20-3707
Reale v. Lamont
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
20th day of January two thousand twenty-two.
Present: ROSEMARY S. POOLER,
DENNY CHIN,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________________________
DANIEL REALE,
Plaintiff-Appellant,
v. 20-3707-cv
NED LAMONT,
Defendant-Appellee. 1
_____________________________________________________
Appearing for Appellant: Daniel Reale, pro se, Plainfield, CT.
Appearing for Appellee: Phillip Miller, Assistant Attorney General (Clare Kendall, Solicitor
General, and Alma R. Nunley, Assistant Attorneys General, on the
brief), for William Tong, Attorney General of the State of
Connecticut, Hartford, CT.
1
The Clerk of the Court is directed to amend the caption as above.
Appeal from two orders of the United States District Court for the District of Connecticut
(Hall, J.)
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the appeal is DISMISSED as moot.
Appellant Daniel Reale, proceeding pro se, appeals from the district court’s denial of a
preliminary injunction and motion for reconsideration. He and two others sued the Governor of
Connecticut under 42 U.S.C. § 1983 for allegedly violating their constitutional rights by
implementing executive orders due to the COVID-19 pandemic that, inter alia, limited the number
of people allowed at social gatherings. The plaintiffs moved for a preliminary injunction, which
the district court denied. They then moved for reconsideration, which the district court also denied.
Only Reale proceeds on appeal. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
We lack jurisdiction to review an appeal that is moot. Nat’l. Org. for Marriage, Inc. v.
Walsh, 714 F.3d 682, 692 (2d Cir. 2013). “A case is moot when the issues presented are no longer
live or the parties lack a legally cognizable interest in the outcome.” Tann v. Bennett, 807 F.3d 51,
52 (2d Cir. 2015) (internal quotation marks and citation omitted).
The executive orders that Reale complained of are no longer in effect. The most restrictive
of the social gathering rules was Executive Order (“EO”) No. 7N, which limited the number of
people at social gatherings to five. EO No. 7N was superseded by EO No. 7TT on May 29, 2020,
which permitted social gatherings of up to 10 people indoors and 25 people outdoors. 2 Thus,
Reale’s claim that he could not see his family in April and May 2020 because of the five-person
limit is now moot. To the extent Reale claimed his ability to worship was impaired by social
gathering limitations, EO No. 10D eliminated all capacity limitations for religious gatherings as
of March 19, 2021. 3 Finally, as of May 19, 2021, no store in Connecticut was required to adhere
to COVID-19 rules concerning social distancing, directional arrows, or number of patrons. 4 Thus,
the restrictions that Reale complained of no longer affect him.
Reale argues that the “capable of repetition yet evading review” exception to mootness
applies and revised his claims. See Van Wie v. Pataki, 267 F.3d 109, 113 (2d Cir. 2001). “A dispute
qualifies for that exception only if (1) the challenged action is in its duration too short to be fully
litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same
complaining party will be subjected to the same action again.” United States v. Sanchez-Gomez,
138 S. Ct. 1532, 1540 (2018) (internal quotation marks and citation omitted). Reale asserts that he
will be subjected to the same restrictions once COVID-19 numbers increase. But this assertion is
disproved by the fact that Connecticut has not reimposed restrictions despite the recent spike in
2
State of Connecticut, Exec. Or. No. 7TT (May 29, 2020), https://portal.ct.gov/-/media/Office-of-
the-Governor/Executive-Orders/Lamont-Executive-Orders/Executive-Order-No-7TT.pdf\
3
State of Connecticut, Exec. Or. No. 10D (Mar. 18, 2021), https://portal.ct.gov/-/media/Office-of-
the-Governor/Executive-Orders/Lamont-Executive-Orders/Executive-Order-No-10D.pdf
4
State of Connecticut, Connecticut COVID-19 Response, https://portal.ct.gov/Coronavirus/Covid-
19-Knowledge-Base/Reopen-plan (last visited Dec. 27, 2021).
2
cases. The recent increase in COVID-19 cases has not prompted the Governor to issue similar
executive orders closing businesses or limiting social gatherings. All types of businesses remain
open in Connecticut and no COVID-19 related restrictions exist on social gatherings or houses of
worship. 5 Cf. Dark Horse Indus. LLC v. Hochul, No. 20-2725-cv, 2021 WL 4538640 at *1 (2d
Cir. Oct. 5, 2021) (concluding that appeal challenging New York executive orders was moot
because orders were rescinded and have not been reimposed despite increase in COVID cases);
Lillbask ex rel. Mauclaire v. State of Conn. Dep’t of Educ., 397 F.3d 77, 87 (2d Cir. 2005)
(defendant satisfies his burden of establishing mootness by showing that possibility of recurrence
is merely “speculative”). Accordingly, Reale has not shown that this exception applies, and his
appeal remains moot.
“When a civil case becomes moot while an appeal is pending, it is the general practice of
an appellate court to vacate the unreviewed judgment granted in the court below and remand the
case to that court with directions to dismiss it.” Bragger v. Trinity Cap. Enter. Corp., 30 F.3d 14,
17 (2d Cir. 1994) (citations omitted). This procedure “eliminates a judgment that was made
unreviewable due to happenstance and which, if left undisturbed, might prejudice a party whose
appeal as of right was precluded due to the intervening mootness. By eliminating the judgment
that has become moot the rights of all the parties are preserved.” Id. We therefore dismiss the
appeal as moot and remand for the district court to vacate its prior orders
We have considered the remainder of Reale’s arguments and find them to be without merit.
Accordingly, we DISMISS the appeal as moot and REMAND for the district court to vacate its
orders denying a preliminary injunction and reconsideration.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
5
See State of Connecticut, Latest COVID-19 Guidance, https://portal.ct.gov/Coronavirus/Covid-
19-Knowledge-Base/Latest-COVID-19-Guidance (last visited Dec. 27, 2021); State of
Connecticut, Religious Gatherings, https://portal.ct.gov/Coronavirus/Covid-19-Knowledge-
Base/Religious-Gatherings (last visited Dec. 27, 2021).
3