3.3 Mootness

Updated 2016 by Jeffrey S. Gutman

Both the law of standing and the law of mootness derive from Article III’s requirement that the judicial power of the United States extends only to cases and controversies.1 While the law of standing involves whether the plaintiff had suffered or is threatened with injury in fact at the time of the filing of the complaint, the law of mootness inquires whether events subsequent to the filing of suit have eliminated the controversy between the parties. Generally, the burden of showing standing rests with the plaintiff, while the burden of demonstrating mootness lies with the defendant.2 Like standing, because mootness implicates the court’s jurisdiction, it can be raised at any time and cannot be resolved by stipulation.3 Moreover, counsel for the plaintiff has a duty to bring to the court’s attention facts which may raise an issue of mootness.4 Advocates can expect to encounter mootness issues in light of the Supreme Court’s decision in Buckhannon Board and Care Home v. West Virginia Department of Health and Human Resources, because governmental defendants often try to moot out cases in order to avoid paying attorney fees.5

3.3.A. Considering Mootness

Mootness issues can arise in cases in which the plaintiff challenges actions or policies which are temporary in nature, in which factual developments after the suit is filed resolve the harm alleged, and in which claims have been settled.

Generally, a case is not moot so long as the plaintiff continues to have an injury for which the court can award relief, even if entitlement to the primary relief has been mooted and what remains is small.6 Put differently, the presence of a “collateral” injury is an exception to mootness.7 As a result, distinguishing claims for injunctive relief from claims for damages is important. Because damage claims seek compensation for past harm, they cannot become moot.8 Short of paying plaintiff the damages sought, a defendant can do little to moot a damage claim. The virtual impossibility that unpaid damage claims can become moot gives rise to a technique for avoiding mootness: plead a claim for damages if the claim has a reasonable basis.9 Although later events may moot the claim for injunctive relief, the claim for damages presents an opportunity to determine the legality of the conduct at issue.10 An interest in attorney fees, however, will not save a case involving nothing more from mootness.11 Similarly, in considering mootness, it is important to distinguish between claims for different forms of injunctive relief. For example, claims for retroactive injunctive relief are not moot simply because claims for prospective relief are. The past injury has not been remedied.

In the absence of a claim for damages, a suggestion of mootness should not trigger a reflexive response in opposition to dismissal.12 Before investing substantial time and resources in an attempt to resuscitate an apparently moot claim, consider carefully whether any benefit is to be gained. Some cases are truly moot when no present consequences are traceable to the challenged conduct, and, for whatever reason, the conduct is unlikely ever to recur.13 In such cases, resisting dismissal without prejudice on the ground of mootness makes no sense. The suggestion of mootness should be an occasion to reevaluate both the factual and legal merits of a lawsuit. While the natural reaction during litigation is to resist, there are times when it is better to fight another day with a different plaintiff.

If such a fight is appropriate, it will likely be over whether one of the well-established exceptions to mootness applies or how the exception may apply in the class action context. We, therefore, focus upon three issues: When does the voluntary cessation of unlawful conduct render a case moot? When does the termination of an injury “capable of repetition yet evading review” render a case moot? How are mootness principles applied in class actions?

3.3.B. Exceptions to Mootness

The Court has considered three principal exceptions to the mootness doctrine.

3.3.B.1. Voluntary Cessation of Unlawful Conduct

A defendant may not moot a claim for injunctive relief simply by ceasing the unlawful conduct. A contrary rule would encourage the resumption of unlawful conduct following the dismissal of litigation. In United States v. W.T. Grant Company, the Supreme Court held that the voluntary cessation of illegal conduct would moot a case only if the defendant established that “there is no reasonable expectation that the wrong will be repeated.”14 Unless the defendant meets that “heavy” burden, the court has the power to hear the case and the discretion to grant injunctive relief.15

Two recent cases illustrate the relative difficulty in persuading a court to dismiss a case on mootness grounds on the basis of voluntary cessation. In Friends of the Earth v. Laidlaw Environmental Services, the Court held that a claim for civil penalties intended to deter a polluter from exceeding discharge limits in a permit was not necessarily moot, even when the facility at issue had closed, because the defendant retained the permit.16 In City of Erie v. Pop’s A.M., the Court rejected the suggestion of mootness filed by a prevailing plaintiff in a challenge to city restrictions on adult dancing establishments.17 Notwithstanding that the club had closed, the Court noted the city’s continued stake in wishing to enforce the statute enjoined by the lower courts and the possibility that the plaintiff would reopen a new club.18

Mootness, then, requires a sensitive fact-based prediction of the probability of recurrence, an analysis of the plaintiff’s continued need for relief,19 the defendant’s representations of future intent, and the public interest in resolution of the dispute. The burden of demonstrating mootness rests on the defendant, and the essential inquiry is the genuineness of the defendant’s claim of self-correction.20 At the same time, the plaintiff should be prepared to explain why, as a prudential matter, the court should issue declaratory and injunctive relief despite the defendant’s representations.21 When, as in City of Erie, the claim implicates public rather than private interests, a reduced risk of recurrence is sufficient to avoid mootness.22

With respect to suits against governmental entities, mootness issues arise when the relevant agency or official declares in some way that it will no longer follow the challenged policy or when superseding or amending legislation is enacted. Courts generally look favorably on assertions of discontinuance by public officials.23 However, if the assertion of discontinuance is not complete or permanent, the suggestion of mootness is likely to be denied.24 Moreover, the defendant who discontinues the challenged conduct while proclaiming its legality is particularly unlikely to succeed in mooting a case.25

Public officials routinely discontinue challenged conduct in response to changes in legislative and administrative provisions governing that conduct. The voluntary cessation of illegal conduct because of the enactment of superseding or repealing legislation ordinarily moots a claim for injunctive relief unless there is a “substantial likelihood” that the statute will be reenacted.26 There is little risk of recurrence absent further legislation. If, however, the prior statute remains enforceable, challenged implementing regulations remain in effect, or the statutory amendment does not fully resolve the plaintiff’s claim, the case is not moot.27 For example, in City of Mesquite v. Aladdin’s Castle Incorporated, the Court held that repeal of a challenged ordinance did not moot the claim for injunctive relief given the city’s stated intention to reenact the ordinance should the suit be dismissed.28 From an advocacy perspective, establishing the defendant’s belief in the legality of the conduct at issue early in the litigation is, therefore, useful. Probing in discovery facts relevant to the possibility of resumption of the challenged policy is also advisable. Courts frequently reject suggestions of mootness when the defendant fails to offer some assurance that the challenged policy will not be resumed.29

3.3.B.2. Conduct Capable of Repetition Yet Evading Review

Challenges to recurrent conduct of short duration often avoid mootness under the exception for acts “capable of repetition yet evading review.” Conduct is capable of repetition but evading review when (1) the duration of the challenged action is too short to be litigated fully before the cessation or expiration of the challenged conduct, and (2) the plaintiff is reasonably expected to be subject to the same action in the future.30 Determining whether this exception applies therefore requires an assessment of the probability of repetition or recurrence, the risk that repeated harm will be of sufficiently short duration so as to evade review and remedy, and the extent to which repetition may affect the plaintiff.31

This branch of the mootness doctrine frequently overlaps with voluntary cessation. The choice between the two is significant because of the differing burdens. The defendant has the heavy burden of showing that voluntary cessation of unlawful conduct moots a case, while the plaintiff has the burden of showing that conduct is capable of repetition yet evading review.32

First, actions evade review when they are “too short to be fully litigated prior to cessation or expiration.”33 The question is whether the action is inherently of brief duration or whether it can be reviewed in sufficient time for the plaintiff to obtain a meaningful remedy if she prevails.34 Therefore, if circumstances suggest that a possible recurrence of challenged conduct could be litigated should it arise, courts decline to invoke the exception. Such circumstances include the possible use of motions for preliminary injunction, emergency stays, and expedited appeals. Should a plaintiff fail to attempt to avail itself of these procedural opportunities, courts are disinclined to regard the matter as evading review.35 Advocates are, therefore, advised first to pursue these avenues for relief when appropriate.

Second, the Supreme Court has been inconsistent in its treatment of the requirement that the conduct be shown to be capable of repetition; the Court wavered between the more stringent requirement of a “demonstrated probability” and the less stringent requirement of a “reasonable expectation” of repetition.36 In City of Los Angeles v. Lyons, a challenge to a city policy of using choke holds to subdue suspected criminals, the Court held that a generalized showing that conduct might recur was not sufficient to trigger the exception.37 The Court stated that the “doctrine applies only in exceptional situations, and generally only in those cases in which the named plaintiff can make a reasonable showing that he will again be subjected to the alleged illegality.”38

However, in Honig v. Doe, the Court limited Lyons.39 The Court stated that Lyons held only that the Court was “unwilling to assume that the party seeking relief will repeat the type of misconduct that would once again place him or her at risk of that injury.”40 The Court held that a “reasonable expectation” of recurrence was sufficient to overcome a suggestion of mootness: “in numerous cases ... we have found controversies capable of repetition based on expectations that, while reasonable, were hardly demonstrably probable.”41 Such a reasonable expectation may be found in the history of the plaintiff’s relationship with the defendant.42

Third, the plaintiff must show that he, rather than simply anyone, “will again be subjected to the alleged illegality.”43 Despite this restrictive language, the Court has invoked the exception in circumstances in which the probability of recurrence to the plaintiff is not obvious. Litigation involving the regulation of abortion,44 elections,45 and press access to trials46 has proceeded despite claims of mootness without any apparent basis for a finding of probable recurrence.47 The public importance of the issue may explain the more relaxed approach in these narrow categories of cases.48   At the same time, the nature of the recurrent action need not be exactly the same as the first, at least in as-applied election law cases.49

3.3.C. Mootness and Class Actions

Class actions raise the question of whether the claims of the class become moot when the individual claims of the class representatives are moot. In litigation involving recurrent conduct of short duration, pleading a claim as a class action before the conduct terminates may offer a greater likelihood of avoiding mootness. Once certified, the case does not become moot as long as the challenged conduct threatens a member of the class. Thus, class actions shift the mootness inquiry from whether there is a reasonable likelihood that the conduct will again affect the plaintiff to whether there is a reasonable likelihood that the conduct will affect the plaintiff class.

In Sosna v. Iowa, the first significant case dealing with the issue of mootness in class action practice, plaintiff, on behalf of a class, challenged a state requirement that a petitioner for divorce reside in the state for one year prior to filing the petition.50 / By the time the case was argued before the Supreme Court, the year period had ended, the named plaintiff was divorced, and the law would not again affect the plaintiff. The Court, nevertheless, found the case not to be moot because the certified class had acquired a legal status separate from the plaintiff and there were members of the class with live claims. Sosna suggests that this doctrine applies only to cases in which the named plaintiff’s claim was of brief duration and would, therefore, otherwise evade review.

In Franks v. Bowman Transportation Company, the Court appeared to relax the Sosna rule.51 There, the named representative of a sub-class challenging racial discrimination in employment selection was subsequently fired for cause and thus not entitled to relief. He did not, therefore, present a claim capable of repetition, yet evading review. Nonetheless, the Court held that so long as there were members of the certified class with live claims, the case was not moot.52 The Court suggested that the Sosna requirement of claims capable of repetition, yet evading review applies with greater force in constitutional litigation where the Court has a particular duty to avoid unnecessary constitutional adjudication.53 The Court, moreover, has not been inclined to apply Sosna and Franks in cases in which an intervening act, such as passage of corrective legislation, moots the claims not only of the named class representatives, but also of a sizeable number of the class members as well.54

The classes in Sosna and Franks were certified before the question of mootness arose. The rules regarding mootness of uncertified classes is somewhat unsettled and seems to turn on the nature of the interests of the class representatives, the nature of act mooting the class representatives’ claims, and whether the claims are inherently transitory or capable of repetition. In U. S. Parole Commission v. Geraghty, a leading case in this area, the plaintiff sued on behalf of a class challenging parole release guidelines.55 The district court denied certification and entered judgment for the defendants. Although the plaintiff completed his sentence while his appeal was pending, mooting his personal challenge to the guidelines, the Supreme Court held that he could, nevertheless, pursue an appeal from the final judgment on the ground that class certification was wrongly denied.56

Geraghty specifically holds that a putative class action does not necessarily become moot when the claim of the named plaintiff expires after denial of class certification. Rather, the plaintiff in Geraghty retained a personal stake in his asserted right to represent a certified class, a stake sufficient to promote vigorous advocacy.57 Moreover, in Deposit Guaranty National Bank v. Roper, the Court held that the defendant may not moot a proposed class action prior to certification by making a full offer of judgment to the individual plaintiffs and receiving such judgment over the objections of the plaintiffs.58 Plaintiffs retained sufficient interest to appeal the denial of class certification; otherwise, defendants could “pick off” named plaintiffs, thereby defeating the purpose of the class action device.59

In Campbell-Ewald Co. v. Gomez,60 the Supreme Court held that an unaccepted settlement offer or offer of judgment for full individual relief to a proposed class representative of a putative class does not moot the claim. Once ignored or rejected, the offer disappears. The Court's ruling eliminates a defense tactic to putative class actions by trying to cherry-pick the proposed class representatives. The Court, however, did not decide "whether the result would be different if a defendant deposits the full amount of the plaintiff's individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount."61 One can expect the Court to address mootness in that context in the fairly near future.

Outside the appellate context, some courts have blanketly held that mootness of the class representatives’ claims before class certification moots the case because there is no certified class to have an identity apart from the proposed class representatives.62 Yet, there are two recognized exceptions to this general principle.63 First, as described above, the class representative may argue that the challenged conduct is capable of being repeated as to her. Second, she may assert that others will be affected by the inherently transitory conduct. Geraghty recognized that “[s]ome claims are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative’s individual interest expires.” In such cases, certification can relate back to the filing of the complaint.64 To establish that a class should nevertheless be certified, the plaintiff should show that the transitory nature of the claim is such that it will inevitably expire before a class can be certified and that there is a constant group of people affected by the challenged policy.65 The plaintiff should also show reasonable diligence in filing the complaint and seeking class certification.66 Such diligence may be demonstrated by filing a motion for class certification with the complaint and proceeding with class discovery promptly.67

Geraghty is not a foolproof defense to mootness. The Court left district courts with considerable discretion in matters of class certification. Should a trial court dismiss before ruling on certification, Geraghty allows appeal on the question of class certification, not the merits. As a matter of practice, in certain cases the advocate may wish to consider avoiding the mootness issue by moving to amend the complaint to add claims of “live” representative plaintiffs.68 Whether this is possible may turn on the nature and duration of the claim at issue. Doing so requires the advocate to be vigilant in continuing to identify such plaintiffs following the commencement of litigation. Choosing not to name identified class representatives in a complaint in order to hold them in “reserve” for this purpose may raise difficult ethical issues and should not be undertaken without exploration of these issues. In any event, it is wise to move for class certification simultaneously with filing the complaint, or as shortly thereafter as is possible, particularly in cases of inherently short duration.

Updated 2016 by Jeffrey S. Gutman