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Ninth Circuit Clarifies Mootness Exceptions for Covid-19 Litigation

The Ninth Circuit on June 15, 2022 issued its long-awaited en banc decision in Brach v. Newsom, holding that the challenge to the California’s Covid-19 restrictions on in-person schooling is now moot.  The appeal arose from a challenge by parents to the State’s orders closing schools for in-person learning at the beginning of the pandemic.  The challenge was brought by several parents, including those with kids in public and private schools.  After the District Court had granted the State’s summary judgment on the merits, schools were allowed to reopen and the original restrictions were rescinded altogether.  In the initial appeal, the Court ruled that this did not render the matter moot, affirmed summary judgment as to the public school parents’ claims, and reversed summary judgment with respect to the private school parents’ claims.  On rehearing the matter en banc, the Ninth Circuit has now ruled that the challenge is moot and the appeal was dismissed on that basis.

The panel first explained that the case was moot because none of the challenged restrictions were still in effect.  The only question was whether two exceptions to the mootness doctrine could apply: (1) the voluntary cessation doctrine or (2) the capable of repetition yet evading review exception.  The Court explained that neither exception applied for the same reason: the State adequately established the challenged restrictions were not reasonably expected to recur—the State had passed emergency legislation for online schooling that had already automatically expired; the State never closed any schools after they reopened; and the State continued to allow in-person schooling even when later Covid-19 case waves (such as Omicron) skyrocketed.

While this will prove to be a key decision in addressing the mootness of other litigation over expired Covid-19 restrictions, the Brach decision does not provide any bright line rules.  Instead, the Court was focused on a very fact-specific determination of whether the restrictions at issue were likely to recur.  Whether other plaintiffs may be able to establish one of the exceptions to mootness in their cases will therefore depend on the specific facts about whether the challenged restrictions may be re-imposed.