PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 20-2936
______________
COUNTY OF BUTLER; COUNTY OF FAYETTE;
COUNTY OF GREENE; COUNTY OF WASHINGTON;
NANCY GIFFORD; MIKE GIFFORD, husband and wife
doing business as Double Image Styling Salon; PRIMA
CAPELLI INC, a Pennsylvania Corporation; MIKE KELLY;
MARCI MUSTELLO; DARYL METCALFE; TIM
BONNER; STEVEN SCHOEFFEL; PAUL F. CRAWFORD,
trading and doing business as Marigold Farm; CATHY
HOSKINS, trading and doing business as Classy Cuts Hair
Salon; RW MCDONALD & SONS INC; STARLIGHT
DRIVE IN LLC, a Pennsylvania Corporation; SKYVIEW
DRIVE IN LLC, a Pennsylvania Limited Liability Company
v.
GOVERNOR OF PENNSYLVANIA; SECRETARY
PENNSYLVANIA DEPARTMENT OF HEALTH,
Appellants
______________
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 2-20-cv-00677)
District Judge: Honorable William S. Stickman, IV
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Argued July 22, 2021
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Before: CHAGARES, JORDAN, and SHWARTZ, Circuit
Judges
(Filed: August 11, 2021)
J. Bart DeLone [ARGUED]
Sean A. Kirkpatrick
Office of Attorney General of Pennsylvania
Strawberry Square
Harrisburg, PA 17120
Daniel B. Mullen
Office of Attorney General of Pennsylvania
1251 Waterfront Place
Mezzanine Level
Pittsburgh, PA 15222
Claudia M. Tesoro
Office of Attorney General of Pennsylvania
1600 Arch Street, Suite 300
Philadelphia, PA 19103
Counsel for Appellants
2
Daniel M. Vannella
Office of Attorney General of New Jersey
Division of Law
25 Market Street
Hughes Justice Complex
1st Floor, West Wing
Trenton, NJ 08625
Counsel for Amicus State of New Jersey
Thomas E. Breth
Ronald T. Elliott
Thomas W. King, III [ARGUED]
Jordan P. Shuber
Dillon McCandless King Coulter & Graham
128 West Cunningham Street
Butler, PA 16001
Counsel for Appellees
Lawrence J. Joseph
1250 Connecticut Avenue, N.W., Suite 700-1A
Washington, DC 20036
Counsel for Amicus Eagle Forum Education & Legal
Defense Fund
Christian D. Wright
Office of Attorney General of Delaware
Delaware Department of Justice
820 North French Street
Carvel Office Building
Wilmington, DE 19801
Counsel for Amicus State of Delaware
3
Anthony R. Holtzman
K&L Gates
17 North Second Street
18th Floor
Harrisburg, PA 17101
Counsel for Amici Majority Leader of the House of
Representatives, Pennsylvania Administrator of the
House Majority Caucus, Pennsylvania Chair of the
House Appropriations Committee, Pennsylvania Chair
of the House Majority Caucus, Pennsylvania Chair of
the House Policy Committee, Pennsylvania House of
Representatives Majority Whip, Pennsylvania
Secretary of the House Majority Caucus, Speaker of
the Pennsylvania House of Representatives
Matthew H. Haverstick
Joshua J. Voss
Kleinbard
Three Logan Square
1717 Arch Street, 5th Floor
Philadelphia, PA 19103
Counsel for Amici Pennsylvania Senate Republican
Caucus, Pennsylvania House Republican Caucus
David R. Kott [ARGUED]
McCarter & English
100 Mulberry Street
Four Gateway Center, 14th Floor
Newark, NJ 07102
Counsel for Amicus New Jersey Business & Industry
Association
4
Jeffrey M. Schwab
Liberty Justice Center
141 West Jackson Street, Suite 1605
Chicago, IL 60604
Counsel for Amicus Liberty Justice Center
Shawn M. Rodgers
Goldstein Law Partners
11 Church Road
Hatfield, PA 19440
Counsel for Amicus Commonwealth Partners Chamber
of Entrepreneurs
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OPINION OF THE COURT
______________
SHWARTZ, Circuit Judge.
On various dates between March and July 2020, the
Governor and Secretary of Health of the Commonwealth of
Pennsylvania (“Defendants”) entered orders to address the
COVID-19 pandemic. Plaintiffs, comprised of Pennsylvania
citizens, elected officials, and businesses, challenge three pairs
of directives: stay-at-home orders, business closure orders,
5
and orders setting congregation limits in secular settings. 1 The
United States District Court for the Western District of
Pennsylvania concluded that the orders violated the United
States Constitution, County of Butler v. Wolf, 486 F. Supp. 3d
883, 891 (W.D. Pa. 2020), and Defendants appealed.
While the appeal was pending, circumstances changed.
On the health front, society has learned more about how
COVID-19 spreads and the efficacy of masks, therapeutics
have been developed, and vaccines have been manufactured
and distributed. In fact, more than 60% of Pennsylvanians
have received a COVID vaccine.
There also have been changes on the legal front. An
amendment to the Pennsylvania Constitution and a concurrent
resolution of the Commonwealth’s General Assembly now
restricts the Governor’s authority to enter the same orders. Pa.
Const. art. IV § 20(d); H.R. 106, 2021 Gen. Assemb., Reg.
Sess. (Pa. 2021) (concurrent resolution terminating the
Governor’s March 6, 2020, proclamation of disaster
emergency, as amended and renewed). In addition, the
challenged orders have expired by their own terms.
I2
The issue before us is whether those events moot this
case. We hold that they do. “[A]n appeal is moot in the
1
Each pair of directives consisted of substantially
identical orders, one issued by the Governor and the other
issued by the Secretary of Health.
2
The District Court had subject matter jurisdiction over
this action pursuant to 28 U.S.C. §§ 1331 and 1343. We have
6
constitutional sense only if events have taken place during the
pendency of the appeal that make it impossible for the court to
grant any effectual relief whatsoever.” In re World Imports
Ltd., 820 F.3d 576, 582 (3d Cir. 2016) (citation omitted). The
parties agree that the Governor’s orders are no longer in effect
and that he has been stripped of his power to unilaterally act in
connection with this pandemic. As a result, the “law no longer
provides [him] a mechanism” to “repeat the alleged harm.”
Rendell v. Rumsfeld, 484 F.3d 236, 242 (3d Cir. 2007).
Moreover, the Secretary’s orders have expired and there is
consequently no relief that this Court can grant concerning
them. Thus, the case is moot.
No exception to mootness applies. As Plaintiffs have
conceded, the voluntary cessation doctrine does not apply here
because the orders expired by their own terms and not as a
response to the litigation. See Trump v. Hawaii, 138 S. Ct. 377
(2017) (Mem.) (stating that because the orders suspending the
entry of aliens and refugees “expired by their own terms[,] the
appeal no longer presents a live case or controversy” (alteration
and quotation marks omitted)); Spell v. Edwards, 962 F.3d
175, 178-79 (5th Cir. 2020) (observing that an expired order is
“off the books” and so “there is nothing injuring the plaintiff
and, consequently, nothing for the court to do”). It is
conceivable that the expiration of the executive orders could be
opportunistically timed to avoid an unfavorable adjudication,
but we have no basis to conclude that has happened here. On
the contrary, the Secretary maintained her orders for several
months after Plaintiffs challenged their constitutionality, and
appellate jurisdiction under 28 U.S.C. § 1291, whether or not
this case is moot. See Hartnett v. Pa. State Educ. Ass’n, 963
F.3d 301, 305 (3d Cir. 2020).
7
the orders expired after more than half of all adults in
Pennsylvania were vaccinated. We generally presume that
government officials act in good faith, and we will not depart
from that practice under these circumstances. See Marcavage
v. Nat’l Park Serv., 666 F.3d 856, 861-62 (3d Cir. 2012).
The “capable of repetition yet evading review”
exception to mootness also does not apply. That exception is
“narrow” and “applies only in exceptional
situations,” Hamilton v. Bromley, 862 F.3d 329, 335 (3d Cir.
2017), where “(1) the challenged action is in its duration too
short to be fully litigated prior to cessation or expiration, and
(2) there is a reasonable expectation that the same complaining
party will be subject to the same action again,” Id. There must
be more than a theoretical possibility of the action occurring
against the complaining party again; it must be a reasonable
expectation or a demonstrated probability. Murphy v. Hunt,
455 U.S. 478, 482 (1982).
A plaintiff bears the burden to show that the “capable of
repetition yet evading review” exception applies, see Belitskus
v. Pizzingrilli, 343 F.3d 632, 648 (3d Cir. 2003) (placing the
burden on the party seeking to have their claim excepted from
mootness based on the “capable of repetition yet evading
review” exception); N.J. Turnpike Auth. v. Jersey Cent. Power
& Light, 772 F.2d 25, 33 (3d Cir. 1985) (“It is the burden of
the moving party to establish that the issue is ‘capable of
repetition yet evading review.’”). Plaintiffs have not carried
that burden. Plaintiffs have pointed only to the fact that the
Secretary of Health still claims the power to issue orders of the
sort before us now. That observation, however, does not
satisfy both elements of the test. The executive orders before
us were the subject of a full evidentiary record developed and
8
considered on an expedited basis. Hence, they were not of too
short a life to be reviewed. 3 Nor can we say that there is a
reasonable expectation that the same complaining parties will
be subject to the same orders again. Defendants have
represented that the public health landscape has so
fundamentally changed that “what we were facing in this case
is not what you would be facing going forward,” Oral
Argument at 5:30-6:06, 11:47-11:59, and, though public health
authorities continue to provide new guidance, Plaintiffs here
have given us little reason to disbelieve that representation.
Thus, no exception to mootness applies, and we will
dismiss the appeal.
3
Whether, as a general matter, orders functionally
evade review when they are of sufficiently short duration that
they cannot be addressed through the appellate process is not
something we need to consider here, since Plaintiffs’ argument
fails on the second prong of the “capable of repetition yet
evading review” test, as described herein. Cf. Brach v.
Newsom, -- F.4th --, 2021 WL 3124310, at *9 (9th Cir. July
23, 2021) (“Were California again to enforce a distance-
learning mandate on Plaintiffs’ schools, by the time a future
case challenging the new mandate could receive complete
judicial review, which includes Supreme Court review, the
State would likely have again changed its restrictions before
that process could be completed. Effective relief likely could
not be provided in the event of any recurrence, which makes
this a paradigmatic case for applying the doctrine of “capable
of repetition, yet evading review.”).
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II
When a case becomes moot while an appeal is pending,
appellate courts generally follow the “established practice” of
vacating a district court’s judgment with directions to dismiss.
See United States v. Munsingwear, 340 U.S. 36, 39-40 (1950);
Khodara Env’t, Inc. ex rel. Eagle Env’t L.P. v. Beckman, 237
F.3d 186, 194 (3d Cir. 2001). Guided by considerations of
judicial fairness, the Supreme Court in Munsingwear observed
that a judgment that is “unreviewable because of mootness”
should not “spawn[] any legal consequences” for the party who
sought reversal on appeal. 340 U.S. at 41. A directive to
vacate a judgment under Munsingwear is an exercise of
discretion that should occur “only after a consideration of the
equities and the underlying reasons for mootness.” Humphreys
v. Drug Enf’t Admin., 105 F.3d 112, 114 (3d Cir. 1996). In
this regard, courts consider whether the action became moot
due to the appealing party’s own conduct or circumstances
beyond the party’s control. U.S. Bancorp Mortg. Co. v.
Bonner Mall P’ship, 513 U.S. 18, 24-25 (1994); see also
Rendell, 484 F.3d at 242 (vacating the judgment because
“mootness . . . occurred through happenstance—circumstances
not attributable to the parties” (citation and quotation marks
omitted)). Indeed, even in circumstances where claims
challenging legislation become moot due to the legislative
body’s subsequent amendment, vacatur is appropriate if there
is no evidence that the change was made with an intent to
manipulate the judicial system. See Khodara, 237 F.3d at 195.
Here, the claims became moot for reasons outside the
parties’ control and, even assuming they did not, there is no
evidence that Defendants intended to manipulate the judicial
system by allowing the orders to expire. Instead, the
10
challenges to the Governor’s orders became moot as a result of
the vote of Pennsylvania residents and a concurrent resolution
of the General Assembly. The claims against the Secretary
became moot because the challenged orders expired by their
own terms, which is not an action on this record that reflects
an attempt to “manipulat[e] . . . the legal system, or . . . erase
an unfavorable precedent through seeking vacatur.” Lightner
ex rel. NLRB v. 1621 Route 22 W. Operating Co., LLC, 729
F.3d 235, 238 (3d Cir. 2013) (citation and quotation marks
omitted). As a result, following Munsingwear, we will vacate
the judgment and remand to the District Court with instructions
for it to dismiss the Complaint as moot. See Planned
Parenthood Ctr. for Choice v. Abbott, 141 S. Ct. 1261 (2021)
(Mem.); Slatery v. Adams & Boyle, P.C., 141 S. Ct. 1262,
1262-63 (2021) (Mem.).
III
For the foregoing reasons, we will dismiss the appeal,
vacate the judgment, and remand with instructions for the
District Court to dismiss the Complaint as moot.
11
County of Butler, et al. v. Governor of Pennsylvania, et al.,
No. 20-2936
Jordan, J., concurring
_________________________________________________
I join my colleagues’ opinion in full but write separately
to note two things I think worth mentioning. First, the question
of mootness in this case is not, to my mind, a simple or easy
one. The Governor’s emergency powers have been reduced
and the immediate sense of emergency has abated to a large
degree, but both in reported public statements and in argument
before us, “[t]he Wolf administration maintains that dissolving
the disaster emergency does not affect a health secretary’s
disease-prevention authority to issue mask-wearing and stay-
at-home orders or shut down schools and nonessential
businesses.” Marc Levy, Lawmakers Vote to End Emergency
Declaration, Extend Waivers, Associated Press (June 10,
2021), available at https://apnews.com/article/pa-state-wire-
health-coronavirus-pandemic-government-and-politics-
f3980f25e76458063e1a4629f874c56a. (See audio recording
of oral argument held on July 22, 2021 at 2:53-3:55
(https://www2.ca3.uscourts.gov/oralargument/audio/20-
2936CountyofButlerv.GovernorofPA.mp3).) Whether that
position is legally sound is not before us and I make no
comment on it. The point is that the Defendants-Appellants in
this case – Governor Wolf and the Commonwealth’s Secretary
of Health – have taken that position, so the possibility of future
executive orders of the type challenged here is not
fanciful. But such orders would have to be just that – in the
future – because it is undisputed that the challenged orders
have all expired, and a legal remedy aimed at those particular
orders is, by definition, impossible. The case is thus moot,
1
unless one of the two well-known exceptions to mootness
applies.
As described in the Court’s opinion today, one of those
exceptions is found in the “voluntary cessation” doctrine. If
the person responsible for the challenged action stops it but can
readily start it again, the dispute can rightly be said to still be
live. But, as also noted in the Court’s opinion, the Plaintiffs
conceded at oral argument that the voluntary cessation doctrine
does not apply in this case. (Id. at 51:57-54:12.)
That leaves the other exception to mootness, which
reaches behavior that is capable of repetition yet evading
review. I agree with my colleagues that the Plaintiffs have
failed to show that the orders at issue satisfy the requisites for
application of that doctrine. In particular, I doubt that “there is
a reasonable expectation that the same complaining part[ies]
will be subject to the same action again.” United Steel Paper
& Forestry Rubber Mfg. Allied Indus. & Serv. Workers Int’l
Union v. Virgin Islands, 842 F.3d 201, 208 (3d Cir. 2016)
(quoting Kingdomware Techs., Inc. v. United States, 136 S. Ct.
1969, 1976 (2016)). The Plaintiffs insist that this case is not
moot because the orders at issue are indeed capable of
repetition yet evading review, but we have only their
speculation that the same kind of heavily restrictive orders will
be issued once more. Given the recent, wide-spread reporting
that the Delta variant of the COVID-19 virus is causing
increased concern among many public health authorities, the
Plaintiffs’ position ought not be rejected out of hand, and it has
not been. Nevertheless, as noted in our opinion today, we have
been given little reason to doubt the representations by the
Governor and Secretary that the public health circumstances
have changed so dramatically since the time the challenged
2
orders were entered that there is no reasonable expectation that
they will be re-imposed. So the case is over.
Which leads to the second and final point I want to
make. The Plaintiffs have argued this case with an
understandable vigor, believing, as they obviously do, that
fundamental rights are at stake and were not properly respected
by Pennsylvania’s governmental officials. Without in anyway
signaling a view on the merits – something I and the panel have
assiduously avoided doing – I note simply that our ruling today
should not be read as reflecting a lack of appreciation for the
feelings generated by this case, nor as indicating a failure to
understand that there are real-world consequences flowing
from governmental responses to the unprecedented (at least in
our lifetime) pandemic we are yet working our way through.
The legal arguments of the Plaintiffs, of the elected and
appointed officials on the other side of the “v.”, and of the
amici aligned on either side have all been carefully considered,
with full sympathy for the parties’ good faith and sincerity. For
all of that, though, a merits decision cannot be given because
there is simply no longer a case or controversy to be decided.
The boundaries of our jurisdiction are set, and the case-or-
controversy requirement embedded in Article III of the
Constitution serves as a bulwark against judicial overreach.
That is to everyone’s benefit, even if it can at times be
frustrating to those who have worked for and want an answer
from the courts.
We are not through with COVID, and the unexpected
may yet occur, but, under the rules governing our jurisdiction,
considering the merits of this appeal or leaving the District
Court’s decision extant would be a mistake. I therefore concur
in the opinion and judgment of the Court.
3