| There are new developments concerning a high-profile pending Supreme Court case we discussed in a Verdict column a few weeks ago. As we explained, the plaintiff/respondent in the case, Little v. Hecox, in September filed papers that, taken at face value, would seem to show that the case is now moot and the Supreme Court should dismiss it and vacate the ruling below by the U.S. Court of Appeals for the Ninth Circuit. The case involves Lindsay Hecox’s equal protection challenge to Idaho’s Fairness in Women’s Sports Act, which prohibits transgender women from participating in college sports at many of the universities in Idaho. Hecox obtained a preliminary injunction against the Act in the district court, and that ruling was affirmed by the Ninth Circuit, lower courts concluding that Hecox had shown it probable that application of the Act would violate her equal protection rights. The Supreme Court granted the cert. petition filed by Idaho Governor Bradley Little and the other defendants to the lawsuit. | | In light of the Court’s ruling last Term in U.S. v. Skrmetti, the Court was widely expected to reverse the Ninth Circuit. But then Hecox told the Court last month that, as a result of illness, family issues and publicity associated with the litigation, as well as her desire to focus on completing her academic graduation requirements, she had “decided to permanently withdraw and refrain from playing any women’s sports at [Boise State University, where she is enrolled] or [at any institution] in Idaho covered by [the Act].” She said she was “firmly committed not to try out for or participate in any school-sponsored women’s sports covered by [the Act].” Consistent with these representations, Hecox filed with the district court a Notice of Voluntary Dismissal under Federal Rule of Civil Procedure 41 to dispose of her entire complaint with prejudice (that is, without holding the door open to reinstituting the lawsuit). In light of that action, she argued to the Supreme Court, her case was currently moot and that (because she had sought dismissal with prejudice) her claims against the defendants could not recur. Therefore, she urged, the Court should vacate the Ninth Circuit’s judgment on mootness grounds and remand with a direction to dismiss the appeal in accordance with United States v. Munsingwear and related caselaw. With that disposition, Hecox stated, the defendants would “suffer no prejudice.” | | The Idaho defendants pushed back. They filed a motion in district court seeking to strike Hecox’s Notice to Dismiss on the ground that Hecox had previously agreed to a stay of all “proceedings” in the district court while the case was on review at the Supreme Court. In asking for and obtaining that stay, defendants argued, Hecox had waived her right to dismiss, because a dismissal entailed a “proceeding,” and also that Hecox’s attempt to dismiss should be barred by judicial estoppel because it was inconsistent with her earlier request that the district court do nothing until after the Supreme Court was done with the case. The defendants (as petitioners) also filed in the Supreme Court a response to Hecox’s suggestion of mootness, which we analyzed thoroughly in our previous column. | | That was where things stood until last week, when the district court in Idaho granted (somewhat surprisingly to us) the defendants’ motion to strike Hecox’s Notice of Voluntary Dismissal, holding that the previously issued stay prevents Hecox from seeking to dismiss, and that the equities in the case argue against dismissal. We say “surprisingly” because, while we empathize with some of the district court’s concerns, we do not find the district court’s decision and course of action to be supported by careful and sensible reasoning. | | To its credit, the district court did acknowledge that under Federal Rule of Civil Procedure 41, “a notice of dismissal . . . is normally self-executing and that '[t]here is nothing the defendant can do to fan the ashes of that action into life and the court has no role to play’” (emphasis in original and internal citations omitted). But the district court then qualified this latitude by saying “dismissal [can] be supplanted by other factors” such as “statutory provisions.” | | The district court then found an important other (albeit non-statutory) such factor in Hecox’s case to be the “stay of proceedings” mutually requested by the parties. From there, the court “[s]tepp[ed] back” to observe that it had “inherent power to control [its] docket,” and that it “s[aw] no reason suggesting why that power should not apply to dismissal notices—when necessary.” The court next indicated its provisional agreement with the defendants’ argument that judicial estoppel and waiver both applied: “Under the circumstances, it does seem Hecox’s position now is incongruent with her earlier position [that matters should be stayed while the case was at the Supreme Court]. . . . The Court is [also] somewhat persuaded by the idea that Hecox waived her right to file a notice of voluntary dismissal—at least temporarily. . . .[A] party claiming waiver is unavailable 'bears the responsibility of identifying some affirmative basis for [so] concluding’” (quoting United States v. Mazzanatto, 513 U.S. 196, 204 (1995)). Hecox, according to the district court, had not discharged that responsibility of identifying why waiver should not apply. | | Does the district court’s reasoning hold up? We think not. Putting aside the mechanical (and repetitive) quality of the court’s reasoning, the district court never demonstrates appreciation for the big picture against which Hecox’s Notice to Dismiss must be assessed. The common thread connecting all of the district court’s dubious instincts is that in the present case, the Notice of Voluntary Dismissal does not reflect merely a desire to stop litigating, but a change in facts that, if taken as true, moots the case and terminates the Article III power of federal courts over it. Thus, the district court’s “inherent power to control its docket” is entirely beside the point because district courts’ power to control their dockets ends at the point Article III power itself ends; a district court cannot ignore constitutional mootness simply because moot cases complicate docket management. (That is the “reason” the district court asked for, but failed to see, to explain why its docket-control authority should not govern this case.) | | In a similar vein, the idea that judicial estoppel prevents a party that earlier represented a ripe case or controversy from later alerting the court to facts indicating no such controversy exists borders on the surreal. Most obviously, a case might settle. It would be exceedingly odd to think both parties would be “estopped” from settling, notifying the court, and bringing an end to litigation simply because they had sought and obtained a stay in proceedings—indeed, as the district court itself conceded, such stays are often entered precisely in order to facilitate settlement negotiations. (More generally, we think a Rule 41 Notice of Voluntary Dismissal is always inconsistent with the prior—if implicit—representation to the court that a plaintiff wants to litigate, and yet Rule 41 dismissals aren’t generally barred by estoppel.) | | But what about Hecox’s “waiver” of her right to stop litigating by her agreement to a stay of proceedings? Again, at most such a waiver could prevent Hecox from discontinuing litigation in a dispute that remains ripe within the meaning of Article III. (Imagine Hecox still wants to compete in Idaho collegiate athletics but just doesn’t want to litigate anymore.) But one could never “waive” the right to stop competing athletically—what if Hecox were in a car accident that clearly ended her athletic career?—and if Hecox’s factual representations are to be accepted (more on that below), then her change of athletic (rather than litigious) heart simply moots the case. | | Towards the end of its ruling, the district court seems to identify the genuine basis for its decision (above and beyond the specious docket-control, estoppel and waiver notions discussed above): “The State of Idaho has defended this case vigorously for years. It would be fundamentally unfair to abandon the issue now on the eve of a final resolution. . . . A dismissal at this stage without a vacatur of the Ninth Circuit’s related decisions . . . would leave these critical questions [about the legality of Idaho’s law] in limbo (emphasis added).” But as we discussed in our previous column addressing the potential unfairness problems arising from unilateral changes in conduct that can moot a case, the ordinary course for the Supreme Court in a case like Hecox’s would in fact be to vacate the Ninth Circuit ruling. That step would go a long way to preventing the unfairness to Idaho about which the district court worries. | | The district court cannot, of course, tell the Ninth Circuit or the Supreme Court what to do, but it can be aware of the Munsingware doctrine by which vacatur is the normal course, and be aware that Hecox asked the Supreme Court to follow this course. (In this regard, we note that the cases on which the district court relied to conclude that Voluntary Dismissal under Rule 41 is not always granted involved instances in which a plaintiff sought to voluntarily dismiss to avoid the preclusive effects of losing in the courts. Hecox, by contrast, seeks to dismiss with prejudice, so that concern too would not seem to be relevant here.) | | At the end of its analysis, the district court concluded: “Idaho has secured a writ of certiorari. It has a fair right to have its arguments heard and adjudicated once and for all.” That just isn’t how the grant of the writ works. As we explained in our previous column, Article III requirements continue to apply after certiorari is granted. As frustrating as it might seem, there is no right to a hearing and final judgment that displaces those requirements. | | Finally, if the district court really did think the stay that was still in force limited the court’s ability to consider the Voluntary Notice of Dismissal, there were other options available to the judge. In particular, the court could simply have construed the Notice of Dismissal to be a Motion to Amend the Stay, and since mootness would have been the basis of such a request, the court would have had no grounds for denying it, even if the defendants opposed. We should note in this regard that the stay itself was written terribly, saying that the “proceedings in this case are STAYED until the United States Supreme Court finally disposes of the petition for a writ of certiorari. . . and issues a judgment. . . . (emphasis added). Readers will immediately recognize the problem with the phrasing. What if the Supreme Court had denied cert? The High Court would never then have issued any judgment. In that event, would the stay mean the case could never have proceeded in the district court? Of course not; one way or another, the stay would have had to have been lifted or modified, a course of action the court could have undertaken in response to the Rule 41 Notice. | | The Supreme Court has not yet taken action on Hecox’s mootness filing before it. It remains possible that the Court won’t care what the district court did or does, and that the Justices will find mootness for the reasons we discussed in the previous column. But it would be nicer, and cleaner, for the district court to do the sensible thing and dismiss with prejudice. That route is, we think, still available by means of a motion of reconsideration. Or a motion to amend or lift the stay, followed by another Rule 41 Notice. Or a prompt correction by the Ninth Circuit. We hope one of these options is pursued. |
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