Third Circuit Tosses Case Against Pennsylvania COVID Restrictions

Steven D. Schwinn, University of Illinois Chicago School of Law

The Third Circuit ruled yesterday that a case challenging COVID orders of Pennsylvania's governor and secretary of health was moot. The court then vacated the lower court's ruling in favor of the plaintiffs under Munsingwear.

The case, County of Butler v. Governor of Pennsylvania, challenged the defendants' stay-at-home orders, business closure orders, and orders setting congregation limits in secular settings. The district court ruled that the orders violated the Constitution.

But while the appeal was pending, things changed. An amendment to the state constitution and a concurrent resolution of the General Assembly now limit the governor's authority to issue these orders. And the orders expired by their own terms.

The court ruled that these changes mooted the case, and that no exception to mootness applied. It said that the voluntary cessation exception didn't apply, because the orders expired on their own terms, and not in response to litigation. And it said that the capable-of-repetition-but-evading-review exception didn't apply, because the orders were reviewed (and thus didn't evade review), and because there's no chance this'll happen again (and so isn't capable of repetition).

The court went on to rule that the case became moot because of circumstances outside the defendants' control--that they weren't mooting the case themselves in order to game the courts. As such, the court vacated the district court ruling in favor of the plaintiffs under Munsingwear.