Stepien v. Governor of N.J.

1

CYNTHIA STEPIEN, on behalf of herself and her minor child; STAMATIA DIMATOS SCHRECK on behalf of herself and her three minor children; RYAN CODY, on behalf of himself and his minor child J.C.; KELLY FORD, on behalf of herself and her minor child A.F.; SIMONA CHINDEA, on behalf of herself and her two minor children; GABE MCMAHON; M. F.; M. K. N.; K. B.; B.W.; L. R.; J. V. P.; V. P.; D. M.; B. M.; A. M.; DANIELLE ESCAYG; AND ALL OTHERS SIMILARLY SITUATED, Appellants v. GOVERNOR OF NEW JERSEY; NEW JERSEY COMMISSIONER OF EDUCATION; NEW JERSEY COMMISSIONER OF HEALTH

No. 21-3290

United States Court of Appeals, Third Circuit

April 6, 2023

NOT PRECEDENTIAL

Submitted Pursuant to Third Circuit LAR 34.1(a) September 16 2022

On Appeal from the United States District Court for the District of New Jersey (District Court No. 2:21-cv-13271) District Court Judge: Honorable Kevin McNulty

Before: KRAUSE, BIBAS, and RENDELL, Circuit Judges.

OPINION ^[*]

RENDELL, CIRCUIT JUDGE

When the COVID-19 pandemic struck, New Jersey Governor Philip Murphy mandated masks in New Jersey schools. Believing that was unconstitutional, Plaintiffs filed suit against Governor Murphy, Education Commissioner Allen-McMillan, and Health Commissioner Persichilli ("Defendants") to enjoin the mandate's enforcement. The District Court denied Plaintiffs' request for an injunction and dismissed the lawsuit. After that, and while this appeal was pending, the Governor withdrew the mandate. Defendants say that makes the case moot and deprives the federal courts of jurisdiction. We agree. Federal courts may only decide "cases" and "controversies," and that requires a live dispute between adverse parties. Because this case is not justiciable, we will affirm the order of the District Court.

I.^[1]

In March 2020, Governor Murphy issued Executive Order ("EO") 103, through which he declared a state of emergency under the Emergency Health Powers Act, N.J. Stat. Ann. § 26:13-1. He used his authority under the Act to close all New Jersey elementary and secondary schools. By August 2020, the public health situation improved enough to reopen them, yet the Governor issued EO 175, which imposed health and safety protocols that included "[m]andatory use of face coverings by staff, students, and visitors" at schools. N.J. Exec. Order No. 175 ¶ 2b (Aug. 13, 2020).

Plaintiffs are New Jersey public school students, their parents, and a special education teacher. While the mandate was in place, they sued Defendants in the District Court, alleging that the mandate violated their rights under the First, Fifth, and Fourteenth Amendments to the United States Constitution. They sought to enjoin the Governor from enforcing the mandate and to compel Defendants to issue an order forbidding the individual school districts from creating their own mandates. They also sought a declaration that school mask mandates violate students' constitutional rights and thus the executive orders imposing them were "void as illegal[.]" App. 64. The District Court denied Plaintiffs' request for a preliminary injunction as unlikely to succeed on the merits. Plaintiffs timely filed this appeal.

II.

The District Court had federal question jurisdiction under 28 U.S.C. §§ 1331 and 1343. Ordinarily, our jurisdiction to review the denial of preliminary injunctive relief is proper under 28 U.S.C. § 1292(a)(1), but as we explain below, that jurisdiction does not exist here because the case is moot.

Article III of the Constitution limits a federal court's jurisdiction to "cases" and "controversies," which exist only where actions "present live disputes" such that "both sides have a personal stake." Hartnett v. Pa. State Educ. Ass'n, 963 F.3d 301, 305 (3d Cir. 2020). Cases on appeal become moot "if events have taken place during the pendency of the appeal that make it impossible for the court to grant any effectual relief whatsoever." Cty. of Butler v. Governor of Pa., 8 F.4th 226, 230 (3d Cir. 2021) (internal quotation marks omitted). But we hesitate to declare a case moot "where the defendant claims the matter has become moot owing to his voluntary cessation of the challenged action." Clark v. Governor of N.J., 53 F. 4th 769, 775 (3d Cir. 2022) (citing Hartnett, 963 F.3d at 306-07). And we recognize an exception to the mootness doctrine where a defendant's actions are "capable of repetition yet evading review." Hamilton v. Bromley, 862 F.3d 329, 335 (3d Cir. 2017) (cleaned up). The latter "applies only in exceptional situations where (1) the challenged action is in its duration too short to be fully litigated" before it stops or expires, "and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again." Id. (cleaned up).

III.

On March 4, 2022, after Plaintiffs filed this appeal, Governor Murphy issued EO 292, ending the mask mandate. Around the same time, the Department of Health issued "guidance" to districts about when and how to impose new mask mandates, but it explained that "individual school districts and school boards" could "make the determination as to whether universal masking is appropriate for their schools." Appellant's Supp. App. 80. Defendants have argued that the mandate's end made this case moot, and no exception to mootness applied, while Plaintiffs have countered that the case is still live, or the "capable of repetition yet evading review" exception applies.

We recently faced a similar challenge to expired pandemic restrictions in Clark v. Governor of New Jersey, 53 F.4th at 771. There, two church congregations and their pastors mounted a First Amendment challenge to an executive order limiting in-person, indoor religious worship gatherings. Id. at 772. Six days after they sued, the Governor rescinded the challenged order, and he gradually ended all restrictions over the next several months. Id. at 772-73. We found the eliminated restrictions left "no 'effectual relief whatsoever'" for us to grant, rendering the case "facially moot." Id. at 776. And for three instructive reasons, we rejected the plaintiffs' argument that the Governor's voluntary cessation of the challenged conduct militated against mootness: (1) the public health situation had changed from the beginning of the pandemic; (2) the Governor did not reimpose restrictions during the waves of COVID variants that followed; (3) and it was not reasonably likely that future restrictions would resemble the original ones enough to constitute the same legal controversy. Id. at 777-81. All of that made it "absolutely clear" that the State's "allegedly wrongful behavior" would not recur, so we ruled that the case was moot. Id. at 775 (quotation omitted).

Here, given the similarity of the issues, we asked the parties to file supplemental briefs addressing whether this case is moot based on our ruling in Clark. The State urges that Clark requires us to find that it is and that neither voluntary cessation nor the capable of repetition yet evading review exception to mootness compel a different result.^[2] But Plaintiffs urge that the case is still live, notwithstanding Clark. They point out that the complaint in Clark focused only on the terminated order, yet Plaintiffs here also seek an order requiring school districts to cease issuing any mandates on their own.

The challenged mandate here "was a product of the pandemic's early stages" and Plaintiffs grounded their objections "in the mandate's particulars." Resurrection Sch. v. Hertel, 35 F.4th 524, 530 (6th Cir. 2022) (en banc). That requires us to measure the mandate and Plaintiffs' objections to it against the backdrop of the grave public health conditions that made the mandate necessary. The upshot is Plaintiffs can succeed only if the resurfacing controversy has the same fit between the existing conditions and "the mandate's particulars." Id. But as we explained in Clark, that fit is no longer the same: vaccines, therapeutics, and other mitigation measures have changed the COVID landscape for the better. 53 F.4th at 778. And Governor Murphy's decision not to dial up new mask mandates even as Omicron surged suggests those mandates will not recur unless COVID takes a dramatic turn for the worse. Id. at 779. Yet, even if he did, that would create an altogether different fit between any new mask mandate and the reality on the ground, birthing a different controversy between the parties.^[3]

Plaintiffs seek refuge in the concept of voluntary cessation and the "capable of repetition yet evading review" exception to mootness. They also try to distinguish Clark based on their request for an order from Defendants. None of these arguments pass muster. We start with voluntary cessation. We have explained that "in voluntary-cessation cases, defendants' burden of showing mootness is heavy." Hartnett, 963 F.3d at 307 (internal citation omitted). To carry this burden, the defendant must show that it is "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Fields v. Speaker of the Pa. House of Representatives, 936 F.3d 142, 161 (3d Cir. 2019) (quotation omitted). The same reasons that convinced us the case was moot in Clark lead us to reach that conclusion here. Public health conditions have changed dramatically since the dawn of the pandemic. Infection rates are down, vaccination rates are up, and officials have more arrows in their quiver to mitigate and treat COVID-19. Those increased options have borne fruit that undermines Plaintiffs' argument: despite a surge in infection rates during the Omicron wave, the Governor did not reimpose masking restrictions. The record shows that the Governor withdrew and refused to reimpose the mandate because of the changed health conditions, not this lawsuit. ...