36 F.4th 166
4th Cir.2022Background
- In March 2020 West Virginia’s Governor declared a state of emergency and issued a series of COVID-19 executive orders (school closures, business restrictions, gathering limits, capacity rules, mask and county color-code system).
- Plaintiffs (three businesses and two parents) filed an amended complaint in Sept. 2020 challenging those EOs under the Takings, Due Process, Equal Protection, and First Amendment clauses, seeking declaratory and injunctive relief (no damages).
- The district court dismissed the amended complaint for failure to state a claim in Jan. 2021.
- While the appeal was pending, the Governor issued orders in March–April 2021 easing restrictions and then EO 12-21 (Apr. 2021) rescinded the challenged COVID-19 EOs (and later mask mandates were ended in June 2021).
- Because the challenged orders were terminated and no similar measures have been reimposed, the Fourth Circuit concluded there was no live controversy and the appeal became moot; the court vacated the district court judgment and remanded with instructions to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appeal is moot because the challenged EOs were rescinded | Rescission does not moot the case because the Governor still retains emergency authority and could reimpose restrictions | Rescission removed the challenged measures; no reasonable chance they will return, so case is moot | Moot: rescission removed the live controversy and relief sought has been obtained |
| Whether the voluntary-cessation exception prevents mootness | The exception applies because the Governor retains power to reinstate restrictions, posing a continuing threat | Voluntary-cessation exception does not apply because it is not reasonably likely the same measures will recur | Exception rejected: government met heavy burden to show it is "absolutely clear" conduct will not recur |
| Whether vacatur of the district-court judgment is appropriate | (Plaintiffs did not contest) | (Governor did not contest) | Court followed customary practice and vacated the lower-court judgment and remanded with instructions to dismiss as moot |
Key Cases Cited
- Lighthouse Fellowship Church v. Northam, 20 F.4th 157 (4th Cir. 2021) (found challenge to rescinded COVID orders moot and explained voluntary-cessation analysis)
- Friends of the Earth, Inc. v. Laidlaw Env't Servs., 528 U.S. 167 (2000) (voluntary-cessation standard: defendant must show it is "absolutely clear" the conduct cannot reasonably be expected to recur)
- Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) (COVID-related restrictions still in effect; Supreme Court declined mootness and enjoined enforcement)
- Catawba Riverkeeper Found. v. N.C. Dep't of Transp., 843 F.3d 583 (4th Cir. 2016) (mootness can arise on appeal and court must avoid issuing advisory opinions)
- Preiser v. Newkirk, 422 U.S. 395 (1975) (federal courts may not issue advisory opinions about hypothetical facts)
- U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18 (1994) (vacatur is customary when judgment becomes moot through no fault of the prevailing party)
- Porter v. Clarke, 852 F.3d 358 (4th Cir. 2017) (describes voluntary-cessation doctrine and rationale)
- Bos. Bit Labs, Inc. v. Baker, 11 F.4th 3 (1st Cir. 2021) (found lack of recurrence after rescission and later COVID waves supports mootness)