Antitrust Law Daily Wrap Up, ANTITRUST—8th Cir.: Sherman Act challenge to Minnesota funding of free nurse training deemed moot on appeal, (Jun 17, 2025)

By Justin Marcus Smith, J.D.

Temporary COVID-19 funding that effectively set up public competitors to private training providers had been depleted with no “reasonable expectation” of recurrence.

Private providers of Certified Nursing Assistant (CNA) training programs could not proceed on appeal of their dismissed Sherman Act complaint against various Minnesota officials, held the United States Court of Appeals for the Eighth Circuit. The court found appellate jurisdiction did not attach because the private training providers’ complaint, which challenged implementation of a 2023 Minnesota appropriations bill on the basis that it violated Section 1 of the Sherman Act, was now moot. Funding the Minnesota legislature had appropriated for public schools to provide free CNA training was depleted with no likelihood of replenishment. That made the case moot. The Eighth Circuit did not reach the merits of the district court decision to dismiss the matter on sovereign immunity grounds (Twin Cities Safety, LLC v. Moe, No. 24-2842 (8th Cir. Jun. 16, 2025)).

Background. Providers of CNA training programs challenged H.F. 2073, a 2023 Minnesota appropriations bill that temporarily funded $3 million in free Minnesota public higher-education school system training for aspiring Certified Nursing Assistants (CNAs). The appropriation of funds for free CNA training appropriation was ostensibly a temporary COVID-19 measure. Private training providers typically charge between $750 and $1,500 per CNA student, but the Minnesota legislature had not appropriated any money for private training providers to enable them to provide free CNA training.

The training providers sued various Minnesota officials seeking injunctive and declaratory relief on the basis that implementation of the appropriations bill violated the Sherman Act. Captioned defendant officials included the Commissioner of the Minnesota Office of Higher Education and each Trustee of the Minnesota State Colleges and Universities system, among others. The training providers alleged that exclusion of private training providers from H.F. 2073 funding caused them to lose students to state-run competitors who could offer free training.

The district court agreed with the defendants that they enjoyed sovereign immunity, but even if that were not so, the training providers failed to plead an effect on interstate commerce sufficient to confer subject matter jurisdiction. The court dismissed the suit accordingly for lack of jurisdiction, and the training providers appealed to the United States Court of Appeals for the Eighth Circuit.

On appeal, the state officer defendants argued the case might be moot because the last of the free training classes began in January 2025.

Case moot. The Eighth circuit held the case was moot. The free training was no longer on offer. Even though the H.F. 2073 appropriation technically extended to June 30, 2025, the Minnesota State website represented that the appropriated funding was depleted, and the program had ended.

The training providers invoked the voluntary cessation exception to mootness, but the Eighth Circuit noted the complaint did not allege that the lawsuit inspired the defendants to halt their funding. Moreover, the voluntary cessation doctrine was inapplicable because any continuation of funding would depend on the legislature passing a new appropriations bill, something completely beyond the defendants’ control.

The Eighth Circuit further analyzed that the training providers failed to show that their harm was capable of repetition evading review. The court reasoned here that H.F. 2073 was a “time-bound appropriation motivated by the COVID-19 pandemic.” Nothing hinted at potential renewal, so the training providers did not have any “reasonable expectation” of recurrence.

The Eighth Circuit vacated and remanded for the district court to dismiss the case. The court explained that was the normal appellate procedure when a civil case becomes moot pending appeal.

The Case is No. 24-2842.

Judge: Per Curiam.

Attorneys: Erick G. Kaardal (Mohrman, Kaardal & Erickson, P.A.) for Twin Cities Safety, LLC. Frank Edward Langan, Attorney General's Office, for Roger Moe.

Companies: Twin Cities Safety, LLC

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