MATTHEW BRACH V. GAVIN NEWSOM, No. 20-56291 (9th Cir. 2022)
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The en banc Ninth Circuit court dismissed as moot an appeal from the district court’s summary judgment in favor of California Governor Newsom and state officials in an action brought by a group of parents and a student alleging Defendants violated federal law when they ordered schools to suspend in-person instruction in 2020 and early 2021, at a time when California was taking its first steps of navigating the Covid-19 pandemic.
The en banc court held that this was a classic case in which, due to intervening events, there was no longer a live controversy necessary for Article III jurisdiction. Nor was there any effective relief that could be granted by the court. The parents had not brought a claim for damages; they sought a declaratory judgment that Governor Newsom’s executive orders, to the extent they incorporated guidance on school reopening, were unconstitutional. Relatedly, they sought an injunction against the 2020-21 Reopening Framework. But Governor Newsom has rescinded the challenged executive orders, and the 2020-21 Reopening Framework has been revoked. Schools now operate under the 2021-22 Guidance, which declares that all schools may reopen for in-person learning. And the parents conceded that, since April 2021, there has been no “state-imposed barrier to reopening for in-person instruction.” The actual controversy has evaporated.
The en banc court rejected Plaintiffs’ assertion that the case survived under two exceptions to mootness: the voluntary cessation exception and the capable of repetition yet evading review exception. Neither exception applied.
Court Description: Civil Rights. The en banc court dismissed as moot an appeal from the district court’s summary judgment in favor of California Governor Newsom and state officials in an action brought by a group of parents and a student alleging defendants violated federal law when they ordered schools to suspend in-person instruction in 2020 and early 2021, at a time when California was taking its first steps of navigating the Covid- 19 pandemic. The en banc court held that this was a classic case in which, due to intervening events, there was no longer a live controversy necessary for Article III jurisdiction. Nor was there any effective relief that could be granted by the court. The parents had not brought a claim for damages; they sought a declaratory judgment that Governor Newsom’s executive orders, to the extent they incorporated guidance on school reopening, were unconstitutional. Relatedly, they sought an injunction against the 2020-21 Reopening Framework. But Governor Newsom has rescinded the challenged executive orders, and the 2020-21 Reopening Framework has been revoked. Schools now operate under the 2021-22 Guidance, which declares that all schools may reopen for in-person learning. And the parents conceded that, since April 2021, there has been no “state-imposed barrier to reopening for in-person instruction.” The actual controversy has evaporated. Bottom line: there was no 4 BRACH V. NEWSOM longer any state order for the court to declare unconstitutional or to enjoin. The en banc court rejected plaintiffs’ assertion that the case survived under two exceptions to mootness: the voluntary cessation exception and the capable of repetition yet evading review exception. Neither exception saved their case. The dramatic changes from the early days of the pandemic, including the lifting of all restrictions on in- person learning, fundamentally altered the character of this dispute. The en banc court joined the numerous other circuit courts across the country that have recently dismissed as moot similar challenges to early pandemic restrictions. Dissenting, Judge Paez, joined by Judges Berzon, Ikuta, R. Nelson and Bress, stated that, mindful of the Supreme Court’s clear directives to California on this issue and the fact that Governor Newsom’s State of Emergency remains operative, he would hold that this case was not moot and affirm the district court on the merits. This case fit within the “capable of repetition, yet evading review” exception to mootness. The fact remained that the pandemic is not over. Governor Newsom has not relinquished his emergency powers, nor has the California Legislature stripped him of those powers. So long as Governor Newsom retains the specific power to impose similar restrictions, and the pandemic continues, Judge Paez would find this question “capable of repetition.” Because Judge Paez would not find this case moot, he briefly addressed the reasons why he would affirm the district court’s grant of summary judgment to the State on the parents’ substantive due process and equal protection claims. The parents had not demonstrated that distance learning failed to satisfy any basic educational standard. BRACH V. NEWSOM 5 Judge Paez further stated that the parents failed to plead their claim that the school closure orders violated their right to send their children to private school under Meyer v. Nebraska, 262 U.S. 390 (1923) and Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510 (1925). Judge Paez would therefore dismiss this portion of the appeal. Dissenting, Judge Berzon joined Judge Paez’s dissent in full. In particular, Judge Berzon agreed that the merits of the question of whether parents of children who attend private schools (and only those parents) have a right to access an in- person education for their children was waived by the plaintiffs and was not properly before this court. Because the majority of the three-judge panel nonetheless reached the issue and held that parents of children in private school have a substantive due process right to have their children attend in-person classes, including during a medical emergency, Judge Berzon wrote separately to dispel any suggestion that the waived issue could have possible merit were it to be raised in a later case. 6 BRACH V. NEWSOM
This opinion or order relates to an opinion or order originally issued on July 23, 2021.
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