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Supreme Court Refuses to Consider the Constitutionality of the Equitable Mootness Doctrine

The doctrine of equitable mootness is in the news again.  The Supreme Court recently denied a cert. petition in a case where the petitioner wanted the doctrine ruled unconstitutional. KK-PB Financial LLC v. 160 Royal Palm LLC, Case No. 21-1197, 2021 WL 7247541 (petition), 2022 WL 1914118, (denying certiorari).

The petitioner argued that equitable mootness “lacks a statutory basis, lacks any support in Supreme Court jurisprudence, is unconstitutional and allows federal judges to abdicate their responsibilities to adjudicate live controversies on the merits.”  But the Supreme Court refused to take the case.  The decision will disappoint those who find fault with the doctrine and its application.

In the Third Circuit, Judge Cheryl Ann Krause has called the doctrine “a legally ungrounded and practically unadministrable ‘judge-made abstention doctrine,’” adding that “the time has come to reconsider if the doctrine should exist at all . . . .”  One2One Communications, LLC, 805 F.3d 428, 438 (3d Cir. 2015) (concurring opinion).

In the Sixth Circuit, Judge Karen Nelson Moore has stated, “[d]ivorced as it is from any statutory basis, equitable mootness is nothing but a prudential doctrine of ‘judicially self-imposed limits.’  However ‘prudential’ equitable mootness may be, it operates to cut off entirely a litigant’s right to appeal in a case that would otherwise be within our appellate jurisdiction.” In re City of Detroit, Michigan, 838 F.3d 792, 810 (6th Cir. 2016) (dissenting opinion).

Last year, a panel of the Eighth Circuit predicted that if “equitable mootness . . .  becomes the rule of appellate bankruptcy jurisprudence, rather than an exception to the rule that jurisdiction should be exercised, we predict the Supreme Court . . . will step in and severely curtail — perhaps even abolish — its use . . . .”  In re VeroBlue Farms USA, Inc., 6 F.4th 880 (8th Cir. 2021).

In April, the history of the doctrine and related key case law were reviewed in detail at a robust panel session at the ABI’s Annual Spring Meeting.  One of the panel members, Professor Ralph Brubaker of the University of Illinois College of Law, said he would like to see the Supreme Court eliminate the doctrine.  But given the Supreme Court’s denial of the cert. petition last week, we know that won’t happen anytime soon.

As our recent post about equitable mootness explained, the doctrine has been adopted by all of the federal circuits.  Judicial and academic criticisms aside, federal district and appellate courts can and will continue to apply the equitable mootness doctrine in appeals of bankruptcy court decisions.