Mootness.

A case initially presenting all the attributes neces- sary for federal court litigation may at some point lose some attribute of justiciability and become “moot.” The usual rule is that an actual controversy must exist at all stages of trial and appellate consideration and not simply at the date the action is initiated.588 “Under Article III of the Constitution, federal courts may adjudicate only actual, ongoing cases or controversies. . . . Article III denies federal courts the power ‘to decide questions that cannot affect the rights of litigants in the case before them,’ . . . and confines them to resolving ‘real and substantial controvers[ies] admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.’ This case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate. To sustain our jurisdiction in the present case, 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. . . . The parties must continue to have a ‘personal stake in the outcome’ of the lawsuit.”589 Because, with the advent of declaratory judgments, it is open to the federal courts to “declare the rights and other legal relations” of the parties with res judicata effect,590 the question in cases alleged to be moot now seems largely if not exclusively to be decided in terms of whether an actual controversy continues to exist between the parties rather than in terms of any additional older concepts.591 So long as concrete, adverse legal interests between the parties continue, a case is not made moot by intervening actions that cast doubt on the practical enforceability of a final judicial order.592

Cases may become moot because of a change in the law,593 or in the status of the parties,594 or because of some act of one of the parties which dissolves the controversy.595 But the Court has developed several exceptions. Thus, in criminal cases, although the sentence of the convicted appellant has been served, the case “is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction.”596 The “mere possibility” of such a consequence, even a “remote” one, is enough to find that one who has served his sentence has retained the requisite personal stake giving his case “an adversary cast and making it justiciable.”597 This exception has its counterpart in civil litigation in which a lower court judgment may still have certain present or future adverse effects on the challenging party.598

A second exception, the “voluntary cessation” doctrine, focuses on whether challenged conduct which has lapsed or the utilization of a statute which has been superseded is likely to recur.599 Thus, cessation of the challenged activity by the voluntary choice of the person engaging in it, especially if he contends that he was properly engaging in it, will moot the case only if it can be said with assurance “that ‘there is no reasonable expectation that the wrong will be repeated.’ ”600 This amounts to a “formidable burden” of showing with absolute clarity that there is no reasonable prospect of renewed activity.601 Otherwise, “[t]he defendant is free to return to his old ways” and this fact would be enough to prevent mootness because of the “public interest in having the legality of the practices settled.”602 In this vein, the Court in Campbell-Ewald Co. v. Gomez, informed by principles of contract law, held that an unaccepted offer to settle a lawsuit amounts to a “legal nullity” that fails to bind either party and therefore does not moot the litigation.603

Still a third exception concerns the ability to challenge short-term conduct which may recur in the future, which has been denominated as disputes “capable of repetition, yet evading review.”604 Thus, in cases in which (1) the challenged action is too short in its duration to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party would be subjected to the same action again, mootness will not be found when the complained-of conduct ends.605 This exception is frequently invoked in cases involving situations of comparatively limited duration, such as elections,606 pregnancies,607 short sentences in criminal cases,608 the award of at least some short-term federal government contracts,609 and the issuance of injunctions that expire in a brief period.610

An interesting and potentially significant liberalization of the law of mootness, perhaps as part of a continuing circumstances exception, is occurring in the context of class action litigation. It is now clearly established that, when the controversy becomes moot as to the plaintiff in a certified class action, it still remains alive for the class he represents so long as an adversary relationship sufficient to constitute a live controversy between the class members and the other party exists.611 The Court was closely divided, however, with respect to the right of the named party, when the substantive controversy became moot as to him, to appeal as error the denial of a motion to certify the class which he sought to represent and which he still sought to represent. The Court held that in the class action setting there are two aspects of the Article III mootness question, the existence of a live controversy and the existence of a personal stake in the outcome for the named class representative.612 Finding a live controversy, the Court determined that the named plaintiff retained a sufficient interest, “a personal stake,” in his claimed right to represent the class in order to satisfy the “imperatives of a dispute capable of judicial resolution;” that is, his continuing interest adequately assures that “sharply presented issues” are placed before the court “in a concrete factual setting” with “self-interested parties vigorously advocating opposing positions.”613

The immediate effect of the decision is that litigation in which class actions are properly certified or in which they should have been certified will rarely ever be mooted if the named plaintiff (or in effect his attorney) chooses to pursue the matter, even though the named plaintiff can no longer obtain any personal relief from the decision sought.614 Of much greater potential significance is the possible extension of the weakening of the “personal stake” requirement in other areas, such as the representation of third-party claims in non-class actions and the initiation of some litigation in the form of a “private attorneys general” pursuit of adjudication.615 In Genesis Healthcare Corporation v. Symczyk,616 the Court appeared to follow the “personal stake” rule applicable to class actions in the context of “collective actions” under the Fair Labor Standards Act, at least to the extent that actions that would moot the plaintiff ’s claims prior to a “conditional certification” by the court would likewise moot the collective action.

Footnotes

588
E.g., United States v. Munsingwear, 340 U.S. 36 (1950); Golden v. Zwickler, 394 U.S. 103, 108 (1969); SEC v. Medical Committee for Human Rights, 404 U.S. 403 (1972); Roe v. Wade, 410 U.S. 113, 125 (1973); Sosna v. Iowa, 419 U.S. 393, 398–399 (1975); United States Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980), and id. at 411 (Justice Powell dissenting); Burke v. Barnes, 479 U.S. 361, 363 (1987); Honig v. Doe, 484 U.S. 305, 317 (1988); Lewis v. Continental Bank Corp., 494 U.S. 472, 477–478 (1990); Camreta V. Greene, 563 U.S. ___, No. 09–1954, slip op. (2011); United States v. Juvenile Male, 564 U.S. ___, No. 09–940, slip op. at 4 (2011). Munsingwear has long stood for the proposition that the appropriate practice of the Court in a civil case that had become moot while on the way to the Court or after certiorari had been granted was to vacate or reverse and remand with directions to dismiss. In U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994), however, the Court held that when mootness occurs because the parties have reached a settlement, vacatur of the judgment below is ordinarily not the best practice; instead, equitable principles should be applied so as to preserve a presumptively correct and valuable precedent, unless a court concludes that the public interest would be served by vacatur. [Back to text]
589
Lewis v. Continental Bank Corp., 494 U.S. 472, 477–78 (1990) (internal citations omitted). The Court’s emphasis upon mootness as a constitutional limitation mandated by Article III is long stated in the cases. E.g., Liner v. Jafco, 375 U.S. 301, 306 n.3 (1964); DeFunis v. Odegaard, 416 U.S. 312, 316 (1974); Sibron v. New York, 392 U.S. 40, 57 (1968). See Honig v. Doe, 484 U.S. 305, 317 (1988), and id. at 332 (Justice Scalia dissenting). But compare Franks v. Bowman Transp. Co., 424 U.S. 747, 756 n.8 (1976) (referring to mootness as presenting policy rather than constitutional considerations). [Back to text]
590
But see Steffel v. Thompson, 415 U.S. 452, 470–72 (1974); id. at 477 (Justice White concurring), 482 n.3 (Justice Rehnquist concurring) (on res judicata effect in state court in subsequent prosecution). In any event, the statute authorizes the federal court to grant “[f]urther necessary or proper relief,” which could include enjoining state prosecutions. [Back to text]
591
Award of process and execution are no longer essential to the concept of judicial power. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937). [Back to text]
592
Chafin v. Chafin, 568 U.S. ___, No. 11–1347, slip op. (2013) (appeal of district court order returning custody of a child to her mother in Scotland not made moot by physical return of child to Scotland and subsequent ruling of Scottish court in favor of the mother continuing to have custody). [Back to text]
593
E.g., Pennsylvania v. Wheeling & Belmont Bridge Co., 54 U.S. (13 How.) 518 (1852); United States v. Alaska Steamship Co., 253 U.S. 113 (1920); Hall v. Beals, 396 U.S. 45 (1969); Sanks v. Georgia, 401 U.S. 144 (1971); Richardson v. Wright, 405 U.S. 208 (1972); Diffenderfer v. Central Baptist Church, 404 U.S. 412 (1972); Lewis v. Continental Bank Corp., 494 U.S. 481 (1990). But compare City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 288–289 (1982) (case not mooted by repeal of ordinance, since City made clear its intention to reenact it if free from lower court judgment); see also Decker v. Nw. Envtl. Def. Ctr., 568 U.S. ___, No. 11–338, slip op. (2013) (action to enforce penalty under former regulation not mooted by change in regulation where violation occurred before regulation was changed). Following Aladdin’s Castle, the Court in Northeastern Fla. Ch. of the Associated Gen. Contractors v. City of Jacksonville, 508 U.S. 656, 660–63 (1993), held that when a municipal ordinance is repealed but replaced by one sufficiently similar so that the challenged action in effect continues, the case is not moot. But see id. at 669 (Justice O’Connor dissenting) (modification of ordinance more significant and case is mooted). [Back to text]
594
Atherton Mills v. Johnston, 259 U.S. 13 (1922) (in challenge to laws regulating labor of youths 14 to 16, Court held case two-and-one-half years after argument and dismissed as moot since certainly none of the challengers was now in the age bracket); Golden v. Zwickler, 394 U.S. 103 (1969); DeFunis v. Odegaard, 416 U.S. 312 (1974); Dove v. United States, 423 U.S. 325 (1976); Lane v. Williams, 455 U.S. 624 (1982). Compare County of Los Angeles v. Davis, 440 U.S. 625 (1979), with Vitek v. Jones, 445 U.S. 480 (1980). In Arizonans For Official English v. Arizona, 520 U.S. 43 (1997), a state employee attacking an English-only work requirement had standing at the time she brought the suit, but she resigned following a decision in the trial court, thus mooting the case before it was taken to the appellate court, which should not have acted to hear and decide it. [Back to text]
595
E.g., Commercial Cable Co. v. Burleson, 250 U.S. 360 (1919); Oil Workers Local 8–6 v. Missouri, 361 U.S. 363 (1960); A.L. Mechling Barge Lines v. United States, 368 U.S. 324 (1961); Preiser v. Newkirk, 422 U.S. 395 (1975); County of Los Angeles v. Davis, 440 U.S. 625 (1979); Alvarez v. Smith, 558 U.S. ___, No. 08–351 (2009). [Back to text]
596
Sibron v. New York, 395 U.S. 40, 50–58 (1968). But compare Spencer v. Kemna, 523 U.S. 1 (1998). [Back to text]
597
Benton v. Maryland, 395 U.S. 784, 790–791 (1969). The cases have progressed from leaning toward mootness to leaning strongly against. E.g., St. Pierre v. United States, 319 U.S. 41 (1943); Fiswick v. United States, 329 U.S. 211 (1946); United States v. Morgan, 346 U.S. 502 (1954); Pollard v. United States, 352 U.S. 354 (1957); Ginsberg v. New York, 390 U.S. 629, 633–634 n.2 (1968); Sibron v. New York, 392 U.S. 40, 49–58 (1968).But see Lane v. Williams, 455 U.S. 624 (1982);United States v. Juvenile Male, 564 U.S. ___, No. 09–940, slip op. at 6 (2011) (per curiam) (rejecting as too indirect a benefit that favorable resolution of a case might serve as beneficial precedent for a future case involving the plaintiff). The exception permits review at the instance of the prosecution as well as defendant. Pennsylvania v. Mimms, 434 U.S. 106 (1977). When a convicted defendant dies while his case is on direct review, the Court’s present practice is to dismiss the petition for certiorari. Dove v. United States, 423 U.S. 325 (1976), overruling Durham v. United States, 401 U.S. 481 (1971). [Back to text]
598
Southern Pacific Terminal Co. v. ICC, 219 U.S. 433, 452 (1911); Carroll v. President & Commr’s of Princess Anne, 393 U.S. 175 (1968). See Super Tire Engineering Co. v. McCorkle, 416 U.S. 115 (1974) (holding that expiration of strike did not moot employer challenge to state regulations entitling strikers to state welfare assistance since the consequences of the regulations would continue). [Back to text]
599
United States v. Trans-Missouri Freight Ass’n, 166 U.S. 290 (1897); Walling v. Helmerich & Payne, 323 U.S. 37 (1944); Porter v. Lee, 328 U.S. 246 (1946); United States v. W.T. Grant Co., 345 U.S. 629 (1953); Gray v. Sanders, 372 U.S. 368 (1963); United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 202–04 (1969); DeFunis v. Odegaard, 416 U.S. 312, 318 (1974); County of Los Angeles v. Davis, 440 U.S. 625, 631–34 (1979), and id. at 641–46 (Justice Powell dissenting); Vitek v. Jones, 445 U.S. 480, 486–487 (1980), and id. at 500–01 (Justice Stewart dissenting); Princeton University v. Schmidt, 455 U.S. 100 (1982); City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 288–289 (1982). [Back to text]
600
United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953) (quoting United States v. Aluminum Co. of America, 148 F.2d 416, 448 (2d. Cir. 1945)). [Back to text]
601
Already, LLC v. Nike, Inc., 568 U.S. ___, No. 11–982, slip op. at 4 (2013) (dismissal of a trademark infringement claim against rival and submittal of an unconditional and irrevocable covenant not to sue satisfied the burden under the voluntary cessation test) (citing Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167, 190 (2000)). See also Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ___, No. 15–577, slip op. at 5 n.1 (2017) (holding that a governor’s announcement that religious organizations could compete for state monetary grants did not moot a case challenging a previous policy of issuing grants only to non-religious entities as the state had failed to carry its “heavy burden” of “making absolutely clear” that it could not revert to its policy of excluding religious organizations from the grant program). [Back to text]
602
United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953). But see A.L. Mechling Barge Lines v. United States, 368 U.S. 324 (1961). [Back to text]
603
577 U.S. ___, No. 14–857, slip op. at 7–9 (2016) (“[W]ith no settlement offer still operative, the parties remained adverse; both retained the same stake in the litigation that they had at the outset.”). The Campbell-Ewald decision was limited to the question of whether an offer of complete relief moots a case. The Court left open the question of whether the payment of complete relief by a defendant to a plaintiff can render a case moot. Id. at 11. [Back to text]
604
Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911). [Back to text]
605
Weinstein v. Bradford, 423 U.S. 147, 149 (1975); Murphy v. Hunt, 455 U.S. 478, 482 (1982). See Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 125–26 (1974), and id. at 130–32 (Justice Stewart dissenting), Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167, 189–91 (2000),. The degree of expectation or likelihood that the issue will recur has frequently divided the Court. Compare Murphy v. Hunt, with Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976); compare Honig v. Doe, 484 U.S. 305, 318–23 (1988), with id. at 332 (Justice Scalia dissenting). [Back to text]
606
See, e.g., Storer v. Brown, 415 U.S. 724, 737 n.8 (1974); Rosario v. Rockefeller, 410 U.S. 752, 756 n.5 (1973); Moore v. Ogilvie, 394 U.S. 814, 816 (1969). [Back to text]
607
See Roe v. Wade, 410 U.S. 113, 124–125 (1973). [Back to text]
608
See, e.g., Sibron v. New York, 392 U.S. 40, 49–58 (1968). See also Gerstein v. Pugh, 420 U.S. 103 (1975). [Back to text]
609
See, e.g., Kingdomware Techs., Inc. v. United States, 579 U.S. ___, No. 14–916, slip op. at 7 (2016) (“We have previously held that a period of two years is too short to complete judicial review of the lawfulness of [a] procurement.”) (citing S. Pac. Terminal Co. v. ICC, 219 U.S. 498, 514–16 (1911)). [Back to text]
610
See, e.g., Carroll v. President & Commr’s of Princess Anne, 393 U.S. 175 (1968). See Neb. Press Ass’n v. Stuart, 427 U.S. 539 (1976) (short-term court order restricting press coverage). [Back to text]
611
Sosna v. Iowa, 419 U.S. 393 (1975); Franks v. Bowman Transp. Co., 424 U.S. 747, 752–757 (1976). A suit which proceeds as a class action but without formal certification may not receive the benefits of this rule. Board of School Commr’s v. Jacobs, 420 U.S. 128 (1975). See also Weinstein v. Bradford, 423 U.S. 147 (1975); Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 430 (1976). But see the characterization of these cases in United States Parole Comm’n v. Geraghty, 445 U.S. 388, 400 n.7 (1980). Mootness is not necessarily avoided in properly certified cases, but the standards of determination are unclear. See Kremens v. Bartley, 431 U.S. 119 (1977). [Back to text]
612
United States Parole Comm’n v. Geraghty, 445 U.S. 388, 396 (1980). [Back to text]
613
445 U.S. at 403. Justices Powell, Stewart, Rehnquist, and Chief Justice Burger dissented, id. at 409, arguing there could be no Article III personal stake in a procedural decision separate from the outcome of the case. In Deposit Guaranty Nat’l Bank v. Roper, 445 U.S. 326 (1980), in an opinion by Chief Justice Burger, the Court held that a class action was not mooted when defendant tendered to the named plaintiffs the full amount of recovery they had individually asked for and could hope to retain. Plaintiffs’ interest in shifting part of the share of costs of litigation to those who would share in its benefits if the class were certified was deemed to be a sufficient “personal stake”. Cf. Genesis Healthcare Corp. v. Symczyk, 569 U.S. ___, No. 11–1059, slip op. (2013) (in the context of a “collective action” under the Fair Labor Standards Act where a plaintiff ’s individual claim was moot and no other individuals had joined the suit, holding that a plaintiff had no personal stake in the case that provided the court with subject matter jurisdiction). In a slightly different context, the Court, in Campbell-Ewald Co. v. Gomez, held that neither an unaccepted settlement offer or an offer of judgment provided prior to class certification would moot a potential lead plaintiff ’s case. 577 U.S. ___, No. 14–857, slip op. at 11 (2016). According to the majority opinion, this holding avoided placing defendants in the “driver’s seat” with respect to class litigation wherein a defendant’s offer of settlement could eliminate a court’s jurisdiction to adjudicate potentially costly class actions. Id. [Back to text]
614
The named plaintiff must still satisfy the class action requirement of adequacy of representation. United States Parole Comm’n v. Geraghty, 445 U.S. 388, 405–407 (1980). On the implications of Geraghty, which the Court has not returned to, see Hart & Wechsler (6th ed.), supra at 194–198. [Back to text]
615
Geraghty, 445 U.S. at 404 & n.11. [Back to text]
616
569 U.S. ___, No. 11–1059, slip op. (2013). [Back to text]