Brach v. Newsom

• Decision Date: 15 June 2022
• Docket Number: 20-56291
• Citation: 38 F.4th 6
• Parties: Matthew BRACH, an individual; Jesse Petrilla, an individual; Lacee Beaulieu, an individual; Erica Sephton, an individual; Kenneth Fleming, an individual; John Ziegler, an individual; Alison Walsh, an individual; Roger Hackett, an individual; Christine Ruiz, an individual; Z. R., a minor; Ade Onibokun, an individual; Brian Hawkins, an individual; Tiffany Mitrowke, an individual; Marianna Bema; Ashley Ramirez, an individual, Plaintiffs-Appellants, v. Gavin NEWSOM, in his official capacity as the Governor of California; Rob Bonta, in his official capacity as the Attorney General of California; Tomas Aragon, in his official capacity as the State Public Health Officer and Department of Public Health Director; Tony Thurmond, in his official capacity as State Superintendent of Public Instruction and Director of Education, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

38 F.4th 6

Matthew BRACH, an individual; Jesse Petrilla, an individual; Lacee Beaulieu, an individual; Erica Sephton, an individual; Kenneth Fleming, an individual; John Ziegler, an individual; Alison Walsh, an individual; Roger Hackett, an individual; Christine Ruiz, an individual; Z. R., a minor; Ade Onibokun, an individual; Brian Hawkins, an individual; Tiffany Mitrowke, an individual; Marianna Bema; Ashley Ramirez, an individual, Plaintiffs-Appellants,

v.Gavin NEWSOM, in his official capacity as the Governor of California; Rob Bonta, in his official capacity as the Attorney General of California; Tomas Aragon, in his official capacity as the State Public Health Officer and Department of Public Health Director; Tony Thurmond, in his official capacity as State Superintendent of Public Instruction and Director of Education, Defendants-Appellees.

No. 20-56291

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc January 24, 2022 Pasadena, California

Filed June 15, 2022

Robert E. Dunn (argued), Eimer Stahl LLP, San Jose, California; Ryan J. Walsh, John K. Adams, and Amy C. Miller, Eimer Stahl LLP, Madison, Wisconsin; Harmeet K. Dhillon, Mark P. Meuser, and Michael Yoder, Dhillon Law Group Inc., San Francisco, California; for Plaintiffs-Appellants.

Samuel P. Siegel (argued) and Joshua A. Klein, Deputy Solicitors General; Jennifer Bunshoft and Darin L. Wessel, Deputy Attorneys General; Gregory Brown and Jennifer G. Perkell, Supervising Deputy Attorneys General; Cheryl L. Feiner, Senior Assistant Attorney General; Janill L. Richards, Principal Deputy Solicitor General; Michael J. Mongan, Solicitor General; Rob Bonta, Attorney General; Office of the Attorney General, San Francisco, California; for Defendants-Appellees.

James R. Williams, County Counsel; Douglas M. Press, Assistant County Counsel; Jason M. Bussey, Deputy County Counsel; Office of the County Counsel, County of Santa Clara, San Jose, California; for Amicus Curiae County of Santa Clara.

Nicholas R. Reaves, Daniel L. Chen, and Eric C. Rassbach, Becket Fund for Religious Liberty, Washington, D.C., for Amicus Curiae Becket Fund for Religious Liberty.

Gordon D. Todd, Erika L. Maley, and Cody L. Reaves, Sidley Austin LLP, Washington, D.C.; Michael H. Porrazzo, The Porrazzo Law Firm, Rancho Santa Margarita, California; for Amici Curiae Samuel A. Fryer Yavneh Hebrew Academy, Montebello Christian School, Gindi Maimonides Academy, and Saint Joseph Academy.

Before: Mary H. Murguia, Chief Judge, and M. Margaret McKeown, Kim McLane Wardlaw, Ronald M. Gould, Richard A. Paez, Marsha S. Berzon, Sandra S. Ikuta, Jacqueline H. Nguyen, Paul J. Watford, Ryan D. Nelson, and Daniel A. Bress, Circuit Judges.

Opinion by Judge McKeown ;

Dissent by Judge Paez ;

Dissent by Judge Berzon

McKEOWN, Circuit Judge:

Much has changed since the COVID-19 pandemic began. One thing that has stayed the same is that federal courts may not rule on moot or hypothetical questions. Here, a group of parents and one student ask us to pass judgment on whether California state officials 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 navigating the largest public health crisis since the Great Influenza Epidemic of 1918.

Fortunately, the situation in California has changed dramatically with the introduction of vaccines and other measures. The State of California has rescinded its orders, students have been back in the classroom for a year, and the parties agree there is "currently no longer any state-imposed barrier to reopening for in-person instruction." The parents urge us to decide this case anyway, suggesting that California might, maybe one day, close its schools again. In effect, the parents seek an insurance policy that the schools will never ever close, even in the face of yet another unexpected emergency or contingency. The law does not require California to meet that virtually unattainable goal; our jurisdiction is limited to live controversies and not speculative contingencies. Joining the reasoning of the many other circuits that have recently considered challenges to early COVID-19 related restrictions, we conclude that the mere possibility that California might again suspend in-person instruction is too remote to save this case. We dismiss the appeal as moot.

BACKGROUND

A. Factual Background

1. The 2019–2020 School Year

In early March 2020, the World Health Organization declared a global pandemic in response to the novel coronavirus, SARS-CoV-2, responsible for the coronavirus disease 2019 ("COVID-19"). Then-President Donald Trump declared a national emergency and restricted international travel. Governor Gavin Newsom declared a state of emergency within California, and issued Executive Order N-33-20, requiring Californians to "heed the current State public health directives" including the requirement "to stay home or at their place of residence." Cal. Exec. Order N-33-20 (March 19, 2020). As a result, many public-facing institutions and businesses were closed. Schools closed their physical buildings, but students finished out the remaining few months of the school year with remote instruction.

2. The 2020–2021 School Year

In advance of the new school year, in summer 2020, the California Department of Public Health announced its plans for reopening schools. The "COVID-19 and Reopening In-Person Learning Framework for K-12 Schools in California, 2020–2021 School Year" ("2020–21 Reopening Framework") was developed "to support school communities" as they determined "when and how to implement in-person instruction." Under the framework, schools were permitted to permanently reopen once the rate of COVID-19 transmission in their local areas stabilized. Importantly, once a school reopened under the 2020–21 Reopening Framework, it was not required to close again, even if local COVID-19 rates later rose. The 2020–21 Reopening Framework ratchetted in only one direction: toward reopening.¹

Fourteen parents and one student (collectively "the parents") filed suit against Governor Newsom and other California officials just four days after the 2020–21 Reopening Framework was announced. They alleged that the State's decision to delay reopening schools until local conditions improved violated a "fundamental right to a basic, minimum education" located in the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and also violated various federal civil rights statutes.

By mid-December, the U.S. Food and Drug Administration authorized the first vaccine for the prevention of COVID-19. More vaccines were soon authorized, and doses of the vaccines were gradually made available to the public in late 2020 and early-to-mid 2021. Although not initially authorized for use by children, the vaccine is now available for those as young as five years old.

The introduction of vaccines and California's continued implementation of the 2020–21 Reopening Framework allowed an ever-increasing number of schools to reopen. By spring 2021, all of the parents' schools had been permitted to reopen. The parents acknowledged in an April 26, 2021, court filing that there was "currently no longer any state-imposed barrier to reopening for in-person instruction."

3. The 2021–2022 School Year

California reached a significant benchmark during the 2021 summer holidays, when Governor Newsom announced that over 50% of Californians had received a full course of COVID-19 vaccination treatments. He issued Executive Order N-07-21, which formally rescinded the Executive Order issued at the outset of the pandemic. See Cal. Exec. Order N-07-21 (June 11, 2021) (rescinding Cal. Exec. Order N-33-20). As a result, "all restrictions on businesses and activities" derived from that earlier executive order were rescinded, including the State Public Health Officer's March 2020 stay-at-home order. Id.

The following month, the State issued updated guidance for the upcoming 2021–2022 school year. The "COVID-19 Public Health Guidance for K-12 Schools in California, 2021–22 School Year" ("2021–22 Guidance") imposes no restrictions on school reopening, recognizes that "[i]n-person schooling is critical to the mental and physical health and development of our students," and is "designed to keep California K-12 schools open for in-person instruction safely during the COVID-19 pandemic."²

B. Procedural Background

The parents filed suit days after the 2020–21 Reopening Framework was announced.

Proceedings moved swiftly before the district court, which denied the parents' motion for emergency injunctive relief on August 13, 2020, and granted summary judgment to the State on December 1, 2020. The parents timely appealed, and we granted their unopposed motion to expedite briefing and argument.

After this appeal was briefed, we asked the parties to provide supplemental briefing on whether this case was moot. The parents responded on April 26, 2021, informing the court that their children's schools had been permitted to reopen and there was "no longer any state-imposed barrier to reopening." They insisted, however, that the case remained live under certain exceptions to the mootness doctrine.

On July 12, 2021, the State issued the 2021–22 Guidance, lifting all restrictions on school reopening. Eleven days later, a divided panel of this court held that this case was not moot and reversed the district court in part. See Brach v. Newsom , 6 F.4th 904, 921, 934 (9th Cir.), vacated , 18 F.4th 1031 (9th Cir. 2021). Rejecting the State's claims of waiver, the panel accepted the parents' new argument on appeal that the Fourteenth Amendment's Due Process Clause guaranteed a fundamental right to in-person education. See id. at 917–32. So holding, the panel reversed the district court's ruling on the due process claim, remanded the equal protection claim for further consideration, and affirmed the district court's grant of summary judgment on the...