Gary Westcott, Secretary, Louisiana Department of Public Safety and Corrections, et al. v. Voice of the Experienced, et al.

Under this Court’s longstanding precedents, an otherwise-moot dispute is “not moot [if] it falls within a special category of disputes that are ‘capable of repetition’ while ‘evading review.’” Turner v. Rogers, 564 U.S. 431, 439 (2011). A dispute evades review if it “is ‘in its duration too short to be fully litigated’ through the [lower] courts (and arrive here) prior to its ‘expiration.’” Id. at 440. Applying that rule, the Court has held that periods of one year, one-and-a-half years, and even two years are “too short” for a dispute to be fully litigated. Id. In this litigation, the district court entered three preliminary injunctions, each of which expired by operation of law after 90 days—all while Louisiana’s appeals of the injunction orders were pending. The Fifth Circuit dismissed the three appeals as moot under Smith v. Edwards, 88 F.4th 1119 (5th Cir. 2023), which holds that 90 days is sufficient for “meaningful review,” at least by the Fifth Circuit. App.16a (Wilson, J., respecting the denial of rehearing en banc). By the Fifth Circuit’s lights, these disputes do not “evade review,” and thus the mootness exception for issues capable of repetition yet evading review does not apply. That position splits with decisions from this Court and nearly every federal court of appeals. The questions presented are: 1. Whether, under this Court’s precedents applying the mootness exception for issues capable of repetition yet evading review, a 90-day period is too short to fully litigate an issue.