Modern Mootness Doctrine: General Criteria of Mootness

Article III, Section 2, Clause 1:

The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Under current law, “a case is moot when the issues presented are no longer 'live' or the parties lack a cognizable interest in the outcome.” 1 “[A]n actual controversy must exist not only at the time the complaint is filed, but through all stages of the litigation.” 2 ). See also, e.g., Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 609 (2013) ( “It is a basic principle of Article III that a justiciable case or controversy must remain extant at all stages of review, not merely at the time the complaint is filed.” ) (quoting Juvenile Male, 564 U.S. at 936); Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477–78 (1990) ( “To sustain our jurisdiction . . . it is not enough that a dispute was very much alive when suit was filed, or when review was obtained in the Court of Appeals.” ); Honig v. Doe, 484 U.S. 305, 317 (1988) ( “That the dispute between parties was very much alive when suit was filed . . . cannot substitute for the actual case or controversy that an exercise of this Court's jurisdiction requires.” ); Burke v. Barnes, 479 U.S. 361, 363 (1987) ( “Article III of the Constitution requires that there be a live case or controversy at the time that a federal court decides the case; it is not enough that there may have been a live case or controversy when the case was decided by the court whose judgment we are reviewing.” ). Thus, “[i]f an intervening circumstance deprives the plaintiff of a 'personal stake in the outcome of the lawsuit[]' at any point during litigation, the action can no longer proceed and must be dismissed as moot.” 3 “A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” 4 (quoting City of Erie, 529 U.S. at 287) (internal quotation marks omitted). See also, e.g., Mission Prod. Holdings, Inc. v. Tempnology, LLC, 139 S. Ct. 1652, 1660 (2019) (same); Campbell-Ewald, 577 U.S. at 161 (same); Decker, 568 U.S. at 609 (same); Chafin, 568 U.S. at 172 (same). When (1) “it can be said with assurance that there is no reasonable expectation that the alleged violation will recur;” and (2) “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation,” then “the case is moot because neither party has a legally cognizable interest in the final determination of the underlying questions of fact and law.” 5

Significantly, however, a case does not necessarily become moot simply because intervening events make it impossible for a federal court to issue the exact form of relief that the plaintiff requests.6 As long as the court retains the ability to “fashion some form of meaningful relief, “then that” is sufficient to prevent th[e] case from being moot.” 7 To illustrate, “[i]f there is any chance of money changing hands” as a result of the lawsuit, then the “suit remains live.” 8 Similarly, even if it is uncertain that the relief granted by the court will ultimately have any meaningful practical impact on the plaintiff, that does not itself render the case moot.9

Intervening circumstances that may render a case moot can result either from actions attributable to the litigants or from outside forces. For example, in the City News & Novelty, Inc. v. City of Waukesha case discussed in greater detail below, the Court ruled that an adult business's challenge to a municipality's decision to deny the business's license became moot after the business chose to cease operations while the case was pending on appeal.10 A lawsuit predicated upon a federal statute may also become moot if Congress amends the statute while the suit remains pending.11 A case may also become moot merely through the passage of time; for instance, the Court ruled in Camreta v. Greene that a child's constitutional challenge to an elementary school's methods of interviewing its students became moot after “the child [grew] up and moved across the country” and thus would “never again be subject to the . . . in-school interviewing practices whose constitutionality [wa]s at issue.” 12

The Court's 1974 opinion in DeFunis v. Odegaard illustrates how the aforementioned legal principles apply in practice.13 The petitioner in DeFunis applied for admission at a public law school.14 After the school rejected his application, the petitioner filed suit, “contending that the procedures and criteria employed by the Law School Admissions Committee invidiously discriminated against him on account of his race.” 15 The trial court agreed and ordered the law school to admit the petitioner.16 The petitioner accordingly started taking classes at the law school while the case was on appeal.17 By the time the case reached the Supreme Court, the petitioner had almost completed his law degree,18 such that the petitioner stood to “receive his diploma regardless of any decision th[e] Court might reach on the merits of [h]is case.” 19 Because the petitioner would “complete his law school studies at the end of the term . . . regardless of any decision th[e] Court might reach on the merits,” the Court concluded that the case was moot.20

Because federal courts lack jurisdiction to adjudicate moot cases, a federal court can—and indeed must—dismiss a moot case even if none of the parties ask the court to do so.21 Moreover, because mootness deprives the courts of jurisdiction to hear a case, the Supreme Court has stated that litigants have “a 'continuing duty to inform the Court'” of intervening events that could potentially render a case moot.22 “The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated.” 23 As a result, a party may raise a mootness challenge at any time during the litigation, including for the first time on appeal.24 (explaining that mootness is a “jurisdictional issue[] that may be raised at any time, even for the first time on appeal” ); Cont'l Cas. Co. v. Anderson Excavating & Wrecking Co., 189 F.3d 512, 518 (7th Cir. 1999) ( “A case can become moot at any time, and destroy the court's jurisdiction.” ); Smith v. United States, 921 F.2d 136, 138 (8th Cir. 1990) ( “Mootness goes to the very heart of Article III jurisdiction, and any party can raise it at any time.” ). “[A]n appeal should therefore be dismissed as moot when, by virtue of an intervening event, a court of appeals cannot grant 'any effectual relief whatever' in favor of the appellant.” 25 “If a party to an appeal suggests that the controversy has, since the rendering of judgment below, become moot, that party bears the burden of coming forward with subsequent events that have produced that alleged result.” 26

The Supreme Court has developed several doctrines that govern how courts should dispose of cases that become moot during the pendency of an appeal.27 When reviewing a lower court's judgment, an appellate court has several potential options for resolving the case: it may affirm—that is, approve—the judgment;28 it may reverse—that is, overturn—the judgment;29 it may vacate the judgment—that is, nullify the judgment30 and thereby “strip[] the decision below of its binding effect;” 31 or it may remand the case to the lower court for further proceedings.32 As the Court explained in its 1950 opinion in United States v. Munsingwear, Inc., “[t]he established practice of the Court in dealing with a civil case from a court in the federal system which has become moot” on appeal or before the Court has issued its “decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss.” 33 (analyzing the Munsingwear rule); U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18, 22 (1994) (describing Munsingwear as “[t]he leading case on vacatur” ); Great W. Sugar Co. v. Nelson, 442 U.S. 92, 93 n.* (1979) (per curiam) ( “United States v. Munsingwear, Inc., is perhaps the leading case on the proper disposition of cases that become moot on appeal.” ). Disposing of a moot case in this manner thereby “clears the path for future relitigation of the issues between the parties and eliminates a judgment, review of which was prevented through happenstance.” 34 Put another way, the Munsingwear procedure for disposing of cases that become moot on appeal “prevent[s] a judgment, unreviewable because of mootness, from spawning any legal consequences,” and thereby ensures that the federal appellate courts, rather than individual litigants, have the last word on the answers to legal questions.35

The Supreme Court has noted, however, “the decision whether to vacate” a moot case pursuant to Munsingwear “turns on 'the conditions and circumstances of the particular case.'” 36 To that end, the Supreme Court has crafted several exceptions to the Munsingwear rule.37 For one, the Supreme Court has specified that “vacatur is in order” under Munsingwear only when mootness occurs through “happenstance” —that is, “circumstances not attributable to the parties” —or “the 'unilateral action of the party who prevailed in the lower court.'” 38 Thus, if a case becomes moot as a result of the parties' mutual agreement to settle the case, the Court has held that federal courts should generally not vacate the judgment.39 (analyzing the interplay between Munsingwear and U.S. Bancorp). The Court has justified this exception by explaining that “where mootness results from settlement . . . the losing party has voluntarily forfeited his legal remedy by the ordinary processes of appeal or certiorari, thereby surrendering his claim to the . . . remedy of vacatur.” 40 Such cases are therefore “not unreviewable, but simply unreviewed” as a result of the losing party's “own choice.” 41 Likewise, the Court has ruled that it is inappropriate to “clear[] the path for future relitigation of the issues between the parties” 42 when the plaintiff renders the case moot by voluntarily agreeing to permanently withdraw its claims against the defendant.43 In such instances, rather than wiping the slate clean in the manner contemplated by Munsingwear, the Court has ordered that the case be dismissed with prejudice to refiling so that “it cannot be resumed in this or any subsequent action.” 44 Dismissing the case with prejudice thereby “prevent[s] the regeneration of the controversy” if the plaintiff later changes its mind and attempts to relitigate the dismissed claims in federal court.45

Nor does the Court follow its usual practice of vacating the judgment with directions to dismiss when a case has become moot due to an intervening change in the governing law.46 Instead, the Court ordinarily “remand[s] for further proceedings in which the parties may, if necessary, amend their pleadings or develop the record more fully” to respond to the intervening change in law.47 For instance, in Diffenderfer v. Central Baptist Church of Miami, Florida, Inc., the plaintiff challenged a Florida statute as unconstitutional.48 While the litigation was pending, however, the Florida legislature repealed the challenged statute and enacted a new statute in its place.49 “[R]ather than remanding the case to the District Court for dismissal” in the manner contemplated by Munsingwear, the Supreme Court “remand[ed] the case to the District Court with leave to the appellants to amend their pleadings.” 50 Resolving the case in this way thereby afforded the appellants an opportunity “to demonstrate that the repealed statute retain[ed] some continuing force or to attack the newly enacted legislation.” 51

Finally, “[t]he Court's treatment of cases that become moot on review from the lower federal courts” differs from its treatment of moot cases arising from state courts.52 The Court's “regular practice in the latter situation has been to dismiss the case and leave the judgment of the state court undisturbed,” rather than to vacate the judgment in the manner contemplated by Munsingwear.53 According to the Court, allowing state court judgments in moot cases to stand “evinces a proper recognition that in the absence of any live case or controversy, [the Court] lack[s] jurisdiction and thus also the power to disturb the state court's judgment.” 54

Footnotes

1

Cty. of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (quoting Powell v. McCormack, 395 U.S. 486, 498 (1969)). See also, e.g., Chafin v. Chafin, 568 U.S. 165, 172 (2013) (same); City of Erie v. Pap's A.M., 529 U.S. 277, 287 (2000) (same).

2

Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1975 (2016) (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 90–91 (2013)). See also, e.g., Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 609 (2013) ( “It is a basic principle of Article III that a justiciable case or controversy must remain extant at all stages of review, not merely at the time the complaint is filed.” ) (quoting Juvenile Male, 564 U.S. at 936); Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477–78 (1990) ( “To sustain our jurisdiction . . . it is not enough that a dispute was very much alive when suit was filed, or when review was obtained in the Court of Appeals.” ); Honig v. Doe, 484 U.S. 305, 317 (1988) ( “That the dispute between parties was very much alive when suit was filed . . . cannot substitute for the actual case or controversy that an exercise of this Court's jurisdiction requires.” ); Burke v. Barnes, 479 U.S. 361, 363 (1987) ( “Article III of the Constitution requires that there be a live case or controversy at the time that a federal court decides the case; it is not enough that there may have been a live case or controversy when the case was decided by the court whose judgment we are reviewing.” ).

3

Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 161 (2016) (quoting Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 72 (2013)). See also Calderon v. Moore, 518 U.S. 149, 150 (1996) (per curiam) ( “[M]ootness can arise at any stage of litigation.” ).

4

Knox v. Serv. Emps. Int'l Union, Local 1000, 567 U.S. 298, 307 (2012) (quoting City of Erie, 529 U.S. at 287) (internal quotation marks omitted). See also, e.g., Mission Prod. Holdings, Inc. v. Tempnology, LLC, 139 S. Ct. 1652, 1660 (2019) (same); Campbell-Ewald, 577 U.S. at 161 (same); Decker, 568 U.S. at 609 (same); Chafin, 568 U.S. at 172 (same).

5

Cty. of Los Angeles, 440 U.S. at 631. See also, e.g., City of Erie, 529 U.S. at 287 (holding that a case becomes moot “when the challenged conduct ceases such that 'there is no reasonable expectation that the wrong will be repeated'” ) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953)).

6

See Chafin, 568 U.S. at 177 ( “Such relief would of course not be fully satisfactory, but with respect to the case as a whole, even the availability of a partial remedy is sufficient to prevent a case from being moot.” ) (quoting Calderon, 518 U.S. at 150) (brackets and internal quotation marks omitted); Church of Scientology of Cal. v. United States, 506 U.S. 9, 12–13 (1992) ( “While a court may not be able to return the parties to the status quo ante . . . a court can fashion some form of meaningful relief in circumstances such as these . . . The availability of this possible remedy is sufficient to prevent this case from being moot.” ).

7

Church of Scientology, 506 U.S. at 12–13. See also, e.g., Chafin, 568 U.S. at 177 ( “[E]ven the availability of a partial remedy is sufficient to prevent a case from being moot.” ) (quoting Calderon, 518 U.S. at 150) (brackets and internal quotation marks omitted).

8

Mission Prod. Holdings, 139 S. Ct. at 1660.

9

See Chafin, 568 U.S. at 175 ( “Enforcement of the order may be uncertain if Ms. Chafin chooses to defy it, but such uncertainty does not typically render cases moot. Courts often adjudicate disputes where the practical impact of any decision is not assured.” ).

10

See 531 U.S. 278, 281–84 (2001).

11

Lewis v. Cont'l Bank Corp., 494 U.S. 472, 474 (1990) ( “We conclude that the case has been rendered moot by 1987 amendments to the Bank Holding Company Act.” ).

12

563 U.S. 692, 698 (2011).

13

416 U.S. 312 (1974) (per curiam).

14

Id. at 314.

15

Id. See also infra Amdt14.S1.4.1.3.1.3.1.1 Appropriate Level of Scrutiny: Early Doctrine and Amdt14.S1.4.1.3.1.3.1.2 Appropriate Level of Scrutiny: Current Doctrine (discussing constitutional challenges to educational admissions practices that allegedly discriminate on the basis of race).

16

Id. at 314–15.

17

Id. at 315.

18

See id.

19

Id. at 317.

20

Id. at 319–20.

21

See, e.g., United States v. Juvenile Male, 564 U.S. 932, 933–34 (2011) (per curiam) (deeming case moot even though “[n]o party had raised any issue of mootness in the [court below], and the Court of Appeals did not address the issue sua sponte” ); St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 537 (1978) ( “At the threshold, we confront a question of mootness. Although not raised by the parties, this issue implicates our jurisdiction.” ); Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 7–8 (1978) ( “There is, at the outset, a question of mootness. Although the parties have not addressed this question in their briefs, 'they may not by stipulation invoke the judicial power of the United States in litigation which does not present an actual case or controversy.'” ) (quoting Sosna v. Iowa, 419 U.S. 393, 398 (1975)); North Carolina v. Rice, 404 U.S. 244, 246 (1971) (per curiam) ( “Although neither party has urged that this case is moot, resolution of the question is essential if federal courts are to function within their constitutional sphere of authority.” ).

22

Bd. of License Comm'rs of Town of Tiverton v. Pastore, 469 U.S. 238, 240 (1985) (per curiam) (quoting Fusari v. Steinberg, 419 U.S. 379, 391 (1975) (Burger, C.J., concurring)). See also City of Erie v. Pap's A.M., 529 U.S. 277, 288 (2000) (chastising litigant for its “failure, despite its obligation to the Court, to mention a word about the potential mootness issue in its brief in opposition to the petition for writ of certiorari” ).

23

E.g., Roe v. Wade, 410 U.S. 113, 125 (1973).

24

E.g., DBSI/TRI IV Ltd. P'ship v. United States, 465 F.3d 1031, 1038 (9th Cir. 2006) (explaining that mootness is a “jurisdictional issue[] that may be raised at any time, even for the first time on appeal” ); Cont'l Cas. Co. v. Anderson Excavating & Wrecking Co., 189 F.3d 512, 518 (7th Cir. 1999) ( “A case can become moot at any time, and destroy the court's jurisdiction.” ); Smith v. United States, 921 F.2d 136, 138 (8th Cir. 1990) ( “Mootness goes to the very heart of Article III jurisdiction, and any party can raise it at any time.” ).

25

Calderon v. Moore, 518 U.S. 149, 150 (1996) (per curiam) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)). See also, e.g., Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) ( “[I]f an event occurs while a case is pending on appeal that makes it impossible for the court to grant 'any effectual relief whatever' to a prevailing party, the appeal must be dismissed.” ) (quoting Mills, 159 U.S. at 653).

26

Cardinal Chem. Co. v. Morton Int'l, Inc., 508 U.S. 83, 98 (1993).

27

See, e.g., Grupo Mexicano de Desarrollo, S.A. v. All. Bond Fund, Inc., 527 U.S. 308, 314 (1999) ( “Generally, an appeal from the grant of a preliminary injunction becomes moot when the trial court enters a permanent injunction, because the former merges into the latter. We have dismissed appeals in such circumstances.” ).

28

Black's Law Dictionary (10th ed. 2014).

29

Id.

30

Id.

31

Deakins v. Monaghan, 484 U.S. 193, 200 (1988).

32

Black's Law Dictionary (10th ed. 2014).

33

United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950). See also, e.g., Azar v. Garza, 138 S. Ct. 1790, 1793 (2018) (per curiam) (vacating and remanding a moot case for dismissal in the manner contemplated by Munsingwear); United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1542 (2018) (same); United States v. Microsoft Corp., 138 S. Ct. 1186, 1188 (2018) (per curiam) (same); Camreta v. Greene, 563 U.S. 692, 712–14 (2011) (same); Arizonans for Official English v. Arizona, 520 U.S. 43, 80 (1997) (same); Frank v. Minn. Newspaper Ass'n, Inc., 490 U.S. 225, 227 (1989) (per curiam) (same); Burke v. Barnes, 479 U.S. 361, 363 (1987) (same); Iron Arrow Honor Soc'y v. Heckler, 464 U.S. 67, 73 (1983) (per curiam) (same); Great W. Sugar Co. v. Nelson, 442 U.S. 92, 92–94 & n.* (1979) (per curiam) (same); Cty. of Los Angeles v. Davis, 440 U.S. 625, 634 (1979) (same); Weinstein v. Bradford, 423 U.S. 147, 148–49 (1975) (per curiam) (same); Preiser v. Newkirk, 422 U.S. 395, 403–04 (1975) (same); Bd. of Sch. Comm'rs of City of Indianapolis v. Jacobs, 420 U.S. 128, 130 (1975) (per curiam) (same). See also, e.g., Alvarez v. Smith, 558 U.S. 87, 94–97 (2009) (analyzing the Munsingwear rule); U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18, 22 (1994) (describing Munsingwear as “[t]he leading case on vacatur” ); Great W. Sugar Co. v. Nelson, 442 U.S. 92, 93 n.* (1979) (per curiam) ( “United States v. Munsingwear, Inc., is perhaps the leading case on the proper disposition of cases that become moot on appeal.” ).

34

Munsingwear, 340 U.S. at 40.

35

See id. at 41.

36

Azar, 138 S. Ct. at 1792 (quoting United States v. Hamburg-Amerikanische Packetfahrt-Actien Gesellschaft, 239 U.S. 466, 478 (1916)).

37

See, e.g., Camreta, 563 U.S. at 712 (explaining that, although the Munsingwear rule provides the “established” practice for resolving a civil case that “becomes moot pending appeal,” the Munsingwear doctrine is “not exceptionless” ).

38

Arizonans for Official English, 520 U.S. at 71–72 (quoting U.S. Bancorp, 513 U.S. at 23). See also Azar, 138 S. Ct. at 1792 ( “One clear example where vacatur is in order is when mootness occurs through the unilateral action of the party who prevailed in the lower court.” ) (brackets and internal citations quotation marks omitted); Karcher v. May, 484 U.S. 72, 83 (1987) ( “Th[e] controversy did not become moot due to circumstances unattributable to any of the parties. The controversy ended when the losing party . . . declined to pursue its appeal. Accordingly, the Munsingwear procedure is inapplicable to this case.” ).

39

U.S. Bancorp, 513 U.S. at 29. See also, e.g., Alvarez v. Smith, 558 U.S. 87, 94–97 (2009) (analyzing the interplay between Munsingwear and U.S. Bancorp).

40

U.S. Bancorp, 513 U.S. at 25.

41

Id.

42

See Munsingwear, 340 U.S. at 40.

43

See Webster v. Reprod. Health Servs., 492 U.S. 490, 513 (1989); Deakins v. Monaghan, 484 U.S. 193, 199–200 (1988).

44

Deakins, 484 U.S. at 200 n.4. See also Webster, 492 U.S. at 513 ( “Because this dispute was rendered moot in part by appellees' willingness permanently to withdraw their equitable claims from their federal action, a dismissal with prejudice is indicated.” ) (quoting Deakins, 484 U.S. at 200) (brackets omitted).

45

Deakins, 484 U.S. at 200.

46

E.g., Lewis v. Cont'l Bank Corp., 494 U.S. 472, 482 (1990) ( “Our ordinary practice in disposing of a case that has become moot on appeal is to vacate the judgment with directions to dismiss. However, in instances where the mootness is attributable to a change in the legal framework governing the case, and where the plaintiff may have some residual claim under the new framework that was understandably not asserted previously, our practice is to vacate the judgment and remand for further proceedings in which the parties may, if necessary, amend their pleadings or develop the record more fully.” ) (internal citations omitted).

47

Id. See also U.S. Dep’t of Treasury, Bureau of Alcohol, Tobacco & Firearms v. Galioto, 477 U.S. 556, 559–60 (1986) (remanding case for further proceedings following amendment of statutory provision at issue); Crowell v. Mader, 444 U.S. 505, 505–06 (1980) ( “Appellees may still wish to attack the newly enacted legislation . . . [W]e direct that the judgment of the District Court be vacated without prejudice to such further proceedings in the District Court as may be appropriate.” ).

48

404 U.S. 412, 412–14 (1972) (per curiam).

49

Id. at 414.

50

Id. at 415.

51

Id.

52

ASARCO Inc. v. Kadish, 490 U.S. 605, 621 n.1 (1989).

53

Id. (citing Kan. Gas & Elec. Co. v. State Corp. Comm'n of Kan., 481 U.S. 1044 (1987); Times-Picayune Publ'g Corp. v. Schulingkamp, 420 U.S. 985 (1975)).

54

Id.