Boston Bit Labs, Inc. v. Baker ( 2021 )

United States Court of Appeals
For the First Circuit
No. 20-2046
BOSTON BIT LABS, INC., a Massachusetts corporation, d/b/a Bit
Bar Salem,
Plaintiff, Appellant,
v.
CHARLES D. BAKER, in his official capacity as Governor of the
Commonwealth of Massachusetts,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Sterns, U.S. District Judge]
Before
Thompson, Selya, and Hawkins,*
Circuit Judges.
Marc J. Randazza, with whom Jay M. Wolman and Randazza Legal
Group, PLLC, were on brief, for appellant.
LaRonica K. Lightfoot, Assistant Attorney General, with whom
Maura Healey, Attorney General of Massachusetts, was on brief, for
appellee.
August 26, 2021
* Of the Court of Appeals for the Ninth Circuit, sitting by
designation.
THOMPSON, Circuit Judge. Time and events have overtaken
this case, making it (in law-speak) "moot." We explain how and
why below.
I
First up, some background (appropriately simplified),
which is undisputed for present purposes:
Bit Bar (its full legal name appears in our caption)
owns and runs a restaurant/arcade in the city of Salem,
Massachusetts. In normal times, patrons can eat and drink while
playing an array of video games using kiosks or machines doubling
as dining tables. But these are most definitely not normal times
(as all are painfully aware) given SARS-CoV-2, the virus behind
the frightful COVID-19 pandemic — which caused Massachusetts
Governor Charles Baker (like other Governors) to issue orders
temporarily closing nonessential businesses and limiting
restaurants to takeout and delivery only (among other measures not
pertinent here), thus temporarily closing the arcade part of Bit
Bar's business.
Suing under 42 U.S.C. § 1983, Bit Bar attacked Governor
Baker's "COVID-19 Order No. 43" as unconstitutional. Issued months
after he declared a COVID-19 state of emergency and assumed extra
powers via the state's Civil Defense Act, Order 43 was but one of
many executive orders promulgated as part of a plan to reopen
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businesses in four phases (notice the past tense "was," the
significance of which will become clear later).1 Bit Bar's
complaint noted that Governor Baker had earlier classified arcades
as "Phase III enterprises," along with (for example) the gaming
floors of casinos ("casinos" for short), museums, fitness centers,
and performance halls. But Order 43, the complaint continued,
reclassified arcades as "Phase IV enterprises" while keeping (as
relevant to our dispute) casinos in "Phase III." And this meant
that casinos would reopen before arcades, to Bit Bar's great
disappointment. Claiming that "no compelling government interest"
justified curbing "the availability of video games when casinos
are permitted to operate in analogous physical circumstances," the
complaint alleged that Governor Baker's "restriction" violated Bit
Bar's First and Fourteenth Amendment rights. Bit Bar sought a
declaration that the "restriction" infracted the Constitution and
an injunction to stop the "restriction['s] . . . application to
[its] speech and business" (helpfully, Bit Bar's opening brief to
us characterizes its complaint as "not" one seeking "money
damages"). For good measure, Bit Bar also moved for a preliminary
1Massachusetts's highest court — the Supreme Judicial Court
— ruled that the Civil Defense Act (which is still in effect)
"provides authority" for Governor Baker's "declaration of a state
of emergency in response to the COVID-19 pandemic and for the
issuance of the subsequent emergency orders." Desrosiers v.
Governor, 158 N.E.3d 827, 832 (Mass. 2020).
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injunction to restrain Governor Baker "from enforcing any
restrictions beyond those imposed on Phase III enterprises" — a
quote taken from its motion.
Just days after Bit Bar filed suit, Governor Baker
restored arcades to "Phase III" status through "COVID-19 Order No.
50." He then opposed Bit Bar's motion for injunctive relief and
moved to dismiss the complaint, principally on the ground that
this change — "arcades having been allowed to reopen in
Massachusetts," as his consolidated memo described it — mooted the
controversy. Bit Bar wrote memos supporting its preliminary-
injunction motion and opposing Governor Baker's dismissal motion,
relevantly arguing that his "voluntary cessation" of the
complained-of conduct could not moot the case because (as Bit Bar
saw it) he "could resume" that conduct "at a whim."
Ruling on these matters, the district judge wrote that
"[b]ecause arcades no longer face 'any restrictions beyond those
imposed on Phase III enterprises,'" Bit Bar's "claims" are "moot."
The judge also did not think "that there is any reasonable basis
to believe" that, following dismissal, Governor Baker would go
back to "imposi[ng] . . . greater restrictions on the operation of
arcades than certain other Phase III enterprises." And Bit Bar's
"suggestions to the contrary," the judge added, "rel[ied] on an
undue degree of speculation regarding the future course of the
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virus and the measures Governor Baker may opt to take to counteract
its spread" — thus making the voluntary-cessation doctrine
"inapplicable."
From that order, Bit Bar appeals. Critically for this
case, after briefing but before oral argument, Governor Baker told
us by letter (submitted under Federal Rule of Appellate Procedure
28(j)), and publicly announced, that he had terminated the COVID-
19 state of emergency by issuing "COVID-19 Order No. 69" — which
ultimately ended his authority "to impose any COVID-19 related
restrictions" under the earlier emergency declaration and
rescinded his COVID-19 emergency orders issued pursuant to the
Civil Defense Act too.2 And, Governor Baker insisted, the
2 One of Order 69's "WHEREAS" clauses explained that
as of May 27, 2021, over 3.5 million residents
of the Commonwealth have been fully vaccinated
against the COVID-19 virus, and over 4.3
million have received at least a first dose,
and over 78 percent of Massachusetts adults
overall and over 89 percent of Massachusetts
residents 75 years and older have received at
least a first dose[.]
And another of Order 69's "WHEREAS" clauses noted that
the remaining threats to the public health
presented by the COVID-19 virus will shortly
no longer require the exercise of the
extraordinary powers that the Civil Defense
Act grants to the Governor in a time of
emergency to take executive action, outside
the normal processes of government and across
the established geographic and political
divisions of authority, in order to coordinate
State and Local relief efforts and to act
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voluntary-cessation doctrine offered Bit Bar no help, because
given Order 69's "termination of the COVID-19 state of emergency,"
there is no reasonable expectation that he will repeat the same
alleged wrong. Bit Bar did not respond to this letter, by the
way.
II
Next up, our take on the situation (with us noting
additional details as needed):
Bit Bar's challenge rises or falls on whether the judge
rightly kicked its case out as moot, a decision we review de novo,
see Ramírez v. Sánchez Ramos, 438 F.3d 92, 96 (1st Cir. 2006) —
i.e., without deferring to his ruling, see Stephanie C. v. Blue
Cross Blue Shield of Mass. HMO Blue, Inc., 852 F.3d 105, 111 n.2
(1st Cir. 2017). Knowing that the mootness doctrine can sometimes
be difficult to get one's hands around, see Air Line Pilots Ass'n,
Int'l v. UAL Corp., 897 F.2d 1394, 1396 (7th Cir. 1990) (Posner,
J., for the panel) (suggesting that "[t]he test for mootness is
simple to state but sometimes difficult to apply"), we provide a
brief primer.
Federal judges decide only live controversies that will
have a real effect on real parties in interest. See, e.g., U.S.
without delay as necessary to protect the
public health and welfare[.]
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Const. art III, §§ 1-2; Already, LLC v. Nike, Inc., 568 U.S. 85,
90-91 (2013); Sundaram v. Briry, LLC (In re Sundaram), __ F.4th
__, __ (1st Cir. 2021) [No. 20-9008, slip op. at 6-7]. So if a
case loses its live-controversy character at any point in the
proceedings, the mootness doctrine generally stops us from pumping
new life into the dispute (regardless of how fascinating the
party's claims are) by "oust[ing]" the federal courts of
"jurisdiction" and "requir[ing]" us to "dismiss[]" the case. See
Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 335 (1980); accord
Powell v. McCormack, 395 U.S. 486, 496 (1969).
The "heavy" burden of showing mootness is on the party
raising the issue. See, e.g., Connectu LLC v. Zuckerberg, 522
F.3d 82, 88 (1st Cir. 2008). And the key question "is whether the
relief sought would, if granted, make a difference to the legal
interests of the parties (as distinct from their psyches, which
might remain deeply engaged with the merits of the litigation)."
Air Line Pilots Ass'n, Int'l, 897 F.2d at 1396 (citing North
Carolina v. Rice, 404 U.S. 244, 246 (1971)); accord Town of
Portsmouth v. Lewis ("Lewis"), 813 F.3d 54, 58 (1st Cir. 2016)
(noting that a suit is moot "when the court cannot give any
effectual relief to the potentially prevailing party" (quoting Am.
Civ. Liberties Union of Mass. v. U.S. Conf. of Catholic Bishops
("ACLUM"), 705 F.3d 44, 52 (1st Cir. 2013))). If the answer is
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no, "then the court is not really deciding a 'case,' and (if a
federal court) it is therefore exceeding the power conferred on it
by . . . the Constitution." Air Line Pilots Ass'n, Int'l, 897
F.2d at 1396.3
Moving from the general to the specific, Bit Bar (we
repeat) basically asked the judge to enjoin Governor Baker from
treating its arcade more restrictively than casinos during the
declared COVID-19 state of emergency. And Bit Bar (we also repeat)
explicitly targeted Order 43, which put arcades in "Phase IV" but
3 Or to borrow Judge (now Justice) Gorsuch's apt words:
[E]ven if a lawsuit involved a live dispute
when the matter was before the district court,
should events overtake the case on appeal such
that, before the final moment of appellate
disposition, the complaining party winds up
with all the relief the federal court could
have given him, we will say that the suit has
become moot and beyond the power of the
federal courts to adjudicate. This holds true
even if all the parties before us still wish
us to render an opinion to satisfy their
demand for vindication or curiosity about
who's in the right and who's in the wrong.
Wyoming v. U.S. Dep't of Interior, 587 F.3d 1245, 1250 (10th Cir.
2009) (quotation marks and citation omitted). And one more quote
by then-Judge Gorsuch:
Mootness doctrine, and our consequent
inability to render judgment on . . .
hypothetical or advisory questions, supplies
a significant portion of what distinguishes
the role of the federal judge from that of the
advisor or academic in our constitutional
order.
Id.- 8 -
kept casinos in "Phase III." But then (remember) came Order 50,
which returned arcades to "Phase III." And then (remember too)
came Order 69, which eventually ended the COVID-19 state of
emergency and rescinded all COVID-19 orders issued under the Civil
Defense Act since the start of the (now-cancelled) emergency
declaration. Given this concatenation of events, there is simply
"no ongoing conduct to enjoin," thus mooting Bit Bar's injunctive-
relief claim. See Lewis, 813 F.3d at 58.
And the same goes for Bit Bar's declaratory-relief
claim. Such a claim is moot if no "substantial controversy of
sufficient immediacy and reality" exists "to warrant the issuance
of a declaratory judgment." See id. (quoting ACLUM, 705 F.3d at
54, though omitting internal formatting). Bit Bar (as a reminder)
basically asked the judge to declare that Order 43
unconstitutionally infringed its protected rights. But given the
just-noted changed circumstances — see the last paragraph, showing
how the controversial Order 43 is no longer in controversy — the
dispute "is at this point neither immediate nor real." See id.
(quoting ACLUM, 705 F.3d at 54).
To put it again in blunt terms, with the offending
executive order wiped away, there is nothing harming Bit Bar and
thus nothing left for us to do that would make a difference to its
legal interests. And for that reason, Bit Bar's claims are moot.
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See, e.g., N.Y. State Rifle & Pistol Ass'n, Inc. v. City of N.Y.
("Rifle & Pistol Ass'n"), 140 S. Ct. 1525, 1526 (2020) (per curiam)
(explaining that the plaintiffs' claims for declaratory and
injunctive relief became moot once the defendant replaced the
challenged rule with a new one that gave them "the precise relief"
that their complaint asked for); N.E. Reg'l Council of Carpenters
v. Kinton ("Kinton"), 284 F.3d 9, 18 (1st Cir. 2002) (holding that
"it would be pointless either to enjoin the enforcement of a
regulation that is no longer in effect or to declare its
constitutional status"). See generally Spell v. Edwards, 962 F.3d
175, 179 (5th Cir. 2020) (stating that "[i]t makes sense . . .
that a case challenging a statute, executive order, or local
ordinance usually becomes moot if the challenged law has expired
or been repealed").
But wait a minute, says Bit Bar. Governor Baker's
"voluntary cessation" of the challenged conduct cannot cause
mootness because — the argument goes (and Bit Bar called it "the
centerpiece of this appeal") — there is "no guarantee that [he]
will not simply reinstate the previous restrictions and start again
from square one." And because Governor Baker could return to his
old ways — the argument continues — a court could enter a judgment
declaring (emphasis ours) that "if the Governor is to restrict"
Bit Bar's "rights," he must do so in a constitutionally permissible
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way. So — the argument concludes — the judge erred in not applying
the voluntary-cessation doctrine. Call us unconvinced.
"[E]ven if the government withdraws or modifies a COVID
restriction in the course of litigation," our judicial superiors
tell us, "that does not necessarily moot the case." See Tandon v.
Newsom, 141 S. Ct. 1294, 1297 (2021) (per curiam). That is so
because of the voluntary-cessation doctrine, which "can apply when
a defendant voluntar[ily] ceases the challenged practice in order
to moot the plaintiff's case and there exists a reasonable
expectation that the challenged conduct will be repeated" after
the suit's "dismissal." See Lewis, 813 F.3d at 59 (quotation marks
and citations omitted and alteration by Lewis court); see also
Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc.
("Friends"), 528 U.S. 167, 189 (2000) (stating that for the
voluntary cessation of contested conduct to moot a suit, it must
be "absolutely clear" that the conduct "could not reasonably be
expected to recur" (quotation marks omitted)). And the burden of
showing that the voluntary-cessation doctrine does not apply still
lies with the party claiming mootness. See, e.g., Friends, 528
U.S. at 190.
Often described as a mootness exception, the voluntary-
cessation doctrine exists to stop a scheming defendant from trying
to "immuniz[e] itself from suit indefinitely" by unilaterally
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changing "its behavior long enough to secure a dismissal" and then
backsliding when the judge is out of the picture, see Lewis, 813
F.3d at 59 (quoting ACLUM, 705 F.3d at 54-55) — "repeating this
cycle until [it] achieves all [its] unlawful ends," see Already,
LLC, 568 U.S. at 91. The doctrine is "an evidentiary presumption
that the controversy . . . continues to exist," based on
"skeptic[ism] that cessation of violation means cessation of live
controversy." Friends, 528 U.S. at 213-14 (Scalia, J.,
dissenting). And given this purpose, it is hardly surprising that
the doctrine — which turns on the circumstances of the particular
case, see ACLUM, 705 F.3d at 56 — "does not apply" if the change
in conduct is "unrelated to the litigation," see Lewis, 813 F.3d
at 59 (emphasis added).4
Against this backdrop, Bit Bar's attack on the judge's
voluntary-cessation analysis cannot succeed.
For openers, we question whether this case raises the
kind of litigation-scheming suspicions typically associated with
defendant-initiated mootness. Among other things, Order 69
highlighted the millions and millions of Bay Staters now fully
A dispute is also not moot if it is capable of repetition
4
between the parties yet bound to evade review because of its short
duration. See, e.g., Spencer v. Kemna, 523 U.S. 1, 17 (1998).
But Bit Bar, to quote its brief, "does not argue that this is such
a case." So we say no more about that subject.
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vaccinated (with many millions more having received at least dose
one of the two-dose vaccine) as a basis for ending the COVID-19
state of emergency and revoking all COVID-19 orders previously
promulgated under the Civil Defense Act during the (now-
terminated) emergency state. So the circumstances suggest that
Governor Baker issued Order 69 not to avoid a court judgment, but
in response to the progress made in battling the pandemic. See
generally S. Bay United Pentecostal Church v. Newsom, 140 S. Ct.
1613, 1613 (2020) (Roberts, C.J., concurring in the denial of
application for injunctive relief) (underscoring that the
"Constitution principally entrusts the safety and the health of
the people to the politically accountable officials of the States"
(quotation marks omitted)). And Bit Bar points to nothing to the
contrary.
But even putting this doubt aside, we find that Bit Bar's
chief argument for reversal here — that Governor Baker could
reinstate Order 43's approach of treating arcades more harshly
than casinos just as easily as he replaced it — is not a difference-
maker. That the Governor has the power to issue executive orders
cannot itself be enough to skirt mootness, because then no suit
against the government would ever be moot. And we know some are.
See, e.g., Rifle & Pistol Ass'n, 140 S. Ct. at 1526; Trump v. Int'l
Refugee Assistance, 138 S. Ct. 353, 353 (2017); Kinton, 284 F.3d
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at 18. See generally Am. Bankers Assoc. v. Nat'l Credit Union
Admin., 934 F.3d 649, 661 (D.C. Cir. 2019) (emphasizing that the
sheer "power to [reinstitute] a challenged law is not a sufficient
basis on which a court can conclude that a challenge remains live"
(quotation marks omitted and alteration by Am. Bankers Assoc.
court)).
Still trying to get us to think about the situation as
it does, Bit Bar talks up Roman Catholic Diocese of Brooklyn v.
Cuomo ("Catholic Diocese"), 141 S. Ct. 63 (2020) (per curiam), and
Bayley's Campground, Inc. v. Mills ("Bayley's"), 985 F.3d 153 (1st
Cir. 2021). Neither helps its cause, however.
Catholic Diocese refused to hold moot a challenge to a
COVID-19 order by the New York governor that restricted attendance
at religious services in select areas ("red and orange zones") —
even though the governor had relaxed the restrictions after the
applicants asked the Supreme Court for injunctive relief. See 141
S. Ct. at 65-66, 68-69. The challenged order was still in effect,
just with a change in the maximum number of attendees permitted.
See id. at 68. Importantly too, the governor "regularly chang[ed]
the classification of particular areas without prior notice,"
including three times in the seven days before the Supreme Court
ruled. See id. at 68 & n.3. And with the governor "loosen[ing]
his restrictions" as the Court "prepar[ed] to act" but "continuing
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to assert the power to tighten them again anytime as conditions
warrant," id. at 72 (Gorsuch, J., concurring), the key to the
Court's not-moot ruling was how all this showed that "the
applicants remain[ed] under a constant threat that the area in
question will be reclassified," see id. at 68.
But night-and-day differences separate Bit Bar's case
from Catholic Diocese. Here (unlike there) neither the challenged
restriction nor the state of emergency is in effect. To quote a
letter Governor Baker sent us post-argument, the Governor has
"terminated the COVID-19 state of emergency . . ., thereby
extinguishing [his] authority to impose emergency orders," and
thus "rescinded" every "COVID-19 emergency order[]" — a statement
Bit Bar does not contradict. And if more were needed (which we
doubt), the circumstances here suggest that even if (or more likely
when) COVID-19 flare-ups occur (and all eyes are now on the virus's
"Delta" variant), it is unrealistically speculative that Governor
Baker would again declare a state of emergency, again close
businesses, and again put arcades in a less favorable reopening
phase than casinos — particularly since he has not disadvantaged
arcades like this despite COVID-19 surges after Order 43 went by
the boards.
On to Bayley's then. Bayley's refused to hold moot a
challenge to a COVID-19 order by the Maine governor that required
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most people heading to the Pine Tree State to self-quarantine for
two weeks before going out in public — even though the governor
had rescinded the order and replaced it with a slightly narrower
one after the case came to us. See 985 F.3d at 155-58. The key
to our not-moot ruling was how "the [g]overnor ha[d] not denied
that a spike in the spread of the virus in Maine could lead her to
impose a self-quarantine requirement just as strict as" the
rescinded one. See id. at 157. So on the record there the governor
could not "show[] that it is absolutely clear" that the supposedly
"wrongful behavior could not reasonably be expected to recur" if
circumstances became dire enough. See id. at 158 (quoting ACLUM,
705 F.3d at 55, quoting Friends, 528 U.S. at 190).
The situation in Bayley's is different from ours,
however. That is because here (unlike there) the offending order
is gone, along with the COVID-19 state of emergency. And if more
were required (which again we doubt), Governor Baker has not tried
to reinstate an order like Order 43 at all despite upticks in
COVID-19 cases after he jettisoned Order 43.
And that is that for Bit Bar's bid to undermine the
judge's voluntary-cessation assessment.5
5 Because we (like the district judge) dispose of this case
on mootness grounds, we need not — and so will not — address the
merits of Bit Bar's constitutional claims.
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III
Last up, our conclusion:
Having considered and rejected Bit Bar's arguments, we
affirm the district judge's dismissal of the suit as moot and award
Governor Baker his costs on appeal.6 See Fed. R. App. P. 39(a).
6 It goes without saying (though we say it anyway) that
"nothing prevents" Bit Bar from "seeking" injunctive and
declaratory relief "if" Governor Baker issues another order like
Order 43. See Lewis, 813 F.3d at 59.
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