Exceptions to the Mootness Doctrine

Mootness occurs when no controversy exists between the parties to a lawsuit. The mootness doctrine limits the federal courts' powers to review a case when, for whatever reason, the legal issue in the case no longer exists. In general, if the court declares a case moot, it will dismiss the case.

A case becomes moot when the facts that gave rise to it change such that the actual controversy ends. A federal court cannot issue an opinion in a moot case because Article III prohibits courts from issuing advisory opinions. Therefore, in modern jurisprudence, mootness bars federal court jurisdiction.

Mootness is the opposite of ripeness, another justiciability doctrine. While mootness refers to a case that is no longer justiciable, ripeness refers to a case that a court cannot adjudicate from the start.

A case may become moot for the following reasons, among others:

• One of the parties to the case dies

• A case settles

• If the case involves a government action and the government subsequently repeals the action, or it expires

• When a party no longer has a personal stake in the lawsuit

• When the court loses an element of justiciability over a case or controversy

However, certain exceptions allow courts to exercise judicial power over issues that may not meet the controversy requirement imposed by Article III of the Constitution. This article describes some of these exceptions and Supreme Court decisions interpreting them.

Mootness Exceptions

The Supreme Court has determined several instances where the mootness doctrine does not apply. This article describes the following exceptions to the mootness doctrine:

• Voluntary cessation

• Issues capable of repetition yet evading review

• Cases where the plaintiff has suffered collateral consequences due to an issue that has become moot

• Special exceptions and principles applicable to class action cases

Note that there are two types of mootness: Article III mootness and prudential mootness. Article III mootness refers to the justiciability of a case or controversy. Prudential mootness refers to the judiciary's discretion to grant (or not grant) relief in a case that is technically justiciable. (See Chamber of Commerce v. U.S. Dep't of Energy (D.C. Cir. 1980)).

For more information about mootness generally, read FindLaw's overview of the Mootness Doctrine. That article discusses, among other things, the case of DeFunis v. Odegaard (1974), where a law school applicant alleged the University of Washington School of Law violated the Constitution by denying his admission due to his race.

Voluntary Cessation

One exception to the mootness doctrine is when a defendant voluntarily ceases or stops their alleged wrongful or harmful conduct but could resume it later. The theory behind the voluntary cessation doctrine is that if the defendant voluntarily stops their conduct, they may decide to begin it again at their discretion. Therefore, the Court should not necessarily declare it a moot case just because the defendant chose to stop doing the thing that injured the other party.

The party asserting that the case is moot (usually the party that took the allegedly unlawful action) must prove its mootness. They must convince the court that "subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior [can] not reasonably be expected to recur." (Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. (2000) citing United States v. Concentrated Phosphate Export Ass'n., Inc. (1968)). If the party persuades the court that the challenged action is moot, the court may dismiss the case.

Capable of Repetition, Yet Evading Review

Another exception to the mootness doctrine is where the defendant can capably cause a repetitive legal injury to the plaintiff, and such injury is likely to evade judicial review. In other words, if the alleged dispute in a case may arise again, but timing will always be an issue with regard to litigating it, the federal courts may choose to review it instead of declaring it moot.

In Roe v. Wade (1973), for example, the Court invoked the exception with regard to pregnancies. The Court noted that a typical gestation period (approximately 266 days) would often end before an appellate court could review a case involving it.

Once a pregnancy ends, a case involving it, in theory, becomes moot. However, because a person may become pregnant again, the Court decided to permit review of the case rather than declaring it moot.

However, the Court noted in City of Los Angeles v. Lyons that it would only invoke this exception in "exceptional situations." It also stated that the plaintiff has to make a "reasonable showing that [they] will again be subjected to the alleged illegality."

Collateral Consequences

A third exception to the mootness doctrine is when the controversy in the case ends, but a party still suffered an alleged injury due to another party’s actions. This exception applies to both civil and criminal cases.

Civil Cases

In Powell v. McCormack (1969), the Supreme Court decided an issue of both standing and mootness. The case involved petitioner Adam Powell, Jr., who was elected to serve in the United States House of Representatives for the 90th Congress.

Powell was not allowed to take his seat due to a House resolution. Although the House resolution prevented Congress from seating him, it provided that he would receive all the "pay and allowances due to a member during the period."

Powell filed suit in a federal district court, arguing that the House could not exclude him. The Supreme Court agreed as Powell's constituents had lawfully elected him, and he met the requirements to serve in the House.

During the case, the respondents argued that the case was moot. Specifically, they argued that by the time the case reached the Supreme Court, the 90th Congress had terminated. Additionally, Powell's constituents had re-elected him to a new Congress, and he had taken his seat in the 91st Congress.

The Supreme Court held that the case was not moot because Powell could still sue for the backpay owed for the 90th Congress from which the respondents had unconstitutionally excluded him.

Criminal Cases

In Sibron v. New York (1968), the Supreme Court held that a state court case involving a man who pled guilty to criminal charges was not moot, even though he had served the entirety of his sentence before his appellate court date.

The Court noted that although the man had served his jail time, he had a "substantial stake in the judgment of conviction," which would survive the case even though he had satisfied his sentence. For example, a subsequent arrest and conviction could lead to a harsher sentence due to the prior conviction. Additionally, the New York Court of Appeals could render the sentence invalid, and the defendant had a right to present his arguments concerning its invalidity.

The Court also held that the state could not deny a defendant an appeal while they hold them, then claim the case is moot once they release them. To hold otherwise would essentially hold a person liable for failing to bring their case on appeal, even though the state was responsible for preventing them from bringing it.

Class Action Lawsuits

In a class action lawsuit, a named plaintiff must represent and litigate the claim on behalf of the class. But suppose the named plaintiff's case becomes moot. In that case, the court does not necessarily have to dismiss the class action lawsuit. If a class member still has a live controversy, it will likely satisfy Article III's requirement limiting federal courts to the adjudication of actual controversies.