ArtIII.S2.C1. Exceptions to Mootness: Voluntary Cessation Doctrine

Article III, Section 2, Clause 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 Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

First, the Supreme Court has held that a party's voluntary cessation of an unlawful practice will usually not moot its opponent's challenge to that practice.1 Thus, a defendant cannot automatically moot a case by simply ending its unlawful conduct once sued.2 This exception to the mootness doctrine exists because if a litigant could defeat a lawsuit simply by temporarily ceasing its unlawful activities, there would be nothing to stop that litigant from engaging in that unlawful behavior again after the court dismissed the case3—the litigant would effectively be free to return to [its] old ways.4

The 1982 case of City of Mesquite v. Aladdin's Castle, Inc. illustrates how this voluntary cessation doctrine applies in practice.5 The plaintiff in City of Mesquite challenged the constitutionality of a municipal ordinance.6 While the case was pending, however, the city repealed the offending provisions of the ordinance.7 The Court, explaining that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice, concluded that the city's revision of the ordinance did not render the plaintiff's challenge moot.8 Because the city's repeal of the objectionable language in the ordinance would not preclude it from reenacting precisely the same provision if the case were dismissed on mootness grounds, the Court concluded that it needed to confront the merits of the plaintiff's constitutional challenge.9

The DeFunis case discussed above, by contrast, exemplifies when the voluntary cessation doctrine will not save a case from dismissal.10 To reiterate, the petitioner in DeFunis claimed that certain law school admissions practices and criteria discriminated against him on the basis of race.11 While the case was pending, however, the petitioner began taking classes at the law school, and had almost completed his law degree by the time the case reached the Supreme Court.12 The Court rejected the petitioner's argument that the voluntary cessation doctrine rendered the case justiciable because the case's mootness had partially stem[med] from a policy decision on the part of the respondent Law School authorities to allow the petitioner to complete his law school studies and receive his diploma.13 The Court emphasized that the respondents had not voluntarily ceased the allegedly discriminatory admissions practices that the petitioner challenged as unconstitutional; instead, the case became moot because the petitioner was just a few credits shy of completing his degree.14 In other words, the case was moot not because the school stopped engaging in allegedly unlawful activity, but rather because the petitioner would receive his diploma regardless of any decision th[e] Court might reach on the merits of th[e] case.15

The Court has clarified several other aspects of the voluntary cessation doctrine. For one, if it is absolutely clear that the allegedly wrongful behavior will not recur after the court dismisses the case, then a case can become moot notwithstanding a party's voluntary cessation of that unlawful behavior.16 The 'heavy burden of persuading' the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness.17 To illustrate, in Preiser v. Newkirk, a prisoner claimed that prison officials had unlawfully transferred from a medium security institution to a more restrictive maximum security institution, and asked the court to order his return to the medium security prison.18 While the case was pending, however, officials transferred the prisoner back to the medium security institution, and then subsequently transferred him to an even less restrictive minimum security institution.19 According to the Court, these subsequent developments made it clear that correction authorities harbor[ed] no animosity toward the plaintiff, such that there was no reasonable expectation that the wrong challenged by the prisoner would be repeated.'20 The Court therefore deemed the case nonjusticiable even though the prison officials themselves had rendered the case moot by transferring the prisoner to a less restrictive institution.21

Additionally, the voluntary cessation doctrine typically applies only when a party to the case voluntarily discontinues an allegedly unlawful action. If, instead, a case becomes moot because of the voluntary acts of a third party non-defendant, the voluntary cessation doctrine will usually not save that case from dismissal.22 For instance, in Iron Arrow Honor Society v. Heckler, the Secretary of the Department of Health, Education, and Welfare (Secretary) promulgated a regulation barring recipients of federal funding from providing significant assistance to any . . . organization which discriminates on the basis of sex.23 The petitioner, an all-male honorary organization at a public university, commenced a lawsuit seeking to prevent the Secretary from interpreting that regulation in a manner that would require the university to ban the organization from conducting activities on campus so long as it continued to exclude women.24 While the lawsuit was pending, however, the university determined that no matter whether the Secretary's regulation required the university to ban the organization, the university's own non-discrimination code independently barred the organization from operating on campus until it discontinued its male-only membership policy.25 Because no judicial ruling with respect to the Secretary's interpretation of the regulation would have any effect on the university's independent decision to ban the organization pursuant to its own non-discrimination policy, the Court concluded that the dispute as to how the [r]egulation should be interpreted was classically 'moot.'26 The Court concluded that the voluntary cessation doctrine did not save the case from dismissal, as it was the voluntary acts of a third party non-defendant—namely, the university—that rendered the case moot, rather than the voluntary acts of the Secretary herself.27

Similarly, the voluntary cessation doctrine will not save a case from dismissal when it is the losing party, rather than the prevailing party, whose voluntary actions render the case moot during the pendency of an appeal.28 Thus, in City News & Novelty, Inc. v. City of Waukesha, a retailer of sexually explicit materials challenged a municipality's decision to deny its adult business license.29 After the lower courts ruled against the retailer, the retailer asked the Supreme Court to review the judgment in the municipality's favor.30 While the appeal was pending, however, the retailer opted to close its business.31 The Court determined that the retailer's decision to cease operations had rendered the case moot because the retailer no longer had any cognizable interest in the outcome of the case.32 Even though the circumstance rendering the case moot was the retailer's voluntary decision to close its business, the Court nonetheless concluded that the voluntary cessation doctrine did not render the case justiciable.33 The Court emphasized that because the lower courts had ruled against the retailer, the retailer left the fray as a loser, not a winner.34 The Court therefore reasoned that the retailer's voluntary cessation of its business therefore did not keep [its opponent] under the weight of an adverse judgment or reward an arguable manipulation of [the Court's] jurisdiction.35


  1.  Jump to essay-1See, e.g., United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1537 n.* (2018); Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019 n.1 (2017); Knox v. Serv. Emps. Int'l Union, Local 1000, 567 U.S. 298, 307 (2012); Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 609 (2001); City of Erie v. Pap's A.M., 529 U.S. 277, 287–89 (2000); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000); Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, Fla., 508 U.S. 656, 662 (1993); Chi. Teachers Union, Local No. 1, AFT, AFL-CIO v. Hudson, 475 U.S. 292, 305 n.14 (1986); United States v. Generix Drug Corp., 460 U.S. 453, 456 n.6 (1983); City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289 (1982); L.A. Cty. v. Davis, 440 U.S. 625, 631 (1979); Allee v. Medrano, 416 U.S. 802, 810 (1974).
  2.  Jump to essay-2Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013).
  3.  Jump to essay-3See id. (explaining that, in the absence of the voluntary cessation doctrine, a defendant could engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where he left off, repeating this cycle until he achieves all his unlawful ends); Knox, 567 U.S. at 307 (2012) (A dismissal for mootness would permit a resumption of the challenged conduct as soon as the case is dismissed.); City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 284 n.1 (2001) (A party should not be able to evade judicial review, or to defeat a judgment, by temporarily altering questionable behavior.); City of Mesquite, 455 U.S. at 289 (In this case the city's repeal of the objectionable language would not preclude it from reenacting precisely the same provision if the District Court's judgment were vacated.); United States v. Trans-Mo. Freight Ass'n, 166 U.S. 290, 309 (1897) (If the mere dissolution of the association worked an abatement of the suit as to all the defendants . . . it is plain that they have thus discovered an effectual means to prevent the judgment of this court being given upon the question really involved in the case. The defendants having succeeded in the court below, it would only be necessary thereafter to dissolve their association and instantly form another of a similar kind, and the fact of the dissolution would prevent an appeal to this court or procure its dismissal if taken. This result does not and ought not to follow.).
  4.  Jump to essay-4Allee, 416 U.S. at 811 (quoting Gray v. Sanders, 372 U.S. 368, 376 (1963)). See also, e.g., Friends of the Earth, 528 U.S. at 189 (same).
  5.  Jump to essay-5455 U.S. 283.
  6.  Jump to essay-6Id. at 284–86.
  7.  Jump to essay-7Id. at 288.
  8.  Jump to essay-8Id. at 288–89.
  9.  Jump to essay-9Id. at 289. The Court subsequently elaborated that City of Mesquite does not stand for the proposition that it is only the possibility that the selfsame statute will be enacted that prevents a case from being moot; if that were the rule, a defendant could moot a case by repealing the challenged statute and replacing it with one that differs only in some insignificant respect. Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, Fla., 508 U.S. 656, 662 (1993). But see Princeton Univ. v. Schmid, 455 U.S. 100, 103 (1982) (deeming case moot, without explicitly mentioning the voluntary cessation doctrine, where intervening party substantially amended its regulations while the case was pending on appeal).
  10.  Jump to essay-10See 416 U.S. 312, 318 (1974).
  11.  Jump to essay-11Id. at 314–15.
  12.  Jump to essay-12Id. at 315–317.
  13.  Jump to essay-13Id. at 317.
  14.  Jump to essay-14See id. at 318.
  15.  Jump to essay-15Id. at 317.
  16.  Jump to essay-16Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019 n.1 (2017) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)). See also, e.g., Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222 (2000) (Voluntary cessation of challenged conduct moots a case, however, only if it is 'absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.') (emphasis in original) (quoting United States v. Concentrated Phosphate Export Ass'n, 393 U.S. 199, 203 (1968)).
  17.  Jump to essay-17Friends of the Earth, 528 U.S. at 189 (quoting United States v. Concentrated Phosphate Export Ass'n, 393 U.S. 199, 203 (1968)). See also, e.g., Trinity Lutheran Church, 137 S. Ct. at 2019 n.1; Adarand Constructors, 528 U.S. at 222. See also Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (explaining that a party's burden to avoid the voluntary cessation doctrine is formidable).
  18.  Jump to essay-18422 U.S. 395, 396–98 (1975).
  19.  Jump to essay-19Id. at 401.
  20.  Jump to essay-20Id. at 402 (quoting United States v. W. T. Grant Co., 345 U.S. 629, 633 (1953)).
  21.  Jump to essay-21Id. (We have before us more than a mere voluntary cessation of allegedly illegal conduct, where we would leave the defendant free to return to his old ways.) (internal quotations, ellipses, brackets, and quotation marks omitted).
  22.  Jump to essay-22Iron Arrow Honor Soc'y v. Heckler, 464 U.S. 67, 72 (1983) (per curiam) (emphasis added). See also Deakins v. Monaghan, 484 U.S. 193, 200 n.4 (1988) (The Court's ability to prevent respondents from renewing their claims after they are dismissed as moot distinguishes this case from one in which a defendant attempts to avoid appellate review by voluntarily ceasing the challenged conduct without losing the ability to reinitiate the conduct once the mooted case is dismissed.) (emphasis in original).
  23.  Jump to essay-23Iron Arrow, 464 U.S. at 68 (quoting 45 C.F.R. § 86.31(b)(7) (1975)).
  24.  Jump to essay-24Id. at 69.
  25.  Jump to essay-25Id. at 69–70.
  26.  Jump to essay-26Id. at 70–71.
  27.  Jump to essay-27Id. at 72.
  28.  Jump to essay-28City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 284 (2001).
  29.  Jump to essay-29Id. at 281–82.
  30.  Jump to essay-30Id. at 282.
  31.  Jump to essay-31Id. at 282–83.
  32.  Jump to essay-32Id. at 283–85.
  33.  Jump to essay-33Id. at 283–84.
  34.  Jump to essay-34Id. at 284.
  35.  Jump to essay-35Id.