with whom
MARTIN, COLE, and CLAY, Circuit Judges, join, dissenting.This court should grant Biros’s petition for rehearing en banc. The panel’s order in Biros v. Strickland, 588 F.3d 921, No. 09-4300, 2009 WL 4061632 (6th Cir. Nov. 25, 2009), which held Biros’s § 1983 challenge to Ohio’s lethal-injection protocol moot, directly contradicts binding precedent regarding mootness in cases where a defendant has voluntarily ceased the challenged activity. In finding Biros’s case moot, the panel erroneously construed his challenge to the Ohio lethal-injection protocol as involving solely a challenge to the *926use of the particular three-drug cocktail, as opposed to the broader challenge as articulated within Biros’s complaint and subsequent pleadings. Moreover, to the extent that portions of Biros’s initial claim are no longer implicated by the new protocol, the panel improperly concluded that there is no reasonable expectation that the alleged violation will recur and failed to hold the State to its formidable burden of showing mootness. As these holdings run contrary to binding precedent, this case presents legal questions of exceptional importance and grave consequence.
“Simply stated, a case is moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (quotation omitted). And it has been long established that generally “voluntary cessation of a challenged practice does not moot a case.” League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 473 (6th Cir.2008) (quotation omitted) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); Northland Family Planning Clinic, Inc. v. Cox, 487 F.3d 323, 342-43 (6th Cir.2007)). “Rather, voluntary conduct moots a case only in the rare instance where ‘subsequent events ma[k]e it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,’ ” id. (quoting Akers v. McGinnis, 352 F.3d 1030, 1035 (6th Cir.2003)), and “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Davis, 440 U.S. at 631, 99 S.Ct. 1379. “When both conditions are satisfied it may be said that the case is moot because neither party has a legally cognizable interest in the final determination of the underlying questions of fact and law.” Id. (emphasis added).
In this case, the Defendant has not met its burden to show either condition, and the panel’s conclusion to the contrary directly conflicts with prior precedent. First, based on the information that this court has regarding Ohio’s new lethal-injection protocol, there is no indication that it “completely and irrevocably eradicated the effects” of Biros’s alleged violation. Id. Not only does Biros challenge the use of the particular drugs — the only fact upon which the panel bases its order — but he has maintained continually that Ohio’s procedures are “administered by inadequately trained personnel, who use inappropriate equipment and methods,” Compl. at 3 (R. 127), and has also challenged the use of intravenous lines for the administration of the procedure, regardless of the drug. Id. at 11. In fact, in paragraph 28 of his Complaint, Biros challenges the use of the three-drug protocol as well as “any other procedures, practices, policies, protocols and/or means for accomplishing [his] execution by lethal injection that are or might be adopted by Defendants for use at [his] contemplated execution and which are the same as or similar to the [three-drug] protocol.” Id. at 10. In short, although the drugs might be different, the procedure is still initiated via intravenous methods with the same personnel, and Ohio has presented no evidence that Biros’s complaints regarding the personnel training and intravenous introduction have been resolved.
Second, to the extent that the new protocol does not implicate the challenge Biros made to the specific drugs, his claim is not moot. Although there is little indication that the State will continue to use the initially challenged three-drug cocktail now that it has developed a new procedure, in analyzing whether Biros’s claim is moot, we must consider whether anything would prevent the State from doing so. See Akers, 352 F.3d at 1035. The promulgation and implementation of the lethal-injection *927protocol is solely within the discretion of the Ohio Department of Rehabilitation and Correction (“ODRC”) and it is “not established by statute or administrative rule or regulation.” Cooey v. Strickland, 479 F.3d 412, 426 (6th Cir.2007) (Gilman, J., dissenting). “The ODRC can change the protocol at any time, regardless of whether an inmate is scheduled for execution,” and it has indeed done so. Id. This Court has held previously that a challenge to a Michigan Department of Corrections Rule is not moot where “the promulgation of [the] rule[ ] appears to be solely within the discretion of the MDOC, [and] there is no guarantee that MDOC will not change back to its older, stricter Rule as soon as th[e] action terminates.” Akers, 352 F.3d at 1030.
In this case, other than providing the court with its word, the State has presented no evidence that it will not use any of the challenged drugs in the future or established that it is “absolutely clear” that the alleged violation will never recur. Brunner, 548 F.3d at 473. More broadly, the panel appears to allow Ohio to moot the case by simply volunteering to cease the challenged activity. Although we have no reason to doubt Ohio’s sincerity, determining mootness based on a litigant’s statement that it has no reason to resume the challenged activity, no matter how earnest, is not part of the mootness analysis. See United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968) (finding a case “not technically moot” where the court only had the “appellees’ own statement that it would be uneconomical for them to engage in [the challenged activity in the future], and concluding that ‘[s]uch a statement, standing alone, cannot suffice to satisfy the heavy burden of persuasion which we have held rests upon those in appellees’ shoes’ ”).
The panel highlighted the fact that if Biros wants to challenge the new protocol there is nothing preventing him from bringing that suit prior to his execution, on December 8, 2009, which is less than one week from today. It is true that nothing prevents Biros from filing another § 1983 action to address specifically the drugs involved in the new one-drug protocol and the “back-up” plan. As highlighted above, however, much of his new complaint would necessarily mirror the one in the instant case. There is no sense in deeming moot portions of a claim and then encouraging Biros to bring them again.
As a further point, Judge Sutton’s belief that even assuming a live controversy Biros would be unable to satisfy the requirements warranting the continuance of the district court’s stay and would be in the same position as he is now does nothing to persuade me that this court should let stand a published panel opinion that is in blatant disregard of prior Circuit and Supreme Court precedent regarding mootness. Fidelity to the law cannot be based solely on outcomes, but hinges on analysis. The Biros panel opinion was not based on whether the stay was warranted after an analysis of the traditional stay factors and whether Biros could demonstrate a “likelihood of success” on the merits of his underlying § 1983 action. If the panel had decided to vacate the district court’s stay on grounds other than mootness then this would be a different case. But as the opinion stands, it does nothing other than confuse well-established precedent in an effort to achieve a particular outcome in the most perfunctory manner possible.
I do not adopt Judge Sutton’s conclusion that Biros would be unable to satisfy the requirements of a stay and see no need to pass judgment on the merits of that argument because it is not the basis upon which the panel decided Biros’s case. But *928I cannot help but notice that in discussing whether Biros is likely to succeed on the merits, Judge Sutton notes that Biros has argued that “the old procedure and the new one share a common problem: poor training by the State of the relevant medical staff and the use of EMTs in implementing the protocol.” This statement seemingly contradicts the Biros panel’s conclusion that the new protocol completely mooted Biros’s claim under the previous one.
In sum, the panel committed an “error of exceptional public importance” that “directly conflicts with prior ... precedent’ ” in holding Biros’s case moot and vacating the district court’s stay of execution. Bell v. Bell, 512 F.3d 223, 250 (6th Cir.2008) (Moore, J., dissenting) (citing 6 Cir. R. 35(c)). Six judges of this court have voted to rehear this case. The rush to execution in this case is totally unwarranted, and the panel’s justification is unsupportable.