Mootness: An Explanation of the Justiciability Doctrine

Mootness: An Explanation

of the Justiciability Doctrine

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Legislative Attorney

February 7, 2007

Congressional Research Service

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RS22599

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Mootness: An Explanation of the Justiciability Doctrine

Summary

A case pending before a federal court may at some point in the litigation process lose an element

of justiciability and become “moot.” Mootness may occur when a controversy initially existing at

the time the lawsuit was filed is no longer “live” due to a change in the law or in the status of the

parties involved, or due to an act of one of the parties that dissolves the dispute. When a federal

court deems a case to be moot, the court no longer has the power to entertain the legal claims and

must dismiss the complaint. However, the U.S. Supreme Court over time has developed several

exceptions to the mootness doctrine. This report provides a general overview of the doctrine of

“mootness,” as the principle is understood and used by federal courts to decide whether to dismiss

certain actions for lack of jurisdiction.

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Mootness: An Explanation of the Justiciability Doctrine

Contents

Introduction ..........................................................................................................................1

The Justiciability Doctrines .............................................................................................1

Article III Mootness ........................................................................................................2

Prudential Mootness........................................................................................................3

Exceptions to the Mootness Doctrine ....................................................................................4

Possibility of Collateral Legal Consequences ..................................................................4

Conduct Capable of Repetition, Yet Evading Review.......................................................4

Voluntary Cessation ........................................................................................................5

Class Action Litigation....................................................................................................5

Contacts

Author Contact Information ........................................................................................................6

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Mootness: An Explanation of the Justiciability Doctrine

Introduction

The Justiciability Doctrines

Under Article III of the U.S. Constitution, the jurisdiction of federal courts is limited to actual,

ongoing cases and controversies.1 From this constitutional requirement comes several

“justiciability” doctrines that may be invoked in federal court actions that could prevent plaintiffs

from maintaining a legal claim against defendants.2 The four justiciability doctrines are standing,

ripeness, political question, and mootness. These doctrines will render a controversy

“nonjusticiable” if a court decides that any one of them applies.

Standing addresses whether the plaintiff is the proper party to assert a claim in federal court.3

Ripeness considers whether a party has brought an action too early for adjudication.4 The political

question doctrine makes nonjusticiable controversies that involve an issue constitutionally

committed to the political branches of government. 5

There are two types of mootness: Article III mootness and prudential mootness.6 As the name

implies, the former is derived from the constitutional requirement that judicial power be exercised

only in “cases” or “controversies.”7 The latter concerns a federal court’s discretion to withhold

1

U.S. CONST. art. III, § 2, cl. 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 Land under Grants of different States, and between a State, or the Citizens thereof, and foreign

States, Citizens or Subjects.”).

2

Justiciability “is the term of art employed to give expression to [the] limitation placed upon federal courts by the caseand-controversy doctrine.” Flast v. Cohen, 392 U.S. 83, 95 (1968). Whether a legal claim is justiciable is, in essence,

asking “whether it is a claim that may be resolved by the courts.” Nixon v. United States, 506 U.S. 224, 226 (1993).

3

Standing has three components: injury in fact, causation, and redressability. First, the plaintiff must allege (and prove)

an “injury in fact”—a concrete harm that has been or imminently will be suffered by him or her. Second, there must be

causation—a connection between the plaintiff’s injury and the complained-of conduct of the defendant. And third,

there must be redressability—a likelihood that the requested judicial relief will redress the injury. Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61 (1992).

4

An example of an unripe case is when a federal court is asked to render a declaratory judgment that a statute or

regulation is invalid or unconstitutional, yet it is unlikely that the plaintiff will suffer a hardship without preenforcement review of that law.

5

Baker v. Carr, 369 U.S. 186, 217 (1962) (“Prominent on the surface of any case held to involve a political question is

found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of

judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial

policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking

independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual

need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from

multifarious pronouncements by various departments on one question.”).

6

Ali v. Cangemi, 419 F.3d 722, 723 (8th Cir. 2005).

7

Liner v. Jafco, 375 U.S. 301, 306 n. 3 (1964). For an argument that the mootness doctrine should not be

constitutionally based, see Evan Tsen Lee, Deconstitutionalizing Justiciability: The Example of Mootness, 105 HARV.

L. REV. 605 (1992). Former Chief Justice William Rehnquist asserted that the mootness doctrine is not constitutionally

based, or not sufficiently based only on Article III, such that the Supreme Court should not dismiss cases that have

become moot after the Court has taken them for review. Honig v. Doe, 484 U.S. 305, 329 (1988) (Rehnquist, C.J.,

concurring). Justice Antonin Scalia, however, rejected that view in a dissent in that case, emphasizing that the mootness

doctrine has “deep roots in the common-law understanding, and hence the constitutional understanding, of what makes

(continued...)

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Mootness: An Explanation of the Justiciability Doctrine

use of judicial power in suits that—while not actually moot—should be treated as moot for

“prudential” reasons.

Article III Mootness

Usually, a case or controversy must exist throughout all stages of federal judicial proceedings,

and not just when the lawsuit is filed or when review is granted by an appellate court.8 The

dispute must concern “live” issues, and generally, the plaintiffs must have a personal interest in

the outcome of the case.9 The Supreme Court has described mootness as follows:

The “personal stake” aspect of mootness doctrine ... serves primarily the purpose of assuring

that federal courts are presented with disputes they are capable of resolving. One

commentator has defined mootness as “the doctrine of standing set in a time frame: The

requisite personal interest that must exist at the commencement of the litigation (standing)

must continue throughout its existence (mootness).”10

When a legal claim becomes moot while awaiting appellate review, the established practice is for

the federal appeals court to reverse or vacate the judgment below and to remand the case to the

district court with an instruction to dismiss the action.11 That consequence is because a moot case

does not qualify as a “case or controversy” under Article III; due to the lack of jurisdiction,

federal courts have no power to consider the merits of a constitutionally moot case.12

Cases may be rendered moot because of a change in the status of the parties or in the law, or

because of an act of one of the parties that dissolves the controversy. The following paragraphs

provide examples of these scenarios.

Change in the Status of the Parties

When a white law school applicant challenged the constitutionality of a public law school’s

affirmative action admissions policy, he was admitted to the school pursuant to a trial court ruling

that found in his favor. During his second year of law school, the state’s supreme court reversed

the lower court’s decision. By the time the Supreme Court granted certiorari to hear the case, the

student was in his final school term. The Court dismissed the case as moot because “the petitioner

will complete his law school studies at the end of the term for which he has now registered

regardless of any decision this Court might reach on the merits of this litigation....”13

(...continued)

a matter appropriate for judicial disposition.” Honig, 484 U.S. at 339 (Scalia, J., dissenting).

8

Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990).

9

Id.

10

United States Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980), quoting Henry P. Monaghan, Constitutional

Adjudication: The Who and When, 82 YALE L. J. 1363, 1384 (1973).

11

Arizonans for Official English v. Arizona, 520 U.S. 43, 71 (1997), quoting United States v. Munsingwear, Inc., 340

U.S. 36, 39 (1950).

12

Powell v. McCormack, 395 U.S. 486, 496 n.7 (1969).

13

De Funis v. Odegaard, 416 U.S. 312, 319 (1974).

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Mootness: An Explanation of the Justiciability Doctrine

Change in the Law

A lawsuit was filed claiming that the suspension and termination of disability benefit payments

under the Social Security Act violated the procedural due process rights of the recipients. Before

oral argument before the Supreme Court, the Secretary of Health, Education, and Welfare adopted

new regulations governing the procedures to be followed by the Social Security Administration in

determining whether to suspend or terminate disability benefits. In light of this development, the

Court held “that the appropriate course is to withhold judicial action pending reprocessing, under

the new regulations, of the determinations here in dispute. If that process results in a

determination of entitlement to disability benefits, there will be no need to consider the

constitutional claim that claimants are entitled to an opportunity to make an oral presentation.”14

An Act That Dissolves the Controversy

A prison inmate was transferred by corrections authorities, without notice or an opportunity for a

hearing, from a medium security prison to a maximum security prison. The inmate filed a lawsuit

alleging a violation of his due process rights under the Fourteenth Amendment of the U.S.

Constitution; however, while his appeal was pending, he was transferred twice, first back to the

medium security facility and thereafter to a minimum security institution. The Supreme Court

held that the suit no longer presented a case or controversy, and thus dismissed the case as moot.15

Prudential Mootness

Equitable, or prudential mootness, has been referred to as the “cousin of the mootness doctrine”

and described as

relating to the court’s discretion in matters of remedy and judicial administration. Unlike

Article III mootness, [it] address[es] not the power to grant relief but the court’s discretion in

the exercise of that power. In some circumstances, a controversy, not actually moot, is so

attenuated that considerations of prudence and comity for coordinate branches of government

counsel the court to stay its hand, and to withhold relief it has the power to grant.16

Thus, while a case may not be moot for failure to meet Article III’s requirements, a court may

nevertheless “treat [the case] as moot for prudential reasons” and decline to exercise judicial

power in the case. 17

The doctrine of prudential mootness is often applied in cases where the federal court declines to

grant the plaintiff’s request for declaratory judgment or injunctive relief because the defendant

“has already changed or is in the process of changing its policies or where it appears that any

repeat of the actions in question is otherwise highly unlikely.”18 The Supreme Court has explained

14

Richardson v. Wright, 405 U.S. 208, 209 (1972).

Preiser v. Newkirk, 422 U.S. 395 (1975).

16

Chamber of Commerce v. U.S. Dep’t of Energy, 627 F.2d 289, 291 (D.C. Cir. 1980).

17

United States v. (Under Seal), 757 F.2d 600, 603 (4th Cir. 1985). These prudential reasons “have to do both with [a

court’s] inability to give an effective remedy under the circumstances now developed and with the imprudence of

deciding on the merits a difficult and sensitive constitutional issue whose essence has been at least substantially altered

by supervening events; which is not likely to recur in its original form in respect of” the parties involved. Id.

18

Building & Constr. Dep’t v. Rockwell Int’l Corp., 7 F.3d 1487 , 1492 (10th Cir. 1993), citing United States v. W.T.

(continued...)

15

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Mootness: An Explanation of the Justiciability Doctrine

that the burden on the party asking the court to dismiss a case on prudential mootness grounds is a

“heavy one,” as the movant (usually the defendant) must “demonstrate that there is no reasonable

expectation that the wrong will be repeated.”19

Exceptions to the Mootness Doctrine

The Supreme Court has recognized several exceptions to the mootness doctrine that, if found to

apply to a case, would permit federal court adjudication of the dispute.

Possibility of Collateral Legal Consequences

In Sibron v. New York, an individual convicted of unlawful possession of heroin had completed

service of his prison sentence prior to Supreme Court review of the case. The Court explained

that the case was not moot:

Although the term has been served, the results of the conviction may persist. Subsequent

convictions may carry heavier penalties, civil rights may be affected. As the power to

remedy an invalid sentence exists, we think, respondent is entitled to an opportunity to

attempt to show that this conviction was invalid.20

This exception to the mootness doctrine thus applies in the criminal context, when there is a

“possibility that any collateral legal consequences will be imposed on the basis of the challenged

conviction.”21 Even a “remote” possibility of such consequences is enough to save a criminal case

from becoming moot.22

Conduct Capable of Repetition, Yet Evading Review

Some disputes or injuries may arise in the short-term and have the potential for recurrence, but

always fail to last long enough to permit federal judicial review. In such a situation, federal courts

have justified an exception to the mootness doctrine. A classic example is the landmark abortion

case, Roe v. Wade. The Supreme Court explained why the exception should be invoked in this

instance:

[W]hen, as here, pregnancy is a significant fact in the litigation, the normal 266-day human

gestation period is so short that the pregnancy will come to term before the usual appellate

process is complete. If that termination makes a case moot, pregnancy litigation seldom will

survive much beyond the trial stage, and appellate review will be effectively denied. Our law

(...continued)

Grant Co., 345 U.S. 629(1953); A.L. Mechling Barge Lines, Inc. v. United States, 368 U.S. 324 (1961); Chamber of

Commerce v. U.S. Dep’t of Energy, 627 F.2d 289 (D.C. Cir. 1980); New Mexico v. Goldschmidt, 629 F.2d 665 (10th

Cir. 1980).

19

W.T. Grant Co., 345 U.S. at 633 (internal quotations and citation omitted).

20

Sibron v. New York, 392 U.S. 40, 55 (1968) (quoting United States v. Morgan, 346 U.S. 502, 512-13 (1954)).

21

Id. at 57.

22

Benton v. Maryland, 395 U.S. 784, 790-91 (1969).

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should not be that rigid. Pregnancy often comes more than once to the same woman, and in

the general population, if man is to survive, it will always be with us.23

However, the Court has held that this exception applies only in “exceptional situations,” where

the plaintiff “can make a reasonable showing that he will again be subjected to the alleged

illegality.”24

Voluntary Cessation

If a defendant voluntarily terminates the allegedly unlawful conduct after the lawsuit has been

filed but retains the power to resume the practice at any time, a federal court may deem the case

nonmoot.25 The “heavy burden” of persuading the court that a case has been mooted by the

defendant’s voluntary actions lies with the party asserting mootness, and the standard for such a

determination is a “stringent” one: “if subsequent events ma[ke] it absolutely clear that the

allegedly wrongful behavior [can] not reasonably be expected to recur.”26 This exception is

supported by the Supreme Court because, in addition to ensuring that the defendant is not “free to

return to his old ways,” there is “a public interest in having the legality of the practices settled.”27

For example, an environmental group had filed a citizen suit under the Clean Water Act against

Laidlaw, a company that operated a wastewater treatment plant, alleging that the plant had

discharged far more toxic pollutants into a river than it was allowed under terms of a governmentissued permit. However, after the lawsuit began, Laidlaw began to comply with the discharge

limit. The Supreme Court held that this case was not moot because it was a “disputed factual

matter” whether the company’s substantial compliance with its permit requirements, or its closure

of the facility in question (which had occurred after the court of appeals had issued its decision),

would make “it absolutely clear that Laidlaw’s permit violations could not reasonably be

expected to recur.”28

Class Action Litigation

When the claim of the named plaintiff in a certified class action becomes moot, the class action

will not be dismissed so long as a member of the class continues to have a sufficiently adversarial

relationship to constitute a live controversy. For example, a plaintiff brought a class action to

challenge a one-year residency requirement in a state divorce statute, on the ground that it

violated the U.S. Constitution. By the time her case reached the Supreme Court, she had long

since satisfied the state’s durational residency requirement, a development that, had she filed the

suit only on her own behalf, would have made the case moot because she no longer retained a

personal stake in the outcome. However, the Court noted the significant fact that she had brought

the lawsuit as a class action in a representative capacity, which affected the mootness

determination: “When the District Court certified the propriety of the class action, the class of

unnamed persons described in the certification acquired a legal status separate from the interest

23

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

City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983) (citation omitted).

25

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000).

26

Id., citing United States v. Concentrated Phosphate Export Assn., Inc., 393 U.S. 199, 203 (1968).

27

United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953) (citation omitted).

28

Laidlaw, 528 U.S. at 193.

24

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Mootness: An Explanation of the Justiciability Doctrine

asserted by [the named representative],” and therefore the Article III “cases or controversies”

requirement was satisfied. 29

Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

29

Sosna v. Iowa, 419 U.S. 393, 399 (1975).

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