There is an exception to the mootness doctrine, known as "Capable of repetition, yet evading review." The most prominent example of this doctrine occurs in abortion cases. A pregnancy lasts about nine months, while a challenge to an abortion restriction lasts much longer. The courts have allowed such litigation to continue, even after the pregnancy has completed.
This test is hard to satisfy. It is far easier for courts to find a particular dispute is moot, especially when an appeal arises months or years later. Indeed, many courts have imposed limitations on the doctrine. For example, the D.C. Circuit and other circuits have held that a plaintiff can only invoke the doctrine if they sought a preliminary injunction, or sought a stay of an adverse ruling.
For example, in Newdow v. Roberts (2010), Michael Newdow sought to prevent Chief Justice Roberts from issuing the constitutional oath, which included the phrase "So help me God," to then-President-Elect Obama. But by the time the D.C. Circuit decided the case in May 2010, the dispute had become moot. The panel opinion, per judge Janice Rogers Brown, found the controversy became moot. (Then-Judge Kavanaugh concurred in the judgment.)
Even if we assume plaintiffs' challenge is capable of repetition, they are barred from asserting it evaded review because plaintiffs failed to appeal the district court's denial of their preliminary injunction motion. Had plaintiffs pursued an appeal of that denial and had the preliminary injunction been granted, their case would not have become moot. This circuit—along with every other circuit to have considered the issue—has held that "a litigant who could have but did not file for a stay to prevent a counter-party from taking any action that would moot his case may not, barring exceptional circumstances, later claim his case evaded review." Armstrong v. FAA, 515 F.3d 1294, 1297 (D.C.Cir.2008) (citing consistent cases from other circuits).
Or at least that was the rule. In FCC v. Consumers' Research, the Supreme Court discarded that standard. Indeed, Justice Kagan's majority opinion rejected it in a mere footnote:
When we granted certiorari, we asked the parties to address whetherthis case is moot. The parties agree that it is not moot, and we do too. The relevant facts are as follows. Consumers' Research filed suit to avoid payments arising from the contribution factor that the FCC set for the first quarter of 2022. But by now Consumers' Research has made those payments, and a court might not be able to order a refund. Assuming not, the case would be moot—except that it qualifies as "capable of repetition, yet evading review." Kingdomware Technologies, Inc. v. United States, 579 U. S. 162, 170 (2016). A given contribution factor is in effectfor only three months, a period "too short to complete judicial review of [its] lawfulness." Ibid. And "it is reasonable to expect" that Consumers'Research will have to make the same kind of payments again. Ibid. So the case, as the Fifth Circuit concluded, is not moot. See 109 F. 4th 743, 753 (2024). Several other courts of appeals would have arrived at the opposite conclusion, because they require a party to seek preliminary relief in order to avail itself of the capable-of-repetition rule. See, e.g., Newdow v. Roberts, 603 F. 3d 1002, 1008–1009 (CADC 2010), cert. denied, 563 U. S. 1001 (2011). But our decisions have never hinted at such a requirement. See, e.g., Kingdomware Technologies, 579 U. S., at 170; SEC v. Sloan, 436 U. S. 103, 108–110 (1978). And for good reason: The "capable of repetition" rule applies because of the nature of some controversies, not because of the parties' litigating decisions.
As a matter of first principles, I'm not sure this statement is correct. When a complaint is filed, it is usually known in advance when relief is needed by. Indeed, the Supreme Court has rebuked a federal judge for not ruling on a complaint in a manner of hours. Why should the Court make an exception for the usual rules for a Plaintiff who does not seek expedited relief? PIs and TROs are the normal course of litigation nowadays.
In any event, Justice Gorsuch's dissent agreed with Kagan on this point, so the Court is unanimous:
When granting certiorari, we also asked the parties to address whether this dispute is moot. I agree with the Court that it is not. See ante, at 10, n. 1.
This holding seems like a fairly significant FedCourts ruling that was decided with little analysis. Indeed, this should make it far easier to invoke the "capable of repetition" exception, even for plaintiffs who fail to seek a PI.
I think this ruling will discourage plaintiffs from seeking expedited relief, even when expedited relief is actually needed. Then, months or even years later, an appellate court can re-open the controversy based on an exception to the mootness doctrine.
I agree with Judge Brown in the Newdow case: "It is clear the principle of Armstrong requires a plaintiff to make a full attempt to prevent his case from becoming moot, an obligation that includes filing for preliminary injunctions and appealing denials of preliminary injunctions." Maybe Justice Kagan considered these issues and rejected them, but there is so little reasoning. I think the Court may have erred here.
The post SCOTUS Holds, In A Footnote, That The "Capable Of Repetition, Yet Evading Review" Doctrine Can Apply Even When Plaintiff Does Not Seek A Preliminary Injunction appeared first on Reason.com.
