Rescission of COVID-19 Vaccine Executive Orders Moots Prospective Constitutional Challenges Absent a Reasonable Expectation of Reissuance

1. Introduction

Sczesny v. Murphy (3d Cir. Mar. 14, 2025) arose from New Jersey Executive Orders 283, 290, and 294, which required certain private healthcare entities to maintain COVID-19 vaccination policies for employees, including being “up to date” (as later clarified to require an eligible first booster). Four nurses—Debra Hagen, Jamie Rumfield, Katie Sczesny, and Mariette Vitti—former employees of Hunterdon Medical Center (“HMC”), alleged they declined booster doses due to medical history and side-effect concerns; three were terminated and one resigned to avoid a for-cause termination record.

The nurses sued Governor Philip Murphy and the State of New Jersey seeking declaratory relief that the executive orders were unconstitutional as applied to them, plus attorneys’ fees and equitable relief. After the District Court denied a preliminary injunction and an interlocutory appeal ensued, Governor Murphy issued Executive Order 332 rescinding the challenged orders. The Third Circuit dismissed the interlocutory appeal as moot and remanded for the District Court to assess mootness of the underlying case. The District Court dismissed as moot; the nurses appealed.

The core issues on appeal were (i) whether rescission of the executive orders mooted a suit seeking prospective relief, (ii) whether an exception to mootness—especially voluntary cessation or capable-of-repetition-yet-evading-review—kept the case live, and (iii) whether the court should vacate the earlier preliminary-injunction denial under United States v. Munsingwear, Inc..

2. Summary of the Opinion

The panel majority (Judge Freeman) affirmed dismissal as moot. Because the nurses sought declaratory relief from executive orders that had been rescinded, the court held it could no longer grant “effectual relief,” rendering the case “facially moot.” The court further held that no mootness exception applied:

  • Voluntary cessation: despite skepticism when defendants unilaterally change conduct mid-litigation, the court held defendants met the “heavy burden” of showing it was “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 they would be subject to the same challenged orders again.

The court also denied the nurses’ request to vacate the earlier preliminary-injunction denial, reasoning it was not before the court in this appeal and the nurses did not identify continuing legal consequences warranting vacatur.

Judge Phipps dissented, arguing the voluntary-cessation burden was not met, emphasizing that executive-order rescission is inherently contingent and potentially reversible, particularly given changed circumstances (e.g., COVID spikes), the lack of a sworn assurance, and the limited duration of any governor’s tenure.

3. Analysis

A. Precedents Cited

1) Core mootness and “effectual relief”

The opinion anchors mootness in whether a court can grant any “effectual relief,” quoting Road-Con, Inc. v. City of Phila., 120 F.4th 346, 356 (3d Cir. 2024). It then relies on Supreme Court examples in which changes to the challenged regime eliminated the requested prospective relief:

  • N.Y. State Rifle & Pistol Ass'n, Inc. v. City of N.Y., 590 U.S. 336, 338-39 (2020): amendment of the challenged rule during review mooted claims for equitable relief where the new regime provided what plaintiffs sought.
  • Trump v. Hawaii, 583 U.S. 941, 941 (2017) (Mem.): expiration of an executive order by its own terms mooted the case.

2) Third Circuit COVID-19 executive-order mootness

The majority treats this case as controlled by its prior COVID executive-order mootness holdings:

  • Clark v. Governor of N.J., 53 F.4th 769, 776 (3d Cir. 2022): rescission of COVID gathering restrictions left “no effectual relief,” mooting claims for declaratory/injunctive relief.
  • Cnty. of Butler v. Governor of Pa., 8 F.4th 226, 230 (3d Cir. 2021): expiration of stay-at-home and related orders mooted challenges.

These cases provide both the doctrinal template (prospective-only challenges become moot when the order ends) and the “government good faith” presumption the majority later invokes.

3) Voluntary cessation (heavy burden) and skepticism of unilateral change

The court highlights that it is “particularly skeptical” when mootness is claimed based on unilateral post-suit changes, citing Hartnett v. Pa. State Educ. Ass'n, 963 F.3d 301, 306-07 (3d Cir. 2020). For the governing standard, it quotes:

  • Fields v. Speaker of the Pa. House of Representatives, 936 F.3d 142, 161 (3d Cir. 2019): voluntary cessation moots only if it is “absolutely clear” the conduct won’t reasonably recur (quoted through Clark).
  • West Virginia v. EPA, 597 U.S. 697, 719 (2022): defendant bears a “heavy burden” to establish mootness under voluntary cessation.

The dissent strengthens the voluntary-cessation framework with Supreme Court authorities:

  • United States v. Concentrated Phosphate Exp. Ass'n, 393 U.S. 199, 203 (1968): reiterates the “absolutely clear” standard (emphasized in dissent).
  • United States v. W.T. Grant Co., 345 U.S. 629, 632-33 (1953): voluntary cessation does not moot unless there is “no reasonable expectation” of repetition (as framed by dissent).
  • United States v. Aluminum Co. of Am., 148 F.2d 416, 448 (2d Cir. 1945): quoted in dissent via W.T. Grant regarding “no reasonable expectation.”
  • FBI v. Fikre, 601 U.S. 234, 242 (2024): dissent uses it to argue that assurances limited to “currently available information” (i.e., current circumstances) do not resolve recurrence risk if circumstances change.

4) Redressability, attorneys’ fees, and lingering employment consequences

In a key footnote, the majority rejects the nurses’ argument that ongoing injuries (separation from HMC and termination records) keep the case live, because a declaration against state executive orders would not compel a private employer to reinstate them or amend records—i.e., the injuries are not redressable by the requested relief. It also cites:

  • Ivy Club v. Edwards, 943 F.2d 270, 276 (3d Cir. 1991): “interest in attorneys' fees does not save a matter from mootness.”

5) Capable-of-repetition-yet-evading-review

The majority applies the two-part test from:

  • Hamilton v. Bromley, 862 F.3d 329, 335 (3d Cir. 2017) (quoting Spencer v. Kemna, 523 U.S. 1, 17 (1998)).

It emphasizes the exception is “narrow” and requires a “reasonable expectation” the same complaining party will face the same action again, a showing the nurses did not make.

6) Vacatur and interlocutory orders

The nurses sought vacatur of the District Court’s preliminary-injunction denial under United States v. Munsingwear, Inc., 340 U.S. 36 (1950). The majority denies vacatur, citing:

  • Democratic Nat'l Comm. v. Republican Nat'l Comm., 673 F.3d 192, 219 n.27 (3d Cir. 2012): vacatur turns on “legal consequences” or impact on relitigation (quoting Munsingwear).
  • U.S. Navy SEALs 1-26 v. Biden, 72 F.4th 666, 676 n.10 (5th Cir. 2023): supports that dismissal without vacatur is usual for moot interlocutory appeals absent practical effect.

7) Dissent’s additional context precedents

The dissent distinguishes Clark v. Governor of New Jersey by noting that gathering restrictions implicated severe liberty constraints, citing:

  • Roman Cath. Diocese of Brooklyn v. Cuomo, 592 U.S. 14 (2020) (per curiam).
  • Tandon v. Newsom, 593 U.S. 61 (2021) (per curiam).

On “expiration by own terms,” dissent contrasts:

  • Trump v. Hawaii, 583 U.S. 941 (2017) (mem.) (quoting Burke v. Barnes, 479 U.S. 361, 363 (1987)).
  • Trump v. Int'l Refugee Assistance, 583 U.S. 912 (2017) (mem.).
  • County of Butler v. Governor of Pa., 8 F.4th 226, 230 (3d Cir. 2021) (dissent notes it applied voluntary-cessation principles even to orders that expired on their own terms).

B. Legal Reasoning

1) Facial mootness from rescission + prospective-only requested relief

The majority’s syllogism is straightforward:

  • The nurses sought declaratory (and otherwise prospective) relief against Executive Orders 283, 290, and 294.
  • Executive Order 332 rescinded those executive orders.
  • Because the challenged legal requirements no longer exist, a federal court cannot grant relief that would meaningfully operate on them; thus no “effectual relief” remains.

The opinion reinforces that even if the nurses continue to experience employment harms, the requested relief (a declaration about now-rescinded state orders) would not redress harms controlled by a non-party private employer (HMC). This redressability step is crucial: it prevents plaintiffs from avoiding mootness by pointing to real-world downstream consequences that the court’s decree would not legally remedy.

2) Voluntary cessation: why the majority found the “heavy burden” satisfied

The majority accepts the heightened scrutiny applicable to unilateral changes, but concludes the State met its heavy burden based on a combination of (i) stated public-health reasons, (ii) a presumption of governmental good faith, (iii) timing suggesting rescission was not litigation-driven, and (iv) low likelihood that any future vaccine mandate would recreate the “same legal controversy.”

  • Good-faith justification: Executive Order 332 cited improving COVID statistics. The court relied on Cnty. of Butler v. Governor of Pa. for the presumption that officials act in good faith and, echoing Clark v. Governor of N.J., stated it had “no reason to doubt the sincerity” of the Governor’s explanation.
  • Not plausibly litigation-motivated: the challenged orders remained in effect for over a year after suit was filed; the nurses did not contend rescission was due to the litigation. The majority also rejects (in a footnote) speculative suggestions that rescission was timed to avoid an adverse ruling.
  • Non-recurrence assessment framed as “same controversy”: even if New Jersey might impose some future COVID-vaccination-related requirements, the court held a future requirement would not plausibly present “the same legal controversy as the one before us now” (quoting Clark with emphasis).

3) Why the dissent thought the standard was not met

The dissent takes a more categorical view: rescission of an executive order is rarely enough to moot under voluntary cessation because a governor (or successor) can reissue similar orders when circumstances change. In the dissent’s view:

  • Structural impermanence: executive action depends on the officeholder’s tenure; New Jersey term limits mean any “assurance” is short-lived and does not bind successors.
  • Insufficient evidentiary showing: no affidavit or sworn statement promising non-reissuance; the dissent sees that absence as incompatible with “absolute clarity.”
  • Circumstance-dependent rescission: because rescission was justified by improving metrics, the dissent—invoking FBI v. Fikre—argues that if metrics worsen, the state could revert, so recurrence risk remains.
  • Clark distinction: the dissent argues vaccine mandates are more “commonplace” than gathering bans and thus more likely to recur, so Clark’s prediction about unlikely return of the same pandemic restrictions should not control.

4) Rejection of other mootness exceptions

On capable-of-repetition-yet-evading-review, the majority stresses the burden lies with the party opposing mootness (the nurses), and they did not show a reasonable expectation of being subject to the same executive orders again. The opinion also notes the exception is “narrow” and for “exceptional situations” (via Hamilton v. Bromley).

5) Vacatur: why Munsingwear did not help

The court denied vacatur of the preliminary-injunction denial because (i) it was not under review in this appeal, (ii) the nurses did not seek vacatur while the interlocutory appeal was pending and then dismissed as moot, and (iii) they failed to identify ongoing “legal consequences” or relitigation effects from that interlocutory order (as required by Democratic Nat'l Comm. v. Republican Nat'l Comm. quoting Munsingwear). The court also cited U.S. Navy SEALs 1-26 v. Biden for the practical point that interlocutory injunction rulings often lose practical effect once the underlying controversy ends.

C. Impact

1) Practical implications for challenges to rescinded executive orders

Although labeled “NOT PRECEDENTIAL,” the decision reflects (and applies) a stable Third Circuit approach visible in Clark v. Governor of N.J. and Cnty. of Butler v. Governor of Pa.: where plaintiffs seek only prospective relief against an executive order, rescission typically moots the case unless plaintiffs can concretely show recurrence likelihood or another exception.

2) Heightened importance of remedy design and party alignment

The court’s redressability analysis underscores a recurring barrier in pandemic-era employment disputes: where the injury is termination by a private employer implementing (or exceeding) public directives, suing the government for declaratory relief may not redress the employment harm unless the employer is a party or the requested relief is structured to bind relevant actors. Here, the court held that even a favorable declaration about state executive orders would not compel HMC to rehire or amend records.

3) Voluntary cessation: government good faith vs. recurrence skepticism

The sharp divide between the majority and dissent spotlights an unresolved tension likely to recur in public-law litigation:

  • The majority is willing to find the “heavy burden” met by contextual indicators (public-health justification, passage of time, lack of litigation-motive evidence, and a “not the same controversy” framing).
  • The dissent would demand stronger, more durable assurances (potentially sworn, and addressing future contingencies and successors), particularly for executive actions that could be reissued rapidly.

Future litigants challenging executive orders may respond by building a record aimed directly at recurrence (statements of intent, history of reissuance, contingency-based criteria, or evidence that rescission is easily reversible), and by seeking forms of relief that address ongoing consequences (e.g., damages claims where viable, or claims against entities that control employment records).

4) Vacatur of interlocutory orders: a cautionary procedural note

The opinion signals that parties who want Munsingwear-style vacatur of an interlocutory order should seek it promptly when the interlocutory appeal becomes moot and must identify concrete legal consequences of leaving the order intact. Without that showing, the “usual practice” may be dismissal without vacatur.

4. Complex Concepts Simplified

  • Mootness: a case becomes moot when the court can no longer give a remedy that changes anything for the parties. If the challenged law is gone and only forward-looking relief is sought, there may be nothing left for the court to do.
  • Effectual relief: relief that has real legal force in the current world. A declaration about a rescinded order may be “advisory” if it cannot change the parties’ legal positions.
  • Redressability: part of Article III standing. Even if a plaintiff suffered harm, the court must be able to fix it with the requested remedy. If the harm is controlled by someone not before the court (e.g., a private employer), a declaration against a government defendant may not redress it.
  • Voluntary cessation: a defendant cannot automatically moot a case by stopping the challenged conduct mid-lawsuit. Mootness occurs only if it is “absolutely clear” the conduct will not reasonably recur; the defendant bears a heavy burden.
  • Capable-of-repetition-yet-evading-review: a narrow exception that keeps a case alive when (1) the challenged action ends too quickly to be fully litigated, and (2) the same plaintiff is reasonably likely to face the same action again.
  • Munsingwear vacatur: when a case becomes moot on appeal, courts sometimes vacate (erase) lower-court decisions to prevent unfair legal consequences. But vacatur is not automatic, especially for interlocutory orders with no continuing legal effect.

5. Conclusion

The Third Circuit affirmed dismissal because rescission of Executive Orders 283, 290, and 294 left no effectual prospective relief to grant, rendering the nurses’ declaratory challenge moot. The majority held that the voluntary-cessation exception did not preserve jurisdiction because the State carried its heavy burden to show non-recurrence was reasonably clear, relying on the Governor’s stated public-health rationale, the presumption of governmental good faith, the absence of evidence that rescission was litigation-driven, and the view that any future mandate would not present the “same legal controversy.” It also rejected capable-of-repetition-yet-evading-review and declined to vacate the preliminary-injunction denial under United States v. Munsingwear, Inc. absent identified continuing legal consequences.

The dissent would have kept the case alive, warning that executive-order rescission is inherently reversible—especially without sworn assurances—and that shifting public-health conditions could prompt reissuance, meaning the demanding voluntary-cessation standard was not met. Together, the opinions frame an ongoing doctrinal and practical debate: how rigorously courts should police government claims of mootness when challenged emergency-era executive actions are withdrawn after litigation begins.