Matthew Brach, et al. v. Gavin Newsom, Governor of California, et al.

Like most states, California has empowered its governor with emergency authority that enables imposition of a swift and wide-reaching response to threats against public health. Throughout the COVID-19 pandemic, California Governor Gavin Newsom wielded—and continues to wield—these emergency powers extensively. He took actions unprecedented in modern times, including imposing “stay-at-home” restrictions and ordering the closure of schools, churches, public beaches, and many businesses. Citizens in California and across the country have brought scores of legal challenges to state governors’ exercise of their emergency powers. But resolution of these lawsuits has been inconsistent, depending on where in the country they were filed. Specifically, the Circuits are split as to when challenges to such restrictive measures become moot under Article III’s case or controversy requirement. Two Circuits have held that a challenge to emergency executive action does not become moot—even if the challenged restrictions have been repealed—so long as the declaration of emergency remains in effect. By contrast, the Ninth Circuit held here that a case is moot once the governor rescinds the challenged restrictions, even though the emergency declaration remains in effect and the governor could reimpose the restrictions at any time. The question presented is: Is a case moot under Article III’s case or controversy requirement when the governor rescinds the offending policy after it is challenged in court, but the declaration of emergency remains in place and the governor retains the authority to reinstate the policy?