                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   June 18, 2012
                                    PUBLISH                    Elisabeth A. Shumaker
                                                                   Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT


 ARRIENNE MAE WINZLER, On
 Behalf Of Herself And All Others
 Similarly Situated,

               Plaintiff - Appellant,
                                                         No. 10-4151
 v.

 TOYOTA MOTOR SALES U.S.A.,
 INC.,

               Defendant - Appellee.


                  Appeal from the United States District Court
                            for the District of Utah
                         (D.C. No. 1:10-CV-00003-TC)


Roy A. Katriel, The Katriel Law Firm, Washington, D.C. (James T. Blanch and
Erik A. Christiansen, Salt Lake City, Utah, with him on the briefs), for Plaintiff-
Appellant.

Michael L. Mallow, Loeb & Loeb LLP, Los Angeles, California (Laura A.
Wytsma, Darlene M. Cho, Rachel A. Rappaport of Loeb & Loeb LLP, Los
Angeles, California; David J. Williams of Stoel Rives LLP, Salt Lake City, Utah,
with him on the brief), for Defendant-Appellee.


Before TYMKOVICH, SEYMOUR, and GORSUCH, Circuit Judges.


GORSUCH, Circuit Judge.
      Mootness has many moods. Always the doctrine describes a situation

where events in the world have so overtaken a lawsuit that deciding it involves

more energy than effect, a waste of effort on questions now more pedantic than

practical. In some cases mootness bears a constitutional countenance, acting as a

jurisdictional bar against even entertaining a case. Other times mootness carries a

more prudential complexion, permitting us to withhold relief we have the

authority to grant. Other times still, a case finds itself mooted by a tangle of

constitutional and prudential considerations. This case involves mootness in at

least its prudential sense. This because our plaintiff seeks equitable relief already

being provided by coordinate branches of government and she offers no reason

why the courts should duplicate those efforts.

      At the beginning, this case had life enough. Arrienne Mae Winzler brought

state law claims against Toyota on behalf of a proposed nationwide class of 2006

Toyota Corolla and Toyota Corolla Matrix owners and lessees. She alleged that

the cars harbored defective “Engine Control Modules” (“ECMs”), making them

prone to stall without warning. As relief, she asked for an order requiring Toyota

to notify all relevant owners of the defect and then to create and coordinate an

equitable fund to pay for repairs.

      But soon things began to turn. Before addressing whether Ms. Winzler’s

class should be certified, the district court held her complaint failed to state a

claim and dismissed it under Fed. R. Civ. P. 12(b)(6). And then, just as Ms.

                                         -2-
Winzler began her appeal, Toyota announced a nationwide recall of 2005-2008

Toyota Corolla and Corolla Matrix cars to fix their ECMs. The ongoing recall is

taking place under the auspices of the National Traffic and Motor Vehicle Safety

Act (“Safety Act” or “Act”). That statute obliges Toyota to notify owners of the

defect and repair or replace any faulty parts at no cost. 49 U.S.C. §§ 30118(c),

30120. And the whole process is overseen by the National Highway

Transportation Safety Administration (“NHTSA”), an agency of the Department

of Transportation that can issue stiff fines if the company fails to carry out the

recall to its satisfaction. Arguing that these statutory and regulatory processes

promise Ms. Winzler exactly the relief sought in her complaint, Toyota has asked

this court to find that events have overtaken her suit and rendered it moot.

      Whether, when, and to what degree mootness can boast of being a

constitutional command, a true jurisdictional limit on the federal courts, has taxed

great minds. Compare Honig v. Doe, 484 U.S. 305, 329-32 (1988) (Rehnquist, J.,

concurring) (arguing mootness is exclusively prudential), with id. at 339-42

(Scalia, J., dissenting) (arguing mootness has a constitutional component); see

also Evan Tsen Lee, Deconstitutionalizing Justiciability: The Example of

Mootness, 105 Harv. L. Rev. 603 (1992). But of at least this much we can be

sure: claims for equitable relief, like the injunction Ms. Winzler seeks in this

lawsuit, appeal to the “remedial discretion” of the courts. S. Utah Wilderness

Alliance v. Smith, 110 F.3d 724, 727 (10th Cir. 1997). This remedial discretion

                                         -3-
necessarily includes the power to “mould each decree to the necessities of the

particular case.” Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944). And inhering in

that power is the concomitant power to deny relief altogether unless “the moving

party [can] satisfy the court that relief is needed.” United States v. W.T. Grant

Co., 345 U.S. 629, 633 (1953). After all, if events so overtake a lawsuit that the

anticipated benefits of a remedial decree no longer justify the trouble of deciding

the case on the merits, equity may demand not decision but dismissal. When it

does, we will hold the case “prudentially moot.” Even though a flicker of life

may be left in it, even though it may still qualify as an Article III “case or

controversy,” a case can reach the point where prolonging the litigation any

longer would itself be inequitable. See 13B Charles Alan Wright, Arthur R.

Miller & Edward H. Cooper, Federal Practice and Procedure § 3533.1 at 725 (3d

ed. 2008); S-1 v. Spangler, 832 F.2d 294, 297 (4th Cir. 1987) (case prudentially

moot because the relief sought “no longer has sufficient utility to justify decision

. . . on the merits”).

       Prudential mootness doctrine often makes its appearance in cases where a

plaintiff starts off with a vital complaint but then a coordinate branch of

government steps in to promise the relief she seeks. Sometimes the plaintiff will

seek an injunction against the enforcement of a regulation the relevant agency

later offers to withdraw on its own. Sometimes the plaintiff will seek an order

forcing a department to take an action that it eventually agrees to take voluntarily.

                                          -4-
However it comes about though, once the plaintiff has a remedial promise from a

coordinate branch in hand, we will generally decline to add the promise of a

judicial remedy to the heap. While deciding the lawsuit might once have had

practical importance, given the assurances of relief from some other department

of government it doesn’t any longer. See, e.g., S. Utah, 110 F.3d at 727

(prudential doctrine has “particular applicability . . . where the relief sought is an

injunction against the government”); Bldg. & Constr. Dep’t v. Rockwell Int’l

Corp., 7 F.3d 1487, 1492 (10th Cir. 1993); New Mexico ex rel. N.M. State

Highway Dep’t v. Goldschmidt, 629 F.2d 665, 669 (10th Cir. 1980); Chamber of

Commerce v. U.S. Dep’t of Energy, 627 F.2d 289, 291 (D.C. Cir. 1980) (“In some

circumstances, a controversy, not actually moot, is so attenuated that

considerations of prudence and comity for coordinate branches of government

counsel the court to stay its hand”).

      To be sure, promises of reform or remedy aren’t often sufficient to render a

case moot as a constitutional matter. That’s because the risk always exists that,

as soon the court turns its back, the defendant might renounce his promise and

“return to his old ways.” W.T. Grant, 345 U.S. at 632; see also Friends of the

Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000). But

even when the risk of recalcitrance is injury enough to keep the case alive as an

Article III matter, it isn’t necessarily enough to avoid the application of

prudential mootness doctrine. That’s because any party invoking the equitable

                                          -5-
remedial powers of the federal courts must still “satisfy the court that [requested]

relief is needed,” and when it comes to assessing that question, a remedial

promise always qualifies as “one of the factors to be considered.” W.T. Grant,

345 U.S. at 632-33. Though a remedial promise may not be enough to kill a case

constitutionally, it can be enough to bring it to an end all the same as a matter of

equity.

      The weight a remedial promise plays in the equitable calculus depends, of

course, on who is making the promise and the reliability of that party’s past

promises. And it should come as no surprise that the remedial commitments of

the coordinate branches of the United States government bear special gravity.

S. Utah, 110 F.3d at 727; Rockwell Int’l Corp., 7 F.3d at 1492; Chamber of

Commerce, 627 F.2d at 291. Neither do we take governmental promises seriously

only because they are generally trustworthy. We also take them seriously because

affording a judicial remedy on top of one already promised by a coordinate

branch risks needless inter-branch disputes over the execution of the remedial

process and the duplicative expenditure of finite public resources. It risks, too,

the entirely unwanted consequence of discouraging other branches from seeking

to resolve disputes pending in court.

      Ms. Winzler’s case contains all these traditional ingredients of a

prudentially moot case. To be sure, her suit isn’t one against the government and

in that formal respect differs from many prudential mootness cases. But looking

                                         -6-
past form to substance, she has in hand a remedial commitment from our

coordinate branches all the same. By filing documents with NHTSA notifying it

of a defect, Toyota set into motion the great grinding gears of a statutorily

mandated and administratively overseen national recall process. See 49 U.S.C.

§§ 30118(c), 30120(a). By virtue of its filing, Toyota is now obliged by statute to

notify all relevant registered owners of the defect. See 49 U.S.C. §§ 30118(c),

30119(d). The company has assumed as well the statutory duty to “remedy the

defect or noncompliance without charge when the vehicle or equipment is

presented for remedy.” 49 U.S.C. § 30120(a). And Toyota has subjected itself to

the continuing oversight of (and potential penalties imposed by) NHTSA. 49

U.S.C. §§ 30120(c)-(e), 30165(a); 49 C.F.R. § 1.50(a).

      Given all this, there remains not enough value left for the courts to add in

this case to warrant carrying on with the business of deciding its merits.

Congress and the Executive have committed to ensure Ms. Winzler precisely the

relief she seeks. At best, we might duplicate their efforts and waste finite public

resources in the process. At worst, we might invite inter-branch confusion and

turf battles over the details of carrying out an agreed objective. Our intervention

would, as well, surely add new transaction costs for Toyota and perhaps reduce

the incentive manufacturers have to initiate recalls (as Toyota did here), all while

offering not even a sliver of additional relief for Ms. Winzler and members of the

class she seeks to represent. Perhaps the lawyers would benefit if this would-be

                                         -7-
class action labored on through certification, summary judgment, and beyond.

But it’s hard to see how anyone else could.

      Things might be different if we thought Ms. Winzler would be left without

complete relief. While we generally hold a case moot when a coordinate branch

steps in to resolve the problem, we don’t do so without first accounting for the

possibility of failure. If the party seeking relief can show that “there exists some

cognizable danger of recurrent violation,” some cognizable danger that the

coordinate branch will fail and she will be left without a complete remedy, we

will continue with the case even in the face of a simultaneous remedial

commitment from another branch. See W.T. Grant, 345 U.S. at 633. After all,

while equity may not require us to duplicate efforts of the other branches it hardly

insists we run the risk of leaving a plaintiff without a remedy she’s entitled to. In

seeking to avoid one set of wrongs (needless duplication and inter-branch

disputes) we cannot ignore the possibility of inviting what may be even a greater

one (leaving the plaintiff without a remedy in a meritorious case).

      To carry the burden of showing a “cognizable danger” of failure, a plaintiff

must point us to “something more than the mere possibility” of failure. Id.; see

also SEC v. Steadman, 967 F.2d 636, 648 (D.C. Cir. 1992). This doesn’t require

the plaintiff to prove an imminent or even a likely danger of failure. All she must

show is a “cognizable” danger — one perceptible or recognizable from the

evidence before the court. See 3 Oxford English Dictionary 446 (2d ed. 1989)

                                         -8-
(defining “cognizable” as, among other things, “capable of being known or

perceived, or apprehended by the senses or intellect, perceptible”); see also

Mayorga-Vidal v. Holder, 675 F.3d 9, 14 (1st Cir. 2012) (defining “legally

cognizable social group” as one that is “socially visible — that is, generally

recognizable in the community”). At the same time, of course, it’s not enough

merely to speculate about or imagine how our coordinate branches might fail. A

plaintiff must identify something more than the mere possibility of failure

sufficient to “keep the case alive” for Article III purposes. See W.T. Grant, 345

U.S. at 633; Nelson v. Miller, 570 F.3d 868, 882 (7th Cir. 2009).

      Still, though this “cognizable danger” standard poses a relatively modest

hurdle, Ms. Winzler’s three efforts to clear it clearly fall short.

      First, she disputes what facts we, as an appellate court may know about the

status of the recall. To show that it rendered this case moot by triggering the

Safety Act after the district court entered judgment, Toyota has moved to

supplement the record with and asked us to take judicial notice of documents filed

with NHTSA and now available on the agency’s public website. These materials

purport to show that Toyota is already well on its way to completing the recall —

and that the phase of the recall covering Ms. Winzler’s car is already complete.

For her part, Ms. Winzler cautions us against taking notice of the truthfulness of

Toyota’s papers. She worries that Toyota may have misstated how many owners




                                          -9-
and dealers it has notified about the recall, how many and which cars it has fixed

so far, or otherwise misrepresented its progress.

      All this, however, is beside the point. To find this case prudentially moot,

we do not have to (and do not) take notice of the truthfulness of Toyota’s

statements. All that matters is that materials purporting to identify a defect and

to announce a recall are on file with NHTSA. This much is enough because, with

the act of notifying NHTSA of a defect and announcing a recall, Toyota set into

motion the statutorily mandated and administratively overseen national recall

process. Its filings with the agency obliged it to notify owners, fix their cars, and

do so for free, all pursuant to Congress’s command and under NHTSA’s

supervision. 49 U.S.C. §§ 30118-20. So it is that, to find this case moot, we need

(and do) only take notice of the existence of filings with NHTSA purporting to

identify a defect and announce a recall.

      Neither does anyone dispute we may take notice of this much. Fed. R.

Evid. 201 allows courts to take judicial notice of facts “at any stage of the

proceeding” if the facts are “not subject to reasonable dispute.” Everyone before

us agrees that Toyota has indeed filed the materials in question with NHTSA and

that the contents of those materials purport to show an ongoing recall. And it

comes as no surprise that the parties agree. The contents of an administrative

agency’s publicly available files, after all, traditionally qualify for judicial notice,

even when the truthfulness of the documents on file is another matter. See In re

                                         - 10 -
Calder, 907 F.2d 953, 955 n.2 (10th Cir. 1990) (discussing judicial notice of the

existence and contents, but not truthfulness, of publicly filed documents); Tal v.

Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006) (same). Neither is it open to

question that we may take judicial notice of materials on appeal, or that doing so

can wind up rendering a case moot, prudentially or otherwise, during its pendency

on appeal. The very same concerns animating prudential mootness doctrine that

counsel us to avoid deciding a case on its merits can also counsel us to avoid a

needless district court remand when a case’s mootness is readily apparent. See

United States v. Burch, 169 F.3d 666, 671 (10th Cir. 1999) (judicial notice may

be taken for the first time on appeal); Jordan v. Sosa, 654 F.3d 1012, 1020 n.11

(10th Cir. 2011) (encouraging parties to alert this court to developments after a

district court’s judgment that may render the case moot on appeal); Ali v.

Cangemi, 419 F.3d 722, 723-24 (8th Cir. 2005) (holding case prudentially moot

for the first time on appeal and vacating a district court determination on the

merits); Spangler, 832 F.2d at 298-99 (same); United States v. (Under Seal), 757

F.2d 600, 601, 604 (4th Cir. 1985) (same).

      Second and separately, Ms. Winzler worries that the NHTSA recall process

may prove an insufficient remedy because it is a “voluntary” one. And in one

sense she has a point. Some recalls are initiated “voluntarily” when a

manufacturer alerts NHTSA to the defect. 49 U.S.C. § 30118(c). Others are

initiated “involuntarily” when the government discovers a defect after its own

                                        - 11 -
investigation. 49 U.S.C. § 30118(a). Toyota’s recall here began pursuant to the

voluntary recall subsection. The difficulty for Ms. Winzler is that, whether the

recall ball gets rolling under the voluntary or involuntary recall subsection, the

result is the same: either way, the same notice, recall, and repair mandates

follow; either way, the same oversight and enforcement tools are in play. See 49

U.S.C. §§ 30118(e), 30119, 30120, 30165; Ctr. for Auto Safety v. Nat’l Highway

Traffic Safety Admin., 452 F.3d 798, 802 (D.C. Cir. 2006). Far from suggesting

some danger of a recurrent violation as she hoped, Ms. Winzler only draws our

attention to the fact that voluntary recalls are no more susceptible to failure than

involuntary recalls required by the government.

      Finally, and moving past how a recall is initiated, Ms. Winzler points to

what she perceives to be defects in the statutory recall processes that follow.

Should a manufacturer fail to carry out its notice, recall, and repair duties, she

acknowledges, NHTSA has discretion to conduct a hearing, investigate, and issue

sanctions. See 49 U.S.C. §§ 30118(e), 30120(e), 30165; 49 C.F.R. § 557.6. But

because NHTSA has so much discretion in how to carry out its enforcement

responsibilities, she worries she may not be able to take the agency to court if it

fails to pursue Toyota with (what she considers) sufficient vigor. See

Administrative Procedures Act, 5 U.S.C. § 701(a)(2) (no judicial review when

“agency action is committed to agency discretion by law”); but see McAlpine v.

United States, 112 F.3d 1429, 1433 (10th Cir. 1997) (noting that this is a very

                                         - 12 -
narrow exception to the normal rule of judicial review). Ms. Winzler also worries

that if NHTSA falls down on the job, the Safety Act may not afford her a private

right of action to pursue Toyota, and notes that at least two other circuits have

already held the Act contains no private right of action. See Ayres v. General

Motors Corp., 234 F.3d 514, 522 (11th Cir. 2000); Handy v. General Motors

Corp., 518 F.2d 786, 788 (9th Cir. 1975) (per curiam). In contrast, she says, a

judicial decree would give her a firmer whip hand to ensure Toyota fulfills its

recall duties. Firmer because should Toyota falter she can be sure that a federal

judge will hear her complaint and penalize the company appropriately.

      The limitations Ms. Winzler identifies in the statutory recall procedures

may well exist (we have no reason to decide today the APA judicial review

question or whether the Safety Act contains a private cause of action). But even

so they are insufficient to prove a cognizable danger that the statutory recall

process will fail. A plaintiff cannot show a cognizable danger of failure merely

by pointing out that the processes Congress and the Executive have chosen to

effect a remedy differ from those a judicial decree might provide to reach the

same result. After all, there are many ways to skin a cat and many ways to

provide an effective equitable remedy. In the context of a recall, reasonable

minds might well disagree about the ideal method of notice, the optimal and most

realistic timeline for repair, whether repair or replacement is required, where the

repairs should occur, and so on, but still wind up all the same with equally

                                        - 13 -
effective results. No doubt a recognition of this reality is one of the reasons

courts of appeals review challenges to the mechanisms of district court equitable

decrees simply for abuse of discretion. See In re Blinds to go Share Purchase

Litig., 443 F.3d 1, 8 (1st Cir. 2006) (a district court “shaping an equitable remedy

. . . typically has a range of appropriate options. As long as the court’s ultimate

choice falls within this range, it will withstand review even if it is not, in the

appellate court’s opinion, the best option within the range.”). And surely our

coordinate branches should enjoy no less (concerns for comity would suggest

even more) latitude than our district courts when it comes to selecting what they

believe to be the most appropriate path to their stated remedial objective.

      To hold otherwise — to allow a case to proceed simply because there

happen to be differences between the remedial process a coordinate branch has

selected and those we might choose — would not only require us to ignore the

reality that there’s often no one single right way to go about providing equitable

relief to an injured party. It would also require us to ignore the reality that there

are nearly always (if not always) some differences between Executive, Legislative

and Judicial remedial procedures given how differently the three branches

operate: by regulation, legislation, and decree. To presume deficiency from

difference would no doubt go a long way, as well, toward spelling the end of

prudential mootness doctrine and the comity it is supposed to afford our

coordinate branches. And doing so would involve not a little hubris, suggesting

                                         - 14 -
that our ways are always the best ways. After all, by asking us to proceed with

her case only because differences exist between the Act’s remedial processes and

those that might be included in a judicial decree, Ms. Winzler necessarily asks us

to conclude that while Congress sought to provide consumers with an effectual

recall regime, the legislation it enacted is actually pretty ineffectual. She also

necessarily asks us to assume that while NHTSA is invested with considerable

authority to police Toyota’s recall effort, it is likely to abdicate that duty.

      Of course and again, if a plaintiff can show that the remedial mechanisms

selected by a coordinate branch aren’t just different but that those differences

present a cognizable, a perceptible, a recognizable danger they will lead our

coordinate branch to fail to achieve its stated objectives, we can and will proceed

with the case. But to justify the expenditure of judicial resources, all in

duplication of ongoing efforts by a coordinate branch and in a fashion that

necessarily evinces a judgment that those efforts are in some way defective, more

than a speculative risk of failure is required.

      Yet that is all Ms. Winzler gives us. She doesn’t dispute that if the Act

works as it is supposed to and NHTSA does its legislatively assigned job she will

achieve a complete remedy. She simply worries that the agency may fall down on

the job. And her worry is no more than that. It is backed by no evidence

suggesting it is anything other than a hypothetical possibility, a conjectural but

not cognizable danger. Though she represents to us that Toyota’s recall began in

                                          - 15 -
August 2010, Aplt. Br. at 11, she offers no evidence that NHTSA has abdicated

its duties in the year and a half that has elapsed since then. She likewise offers us

no facts suggesting any perceptible chance the agency won’t complete the work it

has started. In fact, she offers no evidence suggesting that the agency has ever

fallen down on the recall job before in a way that might make us concerned about

completing its work in this case: if such evidence exists, she has left us none the

wiser for it. See Nelson, 570 F.3d at 882.

      Because prudential mootness is arguably the narrowest of the many bases

Toyota has suggested for dismissal, and because it is sufficient to that task, we

have no need to discuss any of Toyota’s other arguments for the same result,

ranging from standing to Rule 12(b)(6). We grant the motion to supplement the

record and for judicial notice to the extent discussed above and, following our

general practice when finding a case moot (prudentially or otherwise) on appeal,

we vacate the district court’s judgment and remand with instructions to dismiss

the case as moot. See Wyoming v. U.S. Dep’t of Interior, 587 F.3d 1245, 1254-55

(10th Cir. 2009).




                                        - 16 -
