Mootness: An Explanation of the Justiciability Doctrine
Mootness: An Explanation of the
Brian T. Yeh
American Law Division
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.
The Justiciability Doctrines. Under Article III of the U.S. Constitution, the1
jurisdiction of federal courts is limited to actual, ongoing cases and controversies. 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
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
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 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
federal courts by the case-and-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 pre-enforcement 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 a matter appropriate for judicial
disposition.” Honig, 484 U.S. at 339 (Scalia, J., dissenting).
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 the10
litigation (standing) must continue throughout its existence (mootness).”
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
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.
8 Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990).
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).
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 withhold16
relief it has the power to grant.
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 that the burden on the party asking the
court to dismiss a case on prudential mootness grounds is a “heavy one,” as the movant
14 Richardson v. Wright, 405 U.S. 208, 209 (1972).
15 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. 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).
(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 an20
opportunity to attempt to show that this conviction was invalid.
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 enough22
to save a criminal case from becoming moot.
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 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, it23
will always be with us.
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,
21 Id. at 57.
22 Benton v. Maryland, 395 U.S. 784, 790-91 (1969).
23 Roe v. Wade, 410 U.S. 113, 125 (1973).
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 any25
time, a federal court may deem the case nonmoot. 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]26
not reasonably be expected to recur.” 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,”27
there is “a public interest in having the legality of the practices settled.”
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 government-issued 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 that28
Laidlaw’s permit violations could not reasonably be expected to recur.”
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 asserted by [the named representative],” and
therefore the Article III “cases or controversies” requirement was satisfied.29
24 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
27 United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953) (citation omitted).
28 Laidlaw, 528 U.S. at 193.
29 Sosna v. Iowa, 419 U.S. 393, 399 (1975).