One of the wrinkles of Article III is that the Court will grant standing to parties without live injuries, so long as the problem is one that is “capable of repetition, yet evading review.” The primary involves abortion cases, as gestation lasts (at most) 9 months. An appeal to the Supreme Court will always take longer than this period. Thus, the Court will find standing for a plaintiff who is no longer pregnant (such as Norma McCorvey, better known as Jane Roe), because otherwise the case in controversy can never be adjudicated.
The Court applied this standard in Kingdomware Technologies, Inc. v. United States. In this, the government rejected petitioner’s bid for a contract, and chose another provider. The losing party challenged the denial in court, seeking injunctive relief. During the pendency of the litigation, the project was completed. As a result, the courts could no longer order the government to hire petitioners, because the job was already done! To dodge this thorny mootness issue, Justice Thomas’s majority opinion turn to the old “capable of repetition, yet evading” review standard.
As a result, no court can enjoin further performance of those services or solicit new bids for the performance of those services. And declaratory relief would have no effect here with respect to the present procurements because the services have already been rendered. Although a case would generally be moot in such cir cumstances, this Court’s precedents recognize an excep tion to the mootness doctrine for a controversy that is “ ‘capable of repetition, yet evading review.’ ” Spencer v. Kemna, 523 U. S. 1, 17 (1998). That exception applies “only in exceptional situations,” where (1) “the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration,” and (2) “there [is] a rea sonable expectation that the same complaining party [will] be subject to the same action again.” Ibid. (internal quota tion marks omitted; brackets in original).
The standard is appropriate here for “short-term contracts,” which do not permit enough time for courts to review their lawfulness.
That exception applies to these short-term contracts. First, the procurements were fully performed in less than two years after they were awarded. We have previously held that a period of two years is too short to complete judicial review of the lawfulness of the procurement. See Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 514– 516 (1911).
Justice McKenna does not get cited very often, but Southern Pacific was the first instance of the mootness doctrine.
This court has said a number of times that it will only decide actual controversies, and if, pending an appeal, something occurs, without any fault of the defendant, which renders it impossible, if our decision should be in favor of the plaintiff, to grant him effectual relief, the appeal will be dismissed. Jones v. Montague, 194 U. S. 147, 48 L. ed. 913, 24 Sup. Ct. Rep. 611, and Richardson v. McChesney, decided November 28 of this term, 218 U. S. 487, 54 L. ed. 1121, 31 Sup. Ct. Rep. 43. But in those cases the acts sought to be enjoined had been completely executed, and *515 there was nothing that the judgment of the court, if the suits had been entertained, could have affected. The case at bar comes within the rule announced in United States v. Trans-Missouri Freight Asso. 166 U. S. 290, 308, 41 L. ed. 1007, 1016, 17 Sup. Ct. Rep. 540, and Boise City Irrig. & Land Co. v. Clark (C. C. App. 9th C.) 65 C. C. A. 399, 131 Fed. 415.
In the case at bar the order of the Commission may to some extent (the exact extent it is unnecessary to define) be the basis of further proceedings. But there is a broader consideration. The question involved in the orders of the Interstate Commerce Commission are usually continuing (as are manifestly those in the case at bar), and these considerations ought not to be, as they might be, defeated, by shortterms orders, capable of repetition, yet evading review, and at one time the government, and at another time the carriers, have their rights determined by the Commission without a chance of redress.
Thus, we have jurisdiction because the same legal issue in this case is likely to recur in future controversies between the same parties in circumstances where the period of contract performance is too short to allow full judicial review before performance is complete.