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Wednesday, January 20, 2016

Why mootness?

SCOTUS on Wednesday decided Campbell-Ewald v. Gomez, holding that an unaccepted offer of judgment and offer of settlement do not moot a case. Justice Ginsburg wrote for herself and Justices Kennedy, Breyer, Sotomayor, and Kagan, stating that an unaccepted offer is like an unaccepted contract offer, having no legal force or effect and thus insufficient to moot the case. Justice Thomas concurred in the judgment, arguing that Article III should be read to incorporate common law principles of tender. The Chief Justice dissented for Scalia and Alito, with Alito adding a separate dissent.

Interestingly, only Justice Thomas mentioned (although even he did not particularly emphasize) that the plaintiff here sought retroactive legal relief (damages) for a past violation of his rights, whereas the Court's modern mootness cases all involved claims for prospective injunctive or declaratory relief from ongoing or future violations. And this omission reflects the flaw in how mootness is conceptualized, particularly by the Chief. Everyone keeps describing mootness as the point that "it is impossible for a court to grant any effectual relief whatever to the prevailing party." But the reason it becomes impossible for a court to grant any effectual relief is that the plaintiff no longer is injured as a result of the defendant's conduct. Thus, for example, the covenant-not-to-sue could moot Already v. Nike because, having promised not to sue, Nike no longer is harming Already with the threat of trademark infringement litigation; thus no judicial remedy can stop the injury that no longer is occuring. But in an action for retrospective relief for a past injury, the injury remains. The remedy makes the plaintiff whole by offering a substitute thing of value (money), but it does not uninjure him or stop the injury. It thus should be impossible for a claim for retroactive relief ever to become moot.

[Updated in response to comments]: At best, the court might enter judgment for the plaintiff in the appropriate amount when the defendant presents complete relief into an account payable or to the court. Justice Ginsburg leaves open whether that would moot the case what the result would be, while Justice Alito insists that paying the money to some third-party trustee would moot the case, without the need for a judgment.  The case should not be moot, because you cannot have both an entry of judgment and a moot case--the entry of judgment ends the case, so there is nothing to be moot. Alito is wrong because payment of the money does not end the injury, it only compensates for it with a substitute good (money).

Posted by Howard Wasserman on January 20, 2016 at 04:11 PM in Civil Procedure, Howard Wasserman | Permalink


I think the answer to James's second hypothetical is that subject-matter jurisdiction isn't affected by post-filing events, other than amendments to complaints. So if discovery revealed that only $74,999 was at stake, that doesn't (right?) affect jurisdiction.

Posted by: Asher Steinberg | Jan 22, 2016 1:17:38 PM

I believe that Justice Alito in his dissent (Slip op. 3) also recognized the material difference between (i) full relief for purely retrospective conduct and damages and (ii) the possibility, or actuality, of prospective, continuing conduct and damages: "[T]he prospect of having to reopen litigation is precisely why our voluntary cessation cases require defendants to prove, before dismissal, that the plaintiff’s injury cannot reasonably be expected to recur." Thus, in a case where the alleged breach is ongoing and continues to cause the claimed damages, no offer of settlement can satisfy all of those continuing damages, in the absence of a binding contractual commitment to stop and revise the offending practice as appropriate - and preferably a concession of liability reduced to judgment as well, with whatever binding consequences the courts are willing to accord that concession.

Posted by: William Weinstein | Jan 22, 2016 11:39:33 AM

Another hypo: Plaintff sues in diversity for $75,001. Defendant tenders $2. Would that defeat federal jurisdiction? Granted, this is a statutory question, not one about the scope of Article III. But on the dissent's theory of the effect of unaccepted offers, would this drive the amount in controversy below the jurisdictional threshold in § 1332?

Posted by: James Grimmelmann | Jan 21, 2016 3:25:14 PM

There's another injury that's at issue in the retrospective matters — one that is not recognized by law: The opportunity cost (at minimum) of engaging in the legal process to seek redress for the injury. This is about a lot more than legal fees; it's about the (at minimum) distraction of the injured party from the rest of the injured party's life.

Applying mootness doctrine to retrospective-injury matters is, in essence, pretending that there are no noncompensable costs to invoking the legal system in the first place. Even the most-ardent advocates of efficiency-based economics don't go that far...

Posted by: C.E. Petit | Jan 21, 2016 11:47:54 AM

Howard: Justice Ginsburg is careful, I think, not to say that entry of such a judgment might "moot" the case. The way she puts it, instead, is that "We need not, and do not, now decide whether *the result would be different* if a defendant deposits the full amount of the plaintiff ’s individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount."

Posted by: Marty Lederman | Jan 21, 2016 4:11:44 AM

Asher: I wouldn't characterize it that way. It doesn't stop the injury, which already happened and has been completed. It gives me relief from the injury.

James: I think you've captured it. One of the things that came up repeatedly during the argument (I think by the SG), but was not mentioned in any of the opinions, is that accord and satisfaction and pereclusion are 8(c) affirmative defenses, waivable if not raised. So in your hypo, the second action could be brought and the plaintiff could double-recover if the defendant is asleep at the switch.

Posted by: Howard Wasserman | Jan 21, 2016 12:33:46 AM

Consder a variation on Asher's hypothetical: you sue someone for breach of contract by a complaint alleging that he failed to pay you a thousand dollars, and after a trial the court awards you a judgment of a thousand dolars, which the defendant pays. Is the case now moot? Certainly, you're not now entitled to bring a new action, but mootness is the wrong category. The second action is precluded by the first judgment, which is a different kettle of fish. If a judgment on the merits does not render a case moot, why should an offer of judgment?

Posted by: James Grimmelmann | Jan 21, 2016 12:00:36 AM

What if I sue someone for breach of contract, the breach being that he failed to pay me a thousand dollars? The breach is a past injury, but if the defendant tenders the court the thousand dollars, he hasn't just compensated for my injury with a substitute good; he's really (I think) ended my injury.

Posted by: Asher Steinberg | Jan 20, 2016 10:54:23 PM

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