Updated 2018 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 are moot when the individual claims of the class representatives become 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, the representative on behalf of a certified 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, however, 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. In Gerstein v. Pugh,55 a class action challenging the state practice of holding criminal defendants accused by information in pretrial detention without a probable-cause hearing, the class representatives could have been convicted prior to class certification. The Court still allowed the case to proceed because of the uncertainty that any named plaintiff would be in pretrial detention long enough for the judge to rule on class certification. The Court has characterized Gerstein as “a limited exception to Sosna’s requirement that a named plaintiff with a live claim exist at the time of class certification.”56
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.57 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.58
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.59 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.60 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.61
In Campbell-Ewald Co. v. Gomez,62 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."63 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.64 Yet, there are two recognized exceptions to this general principle.65 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.66 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.67 The plaintiff should also show reasonable diligence in filing the complaint and seeking class certification.68 Such diligence may be demonstrated by filing a motion for class certification with the complaint and proceeding with class discovery promptly.69
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.70 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 2018 by Jeffrey S. Gutman
- 1. See Friends of the Earth v. Laidlaw Environmental Services, Incorporated, 528 U.S. 167, 180 (2000).
- 2. Id. at 190.
- 3. Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.23 (1997).
- 4. Id.
- 5. Buckhannon Board and Care Home, Incorporated v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 608-10 (2001), discussed in Chapter 9 of this MANUAL. See also Gill Deford, The Prevailing Winds After Buckhannon, 36 Clearinghouse Rev. 313 (Sept.-Oct. 2002).
- 6. In Chafin v. Chafin, 133 S. Ct. 1017 (2013), the Supreme Court discussed mootness at length in a complex child abduction case and held that the dispute between the parents was not moot because issues regarding the custody of the child remained unresolved. The Court noted that the prospects of success of the suit were irrelevant to the mootness question, and uncertainty about the effectiveness and enforceability of any future order did not moot the case. Chafin, 133 S. Ct. at 1024-26. A case is moot, however, when the court cannot give any “effectual” relief to the party seeking it. See Knox v. Service Employees International Union, Local 1000, 132 S. Ct. 2277, 2287 (2012); Church of Scientology of California v. United States, 506 U.S. 9, 12 (1992); Firefighter’s Local 1784 v. Stotts, 467 U.S. 561, 571 (1984); see also Tory v. Cochran, 544 U.S. 734, 736-37 (2005) (death of attorney Johnnie Cochran did not moot injunction enjoining plaintiff from defaming Cochran). A case can, of course, become moot when the plaintiff has abandoned their claims, but such abandonment must be unequivocal. Pacific Bell Telephone Company v. Linkline Communications, 555 U.S. 438, 446 (2009).
- 7. See, e.g., In re Burrell, 415 F.3d 994, 998 (9th Cir. 2005).
- 8. Board of Pardons v. Allen, 482 U.S. 369, 370 n.1 (1987), illustrates the use of a damage claim to avoid mootness. Prisoners who were denied parole without a statement of reasons challenged the denial. They claimed that the state statute mandating release under certain circumstances created a liberty interest in eligibility for parole protected by the Fourteenth Amendment. Plaintiffs sought damages as well as declaratory and injunctive relief. Although plaintiffs were later released, mooting their individual claims for injunctive relief, their damage claims remained alive. Because the immunity of defendants was not settled, the Supreme Court reached the merits, holding that plaintiffs had a cognizable liberty interest in the processing of their parole applications. The Court remanded the case for further proceedings. See also City of Richmond v. J.A. Croson Company, 488 U.S. 469, 478 n.l (1989). An inability to pay a damages judgment at present does not moot a claim. See United States v. Behrman, 235 F.3d 1049, 1053 (7th Cir. 2000). However, if the judgment seemingly could never be paid, a claim might be dismissed on prudential grounds. See, e.g., Federal Deposit Insurance Corporation v. Kooyomjian, 220 F.3d 10, 14-15 (1st Cir. 2000).
- 9. See Alvarez v. Smith, 558 U.S. 87, 130 S. Ct. 576, 580 (2009) (finding case seeking declaratory and injunctive relief moot when case was settled, noting that no request for damages was pled in the complaint). One approach to avoiding mootness in due process and other cases is to request nominal damages. Carey v Piphus, 435 U.S. 247, 254 (1978); see Morgan v. Plano Independent School District, 589 F.3d 740, 748 n.31 (5th Cir. 2009) (collecting cases); Bernhardt v. County of Los Angeles, 279 F.3d 862, 872 (9th Cir. 2002) (“A live claim for nominal damages will prevent dismissal for mootness.”); Davis v District of Columbia, 158 F.3d 1342 (D.C. Cir. 1998) (“The violation of certain constitutional rights, characterized by the Supreme Court as ‘absolute,’ will support a claim for nominal damages without any showing of actual injury.”); Hotel and Restaurant Employees Union Local 25 v. Smith, 846 F.2d 1499, 1503 (D.C. Cir. 1988); Beyah v. Coughlin, 789 F.2d 986, 988-89 (2d Cir. 1986); see also O’Connor v. Washburn University, 416 F.3d 1216, 1222 (10th Cir. 2005) (Establishment Clause claim); Blau v. Fort Thomas Public School District, 401 F.3d 381, 387 (6th Cir. 2005); (First Amendment claim); Utah Animal Rights Coalition. v. Salt Lake City Corporation, 371 F.3d 1248, 1257 (10th Cir. 2004) (First Amendment claim). But see Lister v. Lucey, 575 F.2d 1325, 1336 (7th Cir. 1978).
- 10. The use of damage claims to avoid mootness has limits. States and their agencies are immune under the Eleventh Amendment; those who act in a judicial capacity enjoy absolute immunity, and other officials enjoy qualified immunity. See Chapter 8 of this MANUAL. The assertion of a damage claim against a defendant who clearly enjoys immunity does not save a claim for injunctive relief from mootness. See Dean v. Blumenthal, 577 F.3d 60 (2d Cir. 2009). Before embarking on a damage claim of questionable validity, the attorney should consider Federal Rule of Civil Procedure 11. See Chapter 4.2 of this MANUAL.
- 11. See Lewis v. Continental Bank Corporation, 494 U.S. 472, 480 (1990); Cornucopia Institute v. U.S. Department of Agriculture, 560 F.3d 673, 676 (7th Cir. 2009); Spirit of the Sage Council v. Norton, 411 F.3d 225, 229 (D.C. Cir. 2005).
- 12. A request for a declaratory judgment does not alone save a case from mootness when claims for injunctive relief are moot. Green v. Mansour, 474 U.S. 64, 67-72 (1985); Cornucopia Institute, 560 F.3d at 676 (finding request for declaratory relief moot when documents sought under the Freedom of Information Act were released); but see Super Tire Engineering Company v. McCorkle, 416 U.S. 115, 122-23 (1974) (finding request for declaratory judgment in labor case not moot after the end of strike mooted claim for injunctive relief). Generally, the mootness inquiry is not diminished in declaratory judgment actions. Gator.com Corp. v. L.L. Bean Incorporated, 398 F.3d 1125, 1129 (9th Cir. 2005).
- 13. Litigation challenging discontinued practices or policies that continue to produce collateral harm is not moot. See, e.g., Reno v. Bossier Parish School Board, 528 U.S. 320, 327 (2000) (challenge to redistricting plan following election is not moot because prior plan represents baseline for evaluating future challenges); Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 568-72 (1984) (city’s challenge to injunction prohibiting layoffs based on seniority system not mooted by recall of laid-off employees when injunction would require city to ignore seniority rights in future layoffs and would affect its ability to recruit new employees by precluding it from offering protection of layoff by seniority); Jago v. Van Curen, 454 U.S. 14, 21 n.3 (1981) (challenge to procedures leading to rescission of forthcoming parole not mooted by later release on parole when later release subject to restrictions not contemplated by original grant of parole); Youakim v. Miller, 425 U.S. 231, 236 n.2 (1976) (challenge to reduction in benefits for foster children related to foster parents not mooted by increase in benefits when effect is to discourage acceptance of other family members awaiting placement); Super Tire Engineering Company v McCorkle, 416 U.S. 115, 127 (1974) (challenge to rule denying Aid to Families with Dependent Children benefits to strikers not mooted by settlement of strike when rule affects every labor dispute and collective bargaining agreement).
- 14. United States v. W.T. Grant Company, 345 U.S. 629, 633 (1953); see also Friends of the Earth v. Laidlaw Environmental Services, Incorporated, 528 U.S. 167, 189, 193 (2000) (quoting and citing United States v. Concentrate Phosphate Export Association, 393 U.S. 199, 203 (1968)) (“A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”); Adarand Constructors v. Slater, 528 U.S. 216, 222 (2000) (burden of showing non-recurrence lies with party asserting mootness).
- 15. A different issue arises when a third party voluntarily discontinues conduct that is the focus of the litigation. In Iron Arrow Honor Society v. Heckler, 464 U.S. 67 (1983), the secretary of the U.S. Department of Health, Education, and Welfare informed the University of Miami that the university had violated Title IX by permitting a student organization that barred women from membership to conduct its initiation ceremony on campus. The organization sued the secretary to enjoin further enforcement of the interpretation of Title IX. During the litigation, the university informed the organization that, irrespective of the outcome of the litigation, the organization would not be permitted to return to campus until the organization stopped discriminating. Because the university’s action effectively superseded the secretary’s action, the Supreme Court held the challenge to the secretary’s interpretation of Title IX moot, reasoning that the interpretation no longer could affect the organization. The Court did not decide whether the W.T. Grant standard applied to the voluntary acts of third parties; the Court reasoned that, even if it did, the public statement of the university president banning the organization from campus established that the controversy between the organization and the Department of Health, Education, and Welfare was unlikely ever to recur.
- 16. Friends of the Earth, 528 U.S. at 193-94.
- 17. City of Erie v. Pap’s A.M., 529 U.S. 277, 287-88 (2000).
- 18. Compare City News and Novelty Incorporated v. City of Waukesha, 531 U.S. 278, 284 (2001) (unsuccessful challenge to city licensing ordinance is moot when adult-oriented business decided not to renew license).
- 19. For a recent case touching on this factor, see Camreta v. Greene, 131 S. Ct. 2020, 2033-35 (2011).
- 20. Compare Sheely v. MRI Radiology Network, 505 F.3d 1173, 1187 (11th Cir. 2007) (defendant's failure to admit to wrongdoing suggests that cessation was driven by desire to avoid liability) and DeJohn v. Temple University, 537 F.3d 301, 309 (3rd Cir. 2008) (challenge to sexual harassment policy not moot when policy changed well into litigation and university continued to defend it) with Larsen v. U. S. Navy, 525 F.3d 1, 4 (D.C. Cir. 2008) (challenge to quota policy for chaplains moot when plaintiffs did not allege that replaced policy would be reinstated) and Wisconsin Right to Life, Incorporated v. Schober, 366 F.3d 485, 491-92 (7th Cir. 2004) (accepting assertions of state election board that it would not enforce a campaign finance law found unconstitutional, but not struck from the state code); 13A Charles A. Wright et al., Federal Practice and Procedure § 3533.7 at 353 (2d ed. 1984).
- 21. See Wernsing v. Thompson, 423 F.3d 732, 745 (7th Cir. 2005) (plaintiff did not show need for injunctive relief against prior restraint policy when new supervisor disclaimed the policy as only that of her predecessor), cert. denied, 547 U.S. 1004 (2006).
- 22. See United States v. W.T. Grant Company, 345 U.S. 629, 632 (1953); Desiderio v. National Association of Securities Dealers, 191 F.3d 198, 201-02 (2d Cir. 1999).
- 23. See, e.g., Coalition of Airline Pilots Associations v. Federal Aviation Administration, 370 F.3d 1184, 1190 (D.C. Cir. 2004); Committee in Solidarity with People of El Salvador v. Sessions, 929 F.2d 742, 744-45 (D.C. Cir. 1991); Mosley v. Hairston, 920 F.2d 409, 419 (6th Cir. 1990); Saladin v. City of Milledgeville, 812 F.2d 687, 691 (11th Cir. 1987) (removal of city seal containing the word Christianity from water tanks, vehicles, and uniforms and promise not to display it in the future moot challenge to display).
- 24. County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (“[i]nterim relief or events have completely and irrevocably eradicated the effects of the alleged violation.”); Demery v. Arpaio, 378 F.3d 1020, 1025-26 (9th Cir. 2004) (sheriff stated intent to again show challenged webcams of jail facility on-line); Radio-Television News Directors Association v. Federal Communications Commission, 229 F.3d 269, 270-72 (D.C. Cir. 2000).
- 25. Knox v. Service Employees International Union, Local 1000, 132 S. Ct 2277, 2287 (2012); Sasnett v. Litscher, 197 F.3d 290, 291-92 (7th Cir. 1999); United States v. Laerdal Manufacturing Corporation, 73 F.3d 852, 856 (9th Cir. 1995); Donovan v. Cunningham, 716 F.2d 1455, 1461-62 (5th Cir. 1983). See Walling v. Helmerich, 323 U.S. 37, 43 (1944).
- 26. National Advertising Company v. City of Miami, 402 F.3d 1329, 1334 (11th Cir. 2005) (zoning ordinance); see Citizens for Responsible Government State Political Action Committee v. Davidson, 236 F.3d 1174, 1181-84 (10th Cir. 2000) (election law); Mosley v. Hairston, 920 F.2d 409, 413-15 (6th Cir. 1990) (Aid to Families with Dependent Children statute); Fraternal Order of Police Lodge 121 v. City of Hobart, 864 F.2d 551, 553 (7th Cir. 1988) (wage and hour statute); see also Green v. Mansour, 474 U.S. 67-72 (1986) (prospective challenge to Aid to Families with Dependent Children benefit calculation rendered moot by superseding legislation requiring claimed deductions); Princeton University v Schmid, 455 U.S. 100 (1982) (per curiam) (repeal of university regulations moots challenge to their validity); Wright et al., supra note 207, § 3533.6.
- 27. See Allee v. Medrano, 416 U.S. 802 (1974) (superseding legislation mooted challenge to prior legislation except to extent that pending criminal prosecutions subject to injunction for bad-faith prosecution remain); Washington v. Daley, 173 F.3d 1158, 1164-65 (9th Cir. 1999); Amoco Production Company v. Fry, 118 F.3d 812, 815-16 (D.C. Cir. 1997).
- 28. City of Mesquite v. Aladdin’s Castle Incorporated, 455 U.S. 283, 288-89 (1982).
- 29. See Pederson v. Louisiana State University, 213 F.3d 858, 874-75 (5th Cir. 2000); Norman-Bloodsaw v. Lawrence Berkeley Laboratories, 135 F.3d 1260, 1274-75 (9th Cir. 1998); American Iron and Steel Institute v. Environmental Protection Agency, 115 F.3d 979, 1006-07 (D.C. Cir. 1997).
- 30. Spencer v. Kemna, 523 U.S. 1, 17 (1996); Murphy v. Hunt, 455 U.S. 478, 482 (1982).
- 31. The Supreme Court in Renne v. Geary, 501 U.S. 312, 320 (1991), also suggested that the capable-of-repetition doctrine “will not revive a dispute which became moot before the action commenced.” The decision, criticized in Wright et al., supra note 207, § 3533.8 at 495 (Supp. 2003), has been repeated in Friends of the Earth v. Laidlaw Environmental Services, Incorporated, 528 U.S. 167, 191 (2000) and Steel Company v. Citizens for a Better Environment, 523 U.S. 83, 109 (1998). Taken literally, the holding may threaten to limit this branch of mootness doctrine.
- 32. Nonetheless, the Supreme Court found claims not to be moot on these grounds on many occasions. See, e.g., International Organization of Masters v. Brown, 498 U.S. 466, 472-73 (1991) (challenge to union election rule); Meyer v. Grant, 486 U.S. 414, 417 n.2 (1988) (challenge to state law on electoral initiatives); Honig v. Doe, 484 U.S. 305, 317-18 (1988) (claim under Education for the Handicapped Act); Burlington Northern Railroad Company v. Brotherhood of Maintenance of Way Employes, 481 U.S. 429, 436 n.4 (1987) (labor dispute); United States v. New York Telephone Company, 434 U.S. 159, 165 n.6 (1977) (challenge to order requiring pen register surveillance).
- 33. The most recent case on point is Kingdomware Technologies, Inc. v. United States, 136 S. Ct. 1969, 1976 (2016), in which the Court held that two-year procurement contracts are too short to permit judicial review of challenges by unsuccessful bidders and thus evade review. See Turner v. Rogers, 131 S. Ct. 2507 (2011) (Court held that post-release challenge to state's failure to provide non-custodial parent counsel in civil contempt proceeding at which he was sentenced for one year was not moot because one year was too short to litigate question and because he was likely subject to same proceeding because he remained in arrears). See also Spencer v. Kemna, 523 U.S. 1, 17 (1998); Brock v. Roadway Express Inc., 481 U.S. 252, 258 (1987); but see Azar v. Garza, 138 S.Ct. 1790 (2018) (putative class action filed by minor plaintiff against government policy on providing unaccompanied minors access to abortion services moot after plaintiff obtained abortion).
- 34. See Davis v. Federal Energy Commission, 554 U.S. 724, 735 (2008); Del Monte Fresh Produce Company v. United States, 570 F.3d 316, 321-22 (D.C. Cir. 2009).
- 35. See, e.g., Armstrong v. Federal Aviation Administration, 515 F.3d 1294, 1297 (D.C. Cir. 2008); Iowa Protection and Advocacy Services. v. Tanager, Incorporated, 427 F.3d 541, 544 (8th Cir. 2005); Minnesota Humane Society v. Clark, 184 F.3d 795, 797 (8th Cir. 1999); Freedom Party v. New York State Board of Elections, 77 F.3d 660, 662-63 (2d Cir. 1996); United States v. Taylor, 8 F.3d 1074, 1076-77 (6th Cir. 1993).
- 36. Federal Energy Commission v. Wisconsin Right to Life, 551 U.S. 449, 463 (2007) (referring to both formulations); see Buckley v. Archer-Daniels-Midland Company, 111 F.3d 524, 527-28 (7th Cir. 1997) (applying various standards of the possibility of recurrence, such as “reasonable expectation,” “demonstrated probability,” and not “highly unlikely”).
- 37. City of Los Angeles v. Lyons, 461 U.S. 95 (1983); Buckley, 111 F.3d at 527-28 (“demonstrated possibility” required) (quoting Board of Education v. Steven L., 89 F.3d 464, 468 (7th Cir. 1996)).
- 38. Lyons, 461 U.S. at 109; see also Murphy v. Hunt, 455 U.S. 478, 482 (1982) (per curiam) (challenge to state constitutional provision denying pretrial release in sexual assault case mooted by conviction; no probability that plaintiff will again be arrested and detained pending trial); Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam) (challenge to procedures governing release on parole mooted by unconditional release; no probability that plaintiff will again be affected by procedures).
- 39. Honig v. Doe, 484 U.S. 305, 305 (1988).
- 40. Id. at 320. See United States v. Sanchez-Gomez, 138 S.Ct. 1532, 1541-1542 (2018) (rejecting possibility of future illegal border crossings as basis for facing recurrent full-restraint policy when appearing in court).
- 41. Id. at 319 n.6. In Kingdomware, the plaintiff's "reasonable likelihood" of being awarded future government contracts if its interpretation of particular procurement statute prevails was sufficient to establish that the dispute was capable of repetition. Kingdomware, 136 S. Ct. at 1976. See Alvarez v. Smith, 130 S. Ct. 576, 581 (2009) (that plaintiffs will "likely" not be subject to challenged state procedures again moots challenge to them).
- 42. See Olmstead v. L.C., 527 U.S. 581, 594 n.6 (1999) (action to require treatment for disabilities not moot even after plaintiffs were placed in requested programs because they had many institutional placements in the past).
- 43. Lyons, 461 U.S. at 107-8; DeFunis v. Odegaard, 416 U.S. 312, 318-19 (1974). Typical examples are when a student or youth challenges a policy but later graduates or matures to adulthood before resolution of the case. See Stotts v. Community Unit School District 1, 230 F.3d 989, 990-91 (7th Cir. 2000); Cole v. Oroville Union High School District, 228 F.3d 1092, 1098 (9th Cir. 2000). Cases seeking equitable relief involving prison conditions brought by inmates who are transferred or released are commonly moot for the same reason. See Rendelman v. Rouse, 569 F.3d 182, 186 (4th Cir. 2009); Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001); Smith v. Hundley, 190 F.3d 852, 855-56 (8th Cir. 1999); Kerr v. Farrey, 95 F.3d 472, 475-76 (7th Cir. 1996).
- 44. In Roe v. Wade, 410 U.S. 113, 124 (1973), the Supreme Court held that the conclusion of a pregnancy did not moot a challenge to a statute prohibiting abortions without any showing that the plaintiff was likely to suffer another unwanted pregnancy.
- 45. Litigation brought by candidates challenging ballot access restrictions does not become moot when the election is complete. Norman v. Reed, 502 U.S. 279, 288 (1992); Anderson v. Celebrezze, 460 U.S. 780, 784 n.3 (1983); Moore v. Ogilvie, 394 U.S. 814, 816 (1969). The Supreme Court shows no interest in the question of whether the affected candidate is likely to run for election again. See also Mandel v. Bradley, 432 U.S. 173, 175 n.1 (1977); Storer v Brown; 415 U.S. 724, 737 n.8 (1974); Brown v. Chote, 411 U.S. 452 (1973). But see Golden v. Zwickler, 394 U.S. 103, 109-10 (1969).
- 46. E.g., Press-Enterprise Company v. Superior Court, 478 U.S. 1, 6-7 (1986) (challenge to denial of access to pretrial hearing not mooted by release of transcript because plaintiff could be assumed to be subject again to exclusion from hearings); Globe Newspaper Company v. Superior Court, 457 U.S. 596, 602 (1982) (challenge to exclusion from portions of criminal trial involving testimony by minor who claimed to be victim of sexual battery not mooted by completion of trial for same reason); Richmond Newspapers Incorporated v. Virginia, 448 U.S. 555, 563 (1980) (challenge to exclusion from criminal trial not mooted by completion of trial for same reason); Nebraska Press Association v. Stuart, 427 U.S. 539, 546 (1976) (challenge to restrictions on press coverage expiring when jury was empanelled was not moot).
- 47. A recent interesting example of this proposition is found in United States v. Howard, 429 F.3d 843, 848 (9th Cir. 2005). There, the court found a challenge to a policy of shackling pre-trial detainees for initial appearances was not moot after the plaintiffs had made their appearances, even though it was unknown whether the particular plaintiffs would again be arrested, because they challenged an on-going government policy.
- 48. See Alton and Southern Railway Company v. International Machinists and Aerospace Workers, 463 F.2d 872, 880 (D.C. Cir. 1972); accord United States v. W.T. Grant Company, 345 U.S. 629, 632 (1953) (repetition or review element, “together with a public interest in having the legality of the practices settled, militates against a mootness conclusion”).
- 49. Federal Energy Commission v. Wisconsin Right to Life, Incorporated, 551 U.S. 449, 463-64 (2007). See Del Monte Fresh Produce Company v. United States, 570 F.3d 316, 324 (D.C. Cir. 2009) (the mootness question is not whether the precise facts will recur, but whether the legal wrong is likely to recur).
- 50. Sosna v. Iowa, 419 U.S. 393, 402-03 (1975).
- 51. Franks v. Bowman Transportation Company, 424 U.S. 747 (1976).
- 52. Id. at 755-57.
- 53. See Kremens v. Bartley, 431 U.S. 119, 133-37 (1977).
- 54. Id. at 131-32 (remanding case for substitution of new class representatives).
- 55. Gerstein v. Pugh, 420 U.S. 103, 111 n.11 (1975).
- 56. United States v. Sanchez-Gomez, 138 S.Ct. 1532, 1539 (2018) (“The exception applies when the pace of litigation and the inherently transitory nature of the claims at issue conspire to make that requirement difficult to fulfill.”). In Sanchez-Gomez, the Court held that the Gerstein principle does not extend to non-class cases even if the relief sought, here the placing of defendants in full restraints as a matter of policy in a particular federal court, may benefit other criminal defendants. Similarly, the Supreme Court discussed mootness outside the Rule 23 context in Genesis Healthcare Corporation v. Symczyk, 133 S. Ct. 1523 (2013), a Fair Labor Standards Act collective action. There, the Court assumed that an unaccepted offer of judgment for complete relief under Rule 68 mooted plaintiff's claim. Given that assumption, later rejected in Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016), the Court found a collective action moot when the plaintiff, unjoined by any opt-ins, received an offer of judgment for full relief before moving for conditional certification. The Court stated that collective actions under the Fair Labor Standards Act are "fundamentally different" from Rule 23 class actions. Symczyk, 133 S. Ct. at 1529.
- 57. U.S. Parole Commission v. Geraghty, 445 U.S. 388, 398-9 (1980).
- 58. Although Geraghty was allowed to challenge the denial of class certification on appeal, he was not allowed to litigate the merits until a class was properly certified. The Supreme Court noted that should an appellate court affirm denial of class certification, it would necessarily also affirm dismissal on the ground of mootness. Because the court of appeals had ruled that the class should have been certified, the Supreme Court remanded Geraghty to the district court for consideration of whether Geraghty should represent the class or whether another class representative should be appointed.
- 59. Geraghty, 445 U.S. at 403-04.
- 60. Deposit Guaranty National Bank v. Roper, 445 U.S. 326 (1980).
- 61. Deposit Guaranty National Bank, 445 U.S. at 339.
- 62. 136 S. Ct. 663 (2016).
- 63. Id. at 672.
- 64. See Cruz v. Farquharson, 252 F.3d 530, 533 (1st Cir. 2001); Lusardi v. Xerox Corporation, 975 F.2d 964, 975 (3rd Cir. 1992).
- 65. For recent cases describing the two exceptions, see Olson v. Brown, 594 F.3d. 577 (7th Cir. 2010); Clark v. State Farm Mutual Automobile Insurance Company, 590 F.3d 1134, 1139 (10th Cir. 2009).
- 66. U.S. Parole Commission v. Geraghty, 445 U.S. 388, 399 (1980); see also County of Riverside v. McLaughlin, 500 U.S. 44, 50 (1991). Even the pendency of a motion for class certification in a non-transitory case has been held to save a claim from mootness. See Zeidman v. J. Ray McDermott and Company, 651 F.2d 1030, 1051 (5th Cir. 1981); Susman v. Lincoln American Corporation, 587 F.2d 866, 869-71 (7th Cir. 1978).
- 67. See County of Riverside, 500 U.S. at 51-52 (1991) (“That the class was not certified until after the named plaintiffs’ claims had become moot does not deprive us of jurisdiction.... In such cases, the 'relation back' doctrine is properly invoked to preserve the merits of the case for judicial determination.”); Wade v. Kirkland, 118 F.3d 667, 669-70 (9th Cir. 1997); Robidoux v. Celani, 987 F.2d 931, 938-39 (2d Cir. 1993) (class action challenging delays in processing welfare applications; such delays are inherently transitory); Basel v. Knebel, 551 F.2d 395, 396 n.1 (D.C. Cir. 1977). For cases in which plaintiffs did not establish this, see Cruz, 252 F.3d at 534-34; Egan v Davis, 118 F.3d 1148, 1149-51 (7th Cir. 1997); Rocky v. King, 900 F.2d 864, 767-71 (5th Cir. 1990); Ahmed v. University of Toledo, 822 F.2d 26, 27-28 (6th Cir. 1987).
- 68. See Banks v. National Collegiate Athletic Association, 977 F.2d 1081, 1085-86 (7th Cir. 1992), cert. denied, 508 U.S. 908 (1993); see also Holstein v. City of Chicago, 29 F.3d 1145, 1147 (7th Cir. 1994) (claim found moot, noting that no class certification motion had been filed); Brunet v. City of Columbus, 1 F.3d 390, 400 (6th Cir. 1993) (same). In Weiss v. Regal Collections, 385 F.3d 337, 342-49 (3d Cir. 2003), the court interestingly found, in the Rule 68 context, that plaintiff’s claim was not moot even though he had not yet filed a motion for class certification, because there was no apparent delay in his not doing so. See also Eckert v. Equitable Life Assurance Society, 227 F.R.D. 60, 63-64 (E.D.N.Y. 2005).
- 69. See Christiano v. Courts of the Justices of the Peace, 115 F.R.D. 240, 244-47 (D. Del. 1987).
- 70. Advocates in LSC-funded programs may not file or participate in class action litigation. 45 C.F.R. § 1617.