Exceptions to Mootness

Sibron v. New York (1968)

392 U.S. 40 (1968)

Decision: Reversed
Vote: 9-0
Majority: Chief Justice Warren, joined by Black, White, Fortas, Douglas, Stewart, Marshall, and Brennan
Concurrence: Douglas as to No. 63 and No. 74
Concurrence: Black as to No. 74
Concurrence: White
Concurrence: Fortas
Concurrence: Harlan
Dissenting: Black as to No. 63

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

These are companion cases to No. 67, Terry v. Ohio, ante, decided today …

[T]he cases [here] arise in the context of New York’s “stop-and-frisk” law, N. Y. Code Crim. Proc. § 180-a …

The appellants, Sibron and Peters, were both convicted of crimes in New York state courts on the basis of evidence seized from their persons by police officers. The Court of Appeals of New York held that the evidence was properly admitted, on the ground that the searches which uncovered it were authorized by the statute. Sibron and Peters have appealed their convictions to this Court, claiming that § 180-a is unconstitutional on its face and as construed and applied, because the searches and seizures which it was held to have authorized violated their rights under the Fourth Amendment, made applicable to the States by the Fourteenth … We noted probable jurisdiction … and consolidated the two cases for argument with No. 67 …

The facts in these cases may be stated briefly. Sibron, the appellant in No. 63, was convicted of the unlawful possession of heroin. He moved before trial to suppress …

The prosecutor’s theory at the hearing was that Patrolman Martin had probable cause to believe that Sibron was in possession of narcotics because he had seen him conversing with a number of known addicts over an eight-hour period. In the absence of any knowledge on Patrolman Martin’s part concerning the nature of the intercourse between Sibron and the addicts, however, the trial court was inclined to grant the motion to suppress …

The prosecutor, however, reminded the judge that Sibron had admitted on the stand, in Patrolman Martin’s absence, that he had been talking to the addicts about narcotics. Thereupon, the trial judge changed his mind and ruled that the officer had probable cause for an arrest. Section 180-a, the “stop-and-frisk” statute, was not mentioned at any point in the trial court. The Appellate Term of the Supreme Court affirmed the conviction without opinion. In the Court of Appeals of New York [New York’s highest court], Sibron’s case was consolidated with the Peters case, No. 74. The Court of Appeals held that the search in Peters was justified under the statute, but it wrote no opinion in Sibron’s case …

At the outset we must deal with the question whether we have jurisdiction … It is asserted that because Sibron has completed service of the six-month sentence imposed upon him as a result of his conviction, the case has become moot under St. Pierre v. United States, (1943) …

On numerous occasions in the past this Court has proceeded to adjudicate the merits of criminal cases in which the sentence had been fully served or the probationary period during which a suspended sentence could be reimposed had terminated … Thus mere release of the prisoner does not mechanically foreclose consideration of the merits by this Court …

St. Pierre itself recognized two possible exceptions to its “doctrine” of mootness, and both of them appear to us to be applicable here. The Court stated that “[i]t does not appear that petitioner could not have brought his case to this Court for review before the expiration of his sentence” … because his controversy with the Government was a continuing one, there was a good chance that there would be “ample opportunity to review” the important question presented on the merits in a future proceeding. This was a plain recognition of the vital importance of keeping open avenues of judicial review of deprivations of constitutional right. There was no way for Sibron to bring his case here before his six-month-sentence expired. By statute he was precluded from obtaining bail pending appeal and by virtue of the inevitable delays of the New York court system, he was released less than a month after his newly appointed appellate counsel had been supplied with a copy of the transcript and roughly two months before it was physically possible to present his case to the first tier in the state appellate court system. This was true despite the fact that he took all steps to perfect his appeal in a prompt, diligent, and timely manner …

We do not believe that the Constitution contemplates that people deprived of constitutional rights at this level should be left utterly remediless and defenseless against repetitions of unconstitutional conduct. A State may not cut off federal review of whole classes of such cases by the simple expedient of a blanket denial of bail pending appeal …

The second exception recognized in St. Pierre permits adjudication of the merits of a criminal case where “under either state or federal law further penalties or disabilities can be imposed … as a result of the judgment which has … been satisfied.” Subsequent cases have expanded this exception to the point where it may realistically be said that inroads have been made upon the principle itself. St. Pierre implied that the burden was upon the convict to show the existence of collateral legal consequences. Three years later in Fiswick v. United States (1946), however, the Court held that a criminal case had not become moot upon release of the prisoner, noting that the convict, an alien, might be subject to deportation for having committed a crime of “moral turpitude” even though it had never been held (and the Court refused to hold) that the crime of which he was convicted fell into this category …

This case certainly meets that test for survival. Without pausing to canvas the possibilities in detail, we note that New York expressly provides by statute that Sibron’s conviction may be used to impeach his character should he choose to put it in issue at any future criminal trial … and that it must be submitted to a trial judge for his consideration in sentencing should Sibron again be convicted of a crime … There are doubtless other collateral consequences. Moreover, we see no relevance in the fact that Sibron is a multiple offender. Morgan was a multiple offender … and so was Pollard … A judge or jury faced with a question of character, like a sentencing judge, may be inclined to forgive or at least discount a limited number of minor transgressions, particularly if they occurred at some time in the relatively distant past. It is impossible for this Court to say at what point the number of convictions on a man’s record renders his reputation irredeemable. And even if we believed that an individual had reached that point, it would be impossible for us to say that he had no interest in beginning the process of redemption with the particular case sought to be adjudicated. We cannot foretell what opportunities might present themselves in the future for the removal of other convictions from an individual’s record. The question of the validity of a criminal conviction can arise in many contexts … and the sooner the issue is fully litigated the better for all concerned …

Sibron “has a substantial stake in the judgment of conviction which survives the satisfaction of the sentence imposed on him.” Fiswick v. United States. The case is not moot . …

Richardson v. Wright (1972)

405 U.S. 208 (1972)

Decision: Reversed
Vote: Per Curiam
Majority: Burger, joined by Stewart, White, Blackmun, Powell, Rehnquist
Dissent: Brennan, joined by Douglas, Marshall
Dissent: Douglas


We noted probable jurisdiction of these appeals … to consider the applicability of Goldberg v. Kelly, (1970), to the suspension and termination of disability benefit payments pursuant to § 225 of the Social Security Act, and implementing regulations of the Department of Health, Education, and Welfare. Shortly before oral argument, we were advised that the Secretary had adopted new regulations, effective December 27, 1971, governing the procedures to be followed by the Social Security Administration in determining whether to suspend or terminate disability benefits. These procedures include the requirement that a recipient of benefits be given notice of a proposed suspension and the reasons therefore, plus an opportunity to submit rebuttal evidence. In light of that development, we believe that the appropriate course is to withhold judicial action pending reprocessing, under the new regulations, of the determinations here in dispute. 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. In the context of a comprehensive complex administrative program, the administrative process must have a reasonable opportunity to evolve procedures to meet needs as they arise. Accordingly, we vacate the judgment of the District Court for the District of Columbia … with direction to that court to remand the cause to the Secretary and to retain jurisdiction for such further proceedings, if any, as may be necessary upon completion of the administrative procedure.

Vacated and remanded.


I respectfully dissent. The Court justifies today’s sua sponte action on the ground that, if reprocessing under the Secretary’s new regulations

“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.”

Avoidance of unnecessary constitutional decisions is certainly a preferred practice when appropriate. But that course is inappropriate, indeed, irresponsible, in this instance. We will not avoid the necessity of deciding the important constitutional question presented by claimants even should they prevail upon the Secretary’s reconsideration. The question is being pressed all over the country. The Secretary’s brief lists no less than seven cases presenting it with respect to disability benefits, and 10 cases presenting it with respect to nondisability benefits …

Roe v. Wade (1973)

410 U.S. 113, 125 (1973)

Decision: Reversed
Vote: 7-2
Majority: Blackmun, Burger, Douglas, Brennan, Stewart, Marshall, Powell
Concurrence: Douglas
Concurrence: Stewart
Concurrence: Burger
Dissent: White, Rehnquist

MR. JUSTICE BLACKMUN delivered the opinion of the Court.

This Texas federal appeal and its Georgia companion, Doe v. Bolton (1973), present constitutional challenges to state criminal abortion legislation. The Texas statutes under attack here are typical of those that have been in effect in many States for approximately a century. The Georgia statutes, in contrast, have a modern cast and are a legislative product that, to an extent at least, obviously reflects the influences of recent attitudinal change, of advancing medical knowledge and techniques, and of new thinking about an old issue …

Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. We seek earnestly to do this, and, because we do, we have inquired into, and in this opinion place some emphasis upon, medical and medical-legal history …

Jane Roe, a single woman who was residing in Dallas County, Texas, instituted this federal action in March 1970 against the District Attorney of the county. She sought a declaratory judgment that the Texas criminal abortion statutes were unconstitutional on their face, and an injunction restraining the defendant from enforcing the statutes …

She claimed that the Texas statutes were unconstitutionally vague and that they abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. By an amendment to her complaint, Roe purported to sue “on behalf of herself and all other women” similarly situated …

James Hubert Hallford, a licensed physician, sought and was granted leave to intervene in Roe’s action … He alleged that … the statutes were vague and uncertain, in violation of the Fourteenth Amendment, and that they violated his own and his patients’ rights to privacy in the doctor-patient relationship and his own right to practice medicine …

We are next confronted with issues of justiciability, standing, and abstention. Have Roe and the Does established that “personal stake in the outcome of the controversy,” Baker v. Carr, (1962), that insures that “the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution,” Flast v. Cohen, (1968), and Sierra Club v. Morton, (1972)? And what effect did the pendency of criminal abortion charges against Dr. Hallford in state court have upon the propriety of the federal court’s granting relief to him as a plaintiff-intervenor? …

The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated. United States v. Munsingwear, Inc., (1950) … But when, 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, it will always be with us. Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be “capable of repetition, yet evading review.” …

The judgment of the District Court as to intervenor Hallford is reversed, and Dr. Hallford’s complaint in intervention is dismissed. In all other respects, the judgment of the District Court is affirmed. Costs are allowed to the appellee.

It is so ordered.

West VA v. EPA (2022)

597 U.S. ___ (2022)

Decision: Reversed
Vote: 6-3
Majority: Roberts, joined by Gorsuch, Alito, Thomas, Barrett, Kavanaugh
Concur: Gorsuch, joined by Alito
Dissent: Kagan, joined by Breyer and Sotomayor

CHIEF JUSTICE ROBERTS delivered the opinion of the Court.

The Clean Air Act authorizes the Environmental Protection Agency to regulate power plants by setting a “standard of performance” for their emission of certain pollutants into  the air. That standard may be different for new and existing plants, but in each case it must reflect the “best system of emission reduction” that the Agency has determined to be “adequately demonstrated” for the particular category. §§7411(a)(1), (b)(1), (d). For existing plants, the States then implement that requirement by issuing rules restricting emissions from sources within their borders.

Since passage of the Act 50 years ago, EPA has exercised this authority by setting performance standards based on measures that would reduce pollution by causing plants to operate more cleanly. In 2015, however, EPA issued a new rule concluding that the “best system of emission reduction” for existing coal-fired power plants included a requirement that such facilities reduce their own production of electricity, or subsidize increased generation by natural gas, wind, or solar sources.

The question before us is whether this broader conception of EPA’s authority is within the power granted to it by the Clean Air Act.

First, after the decision, EPA informed the Court of Appeals that it does not intend to enforce the Clean Power Plan because it has decided to promulgate a new Section 111(d) rule. Second, on EPA’s request, the lower court stayed the part of its judgment that vacated the repeal, pending that new rulemaking. “These circumstances,” says the Government, “have mooted the prior dispute as to the CPP Repeal Rule’s legality.” … (emphasis added).

That Freudian slip, however, reveals the basic flaw in the Government’s argument: It is the doctrine of mootness, not standing, that addresses whether “an intervening circumstance [has] deprive[d] the plaintiff of a personal stake in the outcome of the lawsuit.” Genesis HealthCare Corp v. Symczyk (2013) … The distinction matters because the Government, not petitioners, bears the burden to establish that a once-live case has become moot …

A finding of mootness in the case is [the respondent’s] voluntary conduct … Although the Government briefly argues that the lower court’s stay of its mandate extinguished the controversy, it cites no authority for that proposition, and it does not make sense: Lower courts frequently stay their mandates when notified that the losing party intends to seek our certiorari review. So the Government’s mootness argument boils down to its representation that EPA has no intention of enforcing the Clean Power Plan prior to promulgating a new Section 111(d) rule.

But “voluntary cessation does not moot a case” unless it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” … Here the Government “nowhere suggests that if this litigation is resolved in its favor it will not” reimpose emissions limits predicated on generation shifting; indeed, it “vigorously defends” the legality of such an approach … We do not dismiss a case as moot in such circumstances … The case thus remains justiciable, and we may turn to the merits. …


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