3.3 Mootness
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./158/ 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, and the burden of demonstrating mootness lies with the defendant./159/ Like standing, mootness implicates the court’s jurisdiction, it can be raised at any time, and any objection cannot be resolved by stipulation./160/ Moreover, counsel for the plaintiff has a duty to bring to the court’s attention facts which may raise an issue of mootness./161/ Advocates can expect to encounter mootness issues in light of the Supreme Court’s recent decision in Buckhannon, because governmental defendants are likely to try to moot out cases in order to avoid paying attorney fees./162/
III.A. Considering Mootness
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./163/ Put differently, the presence of a “collateral” injury is an exception to mootness./164/ 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./165/ 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./166/ For an example of an argument that a pending claim for nominal damages does not moot a claim, see the Documentary Supplement, Document 8, Argument II.A.2. Although later events may moot the claim for injunctive relief, the claim for damages is an opportunity to determine the legality of the conduct at issue./167/ An interest in attorney fees, however, will not save a case involving nothing more from mootness./168/ 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. Past injury has not been remedied. For an example of an argument explaining this point, see the Documentary Supplement, Document 8, Argument II.A.1.
In the absence of a claim for damages, a suggestion of mootness should not trigger a reflexive response in opposition to dismissal./169/ 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./170/ 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?
III.B. Exceptions to Mootness
The Court has considered three principal exceptions to the mootness doctrine.
III.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. The key case here is United States v. W.T. Grant Co./171/ 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.”/172/ Unless the defendant meets that “heavy” burden, the court has the power to hear the case and the discretion to grant injunctive relief./173/
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, 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./174/ 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./175/ 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./176/
Mootness, then, requires a sensitive fact-based prediction of the probability of recurrence, an analysis of the plaintiff’s continued need for relief, the defendant’s representations, 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./177/ At the same time, the plaintiff should be prepared to explain why, as a prudential matter, the court should, despite the defendant’s representations, issue declaratory and injunctive relief./178/ When, as in City of Erie, the claim implicates public rather than private interests, a reduced risk of recurrence is sufficient to avoid mootness./179/
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./180/ However, if the assertion of discontinuance is not complete or permanent, the suggestion of mootness is likely to be denied./181/ Moreover, the defendant who discontinues the challenged conduct while proclaiming its legality is particularly unlikely to succeed in mooting a case./182/
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./183/ 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./184/ For example, in City of Mesquite v. Aladdin’s Castle Inc., 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./185/ 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./186/ For an argument applying this exception to mootness doctrine, see the Documentary Supplement, Document 8, Arguments V and VI.
III.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 the duration of the challenged action is too short to be litigated fully before the cessation or expiration of the challenged conduct, and the plaintiff is reasonably expected to be subject to the same action in the future./187/ This branch of the mootness doctrine frequently overlaps with voluntary cessation. The choice between analysis of discontinuation as voluntary cessation of unlawful conduct or as conduct capable of repetition yet evading review 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./188/
Determining whether this exception applies 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./189/ 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.”/190/
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./191/ 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.”/192/
However, in Honig v. Doe, the Court limited Lyons./193/ 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.”/194/ 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.”/195/ Such a reasonable expectation may be found in the history of the plaintiff’s relationship with the defendant./196/
Actions evade review when they are “too short to be fully litigated prior to cessation or expiration.”/197/ The question is whether the action is inherently of brief duration, not merely of short duration before the court. 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./198/ Advocates are, therefore, advised first to pursue these avenues for relief when appropriate.
The plaintiff must show that he, rather than simply anyone, “ will again be subjected to the alleged illegality.”/199/ Despite this restrictive language, the Court invokes the exception in circumstances in which the probability of recurrence to the plaintiff is not obvious. Litigation involving the regulation of abortion,/200/ elections,/201/ and press access to trials/202/ has proceeded despite claims of mootness without any apparent basis for a finding of probable recurrence./203/ The public importance of the issue may explain the more relaxed approach in these narrow categories of cases./204/ For an example of argument applying the “repetition/review” doctrine, see the Documentary Supplement, Document 8, Argument II.B.
III.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./205/ 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./206/
In Franks v. Bowman Transportation Co., the Court appeared to relax the Sosna rule./207/ There, the named representative of a subclass 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./208/ 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./209/ 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./210/
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 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./211/ 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./212/
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./213/ Moreover, in Deposit Guaranty National Bank v. Roper, 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./214/ 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./215/
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./216/ Yet, there are recognized exceptions to this general principle. Geraghty, for example, 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./217/ 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./218/ The plaintiff should also show reasonable diligence in filing the complaint and seeking class certification./219/ Such diligence may be demonstrated by filing a motion for class certification with the complaint and proceeding with class discovery promptly./220/
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./221/ 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.
158. See Friends of the Earth v. Laidlaw, 528 U.S. 167, 180 (2000).
160. Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.23 (1997) (Clearinghouse No. 52,194).
162. Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t. of Health & Human Res., 532 U.S. 598 (2001) (Clearinghouse No. 53,373), discussed in Chapter 9 of this MANUAL. See also Gill Deford, The Prevailing Winds After Buckhannon, 36 Clearinghouse Rev. 313 (Sept.-Oct. 2002).
163. A case is moot when the court cannot give any “effectual” relief to the party seeking it. Church of Scientology of Cal. 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, 125 S. Ct. 2108, 2110-11 (2005) (death of attorney Johnnie Cochran did not moot injunction enjoining plaintiff from defaming Cochran); Gates v. Towery, 430 F.3d 429 (7th Cir. 2005) (case is not moot simply because defendant tenders all relief that it admits is due).
164. See, e.g., In re Burrell, 415 F.3d 994, 998 (9th Cir. 2005).
165. 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 Co., 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., Fed. Deposit Ins. Corp. v. Kooyomjian, 220 F.3d 10, 14-15 (1st Cir. 2000).
166. One approach to doing so in due process and other cases is to request nominal damages. Carey v Piphus, 435 U.S. 247, 254 (1978). See 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 & Rest. 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 Univ., 416 F.3d 1216, 1222 (10th Cir. 2005) (Establishment Clause claim); Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381, 387 (6th Cir. 2005); (First Amendment claim); Utah Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d 1248, 1257 (10th Cir. 2004) (First Amendment claim).
167. 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. Trotter v. Klincar, 748 F.2d 1177 (7th Cir. 1984). Before embarking on a damage claim of questionable validity, the attorney should consider Federal Rule of Civil Procedure 11. See Chapter 4, Section II, of this Manual.
168. Lewis v. Cont’l Bank Corp., 494 U.S. 472, 480 (1990); Spirit of the Sage Council v. Norton, 411 F.3d 225, 229 (D.C. Cir. 2005).
169. 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); but see Super Tire Eng’g Co. 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 Inc., 398 F.3d 1125, 1129 (9th Cir. 2005).
170. Litigation challenging discontinued practices or policies that continue to produce collateral harm is not moot. See, e.g., Reno v. Bossier Parish Sch. Board, 528 U.S. 320, 327 (2000) (challenge to redistricting plan following election is not moot because prior plan represents a baseline for evaluation of 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 the 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 Eng’g Co. v McCorkle, 416 U.S. 115 (1974) (challenge to rule denying Aid to Families with Dependent Children (AFDC) benefits to strikers not mooted by settlement of strike when rule affects every labor dispute and collective bargaining agreement).
171. United States v. W.T. Grant Co., 345 U.S. 629 (1953).
172. Id. at 633. See also Friends of the Earth, 528 U.S. at 189, 193 (quoting and citing United States v. Concentrate Phosphate Export Ass’n, 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.”); Friends of the Earth v. Laidlaw Envtl. Serv., 528 U.S. 216, 222 (2000) (burden of showing non-recurrence lies with party asserting mootness).
173. A different issue arises when a third party voluntarily discontinues conduct that is the focus of the litigation. In Iron Arrow Honor Soc’y 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.
174. Friends of the Earth, 528 U.S. at 193-94.
175. City of Erie v. Pap’s A.M., 529 U.S. 277, 288 (2000).
176. Cf. City News & Novelty Inc. v. City of Waukesha, 531 U.S. 278 (2001) (unsuccessful challenge to city licensing ordinance is moot when adult-oriented business decides not to renew license).
177. See Wis. Right to Life, Inc. v. Schober, 366 F.3d 485, 492 (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).
178. 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).
179. See also Desiderio v. Nat’l. Ass’n of Sec. Dealers, 191 F.3d 198, 201-02 (2d Cir. 1999).
180. See, e.g., Coal. of Airline Pilots Ass’ns v. FAA, 370 F.3d 1184, 1190 (D.C. Cir. 2004); Comm. 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); see also Saladin v. City of Milledgeville, 812 F.2d 687 (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).
181. County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (“interim relief or events have completely and irrevocably eradicated the effects of the alleged violation”); Demery v. Arpaio, 378 F.3d 1020, 1025-56 (9th Cir. 2004) (sheriff stated intent to again show challenged webcams of jail facility on-line); Radio-Television News Directors Ass’n v. Federal Commc’ns Comm’n, 229 F.3d 269, 270-72 (D.C. Cir. 2000).
182. Sasnett v. Litscher, 197 F.3d 290, 291-92 (7th Cir. 1999); United States v. Laerdal Mfg. Corp., 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).
183. Nat’l Advertising Co. v. City of Miami, 402 F.3d 1329, 1334 (11th Cir. 2005) (zoning ordinance). See Citizens Responsible for Gov’t 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) (AFDC 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 AFDC benefit calculation rendered moot by superseding legislation requiring claimed deductions); Princeton Univ. v Schmid, 455 U.S. 100 (1982) (per curiam) (repeal of university regulations moots challenge to their validity); Wright et al., supra n.177, § 3533.6.
184. 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 (9th Cir. 1999); Amoco Prod. Co. v. Fry, 118 F.3d 812, 815-16 (D.C. Cir. 1997).
185. City of Mesquite v. Aladdin’s Castle Inc., 455 U.S. 283 (1982).
186. See Pederson v. La. State Univ., 213 F.3d 858, 874-75 (5th Cir. 2000); Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1274-75 (9th Cir. 1998); American Iron & Steel Inst. v. Envtl. Prot. Agency, 115 F.3d 979, 1006-7 (D.C. Cir. 1997).
187. Murphy v. Hunt, 455 U.S. 478, 482 (1982).
188. Nonetheless, the Supreme Court found claims not to be moot on these grounds on many occasions. See, e.g., Int’l Org. 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 N. R.R. v. Bhd. of Maint. of Way Employes, 481 U.S. 429, 436 n.4 (1987) (labor dispute); United States v. N.Y. Tel. Co., 434 U.S. 159, 165 n.6 (1977) (challenge to order requiring pen register surveillance).
189. 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 n.177, § 3533.8 at 495 (Supp. 2003), has been repeated in Friends of the Earth, 528 U.S. at 191, and Steel Company, 523 U.S. at 109. Taken literally, the holding may threaten to limit this branch of mootness doctrine.
190. See Buckley v. Archer-Daniels-Midland Co., 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”).
191. City of Los Angeles v. Lyons, 461 U.S. 95 (1983); Buckley, 111 F.3d at 527-28 (“demonstrated possibility” required) (quoting Bd. of Educ. v. Steven L., 89 F.3d 464, 468 (7th Cir. 1996)).
192. 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).
195. Id. at 319 n.6. This does not mean that a showing of theoretical or even possible recurrence is enough to avoid mootness. See Lillbask ex rel. Mauclaire v. Conn. Dep’t of Educ., 397 F.3d 77, 86 (2d Cir. 2005).
196. See Olmstead v. L.C., 527 U.S. 581, 594 n.6 (1999) (Clearinghouse No. 52,203) (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).
197. Spencer v. Kemna, 523 U.S. 1, 17 (1998); see Brock v. Roadway Express Inc., 481 U.S. 252, 258 (1986). The D.C. Circuit held that “orders of less than two years’ duration ordinarily evade review.” Burlington N. R.R. Co. v. Surface Transp. Bd., 75 F.3d 685, 690 (D.C. Cir. 1996); see also Fund for Animals, Inc. v. Hogan, 428 F.3d 1059, 1064 (D.C. Cir. 2005); Pub. Utils. Comm’n of Cal. v. F.E.R.C., 236 F.3d 708, 714 (D.C. Cir. 2001) (holding that orders regarding two-year contracts evaded review for purpose of mootness); Bourgeois v. Peters, 387 F.3d 1303, 1309 (11th Cir. 2004) (one year); Irish Gay & Lesbian Org., 143 F.3d at 648 (a few weeks between denial of march permit and march).
198. See, e.g., Iowa Prot. & Advocacy Servs. v. Tanager, Inc., 427 F.3d 541, 544 (8th Cir. 2005); Minn. Humane Soc’y v. Clark, 184 F.3d 795, 797 (8th Cir. 1999); Freedom Party v. N.Y. State Bd. of Elections, 77 F.3d 660, 662-63 (2d Cir. 1996); United States v. Taylor, 8 F.3d 1074, 1076-77 (6th Cir. 1993).
199. 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. Cmty. Unit. Sch. Dist., 230 F.3d 989 (7th Cir. 2000); Cole v. Oroville Union High Sch. Dist., 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 Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001); Smith v. Hundley, 190 F.3d 852 (8th Cir. 1999); Kerr v. Farrey, 95 F.3d 472, 475-76 (7th Cir. 1996).
200. In Roe v. Wade, 410 U.S. 113 (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.
201. 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 (1983); Moore v. Ogilvie, 394 U.S. 814 (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 (1979); Storer v Brown; 415 U.S. 724 (1974); Brown v. Chote, 411 U.S. 452 (1973); but see Golden v. Zwickler, 394 U.S. 103, 109-10 (1969).
202. E.g., Press-Enter. Co. 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 Co. 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 Inc. v. Virginia, 448 U.S. 555 (1980) (challenge to exclusion from criminal trial not mooted by completion of trial for same reason); Neb. Press Ass’n. v. Stuart, 427 U.S. 539 (1976) (challenge to restrictions on press coverage expiring when jury was empanelled was not moot).
203. A recent interesting example of this proposition is found in U.S. v. Howard, 429 F.3d 843 (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.
204. See Alton & S. Ry. Co. v. Int’l Ass’n of Machinists & Aerospace Workers, 463 F.2d 872, 880 (D.C. Cir. 1972); accord United States v. W.T. Grant Co., 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”).
205. Sosna v. Iowa, 419 U.S. 393 (1975).
206. See also Gerstein v. Pugh, 420 U.S. 103 (1975) (class action challenging state practice of holding criminal defendants accused by information without a probable cause hearing was not moot when the named class representatives were convicted).
207. Franks v. Bowman Transp. Co., 424 U.S. 747 (1976).
209. See Kremens v. Bartley, 431 U.S. 119, 133-37 (1977).
210. Id. at 131-32 (remanding case for substitution of new class representatives).
211. U.S. Parole Comm’n v. Geraghty, 445 U.S. 388 (1980).
212. 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.
214. Deposit Guaranty Nat’l Bank v. Roper, 445 U.S. 326 (1980).
216. Cruz v. Farquarson, 252 F.3d 530, 533 (1st Cir. 2001); Lusardi v. Xerox Corp., 975 F.2d 964, 975 (3rd Cir. 1992).
217. Geraghty, 445 U.S. at 399; 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 & Co., 651 F.2d 1030, 1051 (5th Cir. 1981); Susman v. Lincoln American Corp., 587 F.2d 866, 869-71 (7th Cir. 1978).
218. 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 (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 (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. Univ. of Toledo, 822 F.2d 26 (6th Cir. 1987).
219. See Banks v. Nat’l Collegiate Athletic Ass’n, 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 (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 Assur. Soc’y of the U.S., 227 F.R.D. 60, 63-64 (E.D.N.Y. 2005).
220. See Christiano v. Courts of the Justices of the Peace in and for New Castle County, 115 F.R.D. 240 (D. Del. 1987).
221. Advocates in LSC-funded programs may not file or participate in class action litigation. 45 C.F.R. § 1617.
Updated 2006