The White House has told the media that the administration will not seek en banc review, or a stay from the Supreme Court. (These were awful options). Rather, they will go back to the district court How can this be done? As Professor Jonathan Hafetz wrote, if the government withdraws its appeal, the Ninth Circuit’s proceedings are halted, and the case goes back to Judge Robart who, presumably, can hold an evidentiary hearing for the preliminary injunction.
But what happens if the executive order is withdrawn? After all, the January 27 order on its face was only designed to last for 90 days until a permanent order was issued. There is nothing stopping the President from simply rescinding it early.
Would doing so moot the case? Not necessarily. Under the “voluntary cessation” doctrine, a case does not necessarily become moot if the challenged conduct–though ceased–could recur.
Justice Alito summarized the doctrine in his recent dissent in Campbell Ewald v. Gomez (2016), which has been relied on in Knox, Already, and (most famously) Friends of the Earth.:
Our “voluntary cessation” cases provide useful guidance. Those cases hold that, when a plaintiff seeks to enjoin a defendant’s conduct, a defendant’s “voluntary cessation of challenged conduct does not ordinarily render a case moot because a dismissal for mootness would permit a resumption of the challenged conduct as soon as the case is dismissed.” Knox v. Service Employees, 567 U.S. ––––, –––– – ––––, 132 S.Ct. 2277, 2287, 183 L.Ed.2d 281 (2012). To obtain dismissal in such circumstances, the defendant must “ ‘bea [r] the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.’ ” Already, supra, at ––––, 133 S.Ct., at 727 (quoting Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 190, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)). We have typically applied that rule in cases involving claims for prospective relief, see Knox, supra, at ––––, 132 S.Ct., at 2287–2288, but the basic principle easily translates to cases, like this one, involving claims for damages: When a defendant offers a plaintiff complete relief on a damages claim, the case will be dismissed as moot if—but only if—it is “absolutely clear” that the plaintiff will be able to receive the offered relief. Already, supra, at ––––, 133 S.Ct., at 729.1
Campbell urges that a plaintiff could simply move to reopen a dismissed case if a defendant fails to make good on its offer. Reply Brief 10. I assume that is true. But the prospect of having to reopen litigation is precisely why our voluntary cessation cases require defendants to prove, before dismissal, that the plaintiff’s injury cannot reasonably be expected to recur. I see no reason not to impose a similar burden when a defendant asserts that it has rendered a damages claim moot.
Unless the Trump administration can “”bea [r] the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur,'” then the case will not be dismissed as moot. In other words, Judge Robart may yet have an opportunity to thoughtfully explain why his nationwide injunction was proper.