Cnty. of Butler v. Governor of Pa.

8 F.4th 226

COUNTY OF BUTLER; County of Fayette; County of Greene; County of Washington; Nancy Gifford ; Mike Gifford, husband and wife doing business as Double Image Styling Salon ; Prima Capelli Inc, a Pennsylvania Corporation; Mike Kelly; Marci Mustello; Daryl Metcalfe; Tim Bonner; Steven Schoeffel; Paul F. Crawford, trading and doing business as Marigold Farm; Cathy Hoskins, trading and doing business as Classy Cuts Hair Salon; RW McDonald & Sons Inc; Starlight Drive in LLC, a Pennsylvania Corporation; Skyview Drive in LLC, a Pennsylvania Limited Liability Company

v.GOVERNOR OF PENNSYLVANIA; Secretary Pennsylvania Department of Health, Appellants

No. 20-2936

United States Court of Appeals, Third Circuit.

Argued July 22, 2021

Filed: August 11, 2021

J. Bart DeLone [ARGUED], Sean A. Kirkpatrick, Office of Attorney General of Pennsylvania, Strawberry Square, Harrisburg, PA 17120, Daniel B. Mullen, Office of Attorney General of Pennsylvania, 1251 Waterfront Place, Mezzanine Level, Pittsburgh, PA 15222, Claudia M. Tesoro, Office of Attorney General of Pennsylvania, 1600 Arch Street, Suite 300, Philadelphia, PA 19103, Counsel for Appellants

Daniel M. Vannella, Office of Attorney General of New Jersey, Division of Law, 25 Market Street, Hughes Justice Complex, 1st Floor, West Wing, Trenton, NJ 08625, Counsel for Amicus State of New Jersey

Thomas E. Breth, Ronald T. Elliott, Thomas W. King, III [ARGUED], Jordan P. Shuber, Dillon McCandless King Coulter & Graham, 128 West Cunningham Street, Butler, PA 16001, Counsel for Appellees

Lawrence J. Joseph, 1250 Connecticut Avenue, N.W., Suite 700-1A, Washington, DC 20036, Counsel for Amicus Eagle Forum Education & Legal Defense Fund

Christian D. Wright, Office of Attorney General of Delaware, Delaware Department of Justice, 820 North French Street, Carvel Office Building, Wilmington, DE 19801, Counsel for Amicus State of Delaware

Anthony R. Holtzman, K&L Gates, 17 North Second Street, 18th Floor, Harrisburg, PA 17101, Counsel for Amici Majority Leader of the House of Representatives, Pennsylvania Administrator of the House Majority Caucus, Pennsylvania Chair of the House Appropriations Committee, Pennsylvania Chair of the House Majority Caucus, Pennsylvania Chair of the House Policy Committee, Pennsylvania House of Representatives Majority Whip, Pennsylvania Secretary of the House Majority Caucus, Speaker of the Pennsylvania House of Representatives

Matthew H. Haverstick, Joshua J. Voss, Kleinbard, Three Logan Square, 1717 Arch Street, 5th Floor, Philadelphia, PA 19103, Counsel for Amici Pennsylvania Senate Republican Caucus, Pennsylvania House Republican Caucus

David R. Kott [ARGUED], McCarter & English, 100 Mulberry Street, Four Gateway Center, 14th Floor, Newark, NJ 07102, Counsel for Amicus New Jersey Business & Industry Association

Jeffrey M. Schwab, Liberty Justice Center, 141 West Jackson Street, Suite 1605, Chicago, IL 60604, Counsel for Amicus Liberty Justice Center

Shawn M. Rodgers, Goldstein Law Partners, 11 Church Road, Hatfield, PA 19440, Counsel for Amicus Commonwealth Partners Chamber of Entrepreneurs

Before: CHAGARES, JORDAN, and SHWARTZ, Circuit Judges

OPINION OF THE COURT

SHWARTZ, Circuit Judge.

On various dates between March and July 2020, the Governor and Secretary of Health of the Commonwealth of Pennsylvania ("Defendants") entered orders to address the COVID-19 pandemic. Plaintiffs, comprised of Pennsylvania citizens, elected officials, and businesses, challenge three pairs of directives: stay-at-home orders, business closure orders, and orders setting congregation limits in secular settings.¹ The United States District Court for the Western District of Pennsylvania concluded that the orders violated the United States Constitution, County of Butler v. Wolf, 486 F. Supp. 3d 883, 891 (W.D. Pa. 2020), and Defendants appealed.

While the appeal was pending, circumstances changed. On the health front, society has learned more about how COVID-19 spreads and the efficacy of masks, therapeutics have been developed, and vaccines have been manufactured and distributed. In fact, more than 60% of Pennsylvanians have received a COVID vaccine.

There also have been changes on the legal front. An amendment to the Pennsylvania Constitution and a concurrent resolution of the Commonwealth's General Assembly now restricts the Governor's authority to enter the same orders. Pa. Const. art. IV § 20 (d); H.R. 106, 2021 Gen. Assemb., Reg. Sess. (Pa. 2021) (concurrent resolution terminating the Governor's March 6, 2020, proclamation of disaster emergency, as amended and renewed). In addition, the challenged orders have expired by their own terms.

I²

The issue before us is whether those events moot this case. We hold that they do. "[A]n appeal is moot in the constitutional sense only if events have taken place during the pendency of the appeal that make it impossible for the court to grant any effectual relief whatsoever." In re World Imports Ltd., 820 F.3d 576, 582 (3d Cir. 2016) (citation omitted). The parties agree that the Governor's orders are no longer in effect and that he has been stripped of his power to unilaterally act in connection with this pandemic. As a result, the "law no longer provides [him] a mechanism" to "repeat the alleged harm." Rendell v. Rumsfeld, 484 F.3d 236, 242 (3d Cir. 2007). Moreover, the Secretary's orders have expired and there is consequently no relief that this Court can grant concerning them. Thus, the case is moot.

No exception to mootness applies. As Plaintiffs have conceded, the voluntary cessation doctrine does not apply here because the orders expired by their own terms and not as a response to the litigation. See Trump v. Hawaii, ––– U.S. ––––, 138 S. Ct. 377, 199 L.Ed.2d 275 (2017) (Mem.) (stating that because the orders suspending the entry of aliens and refugees "expired by their own terms[,] the appeal no longer presents a live case or controversy" (alteration and quotation marks omitted)); Spell v. Edwards, 962 F.3d 175, 178-79 (5th Cir. 2020) (observing that an expired order is "off the books" and so "there is nothing injuring the plaintiff and, consequently, nothing for the court to do"). It is conceivable that the expiration of the executive orders could be opportunistically timed to avoid an unfavorable adjudication, but we have no basis to conclude that has happened here. On the contrary, the Secretary maintained her orders for several months after Plaintiffs challenged their constitutionality, and the orders expired after more than half of all adults in Pennsylvania were vaccinated. We generally presume that government officials act in good faith, and we will not depart from that practice under these circumstances.

See Marcavage v. Nat'l Park Serv., 666 F.3d 856, 861-62 (3d Cir. 2012).

The "capable of repetition yet evading review" exception to mootness also does not apply. That exception is "narrow" and "applies only in exceptional situations," Hamilton v. Bromley, 862 F.3d 329, 335 (3d Cir. 2017), 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 reasonable expectation that the same complaining party will be subject to the same action again," Id. There must be more than a theoretical possibility of the action occurring against the complaining party again; it must be a reasonable expectation or a demonstrated probability. Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982).

A plaintiff bears the burden to show that the "capable of repetition yet evading review" exception applies, see Belitskus v. Pizzingrilli, 343 F.3d 632, 648 (3d Cir. 2003) (placing the burden on the party seeking to have their claim excepted from mootness based on the "capable of repetition yet evading review" exception); N.J. Turnpike Auth. v. Jersey Cent. Power & Light, 772 F.2d 25, 33 (3d Cir. 1985) ("It is the burden of the moving party to establish that the issue is ‘capable of repetition yet evading review.’ "). Plaintiffs have not carried that burden. Plaintiffs have pointed only to the fact that the Secretary of Health still claims the power to issue orders of the sort before us now. That observation, however, does not satisfy both elements of the test. The executive orders before us were the subject of a full evidentiary record developed and considered on an expedited basis. Hence, they were not of too short a life to be reviewed.³ Nor can we say that there is a reasonable expectation that the same complaining parties will be subject to the same orders again. Defendants have represented that the public health landscape has so fundamentally changed that "what we were facing in this case is not what you would be facing going forward," Oral Argument at 5:30-6:06, 11:47-11:59, and, though public health authorities continue to provide new guidance, Plaintiffs here have given us little reason to disbelieve that representation.

Thus, no exception to mootness applies, and we will dismiss the appeal.

II

When a case becomes moot while an appeal is pending, appellate courts generally follow the "established practice" of vacating a district court's judgment with directions to dismiss. See United States v. Munsingwear, 340 U.S. 36, 39-40, 71 S.Ct. 104, 95 L.Ed. 36 (1950) ; Khodara Env't, Inc. ex rel. Eagle Env't L.P. v. Beckman, 237 F.3d 186, 194 (3d Cir. 2001). Guided by considerations of judicial fairness, the Supreme Court in Munsingwear observed that a judgment that is "unreviewable because of mootness" should not "spawn[ ] any legal consequences" for the party who sought reversal on appeal. 340 U.S. at 41, 71 S.Ct. 104. A directive to vacate a judgment under Munsingwear is an exercise of discretion that should occur "only after a consideration of the equities and the underlying reasons for mootness." Humphreys v. Drug Enf't Admin., 105 F.3d 112, 114 (3d Cir. 1996). In this regard, courts consider whether the action became moot due to the appealing party's own...