Ripeness, Exhaustion, and Mootness Explained: The Three Timing Doctrines That Decide When You Can Sue an Agency

In 1963, the Food and Drug Administration issued a regulation requiring drug manufacturers to list a drug's generic name every time they used its brand name — on labels, in advertisements, and in every piece of promotional material. Every time. The rule took effect the day it was published. Companies making more than ninety percent of the country's prescription drugs thought the "every time" requirement went beyond what Congress had authorized. They had two options. They could reprint everything they owned and redesign every ad, at enormous expense. Or they could keep using their old labels and wait to be prosecuted for selling misbranded drugs — a prosecution a drug company's business cannot survive lightly, because the whole business depends on doctors trusting its products. They sued. The district court agreed with them. The Third Circuit reversed, saying there was no case because the FDA hadn't yet done anything to anyone. And in 1967, in Abbott Laboratories v. Gardner, the Supreme Court sent it back and gave the modern doctrine of pre-enforcement review its foundation.

This is the timing episode, fifth in the season's judicial review arc. The last four episodes have been about standing, the ballroom case, and finality. This episode handles the other three timing doctrines together, because they share the same underlying question — when can you sue an agency? — and because the answer to that question depends on who built the rule. Ripeness is largely the courts' own creation (with a constitutional core). Exhaustion can come from a statute, from an agency rule, or from the courts. Mootness is anchored in Article III. Where a timing rule comes from decides who has the power to forgive you for missing it.

Abbott Labs didn't just open the courthouse door for the drug companies. It installed the presumption that still shapes everything in the field — judicial review of final agency action isn't cut off unless there is "clear and convincing evidence" that Congress meant to cut it off. And it supplied the two-part ripeness test that courts still apply: evaluate the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration. Fitness was easy in Abbott Labs because the question was purely legal and the rule was final. Hardship was easy because the rule put the companies in a dilemma — comply at great cost, or risk serious criminal and civil penalties, in an industry where public confidence makes it impossible to defend an enforcement action without being destroyed first. Toilet Goods Association v. Gardner, decided the same day, shows how the test cuts the other way. The cosmetics industry challenged an FDA rule authorizing the Commissioner to suspend color-additive certifications for companies that refused inspector access. The question was legal and the rule was final — but the Court held the case wasn't ripe anyway, because the rule rested on FDA's general enforcement authority and the court would do a better job evaluating it in a real inspection dispute, and because companies didn't have to change anything the day the rule issued. A purely legal question isn't automatically fit for review. Ripeness is doing less work today than it used to — most rule challenges now get filed the day the rule is published and nobody argues ripeness — but it still exists for interpretive rules and policy statements, and its constitutional overlap with standing's "actual or imminent" requirement is permanent.

Exhaustion asks whether you've used the agency's own process before going to court. The APA answers much of this directly in Section 704 — unless a statute requires exhaustion, or an agency rule both requires an appeal and makes the decision inoperative during the appeal, exhaustion isn't required at all. In Darby v. Cisneros (1993), a developer sanctioned by HUD went to court without taking an optional internal appeal. The Supreme Court held that was fine. Courts cannot impose exhaustion requirements on their own in APA cases. For a long time, statutory exhaustion requirements were treated as jurisdictional — missing one meant the court had no power to hear your case, no matter what. The Court has moved away from that. Santos-Zacaria v. Garland (2023) held the immigration statute's exhaustion requirements were claim-processing rules, not jurisdictional. The difference matters. A jurisdictional defect can be raised at any time and can never be excused. A claim-processing rule can be forfeited by the government if it isn't raised, and it may have exceptions. A Social Security claimant who misses the Appeals Council filing deadline because her lawyer's office lost her file isn't necessarily finished — Smith v. Berryhill (2019) held unanimously that the Appeals Council's dismissal of an untimely request is itself reviewable, and a court can ask whether the agency abused its discretion in refusing to find good cause for the delay. The strictest statutory exhaustion is the prison context. The Prison Litigation Reform Act requires exhaustion of "such administrative remedies as are available," and the Court has read "available" as the only escape hatch Congress wrote. In Ross v. Blake (2016), a Maryland prisoner assaulted by a corrections officer thought the state's internal investigation of his assault was enough. A unanimous Court said it wasn't — judges can't add "special circumstances" exceptions to a statute Congress wrote without them. A grievance process is unavailable only when it is a dead end in practice, when it is so opaque no ordinary prisoner could use it, or when officials thwart prisoners through machination, misrepresentation, or intimidation.

Mootness is the Article III rule that a live controversy has to exist at every stage of the case. Ordinarily, if the controversy ends, the case ends too. But a defendant cannot moot a case by stopping the challenged conduct unless the defendant makes it "absolutely clear" the conduct cannot reasonably be expected to recur. That's voluntary cessation, and the standard is demanding. In 2020, the EPA withdrew the compliance order against the Sacketts in a two-paragraph letter and argued their case was over. The Ninth Circuit said no, because nothing in the letter bound a future EPA. Three years later, the Supreme Court decided the wetlands question in the Sacketts' favor — a decision that would never have existed if the Ninth Circuit had called the case moot. In FBI v. Fikre (2024), the government removed Yonas Fikre from the No Fly List after he sued and filed a declaration saying he wouldn't be put back on "based on currently available information." A unanimous Court said that language wasn't a promise — it was a lawyer leaving a door open — and the government bears the same formidable burden as any defendant. In Mullin v. Al Otro Lado (2025), the government rescinded the border-metering policy in 2021 but the challengers had already won a class-wide declaratory judgment. In 2025 the government asked for Supreme Court review, the Court held the case wasn't moot (the declaratory judgment still barred metering inside the Ninth Circuit), and then ruled for the government on the merits 6-3. The rescission is what kept the case alive. The case is what got the judgment erased. The exception that every lawyer remembers from Roe v. Wade — capable of repetition yet evading review — started in a 1911 railroad rate case, Southern Pacific Terminal v. ICC, and the modern test has two parts: the challenged action is too short to be fully litigated, and there is a reasonable expectation that the same complaining party will face it again. The same-party requirement is doing most of the work. A pregnancy satisfies it because the same person can get pregnant again. Most detention cases don't — a released detainee usually cannot show that this particular person will be detained again.

Jenalo v. Bondi, dismissed in September 2025, is the clearest recent illustration. Two noncitizens were held under a mandatory detention provision — no bond hearing available, held while removal proceedings ran. The Second Circuit held their detention had gone on so long that due process required a bond hearing, and the government sought Supreme Court review. One of the detainees was Keisy G.M., a lawful permanent resident with five U.S. citizen children who had spent twenty-one months in immigration detention without a hearing on whether he was a flight risk or a danger — based on a 2015 assault conviction he had already finished serving. ICE released him in 2022 under a pandemic-era court order, and ICE's own review concluded he was neither a security risk nor a flight risk. The Court granted review of his case on June 15, 2025, with argument set for October 13. On August 28, the governor of New York granted him a full and unconditional pardon. Under the immigration statute, a full pardon means the conviction can no longer make him deportable — which means the mandatory detention provision no longer reaches him. There was no reasonable expectation that the same party would face the same detention again. The case was dismissed on September 11, three days before his merits brief was due. The question survives — the Solicitor General has already told the Court it will look for other cases to bring the same question back this term — but G.M.'s case did not. And notably, the federal government did not control the timing. A state governor did.

The three doctrines together define the window during which you can sue an agency — not too early, not before you've used the agency's process, not after the dispute has ended. The size of the window varies enormously. For a regulated industry challenging a final rule, Abbott Labs made it very wide. For a benefits claimant, it depends on deadlines inside a multi-step process the claimant doesn't control. For a detainee, the window can close with a release. Each of these doctrines serves a real purpose. Ripeness keeps courts from deciding abstractions. Exhaustion lets agencies correct themselves. Mootness keeps courts from issuing advisory opinions. It would be wrong to characterize all of them as agency tools — recent cases cut several ways. A pardon mooted Jenalo, not the government. In Fikre, the government tried to moot a case and lost. In Al Otro Lado, keeping a case alive is what let the government win. But one asymmetry is real: the government is in these cases constantly. When a vehicle fails, it goes looking for another one. The drug claimant and the prisoner get one case. The imbalance isn't that the doctrines are rigged. It's that one side plays the game every day. Even in Abbott Labs, the first beneficiaries of the newly-expanded pre-enforcement review doctrine were ninety percent of a sophisticated industry with the best lawyers in the country, suing together. The doctrine isn't formally limited to sophisticated parties. The capacity to use it at the right moment is not evenly distributed. And when courts write a rule, they generally keep more authority to recognize exceptions to it. When Congress writes a rule, the statute's text controls the exceptions. "Available" is the only escape hatch in the prison statute because it is the only one Congress wrote. But statutory doesn't mean unforgiving — Santos-Zacaria and Smith v. Berryhill make that clear. The hardest limits of all are constitutional. If a case is truly moot, no court can revive it, no matter who is asking.

Listen Now

Apple Podcasts | Listen on our site

What We Cover

Full Rough Transcript

Gwen: Welcome to Administrative Remedies, because you can't fix what you don't understand. Brought to you in part by the University of Tulsa College of Law's Mabee Legal Information Center. I'm Gwendolyn Savitz, an associate professor here at TU.

Marc: And I'm Marc Roark, a professor at the College of Law. We'll be breaking down complex doctrines with real-life analogies and examples, to demystify the world of administrative law for everyone trying to understand how government actually works.

Gwen: Agencies are the main way the federal government gets things done. It's not through Congress, for reasons we'll be addressing over the course of the series.

Marc, in 1963, the Food and Drug Administration issued a regulation. And this regulation required drug manufacturers to list a drug's generic name every time they used its brand name. They had to do it on labels, in advertisements, and in promotional materials.

Marc: So every time you said Valium, you had to say diazepam.

Gwen: Every time. And the rule took effect immediately, the day it was published.

Marc: That probably meant that they had to reprint everything that the industry then owned.

Gwen: Yes. They had to destroy everything they currently had. They needed to buy all new stuff, redo every ad. The FDA's lawyers told the court that immediate compliance was expected. Companies making more than ninety percent of the country's prescription drugs thought the "every time" requirement went beyond what Congress had authorized. So they had two choices. They could comply and pay for it. Or they could keep using their old labels and wait to be prosecuted for selling misbranded drugs.

Marc: That really isn't a choice for a company whose whole business depends on doctors trusting in its products. "Indicted for misbranding" is not a headline a drug company survives lightly.

Gwen: Right. So they sued. And the district court agreed with them. The Third Circuit reversed. It said there was no case, because the FDA hadn't done anything to anyone. And then in 1967, the Supreme Court sent it back. Abbott Laboratories v. Gardner. You can challenge a rule like this before the agency enforces it.

Marc: So, pre-enforcement review. And the Court got there over a timing objection, which sounds a little like "too early."

Gwen: Yes. It actually got there over two objections. The government's first argument was that the drug statute itself ruled out this kind of suit. It set up a special review procedure for certain other FDA regulations. But Harlan rejected that with a presumption that still is incredibly important in the field — that judicial review of final agency action isn't cut off unless there's some sort of persuasive reason to believe that Congress meant to cut it off. We need clear and convincing evidence. That was the language the court used. And the statute even had a clause saying that special remedies were in addition to any others.

Marc: So, a presumption in favor of review. That becomes the background rule for whether agency action can be reviewed at all. And the timing doctrines then ask whether this particular case can be heard now. Does that sound right?

Gwen: Yes. Timing is where a lot of administrative cases get decided. Too early is ripeness. Ripeness is largely the courts' own creation, although it has a constitutional core. Not yet through the agency's own process is exhaustion. Exhaustion can come from a statute, or an agency rule, or the courts. Too late, meaning the dispute is over, is mootness. And mootness comes from Article III. So where a timing rule comes from decides who has the power to forgive you for missing it.

Segment 1 — Ripeness

Gwen: Let's go back to ripeness. Harlan gave the two-part test in Abbott Labs, and that's been the test ever since. He said:

Marc: The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.

Gwen: Fitness came easily. Both sides agreed that this was purely legal. Did the statute authorize the "every time" rule? And the rule was final. It had gone through notice and comment and it was in force. Hardship came pretty easily too. Harlan wrote that the rule put the companies in exactly the kind of dilemma that the Declaratory Judgment Act was designed to relieve. They could either choose to comply at great cost, or they could risk serious criminal and civil penalties.

Marc: The government must have said that expense alone isn't the kind of hardship that can be enforced. Every regulation costs somebody some money.

Gwen: It did indeed say that. And the Court's answer was about what kind of expense this was. The rule was aimed at these companies specifically. It required immediate changes to how they ran their business every day. And noncompliance exposed them to strong sanctions. Harlan added that drug companies operate in a sensitive industry where public confidence matters. So forcing them to test the rule as defendants in an enforcement action could harm them severely and unnecessarily.

Marc: So they couldn't really just wait and see what happened.

Gwen: Right. And you can see the difference clearly in Toilet Goods Association v. Gardner, which the Court decided the same day. So this was also the FDA. The FDA had issued a rule under the color additive amendments that said if a cosmetics company refused to give FDA inspectors free access to its facilities and its processes and its formulas, the Commissioner could suspend the company's certification for color additives. The industry said that FDA had no authority to demand that kind of access. The Court agreed the question was a legal one, and it agreed the rule was final, but it still held the case wasn't ripe.

Marc: So on what ground, if the question was legal and the rule was final?

Gwen: Here's what the Court said. At this juncture, we have no idea whether or when such an inspection will be ordered, and what reasons the Commissioner will give to justify his order.

The rule rested on FDA's general power to issue regulations for efficient enforcement, and whether that justified it depended on what enforcement problems FDA actually faced. This was something a court could judge better in a real inspection dispute. And the hardship here was light. Nobody had to change anything the day the rule was issued. A company that refused an inspector faced suspension of its certification, but it could challenge that when it occurred.

Marc: So a purely legal question isn't automatically a fit.

Gwen: Right. It certainly helps, but by itself it isn't enough. The modern example of a purely legal challenge that still wasn't ripe is National Park Hospitality Association. This is 2003, so — more recent than the 1970s, but not super, super recent. Here, the Park Service had issued a regulation saying that a federal contract disputes statute didn't apply to concession contracts. Concessioners challenged it, and the Court said wait — the regulation didn't command anyone to do anything, and a court would do a better job deciding the question with some sort of concrete contract dispute.

Marc: Okay, first of all, I have to say, saying that 2003 just doesn't feel that recent really hurts me at my heart.

Gwen: I get that.

Marc: Though most rule challenges now get filed the day the rule is published, and nobody argues ripeness at all.

Gwen: Yeah, this is because Abbott won. So what ripeness used to screen out now is generally handled by standing or by finality. It can still affect interpretive rules or policy statements. But again, finality still kind of hits that too.

So ripeness has two strands. One is constitutional. Here it overlaps with standing's requirement that the injury be actual or imminent, and no court can waive that. But the other is prudential. That's the court's own judgment about when to step in. The prudential strand is the part that's under pressure. So in 2014, the Court said that prudential ripeness sits in tension with a federal court's obligation to decide the cases within its jurisdiction, and openly questioned how much of it survives.

Marc: So the part the courts built is the part the courts are considering giving back now.

Gwen: So that's ripeness. There's not necessarily a ton left, but it still exists somewhat.

Segment 2 — Exhaustion

Gwen: Next, we go to exhaustion. Exhaustion asks whether you've used the agency's own process before going to court. And the reasons for it are real. The agency might fix its own mistakes. It builds a record that a court can review. It can apply its expertise first. And it won't be buried in lawsuits over something that it might have resolved on its own anyway.

Marc: And this should feel common for lawyers, right? Private law has the same instinct. Plenty of homeowners' association declarations require mediation before anybody can sue over a covenant. So the lawsuit is supposed to be the last step, not the first step.

Gwen: And the first question with any sort of exhaustion requirement will be who wrote it. Was it Congress? Is this an agency rule? Was this the courts? For regular APA cases, Congress wrote the answer, and it did it in section 704.

Marc: Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section, whether or not there has been presented or determined an application for a declaratory order, or for any form of reconsideration, or — unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative — for an appeal to superior agency authority.

So that last clause is doing a lot of work. The agency can require an internal appeal, but only by rule, and only if it holds the decision in suspense while the appeal is pending.

Gwen: Yes. So this is Darby v. Cisneros, in 1993. A developer sanctioned by HUD went to court without taking an optional internal appeal. And the Court said that in an APA case, that's fine. Courts can't impose exhaustion requirements on their own. It has to come from a statute, or from an agency rule that requires the appeal and makes the decision inoperative while the appeal is occurring. So the courts had built a general exhaustion doctrine, and the Court read the APA to take that tool away from the courts.

Marc: And so then the harder cases are the statutory ones.

Gwen: Yes. And the key distinction there is between mandatory and jurisdictional. For a long time, statutory exhaustion requirements were described as jurisdictional. If you miss one, the court had no power to hear your case, no matter what. But the Court's been moving away from that. In Santos-Zacaria v. Garland, in 2023, it held that the immigration statute's exhaustion requirements were not jurisdictional. This was a claim-processing rule, and that mattered. A jurisdictional defect can be raised at any time and can never be excused. A claim-processing rule can be forfeited by the government if it doesn't raise it. And it might have exceptions too.

Marc: Okay. And the distinction only matters if somebody can actually use it. Put it on a person, for example.

Gwen: All right. So we'll take a Social Security disability claimant. Rosalind. She's fifty-three. She's done nineteen years as a hospital billing clerk. She's got a chronic nerve condition in both hands. The Social Security Act lets her into federal court only after a final decision is made after a hearing. And the Social Security Administration's regulations define the steps that you need to get there. You need an initial determination, a reconsideration, a hearing before an administrative law judge, and then Appeals Council review.

So she's been denied each of the first three. That means up through the hearing before the administrative law judge. She has sixty days to ask the Appeals Council for review, but her lawyer's office has turnover. Her file slips. The request goes in two weeks late. And the Appeals Council dismisses it as untimely.

Marc: So she's finished.

Gwen: That's what the lower court said about a similar person who was in almost exactly that position. But the Supreme Court unanimously disagreed in Smith v. Berryhill, in 2019. There, an Appeals Council dismissed for untimeliness after an ALJ hearing, but the Court determined that that decision itself was a final decision a federal court could review. The court could ask whether the Social Security Administration was right to refuse to excuse the late filing, even though their own rules allow extensions for good cause.

Marc: So Rosalind gets a judge to look at whether two weeks late should be forgiven.

Gwen: Right, she does. But the judge isn't starting fresh. The court asks whether the Social Security Administration abused its discretion in refusing to find good cause. And the agency's own rules give examples. Serious illness, if the records are destroyed, if there's misleading information from the agency itself.

Marc: None of which is "my lawyer's office lost track of my file."

Gwen: So that's the question the court would decide. And if she won, it wouldn't automatically mean she gets benefits. If the court decided that the Appeals Council should have heard the appeal, it would send it back to the Social Security Administration. So it would get her the review that she missed, but not necessarily more than that.

Marc: Which is still more than the phrase "jurisdictional" would have left her.

Gwen: Yes. Social Security exhaustion has been softer for a while. Since Mathews v. Eldridge, the only thing that can't be waived is presenting the claim to the Social Security Administration in the first place. The rest can be excused, and the Court has excused it. It's also repeatedly refused to make claimants raise specific issues before the agency.

Marc: And regulated companies — they don't go through an Appeals Council.

Gwen: Yeah, their version is different. When a company challenges a rule, some courts, like the D.C. Circuit, hold that an objection generally can't be raised in court unless someone raised it during the comment period. That doesn't necessarily have to be the company that's now suing. It just needs to be someone. That's issue exhaustion, and it rewards whoever had lawyers who were carefully watching the docket. Show up in court with an objection nobody put before the agency, and you may find it forfeited.

Marc: Then statutory exhaustion isn't the wall I'd assumed. Where exactly is the wall?

Gwen: So the clearest is prisons. In McCarthy v. Madigan, in 1992, a federal prisoner sued prison officials for money damages. The Bureau of Prisons had a grievance process, but it couldn't award money under that process. No statute required exhaustion, so the Court applied judge-made doctrine and identified circumstances where exhaustion shouldn't be required — like where it would unduly prejudice a later court action, or where the agency can't grant effective relief, or where the agency is biased or has already decided the answer. The prisoner didn't have to exhaust.

Marc: And Congress answered.

Gwen: It did. Four years later, in the Prison Litigation Reform Act.

Marc: Okay. And in that Act, Congress said: No action shall be brought with respect to prison conditions under section 1983 of this title, or any other federal law, by a prisoner confined in any jail, prison, or other correctional facility, until such administrative remedies as are available are exhausted.

So "no action shall be brought" is mandatory on its face.

Gwen: Yeah. And the Court has read it that way. In 2001, it held that prisoners must exhaust even when the grievance process can't give them the money they're seeking. That's the exact situation in which McCarthy had excused exhaustion. And then in 2006, it held that exhaustion means proper exhaustion, including deadlines. So here we had a California prisoner who filed his grievance roughly six months after the prison's deadline had passed, and it was rejected as untimely. That wasn't exhaustion, so his federal case couldn't go forward.

Marc: Okay, that's the "two weeks late" scenario. Except it's a prisoner, not a disability claimant.

Gwen: Yes. And Ross v. Blake, in 2016, shows how far that can go. So here we had a Maryland prisoner who was assaulted by a corrections officer. The state's internal investigations unit looked into it, and Blake assumed that was enough. He didn't think he also needed to file a grievance.

Marc: That's a reasonable mistake. The state investigated the thing he would have complained about.

Gwen: Yeah, the Fourth Circuit thought so too, but a unanimous Supreme Court reversed. Judges can't add "special circumstances" exceptions to the statute. The only exception is the one Congress wrote — the word "available." And the Court said a process is unavailable if it's a dead end in practice, when it's so opaque no ordinary prisoner could use it, or when officials thwart prisoners through machination, misrepresentation, or intimidation.

Marc: So the difference between McCarthy and Ngo isn't that prisoner grievances got better. It's who wrote the rule.

Segment 3 — Mootness

Gwen: Yes. And there's one more doctrine we have to hit, and that's mootness. Article III requires a live controversy at every stage. Ordinarily, if the controversy ends — like the plaintiff got what they wanted, or the policy was withdrawn, or the person was released — the case ends too.

Marc: Which means a defendant can sometimes end a case by changing its behavior.

Gwen: Or they can try. So if we go back to the Sacketts in 2020, while their appeal is being briefed, EPA withdrew the compliance order that had previously issued to them, in a two-paragraph letter, and argued that the case was now over. But the Ninth Circuit said it wasn't, because nothing in the letter bound a future EPA not to come back.

Marc: And refusing to call it moot is the only reason there was ever a Sackett decision in 2023.

Gwen: Yes. So the Ninth Circuit ruled for the EPA on the merits anyway, but the case stayed alive. And then three years later, the Supreme Court decided that wetlands question in the Sacketts' favor.

Marc: That's voluntary cessation. Stopping the conduct doesn't end the case unless you can show you won't start again.

Gwen: And the standard is demanding. The defendant has to make it absolutely clear the conduct could not reasonably be expected to recur. In 2024, Yonas Fikre, an American citizen, sued over his placement on the No Fly List. After he sued, the government took him off and then filed a declaration saying he wouldn't be put back on based on currently available information. A unanimous Court said that wasn't enough. The government bears a formidable burden, the same as any defendant, and a promise hedged with "currently available information" doesn't cover it.

Marc: So, "based on currently available information" — that isn't a promise. That's a lawyer leaving a door open. Though I assume the government said it couldn't say more without revealing why he was listed on the No Fly List in the first place.

Gwen: It sure did. And the Court said only that classified material has to be handled carefully. And two justices wrote separately to add that the government can't be required to disclose it, that other evidence might be enough. But either way, the government hadn't made the showing here.

Marc: Some courts give government defendants more benefit of the doubt, don't they?

Gwen: The Fifth Circuit does. Its precedent gives the government a lighter burden. It acts on a presumption of good faith, which is a little hard to square with Fikre.

All of that predates this term, though, where the Court took up voluntary cessation again. This is Mullin v. Al Otro Lado, the metering case. Starting in 2016, border officials told asylum seekers arriving at the ports of entry to wait on the Mexican side. This practice was rescinded in 2021, but the challengers had already won a class-wide declaratory judgment that it was unlawful.

Marc: So the policy is gone. I'd expect the government to be happy to let that lie.

Gwen: It was not. So in 2025, it asked the Supreme Court to review the judgment. And the Court held that the case wasn't moot, that the declaratory judgment still barred metering inside the Ninth Circuit, and the challengers hadn't shown it was absolutely clear the government wouldn't bring metering back. And then it ruled for the government on the merits, six to three.

Marc: The rescission is what kept the case alive, and the case is what got the judgment erased.

Gwen: Yes. Jackson made this point in dissent. The government had said only that it wanted to keep the option of reviving the practice. And on her account, the Court had given mixed signals about how likely recurrence had to be.

Marc: That's an odd use of the rule, though. And then there's the exception every lawyer remembers from Roe — capable of repetition, yet evading review.

Gwen: This was actually originally an agency case, from 1911. Southern Pacific Terminal v. ICC. Here, there were Commission orders that expired before anyone could get them reviewed. The modern test has two parts: that the action is too short to be fully litigated, and there's a reasonable expectation that the same complaining party will face it again.

Marc: So the exception everyone associates with Roe started with railroad rates.

Gwen: Yes. These were short-lived orders and a slow docket. But the problem hasn't changed much.

Marc: And "same party" is the part people forget. It's doing all the work. It isn't enough that the policy will hit somebody else next year.

Gwen: Yeah. So a pregnancy fits, because people can definitely get pregnant again. Most detention cases don't, because a released detainee usually can't show that that particular person will be detained again. Those survive through a different way, as class actions, where a claim that's inherently transitory can continue after the named plaintiff's own claim ends.

Marc: Okay, so the cleanest illustration that I can think of just happened mere weeks ago.

Gwen: Yes, it happened in September. This was a case called Genalo v. Black. Two men were held under a mandatory detention provision. These were noncitizens, which included green card holders, who had been convicted of certain crimes and were being held without bond while removal proceedings ran. So the Second Circuit held their detention had gone on so long that due process entitled them to a bond hearing. And the government asked the Supreme Court to review that.

Marc: OK, so "mandatory" means no bond hearing at all, which is the part people find hard to believe. You can be held on the strength of a conviction you already served the time for.

Gwen: Yeah. So one of them, Keisy G.M., was a lawful permanent resident with five U.S. citizen children. He spent twenty-one months in immigration detention without ever getting a hearing on whether he was a flight risk or a danger. And this was based on a 2015 assault conviction that he'd already served all his time for. ICE released him in 2022 under a court order requiring custody reviews during the pandemic. And in that review, ICE itself concluded that he was neither a security risk nor a risk of absconding.

Marc: So by the time this reached the Supreme Court, he wasn't even in custody.

Gwen: Right, which is why mootness was in the case from the start. The other man who'd been part of this case had already had a final removal order and he'd left the country for good, so his half was clearly moot. G.M. here was out, but he had a pardon application pending in New York. When the Court granted review on June 15th, it took only his case and told the parties to brief whether his claim was moot along with the merits. Argument was set for October 13th. And then on August 28th, the governor granted a pardon, one of six she issued that day. Here is the letter that was sent to the Court after that.

Marc: Three calendar days before G.M.'s merits brief was due, however, the Governor of New York granted a full and unconditional pardon with respect to G.M.'s aggravated-felony conviction. As a result of the pardon, G.M. would no longer be subject to such detention. The government therefore agrees with G.M. that his habeas case is now moot.

Gwen: So this case was granted. There were amicus briefs filed, argument on the calendar — and now gone.

Marc: And not because the agency did anything.

Gwen: Right. And that's worth stressing. Here, the federal government didn't control the timing. A state governor did. The case was dismissed on September 11th.

Marc: Why didn't "capable of repetition" save it? Mandatory detention isn't going away.

Gwen: So the issue here is with the same-party rule. It's unquestionably the case that the issue is going to come up again, but it will come up for other detainees. Under the immigration statute, a full and unconditional pardon from a governor means that the conviction can no longer make this guy deportable. And if he isn't deportable on that ground, the mandatory detention provision doesn't reach him. So there was no reasonable expectation that he would face the same detention again. The question survives, but his case doesn't.

Marc: And the question itself? The government wanted it answered.

Gwen: And it still does. They've lost this vehicle, but the Solicitor General told the Court it would look for other cases to bring the same question back during this term. That's in the same letter that they sent.

Segment 4 — The window, and who can open it

Marc: Okay, let's put the three of these things together. So: not too early, not before you've used the agency's process, but not after the dispute has ended.

Gwen: Right. And the size of this varies enormously. For a regulated industry challenging a final rule, Abbott made this really wide. For a benefits claim, it depends on deadlines inside a multi-step process. And for a detainee, the window can close with a release.

Marc: OK, but these doctrines have real purposes. Ripeness keeps courts from deciding abstractions. Exhaustion lets agencies correct themselves. Mootness keeps courts from issuing advisory opinions. It's easy to make every timing rule sound like an agency trick.

Gwen: Right. And it certainly wouldn't be right to do that. We can see that in recent cases. So a pardon mooted Genalo, not the government. In Fikre, the government tried to moot a case and lost. And in Mullin, keeping a case alive is what let it win. But one advantage is real. The government is in these cases constantly. So when a vehicle fails, it goes looking for another one.

Marc: And so Rosalind gets one case. Ngo got one grievance.

Gwen: Yes, that's the asymmetry. So it isn't the doctrine here. It's the docket.

Marc: The imbalance isn't that doctrines are rigged. It's that one side plays the game every day. Which is why the drug companies in Abbott weren't really underdogs either. Ninety percent of an industry, with the best lawyers in the country, suing together. They know the court. They know the terrain. They work this place every day.

Gwen: Yes. Abbott drastically expanded pre-enforcement review, and the first beneficiaries were a group that could afford to use it. The doctrine isn't formally limited to sophisticated parties, but the capacity to use it at the right moment isn't evenly distributed.

Marc: And the other half of this is who can forgive a miss.

Gwen: When courts create a prudential rule, they generally keep more authority to recognize exceptions to it. The McCarthy factors. The prudential side of ripeness that the Court's now questioning. When Congress builds a rule, the statute's text controls the exceptions. That's Ross. "Available" is the only escape hatch in the prison statute, because that's the only one that Congress wrote.

Marc: But statutory doesn't mean unforgiving. You just told me Rosalind gets a hearing on her late filing.

Gwen: So statutory here doesn't have to mean jurisdictional. Santos-Zacaria made that explicit, and Smith shows the related point from another direction. A missed agency deadline doesn't lock the courthouse door, because the statute made the agency's timeliness dismissal itself reviewable. Congress can write a mandatory rule without stripping courts of power, and Congress can write flexibility into the statute itself. The hardest limits of all aren't statutory, they're constitutional. If a case is truly moot, no court can revive it, no matter who's asking.

Marc: So the question isn't just whether a rule is hard or soft. It's whose rule is it, and therefore who has the power to bend it?

Gwen: Yes. That's the question that can decide whether a court ever reaches the merits of your case.

Closing

Gwen: So we've now covered five threshold doctrines. We've talked about standing, finality, ripeness, exhaustion, and mootness. Next week, we talk about the last one, and it's a little different. This is the cases where courts say that some agency decisions are just completely outside judicial review altogether — or at least nearly so. This isn't "not yet" or "not you." This is "not reviewable at all." We're talking about Heckler v. Chaney and Patel v. Garland, the places where courts have said this really isn't ours to decide.

Marc: And after that, what courts actually do once they've decided to engage.

Gwen: If they decide to engage.

So that does it for today's episode of Administrative Remedies. Thank you for joining us today. Please, if you enjoy this podcast and enjoy this episode, give us a like on Spotify, iTunes, or whatever platform you're listening on. And be sure to tune in next time, where we'll continue to dive into the contours of administrative law. Because remember, you can't fix what you don't understand.

Related Guides

Administrative Remedies is produced by Professor Gwendolyn Savitz and Professor Marc Roark at the University of Tulsa College of Law.