Matthew Brach v. Gavin Newsom, 38 F.4th 6

Background

In March 2020 Governor Newsom declared a state emergency and California schools closed for in-person instruction; instruction moved to distance learning.
In summer 2020 the California Department of Public Health issued the 2020–21 Reopening Framework, which permitted schools to reopen permanently once local COVID benchmarks were met; plaintiffs (parents and one student) sued days after the framework was announced alleging violations of the Fourteenth Amendment and federal civil-rights statutes.
The district court denied emergency injunctive relief and granted summary judgment for the State; a divided Ninth Circuit panel reversed in part but the court granted en banc review and ordered supplemental briefing on mootness.
By mid-2021 vaccine rollout and changing benchmarks led the State to rescind the initial executive orders (EO N-33-20) and replace the 2020–21 Framework with 2021–22 Guidance that imposes no restrictions on reopening; plaintiffs conceded there was no state-imposed barrier to reopening since April 2021.
The en banc Ninth Circuit dismissed the appeal as moot, holding no live Article III controversy remained and rejecting both the voluntary-cessation and capable-of-repetition exceptions; it instructed the district court to vacate its judgment and dismiss the complaint.
A five-judge dissent would have held the case nonmoot under the capable-of-repetition doctrine (citing the Governor’s continuing emergency powers), and—because it would reach the merits—would have affirmed the district court on due process and equal protection; the dissent also concluded the Meyer/Pierce parental-rights theory was waived by plaintiffs.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Article III mootness — is there a live controversy?	Brach: State order kept schools closed; judicial relief still necessary to declare orders unconstitutional and enjoin future closures.	Newsom: Orders and framework have been rescinded/replaced; no present state-imposed barrier to reopening.	Dismissed as moot: no present state order to strike or enjoin; plaintiffs conceded no current barrier.
Voluntary-cessation exception — did State moot the case to evade review?	Brach: Rescission may be tactical; exception should apply.	Newsom: Reopening followed changed public-health facts and policy; State has renounced school closures and enacted durable measures keeping schools open.	Exception rejected: State met burden showing conduct not reasonably expected to recur; reopening is entrenched.
Capable-of-repetition-yet-evading-review — could plaintiffs face same action again?	Brach: Governor retains emergency powers; pandemic may recur; reasonable expectation of repetition.	Newsom: Changed circumstances (vaccines, guidance, statutes, policy) make recurrence speculative, not reasonable.	Exception rejected: no reasonable expectation of recurrence given rescission, entrenched policy, and changed public-health landscape.
Merits / Parental-rights (Meyer/Pierce) & waiver	Brach: Parents asserted a fundamental right to a basic minimum in-person education; also argued Meyer/Pierce parental-rights theory on appeal.	Newsom: Plaintiffs litigated children’s education claims, not a parental Meyer/Pierce claim; any Meyer-Pierce theory was not pleaded/waived.	En banc did not reach merits (mootness disposition). Dissent would have found Meyer/Pierce claim waived and affirmed on the merits (no proof distance learning failed minimal standards; rational-basis equal protection).

Key Cases Cited

Already, LLC v. Nike, Inc., 568 U.S. 85 (2013) (no Article III jurisdiction when no live controversy remains)
Friends of the Earth, Inc. v. Laidlaw Env't Servs., 528 U.S. 167 (2000) (government bears heavy burden under voluntary-cessation doctrine)
Fed. Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449 (2007) (framework for "capable of repetition, yet evading review")
Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) (Supreme Court found recurring threat to religious services relevant to mootness analysis)
Tandon v. Newsom, 141 S. Ct. 1294 (2021) (recognizing government authority to reinstate COVID restrictions as relevant to mootness)
Bos. Bit Labs, Inc. v. Baker, 11 F.4th 3 (1st Cir. 2021) (COVID-related restrictions challenge held moot where state of emergency terminated)
Lighthouse Fellowship Church v. Northam, 20 F.4th 157 (4th Cir. 2021) (similar mootness disposition for early COVID restrictions)
Meyer v. Nebraska, 262 U.S. 390 (1923) (parental right to engage teachers and instruct children)
Pierce v. Society of the Sisters, 268 U.S. 510 (1925) (parental right to choose private schools; limits on compulsory public attendance)