[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 15-11690

________________________

D.C. Docket No. 2:14-cv-00213-SLB,

Bkcy No. 11-bkc-05736-TBB9

ANDREW BENNETT, 

Jefferson County Tax Assessor, Bessemer Division, 

RODERICK V. ROYAL, 

Former Birmingham City Council President, 

MARY MOORE, 

Alabama State Legislator, 

JOHN W. ROGERS, 

Alabama State Legislator, 

WILLIAM R. MUHAMMAD, et al.,

Plaintiffs - Appellees,

versus

JEFFERSON COUNTY, ALABAMA, 

Defendant - Appellant.

________________________

Appeal from the United States District Court

for the Northern District of Alabama

________________________

(August 16, 2018)

Case: 15-11690 Date Filed: 08/16/2018 Page: 1 of 29 
2

Before TJOFLAT, MARTIN, and JORDAN, Circuit Judges.

JORDAN, Circuit Judge:

Generally speaking, the doctrine of equitable mootness “permits courts 

sitting in bankruptcy appeals to dismiss challenges (typically to confirmation 

plans) when effective relief would be impossible.” Ullrich v. Welt (In re Nica 

Holdings, Inc.), 810 F.3d 781, 786 (11th Cir. 2015). We have applied the doctrine 

in the Chapter 11 reorganization context, see, e.g., First Union Real Estate Equity 

& Mortg. Invs. v. Club Assocs. (In re Club Assocs.), 956 F.2d 1065, 1067–71 (11th 

Cir. 1992), and in Chapter 13 cases, see, e.g., Hope v. Gen. Fin. Corp. of Ga. (In re 

Kahihikolo), 807 F.2d 1540, 1543 (11th Cir. 1987), and we have assumed without 

deciding that it applies in Chapter 7 cases, see Nica Holdings, 810 F.3d at 786 n.4, 

but until today we have not been asked to apply the doctrine in a Chapter 9 

municipal bankruptcy case. 

I

Municipal bankruptcy proceedings are usually complicated affairs, and the 

Chapter 9 proceeding for Jefferson County, Alabama—involving about $3.2 billion 

in total sewer-related debt—has proved to be no different. A detailed chronology 

can be found in Bennett v. Jefferson County, 518 B.R. 613, 616–26 (N.D. Ala. 

2014), and In re Jefferson County, 474 B.R. 228, 236–45 (Bankr. N.D. Ala. 2012), 

but the relevant facts and procedural history are set forth below.

Case: 15-11690 Date Filed: 08/16/2018 Page: 2 of 29 
3

A

Jefferson County filed for bankruptcy in November of 2011. In June of 

2013, following 18 months of negotiations, the County announced that it had come 

to an agreement in principle with almost all of its major creditors. 

The final settlement, reached in November of 2013, provided that the 

County would issue and sell in public markets new sewer warrants (through an 

indenture) in the amount of approximately $1.785 billion, with the proceeds and 

other funds being used to redeem and retire the prior sewer warrants (which, again, 

totaled about $3.2 billion) at a reduced and compromised amount of about $1.8 

billion. 

Pursuant to the settlement, the County would cut over $100 million in 

general fund expenditures, the creditors would write off a significant amount in 

outstanding debt, and the County (or the bankruptcy court if the County failed to 

act) would implement a series of single-digit-percent sewer rate increases over 40 

years. The County would not be able to decrease sewer rates in a given fiscal year 

unless it could somehow offset the decrease (by, for example, increasing its 

customer base). Over the course of these 40 years—the planned time period for 

retiring the new sewer warrants—sewer rates would increase about 365%, which is 

not far off of the national increase in inflation in the previous 40 years. With 

respect to non-sewer debt, warrants would be repaid in full on terms favorable to 

Case: 15-11690 Date Filed: 08/16/2018 Page: 3 of 29 
4

the County through the exchange of existing general obligation warrants and 

school warrants for new warrants. See Bennett, 518 B.R. at 623–25. 

At the confirmation hearing before the bankruptcy court on November 21, 

2013, a group of Jefferson County ratepayers objected to the County’s proposed 

plan. They argued that the plan validated corrupt government activity (e.g., 

bribery) that procured the execution of some of the prior sewer warrants and led to 

the debt crisis; that the plan, by taking the ability to set rates out of the hands of 

elected Jefferson County commissioners, infringed on their rights to vote and to be 

free from overly burdensome debt without due process; and that the plan was not 

feasible because it was imposed over a service area with a declining population and 

falling income levels, and because it increased costs for a long period of time 

without any consideration of the users’ ability to pay. See id. at 626. One of the 

claims asserted by the ratepayers was that certain of the prior sewer warrants were 

invalid because they violated provisions of the Alabama Constitution and the 

United States Constitution. See id. at 626–27.

The bankruptcy court entered a confirmation order over the ratepayers’ 

objections on November 22, 2013, the day following the hearing. The order in part 

dismissed pending claims, and barred any and all persons from commencing or 

continuing any action to assert the claims made by the ratepayers prior to the start 

of, or in, the Chapter 9 bankruptcy proceeding. 

Case: 15-11690 Date Filed: 08/16/2018 Page: 4 of 29 
5

In the confirmation order, the bankruptcy court retained jurisdiction for the 

40-year life of the new sewer warrants to, among other things, adjudicate 

controversies regarding the validity of actions taken pursuant to the plan, including 

implementation or enforcement of the approved rate structure and issuance of the 

new sewer warrants, and enter any necessary or appropriate orders or relief 

(including mandamus). See Bankr. D.E. 2248 at 67–68. The disclosure statement 

for the indenture contained similar language describing the bankruptcy court’s 

retention of jurisdiction. 

The plan’s effective date was December 3, 2013. Although Bankruptcy 

Rule 3020(e) normally imposes an automatic 14-day stay on the operation of a 

confirmation order, at the confirmation hearing the ratepayers did not object to the 

County’s motion (filed two weeks earlier) to waive the automatic stay. In the 

absence of an objection, the bankruptcy court exercised its discretion under Rule 

3020(e) to waive the automatic stay when it entered the confirmation order. See 

Bennett, 518 B.R. at 626.

The ratepayers filed their notice of appeal on December 1, 2013, two days 

prior to the plan’s effective date. But they did not ask the bankruptcy court, or the 

district court, for a stay of the confirmation order pending appeal. Nor did they 

request that their appeal be expedited. On December 3, 2013, pursuant to the terms 

of the order, the County issued the new sewer warrants. The proceeds from the 

Case: 15-11690 Date Filed: 08/16/2018 Page: 5 of 29 
6

sale of these warrants went in part towards retiring the prior sewer warrants, with 

more than $1.454 billion going into a clearinghouse system to pay individual and 

institutional investors. See id. 

B

In the district court, the County moved to dismiss the ratepayers’ appeal, 

arguing in relevant part that any challenges to the confirmation order were 

constitutionally, statutorily, and equitably moot because the plan had been 

consummated and the transactions that were completed could not be unwound. 

The ratepayers responded that their appeal was not moot because, among other 

things, the bankruptcy court could not constitutionally retain jurisdiction to 

conform (if necessary) sewer rates to the plan over a 40-year period. In the 

ratepayers’ view, such rates had to be set in compliance with Alabama law. As the 

district court explained, the ratepayers wanted to “avoid . . . paying rates set by a 

[County] Commission wh[ich] can be taken to the bankruptcy court if it enacts 

rates in violation of” the approved rate structure. Bennett, 518 B.R. at 631 n.21. 

The district court rejected each of the County’s mootness arguments. 

First, the district court concluded that the appeal was not moot under Article 

III. Although the consummation of the plan might limit the scope of relief 

available to the ratepayers, the court concluded that it could fashion “‘some form 

Case: 15-11690 Date Filed: 08/16/2018 Page: 6 of 29 
7

of meaningful relief.’” See id. at 631 (quoting Church of Scientology v. United 

States, 506 U.S. 9, 12 (1992)). 

Second, there was no “statutory mootness” under 11 U.S.C. § 364(e). Under 

Eleventh Circuit precedent, said the district court, § 364(e) protects “only 

transactions authorized by § 364(c) or (d),” and it did not believe that the issuance 

of the new sewer warrants to pay off the prior sewer warrants was a transaction 

authorized by § 364(c) or (d). Id. at 632. See also id. at 633 (“Neither subsection 

(c) nor subsection (d) authorizes the bankruptcy court to allow the County to obtain 

credit or incur debt by giving the lender or the bankruptcy court unlawful or 

unconstitutional ratemaking authority.”). 

Third, the district court ruled that the appeal was not equitably moot despite 

the failure of the ratepayers to seek, let alone obtain, a stay of the confirmation 

order. The court thought that the doctrine of equitable mootness, which is 

prudential in nature, was in some tension with the Supreme Court’s reaffirmation 

of the principle that federal courts have a “virtually unflagging” obligation to hear 

and decides cases within their jurisdiction. See id. at 634. But it did not need to 

confront those potential concerns because it held that equitable mootness does not 

apply to constitutional challenges to a confirmation order in a Chapter 9 

proceeding: “In the case of a Chapter 9 reorganization plan[,] finality and reliance 

may be required to yield to the Constitution and the interests of the public in the 

Case: 15-11690 Date Filed: 08/16/2018 Page: 7 of 29 
8

provision of governmental services.” Id. at 636. And “applying the doctrine of 

equitable mootness as the County espouse[d] would prevent both state and federal 

Article III courts from deciding . . . ‘knotty state law’ and constitutional issues and 

would prevent any review of a federal bankruptcy court’s assumption of 

jurisdiction to enforce its unreviewed actions.” Id. at 637. Although the court 

recognized that “some part or parts” of the confirmation order might be 

“impossible to reverse,” the “County’s ceding of its future authority to set sewer 

rates to the bankruptcy court” as a term of the new sewer warrants was “not one of 

those parts.” Id. If it agreed with the ratepayers that the bankruptcy court’s 

retention of jurisdiction was unconstitutional, the court could declare that provision 

invalid and prevent its enforcement. See id. 

Finally, the district court explained that, even if the doctrine of equitable 

mootness applied in Chapter 9 bankruptcy proceedings, it would nevertheless deny 

the County’s motion to dismiss. The court could, as it had noted, grant the 

ratepayers some relief by striking the terms providing for the bankruptcy court’s 

retention of jurisdiction and authority to set sewer rates in the future. Moreover, 

the ratepayers’ failure to obtain a stay, though significant in the equitable mootness 

analysis, was not dispositive. There had been a rush to consummation, and seeking 

a stay “was futile and cost-prohibitive.” Id. at 639. No stay, reasoned the court, 

would have been granted. See id. 

Case: 15-11690 Date Filed: 08/16/2018 Page: 8 of 29 
9

The district court later certified its ruling for interlocutory review, and 

Jefferson County instituted the present appeal. We conclude that the case is not 

constitutionally moot, but hold that it is equitably moot, and therefore reverse and 

remand for dismissal of the ratepayers’ appeal from the bankruptcy court’s 

confirmation order. We do not reach statutory mootness as a separate issue, but 

touch on it briefly in discussing equitable mootness. 

II

We first address Article III mootness—i.e., mootness in the jurisdictional 

and constitutional sense. This doctrine, the Supreme Court has held, emanates

from the “case or controversy” requirement of Article III. See, e.g., Arizonans for 

Official English v. Arizona, 520 U.S. 43, 67 (1997).1

“[T]he party who alleges that a controversy before us has become moot has 

the ‘heavy burden’ of establishing that we lack jurisdiction.” Michigan v. Long, 

463 U.S. 1032, 1042 n.8 (1983). See also Mattern v. Sec’y for the Dep’t of Corr., 

494 F.3d 1282, 1285 (11th Cir. 2007); Dupree v. Palmer, 284 F.3d 1234, 1237 

(11th Cir. 2002). The district court held that the ratepayers’ appeal is not 

constitutionally moot. Exercising plenary review, see Nat’l Advert. Co. v. City of 

Miami, 402 F.3d 1329, 1331 (11th Cir. 2005), we agree. 

 1 Not all members of the Supreme Court have agreed with the Article III characterization of 

mootness. See Honig v. Doe, 484 U.S. 305, 331 (1988) (Rehnquist, C.J., concurring) (asserting 

that any connection between a court’s “unwillingness to decide moot cases” and “the case or 

controversy requirement of Art. III” is “attenuated”).

Case: 15-11690 Date Filed: 08/16/2018 Page: 9 of 29 
10

The County’s argument is essentially that we (and the district court) lack the

legal authority to issue the relief that the ratepayers seek. See County’s Opening 

Br. at 28 (“[T]he dispositive question is . . . whether a reviewing court can provide 

meaningful relief if it agrees with the [party challenging the bankruptcy court’s 

order] that the order is erroneous”). “But that argument—which goes to the 

meaning of the [bankruptcy laws] and the legal availability of a certain kind of 

relief—confuses mootness with the merits.” Chafin v. Chafin, 568 U.S. 165, 174 

(2013). Cf. Moody v. Warden, 887 F.3d 1281, 1285–87, 1292 (11th Cir. 2018) 

(holding that death row inmate had Article III standing to challenge his planned 

execution notwithstanding the court’s ultimate conclusion that he could not obtain 

legal relief). We note also that, in the one case that we have found in which the 

Supreme Court addressed mootness in the context of action taken in reliance on an 

unstayed order in a bankruptcy proceeding, the Court had no trouble concluding 

that the case presented a justiciable controversy. See Wayne United Gas Co. v. 

Owens-Ill. Glass Co., 300 U.S. 131, 134–35 (1937).

Notably, the County does not contend—as the respondent did in Chafin—

that any of the forms of relief sought here (e.g., striking the offending jurisdictional 

provision from the confirmed plan) would be “ineffectual” with respect to the 

ratepayers’ harm. See Chafin, 568 U.S. at 174–76; FTC v. Phoebe Putney Health 

Sys., Inc., 568 U.S. 216, 224 n.3 (2013). Nor does it contend that any “law of 

Case: 15-11690 Date Filed: 08/16/2018 Page: 10 of 29 
11

physics prevents” us from issuing relief that might provide some relief for the 

ratepayers in this case. Chafin, 568 U.S. at 175. Cf. Rhodes v. Stewart, 488 U.S. 

1, 4 (1988) (discussing mootness where a plaintiff seeking injunctive relief has 

died).

In sum, we have a live case under Article III. We proceed to consider the 

parties’ arguments about another sort of “mootness.”

III

We review de novo the district court’s conclusion that the doctrine of 

equitable mootness does not apply in the Chapter 9 context. The same standard of 

review applies to the district court’s alternative ruling that, if the doctrine did 

generally apply, it would not bar the ratepayers’ appeal. See In re Club Assocs., 

956 F.2d at 1069.

2

 

The County argues that the doctrine of equitable mootness bars the 

ratepayers’ appeal from the bankruptcy court, and that the district court erred in 

concluding otherwise. We agree. First, we explore what precisely the doctrine is. 

Second, we explain why the doctrine can apply in a Chapter 9 proceeding like this 

 2 We recognize that some other circuits review the application of the equitable mootness doctrine 

under an abuse of discretion standard. See, e.g., R2 Investments, LDC v. Charter Commc’ns, Inc. 

(In re Charter Commc’ns, Inc.), 691 F.3d 476, 483 (2d Cir. 2012) (acknowledging a circuit 

split). If we were writing on a clean slate, we might well use that deferential standard given the 

equitable and prudential foundations of the doctrine. But we applied a de novo standard in In re 

Club Assocs., and as a panel we are bound by that earlier ruling. 

Case: 15-11690 Date Filed: 08/16/2018 Page: 11 of 29 
12

one. Finally, we conclude that the doctrine bars the ratepayers’ appeal from the 

bankruptcy court’s confirmation order. 

A

The doctrine of equitable mootness appears to have emerged at least a few 

decades ago in the various federal courts of appeals. See, e.g., Am. Grain Ass’n v. 

Lee-Vac, Ltd., 630 F.2d 245, 247–48 (5th Cir. 1980); Trone v. Roberts Farms, Inc.

(In re Roberts Farms, Inc.), 652 F.2d 793, 796–98 (9th Cir. 1981); In re Cont’l 

Airlines, 91 F.3d 553, 557–67 (3d Cir. 1996) (en banc); Ross Elgart, Bankruptcy 

Appeals and Equitable Mootness, 19 Cardozo L. Rev. 2311, 2323–27 (1998). As 

far as we can tell, the Supreme Court has never endorsed it. Nor, however, has the 

Supreme Court, nor any court of appeals, rejected the concept outright. See 

Ochadleus v. City of Detroit (In re City of Detroit), 838 F.3d 792, 800 (6th Cir. 

2016) (2–1 decision applying equitable mootness in the context of a Chapter 9 

municipal bankruptcy and noting that “even if the Supreme Court would abolish 

equitable mootness, it has not yet done so (nor has any circuit)”). Cf. Wayne 

United Gas Co., 300 U.S. 131, 133–35 (denying an attempt to dismiss a 

bankruptcy appeal as moot due to the sale of the debtor’s property in a separate 

state-court proceeding, because the creditors proceeded in state court “with full 

knowledge” that the debtor was simultaneously seeking reconsideration of the 

order dismissing its bankruptcy petition). 

Case: 15-11690 Date Filed: 08/16/2018 Page: 12 of 29 
13

Essentially, this doctrine provides that reviewing courts will, under certain 

circumstances, reject bankruptcy appeals if rulings have gone into effect and would 

be extremely burdensome, especially to non-parties, to undo. The use of the word 

mootness (and the invocation of the consequences that arise from a mootness 

finding) in the term equitable mootness is a legal fiction, akin to the use of the 

word “eviction” (and the analogous invocation of relevant consequences) in the

term “constructive eviction.” See, e.g., Detroit, 838 F.3d at 798 (“Equitable 

mootness is not technically ‘mootness’—constitutional or otherwise—but is 

instead ‘a prudential doctrine . . . ’”); id. at 806 (Moore, J., dissenting) (“Despite 

the name, equitable mootness bears no relation to ‘mootness.’ Indeed, in an 

equitably moot appeal, the relief sought is the opposite of moot—the consequences 

of granting it would be so great that they are deemed inequitable.”). 

The doctrine, then, does not reference actual mootness at all. As the leading 

bankruptcy treatises explain, its application turns on equitable and prudential 

concerns which focus on whether it is reasonable to entertain the contentions of the 

parties challenging an order of the bankruptcy court. See William L. Norton, Jr. & 

William L. Norton III, 8 Norton Bankr. Law & Practice § 170:87 (3d ed. 2018); 7 

Collier on Bankruptcy ¶ 1129.09[1] & n.2 (16th ed. 2018). It would perhaps be 

more appropriate for us to file the doctrine under the rubrics of forfeiture, waiver, 

or laches. See In re One2One Commc’ns, LLC, 805 F.3d 428, 449–50 (3d Cir. 

Case: 15-11690 Date Filed: 08/16/2018 Page: 13 of 29 
14

2015) (Krause, J., concurring) (noting that “there are effective alternatives that do 

not suffer from the prudential, statutory, and constitutional defects of equitable 

mootness,” including “the equitable defense of laches”). Cf. N. Pac. Ry. Co. v. 

Boyd, 228 U.S. 482, 508–10 (1913) (explaining that in some scenarios—such as 

when harm results to others—laches may prevent a delayed challenge by a creditor 

to a foreclosure sale of the debtor’s assets). But it seems too late to change the 

nomenclature now. 

B

Given that we are being asked to apply equitable mootness in a new setting, 

it makes sense to take a step back and consider the doctrine’s origins. By the mid1990s, most federal circuits had applied a version of the doctrine, and some had 

even referred to it as “equitable mootness.” See generally Cont’l Airlines, 91 F.3d 

at 558 (citing cases from the First, Second, Fourth, Fifth, Seventh, Ninth, Eleventh, 

and D.C. Circuits). 

For our part, we have used variations of the term equitable mootness 

(including “equitably moot”) in three published opinions involving bankruptcy 

appeals: Florida Agency for Health Care Administration v. Bayou Shores SNF, 

LLC (In re Bayou Shores SNF, LLC), 828 F.3d 1297, 1328 (11th Cir. 2016); Nica 

Holdings, 810 F.3d at 786; and Alabama Department of Economic & Community 

Affairs v. Ball Healthcare–Dallas, LLC (In re Lett), 632 F.3d 1216, 1225 (11th Cir. 

Case: 15-11690 Date Filed: 08/16/2018 Page: 14 of 29 
15

2011). In each of these cases, we held that the doctrine did not apply in the 

particular circumstances presented. But it would be incorrect to say that we have 

never endorsed or applied the doctrine, because in these three cases we relied on 

earlier decisions in which we had dismissed bankruptcy appeals as “moot” 

(simpliciter) while overtly relying on equitable considerations. See, e.g., Club 

Assocs., 956 F.2d at 1069 (“The test for mootness reflects a court’s concern for 

striking the proper balance between the equitable considerations of finality and 

good faith reliance on a judgment and the competing interests that underlie the 

right of a party to seek review of a bankruptcy court order adversely affecting 

him.”). 3

Over the years, we have identified a number of important considerations for 

deciding whether the doctrine bars an appeal. The facts will weigh in favor of 

finding equitable mootness when allowing an appeal to go forward will impinge 

upon actions taken to one’s detriment in “good faith reliance on a [final and 

unstayed] judgment.” Id. at 1069–70. Cf. Doll v. Grand Union Co., 925 F.2d 

1363, 1371 (11th Cir. 1991) (discussing the equitable defense of promissory 

estoppel). Or—all the more—when permitting an appeal will interfere with 

actions taken without knowledge that any claims are still pending final resolution.

 3 For other Eleventh Circuit cases holding that bankruptcy appeals were barred by equitable and 

prudential considerations, see Miami Ctr. Ltd. P’ship v. Bank of N.Y., 838 F.2d 1547, 1553 (11th 

Cir. 1988); Gwinnett Bank & Trust Co. v. Matos (In re Matos), 790 F.2d 864, 865–66 (11th Cir. 

1986); and Kahihikolo, 807 F.2d at 1543.

Case: 15-11690 Date Filed: 08/16/2018 Page: 15 of 29 
16

See, e.g., Markstein v. Massey Assocs., Ltd., 763 F.2d 1325, 1327 (11th Cir. 1985) 

(holding that foreclosure sale of disputed property to a non-party would not be 

voided, but remanding for consideration of claim regarding repayment of funds 

wrongly held by the original creditor). The more substantially the party aggrieved 

by a judgment has allowed the egg of that judgment to be scrambled—the more 

that people have acted in ways that render inequitable the relief sought by the 

aggrieved party—the less likely we will be willing to consider ordering anyone to

countenance “the pains that attend any effort to unscramble an egg.” In re UNR 

Indus., Inc., 20 F.3d 766, 769 (7th Cir. 1994). See also Bayou Shores, 828 F.3d at

1328 (“The equitable mootness doctrine seeks to avoid an appellate decision that 

‘would knock the props out from under the authorization for every transaction that 

has taken place and create an unmanageable, uncontrollable situation for the 

[b]ankruptcy [c]ourt.’”). The more complex a transaction (or a series of 

transactions) is, and the longer the time that has passed since the confirmation of 

the plan, the harder it will be to undo the past.

Conversely, if the relief sought does not undermine actions that may have 

been taken in reliance on the judgment, or if no such actions have been taken, then 

there will be no reason to conclude that an appeal is equitably moot. See, e.g.,

Russo v. Seidler (In re Seidler), 44 F.3d 945, 949 (11th Cir. 1995) (matter was not 

equitably moot because the debtor had not yet recorded satisfaction of putative 

Case: 15-11690 Date Filed: 08/16/2018 Page: 16 of 29 
17

creditor’s lien that bankruptcy court concluded had been satisfied and had not sold 

the home); Markstein, 763 F.2d at 1327 & n.1, n.2 (dismissing appeal insofar as it 

challenged the validity of the foreclosure sale of the debtor’s asset, but remanding 

because, “if the [debtor’s] property sold at foreclosure for an amount in excess of 

the mortgage debt[,] the excess [might] go into the debtor’s estate”).

We are sensitive to the “interests that underlie the right of a party to seek 

review of a bankruptcy court order adversely affecting him.” Club Assocs., 956

F.2d at 1069. Consequently, courts will be less likely to find an appeal equitably

moot if the aggrieved party sought a stay (especially if it did so promptly), if a stay 

was unjustifiably denied or was justifiably not requested, or if appellate review was 

sought reasonably promptly. Compare Nica Holdings, 810 F.3d at 787 (addressing 

appeal on the merits where the bankruptcy court rejected one motion to stay as too 

early and, immediately afterward, another one as too late, so that “there was never 

a time when [the appellant] could file a motion to stay”), with Club Assocs., 956 

F.2d at 1070–71 (dismissing appeal and endorsing the bankruptcy court’s 

conclusion that the aggrieved party’s failure to immediately seek a stay was 

“deliberate”). Other equitable considerations may also weigh against concluding 

that an appeal is “equitably moot,” as we observe below in weighing the 

circumstances here. See, e.g., Dill Oil Co., LLC v. Stephens (In re Stephens), 704 

F.3d 1279, 1283 (10th Cir. 2013).

Case: 15-11690 Date Filed: 08/16/2018 Page: 17 of 29 
18

We have said that equitable mootness is rooted in the “general [principles] 

of appellate procedure.” Lee-Vac, 630 F.2d at 248. To be sure, Congress has 

codified one part or another of the doctrine at certain points in time. See, e.g., id. 

at 247–48 (former Bankruptcy Rule 805); UNR, 20 F.3d at 769 (enumerating 

“[s]everal [statutory] provisions . . . provid[ing] that courts should keep their hands 

off consummated transactions”). But we have since rejected attempts to strictly 

read any such codifications. See Lee-Vac, 630 F.2d at 247–48. And we have not 

inferred too much from the removal of any such codifications from the Bankruptcy 

Code. See UNR, 20 F.3d at 769 (“Section 1127(b), unlike § 363(m), does not place 

any limit on the power of the court of appeals, but the reasons underlying 

§§ 363(m) and 1127(b)—preserving interests bought and paid for in reliance on 

judicial decisions, and avoiding the pains that attend any effort to unscramble an 

egg—are so plain and so compelling that courts fill the interstices of the Code with

the same approach.”); Miami Ctr., 838 F.2d at 1553 (“The Eleventh Circuit, like 

other circuits, has recognized the continuing viability and applicability of the 

mootness standard in situations other than transfers by a trustee under § 363(b) or 

(c).”) (citing cases); Sewanee Land, Coal & Cattle, Inc. v. Lamb (In re Sewanee 

Land, Coal & Cattle, Inc.), 735 F.2d 1294, 1296 (11th Cir. 1984) (explaining that 

the absence of an equivalent to Rule 805 in new bankruptcy rules did not call for a 

different outcome under the new rules, and holding that an appeal of the sale of 

Case: 15-11690 Date Filed: 08/16/2018 Page: 18 of 29 
19

real property was equitably moot because the court was “powerless to grant 

relief”).

4

 

C

We have never addressed whether equitable mootness applies in the Chapter 

9 context. Because the doctrine is driven by its principles rather than any 

particular codification or arbitrary limitation, see Lee-Vac, 630 F.2d at 247–48, and 

because we see no respect in which these principles are bound to come into play

any less in the Chapter 9 context than in the contexts of Chapters 11 or 13, we see 

no reason to reject the doctrine here. Indeed, in ways these principles will 

sometimes weigh more heavily in the Chapter 9 context precisely because of how 

many people will be affected by municipal bankruptcies. “‘If the interests of 

finality and reliance are paramount to [analysis of equitable mootness for] a 

Chapter 11 private business entity with investors, shareholders, and employees, . . . 

then these interests surely apply with greater force to the [County’s] Chapter 9 

Plan, which affects thousands of creditors and residents.’” Detroit, 838 F.3d at

803. Nor do we see any reason why the doctrine’s principles would not be selfcabining in this context as they are in other bankruptcy contexts. We therefore join 

 4 We have, in this respect, perhaps differed somewhat from some other circuits, which have 

varied in how much they have focused on statutory provisions or rules in interpreting the 

doctrine. See, e.g., Detroit, 838 F.3d at 807–08 (Moore, J., dissenting) (discussing development 

of the doctrine in several circuits); Castaic Partners II, LLC v. Daca–Castaic, LLC (In re Castaic 

Partners II, LLC), 823 F.3d 966, 968 (9th Cir. 2016) (“statutory mootness codifies part, but not 

all, of the doctrine of equitable mootness”).

Case: 15-11690 Date Filed: 08/16/2018 Page: 19 of 29 
20

the two other courts that have addressed this question in concluding that equitable 

mootness can apply in Chapter 9 cases. See id. at 804–05 (2–1 decision); Franklin 

High Yield Tax-Free Income Fund v. City of Stockton (In re City of Stockton), 542 

B.R. 261, 274 (B.A.P. 9th Cir. 2015) (citing an earlier Ninth Circuit case, Lionel v. 

City of Vallejo (In re City of Vallejo), 551 F. App’x 339 (9th Cir. 2013), which 

reached the same result but did not indicate that the question was disputed).

The district court concluded that Chapter 9 is different in ways that required 

it to hold that equitable mootness does not apply in this context. The ratepayers, 

defending the district court’s decision, contend that the doctrine has no role in 

municipal bankruptcies because Chapter 9 “implicates public concerns” and 

potentially involves constitutional issues (like the ones they are asserting). See 

Appellees’ Br. at 4. These are important points, and we have duly considered 

them. Nevertheless, we are still persuaded that equitable mootness can apply in 

Chapter 9 cases. 

The main theme running through the district court’s reasoning, and the 

ratepayers’ arguments, is that municipalities and their bankruptcies implicate 

issues of sovereignty, whereas corporations or individuals and their bankruptcies

do not—and that, accordingly, it is important for us to tread carefully where self 

governance is concerned. See Bennett, 518 B.R. at 636–38. In a certain sense this 

observation rings true: the Bankruptcy Code arguably gives more (but certainly 

Case: 15-11690 Date Filed: 08/16/2018 Page: 20 of 29 
21

different) protection to government entities under Chapter 9 than to private persons 

and entities who seek bankruptcy protection. See Detroit, 838 F.3d at 803. 

But this argument doesn’t speak to the threshold question of whether 

equitable mootness can apply in any case—it only speaks to whether it applies in 

particular cases. We see no reason why, for example, if a run-of-the-mill creditor 

of a municipality (which would have no greater basis in a Chapter 9 case than in 

any other bankruptcy case for laying claim to any equities of constitutional 

proportion) objects to a Chapter 9 bankruptcy plan, that creditor should be able to 

avoid equitable mootness merely because the bankruptcy proceedings happen to be 

under Chapter 9. Just as in other kinds of bankruptcy proceedings, concerns about 

finality, reliance, and equity will be at play. 

In addition, it is not at all clear in which direction the ratepayers’ federalism 

arguments will cut from one Chapter 9 bankruptcy to the next. Given the interests 

of the municipality and those of its residents (among others), there is a 

countervailing argument that a court ought to be more solicitous to the 

municipality that has obtained confirmation of its plan and thus be especially 

inclined to pull the trigger of equitable mootness. In the present case, the 

ratepayers (to whom a state’s or municipality’s rights ultimately accrue) are 

challenging the confirmed bankruptcy plan’s alleged trampling of their state-based

Case: 15-11690 Date Filed: 08/16/2018 Page: 21 of 29 
22

rights, but what about the actual state entity (for whose sovereignty Chapter 9 

procedures reflect such concern)? 

Finally, we recognize that, given the centrality of constitutional rights to the 

fabric of our republic, there is a fair argument to be made that we should allow 

some leniency when a party who has allowed a bankruptcy plan to go into effect 

asserts constitutional claims on appeal. But the mere fact that a potential or actual 

violation of a constitutional right exists does not generally excuse a party’s failure 

to comply with procedural rules for assertion of the right. A “constitutional right, 

or a right of any other sort, may be forfeited in criminal as well as civil cases by 

the failure to make timely assertion of the right before a tribunal having 

jurisdiction to determine it.” Henderson v. United States, 568 U.S. 266, 271 

(2013) (internal quotation marks omitted). And we generally allow those with 

constitutional rights to waive them. See, e.g., Wellness Int’l Network, Ltd. v. 

Sharif, 135 S. Ct. 1932, 1944–45 (2015) (permitting litigants to consent to 

disposition by the bankruptcy court of claims that would have otherwise required 

an Article III tribunal for adjudication). 

Ultimately, we think the correct result is to join the Sixth Circuit and the 

Ninth Circuit B.A.P. in allowing equitable mootness to apply in the Chapter 9 

context. As for federalism concerns, it will be appropriate to note them when 

Case: 15-11690 Date Filed: 08/16/2018 Page: 22 of 29 
23

deciding whether the doctrine should bar an appeal in a particular bankruptcy case. 

We do precisely this below.

D

Having explained the law that underpins our equitable mootness inquiry, and 

having concluded that the doctrine can apply in a Chapter 9 case such as this, we 

now explain why equitable mootness bars the ratepayers’ appeal. 

First, and critically, the ratepayers here have never asked any court to stay

the implementation of the plan that the bankruptcy court confirmed—not the 

bankruptcy court itself, not the district court, and not this court—and consequently 

no court has ever stayed the implementation of the plan. Indeed, the ratepayers 

had the opportunity to defend the automatic 14-day stay when Jefferson County 

asked the bankruptcy court to waive it, but they raised no objection then either. 

Nor did the ratepayers ever ask that their appeal be expedited. Consequently, when 

Jefferson County commenced this appeal, the bankruptcy court’s confirmation 

order (and the plan) had been in effect, never having been stayed, for more than a 

year. 

We acknowledge that the “failure to obtain a stay does not necessarily 

preclude review of [an] appeal.” Club Assocs., 956 F.2d at 1070. For example, if 

the relief sought on appeal does not seriously undermine the actions that parties 

have taken in good faith reliance on the judgment, or with no knowledge at all of 

Case: 15-11690 Date Filed: 08/16/2018 Page: 23 of 29 
24

the pending litigation, then there may be no reason to conclude that the appeal is 

equitably moot. See, e.g., Seidler, 44 F.3d at 949 (party which prevailed before the 

bankruptcy court in dispute over title to home retained the property in question, so 

the dispute was not equitably moot). We may also be less concerned that a stay 

was not granted if, for example, a court appears to have refused a stay on 

inappropriate grounds. See Nica Holdings, 810 F.3d at 787.

Claiming this “not necessarily preclude[d]” rubric for themselves, the 

ratepayers contend (and the district court held) that seeking a stay would have been 

futile because the ratepayers could never have raised sufficient money to post a 

supersedeas bond for a plan confirmation with billions of dollars at stake. See 

Bennett, 518 B.R. at 639–40. We see things differently. For starters, even if the 

bankruptcy court (which had confirmed the plan over the ratepayers’ objections) 

had been inclined to deny a stay, the same certainly could not be said of the district 

court (which has agreed with the ratepayers on at least some of their arguments). 

On this record, we do not think it can fairly be said that seeking a stay and/or 

requesting that the appeal be expedited were fool’s errands. We come to this 

conclusion in part by rejecting a premise of the ratepayers’ argument: that a bond 

would necessarily have been required for a stay of limited duration. Given the 

unique nature of a Chapter 9 proceeding, the ratepayers could have asked for 

limited stay relief on another basis, such as meeting the traditional requirements for 

Case: 15-11690 Date Filed: 08/16/2018 Page: 24 of 29 
25

obtaining a preliminary injunction—likelihood of success on the merits, irreparable 

harm, etc. Cf. Ind. State Police Pension Trust v. Chrysler LLC, 556 U.S. 960, 960

(2009) (endorsing the application of these factors in deciding whether to stay a 

bankruptcy court order authorizing the sale of assets); Poplar Grove Planting & 

Refining Co. v. Bache Halsey Stuart, Inc., 600 F.2d 1189, 1191 (5th Cir. 1979)

(discussing alternatives to posting an appeal bond for the full amount of the 

judgment). 

Second, and closely related to the stay question, the County and others have 

taken significant and largely irreversible steps in reliance on the unstayed plan 

confirmed by the bankruptcy court. Specifically, the County has issued over one 

billion dollars’ worth of new sewer warrants and has used the proceeds to retire the 

old sewer warrants. These new warrants were sold based on a commitment—

backed up by an unstayed court order—to set sewer rates at particular amounts 

over the course of the next 40 years. The relief sought here, even if limited to 

striking the provision giving the bankruptcy court jurisdiction with respect to 

future rates, would seriously undermine actions taken in reliance on the 

confirmation order. If the district court were to excise the part of the plan 

providing the bankruptcy court with jurisdiction to oversee disputes regarding the 

required future increases in sewer rates, there would be serious uncertainty about 

what would happen to the value of the new warrants, released into the market in 

Case: 15-11690 Date Filed: 08/16/2018 Page: 25 of 29 
26

the absence of a stay of the confirmation order. We think it is fair to assume that, 

at the very least, whoever ultimately held those warrants would be adversely 

affected. Were we to do more, as the County insists that we would be required to 

do, and vacate the confirmation order in toto, any concern about the value of these 

warrants would pale in comparison to the ill effects not just to investors, but to the 

County and, ultimately, its residents. 

This case is, consequently, much like others in which we have refused to 

allow a party fully to air the merits of its appeal because granting the relief sought 

would be inequitable or practically impossible. See, e.g., Club Assocs., 956 F.2d at 

1069–71 (lender’s appeal of plan reorganizing real estate entity was moot where 

other parties had stepped in and made investments to revitalize the entity in 

reliance on the confirmed plan); Matos, 790 F.2d at 865–66 (debtor’s appeal of 

plan that allowed foreclosure sale of the debtor’s home was moot where the 

mortgage lender had conducted foreclosure sale in reliance on the confirmed plan, 

even though the lender itself bought the home in the sale). And it is quite unlike 

the few in which we have considered applying equitable mootness but decided, 

notwithstanding an unstayed judgment, that the doctrine did not apply. These 

disputes have typically involved the allocation of money, and have not had any 

bearing on the rights of non-parties or (other) creditors, nor on the continued 

Case: 15-11690 Date Filed: 08/16/2018 Page: 26 of 29 
27

viability of an entity rehabilitated through the bankruptcy process. See, e.g.,

Seidler, 44 F.3d at 949; Markstein, 763 F.2d at 1327.

Finally, as with many equitable determinations based on notions of fairness, 

we look briefly at the merits and the public interest to determine whether or to 

what extent a decision either way in this case might result in injustice. See In re 

Club Assocs., 956 F.2d at 1071 (“The concept of mootness is based upon the 

premise that a court will undertake the task of carefully examining each issue 

presented on appeal.”). See also Stephens, 704 F.3d at 1283 (“Because of the 

private and public interest in resolving this legal issue, we decline to apply the 

doctrine of equitable mootness.”). As we noted above, concern for the merits is 

especially warranted where, as here, the challenged plan is alleged to impinge on 

municipal sovereignty. Here, however, we see no such injustice. 

The core of the ratepayers’ arguments is that, through the plan, the 

bankruptcy court has allowed County commissioners at one point in time to bind 

future County commissioners—indeed, the County as a whole—in a way that 

impermissibly reduces the autonomy of the County and the political voice of the 

voters of Jefferson County (including the ratepayers). This argument is, in our 

view, not very strong. 

Courts are sympathetic to concerns about end-runs around political 

processes, see, e.g., INS v. Chadha, 462 U.S. 919, 959 (1983), and the ratepayers 

Case: 15-11690 Date Filed: 08/16/2018 Page: 27 of 29 
28

have a point that constraining future budgetary decisions in this manner in a sense 

bypasses the usual procedures. In effect, the County has bound itself to raise rates 

for decades according to a particular schedule, with limited exceptions/safety 

valves. But the ratepayers are incorrect in claiming that this constitutes a 

fundamental change to the way that a municipality governs. 

Elected officials can bind their successors—and consequently also their 

constituents, the people—to all kinds of unavoidably long-lasting financial effects, 

sometimes irreversibly: they spend budget surpluses; they run deficits; they raise 

and cut taxes; they expand and contract boundaries; they sign long-term contracts; 

and they enter into expensive consent decrees to resolve litigation. We know of no 

authority for the proposition that such government action, which impinges on the 

rights (or at least limits the ability) of future governments to undo, becomes an 

illegal end-run around constitutional governance. That a Chapter 9 bankruptcy 

plan subjects the residents of Jefferson County to rate increases over time, instead 

of forcing them to bear the financial pain all at once, does not transmogrify it into 

one that per se violates the ratepayers’ constitutional rights. Cf. Schweitzer v. 

Comenity Bank, 866 F.3d 1273, 1277 (11th Cir. 2017) (“the greater power 

normally includes the lesser”). We need not attempt to engage in subtle linedrawing exercises between permissible and impermissible commitments to future 

action in this appeal, because the ratepayers have not asked us to do so. They seek 

Case: 15-11690 Date Filed: 08/16/2018 Page: 28 of 29 
29

only a per se bar on such future commitments by their elected representatives in 

accordance with the plan. Having evaluated the factors relevant to an equitable 

mootness determination, we conclude that dismissing the ratepayers’ appeal is 

appropriate. 

We note, in concluding, that no party has so far asked the bankruptcy court 

to exercise its jurisdiction to force Jefferson County to adjust its sewer rates 

according to the provisions of the confirmed plan. We therefore express no view 

on whether the ratepayers (or anyone else) will be able to mount a challenge to 

aspects of the plan in the future should the bankruptcy court in fact purport to 

exercise its jurisdiction to compel an increase in rates in compliance with the plan. 

IV

We reverse the order of the district court and remand for dismissal of the 

ratepayers’ appeal from the plan confirmed by the bankruptcy court. 

REVERSED and REMANDED.

Case: 15-11690 Date Filed: 08/16/2018 Page: 29 of 29