55 F.4th 1312
11th Cir.2022Background
- In July 2021 Norwegian sued the Florida Surgeon General challenging Fla. Stat. § 381.00316(1) (ban on businesses requiring proof of COVID‑19 vaccination), seeking declaratory and injunctive relief.
- The district court entered a preliminary injunction barring enforcement of the statute against Norwegian; Florida appealed to the Eleventh Circuit.
- In October 2022 Norwegian announced it had removed COVID testing/masking/vaccine requirements and filed a suggestion of mootness and a district‑court motion (indicative ruling) asking the district court to lift the preliminary injunction — but it did not dismiss the underlying action and simultaneously asked this Court to leave the injunction “undisturbed.”
- The panel issued a merits opinion vacating the preliminary injunction, withheld the mandate, and requested supplemental briefing on mootness; parties then briefed whether the appeal was moot.
- The majority held Norwegian failed to meet the heavy burden to show mootness because (1) its policy change was not permanent or categorical, (2) it retained discretion to reinstate requirements to satisfy country‑specific rules, and (3) it continued to press for equitable relief; thus the voluntary‑cessation exception kept the controversy live.
- The dissent would have found the appeal moot when Norwegian asked the district court to lift the injunction and would have vacated the district court’s order under Munsingwear, arguing the Court could not grant meaningful relief and should dismiss the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appeal is moot because Norwegian ceased requiring proof of vaccination | Norwegian: cessation renders controversy non‑live; appeal likely moot and should be dismissed | Surgeon General: cessation is temporary/non‑categorical; Norwegian can reinstate, so controversy remains live | Appeal not moot — Norwegian failed to meet heavy burden for mootness |
| Whether the voluntary‑cessation exception bars mootness | Norwegian: irrelevant or favors dismissal because it ceased the conduct | Surgeon General: exception applies because cessation was voluntary and not absolutely permanent; Norwegian may resume | Exception applies — voluntary cessation does not moot case absent showing it’s absolutely clear conduct won’t recur |
| Whether Norwegian’s retention of discretion to follow country‑specific rules defeats mootness | Norwegian: country rules are external; does not show intent to resume domestic policy | Surgeon General: deferral to country rules shows Norwegian can and will reimpose vaccine requirements when needed | Retention of discretion supports finding the case not moot |
| If appeal moot, whether vacatur of district court order is required | Norwegian: asked court not to vacate the injunction if appeal dismissed; typical practice for interlocutory appeals is to dismiss without vacatur | Florida / Dissent: when prevailing party unilaterally moots the appeal, vacatur under Munsingwear is appropriate | Majority did not vacate here (denied dismissal); dissent would dismiss and vacate the district court order under Munsingwear |
Key Cases Cited
- Already, LLC v. Nike, Inc., 568 U.S. 85 (mootness doctrine: case or controversy ends when issues are no longer live)
- United States v. Generix Drug Corp., 460 U.S. 453 (possibility of resumption of conduct precludes mootness)
- County of Los Angeles v. Davis, 440 U.S. 625 (party seeking dismissal bears heavy burden to establish mootness)
- United States v. Concentrated Phosphate Exp. Ass’n, Inc., 393 U.S. 199 (to moot by cessation, actor must show it is absolutely clear the conduct will not recur)
- City of Erie v. Pap’s A.M., 529 U.S. 277 (voluntary cessation by prevailing plaintiff does not necessarily moot appeal; ongoing injury and interest may persist)
- Friends of the Earth, Inc. v. Laidlaw Env’t Servs., 528 U.S. 167 (voluntary cessation doctrine prevents manipulation of jurisdiction)
- United States v. Munsingwear, Inc., 340 U.S. 36 (vacatur on mootness requires equitable consideration, especially when prevailing party’s unilateral action moots the appeal)
- Frank v. Minnesota Newspaper Ass’n, Inc., 490 U.S. 225 (party’s willingness to forgo relief can affect mootness/vacatur analysis)
- Troiano v. Supervisor of Elections, 382 F.3d 1276 (11th Cir.) (voluntary cessation doctrine and mootness principles in this circuit)
- Jager v. Douglas Cnty. Sch. Dist., 862 F.2d 824 (11th Cir.) (no mootness where party never promised not to resume prior practice and continued to press its position on appeal)