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, and orders setting
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.
The issue before us is whether those events moot this case. We hold that they do. "[A]n appeal is moot in the 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."
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.
The "capable of repetition yet evading review" exception to mootness also does not apply. That exception is "narrow" and "applies only in exceptional situations,"
A plaintiff bears the burden to show that the "capable of repetition yet evading review" exception applies,
Thus, no exception to mootness applies, and we will dismiss the appeal.
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.
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 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."
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.
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
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, ___ U.S. ___, 136 S.Ct. 1969, 1976, 195 L.Ed.2d 334 (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 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
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.