Gavin Grimm, a transgender boy, commenced this action against the Gloucester County School Board in July 2015, alleging that the School Board's policy of assigning students to restrooms based on their biological sex violated Title IX and the Equal Protection Clause of the Fourteenth Amendment. Shortly thereafter, the district court issued a memorandum opinion and order dated September 17, 2015, (1) dismissing Grimm's claim under Title IX for failure to state a claim, and (2) denying his motion for a preliminary injunction based on alleged violations of Title IX and the Equal Protection Clause. 132 F.Supp.3d 736, 753 (E.D. Va. 2015).
In a decision dated April 19, 2016, we reversed the district court's dismissal of Grimm's Title IX claim, relying on a guidance document issued by the U.S. Department of Education and U.S. Department of Justice. We also remanded the order denying the injunction, finding that the district court had applied the incorrect evidentiary standard in evaluating Grimm's motion for a preliminary injunction. 822 F.3d 709 (4th Cir. 2016). Based on our ruling on Grimm's Title IX claim, the district court issued an order dated June 23, 2016, granting Grimm's motion for a preliminary injunction and requiring the School Board to allow Grimm to use bathrooms designated for males. 2016 WL 3581852 (E.D. Va. June 23, 2016).
The School Board filed a petition for a writ of certiorari to review our April 2016 decision, and the Supreme Court granted the petition. ___ U.S. ___, 137 S.Ct. 369, 196 L.Ed.2d 283 (2016) (mem.).
After the Supreme Court calendared the case for argument, the new Administration issued a guidance document on February 22, 2017, that withdrew the prior Administration's guidance document regarding the treatment of transgender students, and the Court then vacated our April 2016 decision and remanded the case to us "for further consideration in light of the [new] guidance document issued by the Department of Education and Department of Justice." ___ U.S. ___, 137 S.Ct. 1239, 197 L.Ed.2d 460 (2017) (mem.). In turn, we vacated the district court's June 23, 2016 preliminary injunction. 853 F.3d 729 (4th Cir. 2017) (mem.).
Because the Supreme Court vacated our April 2016 decision and we thereafter vacated the district court's June 2016 preliminary injunction, we now have before us on appeal the district court's original memorandum opinion and order dated September 17, 2015.
To account for intervening events from when Grimm first filed his appeal, the parties have submitted supplemental briefs that address several issues that were not before us when we previously heard the case or before the district court when it issued its September 17, 2015 memorandum opinion and order. In its supplemental briefing, the School Board contends that this case has become moot because,
Of course, at any stage of litigation, a federal court must have jurisdiction to resolve the merits of a dispute, as an absence of jurisdiction deprives a court of the power to act. See Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975) ("[A]n actual controversy must be extant at all stages of review, not merely at the time the complaint is filed"); DeFunis v. Odegaard, 416 U.S. 312, 316, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974) ("The inability of the federal judiciary `to review moot cases derives from the requirement of Art. III of the Constitution'" (quoting Liner v. Jafco, Inc., 375 U.S. 301, 306 n.3, 84 S.Ct. 391, 11 L.Ed.2d 347 (1964))). Because our power may be at issue, we are not free simply to avoid the question of whether the case has become moot and proceed to decide the case on the merits. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Jurisdiction, when questioned or when questionable, must always be determined first, as it is "always an antecedent question." Id. at 101, 118 S.Ct. 1003.
Thus, a crucial threshold question arises in this appeal whether "one or both of the parties plainly lack a continuing interest" in the resolution of this case such that it has become moot. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 192, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). While our jurisdiction is thus questioned, the facts on which our jurisdiction could be decided are not in the record before us. Because all of the prior litigation was conducted while Grimm was a student, the parties have presented us with nothing more than unsupported assertions regarding Grimm's continued connection to his high school and the applicability of the School Board's policy. And our own "analysis of these matters... cannot be achieved simply by reviewing the plaintiffs' pleadings and the limited record on appeal." Al Shimari v. CACI Premier Tech., Inc., 758 F.3d 516, 536 (4th Cir. 2014) (remanding to allow for factfinding related to whether the case presented a nonjusticiable political question). Accordingly, we conclude that it is necessary to remand this case to the district court to determine, in the first instance, whether this case has become moot by reason of Grimm's graduation — a resolution that will likely "require factual development of the record by the district court and possibly additional jurisdictional discovery." Id.; see also 28 U.S.C. § 2106.
Accordingly, we remand this to the district court for the limited purpose of resolving,
Entered at the direction of Judge Niemeyer, with the concurrence of Judge Duncan and Judge Floyd.