ASA HUTCHINSON, IN His OFFICIAL CAPACITY AS GOVERNOR OF ARKANSAS AND DR. CHARISSE CHILDERS, IN HER OFFICIAL CAPACITY AS DIRECTOR, ARKANSAS DIVISION OF WORKFORCE SERVICES v. LOGAN ARMSTRONG EMILY BALL RONALD BATES CYNTHIA EYIUCHE And KURT JOHNSEN

2022 Ark. 50

• Court: Supreme Court of Arkansas
• Decided: March 10, 2022
• Status: Published

Opinion

Cite as 2022 Ark. 50 SUPREME COURT OF ARKANSAS No. CV-21-365

Opinion Delivered: March 10, 2022 ASA HUTCHINSON, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF APPEAL FROM THE PULASKI ARKANSAS; AND DR. CHARISSE COUNTY CIRCUIT COURT, FOURTH CHILDERS, IN HER OFFICIAL DIVISION CAPACITY AS DIRECTOR, ARKANSAS [NO. 60CV-21-4507] DIVISION OF WORKFORCE SERVICES HONORABLE HERBERT WRIGHT, JUDGE APPELLANTS V. REVERSED AND REMANDED WITH INSTRUCTIONS. LOGAN ARMSTRONG; EMILY BALL; RONALD BATES; CYNTHIA EYIUCHE; AND KURT JOHNSEN

APPELLEES

ROBIN F. WYNNE, Associate Justice

Appellants, Asa Hutchinson, in his official capacity as Governor of Arkansas; and Dr.

Charisse Childers, in her official capacity as Director of the Arkansas Division of Workforce

Services (“DWS”), appeal from an order of the Pulaski County Circuit Court granting a

preliminary injunction in favor of appellees, Logan Armstrong, Emily Ball, Ronald Bates,

Cynthia Eyiuche, and Kurt Johnsen. In this interlocutory appeal, appellants argue that

appellees’ claims are moot and that sovereign immunity bars those claims. We reverse and

remand with instructions to enter an order stating that the grounds on which the trial court

relied in entering the preliminary injunction have become moot.

I. Background In early 2020, in response to the COVID-19 pandemic, Congress passed the

Coronavirus Aid, Relief, and Economic Security (CARES) Act, Pub. L. No. 116-136.

Relevant here, the CARES Act created three pandemic-specific unemployment programs in

which states could choose to participate. Pandemic Unemployment Assistance (“PUA”)

provided unemployment benefits to workers not covered by regular unemployment

insurance, including self-employed workers and gig workers. 15 U.S.C. § 9021. Federal

Pandemic Unemployment Compensation (“FPUC”) increased the amount of the weekly

benefits received by qualified recipients by $300. 15 U.S.C. § 9023. Pandemic Emergency

Unemployment Compensation (“PEUC”) extended the time during which recipients of

regular unemployment benefits could receive benefits. 15 U.S.C. § 9025. These pandemic

unemployment programs were fully funded by the federal government through the Social

Security Act’s Unemployment Trust Fund. See 42 U.S.C. §§ 1101, 1104, and 1105. These

programs expired on September 6, 2021.

On March 28, 2020, the State of Arkansas entered into an agreement with the United

States Department of Labor (“DOL”) to administer the CARES Act pandemic-

unemployment programs, including PUA, FPUC, and PEUC. The agreement provided that

either party could terminate the agreement on thirty days’ written notice. On May 7, 2021,

Hutchinson directed DWS to terminate the State’s participation in these programs, and on

May 19, 2021, Childers gave the DOL notice of the State’s intent to end its participation in

these programs, effective June 26, 2021.

2 About a month after the State had terminated its participation in PUA, FPUC, and

PEUC, appellees, five Arkansas residents who had been receiving pandemic-unemployment

benefits through these programs prior to the State’s termination, filed suit against appellants

seeking declaratory and injunctive relief. Appellees alleged that appellants lacked the

authority under Arkansas Code Annotated section 11-10-312 (Supp. 2021) to terminate the

State’s participation in these programs prior to the programs’ expiration. Specifically,

appellees alleged that the provision in section 11-10-312(a) that the DWS director “shall

cooperate with the United States Department of Labor to the fullest extent consistent with

the provisions of this chapter and shall take such action . . . to secure to this state and its

citizens all advantages available under the provisions of the Social Security Act that relate to

unemployment compensation . . .” required appellants to continue the State’s participation

in the pandemic-unemployment programs.

Appellees moved for a temporary restraining order and preliminary injunction,

alleging they would suffer irreparable harm without an injunction ordering appellants to

restore the terminated programs. After a hearing on July 28, 2021, the trial court granted

the motion and entered a preliminary injunction ordering appellants “to reengage these

terminated programs if the United States Government will agree to permit the State to do

so.” In its order, the trial court concluded that section 11-10-312, along with other statutory

provisions, indicates that “the State legislature has clearly stated its public policy” and that

“[t]he clear meaning of Arkansas law in this regard is that the State is to participate in these

types of programs for the benefit of its citizens.” The trial court found that appellees had a

3 reasonable likelihood of success on the merits and were likely to suffer harm in the absence

of a preliminary injunction and expressed “serious doubts that [appellants] were acting

within the scope of their duties, as these decisions would normally be the subject of

legislation from the General Assembly.” Although appellants argued at the hearing that the

claims were barred by sovereign immunity, the trial court did not specifically address the

issue in its order. Appellants filed this interlocutory appeal, and this court stayed the

preliminary injunction and all proceedings below pending appeal.

On August 6, 2021, while this appeal was pending, the General Assembly passed Act

1 of the First Extraordinary Session of 2021. Act 1 amended Arkansas Code Annotated

section 11-10-312 to provide that the director of DWS “may take such action . . . as may be

necessary to secure to this state and its citizens all advantages available under the Social

Security Act that relate to unemployment compensation.” 2021 Ark. Acts 1, § 3 (1st Ext.

Sess.). The Act also added that section 11-10-312 “does not [r]equire the director to

participate in, nor preclude the director from ceasing to participate in, any voluntary,

optional, special, or emergency program offered by the United States Government including

without limitation programs offered under . . . the Coronavirus Aid, Relief, and Economic

Security Act. . . .” Id. (to be codified as Ark. Code Ann. § 11-10-312(c)(1)). The Act states

that it is retroactive to May 19, 2021, the date that Childers notified the DOL of the State’s

intent to terminate the programs. 2021 Ark. Acts 1, § 4.

II. Analysis

4 This court has jurisdiction of this interlocutory appeal under Arkansas Rule of

Appellate Procedure–Civil 2(a)(6), which permits an interlocutory appeal of an order

granting an injunction. In determining whether to issue a preliminary injunction pursuant

to Arkansas Rule of Civil Procedure 65, the trial court must consider two things: (1) whether

irreparable harm will result in the absence of an injunction or restraining order and (2)

whether the moving party has demonstrated a likelihood of success on the merits. Baptist

Health v. Murphy, 365 Ark. 115, 121, 226 S.W.3d 800, 806 (2006). This court reviews the

grant of a preliminary injunction under an abuse-of-discretion standard. Id. When an appeal

reaches this court via an order granting a preliminary injunction, we will not delve into the

merits of the case further than is necessary to determine whether the trial court exceeded its

discretion in granting the injunction. Id. The sole question before us is whether the trial

court departed from the rules and principles of equity in making the order, not whether this

court would have made the order. Id. at 121–22, 226 S.W.3d at 806–07 (cleaned up).

As a threshold matter, appellants urge us to dismiss this case as moot for two reasons:

the pandemic-unemployment programs expired on September 6, 2021, and Act 1 removed

the basis for the lawsuit. As a general rule, this court will not review issues that are moot.

Arkansas Dep’t of Hum. Servs. v. Ledgerwood, 2019 Ark. 100, at 2, 571 S.W.3d 1, 2. To do so

would be to render advisory opinions, which this court will not do. Id. A case is moot when

any judgment rendered would not have any practical legal effect upon a then-existing legal

controversy. Id. In other words, a moot case presents no justiciable issue for determination

by the court. Id. 5 This court has repeatedly held that changes in the law may render claims moot. In

Allison v. Lee County Election Commission, 359 Ark. 388, 390–91, 198 S.W.3d 113, 114–15

(2004), we held that a candidate’s appeal challenging the statute providing filing deadlines

for candidates was moot because the election had occurred two years earlier and because the

challenged statute had been repealed. We concluded that “[a]ny opinion this court would

give on the old version of the law would simply be an advisory opinion, a practice in which

this court will not engage.” Id. at 391, 198 S.W.3d at 115. Similarly, we concluded in Warren

Wholesale Co. v. McLane Co., 374 Ark. 171, 174, 286 S.W.3d 709, 710–11 (2008), that the

repeal of a challenged regulation rendered the appeal moot because the challenged

regulation no longer existed. We therefore remanded the case “for entry of a decree stating

that the grounds upon which the trial court relied for entering the declaratory judgment and

injunction have become moot by the repeal of the challenged section. . . .” Id. at 176, 286

S.W.3d at 712. And in City of Clinton v. Southern Paramedic Services, Inc., 2012 Ark. 88, at 10,

387 S.W.3d 137, 142, we held that the repeal of the ordinances under which the cause of

action arose rendered the appeal and the case moot and that any opinion this court handed

down based on repealed ordinances would be an advisory opinion. See also Kiesling v. Arkansas

Pro. Bail Ass’n, 2017 Ark. 346, at 5, 532 S.W.3d 567, 570 (holding that the amendment of a

statute rendered a challenge to the statute moot); Arkansas Dep’t of Corr. v. Williams, 2009

Ark. 523, at 9, 357 S.W.3d 867, 872 (holding that the amendment of a statute rendered the

basis for an injunction—but not the appeal—moot).

6 With this precedent in mind, we turn first to appellants’ argument that the case is

moot because the pandemic-unemployment programs have expired. Appellants argue that

because those programs no longer exist, appellees cannot get the relief they seek, and the

trial court’s order directing appellants to reengage those programs is therefore an

impossibility. Appellees contend their cause of action is not moot because it is possible for

the State to rescind its early termination and rejoin the programs, in which case the federal

government will pay for retroactive benefits for the time period in which the State did not

participate. In support of their argument that retroactive benefits are available, appellees rely

on a letter that is not in the record.1 We cannot consider this letter because we do not

consider matters outside the record on appeal. Wal-Mart Stores, Inc. v. Tucker, 353 Ark. 730,

742, 120 S.W.3d 61, 69 (2003). The availability of retroactive benefits after the termination

of the programs is a question of fact, and we do not find facts. Jenkins v. Mercy Hosp. Rogers,

2021 Ark. 211, at 13, 633 S.W.3d 758, 767. Without a finding about the availability of

retroactive benefits, this court cannot determine whether the expiration of the programs

renders this case moot.

Now we turn to whether Act 1 renders the case moot. As discussed above, Act 1

amended section 11-10-312 to provide that the director of DWS “may”—instead of “shall”—

“take such action . . . as may be necessary to secure to this state and its citizens all advantages

available under the Social Security Act that relate to unemployment compensation.” 2021

1 This court denied appellees’ motion to supplement the record with this letter. Hutchinson v. Armstrong, No. CV-21-365 (Ark. Jan. 13, 2022). 7 Ark. Acts 1, § 3. The amended section 11-10-312 also provides that the director is not

required to participate in, nor precluded from ceasing to participate in, voluntary programs

offered under the CARES Act. Id. Appellants contend that Act 1 moots the case because the

General Assembly expressly intended for Act 1 to be retroactive to May 19, 2021, the date

that Childers notified the DOL of the State’s intent to terminate its participation in the

pandemic-unemployment programs. Therefore, appellants argue, they had the authority to

terminate the State’s participation in these programs. Appellees counter that Act 1 does not

render the case moot because it is unconstitutional and cannot be applied retroactively even

if it is constitutional. At this time, we cannot decide whether Act 1 is constitutional. The

requirement of a ruling from a lower court is the elementary basis of this court’s function,

which is to review decisions of a trial court and not to make them in the first instance on

appeal. TEMCO Constr., LLC v. Gann, 2013 Ark. 202, at 13, 427 S.W.3d 651, 659–60. We

overstep our bounds as an appellate court if we reach an issue in the absence of a ruling from

the lower court. Id., 427 S.W.3d at 660. Accordingly, this court cannot consider the

constitutionality of Act 1 without a ruling from the trial court.

Our examination of the grounds on which the trial court entered the preliminary

injunction makes it clear that those grounds have been rendered moot by Act 1. Appellees’

claims were based on a statute—section 11-10-312— that was amended by Act 1. The trial

court based its order granting a preliminary injunction on its conclusion that the “clear

meaning of Arkansas law” is that the State is to participate in unemployment programs. In

addition, the trial court expressed “serious doubts” that appellants were “acting within the

8 scope of their duties” in withdrawing the State from these programs because those decisions

would normally be the subject of legislation. But Act 1 changed the law underpinning the

injunction. Therefore, the grounds on which the trial court entered its preliminary

injunction have been rendered moot.

We have recognized two exceptions to mootness—matters capable of repetition yet

evading review and matters of substantial public interest that are likely to be litigated in the

future. Ledgerwood, 2019 Ark. 100, at 2, 571 S.W.3d at 2. Neither applies here. Whether the

prior version of section 11-10-312 authorized appellants to terminate participation in

pandemic-unemployment programs available under the CARES Act is not a matter capable

of repetition, nor is it likely to be litigated in the future because the statute was amended.

Any opinion rendered on the prior version of the statute would be advisory and would not

prevent future litigation. See Allison, 359 Ark. at 391, 198 S.W.3d at 115.

Because the grounds for the entry of the preliminary injunction are moot, we do not

reach the merits of the injunction. Nor do we reach whether sovereign immunity bars this

action. This court has long held that sovereign immunity does not apply to actions seeking

only declaratory or injunctive relief and alleging an illegal, unconstitutional, or ultra vires

act. Harris v. Hutchinson, 2020 Ark. 3, at 4, 591 S.W.3d 778, 781. Whether sovereign

immunity applies in this case turns on the claim that appellants acted beyond the authority

given to them under the prior version of section 11-10-312, which was amended by Act 1.

As discussed above, any opinion on that statute would be advisory, and this court does not

render advisory opinions. See, e.g., Allison, 359 Ark. at 391, 198 S.W.3d at 115.

9 While the grounds for the preliminary injunction have become moot, the appeal itself

is not moot because the injunction is still in place. See Williams, 2009 Ark. 523, at 6, 357

S.W.3d at 871 (holding that the appeal was not moot because there was a summary-judgment

order and injunction in place that must be reversed or affirmed). Under these particular

circumstances, because our appellate jurisdiction arises under Rule 2(a)(6)—allowing us to

review the order granting a preliminary injunction—and because there remain issues that we

cannot address, we decline to dismiss the appeal and underlying case as moot. Accordingly,

we reverse the preliminary injunction and remand with instructions for entry of an order

stating that the grounds on which the trial court relied for the preliminary injunction have

become moot. See Morgan v. Sparks, 258 Ark. 273, 277, 523 S.W.2d 926, 929 (1975).

Reversed and remanded with instructions.

WOOD, J., concurs.

WOMACK, J., dissents.

SHAWN A. WOMACK, Justice, dissenting. The Arkansas Constitution provides, “The

State of Arkansas shall never be made defendant in any of her courts.” Ark. Const. art. 5, §

20. We extend this sovereign immunity to state employees sued in their official capacities.

Banks v. Jones, 2019 Ark. 204, at 3, 575 S.W.3d 111, 114. For the reasons discussed in my

dissent in Thurston v. League of Women Voters of Arkansas, 2022 Ark. 32, at 16, ___ S.W.3d

___, ___, sovereign immunity bars this action against appellants in their official capacities.

Accordingly, I would reverse the injunction and dismiss the action.

Leslie Rutledge, Att’y Gen., by: Kat Hodge, Sr. Att’y Gen., for appellants. 10 Kevin De Liban, Nikki Clark, Jaden Atkins, and Victoria Frazier, Legal Aid of Arkansas,

for appellees.