Captain Mariella Creaghan v. Lloyd J. Austin, III, Secretary of Defense, et al.

The mootness doctrine has devolved into a courtsanctioned, childhood game of “I am not touching you.” So long as the finger of the government’s policy is no longer “touching” the plaintiff, lower courts deem a case to be moot, even when the policy could easily be reimposed and even when the rescission of the policy has left behind extant harm. Circuit courts are divided on how to apply the voluntary cessation doctrine. Understandably so, as it is difficult to read cases such as N.Y. State Rifle & Pistol Ass’n v. City of N.Y., 140 S. Ct. 1525 (2020) and West Virginia v. EPA, 142 S. Ct. 2587 (2022) together and recognize one applicable standard. The D.C. Circuit’s summary decision below exemplifies this problem. Without any attention to the voluntary cessation exception’s “absolutely clear” standard, the court dismissed Petitioner’s appeal because the government proverbially asserted that it is “not touching” the Petitioner. The question presented is: 1. Whether under the voluntary cessation exception to mootness the government must satisfy the “absolutely clear” standard if it maintains the authority to reimpose the same policies, and, if not, to what extent should the government be treated differently from other defendants?