Rescinded Public-Health Executive Orders Moot Prospective Constitutional Challenges Absent a Realistic Prospect of Reenactment

Case: Katie Sczesny v. Philip Murphy (3d Cir. Mar. 14, 2025) (Not Precedential)
Panel: Phipps, Freeman, Chung, JJ. (Opinion by Freeman, J.)

1. Introduction

Four former nurses at Hunterdon Medical Center—Debra Hagen, Jamie Rumfield, Katie Sczesny, and Mariette Vitti—brought a federal constitutional challenge against New Jersey Governor Philip Murphy (official and personal capacity) and the State of New Jersey. They targeted three COVID-19 executive orders—Executive Order 283, Executive Order 290, and Executive Order 294—which required certain private healthcare employers to maintain employee vaccination policies, including being “up to date” (as clarified, including eligibility-based booster requirements) and including discipline up to termination.

The nurses alleged they took an initial COVID-19 vaccination series but declined boosters due to medical history and risk of side effects. They were terminated (or resigned to avoid termination for cause) under their employer’s policy. They sought declaratory relief that the executive orders were unconstitutional as applied to them, plus attorneys’ fees and other equitable relief.

After the District Court denied a preliminary injunction and an interlocutory appeal was filed, Governor Murphy issued Executive Order 332 rescinding the challenged orders. The Third Circuit dismissed the interlocutory appeal as moot in Sczesny v. Murphy, No. 22-2230, 2023 WL 4402426 (3d Cir. June 14, 2023), and remanded for the District Court to consider whether the underlying case remained live. On remand, the District Court dismissed as moot; the nurses appealed that dismissal.

2. Summary of the Opinion

The Third Circuit affirmed the dismissal for mootness. Because the nurses sought prospective relief (a declaration of unconstitutionality) against executive orders that had been rescinded, the court held it could grant no “effectual relief,” rendering the case “facially moot.” The court further held that no mootness exception applied:

  • Voluntary cessation: The State met its “heavy burden” to show it is “absolutely clear” the challenged conduct could not reasonably be expected to recur.
  • Capable of repetition yet evading review: The nurses failed to show a reasonable expectation that the same complaining parties would be subjected to the same challenged action again.

The court also denied the nurses’ request (invoking United States v. Munsingwear, Inc.) to vacate the District Court’s prior preliminary-injunction denial, emphasizing the preliminary injunction order was not under review in this appeal and the nurses identified no ongoing legal consequences from it.

3. Analysis

3.1 Precedents Cited

  • Mootness / effectual relief framework
    Road-Con, Inc. v. City of Phila., 120 F.4th 346 (3d Cir. 2024), supplied the operative statement: a case is moot when the court can no longer provide “any effectual relief.” This framing set the baseline for evaluating rescinded executive orders.
  • Rescission or expiration moots prospective challenges
    The court relied on Supreme Court examples where changed law or expiration removed the live controversy:
    • N.Y. State Rifle & Pistol Ass'n, Inc. v. City of N.Y., 590 U.S. 336 (2020), where amendments during review mooted claims for equitable relief.
    • Trump v. Hawaii, 583 U.S. 941 (2017) (Mem.), where an executive order’s expiration mooted the case.
    These cases supported the straightforward proposition that, when plaintiffs seek only prospective relief, rescission/expiration typically ends the case.
  • Third Circuit COVID-order mootness precedents
    Two precedential COVID-era decisions did most of the work:
    • Clark v. Governor of N.J., 53 F.4th 769 (3d Cir. 2022), held challenges to rescinded gathering restrictions were moot and addressed voluntary cessation in the pandemic context, including good-faith presumption and recurrence skepticism.
    • Cnty. of Butler v. Governor of Pa., 8 F.4th 226 (3d Cir. 2021), cert. denied, 142 S. Ct. 772 (2022) (Mem.), held challenges to expired stay-at-home and capacity limits were moot and emphasized a presumption of government good faith.
    The panel treated the present dispute as materially analogous: rescinded COVID-related executive orders and requests for declaratory/injunctive relief.
  • Voluntary cessation skepticism; government burden
    The opinion grounded its voluntary-cessation approach in:
    • Hartnett v. Pa. State Educ. Ass'n, 963 F.3d 301 (3d Cir. 2020), which cautioned against finding mootness based on unilateral post-suit change, while still allowing it when recurrence is not reasonably expected.
    • Fields v. Speaker of the Pa. House of Representatives, 936 F.3d 142 (3d Cir. 2019), quoted for the “absolutely clear” standard.
    • West Virginia v. EPA, 597 U.S. 697 (2022), cited for the “heavy burden” on the party asserting mootness via voluntary cessation.
    Together, these cases provide the doctrinal guardrail: rescission does not automatically moot if the defendant might resume the challenged conduct.
  • Attorneys’ fees do not preserve a moot merits case
    The panel rejected the idea that a fee request keeps the controversy alive, relying on Ivy Club v. Edwards, 943 F.2d 270 (3d Cir. 1991).
  • Capable-of-repetition-yet-evading-review test
    The court cited:
    • Hamilton v. Bromley, 862 F.3d 329 (3d Cir. 2017), for the two-part test and the “narrow” nature of the exception.
    • Spencer v. Kemna, 523 U.S. 1 (1998), for the same test’s origin.
    This framed the nurses’ burden to show both short duration and reasonable expectation of being subjected to the same action again.
  • Vacatur and Munsingwear
    On vacatur, the court engaged:
    • United States v. Munsingwear, Inc., 340 U.S. 36 (1950), the classic vacatur doctrine to prevent unreviewable judgments from spawning legal consequences.
    • Democratic Nat'l Comm. v. Republican Nat'l Comm., 673 F.3d 192 (3d Cir. 2012), emphasizing the need to identify legal consequences/relitigation impacts before vacatur is warranted.
    • U.S. Navy SEALs 1-26 v. Biden, 72 F.4th 666 (5th Cir. 2023), as persuasive support that dismissal without vacatur is typical for moot interlocutory appeals and that preliminary injunctions often lack ongoing practical effect once moot.
  • Jurisdiction and standard of review
    The court noted it could review the final order even if mootness existed, citing Hartnett v. Pa. State Educ. Ass'n and applying de novo review per Weitzner v. Sanofi Pasteur, Inc., 819 F.3d 61 (3d Cir. 2016).

3.2 Legal Reasoning

(a) Facial mootness once the executive orders were rescinded.
The nurses sought a declaration that Executive Orders 283, 290, and 294 were unconstitutional as applied to them. Once Executive Order 332 rescinded the challenged orders, the court concluded it could not issue meaningful prospective relief “in relation to those orders.” This is a conventional application of mootness: courts decide live disputes, not the legality of defunct rules when no operative remedy can follow.

(b) The claimed ongoing employment harms were not redressable in this case posture.
The nurses argued the case remained live because they were separated from employment and had terminations on their records. The panel assumed arguendo those injuries might be traceable to the orders, but held the requested declaration would not compel a non-party private employer (HMC) to rehire them or revise personnel records. This is a redressability point: even real injuries do not sustain Article III jurisdiction if the court’s judgment cannot remedy them against the defendants before it. The court also reiterated that a desire for attorneys’ fees does not prevent mootness under Ivy Club v. Edwards.

(c) Voluntary cessation did not keep the case alive because recurrence was not reasonably expected.
Acknowledging heightened skepticism under Hartnett v. Pa. State Educ. Ass'n, the panel applied the “absolutely clear” standard (via Fields v. Speaker of the Pa. House of Representatives) and the “heavy burden” principle (via West Virginia v. EPA). The State met that burden for several reasons:

  • Public justification tied to changing pandemic conditions: The Governor cited improvements in metrics (hospitalizations, daily cases, positivity, transmission), supporting that rescission was responsive to external conditions rather than tactical litigation behavior.
  • Presumption of good faith for government actors: Drawing from Cnty. of Butler v. Governor of Pa., the court presumed officials act in good faith and, as in Clark v. Governor of N.J., found no reason to doubt the sincerity of the stated justification.
  • Timing undermined a litigation-mooting motive: The orders remained effective for more than a year after suit and were rescinded while the interlocutory appeal was pending, which the court treated as evidence the rescission was not driven by this case (echoing Clark v. Governor of N.J.’s diminished skepticism when changes are unrelated to litigation).
  • No realistic prospect of reissuing the same orders: The court emphasized the lack of reason to believe the Governor would reinstate the particular rescinded orders nearly two years later; and even if future vaccination-related requirements were imposed, they would not “plausibly present the same legal controversy” as the one before the court (quoting Clark v. Governor of N.J.).

(d) Capable-of-repetition-yet-evading-review did not apply.
Under Hamilton v. Bromley (quoting Spencer v. Kemna), the nurses had to show both that the challenged action is too short in duration to be fully litigated and that there is a reasonable expectation the same plaintiffs will be subject to the same action again. The court focused on the second prong: given the rescission rationale and low likelihood of reinstating the same executive orders, the nurses could not show they would again face the same executive-order regime.

(e) No Munsingwear vacatur of the preliminary injunction denial.
The nurses requested vacatur of the District Court’s preliminary-injunction denial. The panel refused, reasoning:

  • The preliminary injunction order was not under review in the present appeal; and the nurses did not seek vacatur when their interlocutory appeal became moot.
  • They identified no “legal consequences” or relitigation impact flowing from the preliminary injunction denial (per Democratic Nat'l Comm. v. Republican Nat'l Comm.’s application of United States v. Munsingwear, Inc.).
  • Consistent with U.S. Navy SEALs 1-26 v. Biden, dismissal without vacatur is commonly appropriate for moot interlocutory matters where the order has no practical ongoing effect.

3.3 Impact

  • Reinforces (even if non-precedential) a predictable path for pandemic-order litigation: Plaintiffs seeking only forward-looking relief against executive orders should expect mootness once orders are rescinded, absent concrete evidence of likely reenactment. The opinion tracks and extends the logic of Clark v. Governor of N.J. and Cnty. of Butler v. Governor of Pa. to vaccine-policy mandates affecting private healthcare employment.
  • Clarifies limits of redressability where private employers are the immediate actors: Even if state action allegedly pressured private entities, declaratory relief against the state may not redress job-loss consequences if the private employer is not before the court and not legally compelled by the requested judgment. This framing may shape pleading strategies (e.g., who must be joined; what remedies are sought) in challenges to government directives mediated through private compliance.
  • Signals deference to government explanations in emergency-wind-down contexts: By emphasizing presumptive good faith and external epidemiological metrics, the panel indicates that a well-documented rescission rationale can satisfy voluntary-cessation scrutiny, especially where timing does not suggest tactical mooting.
  • Cabins Munsingwear vacatur requests tied to preliminary injunction denials: The court’s insistence on identifiable legal consequences may deter routine vacatur motions after mootness—particularly when the relevant order is interlocutory and no longer operative.

4. Complex Concepts Simplified

  • Mootness: A case becomes moot when circumstances change so that the court’s decision can no longer help the plaintiff in a practical way (no “effectual relief” remains).
  • Facially moot: On the face of the current facts—here, rescinded executive orders—there is nothing left for a court to stop or declare operative going forward.
  • Redressability: Even if someone is harmed, a federal court can only hear the case if the requested remedy would likely fix that harm. If a declaration against the State would not require a private employer to rehire or change records, the harm is not redressable in that suit.
  • Voluntary cessation doctrine: Defendants cannot automatically moot a case by stopping challenged conduct mid-lawsuit; they must show it’s very unlikely they will start again (“absolutely clear” non-recurrence).
  • Capable of repetition yet evading review: A narrow exception allowing courts to decide otherwise-moot cases when the issue ends too quickly to litigate and the same plaintiff is likely to face the same issue again.
  • Munsingwear vacatur: When a case becomes moot before appellate review, an appellate court sometimes vacates the lower-court judgment to prevent it from having future legal effects. Courts look for real “legal consequences” before doing so.

5. Conclusion

The Third Circuit held that rescission of New Jersey’s COVID-19 healthcare vaccination executive orders mooted nurses’ requests for declaratory relief because the court could grant no effective prospective remedy. The panel found the State satisfied the demanding voluntary-cessation standard, relying on good-faith presumptions, the public-health rationale for rescission, and the absence of a realistic prospect of reinstating the same orders. It also rejected the capable-of-repetition exception and declined to vacate the prior preliminary injunction denial absent identified continuing legal consequences. Within the Third Circuit’s COVID-order jurisprudence, the decision underscores that once emergency executive measures are withdrawn, plaintiffs must point to concrete, non-speculative recurrence or a genuinely redressable remedy to keep constitutional challenges alive.

Note: The decision is designated “NOT PRECEDENTIAL” and does not constitute binding precedent under the Third Circuit’s I.O.P. 5.7, but it reflects the court’s application of established mootness principles to rescinded vaccine-related executive orders.