Opposition Brief — Mike Fitzhugh, Sheriff, Rutherford County, Tennessee, et al., Petitioners v. Bradley Patton

No. 25-50

IN THE

Supreme Court of the United States

MIKE FITZHUGH, ET AL.

Petitioners,

v.

BRADLEY PATTON,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

BRIEF IN OPPOSITION

Drew Justice

THE JUSTICE LAW OFFICE

1902 Cypress Drive

Murfreesboro, TN 37130

Elizabeth R. Cruikshank

Counsel of Record

Kelsi Brown Corkran

Samuel P. Siegel

INSTITUTE FOR

CONSTITUTIONAL ADVOCACY

AND PROTECTION,

GEORGETOWN LAW

600 New Jersey Avenue NW

Washington, DC 20001

(202) 662-4048

erc56@georgetown.edu

Counsel for Respondent

i

QUESTION PRESENTED

For more than five decades, this Court has recognized a “narrow class of cases in which the termination of a class representative’s claim does not moot the

claims of the unnamed members of the class.” Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975). Included

within it are cases where the conduct challenged is so

inherently transitory that the case becomes moot as

to the named plaintiff “before the district court can

reasonably be expected to rule on a certification motion.” Sosna v. Iowa, 419 U.S. 393, 402 n.11 (1975).

Named plaintiffs challenging pretrial detention procedures and conditions may therefore continue litigating a putative class action under the inherently transitory exception, even after their individual claims become moot, so long as “the constant existence of a

class of persons suffering the deprivation is certain.”

Gerstein, 420 U.S. at 110 n.11; see also Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991).

Respondent Bradley Patton filed suit on behalf of

a putative class challenging Rutherford County, Tennessee’s “source hearing” rule, under which Patton

was held in pretrial detention until he could prove

that his bail funds were not derived from criminal activity. Patton was released after he filed his complaint

but before he could file his class-certification motion.

The question presented is whether the Sixth Circuit correctly held that Patton’s class claims may proceed under the inherently transitory exception.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ......................................... i

TABLE OF CONTENTS ............................................ ii

TABLE OF AUTHORITIES .......................................... iii

INTRODUCTION ........................................................ 1

STATEMENT OF THE CASE .................................. 4

I.

Factual Background ........................... 4

II.

District Court Proceedings ................. 5

III.

Court of Appeals Proceedings ............ 7

REASONS FOR DENYING THE PETITION ..... 10

I.

The Decision Below Does Not Implicate

a Circuit Split. .................................. 10

II.

The Decision Below Correctly Applied

Settled Law. ...................................... 20

III.

This Case Does Not Raise an Important

Question of Federal Law. ................. 29

CONCLUSION ........................................................... 31

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Arizonans for Official English v. Arizona,

520 U.S. 43 (1997) ................................................10

Belgau v. Inslee,

975 F.3d 940 (9th Cir. 2020) ..............................23

Breda v. Cellco Partnership,

934 F.3d 1 (1st Cir. 2019) ...................................18

Campbell-Ewald Co. v. Gomez,

577 U.S. 153 (2016) ...................................2, 10, 15

Church v. Accretive Health, Inc.,

299 F.R.D. 676 (S.D. Ala. 2014) ..................25, 30

Cnty. of Riverside v. McLaughlin,

500 U.S. 44 (1991) .................................... i, 1, 3, 22

Cruz v. Farquharson,

252 F.3d 530 (1st Cir. 2001) ..................16, 17, 18

Damasco v. Clearwire Corp.,

662 F.3d 891 (7th Cir. 2011) ..................12, 13, 15

Doe v. Hochul,

139 F.4th 165 (2d Cir. 2025) ..............................23

Fontenot v. McCraw,

777 F.3d 741 (5th Cir. 2015) ........................13, 14

Genesis Healthcare Corp. v. Symczyk,

569 U.S. 66 (2013) ..............3, 10, 11, 12, 22, 27, 29

Gerstein v. Pugh,

420 U.S. 103 (1975) .. i, 1, 3, 7, 8, 11, 22, 23, 27, 28, 30

iv

Holmes v. Pension Plan of Bethlehem Steel

Corp.,

213 F.3d 124 (3d Cir. 2000) ...............................18

J.D. v. Azar,

925 F.3d 1291 (D.C. Cir. 2019) ...........................9

Lewis v. Continental Bank Corp.,

494 U.S. 472 (1990) .............................................10

Lucero v. Bureau of Collection Recovery, Inc.,

639 F.3d 1239 (10th Cir. 2011) .........................12

Lusardi v. Xerox Corp.,

975 F.2d 964 (3d Cir. 1992) ...............................13

Nestler v. Board of Law Examiners of the State

of North Carolina,

611 F.2d 1380 (4th Cir. 1980) .....................18, 19

Nielsen v. Preap,

586 U.S. 392 (2019) .............................................22

Olson v. Brown,

594 F.3d 577 (7th Cir. 2010) ..............................15

Pitts v. Terrible Herbst, Inc.,

653 F.3d 1081 (9th Cir. 2011) ...........................12

Richardson v. Bledsoe,

829 F.3d 273 (3d Cir. 2016) .........................13, 25

Schall v. Martin,

467 U.S. 253 (1984) .............................................22

Smith v. Bayer Corp.,

564 U.S. 299 (2011) .............................................29

Smith v. Interline Brands, Inc.,

87 F. Supp. 3d 701 (D.N.J. 2014) .....................25

v

Sosna v. Iowa,

419 U.S. 393 (1975) ... i, 1, 7, 11, 20, 21, 26, 27, 29

Stein v. Buccaneers Ltd. P’ship,

772 F.3d 698 (11th Cir. 2014) ...........................12

Swisher v. Brady,

438 U.S. 204 (1978) .............................................22

U.S. Parole Commission v. Geraghty,

445 U.S. 388 (1980) .............................................21

United States v. Sanchez-Gomez,

584 U.S. 381 (2018) .................................22, 23, 28

Weiss v. Regal Collections,

385 F.3d 337 (3d Cir. 2004) ...............................12

Wilson v. Gordon,

822 F.3d 934 (6th Cir. 2016) ..................2, 7, 8, 23

Zeidman v. J. Ray McDermott & Co.,

651 F.2d 1030 (5th Cir. Unit A July 1981) .......12

RULES

Fed. R. Civ. P. 23(c)(1)(A) ...............................................26

Fed. R. Civ. P. 68(a).........................................................11

TREATISES

1 Rubenstein, Newberg and Rubenstein on

Class Actions § 2:11 (6th ed. Supp. 2025)

..................................................................................16

Ann. Manual Complex Lit. § 21.11 (4th ed.

2004) .......................................................................26

vi

OTHER AUTHORITIES

M. Andrew Campanelli, You Can Pick Your

Friends, but You Cannot Pick Off the

Named Plaintiff of a Class Action:

Mootness and Offers of Judgment Before

Class Certification,

4 Drexel L. Rev. 523 (2012) ...............................16

Comment,

Justiciability—Class

Action

Mootness—Campbell-Ewald

Co.

v.

Gomez,

130 Harv. L. Rev. 427 (2016) .............................16

Johnathan Lott, Moot Suit Riot: An Alternative

View of Plaintiff Pick-Off in Class

Actions,

2013 U. Chi. Legal F. 531 (2013) ......................16

Daniel A. Zariski et al., Mootness in the Class

Action

Context:

Court-Created

Exceptions to the “Case or Controversy”

Requirement of Article III,

26 Rev. Litig. 77 (2007).......................................16

1

INTRODUCTION

More than 50 years ago, this Court recognized two

circumstances in which a named plaintiff may continue litigating a putative class action after his individual claim becomes moot. First, a named plaintiff

may continue representing a class that was certified

before his claim became moot. See Sosna v. Iowa, 419

U.S. 393, 399-402 (1975). Second, a named plaintiff

may continue representing a putative class if the challenged conduct is inherently transitory and would be

effectively insulated from review absent such a rule,

so long as “the constant existence of a class of persons

suffering the deprivation is certain.” Gerstein v. Pugh,

420 U.S. 103, 110 n.11 (1975). This Court has repeatedly held that challenges to the procedures and conditions of pretrial detention fall within the latter category. See, e.g., id.; Cnty. of Riverside v. McLaughlin,

500 U.S. 44, 52 (1991).

This case involves a straightforward application of

these precedents. Respondent Bradley Patton challenged Rutherford County, Tennessee’s “source hearing” rule, under which he was kept in pretrial detention until he could prove that his bail funds were not

derived from criminal activity. His individual claims

became moot after he filed his complaint but before he

could file a class-certification motion. The court of appeals correctly held that he was entitled to continue

representing the class because the challenged conduct

was “by its very nature temporary,” the putative class

of people “suffering the injury” was “substantial,” and

2

the claim therefore qualified for the Gerstein exception. Pet. App. 20a (internal quotation marks omitted)

(first quoting Wilson v. Gordon, 822 F.3d 934, 945 (6th

Cir. 2016), then quoting Am. Compl. ¶ 54).

Petitioners contend that the lower courts are divided over whether a class-certification motion must

be pending when a named plaintiff’s claim becomes

moot in order for the plaintiff to continue to represent

the class. Pet. 1-2. But no court of appeals has ever

imposed such a requirement in the context of the inherently transitory exception to mootness, which is

the only mootness exception at issue in this case.

Instead, the split petitioners identify implicates an

entirely different mootness exception: the “pickingoff” exception, which was developed by the lower

courts to prevent defendants from strategically attempting to “pick off” named plaintiffs in putative

class actions by intentionally mooting their claims, including by making them a full offer of judgment. In

such cases, the lower courts were divided on the question petitioners identify. But that division has no relevance to the separate mootness exception at issue

here. What’s more, petitioners’ purported circuit split

has been largely overtaken by this Court’s decision in

Campbell-Ewald Co. v. Gomez, 577 U.S. 153 (2016),

which held that an unaccepted offer of judgment does

not moot an individual plaintiff’s claim, eliminating

the need for any mootness exception in that circumstance. Id. at 163. Petitioners’ argument that review

in this case is necessary to resolve “an entrenched 54 circuit split,” Pet. 10, is thus wrong twice over: This

3

case does not implicate the split they point to, and

that split has little ongoing import.

Petitioners are also wrong on the merits. The

Sixth Circuit properly applied this Court’s decisions

in Sosna and Gerstein to the circumstances presented

here. Article III’s case-or-controversy requirement is

satisfied in inherently transitory putative class actions, where the claim is “by nature temporary” and

where “the constant existence of a class of persons suffering the deprivation is certain.” Gerstein, 420 U.S.

at 110 n.11. This Court has never suggested that

there must be a class-certification motion pending

when the named plaintiff’s claim becomes moot for

the inherently transitory exception to apply. Instead,

it has made clear that “where a named plaintiff’s

claim is ‘inherently transitory,’ and becomes moot

prior to certification, a motion for certification may

‘relate back’ to the filing of the complaint.” Genesis

Healthcare Corp. v. Symczyk, 569 U.S. 66, 71 n.2

(2013) (citing Cnty. of Riverside, 500 U.S. at 51-52).

Petitioners’ contrary argument conflates the rationales for the inherently transitory exception and

the separate mootness exception that applies in class

actions if the named plaintiff’s claim becomes moot

after a class is certified. Petitioners’ preferred rule

also makes little sense. Petitioners would require

named plaintiffs to immediately file a “placeholder

class certification motion” the day they file their complaints. Pet. 25. Neither this Court nor the lower

courts impose such a requirement, and for good reason: “The problems posed by premature and meritless

4

placeholder motions for class certification” are well

documented. Pet. App. 25a. Such motions “strain judicial resources, tax a court’s economy, and force litigants and counsel to engage in pretense.” Id. Petitioners offer no persuasive reason for this Court to adopt

a rule governing how district courts manage their

dockets—much less one that would needlessly stretch

courts’ and litigants’ limited resources.

STATEMENT OF THE CASE

I.

Factual Background

Respondent Bradley Patton was arrested on December 18, 2021, in Rutherford County, Tennessee,

and charged with several state drug offenses and a

related firearm offense. Pet. App. 2a. Bail was originally set at $21,000, and Patton posted bail and was

released. Id. After missing a court date and turning

himself in, Patton posted an additional $5,000 to meet

his increased bail obligation. Id. at 2a-3a. At a later

point in the proceedings, one drug charge was upgraded and another offense was added. Id. at 3a. The

assigned judge sua sponte quadrupled Patton’s bond,

requiring him to pay an additional $75,000. Id. Patton

did not immediately turn himself in upon being notified about the bail increase, and the State successfully

moved for another increase of $25,000. Id. This

brought the total bail required for the case to

$126,000, of which $100,000 remained unpaid. Id.

Because the cumulative bond obligation had

reached $75,000, Patton became subject to Ruther-

5

ford County’s “source hearing” requirement. Id. Under this policy, detained criminal defendants may not

be released on bail if the amount required meets or

exceeds $75,000 unless the detainee appears at a

court hearing and offers adequate documentation to

prove that the bail money was not derived (directly or

indirectly) from criminal activity. Id. (citing Rutherford County Rule 16.07(G)).

Patton sat in jail for several months before his attorney was able to obtain the necessary documentation, in consultation with Patton’s family and friends,

to support the legitimacy of the bail source. Id. at 4a.

On June 13, 2023, Patton filed his motion to approve

the bail source, accompanied by real estate bond paperwork totaling the outstanding $100,000. Id. His

source hearing was scheduled for June 22, 2023. Id.

II.

District Court Proceedings

On the same day as his source hearing, Patton

filed a putative class action against two county officials and three state circuit judges (petitioners here),

challenging the source hearing requirement on procedural and substantive due process grounds. Pet. App.

4a. He sought to represent a class of similarly situated

individuals in seeking declaratory and injunctive relief. Id. On the day he filed his complaint, the clerk’s

office issued a case management notice scheduling an

initial conference for October 5, 2023, and requiring

Patton to submit to the court a proposed case management order three days beforehand. Id. at 7a.

6

One week after filing his lawsuit, on June 29,

2023, Patton pleaded guilty to one drug charge and

the firearm charge in his criminal case and was sentenced to 10 years of probation. Id. at 5a. He filed an

amended complaint as of right on September 27, 2023,

asserting that he had been released from pretrial detention and adding an Eighth Amendment claim for

excessive bail. Id. The district court extended petitioners’ deadline to respond to the amended complaint

and rescheduled the case management conference to

November 16, 2023. Id. at 7a-8a.

Petitioners then moved to dismiss the amended

complaint. Id. at 5a. The district court stayed discovery pending its resolution of the motions to dismiss

and entered a case management order, noting that

the parties disputed class certification and reserving

Patton’s deadline for filing a class-certification motion. Id. at 8a. While the motions to dismiss were

pending, the district court entered a revised case

management order continuing to leave open the deadline for Patton’s class-certification motion. Id. Although the parties repeatedly asked the district court

to set a briefing schedule for the class-certification

motion, it declined to do so. Id. at 24a.

The district court ultimately granted petitioners’

motions to dismiss, holding that Patton’s claims were

moot. Id. at 33a-36a. In particular, the district court

concluded that because Patton had been released

from pretrial detention, there was “no ongoing harm”

to him and any “future injury” was “speculative.” Id.

at 33a-34a. It rejected Patton’s argument that he was

7

entitled to the exception to mootness for claims that

are capable of repetition yet evading review or that

the standing of members of the “putative class could

save his claims.” Id. at 6a-7a; see also id. at 34a-36a.

III.

Court of Appeals Proceedings

The Sixth Circuit reversed. See Pet. App. 2a. The

court of appeals first rejected petitioners’ argument

that the district court’s dismissal of Patton’s claim

should be affirmed on the ground that Patton lacked

standing because he was no longer in pretrial detention when he filed his amended complaint. Id. at 9a11a. The court explained that it is well settled that

standing is determined at the time the initial complaint is filed and that any subsequent change in the

plaintiff’s interest in the litigation sounds in mootness. See id.

Proceeding to mootness, the Sixth Circuit concluded that Patton’s claims fall under the inherently

transitory exception to mootness recognized by this

Court in Sosna v. Iowa, 419 U.S. 393, 402 n.11 (1975),

and Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975).

See Pet. 19a-26a. It explained that lower courts had

“distilled from Gerstein two requirements for the ‘inherently transitory’ exception to apply: (1) that the injury be so transitory that it would likely evade review

by becoming moot before the district court can rule on

class certification, and (2) that it is certain other class

members are suffering the injury.” Id. at 20a (quoting

Wilson v. Gordon, 822 F.3d 934, 945 (6th Cir. 2016)).

8

Here, the Sixth Circuit held, the “first requirement [was] clearly met in light of Gerstein,” because

pretrial detention is “by its very nature temporary,

such that claims brought on behalf of the detained are

‘inherently transitory.’” Id.; see also id. at 17a (“Just

as for the plaintiff in Gerstein, Patton’s time in pretrial detention under the source-hearing requirement

was ‘by nature temporary’ and so evaded review.”

(quoting Gerstein, 420 U.S. at 110 n.11)). And it was

also “certain that other class members [were] suffering the injury,” because the size of the putative class

was “substantial,” with “numerous (likely hundreds

of) applicable arrests … made each year.” Id. at 20a

(first quoting Wilson, 822 F.3d at 945, then quoting

Am. Compl. ¶ 54). The court noted that petitioners did

not dispute that Patton satisfied these factors. Id.

The Sixth Circuit then addressed petitioners’ argument that, in order for the inherently transitory exception to apply, Patton must have filed a class-certification motion before his individual claim became

moot. Id. at 20a-22a. The court disagreed, explaining

that petitioners’ argument was incompatible with

“the rationale animating” the exception: Given the inherently transitory nature of the claim, a plaintiff

might “be able to file a suit in time to have standing

but [might] not have enough time to file a supported

motion for class certification.” Id. at 21a-22a. Other

circuits, moreover, had recognized mootness exceptions for class-action claims in the absence of a pending motion for class certification. Id. at 22a-23a. The

Sixth Circuit thus “adopt[ed] the well-reasoned position of our sibling circuits that the filing of a class-

9

action complaint can serve as the prerequisite for arguing the ‘inherently transitory’ exception for classaction claims.” Id. at 23a. Accordingly, it held,

“[w]here a named plaintiff’s claim is inherently transitory, and becomes moot prior to certification, a motion for certification may relate back to the filing of

the complaint.” Id. (alteration in original) (quoting

J.D. v. Azar, 925 F.3d 1291, 1308 (D.C. Cir. 2019)).

The Sixth Circuit similarly was not persuaded by

petitioners’ argument that Patton had “skewered his

own claims by sitting on his right to file a motion for

class certification.” Id. at 24a. While agreeing with petitioners that “timing matters when applying the relation-back doctrine,” the court explained that any delay in class certification was not attributable to Patton. Id. To the contrary, the district court had “declined to set a date for the filing [of] a class-certification motion,” even after the parties repeatedly asked

for a briefing schedule on class certification. Id. at

24a-25a. Under these circumstances, Patton was not

“required to file a placeholder motion simply to preserve his class-action claims.” Id. at 24a. As the court

observed, petitioners’ proposed rule would exacerbate

the myriad “problems posed by premature and meritless placeholder motions for class certification,” which

“strain judicial resources, tax a court’s economy, and

force litigants and counsel to engage in pretense.” Id.

at 25a.

10

REASONS FOR DENYING THE PETITION

I.

The Decision Below Does Not Implicate a

Circuit Split.

Petitioners urge the Court to grant review to resolve a purported circuit split over whether a putative

class action must be dismissed if the named plaintiff’s

claim becomes moot before he files a class-certification motion. Pet. 11. But petitioners fail to identify a

single case adopting such a rule in the context of the

only exception to mootness at issue in this case: the

inherently transitory exception. Instead, the circuit

split petitioners identify involves a different mootness

exception—the so-called “picking-off” exception—that

is not implicated here. Petitioners’ asserted split,

moreover, was largely overtaken by this Court’s decision in Campbell-Ewald Co. v. Gomez, 577 U.S. 153

(2016). In petitioners’ remaining cases, the claims did

not qualify for any exception to mootness at all and

thus are similarly inapposite.

1. For more than five decades, this Court has recognized two exceptions to the general rule that a

named plaintiff in a class action must have a “personal stake in the outcome of the lawsuit” at “all

stages of review.” Genesis Healthcare Corp. v.

Symczyk, 569 U.S. 66, 71-72 (2013) (first quoting

Lewis v. Continental Bank Corp., 494 U.S. 472, 478

(1990), then quoting Arizonans for Official English v.

Arizona, 520 U.S. 43, 67 (1997)). Under the first exception, a named plaintiff whose claim has been

11

mooted can continue to represent a class that was certified before his claim became moot. See Sosna v.

Iowa, 419 U.S. 393, 399-402 (1975). Under the second

exception, a named plaintiff whose claim became

moot after the filing of a class complaint may continue

to represent the putative class if the challenged conduct is “inherently transitory” and would therefore

otherwise be effectively insulated from review, so long

as “the constant existence of a class of persons suffering the deprivation is certain.” Gerstein v. Pugh, 420

U.S. 103, 110 n.11 (1975); see infra pp. 20-23 (discussing these exceptions in greater detail).

In the years following Sosna and Gerstein, a number of circuits recognized an additional exception to

mootness for putative class actions in which the defendant sought to “pick off” the named plaintiffs by

intentionally mooting their claims. In one common

pick-off strategy, defendants would offer the named

plaintiffs the full amount of their individual claims

under Rule 68 of the Federal Rules of Civil Procedure.

See, e.g., Genesis Healthcare, 569 U.S. at 69-70. 1 Even

if the named plaintiffs rejected or did not respond to

the offer, the defendant would move to dismiss the

case, arguing that because the named plaintiffs had

been offered complete relief, they no longer possessed

Under Rule 68, a “party defending against a claim may serve

on an opposing party an offer to allow judgment on specified

terms.” Fed. R. Civ. P. 68(a). If the opposing party accepts, either

party “may then file the offer and notice of acceptance” with the

court, and the “clerk must then enter judgment.” Id.

1

12

the requisite personal stake in the case needed to satisfy Article III’s case-or-controversy requirement. See,

e.g., id. at 70. Several courts of appeals responded by

creating an additional exception to mootness to protect against such strategic attempts by defendants to

insulate themselves from suit before a class had been

certified.

The circuits disagreed, however, on when in the

litigation a plaintiff could benefit from this “pickingoff” exception. A majority of circuits permitted plaintiffs to proceed with a suit in which they had received,

but did not accept, an offer of judgment, regardless of

whether they had moved for class certification before

the offer was made. These courts followed the rule

that, “where a defendant makes a Rule 68 offer to an

individual claim that has the effect of mooting possible class relief asserted in the complaint, the appropriate course is to relate the certification motion back

to the filing of the class complaint.” Weiss v. Regal

Collections, 385 F.3d 337, 348 (3d Cir. 2004), as

amended (Sept. 29, 2004); see also, e.g., Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1090 (9th Cir. 2011);

Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d

1239, 1249 (10th Cir. 2011); Stein v. Buccaneers Ltd.

P’ship, 772 F.3d 698, 707 (11th Cir. 2014). Other circuits, however, limited the picking-off exception to situations in which the named plaintiffs had already

filed a class-certification motion before the defendant

attempted to moot their claims. See, e.g., Zeidman v.

J. Ray McDermott & Co., 651 F.2d 1030, 1045 (5th

Cir. Unit A July 1981); Damasco v. Clearwire Corp.,

662 F.3d 891, 896 (7th Cir. 2011); see also Fontenot v.

13

McCraw, 777 F.3d 741, 750-51 (5th Cir. 2015) (declining to extend the picking-off exception to a case in

which a class-certification motion was not yet pending

when defendants mooted the named plaintiffs’

claims). 2

Almost all of the cases petitioners cite in support

of their purported circuit split address this picking-off

exception and the related timing question. See Pet.

11-16 (discussing Fontenot, Damasco, Stein, Lucero,

Pitts, Lusardi, Weiss, and Richardson). Each involved

conduct by a defendant in a putative class action to

moot the named plaintiff’s claim before the class had

been, or could be, certified. None held that the inherently transitory exception—the only exception implicated by the decision below—requires the filing of a

class-certification motion before the named plaintiff’s

claim becomes moot. Indeed, several of the cases that

petitioners rely on specifically recognized the difference between the picking-off exception—which was

developed in response to “defendant’s litigation strategy”—and the inherently transitory exception, which

focuses on the “substance of the plaintiff’s claim.”

Fontenot, 777 F.3d at 750; see also Damasco, 662 F.3d

at 897 (similar).

2 Petitioners correctly note that the Third Circuit has issued de-

cisions on both sides of their asserted circuit split. See Pet. 15-16

(citing Lusardi v. Xerox Corp., 975 F.2d 964 (3d Cir. 1992), and

Richardson v. Bledsoe, 829 F.3d 273 (3d Cir. 2016)). These cases,

like Weiss, involved only the picking-off exception.

14

Petitioners rely on stray language from Fontenot

and Damasco to erroneously suggest the existence of

a circuit split that would bear on the decision below.

Contrary to petitioners’ contention, the Fifth Circuit

in Fontenot did not “explain[] that the precedent on

the inherently transitory exception does not extend to

situations in which there is ‘no certification motion …

even pending’ at the time a plaintiff’s claims are

‘mooted.’” Pet. 12 (second alteration in original) (emphasis added) (quoting Fontenot, 777 F.3d at 751).

Fontenot never considered whether the inherently

transitory exception applied. It merely mentioned

that exception in describing this Court’s mootness

case law and the Fifth Circuit’s separate development

of the picking-off exception. But the panel’s observation that “no certification motion was even pending”—

the language petitioners highlight, see Pet. 12—appeared only in its explanation of why the picking-off

exception did not save the case from mootness. Fontenot, 777 F.3d at 751.

Petitioners also claim that the Seventh Circuit in

Damasco resolved “how the timing of a mooting event

matters in class actions for Article III purposes” and

that it “drew the dividing line for mootness at the filing of a class-certification motion.” Pet. 12-13. But it

did so only in the context of the picking-off exception.

Although the Seventh Circuit recognized that circuit

precedent had “long held that a defendant cannot

moot a case by making an offer after a plaintiff moves

to certify a class,” it declined to extend this exception

to a case “not certified as a class action and with no

motion for class certification even pending.” Damasco,

15

662 F.3d at 895-96. And it rejected the plaintiff’s alternative argument—that “his situation f[ell] under

the established exception for inherently transitory

claims”—not because of the absence of a class-certification motion. Id. at 897. Rather, it concluded that the

inherently transitory exception did not apply because

there was no uncertainty about “whether ‘any member of the class would maintain a live controversy long

enough for a judge to certify a class.’” Id. (quoting Olson v. Brown, 594 F.3d 577, 580 (7th Cir. 2010)).

Making matters worse for petitioners, the pickingoff exception split they identify was largely overtaken

by Campbell-Ewald, which rejected the assumption

on which most of the cases constituting the split were

predicated: that “an unaccepted offer to satisfy the

named plaintiff’s individual claim [is] sufficient to

render a case moot when the complaint seeks relief on

behalf of the plaintiff and a class of persons similarly

situated.” 577 U.S. at 156. Instead, this Court held, a

Rule 68 offer, “once rejected, ha[s] no continuing efficacy” and therefore does not moot a plaintiff’s individual claim. Id. at 163. That holding made it unnecessary to consider whether an exception to mootness

would apply to the putative class claims. 3

3 The “host of commentators [that] have highlighted the split,”

Pet. 16 (internal quotation marks omitted), all addressed the disagreement over the scope of the picking-off exception. None identified any circuit split involving the inherently transitory excep(cont’d)

16

2. Petitioners identify only three circuit cases that

did not involve the picking-off exception, two from the

First Circuit and one from the Fourth Circuit. But the

claims in those cases did not qualify for a mootness

exception at all. Those cases therefore had no occasion

to address the question presented here: whether a

class-certification motion must be pending before a

named plaintiff’s claim becomes moot for the inherently transitory exception to apply.

In Cruz v. Farquharson, 252 F.3d 530 (1st Cir.

2001), the First Circuit considered a putative class action seeking to require the Immigration and Naturalization Service (INS) to process petitions by citizens

requesting permanent residence for their noncitizen

spouses. Id. at 531. Shortly after the lawsuit was

filed, INS approved the pending petitions of the

tion. See 1 Rubenstein, Newberg and Rubenstein on Class Actions § 2:11 (6th ed. Supp. 2025) (recognizing division of authority only “in the absence of any substantive exception” to mootness, such as “the exception for ‘inherently transitory’ claims”);

Johnathan Lott, Moot Suit Riot: An Alternative View of Plaintiff

Pick-Off in Class Actions, 2013 U. Chi. Legal F. 531, 531, 555

(2013); Daniel A. Zariski et al., Mootness in the Class Action Context: Court-Created Exceptions to the “Case or Controversy” Requirement of Article III, 26 Rev. Litig. 77, 88-99 (2007); Comment, Justiciability—Class Action Mootness—Campbell-Ewald

Co. v. Gomez, 130 Harv. L. Rev. 427, 434-35 (2016); M. Andrew

Campanelli, You Can Pick Your Friends, but You Cannot Pick

Off the Named Plaintiff of a Class Action: Mootness and Offers

of Judgment Before Class Certification, 4 Drexel L. Rev. 523,

534-35 (2012).

17

named plaintiffs and then moved to dismiss on mootness grounds; the named plaintiffs opposed the motion and moved for class certification. Id. at 532-33.

The court of appeals concluded that the case was moot

because the named plaintiffs had received complete

relief in the form of a favorable administrative action.

Id. at 533. And it rejected the argument that various

exceptions to mootness applied. It concluded that the

Sosna exception did not apply because no class had

been certified at the time the named plaintiffs’ claims

became moot. Id. And it concluded that the named

plaintiffs had made “no … showing” that their claims

were inherently transitory or that there was a “realistic threat that no trial court ever [would] have

enough time to decide the underlying issues (or, at

least, to grant a motion for class certification) before

a named plaintiff’s individual claim bec[ame] moot.”

Id. at 535. The court thus had no occasion to address

whether a class-certification motion must be pending

for the inherently transitory exception to apply.

In arguing otherwise, petitioners seize on a footnote in Cruz recognizing that the Third Circuit had

permitted a class action to “endure even though the

named plaintiff’s claims have become moot, as long as

a motion for class certification is pending at the time

that mootness overtakes the plaintiff’s claims.” Pet.

13 (citing Cruz, 252 F.3d at 534 n.3). But the First

Circuit was not discussing the inherently transitory

exception at that point in its opinion, and the Third

Circuit decision it cited did not involve the inherently

transitory exception. See Holmes v. Pension Plan of

Bethlehem Steel Corp., 213 F.3d 124, 136 (3d Cir.

18

2000). The Cruz court ultimately declined to “consider

the correctness” of the picking-off exception

“[b]ecause no such motion was pending when the

claims of the named plaintiffs in this case became

moot.” 252 F.3d at 534 n.3.

Petitioners also cite Breda v. Cellco Partnership,

934 F.3d 1 (1st Cir. 2019), see Pet. 13, but that case is

even further afield. That decision was not about mootness but rather whether the plaintiff’s claim fell under the plain language of the Telephone Consumer

Protection Act. See Breda, 934 F.3d at 3. In a footnote,

the First Circuit stated that “[b]ecause the district

court fully resolved [the named plaintiff’s] personal

claims before she filed a motion for class certification,

any class claims were mooted by the judgment for [defendant].” Id. at 6 n.10. But there is no indication that

the named plaintiff even tried to argue that the inherently transitory exception applied, much less that her

claim could qualify for it.

The Fourth Circuit’s decision in Nestler v. Board

of Law Examiners of the State of North Carolina, 611

F.2d 1380 (4th Cir. 1980), is similarly inapposite.

There, the Fourth Circuit affirmed the district court’s

conclusion that a putative class action seeking injunctive relief against the board of bar examiners had

been mooted by the named plaintiffs’ admission to the

bar. Id. at 1382. The court rejected the plaintiffs’ argument that their claims were “capable of repetition,

yet evading review,” because plaintiffs would “never

again be required to take the North Carolina bar examination or the moral character interview.” Id. It

19

further noted that the expected duration of the named

plaintiffs’ claims—the length of time a person who

had failed the moral character portion of the bar application process was required to wait before reapplying—was three years, “a substantially longer period

than those generally found to satisfy” the inherently

transitory exception. Id. Like the First Circuit, the

Fourth Circuit in Nestler had no occasion to address

whether a class-certification motion must be pending

at the time the named plaintiff’s claim becomes moot

for the inherently transitory exception to apply.

To be sure, in rejecting the named plaintiffs’ argument that the case was not moot, Nestler noted that

the “plaintiffs never moved for class certification.” Id.

But it did so only to emphasize that the Sosna exception did not apply: Because no motion for class certification had been filed, “no plaintiff class was certified,”

and there was no class that existed as a “separate entity.” Id. Nothing about that statement suggests that

a class-certification motion must be pending for the

entirely distinct inherently transitory exception to apply.

In sum, Petitioners do not and cannot identify any

circuit split over whether named plaintiffs must file a

class-certification motion before their individual

claim has been mooted for the inherently transitory

mootness exception to apply.

20

II.

The Decision Below Correctly Applied

Settled Law.

This Court’s review is also unwarranted because

the Sixth Circuit correctly applied the Court’s precedent in concluding that Patton’s case could proceed

under the inherently transitory exception. Petitioners’ arguments to the contrary are wrong and conflate

the rationales for the two distinct mootness exceptions.

1. As noted above, see supra pp. 10-11, the Court

for more than 50 years has recognized two mootness

exceptions applicable to class actions. First, under

Sosna, a named plaintiff may continue representing a

class that was certified before her individual claim became moot. See 419 U.S. at 399-402. The Court reasoned in Sosna that, upon class certification, the class

“acquired a legal status separate from the interest asserted by” the named plaintiff, and it was “clear” that

the challenged law would continue to be enforced

“against those persons in the class that [the named

plaintiff] sought to represent.” Id. at 399-400. Although the case was “no longer alive” or even “capable

of repetition, yet evading review” as to the named

plaintiff, it “remain[ed] very much alive for the class

of persons she ha[d] been certified to represent.” Id.

at 401. The requisite Article III case or controversy

21

therefore continued to exist between the named defendant “and a member of the class represented by the

named plaintiff.” Id. at 402. 4

Sosna also anticipated a separate exception for inherently transitory claims. Id. at 402 n.11. It noted

that, with respect to class actions, “[t]here may be

cases in which the controversy involving the named

plaintiffs is such that it becomes moot as to them before the district court can reasonably be expected to

rule on a certification motion.” Id. In such cases, the

certification may “‘relate back’ to the filing of the complaint,” “depend[ing] upon the circumstances of the

particular case and especially the reality … that otherwise the issue would evade review.” Id.

In Gerstein, this Court officially recognized the inherently transitory exception and identified one type

of class action that is among the “narrow class of cases

in which the termination of a class representative’s

4 In U.S. Parole Commission v. Geraghty, 445 U.S. 388 (1980),

this Court extended the Sosna exception to permit a named

plaintiff to maintain an appeal of the denial of class certification

after his individual claim became moot. Id. at 402-04. It held

that “[a] plaintiff who brings a class action presents two separate

issues for judicial resolution”—“the claim on the merits” and “the

claim that he is entitled to represent a class”—and that he retains a “personal stake” in obtaining class certification even after

his individual claim becomes moot. Id. at 402. If the class certification denial was reversed on appeal and a class was subsequently properly certified, the named plaintiff could thereafter

litigate the merits of the class claim consistent with Sosna. Id.

22

claim does not moot the claims of the unnamed members of the class”—those involving “pretrial detention.” 420 U.S. at 110 n.11. It noted that pretrial detention is “by nature temporary, and it is most unlikely that any given individual could have his constitutional claim decided on appeal before he is either

released or convicted.” Id.; see also id. (noting that it

was “by no means certain that any given individual,

named as plaintiff, would be in pretrial custody long

enough for a district judge to certify the class”). Such

persons could suffer “repeated deprivations,” and it is

“certain that other persons similarly situated will be

detained under the allegedly unconstitutional procedures,” “with a continuing live interest in the case.”

Id.; see also id. (noting that in the case before it, “the

constant existence of a class of persons suffering the

deprivation is certain”).

Since Gerstein, this Court has reiterated that

courts have jurisdiction to review the merits of a pretrial detention class action where “the class was not

certified until after the named plaintiffs’ claims had

become moot.” Cnty. of Riverside v. McLaughlin, 500

U.S. 44, 52 (1991). “In such cases, the ‘relation back’

doctrine is properly invoked to preserve the merits of

the case for judicial resolution.” Id.; see also Nielsen v.

Preap, 586 U.S. 392, 403-04 (2019) (plurality opinion);

United States v. Sanchez-Gomez, 584 U.S. 381, 388

(2018); Schall v. Martin, 467 U.S. 253, 256 n.3 (1984);

Swisher v. Brady, 438 U.S. 204, 213 n.11 (1978).

Whether the exception applies “focuse[s] on the fleeting nature of the challenged conduct giving rise to the

claim.” Genesis Healthcare, 569 U.S. at 75-77; see also

23

Sanchez-Gomez, 584 U.S. at 388 (the Gerstein “exception applies when the pace of litigation and the inherently transitory nature of the claims at issue conspire

to make” the general requirement of a plaintiff with a

live claim at the time of class certification “difficult to

fulfill”). Though pretrial detention is the quintessential example of an inherently transitory claim, courts

of appeals have recognized other claims that fall into

the “narrow class of cases,” Gerstein, 420 U.S. at 110

n.11, to which the exception applies. See, e.g., Doe v.

Hochul, 139 F.4th 165, 184 (2d Cir. 2025) (putative

class action challenging state law decriminalizing

abortion brought on behalf of class of unborn fetuses);

Wilson v. Gordon, 822 F.3d 934, 945 (6th Cir. 2016)

(putative class action challenging agency failure to

timely hold Medicaid hearings); Belgau v. Inslee, 975

F.3d 940, 949-50 (9th Cir. 2020) (putative class action

by former union members challenging inability to immediately cease dues contributions upon resignation).

2. The Sixth Circuit correctly held that Gerstein

and its progeny control here. See Pet. App. 19a-20a.

As the court noted, lower courts “have distilled from

Gerstein two requirements for the ‘inherently transitory’ exception to apply: (1) that the injury be so transitory that it would likely evade review by becoming

moot before the district court can rule on class certification, and (2) that it is certain other class members

are suffering the injury.” Id. at 20a (quoting Wilson,

822 F.3d at 945). In this case, the first requirement

was “clearly met in light of Gerstein,” as “[p]retrial detention is by its very nature temporary.” Id. The second was also met in light of Patton’s allegations that

24

while the “precise size of the class is unknown,” it is

“substantial, given that numerous (likely hundreds

of) applicable arrests are made each year.” Id. (quoting Am. Compl. ¶ 54). Indeed, petitioners did not dispute that Patton’s allegations satisfied the two prongs

of the inherently transitory exception. See id.

Instead, petitioners asserted that the inherently

transitory exception did not apply because Patton had

not filed a motion for class certification by the time

his claim became moot. See id. The Sixth Circuit correctly rejected that argument. Id. at 20a-25a. As the

court explained, petitioners’ preferred rule is at odds

with the “rationale animating the ‘inherently transitory’ exception.” Id. at 21a. By definition, inherently

transitory claims are time-bound, and a “named

plaintiff for a putative class may be able to file a suit

in time to have standing but may not have enough

time to file a supported motion for class certification.”

Id. at 21a-22a. 5 In such circumstances, the case may

continue because the named plaintiff will not have the

“opportunity to file a motion for class certification to

preserve their claims from becoming moot.” Id. at 22a.

The Sixth Circuit also recognized the significant

practical challenges that petitioners’ preferred rule

would create for district courts in managing their

5 Indeed, this case demonstrates the short time that can elapse

between the filing of a complaint and the mooting of an inherently transitory claim: Patton’s own claims were mooted when

he pleaded guilty just one week after he filed his complaint and

was released from pretrial detention to probation.

25

dockets. A rule that the inherently transitory exception applies only if a class-certification motion is

pending would lead plaintiffs to “file so-called ‘placeholder’ motions for class certification solely to prevent

defendants from mooting the claims of would-be class

representatives.” Id. at 25a (quoting Richardson, 829

F.3d at 284). The problems “posed by premature and

meritless placeholder motions for class certification”

have been well documented. Id. Petitioners’ approach

would require plaintiffs to “race to the courthouse to

file empty, placeholder motions that may or may not

ever be litigated”; “seem[s] contrary to the spirit” of

Federal Rule of Civil Procedure 11(b); and “serves to

strain judicial resources, tax a court’s economy, and

force litigants and counsel to engage in pretense.” Id.

(first quoting Church v. Accretive Health, Inc., 299

F.R.D. 676, 679 (S.D. Ala. 2014), then quoting Smith

v. Interline Brands, Inc., 87 F. Supp. 3d 701, 703

(D.N.J. 2014)); see also id. (collecting cases); Richardson, 829 F.3d at 284 (collecting cases).

The Sixth Circuit also properly rejected petitioners’ argument that Patton “skewered his own claims

by sitting on his right to file a motion for class certification.” Pet. App. 24a. Although “timing matters

when applying the relation-back doctrine,” petitioners’ argument that Patton had not moved quickly

enough did not “square with the record.” Id. Most notably, the parties had asked the district court to set a

date for the filing of a motion for class certification

several times, but the district court declined to do so.

Id. In light of his diligence, Patton was not “required

26

to file a placeholder motion simply to preserve his

class-action claims.” Id.

3. Petitioners’ contrary arguments confuse the rationales for the two mootness exceptions. As explained above, see supra pp. 20-21, under the Sosna

exception, the normal rule that a named plaintiff

must maintain a concrete stake in the controversy

throughout the litigation is excused if a class has been

certified. See Sosna, 419 U.S. at 402-03. That is because the class of unnamed persons have a “legal status separate from the interest asserted by” the named

plaintiff. Id. at 399. Article III’s requirement is met

by the ongoing controversy between the defendant

and a “member of the class represented by the named

plaintiff.” Id. at 402.

Petitioners’ argument that the requisite “legal status” for the unnamed class members attaches at the

moment a class-certification motion is filed, see Pet.

21, appears to be at odds with Sosna, which holds that

the necessary legal status vests when a class is certified. See Sosna, 419 U.S. at 399, 402. 6 But whatever

the merits of petitioners’ argument with respect to the

Sosna exception, it has nothing to do with the excep-

6 Petitioners’ approach is also at odds with Federal Rule of Civil

Procedure 23, which does not require that a motion be filed before a class can be certified. See Fed. R. Civ. P. 23(c)(1)(A); see

also Ann. Manual Complex Lit. § 21.11 n.742 (4th ed. 2004) (“A

court may act on its own initiative in deciding whether to certify

a class.”).

27

tion at issue here—the inherently transitory exception. The Sosna exception applies in cases in which a

district court can, in the normal course, rule on a

class-certification motion before the controversy between the named plaintiff and the defendant becomes

moot, thereby creating a class with the necessary “legal status” for the case to continue. Id. at 399.

In contrast, the inherently transitory exception is

reserved for cases in which the district court cannot

“reasonably be expected to rule on a certification motion” before the controversy between the named plaintiff and the defendant becomes moot. Id. at 402 n.11;

see also Gerstein, 420 U.S. at 110 n.11. In such cases,

the named plaintiff may continue litigating the case

not because the unnamed class members have acquired a “legal status” by virtue of class certification.

Cf. Sosna, 419 U.S. at 399. Instead, the named plaintiff may proceed because if he could not, “the transitory nature of the conduct giving rise to the suit would

effectively insulate defendants’ conduct from review.”

Genesis Healthcare, 569 U.S. at 76. As noted, the applicability of this exception “has invariably focused on

the fleeting nature of the challenged conduct giving

rise to the claim,” id. at 76-77—not whether a class

with a legal interest separate and apart from that of

the named plaintiff has been certified. Moreover,

there will always be “someone with a live interest” in

the case. See Pet. 24 (emphasis omitted). To proceed

under the inherently transitory exception, a named

plaintiff must show that “the constant existence of a

class of persons suffering the deprivation is certain.”

28

Gerstein, 420 U.S. at 110 n.11; accord SanchezGomez, 584 U.S. at 386.

Petitioners’ other critiques of the Sixth Circuit’s

reasoning lack merit. The decision below does not rely

on “‘[p]ractical’ considerations” to overcome any “Article III deficiency.” Pet. 24 (quoting Pet. App. 25a).

Rather, it involves a straightforward application of

Gerstein, which held that Article III is satisfied if the

conditions for the inherently transitory exception are

met. See 420 U.S. at 110 n.11. Nor does the decision

below “clash[] with” the requirement in associational

and third-party standing cases that there be “someone with a live interest” in the case. Pet. 24 (emphasis

omitted). As the court of appeals recognized—and as

petitioners have not disputed—Patton has alleged

that there are “likely hundreds” of people who will be

subject to Rutherford County’s source hearing rule

every year. Pet. App. 20a.

Petitioners’ “jurisdictional puzzle[]” argument, see

Pet. 23, rests on a similar misunderstanding of how

the inherently transitory exception operates. The exception does not depend on speculation about whether

a named plaintiff might someday move for class certification. It applies when, at the outset of a putative

class action, the nature of the challenged conduct

makes it certain that the claim’s transitory duration

will otherwise preclude review and that other people

are presently subject to the same harm. See Gerstein,

420 U.S. at 110 n.11. Under those circumstances, the

relation-back doctrine preserves jurisdiction from the

moment the complaint is filed; there is no “toggle,”

29

Pet. 23, between mootness and non-mootness depending on later litigation choices. See Genesis Healthcare,

569 U.S. at 76-77 (availability of the exception turns

on “the fleeting nature of the challenged conduct,” not

procedural posture).

Finally, petitioners are wrong that the decision below creates “asymmetrical preclusion” problems. Pet.

23. To be sure, if a defendant prevails on the merits of

a named plaintiff’s claim before a class is certified,

that ruling would not bind the class unless a class is

later certified. But that is true with respect to all class

actions. See Smith v. Bayer Corp., 564 U.S. 299, 315

(2011). And if a class is eventually certified in this

case, any adverse judgment on the merits would

thereafter bind all members of the class. See Sosna,

419 U.S. at 399 n.8. In any event, the same problem

would arise under petitioners’ preferred rule. If a defendant secured a favorable decision on the merits

while a motion for class certification was pending,

that judgment would bind only the named plaintiff.

III.

This Case Does Not Raise an Important

Question of Federal Law.

Petitioners do not and cannot identify any issue of

“utmost importance” in the decision below. See Pet.

17. As discussed above, see supra p. 10-19, the decision does not implicate any “divide over [a] jurisdictional question”—much less an “intolerable” one, see

Pet. 2. Nor will it result in courts issuing “advisory

opinions,” id. at 18, as this Court has already recognized that Article III is satisfied in class actions

30

where, as here, it is “most unlikely that any given individual could have his constitutional claim decided

on appeal before he is either released or convicted,”

and it is “certain that other persons similarly situated

will be detained under the allegedly unconstitutional

procedures.” Gerstein, 420 U.S. at 110 n.11.

Petitioners’ practical arguments are equally unavailing. Neither the overall number of class actions

nor their “significant costs,” Pet. 19, justifies review

in this case, which falls within the “narrow class of

cases in which the termination of a class representative’s claim does not moot the claims of the unnamed

members of the class,” Gerstein, 420 U.S. at 110 n.11.

In any event, petitioners’ preferred rule would do little to redress their concerns. Plaintiffs could simply

“file empty, placeholder motions that may or may not

ever be litigated” alongside their complaints—a practice the court of appeals rightly warned would “strain

judicial resources, tax a court’s economy, and force litigants and counsel to engage in pretense.” Pet. App.

25a (quoting Church, 299 F.R.D. at 679). Petitioners

offer no reason for this Court to impose a rule that

would mandate such a wasteful practice.

31

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

Elizabeth R. Cruikshank

Counsel of Record

Kelsi Brown Corkran

Samuel P. Siegel

INSTITUTE FOR CONSTITUTIONAL

ADVOCACY AND PROTECTION,

GEORGETOWN LAW

600 New Jersey Avenue NW

Washington, DC 20001

(202) 662-4048

erc56@georgetown.edu

October 20, 2025

Drew Justice

THE JUSTICE LAW OFFICE

1902 Cypress Drive

Murfreesboro, TN 37130