Mootness Madness: The Government’s Favorite Underhanded Litigation Tool and How you Can Fight It

Litigation against the government is costly in time and resources, and the scales are heavily weighted in favor of the government.[1] Beyond the general bias the courts can often show to the government, the government utilizes an extraordinarily powerful tool: seeking a dismissal of the lawsuit based on mootness. A case becomes “moot” if, at some point after the lawsuit begins, the plaintiff no longer has a legally cognizable stake in the outcome and is unable to be rewarded effectual relief.[2] In other words, whatever illegal action the plaintiff was trying to stop has now been stopped, so the court cannot grant relief. This might seem to be a win-after all, the government has stopped breaking the law. But the government frequently abuses the doctrine of mootness, acting unlawfully for as long as it can until it is likely to face an adverse ruling from the court, at which point it “stops” its illegal action and seeks to dismiss. Although there are several exceptions to mootness that would allow a court to rule on the merits of a case, the courts all too often allow the government to abuse the legal system and get away with mooting its own cases. Because of this, a litigant must be prepared to face a mootness challenge in any government litigation and know how to overcome it. This article will outline the contours of the mootness and prudential mootness doctrines, the main exceptions, and one option available to litigants if your case is mooted.

To bring a lawsuit, a plaintiff needs to show a “case or controversy” under Article III of the US Constitution. That is, the plaintiff must have proper standing to bring that lawsuit, which requires showing three elements: 1) the plaintiff suffered an “injury in fact”—in other words, an invasion of a legally protected interest, 2) there is a causal connection between the injury and conduct being complained of, and 3) it is likely that the injury will be result in a favorable decision.[3] Mootness is, in simpler terms, the doctrine of standing set in a legal time frame—the personal interest existing at the beginning of the lawsuit must continue throughout its entirety.[4] Recently, for example, Minnesota residents filed suit against the Governor for an executive order making face coverings mandatory in indoor public places.[5] However, the case was dismissed as moot because the executive order being challenged was no longer in effect.[6] Needless to say, the “live controversy” aspect is critical in obtaining a favorable ruling.

You may also encounter something called prudential mootness. This occurs when a case is dismissed which is not actually moot, but the government asserts that controversy is so attenuated that the court shouldstay its hand and withhold relief.[7] Basically, the government argues that, even though the case is still live, it is so unlikely that the court’s grant of relief would cure the plaintiff’s injury.[8] One recent example of this is the temporary emergency rule enacted by the National Marine Fisheries Service (NMFS), which prohibited fishery buoy lines in specific areas of Massachusetts.[9] When challenged, NMFS attempted to dismiss on prudential mootness grounds, arguing it was going to lift the temporary emergency rule so there was no point in ruling.[10] The court ultimately dismissed the case as moot on grounds that the emergency rule had expired, not prudential mootness grounds.[11] The prudential mootness doctrine is, in this writer’s opinion, abhorrent. It allows the court to dismiss a meritorious claim, that is still valid, simply because the agency promises to stop breaking the law soon. Courts should soundly reject this doctrine, but, for now, the doctrine remains viable.

Of course, just because the government brings a mootness challenge does not mean plaintiffs are left without remedy. There are three main exceptions to mootness a plainitff can assert to keep their case live: (1) capable of repetition yet evading review; (2) voluntary cessation; and (3) public interest.

One common exception to the mootness doctrine is whether the action is capable of repetition yet evading review. Although this exception is well established by federal courts, it is generally construed quite narrowly across circuit courts.[12]  In simple terms, the defendant is capable of repeating its complained of-action, but the action will likely cease before the end of the lawsuit, precluding a court from granting relief. The Supreme Court has asserted that, in order to invoke the “capable of repetition” exception, the party arguing for it has the burden of showing 1) the challenged action is in its duration too short to be fully litigated prior to its cessation, and 2) there is a reasonable expectation that the complaining party will be subject to the same action again.[13] It is important to note that the action must be an imminent threat in order for this exception to prevail; remote and speculative future harms, on the other hand, are insufficient to prevent a case from becoming moot.[14] This exception was successful in Moore v. Hosemann, where a presidential candidate sued Mississippi’s Secretary of State after being left off the state’s presidential ballot.[15] The candidate challenged the enforcement of a 5PM deadline for filing qualifying papers, and the court found this exception applied because 1) the action could not be fully litigated before the election and 2) the Secretary made it plain that he intended to enforce the deadline in future elections.[16] Still, as this exception is admittedly construed narrowly, the court too often overlooks other imminent harms posed by the government. Moving forward, it would behoove reviewing courts to more carefully consider these harms before excusing government actions.

Voluntary cessation may also provide grounds for a federal court to deny a motion to dismiss on mootness grounds. The voluntary cessation document holds, essentially, that a party should not be allowed to moot a case by choosing to stop violating the law solely to avoid an adverse ruling. Typically, the party attempting to moot the case must demonstrate that 1) there is no reasonable expectation that the alleged violation will recur, and 2) interim relief or events have completely or irrevocably eradicated the effects of the alleged violation.[17] This exception is also difficult to invoke, as the party must provide evidence that the challenged law will be re-enacted.[18] The government’s mere power to re-enact a challenged law, for example, is insufficient to dispute mootness.[19] Furthermore, declaratory and injunctive relief is deemed “inappropriate” where interim relief fully alleviates the party of any residual effects of the unlawful action.[20] Recently in D.C., former pre-school age children with disabilities brought a class action on grounds that the District failed to provide special education and other services in violation of the Individuals with Disabilities Act, Rehabilitation Act, and District law.[21] The court found that defendants began to comply in direct response to the litigation, making it difficult to demonstrate recurrence is unlikely.[22] As the defendant’s cessation is relevant to the voluntary cessation analysis, the District Court found that the exception applied and the case was not rendered moot.[23] Although the court’s recognition of this exception in certain cases is a step forward, it must extend this acknowledgment to other relevant scenarios.

If you are litigating against a state government, a motion to dismiss based on mootness may also be challenged on grounds of public interest, although applicability of this exception varies across state jurisdictions. In general, this exception is typically invoked where an otherwise moot issue presents a question that concerns the rights or powers of the state as a whole.[24] While not available in most states, the public interest is available in a minority of states, including Illinois and North Dakota. In Illinois, for example, application the public interest exception requires the showing of three criteria: 1) the question presented is of a public nature; 2) an authoritative determination of the question is desirable for the future guidance of public officers; and 3) the question is likely to recur.[25] This exception was invoked in Koshinski v. Trame, in which a firearm licensee filed suit and alleged a temporary revocation of his right to possess firearms due to an ex parte emergency order of protection entered against him without notice or opportunity to be heard was a violation of constitutional rights.[26]North Dakota courts, on the other hand, simply require that the moot issue involve a question of great public interest or have statewide ramifications.[27] More specifically, “public interest” is construed to mean something that the community at large has a pecuniary or legal interest in.[28] An recent example of when this exception prevailed is Schwartzenberger v. McKenzie County Board of County Commissioners, in which the court ruled that requests for attorney general opinions from various public officials reflect implications involving the public interest, and therefore the issues raised in the case were not moot.[29] Evidently, some jurisdictions are far more strict than others. Still, even with this exception, the courts will often use a softer hand when the defendant is a government entity.[30] While a potentially powerful exception for litigants, the exception is woefully under-adopted by most states and is not available against the federal government, making it an unfortunately limited tool.

Assuming a court was unwilling to entertain any of the mootness exceptions, an appellate litigant has one last option it can pursue, if the mootness occurs after the trial court has issued its judgment.  Federal courts’ standard practice in disposing of a case that has been rendered moot on appeal is to vacate the underlying judgment with directions to dismiss.[31] Many states have joined in this practice as well.[32] The purpose of such a practice, as stated in U.S. v. Munsingwear, is that “those who have been prevented from obtaining the review…should not be treated as if there had been a review.”[33] While a poor consolation prize, this at least removes the lower court opinion in favor of the government, ensuring that the government is not able to rely on an opinion that plaintiff lost the right to validly challenge. Not only does vacating benefit the present party, but more importantly, it prevents future parties from relitigating the same issue that the court ultimately found moot.[34]

Arguably, given the importance of ensuring the government complies with the law, the government should be held to a higher standard for mootness than with a non-government actor. Unfortunately, the Supreme Court has yet to voice an opinion as to whether government defendants should be subject to different standards under the mootness doctrine.[35] It is unlikely that it will do so. Thus, litigants should be prepared to face a court predisposed to rule in favor of the government on any mootness challenge.

If you are seeking to litigate against the government, or are facing a motion to dismiss for mootness, please do not hesitate to contact the experienced government litigation attorneys at Eckland & Blando, LLP.

[1] Research and drafting assistance provided by Noelle Sperrazza, law clerk at Eckland & Blando.

[2] Goodwin v. C.N.J., Inc., 436 F.3d 44 (1st Cir. 2006); Horizon Bank & Trust Co. v. Massachusetts, 391 F.3d 48 (1st Cir. 2004).

[3] Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

[4] In re Guardianship of Tschumy, 853 N.W.2d 728 (Minn. 2014).

[5] Snell v. Walz, 985 N.W.2d 277 (Minn. 2023).

[6] Id.

[7] MBIA Ins. Corp. v. F.D.I.C., 816 F.Supp.2d 81, 101 (D.D.C. 2011).

[8] Id.

[9] 50 C.F.R. § 229.

[10] Plaintiff’s Memorandum in Opposition to Defendants’ Mot. to Dismiss, Massachusetts Lobstermen’s Ass’n, Inc. v. Raimondo et al., No. 1:23-cv-00293-JEB (D.D.C. 2023).

[11] Order Granting Mot. to Dismiss, Massachusetts Lobstermen’s Ass’n, Inc. v. Nat’l Marine Fisheries Service et al., No. 1:23-cv-00293-JEB (D.D.C. 2023).

[12] Barr v. Galvin, 626 F.3d 99, 105 (1st Cir. 2010); see also Minnesota Humane Society v. Clark, 184 F.3d 795, 797 (8th Cir. 1999) (“The…rule is an extraordinary and narrow exception to the mootness doctrine.”), Ind v. Colorado Dep’t of Corrections, 801 F.3d 1209 (10th Cir. 2015) (“…[C]apable of repetition yet evading review exception to mootness is narrow…”), County of Butler v. Governor of Pennsylvania, 8 F.4th 226 (3d Cir. 2021) (“[E]xception…is narrow and applies only in exceptional situations…”).

[13] Spencer v. Kemna, 523 U.S. 1, 17 (1998).

[14] See Doe No. 1 v. Reed, 697 F.31 1235, 1239 (9th Cir. 2012) (ruling a moot case cannot be revived by alleged harm that is remote and speculative); see also Protestant Mem’l Med. Ctr., Inc. v. Maram, 471 F.3d 724, 732 (7th Cir. 2006) (holding pure speculation regarding future injury is not sufficient to prevent mootness).

[15] Moore v. Hosemann, 591 F.3d 741 (5th Cir. 2009).

[16] Id. at 744, n.6,

[17] See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979).

[18] National Black Police Ass’n v. District of Columbia, 108 F.3d 346 (D.C. Cir. 1997).

[19] Id. at 349.

[20] Id. at 350.

[21] DL v. District of Columbia, 187 F.Supp.3d 1 (D.D.C. 2016).

[22] Id. at 11.

[23] Id.

[24] See, e.g., People v. Henderson, 961 N.E.2d 407 (Ill. App. Ct. 2011); see also Kinsky v. Steiger, 109 S.W.3d 194 (Mo. Ct. App. 2003).

[25] In re Shelby R., 995 N.E.2d 990 (Ill. 2013), citing Wisnasky-Bettorf v. Pierce, 965 N.E.2d 1103 (Ill. 2012).

[26] Koshinski v. Trame, 79 N.E.3d 659 (App. Ct. Ill. 2017).

[27] State v. Hansen, 717 N.W.2d 541 (N.D. 2006); see also Sposato v. Sposato, 570 N.W.2d 212 (N.D. 1997).

[28] Hansen, 717 N.W.2d at 544, citing Hart v. Bye, 86 N.W.2d 635, 637 (N.D. 1957).

[29] Schwartzenberger v. McKenzie County Board of County Commissioners, 901 N.W.2d 64, 67 (N.D. 2017).

[30] Joseph C. Davis & Nicholas R. Reaves, The Point Isn’t Moot: How Lower Courts Have Blessed Government Abuse of the Voluntary-Cessation Doctrine, 129 Yale L.J. Forum 325 (2019).

[31] New York State Rifle & Pistol Ass’n, Inc. v. City of New York, New York, 140 S. Ct. 1525, n.2 (2020) (cited by Second, Third, Fourth, Fifth, and Eleventh Circuits).

[32] Reed S. v. Dep’t of Health & Soc. Servs., Off. of Children’s Servs., 522 P.3d 182, 189 (Alaska 2022); In re IBP, Inc., 793 A.2d 396, 403 (Del. Ch. 2002), aff’d sub nom. Tyson Foods, Inc. v. Aetos Corp., 818 A.2d 145 (Del. 2003); In re Jessica M., 250 Conn. 747, 738 A.2d 1087 (1999); Krohn v. Redings Mill Fire Dep’t, 893 S.W.2d 399 (Mo.App.1995); Village of South Elgin v. City of Elgin, 203 Ill.App.3d 364, 149 Ill.Dec. 17, 561 N.E.2d 295 (1990); Ex parte Jefferson Cnty. Sheriff’s Dep’t, 806 So. 2d 1262, 1266 (Ala. Civ. App. 2000); Van Schaack Holdings, Ltd. v. Fulenwider, 798 P.2d 424, 431 (Colo. 1990).

[33] U.S. v. Munsingwear, Inc., 340 U.S. 36, 39 (1950).

[34] Id. at 40.

[35] Id. at 332.