Re: Rajiv
Read the following excerpt from our Memorandum in Support of Class Certification:
Exceptions to Mootness
Capable of Repetition, Yet Evading Review
The most commonly used exception to the mootness doctrine is that the claim is “capable of repetition, yet evading review.” Sosna v. Iowa, 419 U.S. 393 (1975). Under such an exception, the court will generally look to whether “(1) there [is] a reasonable expectation or a demonstrated probability that the same controversy will recur involving the same complaining party, and (2) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration.” Sierra Club v. Martin, 110 F.3d 1551, 1554 (11th Cir. 1997).
It is also pertinent to examine whether the defendant systematically violated the law on a “class-wide basis” in which case the pre-certification mooting of named plaintiffs’ claims “does not moot such a class action claim.” See Samuels v. District of Columbia, 248 U.S. App. D.C. 128, 770 F.2d 184, 193 n. 5 (D.C. Cir. 1985).
Intervention By Other Class Members
Courts will permit substitution of named plaintiffs whose claims have been mooted if there exists a live controversy in regards to the class members. See Swan v. Stoneman, 635 F.2d 97, 102 n. 6 (2d Cir. 1980) (“To the extent that appellants’ argument is that Swan’s death does not moot the class claim if one of the proposed intervenors can be substituted as a named plaintiff, we agree.”) The Swan court further states “[a]s a general rule, a class-action cannot be maintained unless there is a named plaintiff with a live controversy both at the time of the complaint and at the time the class is certified.” Id. at 102. The Swan court further notes that this general rule is not without exception and that the “capable of repetition, yet evading review” exception can also overcome the requirements of the general rule. See id. Similarly, in Silva v. Vowell , the court stated that “[o]nce the [named plaintiffs’] challenge became moot and put the named plaintiffs’ standing in question, the plaintiffs and the judge should have realized that intervention by another plaintiff was appropriate.” 621 F.2d 640, 650 (5th Cir. 1980) (case remanded to district court to allow “an appropriate named plaintiff [to] intervene.”), cert. denied, 449 U.S. 1125 (1981). Similarly, the court in Rivers v. Califano permitted the intervention of new plaintiffs with live claims and granted class certification. 86 F.R.D. 41, 45-46 (S.D.N.Y. 1980); see also H. NEWBERG, NEWBERG ON CLASS ACTIONS §§ 2.25-2.26 (2d. ed. 1985 & Supp. 1988). Such action is especially appropriate where the events causing mootness have only individual rather than class-wide impact. H. NEWBERG, supra § 2.25.
Relating Certification Back to the Time Of Filing of the Complaint
Finally, the Cockrum v. Califano decision strongly suggests that class certification is appropriate in the case at bar. 475 F. Supp. 1222 (D.D.C. 1979). In Cockrum, plaintiff claimants filed suit against defendant, the Secretary of the Department of Health, Education, and Welfare, claiming that the Social Security Administration failed to process certain appeals of benefits decisions in a timely manner. See id. at 1224-25. The Court found that “the problem plaintiffs complain of is systemic and nationwide in scope, and that a long-run solution, generally inappropriate and premature at a preliminary stage, must be made systemic rather than ad hoc in the final judgment.” Id. at 1232 The Supreme Court has acknowledged that a special allowance in dealing with a class action may be necessary for claims that become moot during the pendency of an action:
There may be cases in which the controversy involving the named plaintiffs is such that it becomes moot as to them before the district court can reasonably be expected to rule on a certification motion. In such instances, whether the certification can be said to "relate back" to the filing of the complaint may depend upon the circumstances of the particular case and especially the reality of the claim that otherwise would evade review.
Sosna, 419 U.S. at 402 n. 11. In Cockrum, the Court acknowledged the transitory nature of the class action by stating “it is likely … that many named parties will obtain decisions throughout the pendency of this action.” Cockrum, 475 F. Supp. at 1233. In concluding that class certification was appropriate, the Cockrum Court stated “[f]irst, the Court concludes it would be undesirable if the concept of mootness were defined so that unfettered power to control judicial review rested with defendants.” Id. The Court further added that the “plaintiffs’ advance epitomizes an ‘injury capable of repetition yet evading review’ … [because] a plaintiff dependent on Social Security and the efficiency of the system remains threatened by the defects in the system even though his immediate complaint is resolved, because the systemic delays could affect the claimant in the not unlikely event of a subsequent controversy with the system.” Id The court noted in its reasoning that, as in Roe v. Wade, 410 U.S. 113 (1973) “refusal to consider a class-wide remedy merely because individual class members no longer need relief would mean that no remedy could ever be provided for the continuing abuses.” Id. (citing Blankenship v. Secretary of HEW, 587 F.2d 329, 333 (6th Cir. 1978)). The Court continued its analysis by stating that regardless of whether the individual claims were moot, “the action is not moot as between members of the plaintiff class and defendants.” Cockrum, 475 F. Supp. at 1233. The Court ultimately concluded that certification should “relate back” to the date of the filing of the complaint and that the class action claim was not moot. Id.
Application to the Case at Bar
If at all an issue, mootness is certainly not a fatal issue in this matter. First, there remain six viable Plaintiffs representing the class and the subclasses. The controversy, thus, is alive and justiciable. Second, this claim falls properly within the “capable of repetition yet evading review” exception. Third, the claims of the class survive the claims of individuals. Based on the history of application backlog at the USCIS, inexorable probability is that the same controversy will recur continuously. The transitory nature of the class may allow for the resolution of individual claims before the matter is fully litigated. The mootness of these individual claims should not affect the certification in the class because like Cockrum, “the action is not moot as between members of the plaintiff class and defendants.” Cockrum, 475 F. Supp. at 1233. The case at bar is factually similar to the Cockrum decision and therefore, class certification should be appropriate in this case as well. Similar to Cockrum, the violation is class-wide and its effect is nationwide in scope. Fourth and final, this Court can properly certify this class by “relating back” to the filing of the Complaint. The Cockrum Court was unwilling to grant defendants the power to control judicial review by allowing them to destroy class certification through mooting the claims of individual named plaintiffs. The same rationale is applicable to the case at bar.
Originally posted by poongunranar
Rajiv:
I had discussed about this in the TSC forum sometime ago. I predicted that in order to avoid the culpability arising out of this suit, INS may well adjudicate all the plaintiffs thereby making the suit moot. At least a few cases of the plaintiffs have been approved within the past few months. If this trend continues, the cause for Class-Action gets seriously undermined. Do you think the priority is to first get the case admitted as Class-Action, so that the approval or pending of the plaintiff's applications becomes moot to our interests?
Also, as a lawyer, I am sure you appreciate that POSITIVE contribution means not merely venting out or singing cymbals of sycophancy. Rather, it is mostly appreciated in legal attack/defense that failure to prepare is preparing to fail. I hope my views on the flip-side of the coin would help bolster the points you will muster to counter the counter-claim filed by the defendants. Thanks for steering the efforts and good luck
