Poky Litigants Cannot Make Use of “Capable of Repetition, Yet Evading Review” Exception to Mootness, Holds Fifth Circuit

In Empower Texans, Inc. v. Geren, No. 19-50577 (5th Cir. Oct. 5, 2020), a Fifth Circuit panel holds that a lawsuit mooted by the end of a legislative session could not be revived by the “capable of repetition, yet evading review” exception where the plaintiffs supposedly didn’t move fast enough to vindicate their rights.

Defendant Geren, Chairman of the Committee on House Administration of the Texas House of Representatives, authorized press cards for access to the House chamber. Allegedly, Geren refused to credential reporters from Texas Scorecard because publication had regularly given him an “F” rating and “endorsed his challengers in primary elections.” Plaintiffs alleged that “Geren’s failure to issue the press passes was the result of bad-faith viewpoint discrimination.”

Plaintiffs filed suit on April 16, 2019, and moved for a temporary restraining order and a preliminary injunction a month later, “only eleven days before the Regular Session of the 86th Texas Legislature ended …. On May 23, the district court granted Geren’s motion to dismiss. Empower did not file its notice of appeal until June 21,” after the session expired. “At this late date, the possibility of a special session has all but vanished.”

The Fifth Circuit holds that the case is moot and must be dismissed.

“Empower argues that the ‘capable of repetition, yet evading review’ exception applies because Geren will implement the same rules for press passes to cover the first day of the next legislative session beginning in January 2021, and the harm will repeat without enough time for Empower’s claims to be fully litigated.” The panel notes that the doctrine only applies “in exceptional circumstances.”

The panel notes the length of time that may qualify as too short to be fully litigated under this exception is not a rigid formula, but “need[s] to be judged on how quickly relief can be achieved in relation to the specific claim …. If more vigorous efforts earlier in this suit had the potential of achieving the results the plaintiffs now say they need more time to achieve, the party has not presented exceptional circumstances. A party usually must show its claims have evaded the review that was available for reasons beyond its control before it can ask for more.”

In particular, where a party has access to expedited procedures or stay pending appeal, but fails to utilize them, the panel concludes that the case is less likely to warrant the exception. “A party seeking to continue litigation after time has run out should not be allowed to do so when it failed to use the time it had.” (The panel notes that there is a split in the circuits on this point: the Third Circuit has recently held to the contrary.)

“We apply these considerations to the appeal. The 86th Texas Legislative Session began in January 2019, and Empower sought credentials immediately. It was May, though, before Empower sought a preliminary injunction, just eleven days before the regular session ended. An earlier request and denial would have allowed this court to be called on to review the denial with some urgency. Even after the district court granted Geren’s motion to dismiss on May 23, 2019, the notice of appeal was not filed until June 21 … Crucially, Empower never asked this court to expedite its appeal. Both the Federal Rules of Appellate Procedure and this court’s local rules allow a party to move the court for an expedited appeal. See FED. R. APP. P. 2; 5TH CIR. R. 27.5. Empower did not take advantage of these rules.”

In sum, “[b]ecause Empower did not utilize the opportunities it had in its first suit, it cannot complain that the dispute has evaded review.”

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