Cynthia Stepien v. Governor of New Jersey ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 21-3290
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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
_____________________________________
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
_____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 16, 2022
(Filed: April 6, 2023)
Before: KRAUSE, BIBAS, and RENDELL, Circuit Judges.
_________
O P I N I O N*
_________
RENDELL, Circuit Judge.
When the COVID-19 pandemic struck, New Jersey Governor Philip Murphy man-
dated 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 Dis-
trict 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 be-
tween 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
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
We write primarily for the parties and so we recite only the facts essential to our decision.
2
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 educa-
tion 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 Amend-
ments 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 ap-
peal.
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.”
3
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. Gov-
ernor 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 “ca-
pable 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 chal-
lenged 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
4
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 contro-
versy. Id. at 777–81. All of that made it “absolutely clear” that the State’s “allegedly wrong-
ful 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
2
In the supplemental briefing, Defendants argue Plaintiffs waived any reliance on volun-
tary cessation. Under ordinary circumstances, we would agree, but we asked the parties to
brief mootness generally, and that includes all scenarios that militate against mootness. But
as we explain below, it makes no difference because the facts before us show that voluntary
cessation of the challenged conduct does not rescue the case from mootness.
5
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 man-
date and Plaintiffs’ objections to it against the backdrop of the grave public health condi-
tions 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 man-
date’s particulars.” Id. But as we explained in Clark, that fit is no longer the same: vac-
cines, 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 man-
dates 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 dif-
ferent controversy between the parties . 3
Plaintiffs seek refuge in the concept of voluntary cessation and the “capable of rep-
etition yet evading review” exception to mootness. They also try to distinguish Clark based
3
Moreover, Plaintiffs misplace their reliance on Roman Cath. Diocese of Brooklyn v.
Cuomo, 141 S. Ct. 63 (2020) (per curiam). There, in an opinion issued on November 25,
2020, the Court split on the need for relief. The majority viewed the situation as involving
a “constant threat” that gathering restrictions would be reimposed, id. at 68, while the Chief
Justice and the dissenters believed it was unwise to issue “[a]n order telling the Governor
not to do what he’s not doing,” id. at 75 (Roberts, C.J., dissenting). This case presents the
latter situation.
6
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, de-
fendants’ burden of showing mootness is heavy.” Hartnett, 963 F.3d at 307 (internal cita-
tion 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. Beyond all that, we disagree that this case presents anything
like Roman Catholic Diocese and the constantly shifting restrictions that troubled the Su-
preme Court there. 4 Thus, we conclude that the termination of the mandate was not the
4
In Roman Catholic Diocese, the state imposed a complex regime of restrictions on gath-
erings that differed by region, and the state rapidly relaxed and tightened them in response
to changing health conditions. 141 S. Ct. at 68. Those factors were enough to convince the
Supreme Court that dropping the restrictions did not moot the case because history showed
they could be reimposed at any time and in an unpredictable way. See id. at 68–69. But that
was a different situation than the one in this case: the restrictions here were uniform, De-
fendants have not reimposed the school mask requirement once since rescinding it, and
even a major uptick in cases during the Omicron wave did not persuade Defendants to act
otherwise.
7
kind that triggers our skepticism of a party’s claim of mootness due to voluntary cessation
of the allegedly wrongful behavior. See Hartnett, 963 F.3d at 306–07.
Plaintiffs fare no better under the exception to mootness for acts capable of repeti-
tion yet evading review. To invoke the exception, Plaintiffs must show “there is a reason-
able expectation that the same complaining party will be subject to the same action again,”
Hamilton, 862 F.3d at 335 (quotation omitted), and “[t]he action that must be repeatable is
the precise controversy between the parties.” Planned Parenthood of Wis., Inc. v. Azar,
942 F.3d 512, 517 (D.C. Cir. 2019) (internal quotation marks omitted). Our reasoning in
Clark does double duty here because, at bottom, this exception mirrors voluntary cessation
by testing whether there is a reasonable expectation the challenged behavior will recur.
See, e.g., Brach v. Newsom, 38 F.4th 6, 15 (9th Cir. 2022) (en banc) (“Our rationale for
rejecting [the capable of repetition] exception mirrors much of our analysis regarding . . .
voluntary cessation[.]”); Resurrection Sch., 35 F.4th at 530 (finding that the capable of
repetition exception “inapposite for largely the same reasons” that voluntary cessation did
not counsel against a finding of mootness). And as we have explained, there is no such
expectation here.
Finally, we conclude that Plaintiffs’ remaining request for an order compelling De-
fendants to order the districts not to issue their own mandates is also nonjusticiable. For
one thing, Plaintiffs lack Article III standing. “To establish Article III standing, a plaintiff
must demonstrate (1) an injury-in-fact, (2) a sufficient causal connection between the in-
jury and the conduct complained of, and (3) a likelihood that the injury will be redressed
by a favorable decision.” Finkelman v. Nat’l Football League, 810 F.3d 187, 193 (3d Cir.
8
2016) (internal quotation marks omitted). But Plaintiffs are hard-pressed to show an injury
stemming from district-specific mandates that districts haven’t even drawn up, let alone
put in place. Instead, they point to “conjectural or hypothetical” future mandates, not ones
that are “actual or imminent.” Id. (quoting Blunt v. Lower Merion Sch. Dist., 767 F.3d 247,
278 (3d Cir. 2014)). And as we have already explained, the drastic improvement in COVID
mitigation measures since the pandemic’s early days has led many New Jersey school dis-
tricts to hold off on new mandates—even as Omicron and other variants surged. That
makes any future mandates unlikely and leaves Plaintiffs to “rely on a chain of contingen-
cies or mere speculation” that can’t support standing. Plaintiffs don’t show that future man-
dates are “imminent,” so they fail to state a cognizable injury-in-fact sufficient for Article
III standing. Id. (quotation omitted).
Yet even if Plaintiffs could show an injury-in-fact, they would still fail to satisfy the
causation element of Article III standing because it is not clear they could trace that injury
“to the challenged action of the [D]efendant[s]” rather than “the independent action of
some third party [that is] not before the court.” Id. (quoting Toll Bros., Inc. v. Twp. of
Readington, 555 F.3d 131, 137–38 (3d Cir. 2009)). Plaintiffs named only the Governor,
the Commissioner of Education, and the Commissioner of Health as Defendants. But under
New Jersey law, school boards appear to have independent power to enact mask mandates
given their broad authority over “the government and management” of in-district schools.
N.J. Stat. Ann. § 18A:11-1(c). It follows that any injury to Plaintiffs from district-specific
mandates would be fairly traceable not to Defendants’ conduct, but to “unfettered choices
made by independent actors not before the court,” namely the school districts. R.K. v. Lee,
9
53 F.4th 995, 999 (6th Cir. 2022) (internal citation omitted). And as we recognized in
Clark, the Defendants’ mere “supervisory authority” would not make this case justiciable.
See Clark, 53 F.4th at 780–81.
Relatedly, Plaintiffs’ request for injunctive and declaratory relief to remedy future
district-imposed mandates is not ripe for our review. Ripeness examines whether an action
is premature and requires courts to abstain from deciding a dispute until it becomes “suffi-
ciently concrete to satisfy the constitutional and prudential requirements of the doctrine.”
Sherwin-Williams Co. v. Cnty. of Delaware, Pa., 968 F.3d 264, 272 (3d Cir. 2020) (internal
quotation marks omitted). But “[a] dispute is not ripe for judicial determination if it rests
upon contingent future events that may not occur as anticipated, or indeed may not occur
at all.” Id. (quoting Wyatt, V.I., Inc. v. Gov’t of V.I., 385 F.3d 801, 806 (3d Cir. 2004))
(cleaned up). And even though parties “seeking declaratory relief need not wait until the
harm has actually occurred to bring the action[,]” they still must show that the future event
has a “real and substantial” probability of happening and that it is of “sufficient immediacy
and reality to warrant the issuance of a declaratory judgment.” Id. (quotation marks omit-
ted).
Simply put, Plaintiffs’ claims focused on future district-imposed mandates are not
ripe for largely the same reasons they fail to show an injury-in-fact: the claims require us
to speculate about whether the districts will ever impose mask mandates and what those
mandates would look like. See id. Yet individual New Jersey school districts may never
impose their own mask mandates in the future. And that seems probable considering that
the vast majority of districts did not re-implement such mandates as COVID variants
10
surged. The upshot is Plaintiffs offer nothing but uncertainty about whether any New Jersey
school district will impose a mask mandate in the future. Until the threat of such a mandate
becomes “sufficiently concrete,” Plaintiffs’ constitutional challenge is premature and thus
“unfit for judicial resolution.” Id. (quotation marks omitted).
Because Plaintiffs cannot establish the existence of a case or controversy that arises
from future district-imposed mask mandates, their related requests for injunctive and de-
claratory relief are nonjusticiable.
IV.
Plaintiffs seek “an insurance policy that” there will “never ever [be another school
mask mandate], even in the face of yet another unexpected emergency or contin-
gency.” Brach, 38 F.4th at 9. But the federal courts do not insure against such a possibility.
Plaintiffs’ case is moot and there is no impending threat of harm or recurrence of harm.
For those reasons, we will affirm the order of the District Court.
11