DIMARTILE v. Erie County Department of Health, Mark C. Poloncarz, Defendants. (2021)

SUMMARY ORDER

Joe Durolek and Pamela Giglia, an engaged couple, Jenna DiMartile and Justin Crawford, a now-married couple, and David Shamenda, a minister, brought a constitutional challenge against New York regulations, issued in response to the COVID-19 outbreak in the state, that limited the number of attendees permitted at so-called “non-essential gatherings” — including weddings — to fifty. The district court granted Plaintiffs’ motion for a preliminary injunction against the gathering restriction. New York appealed. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

On appeal, Durolek and Giglia state that they no longer intend to hold a wedding while New York's COVID-19 gathering limitations are in effect, and that the appeal is therefore moot.¹ We agree. “A case becomes moot — and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of Article III [of the Constitution] — ‘when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome.’ ” Already, LLC v. Nike, Inc., 568 U.S. 85, 91, 133 S.Ct. 721, 184 L.Ed.2d 553 (2013) (quoting Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982)). To be sure, “the general rule [is] that voluntary cessation of a challenged practice rarely moots a federal case.” City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 284 n.1, 121 S.Ct. 743, 148 L.Ed.2d 757 (2001). For instance, defendants claiming to have mooted cases by ceasing challenged conduct bear “[t]he heavy burden” of making “it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Env. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (internal quotation marks omitted) (quoting United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968)).

However, the Supreme Court has concluded that Plaintiffs-Appellees, even if they cannot satisfy a court that the conduct animating their lawsuit is not reasonably likely to recur, may successfully moot a case if they have changed course and if there is no judgment below, adverse to their opponent, that would remain in effect were the case mooted. See City News, 531 U.S. at 283–84, 284 n.1, 121 S.Ct. 743; see also City of Erie v. Pap's A.M., 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000). Here, a determination of mootness would not saddle New York with the consequences of an unfavorable district-court decision because federal appeals courts’ “established practice” upon finding a case moot “is to reverse or vacate the judgment below and remand with a direction to dismiss,” United States v. Munsingwear, 340 U.S. 36, 39 & n.2, 71 S.Ct. 104, 95 L.Ed. 36 (1950), so as to “prevent the appellee from insulating a favorable decision from appellate review,” Russman v. Bd. of Educ. of Enlarged City Sch. Dist. of City of Watervliet, 260 F.3d 114, 122 (2d Cir. 2001); see also Pap's, 529 U.S. at 288–89, 120 S.Ct. 1382. Because Durolek and Giglia no longer intend to hold a wedding while New York's COVID-19 gathering restrictions are in effect (and the wedding of DiMartile and Crawford has already taken place), and because a mootness finding will not burden the state with an unreviewable adverse judgment, this appeal and the underlying claims of DiMartile, Crawford, Durolek and Giglia are moot. If Durolek and Giglia's intentions change, they may initiate a new action.²

We DISMISS the appeal as moot, VACATE the preliminary injunction, and REMAND to the district court with instructions to dismiss the claims of DiMartile, Crawford, Durolek and Giglia as moot.

FOOTNOTES

1.   Plaintiffs DiMartile and Crawford married while the preliminary injunction in this case was still in effect before the state was granted a stay pending appeal. The parties do not dispute that the completion of their wedding has therefore mooted their claims. Defendants-Appellants assert that the claims of Plaintiff Shamenda, an ordained Wesleyan minister and wedding officiant, are not at issue in this appeal, and Defendants-Appellees do not challenge that assertion. Below, Defendants questioned Shamenda's standing, and it is unclear from the complaint whether he was expected to have any involvement in the planned weddings of the two plaintiff couples. Moreover, his claims were based on the Free Exercise Clause of the First Amendment, which was not the basis of the preliminary injunction challenged on this appeal. Plaintiffs-Appellees do not argue that Shamenda's claims have any bearing on the mootness question before this Court, or on any other issue raised by either side in this appeal.

2.   As no party to the appeal addresses Shamenda's claims, those claims remain pending before the district court. We leave it to the district court in the first instance to address those claims, including any issue as to whether they present a case or controversy within the meaning of Article III of the United States Constitution.