"So No Damages for Past Injury, Due to Immunity—and no Injunction to Stop Future Injury, Due to Mootness"

An interesting concurrence by Fifth Circuit Judge James Ho.

From the per curiam in today's Tucker v. Gaddis, signed by Judges Carolyn Dineen King, James Graves, and James Ho:

For years, the Texas Department of Criminal Justice ("TDCJ") has denied prisoner requests to hold religious gatherings for the Nation of Gods and Earths ("the Nation"). Originally, Texas denied such requests on the ground that it perceived the Nation as a racial supremacy group, and that allowing such an assembly would pose a security threat to the prison.

In response, Plaintiff George Lee Tucker II brought this suit against Steve Gaddis, TDCJ's Deputy Director of Volunteer Services and Special Populations, in the hope of vindicating the rights of the Nation's adherents to congregate. The suit was initially filed pro se over half a decade ago. But Tucker began receiving the aid of pro bono legal counsel a few years later.

The State now says that it has promulgated a new policy to govern congregation requests on behalf of the Nation's adherents. As a result, the State contends that this suit is now moot.

We disagree. The new policy merely allows Tucker to apply for a congregation. It does not in fact allow the Nation to congregate. To the contrary, any such requests remain subject to "time, space, and safety concerns." And to date, Texas has never permitted the Nation's adherents to congregate. Nor is there any indication that Texas will allow them to do so anytime soon. So this case is not moot. Accordingly, we reverse….

Here's Judge Ho's separate concurrence:

"Worthy civil rights claims are often never brought to trial." That's because government officials have a number of legal tools at their disposal to avoid being held accountable in the courts.

When a plaintiff seeks money damages, "an unholy trinity of legal doctrines—qualified immunity, absolute prosecutorial immunity, and Monell …—frequently conspires to turn winnable claims into losing ones."

And if a plaintiff foregoes damages and asks for an injunction instead, public officials often try to evade trial by claiming the case is moot: Just stop engaging in the challenged conduct, declare that there's no need for an injunction, and see if enough compliant and deferential judges agree.

So no damages for past injury, due to immunity—and no injunction to stop future injury, due to mootness. Heads I win, tails you lose.

To be clear, it's not supposed to be this way. It shouldn't be that easy for the government to avoid accountability by abusing the doctrine of mootness. But judges too often dismiss cases as moot when they're not—whether out of an excessive sense of deference to public officials, fear of deciding controversial cases, or simple good faith mistake. And when that happens, fundamental constitutional freedoms frequently suffer as a result.

That's why legal commentators have bemoaned that acts of "strategic mooting litter the Federal Reporter." Joseph C. Davis & Nicholas R. Reaves, The Point Isn't Moot: How Lower Courts Have Blessed Government Abuse of the Voluntary Cessation Doctrine, 129 Yale L.J. Forum 325, 328 (2019). Because judicial acceptance of such gamesmanship "harm[s] both good sense and [ ] individual rights" and "depriv[es] the citizenry of certainty and clarity in the law" by "preventing the final resolution of important legal issues."

I am thankful that our court does not make that same mistake today. But I continue to worry that judges may be tempted to misapply mootness in other cases—not to ensure that we decide only actual cases or controversies, but to avoid deciding cases that happen to be controversial.

Concerns about mootness abuse have been aired by an increasing number of members of the federal judiciary in recent years. See, e.g., N.Y. State Rifle & Pistol Association, Inc. v. City of New York (2020) (Alito, J., dissenting, joined by Gorsuch, J., and by Thomas, J., in part); Hawse v. Page (8th Cir. 2021) (Stras, J., dissenting); Resurrection School v. Hertel (6th Cir. 2022) (en banc) (Readler, J., concurring in part and dissenting in part); id. (Bush, J., dissenting, joined by Siler and Griffin, JJ.).

{Experienced public officials in the other branches of government have similarly sounded the alarm. In the FOIA context, for example, U.S. Senator John Cornyn has observed that, "when requestors [of information] [] sue agencies," the government often "withhold[s] documents … until the day before a judge's ruling," and then "send[s] a full box full of documents, render[ing] the lawsuit moot and leav[ing] the requestor with a hefty legal bill. And the agency gets away scotfree"—that is, liberated from paying attorneys' fees because the government's mootness strategy effectively deprives the plaintiff of prevailing party status for attorney fee purposes. Congress subsequently enacted the OPEN Government Act of 2007 to correct this problem….

"[A] defendant cannot automatically moot a case," and thereby avoid judicial accountability, simply by "ending its unlawful conduct once sued." Indeed, it is settled law 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." … That's not to say that voluntary cessation can never moot a case. But "subsequent events [must] make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." We must be certain that a defendant's voluntary acts are not mere "'litigation posturing'"—and that "the controversy is actually extinguished."

This standard is strict because courts are naturally suspicious—or at least they should be—of officials who try to avoid judicial review by voluntarily mooting a case. The skepticism is warranted because the opportunities and incentives for government defendants are obvious: Any "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."

So we are "wary of attempts by parties to manufacture mootness in order to evade review." We worry about the "typical case" in which "defendants may claim repentance and reform through voluntary action only to revert to their old ways upon dismissal of the suit."

That's why the Supreme Court has repeatedly said that any defendant who invokes mootness based on voluntary compliance bears a "formidable burden." The standard for "determining whether a case has been mooted by the defendant's voluntary conduct is stringent." Defendants bear a "heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again."

This burden is not insurmountable, to be sure. If a government not only ceases the challenged behavior, but also assures the plaintiffs and the courts that it will never return to its previous course of conduct, a court might reasonably decide to credit that promise, and hold the case moot, so long as it finds no reason to doubt the government's credibility on this score.

But if the government refuses to offer any such assurance, then the case can't be moot. That would defy Supreme Court precedent and make a mockery of the "stringent" and "formidable" burden that defendants are required to overcome in such cases.

It would also defy common sense. President Reagan famously remarked that "the nine most terrifying words in the English language are 'I'm from the government and I'm here to help.'" That sentiment may be too flippant for some. But if a government official tells you that he is not here to help, even the sunniest optimist should side with the cynic. When that happens, you best take the official at his word….

In concurring, however, I am well aware that courts have not always followed this cautious approach to mootness. Moreover, it's a problem that seems to recur with alarming frequency when it comes to religious liberty.

In a series of recent cases involving constitutional challenges to various COVID-19 policies, our sister circuits enabled public officials to avoid judicial review by dismissing the claims against them as moot—despite the fact that the officials refused to promise never to return to their challenged conduct. To make matters worse, these officials not only gave no assurances—they went out of their way to reserve their right to revive their prior behavior at any time, as detailed in various dissenting opinions.

In the face of this intransigence, the majorities preached deference to political officials in the administration of COVID-19 policy…. But when it comes to the protection of constitutional rights, our job is not to defer—it's to review. Pandemic or not, it is the duty and function of the judiciary to ensure accountability of government under the Constitution and laws of the United States in all cases under Article III, both controversial and otherwise. Our job in these cases is to verify, not trust.

So I agree with the dissenters in these cases: Looking the other way when government claims mootness is an abdication of judicial duty, as well as an affront to religious liberty. Cases like these may no doubt "present[] hard questions." But failing to answer the hard questions "neither furthers religious freedom nor fulfills our judicial duty." To the contrary, it "works an intolerable unfairness" for people of faith. It's "disquieting" in the extreme to discover that "religious free exercise should hinge upon the caprice of the electorate," rather than on faithful enforcement by the judiciary. In a word, it's "indefensible.

Moreover, these abuses are not limited to religious liberty. Mootness manipulation can occur in any area where government regulates. With the circuits apparently divided on these questions, it will require action from the Supreme Court to get things back on track….

Substantive rights are meaningless if we don't enforce procedural rules properly. Cf. Steven S. Smith et al., The American Congress 222 (9th ed. 2015) ("If I let you write the substance and you let me write the procedure, I'll screw you every time.") (quoting Rep. John Dingell). We cannot allow government officials to unilaterally avoid judicial review—and especially not when they openly admit that their change in behavior is strategic rather than sincere. I concur.