Jason Farrell McGehee v. Nebraska Department of Correctional Services

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 19-1770
___________________________
Jason Farrell McGehee; Stacey Eugene Johnson; Bruce Earl Ward; Terrick Terrell
Nooner; Don William Davis
lllllllllllllllllllllPlaintiffs - Appellees
v.
Nebraska Department of Correctional Services
lllllllllllllllllllllDefendant - Appellant
------------------------------
State of Alabama; State of Arkansas; State of Georgia; State of Indiana; State of
Louisiana; State of Idaho; State of Oklahoma; State of South Carolina; State of
Texas; State of Utah; State of Missouri; State of Arizona; State of Kansas; State of
Kentucky; State of Mississippi; State of Ohio; State of South Dakota
lllllllllllllllllllllAmici on Behalf of Appellant(s)
____________
Appeal from United States District Court
for the District of Nebraska - Lincoln
____________
Submitted: October 20, 2020
Filed: February 10, 2021
____________

-- 1 of 6 --

Before KELLY, ERICKSON, and STRAS, Circuit Judges.
____________
ERICKSON, Circuit Judge.
Appellees are Arkansas prisoners who are or were on death row for capital
murder convictions. They commenced a lawsuit in the Eastern District of Arkansas
alleging, among other claims, that Arkansas’s method of execution violated the
Eighth Amendment.1 In order to obtain support for their claim, they sought
information about the existence of known and available alternatives that would
significantly reduce a substantial risk of severe pain. As part of their efforts to obtain
the necessary information, they served subpoenas on several state correctional
departments, including one on the Nebraska Department of Correctional Services
(“NDCS”). NDCS objected, asserting the subpoena violated Nebraska’s right to
sovereign immunity under the Eleventh Amendment. The district court, relying on
In re Missouri Dep’t of Nat. Res. (“Missouri DNR”), 105 F.3d 434 (8th Cir. 1997),
determined that the Eleventh Amendment did not categorically bar appellees’
subpoena. It also found that NDCS had failed to demonstrate the modified subpoena
requests infringed on the autonomy of the State of Nebraska.
On appeal, NDCS renewed its assertion that the Eleventh Amendment
categorically bars Article III jurisdiction over a third-party subpoena served on an
unconsenting state. We received a letter from appellees pursuant to Rule 28(j) of the
Federal Rules of Appellate Procedure one day before the scheduled argument
contending the case had become moot in light of the district court’s decision rejecting
their Eighth Amendment claims in the underlying Arkansas case.
1After briefing was complete and before oral argument, the district court ruled
against appellees on their Eighth Amendment claims. McGehee v. Hutchinson, 463
F. Supp. 3d 870 (E.D. Ark. 2020). Appellees’ motion for a new trial, for additional
findings of fact, and to amend the judgment remains pending.
-2-

-- 2 of 6 --

In our original opinion, we noted that the use of a Rule 28(j) letter to raise
mootness was procedurally irregular and deprived us of full briefing on the issue, but
concluded it did not affect the outcome because we were bound by the panel’s
decision in Missouri DNR, 105 F.3d at 436. Upon further consideration, we vacated
the original panel opinion, granted the petition for rehearing by the panel, and ordered
supplemental briefing on the issue of mootness. Having carefully studied the parties’
supplemental briefs, we now find this case has been rendered moot.
Because the existence of a live case or controversy is a constitutional
prerequisite to federal court jurisdiction, we begin with appellees’ claim that the case
is moot. Calderon v. Ashmus, 523 U.S. 740, 745 & n.2 (1998); McDaniel v.
Precythe, 897 F.3d 946, 949–50 (8th Cir. 2018). Appellees contend the case is moot
because (1) the Nebraska Supreme Court ordered the public disclosure of the same
documents at issue in the underlying subpoena being challenged by NDCS and thus
there is no effective relief this Court can grant, and (2) the underlying lawsuit from
which the subpoena issued has reached final judgment. NDCS acknowledges the
documents now publicly available overlap those produced in response to the
subpoena, but contends it should not be denied the right to contest the exercise of
jurisdiction that infringed on its sovereignty. NDCS asserts we can still grant
effective relief because a dismissal of the underlying subpoena on the basis of
sovereign immunity would necessarily require the return or destruction of the records.
When considering mootness, even if we cannot grant “full relief,” the Supreme
Court has concluded that a live controversy exists if we can “effectuate a partial
remedy.” Church of Scientology of California v. United States, 506 U.S. 9, 13
(1992). Likewise, the parties must have “a concrete interest, however small, in the
outcome of the litigation.” Chafin v. Chafin, 568 U.S. 165, 172 (2013) (quoting
Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 307–08 (2012)).
-3-

-- 3 of 6 --

Here, because all of the documents2 produced in response to the subpoena have
been made public pursuant to the Nebraska Supreme Court’s decision in State ex rel.
BH Media Group, Inc. v. Frakes, 943 N.W.2d 231 (Neb. 2020), the dispositive
question for us is whether there remains any “effective” relief we can grant to NDCS.
In re Search Warrants Issued in Connection with Investigation of South Cent. Career
Center, West Plains, Missouri (In re Search Warrants), 487 F.3d 1190, 1192 (8th Cir.
2007) (citing Beck v. Missouri State High Sch. Activities Ass’n, 18 F.3d 604, 605
(8th Cir. 1994) (per curiam) (“If circumstances change over the course of the
litigation so that the issues in the case lose their life and a federal court can no longer
grant effective relief, the case is moot and we have no power to decide it.”)). We find
there is no effective relief we can grant.
The relief NDCS asserts we can provide follows two paths: (1) we can give
effective relief by “vindicat[ing] the injury to the State’s sovereignty;” and (2) we can
order the return or destruction of the records, which, in NDCS’s view, would restrict
or pose a hardship as to appellees’ use of the records in any future proceedings
remaining in Arkansas. Beginning with the latter, the return or destruction of the
documents provides no meaningful relief. All the information (and more) is publicly
available so taking these documents produced as a result of the subpoena out of the
hands of appellees would neither change the information available to them, nor would
it eliminate appellees’ ability to use the documents in future court proceedings. The
documents could be obtained, authenticated, and admitted in other court proceedings
in a variety of possible ways, including by judicial notice as to any document already
in a court record, by its own public records request to the NDCS, and/or by request
for admission as to any case involving NDCS. And even if there is some chance that
2NDCS has not disputed that there is even more information in the public
domain because an additional 36 pages not produced pursuant to the subpoena have
now been produced pursuant to the Nebraska Supreme Court’s decision and the
subpoena documents that were produced in this case contain more redactions than
those that have now been made public.
-4-

-- 4 of 6 --

the underlying litigation continues in Arkansas, by virtue of the pending post-trial
motion or later review by an appellate court, any possibility that the documents might
be used in the future is “too speculative to overcome a finding of mootness.” Spencer
v. Kemna, 91 F.3d 1114, 1117 (8th Cir. 1996); see also Doe No. 1 v. Reed, 697 F.3d
1235, 1239 (9th Cir. 2012) (“A moot case cannot be revived by alleged future harm
that is so remote and speculative that there is no tangible prejudice to the existing
interests of the parties.” (internal quotation marks omitted)).
Requiring the return or destruction of the subpoenaed documents would
provide no effective relief. NDCS’s challenge to the subpoena has been mooted by
the Nebraska Supreme Court order requiring public disclosure. In re Search
Warrants, 487 F.3d at 1192 (magistrate judge’s order unsealing documents rendered
moot the appeal from the denial to unseal search warrants in connection with a federal
investigation). Having reached this conclusion, we find NDCS’s other proposed basis
of relief untenable because it would require us to decide the sovereign immunity issue
before deciding mootness, or it would require us to reach the sovereign immunity
issue despite our finding that the case is moot. We decline to do either.
Our final inquiry is whether this case fits within the exception to the mootness
doctrine for cases capable of repetition, yet evading review. This exception is
“extraordinary and narrow.” Minnesota Humane Soc’y v. Clark, 184 F.3d 795, 797
(8th Cir. 1999) (quoting Randolph v. Rodgers, 170 F.3d 850, 856 n.7 (8th Cir. 1999)).
It requires a showing that “(1) the challenged action is of too short a duration to be
fully litigated prior to its cessation or expiration, and (2) there is a reasonable
expectation that the same complaining party will be subject to the same action again.”
Id. While NDCS may be served similar subpoenas in the future, it does not follow
that future cases will evade review.
-5-

-- 5 of 6 --

For the foregoing reasons, we vacate the district court’s order and remand to
the district court with instructions to dismiss the case. In re Search Warrants, 487
F.3d at 1193.
______________________________
-6-

-- 6 of 6 --