United States District Court, W.D. Oklahoma
STEPHEN PURSLEY, KRISTA PURSLEY, and SECOND AMENDMENT FOUNDATION, INC., Plaintiffs,
ED LAKE, in his official capacity as Director of the Oklahoma Department of Human Services, Defendant.
L. RUSSELL, UNITED STATES DISTRICT JUDGE
filed this action for declaratory and injunctive relief
asserting that a policy of the Oklahoma Department of Human
Services prohibited foster and adoptive parents, from
possession of weapons except under certain circumstances is
in violation of the Second Amendment to the United States
Constitution. The parties filed motions for summary judgment,
Plaintiffs asserting they had established the merits of their
claims (Doc. Nos. 27, 28, 33), and Defendant argues
Plaintiffs' claims are moot because the policy at issue
was rescinded in 2015. (Doc. No. 26). Having considered the
parties' filings, the Court finds as follows.
Lake is the Director of the Department of Human Services, and
thus responsible for formulating policies and adopting the
rules and regulations for administration of the
Department's duties. The Department's
responsibilities include administration of the Oklahoma
Children's Code and overseeing the placement of children
for foster care and adoption. Plaintiffs Stephen and Krista
Pursley have provided care for children via the State's
foster care program, have adopted a child through the
program, and indicate the desire to provide foster care for
additional children in the future. They contend, however,
that the Weapon Safety Agreement for Foster and Adoptive
Family (“WSA”) contained in their 2014 and 2015
re-certification packets violated their rights under the
Second Amendment, because it restricted their ability to both
possess and use firearms while servings as foster or adoptive
Krista and Stephen Pursley apparently disagreed with the
contents of the WSA, they signed a version on September 18,
2015. Defendant contends, however, that on September 25,
2015, the Department's managers and directors were
informed to cease using the WSA. Defendant contends that
since that time, the WSA has not been in effect.
contends that because the WSA is no longer in use that there
is no longer a case or controversy, that is that it is moot,
thereby depriving this Court of jurisdiction. Defendant
further asserts that Plaintiffs lack standing. Finally,
Defendant contends he is entitled to judgment as a matter of
law for the alleged violation of Plaintiff's federal and
state constitutional rights, as well as the contention that
the WSA violated the Oklahoma Self-Defense Act, because the
Pursleys were free to have chosen not to serve as foster or
adoptive parents. In response Plaintiffs contend the dispute
is not moot, that they have standing to pursue their claims
and that Defendant is not entitled to summary judgment on the
general, “a federal court cannot give opinions absent a
live case or controversy before it, ” In re
Overland Park Fin. Corp., 236 F.3d 1246, 1254
(10th Cir. 2001)(citation and quotations omitted).
“[T]he existence of a live case or controversy is a
constitutional prerequisite to federal court jurisdiction,
” Disability Law Ctr. v. Millcreek Health
Ctr., 428 F.3d 992, 996 (10th Cir.
2005)(internal quotations omitted)(quoting McClendon v.
City of Albuquerque, 100 F.3d 863, 867 (10th
Cir. 1996)). Accordingly, “[m]ootness is a threshold
issue.” Id. With regard to a declaratory
judgment and mootness, “[t]he crucial question is
whether granting a present determination of the issues
offered will have some effect on the real world.”
Rio Grande Silvery Minnow v. Bureau of Reclamation,
601 F.3d 1096, 1110 (10th Cir. 2010)(internal
quotations and emphasis omitted)(quoting Wyoming v. U.S.
Dept. of Agric., 414 F.3d 1207, 1212 (10th
are exceptions to the doctrine of mootness, specifically, a
controversy can be capable of repetition yet evading review,
in which case judicial consideration remains appropriate.
This exception applies where “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.” Brown v. Buhman,
822 F.3d 1151, 1165-66 (10th Cir. 2016), cert.
denied, 137 S.Ct. 828, 197 L.Ed.2d 68 (2017). A second
exception applies when a defendant voluntarily ceases a
challenged action. This exception traces to the principle
that a party should not be able to evade judicial review, or
to defeat a judgment, by temporarily altering questionable
behavior.” Greater Yellowstone Coal. v.
Tidwell, 572 F.3d 1115, 1121 (10th Cir. 2009) (internal
quotation and citations omitted); Chihuahuan Grasslands
All., 545 F.3d at 892 (“[T]his exception exists to
counteract the possibility of a defendant ceasing illegal
action long enough to render a lawsuit moot and then resuming
the illegal conduct.”).
response to the motion, Plaintiffs first assert that because
“[t]here is no official ruling or judgment preventing
the next OKDHS official from reinstating the WSA . . . this
matter is capable of repetition yet evading review.”
Doc. No. 41, p. 4. Without elaborating on this exception,
Plaintiffs proceed to argue this case falls within the
voluntary-cessation exception to mootness, because Defendant
revoked use of the WSA only after initiation of the instant
litigation. The Court assumes Plaintiffs intend only to rely
on the voluntary cessation exception to the mootness doctrine
given their failure to fully develop the capable of
repetition argument. Having considered the contours of the
exception, the Court finds that Defendant has successfully
met his burden of establishing that the instant controversy
order for voluntary actions to moot litigation, two
conditions must be satisfied: “(1) it can be said with
assurance that there is no reasonable expectation that the
alleged violation will recur, and (2) interim relief or
events have completely and irrevocably eradicated the effects
of the alleged violation.” County. of Los Angeles
v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379 (1979).
“Voluntary cessation of offensive conduct will only
moot litigation if it is clear that the defendant has not
changed course simply to deprive the court of
jurisdiction.” Rio Grande, 601 F.3d at
1115-16. (citation omitted). “The party asserting
mootness bears the ‘heavy burden of persuading' the
court that the challenged conduct cannot reasonably be
expected to start up again.” Id. at 1116
(internal alteration omitted).
the burden is described as “heavy, ” its impact
on government actors is often lightened. See id.
(“Laidlaw's heavy burden frequently has
not prevented governmental officials from discontinuing
challenged practices and mooting a case”). Thus,
“withdrawal or alteration of administrative policies
can moot an attack on those policies.” Id. at
1117 (alteration and quotations omitted) (quoting
Bahnmiller v. Derwinski, 923 F.2d 1085, 1089 (4th Cir.
1991)). “And the ‘mere possibility' that an
agency might rescind amendments to its actions or regulations
does not enliven a moot controversy.” Id.
forth above, County of Los Angeles sets forth a
two-part test for voluntary cessation. The first factor
requires the Court to ascertain whether it can “say
with assurance ‘‘that there is no reasonable
expectation' that the alleged violation will
recur.'” Rio Grande, 601 F.3d at 1117
(quoting County of Los Angeles, 440 U.S. at 631).
The declarations of Carlene Harp and Patricia Johnson lead
the Court to conclude that there is no reasonable assurance
that the Oklahoma DHS will revert to its prior practice of
requiring foster and adoptive parents to execute the WSA.
Carlene Harp's declaration includes the following:
I am familiar with the “Weapon Safety Agreement for
Foster or Adoptive Family “WSA” that was utilized
for a short time period by the Oklahoma Department of Human
services. The WSA was provided to foster and adoptive
applicants and those being re-certified as such. That WSA is
no longer in use and has been revoked.
Doc. No. 26-3. Patricia Johnson's Declaration states:
On September 25, 2015, Kim Sober (Child Welfare Field
Administrator) emailed me and other managers and directors
informing us to immediately stop using the WSA and to inform
all staff to cease use of the form. . . . The WSA has been
revoked and is no ...