Mootness Madness: The Government's Favorite Underhanded Litigation Tool And How You Can Fight It

• Jurisdiction: United States,Federal
• Law Firm: Eckland & Blando
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Constitutional & Administrative Law, Trials & Appeals & Compensation
• Author: Mr Robert Dube
• Published date: 13 June 2023

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...