Martin Flumenbaum, left, and Brad S. Karp Determining Mootness of COVID-Era Executive Orders
In this edition of their Second Circuit Review, Martin Flumenbaum and Brad S. Karp discuss cases in which the Second Circuit—in assessing whether claims are moot where the challenged conduct has ceased—focused on whether the challenged conduct is nevertheless likely to recur.
October 26, 2021 at 12:00 PM
7 minute read
In the 19 months since the beginning of the COVID-19 pandemic, the Second Circuit on several occasions has analyzed the circumstances in which challenges to certain restrictions implemented pursuant to COVID-19-related executive orders were moot. In four recent rulings—Agudath Israel of America v. Cuomo, 983 F.3d 620 (2d Cir. 2020), 36 Apartment Associates v. Cuomo, — F. App'x —-, No. 20-2565, 2021 WL 3009153 (2d Cir. July 16, 2021), Connecticut Citizens Defense League v. Lamont, 6 F.4th 439 (2d Cir. 2021), and Dark Storm Industries v. Hochul, No. 20-2725, 2021 WL 4538640 (2d Cir. Oct. 5, 2021) (summary order)—the court evaluated whether certain orders were moot on the basis of whether plaintiffs were under threat that the relevant restrictions would be imposed again in the future. The decisions illustrate that, in examining the mootness of executive orders made in response to ever-evolving public emergencies, the court is tasked with assessing the likelihood of similar restrictions in the future.
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