Is That Legal?

I'm afraid I disagree: the threat of putting Paadilla back in durance vile hangs over any plea bargain, so the case is very much live. The US has specifically not disclaimed the power to do it, too. This is just so not moot.

It may be the Supreme Court won't see it my way, but I see this as wholly distinguishable from the LA Chokehold case (LA v. Lyons, I think?)

But how, Michael, is a challenge to indefinite military detention as an unlawful enemy combatant likely to evade future review, either in Padilla's case (if he were again designated an unlawful combatant) or in somebody else's?

If the government is ever serious enough about a person to name him an unlawful combatant and to stick to it (rather than folding, as they've done with Padilla and, effectively, Hamdi), there will be plenty of time for review. It is, after all, a power to impose infinite detention that the President is claiming here.

So even if Padilla's military detention were reasonably likely to be repeated, it would not be likely to evade review.

You're right, incidentally, that the potential of re-designation as an unlawful combatant hangs over any plea bargaining process, and this, I suppose, might amount to enough of an injury to Padilla to assuage any standing concerns.** I don't at all see, though, how this potential makes the challenge to military detention not moot when he is in fact no longer under military detention.

**I kind of doubt it, though. Suppose the state charges a defendant with second-degree murder in a case that the state also could have framed as a capital first-degree murder case. During plea negotiations, the defendant would understand the risk of the state's returning to the grand jury and obtaining a capital murder indictment. But that risk wouldn't give the defendant standing to challenge the constitutionality of the state's death penalty law, would it?)

Little help, for those of us who aren't lawyers?

The Fourth Circuit said:

"[W]e would regard the INTENTIONAL MOOTING by the government of a case of this import out of concern for Supreme Court consideration not as legitimate justification but as admission of ATTEMPTED AVOIDANCE OF REVIEW. The government cannot be seen as conducting litigation with the enormous implications of this litigation -- litigation imbued with significant public interest -- in such a way as to select by which forum as between the Supreme Court of the United States and an inferior appellate court it wishes to be bound." (emphasis added)

To me, this seems more comparable to the "voluntary cessation" exception to the mootness doctrine than to the "capable of repetition yet evading review" (CRYER) exception. The Fourth Circuit is saying we shouldn't necessarily moot the case & let you off the hook just because you've cleaned up your act since the litigation began. See U.S. v. W.T. Grant (U.S. 1953). Although this exception is usually applied against criminal defendants, the SCOTUS has also applied it against a civil plaintiff who tried to moot his case as a jurisdiction-stripping device intended to deny the defendant its right to appeal. See Eerie v. Pap (U.S. 2000?).

I don't think it would be implausible to extend the voluntary cessation exception to these facts, particularly considering the weighty concerns Judge Luttig mentions. And even though the excerpt above focuses on the government's efforts to moot the case in the Fourth Circuit, the general rationale might still apply to SCOTUS review. Simply put, I'm not sure the SCOTUS will be any happier than the Fourth Circuit about the government's sudden change of heart on the eve of Supreme Court review. So I would be slightly surprised, but not shocked, to see the SCOTUS put a new spin on the voluntary cessation exception.

I wonder how many people are in the process of writing law review articles about mootness and Padilla as we speak?

Two comments to what Eric said above:

1. First, the challenge isn't to permanent detention, but rather indefinite detention, so the real threat of its resumption is enough to make it real. Plus, the ability to shuttle him in and out seems like the classic "subject to repetion yet evading review" situation save that so far it's only happened once, but the gravity of the case balances against that.

2. But in a way that's besides the point: It's true that if he's directly threatened in some way in the future there's another chance of review then, subject to future game playing, but that's true of any continuing harm. The point is that the harm is real and complete and ongoing now without the government ever needing to articulate it more crudely: this isn't a case that has "gone away and might come back" -- it's NOT GONE.

This seems like a classic example of the exception to mootness for “voluntary cessation.” That is, voluntary cessation of unlawful activity cannot moot a case.

How do you get around that??

I took the news that the Supreme Court had OK'd the transfer as a pretty clear sign that it will not hear the Padilla case. I'm betting that the Court will either dismiss the appeal as moot or just decline review on discretionary grounds. I just don't see the Court wading into this battle until it absolutely has to.

Here's the relevant section of City of Eerie v. Pap's, which I cited (somewhat incorrectly) above. Pap's sued for an injunction against Eerie's nude dancing ordinance and won. When the SCOTUS granted the city's cert petition, Pap's argued that it no longer engaged in nude dancing, so the case was moot.

"Here, Pap's submitted an affidavit stating that it had “ceased to operate a nude dancing establishment in Erie.” [CITE] Pap's asserts that the case is therefore moot because “[t]he outcome of this case will have no effect upon Respondent.” [CITE] Simply closing Kandyland is not sufficient to render this case moot, however. Pap's is still incorporated under Pennsylvania law, and it could again decide to operate a nude dancing establishment in Erie. [CITE]. Justice SCALIA differs with our assessment as to the likelihood that Pap's may resume its nude dancing operation. Several Members of this Court can attest, however, that the “advanced age” of Pap's owner (72) does not make it “absolutely clear” that a life of quiet retirement is his only reasonable expectation. [CITES] Moreover, our appraisal of Pap's affidavit is influenced by Pap's failure, despite its obligation to the Court, to mention a word about the potential mootness issue in its brief in opposition to the petition for writ of certiorari, which was filed in April 1999, even though, as Justice SCALIA points out, Kandyland was closed and that property sold in 1998. [CITE] Pap's only raised the issue after this Court granted certiorari.

In any event, this is not a run of the mill voluntary cessation case. Here it is the plaintiff who, having prevailed below, now seeks to have the case declared moot. And it is the city of Erie that seeks to invoke the federal judicial power to obtain this Court's review of the Pennsylvania Supreme Court decision. [CITE] The city has an ongoing injury because it is barred from enforcing the public nudity provisions of its ordinance. If the challenged ordinance is found constitutional, then Erie can enforce it, and the availability of such relief is sufficient to prevent the case from being moot. [CITE] And Pap's still has a concrete stake in the outcome of this case because, to the extent Pap's has an interest in resuming operations, it has an interest in preserving the judgment of the Pennsylvania Supreme Court. Our interest in preventing litigants from attempting to manipulate the Court's jurisdiction to insulate a favorable decision from review further counsels against a finding of mootness here. [CITES] Although the issue is close, we conclude that the case is not moot, and we turn to the merits."

City of Erie v. Pap's A.M. 529 U.S. 277, 287-289 (2000).

This analytical hodgepodge has a little of little of everything: CRYER, voluntary cessation, case not moot because injury is ongoing. But it seems to me that the real lesson of Pape is that the Court won't put up with parties intentionally mooting cases in order to strip the SCOTUS of jurisdiction, preserve a favorable lower court precedent, and deprive the opposing party of appellate review. And that's just what the Fourth Circuit suggested the Administration may be doing in Padilla. So I can imagine the SCOTUS applying Eerie v. Pap's to the facts of the Padilla case, although as in that case, the issue here is "close."

Bryan, I think that the Court might be eager to jump in if my reading on Alito is right. I think that Alito believes in granting tremendous deference to Executive's exercise of authority. Roberts is big on the Presidency as a flexible-boundary zone, too (although I think he is more subtle than Alito), and would be happy to have the Court weigh in.