ‘the issues properly

presented, and their effects . . . will persist as the [restrictions] are applied in

future elections.’” Id. at 165 (citing Storer, 415 U.S. at 737 n.8).

That is the situation here. The Secretary has made it plain that he intends to enforce the 5:00 p.m. deadline in future elections. He adds that the

chance is very small that Moore or any other presidential candidate will miss the
No. 09-60272

6

deadline again. That is beside the point, however. As long as the complained-of

deadline is in place, future candidates in Mississippi will be subject to it and will

need to conform to its demands. Thus, the effects of the deadline will persist.

Given the election law context, Moore’s complaint satisfies both prongs of the

mootness exception.

III.

Although Moore’s constitutional claim survives mootness, we decline to

reach the merits. Instead, we remand and urge the district court to consider

whether to abstain on the basis of Railroad Commission v. Pullman Co., 312

U.S. 496 (1941).

In Pullman, plaintiffs challenged, on both federal constitutional and state

law grounds, the authority of the Texas Railroad Commission to issue a racially

discriminatory order. The Supreme Court abstained from deciding the case, because it found that if Texas courts were to strike down the Commission’s action

on state law grounds, it would be unnecessary to decide the federal constitutional question.

As the Court later explained, the moral of Pullman was that “federal

courts should abstain from decision when difficult and unsettled questions of

state law must be resolved before a substantial federal constitutional question

can be decided. By abstaining in such cases, federal courts will avoid both unnecessary adjudication of federal questions and ‘needless friction with state policies.’” Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984) (quoting Pullman,

312 U.S. at 500). “[F]or Pullman abstention to be appropriate . . . it must involve

(1) a federal constitutional challenge to state action and (2) an unclear issue of

state law that, if resolved, would make it unnecessary for us to rule on the federal constitutional question.” Nationwide Mut. Ins. Co. v. Unauthorized Practice

of Law Committee, 283 F.3d 650, 653 (5th Cir. 2002). In other words, “[g]eneral-
No. 09-60272

See MISS.CODE ANN. §§ 23-15-299(3), 23-15-309(1), 23-15-359(3), 23-15-361(1), 23-15- 4

(continued...)

7

ly, Pullman abstention is appropriate only when there is an issue of uncertain

state law that is fairly subject to an interpretation [by a state court] which will

render unnecessary or substantially modify the federal constitutional question.”

Baran v. Port of Beaumont Nav. Dist., 57 F.3d 436, 442 (5th Cir. 1995).

Pullman abstention is appropriate here. Moore challenges the Secretary’s

official actions on federal constitutional grounds. He alleges that by enforcing

the 5:00 p.m. deadline without express direction from the legislature, the Secretary devised his own manner of appointing presidential electors, in violation of

Article II. As a result, Moore claims, his First and Fourteenth Amendment

rights to political participation were violated.

Moreover, the existence of a federal constitutional question is entirely contingent on an unresolved interpretation of Mississippi law. The Secretary argues that by closing his office at 5:00 p.m. he was not creating election rules, but

merely following the existing laws enacted by the legislature. He points to provisions of the Mississippi Code that provide for regular office hours. All state offices, for example, are required to operate between 8:00 a.m. and 5:00 p.m., and

the Secretary is required to operate eight hours each weekday. See MISS. CODE

ANN. §§ 25-1-98, 7-3-3. In the Secretary’s view, then, he did not add to, or even

interpret, the sixty-day deadline in § 23-15-785(2), but rather complied with the

strict letter of three interrelated state statutes. 

Moore contends that, to the contrary, because § 23-15-785(2) does not contain its own mention of a closing time, the Secretary was required to keep his office open until midnight on September 5. Moore points out that a number of other Mississippi election statutes do mention 5:00 p.m. filing deadlines and that

presidential absentee ballots have a later receipt deadline than do ballots for

other offices.4
No. 09-60272

 (...continued) 4

721(3), 23-15-807(e), 23-15-637.

8

The question of state law here is at leastSSand perhaps even more thanSS

“fairly subject” to the Secretary’s understanding. We abstain from deciding this

question of state law prematurely, however, because an authoritative answer

from the Mississippi courts in the Secretary’s favor would also dispose of any federal constitutional question. We therefore remand the constitutional claim to

the district court and urge it, likewise, to consider whether to abstain.

IV.

Moore claims he is entitled to costs and fees under rule 4(d), which requires certain defendants, upon request, to waive service, and which allows

plaintiffs to cover expenses related to service if the defendant does not waive.

The district court found that Moore’s motion for costs and fees was without

merit. We agree.

Rule 4’s mandatory waiver provisions apply only to “[a]n individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h).”

FED. R. CIV. P. 4(d)(1). State governments, municipal corporations, and “other

state-created governmental organization[s],” along with the federal government

and foreign sovereigns, are not subject to mandatory waiver. As the 1993 Advisory Committee Note to rule 4(d) explains:

The United States is not expected to waive service for the reason

that its mail receiving facilities are inadequate to assure that the

notice is actually received by the correct person in the Department

of Justice. The same principle is applied to agencies, corporations,

and officers of the United States and to other governments and entities subject to service under subdivision (j). Moreover, there are policy reasons why governmental entities should not be confronted

with the potential for bearing costs of service in cases in which they
No. 09-60272

 The parties placed great emphasis on the holding in Will v. Michigan Dep’t of State 5

Police, 491 U.S. 58 (1989) that, for the purposes of a 42 U.S.C. § 1983 action for money

damages, “a suit against a state official in his or her official capacity is a suit against the

official’s office,” and also on the dictum that “a state official in his or her official capacity, when

sued for injunctive relief, would be a person under § 1983.” Will, 491 U.S. at 71, 71 n.10. This

emphasis on Will is misplaced. The question here is not about the definition of a “person”

under § 1983, but rather the definition of an “individual” under rule 4.

9

ultimately prevail.

Moore argues that the Secretary, even when sued in his official capacity,

should be considered an “individual” for purposes of rule 4’s mandatory waiver

provision. He is incorrect. The Advisory Committee Note expressly states that the

rationale for shielding the United States from the mandatory waiver-of-service

provisions also applies to its “agencies, corporations, and officers” and similarly “to

other governments and entities subject to service under subdivision (j).” Although

neither the rule nor the Advisory Committee note attempts to define which state

“entities” are similarly shielded from the mandatory waiver provisions, the most

reasonable reading of rule 4 affords state officers facing official capacity suits the same

consideration given to federal officers in the same position.

Nor is Moore’s reliance on First Circuit caselaw persuasive. In two instances, that circuit held that state officials sued in their individual capacities

should receive process as individuals under rule 4(e) (and its predecessor) rather

than as state government entities under rule 4(j). See Echevarria-Gonzales v.

Gonzales-Chapel, 849 F.2d 24 (1st Cir. 1988); Caisse v. DuBois, 346 F.3d 213 (1st

Cir. 2003). Neither Echevarria nor Caisee, however, addressed whether a state

official was subject to mandatory waiver obligations under rule 4(d); instead,

both cases concerned whether plaintiffs had made adequate service on state

official defendants. For the reason stated above, we disagree with the First

Circuit’s reading of rule 4, at least insofar as the First Circuit’s reasoning

subjects state officers to the mandatory waiver provisions of the rule.5

A number of other courts have held that state officers sued in their official
No. 09-60272

See, e.g., Libertarian Party v. Dardenne, 2009 WL 790149, at *5 (M.D. La. Mar. 24, 6

2009); Mack v. Fox, 2008 WL 4832995, at *3 (M.D.N.C. Nov. 4, 2008); Chapman v. N.Y. State

Div. for Youth, 227 F.R.D. 175, 179-80 (N.D.N.Y 2005); Randall v. Crist, 2005 WL 5979678,

at *2 (N.D. Fla. Nov. 1, 2005); Gaynor v. Martin, 77 F. Supp. 2d 272, 282 (D. Conn. 1999); Banerjee v. Roberts, 641 F. Supp. 1093 (D. Conn. 1986).

10

capacities are subject to service under rule 4(j) or its predecessor. We join them 6

in saying that a state official sued in his official capacity is not subject to the

mandatory waiver-of-service provisions of rule 4(d). Thus, we affirm the dismissal of Moore’s motion for costs and fees.

For the reasons explained, the judgment is AFFIRMED in part and

REVERSED and REMANDED in part.