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Monday, October 19, 2015

Merits and mootness

In my writing here and elsewhere, I have argued that much of what is labeled as subject-matter jurisdiction, sovereign immunity, and standing are all better understood as being about the merits of a claim rather than Article III adjudicative thresholds. (I discuss standing in a forthcoming essay on next month's arguments in Spokeo v. Robins). And ripeness has somewhat been absorbed into standing. But that I thought the one threshold that might survive and make jurisdictional sense was mootness.

That is, until I listened to last week's arguments in Campbell-Ewald v. Gomez.

The issue is whether a case becomes moot when a defendant makes an offer of judgment that gives the plaintiff everything he asked for in the lawsuit and how that affects his status as representative plaintiff of a still-to-be-certified class. Counsel for Gomez and for the U.S.in support of Gomez both framed their arguments in the difference between a court entering (or even forcing) a final-and-enforceable judgment based on the parties' agreement and a court dismissing an action for want of jurisdiction as moot. The former gives the plaintiff the judicial relief he requested when he filed the lawsuit, just as if the court had decided the merits.

Counsel for the U.S. described the practice of district courts (which I recall following as a clerk): Upon notification of a settlement, the court would enter a consent decree (in a prospective case) or dismiss a damages claim while retaining jurisdiction to enforce the terms of the settlement. No one ever thought to describe this as mootness. Both attorneys explained why what the Justices were talking about in Article III terms as an absence of adversariness could easily (and in some cases, more properly) be recharacterized in merits terms, as the end of a present dispute that gave the defendant an affirmative defense and justified the entry of judgment. When the plaintiff has received everything he asks for, the defendant has a defense against any finding of liability, since the injury (which exists) has been remedied.

This is an unusual case in which to discuss mootness, since the plaintiff was primarily seeking retrospective relief for past harm. Mootness generaly occurs where an ongoing real-world injury has somehow ceased. With retrospective relief, however, the injury already has occurred and the judicial remedy sought is merely compensation for an already-completed injury; it does not cause the injury to cease.

But even with prospective relief, the merits characterization makes more sense. Take, for example, a constitutional challenge to a repealed statute. The plaintiff's rights are no longer being violated and he no longer is being injured by the defendant's conduct, since there is no longer a threat of enforcement. But it makes more sense to say the defendant wins on the merits because the plaintiff's rights are no longer being violated and the defendant is no longer subject to liability, just as it makes more sense (under the Fletcher model) to say the defendant wins on the merits because it cannot be liable when the plaintiff's rights were never violated in the first place.

I have to give this some more thought, especially once the Court decides the case.

Posted by Howard Wasserman on October 19, 2015 at 08:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


The "mootness" argument advanced by Campbell-Ewald is utterly nonsensical. But for the fact that the case tangentially involves class actions* and thus triggers inchoate rage in the corporate-lawyer reptilian brains of the conservative majority, it would have been laughed out of court years ago.

Mootness is a "jurisdictional" issue (I acknowledge the force of the OP's observation that "jurisdiction" is an incoherent category, but let's leave that to one side for the time being). The Court has repeatedly held that as soon as a court concludes that it lacks jurisdiction, it must enter a decree announcing the fact and dismiss the case. Over, done, end of story.

Campbell-Ewald's theory is that as soon as a defendant offers to take an adverse judgment against it for the full amount, the case becomes "moot." Taking this at face value, if A sues B for $10,000, and B then says "okay, I offer to pay you $10,000," the case has become "moot" and must therefore be dismissed forthwith, without entry of any judgment other than "case dismissed, no jurisdiction"-- whereupon A no longer has any way of actually compelling B to pay him $10,000. To call such a result absurd is an insult to your average absurdity. And let's not even get started on how silly this theory gets when the case, like this one, seeks injunctive relief.

So from a civil-procedure standpoint, this issue is a no-brainer-- the offer should lead to entry of a final judgment, whereupon the case will bar relitigation. 'Nuff said.

There might be a different story if a case was purely for money damages and the defendant actually transferred title of $10,000 to the plaintiff (or lodged the sum with the court or an escrow agent in the plaintiff's name, to prevent shenanigans where a plaintiff refuses to cash a check). But this case isn't a pure money-damages case and Campbell-Ewald hasn't surrendered title to anything, so that hypo remains a hypo.

*Restriction of class actions is, of course, the prize that the conservatives are after here. What they WANT is to hold that once a lead plaintiff is bought off, the class-action claim vanishes. Such a holding doesn't have thing one to do with mootness-- one could equally well say that buying off the lead plaintiff through entry of a full merits judgment makes associated class claims vanish (perhaps through some contorted interpretation of the requirement that the lead plaintiff "adequately represent" the class). That would be a brazen power grab, but certainly no more so than many of the current Court's recent cases. And one could also say the exact opposite-- that a full offer of individual relief "moots" an individual claim but not class claims. Indeed, IIRC, that's what the Third Circuit said in Genesis Health v. Symczyk (can never remember the spelling of that name).

So all of this talk about mootness is just a remarkably disingenuous attempt to wrap the aforementioned power grab in a thin curtain of legality. Unfortunately, it looks (judging from the oral argument) like the majority prefers to make word salad out of mootness law rather than own up to what it's doing.

Posted by: Paul Thomas | Oct 20, 2015 11:01:30 PM

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