       IN THE UNITED STATES COURT OF APPEALS
                FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                 Fifth Circuit

                                                                  FILED
                                                               June 18, 2020
                                 No. 20-30358
                                                               Lyle W. Cayce
                                                                    Clerk
MARK ANTHONY SPELL; LIFE TABERNACLE CHURCH,

           Plaintiffs - Appellees

v.

JOHN BEL EDWARDS, in his individual capacity and his official capacity as
Governor of the State of Louisiana; ROGER CORCORAN, in his individual
capacity and official capacity as Chief of Police of Central City, Louisiana;
SID GAUTREAUX, individually and in his official capacity as Sheriff of East
Baton Rouge Parish, Louisiana,

           Defendants - Appellants



                Appeal from the United States District Court
                    for the Middle District of Louisiana


Before SMITH, COSTA, and HO, Circuit Judges.
GREGG COSTA, Circuit Judge:
     COVID-19 has brought another appeal to our court. A Louisiana church
and its pastor ask us enjoin stay-at-home orders restricting in-person church
services to ten congregants.     But there is nothing for us to enjoin.   The
challenged orders expired more than a month ago. That means this appeal and
the related request for an injunction under Federal Rule of Appellate
Procedure 8(a)(1)(C) are moot.
                                      No 20-30358

                                            I.
                                            A.
      In less than six months, COVID-19 has killed more than 115,000
Americans. 1 Parts of Louisiana were early hotspots for the virus.
      On March 11, just two days after the first confirmed case in the Pelican
State, Governor John Bel Edwards declared the COVID-19 pandemic a public
health emergency. La. Exec. Dep’t, Proclamation No. 25 JBE 2020, § 1. 2 Less
than two weeks later, the Governor issued a proclamation closing certain
businesses and ordering “individuals within the state . . . to stay home unless
performing an essential activity.” La. Exec. Dep’t, Proclamation No. 33 JBE
2020, § 3. 3 The order also “postponed or cancelled” “gatherings of 10 people or
more.” Id. § 2. Although some businesses were exempt from that restriction,
churches and other religious meeting places were not. Id.
       The Governor extended the stay-at-home order on April 2 because “the
COVID-19 outbreak in Louisiana ha[d] expanded significantly.” La. Exec.
Dep’t, Proclamation No. 41 JBE 2020. 4 He extended the order again on April
30. La. Exec. Dep’t, Proclamation No. 52 JBE 2020. 5 The second extension
was set to last from May 1 to May 15. Id. § 15.
      The day before the second extension was set to expire, the Governor
announced that Louisiana would follow the Trump Administration’s three-




      1   Coronavirus Disease 2019 (COVID-19): Cases in the U.S., Ctrs. for Disease Control
& Prevention, https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html
(last visited June 17, 2020).
        2 Available at https://gov.louisiana.gov/assets/Proclamations/2020/modified/25-JBE-

2020-Public-Health-Emergency-COVID-19.pdf.
        3 Available at https://gov.louisiana.gov/assets/Proclamations/2020/JBE-33-2020.pdf.
        4 Available at https://gov.louisiana.gov/assets/Proclamations/2020/modified/41-JBE-

2020-Public-Health-Emergency.pdf.
        5 Available at https://gov.louisiana.gov/assets/Proclamations/2020/modified/52-JBE-

2020-State-of-Emergency-COVID-19-Extension-to-May-15.pdf.


                                            2
                                     No 20-30358

phased reopening approach. 6 La. Exec. Dep’t, Proclamation No. 58 JBE 2020. 7
So instead of renewing the stay-at-home order for a third time, the Governor
issued a proclamation for Phase 1. It allowed churches to hold gatherings with
up to 25 percent of their “total occupancy.” Id. § 2(G)(4)(a). On June 5, the
Governor transitioned the state to Phase 2. La. Exec. Dep’t, Proclamation No.
74 JBE 2020. 8 The Phase 2 guidance—still in effect today—allows churches to
operate at 50 percent capacity. Id. § 2(G)(4)(a).
                                           B.
      Pastor Mark Anthony Spell leads Life Tabernacle Church in Baton
Rouge. The church has over 2,000 members. They “sincerely believe that the
Bible commands them to hold . . . services in person.”
      When the Governor’s first stay-at-home order went into effect, Life
Tabernacle remained open. Pastor Spell was subsequently arrested for defying
the order. And because he repeatedly held in-person services, police issued
him six misdemeanor summons. Pastor Spell was also arrested for an alleged
assault and, as a condition of bond, placed on house arrest. Nevertheless, he
continued to preach to his congregation. On May 7, he and Tabernacle Life
Church filed this lawsuit.
      Attacking the stay-at-home orders’ ten-person gathering limit, the
plaintiffs asserted several federal and state constitutional claims. They asked
for permanent injunctive relief and damages, but first sought a preliminary
injunction to stop enforcement of the orders.
      Working diligently to resolve the motion, the district court heard
argument and issued an order denying the requested relief on May 15. Spell

      6  Opening Up America Again, The White House, https://www.whitehouse.gov/opening
america/ (last visited on June 17, 2020).
       7 Available at https://gov.louisiana.gov/assets/Proclamations/2020/58-JBE-2020.pdf.
       8 Available at https://gov.louisiana.gov/assets/Proclamations/2020/74-JBE-2020-

State-of-Emergency-COVID-19-Resilient-Louisiana-Phase-2.pdf.


                                            3
                                    No 20-30358

v. Edwards, -- F. Supp. 3d --, 2020 WL 2509078 (M.D. La. 2020). The court
denied the motion on the merits, but it also noted the possibility of mootness
given that the challenged orders were set to expire that day. Id. at *5–6.
      The plaintiffs did not immediately appeal the denial of injunctive relief.
Instead, two weeks after the court’s ruling, they filed an amended complaint
acknowledging that the Governor had lifted the ten-person gathering
restriction.   Not until three weeks after the district court’s order did the
plaintiffs notice this appeal. They also asked us to grant an injunction pending
appeal. FED. R. APP. P. 8(a)(1)(C). They did not first ask the district court for
that relief as the rule requires.
                                        II.
      This recap of the case’s history shows why the current appeal—
challenging only the denial of the motion for a preliminary injunction—is moot.
Mootness is one of the doctrines that ensures federal courts are only deciding
live cases or controversies. Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669
(2016). A matter is moot “when it is impossible for a court to grant any
effectual relief whatever to the prevailing party.” Knox v. Serv. Emps. Int’l
Union, Local 1000, 567 U.S. 298, 307 (2012) (quotations omitted).
      It makes sense, then, that a case challenging a statute, executive order,
or local ordinance usually becomes moot if the challenged law has expired or
been repealed. See, e.g., Veasey v. Abbott, 888 F.3d 792, 799 (5th Cir. 2018)
(“Ordinarily, a[n] [action] challenging a statute would become moot by the
legislature’s enactment of a superseding law.”). Once the law is off the books,
there is nothing injuring the plaintiff and, consequently, nothing for the court
to do. See N.Y. State Rifle & Pistol Ass’n, Inc. v. City of New York, 140 S. Ct.
1525, 1526 (2020) (holding that a claim for injunctive relief against a law was
moot when the law was amended to give “the precise relief that [the plaintiffs]



                                        4
                                  No 20-30358

requested”); Amawi v. Paxton, 956 F.3d 816, 819, 821 (5th Cir. 2020)
(dismissing an appeal as moot because a statutory amendment “provided the
plaintiffs the very relief their lawsuit sought”).
      That said, “a defendant cannot automatically moot a case simply by
ending its [allegedly] unlawful conduct once sued.” Already, LLC v. Nike, Inc.,
568 U.S. 85, 91 (2013); see also Opulent Life Church v. City of Holly Springs,
697 F.3d 279, 284–86 (5th Cir. 2012) (concluding that a city’s repeal of an
ordinance the night before oral argument did not moot the plaintiff’s challenges
to the ordinance). If that is all it took to moot a case, “a defendant could engage
in unlawful conduct, stop when sued to have the case declared moot, then pick
up where he left off, repeating this cycle until he achieves all his unlawful
ends.” Nike, 568 U.S. at 91. To show that such a change of heart is not mere
litigation posturing, a defendant asserting mootness must demonstrate “that
it is absolutely clear the allegedly wrongful behavior could not reasonably be
expected to recur.” Freedom From Religion Found. v. Abbott, 955 F.3d 417,
425 (5th Cir. 2020); see also Yarls v. Bunton, 905 F.3d 905, 910 (5th Cir. 2018)
(“Essentially, the goal is to [decide] whether the defendant’s actions are
‘litigation posturing’ or whether the controversy is actually extinguished.”).
      But a statute that expires by its own terms does not implicate those
concerns. Why? Because its lapse was predetermined and thus not a response
to litigation. So unlike a postsuit repeal that might not moot a case, a law’s
automatic expiration does.     Trump v. Hawaii, 138 S. Ct. 377, 377 (2017)
(dismissing as moot a challenge to an executive order’s provisions that had
“expired by [their] own terms”); see also Burke v. Barnes, 479 U.S. 361, 363–64
(1987) (holding “that any issues concerning whether [a bill] became a law were
mooted when [it] expired by its own terms”).




                                         5
                                      No 20-30358

       Governor Edwards’s stay-at-home orders expired by their own terms.
The plaintiffs’ request that we enjoin them is therefore moot. Trump, 138 S.
Ct. at 377; Burke, 479 U.S. at 363–64. 9
       Plaintiffs contend that another way around mootness—the “capable of
repetition, yet evading review” exception—keeps this appeal alive.                    This
exception overcomes the general rule against deciding stale claims only if: (1)
“the challenged action [is] in its duration too short to be fully litigated prior to
cessation or expiration,” and (2) “there [is] a reasonable expectation that the
[plaintiffs] [will] be subject to the same action again.” Kingdomware Techs.,
Inc. v. United States, 136 S. Ct. 1969, 1976 (2016) (instructing that this
“exception applies only in exceptional situations” (quotation omitted)). The
plaintiffs must prove these requirements. Libertarian Party v. Dardenne, 595
F.3d 215, 217 (5th Cir. 2010). Even if the first requirement (duration) is
satisfied for the stay-at-home orders, the plaintiffs fail to establish that the
Governor might reimpose another gathering restriction on places of worship.
The trend in Louisiana has been to reopen the state, not to close it down. To
be sure, no one knows what the future of COVID-19 holds. But it is speculative,
at best, that the Governor might reimpose the ten-person restriction or a
similar one. Lopez v. City of Houston, 617 F.3d 336, 340 (5th Cir. 2010)
(requiring more than “merely a theoretical possibility” that the allegedly
wrongful conduct would reoccur (quotation omitted)); see also Cameron, 2020
WL 2573463, at *2 (concluding that the exception did not apply to a mooted
claim challenging expired COVID-19 restrictions in part because “it seem[ed]
unlikely that [they] w[ould] be reissued”).

       9 See also Martinko v. Whitmer, -- F. Supp. 3d --, 2020 WL 3036342, at *3 (E.D. Mich.
June 5, 2020) (holding that a claim challenging superseded COVID-19 restrictions was moot);
Ministries v. Newsom, -- F. Supp. 3d --, 2020 WL 2991467, at *3 (S.D. Cal. June 4, 2020)
(same); Cameron v. Beshear, 2020 WL 2573463, at *2–3 (E.D. Ky. May 21, 2020) (same);
Krach v. Holcomb, 2020 WL 2197855, at *2 (N.D. Ind. May 6, 2020) (same).


                                             6
                                 No 20-30358

      What is more, the plaintiffs fail to cite any authority applying the
“capable of repetition” exception to support a Rule 8 injunction against an order
that is no longer in effect. The exception usually applies to keep a case alive,
largely out of a fear that the legal questions posed by cases prone to becoming
moot will never be answered. See 13C CHARLES ALAN WRIGHT ET AL., FEDERAL
PRACTICE AND PROCEDURE § 3533.8 (3d ed. 2020). That is not a concern here.
While the expiration of the stay-at-home orders moots plaintiffs’ request to
enjoin them, their claim for damages remains. See Opulent Life Church, 697
F.3d at 286; see also EDWIN CHEMERINSKY, FEDERAL JURISDICTION § 2.5.2 (6th
ed. 2012) (“[A] plaintiff seeking both injunctive relief and money damages can
continue to pursue the case, even after the request for an equitable remedy is
rendered moot.”). We express no view on the merits of that claim, which has
yet to reach final judgment.
                                      ***
      Because this appeal is moot, the plaintiffs’ motion for an injunction is
DENIED. For the same reasons, the appeal is DISMISSED. And because the
appeal became moot before appellate review, the district court’s order denying
preliminary relief is VACATED. Spell, 2020 WL 2509078. The plaintiff’s claim
for damages remains in the district court.




                                       7
                                       No 20-30358

JAMES C. HO, Circuit Judge, concurring:

       I agree that this appeal is moot due to recent changes to the Governor’s
order, and that the case will now return to the district court. I write separately
to note how other recent events may affect this case going forward.
                                            ***
       At the outset of the pandemic, public officials declared that the only way
to prevent the spread of the virus was for everyone to stay home and away from
each other. They ordered citizens to cease all public activities to the maximum
possible extent—even the right to assemble to worship or to protest.
       But circumstances have changed. In recent weeks, officials have not only
tolerated protests—they have encouraged them as necessary and important
expressions of outrage over abuses of government power.
       For people of faith demoralized by coercive shutdown policies, that raises
a question: If officials are now exempting protesters, how can they justify
continuing to restrict worshippers? The answer is that they can’t. Government
does not have carte blanche, even in a pandemic, to pick and choose which First
Amendment rights are “open” and which remain “closed.”
                                              I.
       Officials may take appropriate emergency public health measures to
combat a pandemic. See Jacobson v. Massachusetts, 197 U.S. 11, 30–31 (1905).
See also Prince v. Massachusetts, 321 U.S. 158, 166–67 (1944). But “[n]othing
in Jacobson supports the view that an emergency displaces normal
constitutional standards.” S. Bay United Pentecostal Church v. Newsom, 959
F.3d 938, 942 (9th Cir. 2020) (Collins, J., dissenting) (emphasis omitted). 1



       1Judge Collins has criticized our court for reading Jacobson too broadly in favor of the
government. See S. Bay, 959 F.3d at 943 n.2 (criticizing In re Abbott, 954 F.3d 772 (5th Cir.
2020)). I would simply observe that, whatever Jacobson’s scope, Abbott makes clear that


                                              8
                                        No 20-30358

       The Governor invokes Employment Division v. Smith, 494 U.S. 872
(1990). But Smith upheld a “neutral law of general applicability” against
challenge under the Free Exercise Clause. Id. at 879 (quotations omitted).
Smith does not cover laws that grant exemptions to some, while denying them
to people of faith. “Religious liberty deserves better than that—even under
Smith.” Horvath v. City of Leander, 946 F.3d 787, 795 (5th Cir. 2020) (Ho, J.,
concurring in the judgment in part and dissenting in part). 2
       Instead, laws that burden religion while exempting the non-religious
must pass strict scrutiny. See Church of the Lukumi Babalu Aye, Inc. v. City
of Hialeah, 508 U.S. 520, 546 (1993). The burden on religion “must be justified
by a compelling governmental interest,” and the law “must be narrowly
tailored to advance that interest.” Id. at 531–32. That is a heavy lift: Such
laws “will survive strict scrutiny only in rare cases.” Id. at 546.
       I do not expect this to be one of those “rare cases.” Id. Pastor Mark
Anthony Spell and his parishioners seek to worship as their faith directs. They
cannot do so, however, due to a series of orders by Governor John Bel Edwards
that forbid citizens from assembling in public—including inside churches.
       The Governor no doubt issued those orders out of sincere public health
concerns. To survive First Amendment scrutiny, however, those concerns must



pandemic regulations must govern “evenhandedly”—precisely the problem here. In re
Abbott, 954 F.3d at 792.
        2 Smith has been derided by “[c]ivil rights leaders and scholars . . . as ‘the Dred Scott

of First Amendment law,’” criticized by “[a]t least ten members of the Supreme Court,” and
“widely panned as contrary to the Free Exercise Clause and our Founders’ belief in religion
as a cornerstone of civil society.” Horvath, 946 F.3d at 794–95 (Ho, J., concurring in the
judgment in part and dissenting in part) (quoting other sources). Smith is troubling because
it is of “little solace to the person of faith that a non-believer might be equally
inconvenienced.” Id. at 796. “For it is the person of faith whose faith is uniquely burdened—
the non-believer, by definition, suffers no such crisis of conscience. This recalls Anatole
France’s mordant remark about ‘the majestic quality of the law which prohibits the wealthy
as well as the poor from sleeping under the bridges, from begging in the streets, and from
stealing bread.’” Id. (quoting ANATOLE FRANCE, THE RED LILY 87 (1910)).


                                               9
                                       No 20-30358

be applied consistently, not selectively. And it is hard to see how that rule is
met here if the record is developed to take account of the recent protests.
       It is common knowledge, and easily proved, that protestors do not comply
with social distancing requirements. 3 But instead of enforcing the Governor’s
orders, officials are encouraging the protests—out of an admirable, if belated,
respect for First Amendment rights.               The Governor himself commended
citizens for “appropriately expressing their concerns and exercising their First
Amendment Rights.” 4 And he predicted that “we will continue to see peaceful,
nonviolent demonstrations and protests where people properly exercise their
First Amendment rights.” 5
       If protests are exempt from social distancing requirements, then worship
must be too. As the United States recently observed, “California’s political
leaders have expressed support for such peaceful protests and, from all
appearances, have not required them to adhere to the now operative 100-
person limit. . . . [I]t could raise First Amendment concerns if California were
to hold other protests . . . to a different standard.” Brief for the United States
as Amicus Curiae at 24, Givens v. Newsom, No. 20-15949 (9th Cir. June 10,
2020). The same principle should apply to people of faith. See, e.g., Lukumi,
508 U.S. at 537 (“[Where] individualized exemptions from a general
requirement are available, the government may not refuse to extend that




       3  See, e.g., George Floyd protest in Baton Rouge: See photos, videos of peaceful march,
THE ADVOCATE (May 31, 2020), https://www.theadvocate.com/baton_rouge/multimedia
/photos/collection_fc447130-a374-11ea-ba75-13e315745881.html#3.
        4 David Gray, Gov. Edwards commends Louisiana’s ‘peaceful’ protests after ‘egregious’

death of George Floyd, THE LIVINGSTON PARISH NEWS (June 2, 2020),
https://www.livingstonparishnews.com/breaking_news/gov-edwards-commends-louisiana-s-
peaceful-protests-after-egregious-death-of-george-floyd/article_8c81f514-a506-11ea-b00a-
cffba12e8440.html.
        5 Melinda Deslatte, Louisiana governor praises state’s peaceful Floyd protests, AP

NEWS (June 3, 2020), https://apnews.com/51fd29f1cd6bd7e6d2bea8799117fec8.


                                             10
                                       No 20-30358

system to cases of religious hardship without compelling reason.”) (quotations
omitted).
                                             II.
       The Governor may respond that his order forbids only indoor worship
but still allows people of faith to worship outdoors. But whether health experts
would endorse that dichotomy—and whether the First Amendment permits
it—is far from obvious. 6
       Underinclusive rules fail strict scrutiny just as overinclusive ones do. A
“law cannot be regarded as protecting an interest of the highest order when it
leaves appreciable damage to that supposedly vital interest unprohibited.”
Lukumi, 508 U.S. at 547 (cleaned up). To survive strict scrutiny, then, the
Governor must show that a rule restricting indoor worship, while exempting
outdoor worship, is narrowly tailored to further a compelling interest.
       That may not be easy. Plaintiffs can presumably find health experts who
say outdoor protests present serious health concerns. 7 They might also find
health experts who support and encourage the protests, not because they pose
no health risk, but because their social value outweighs any risk. 8
       Such support for the protests reflects a commendable commitment to
equality. But public officials cannot devalue people of faith while elevating
certain protestors. That would offend the First Amendment—not to mention
the principle of equality for which the protests stand.



       6  Under his logic, the Governor would allow tens of thousands of LSU fans to assemble
this fall under the open sky at Tiger Stadium, while forbidding countless others from cheering
on the Saints under the Superdome.
        7 See, e.g., Morgan Winsor, Dr. Fauci voices concerns about coronavirus spreading

amid nationwide protests, ABC NEWS (June 10, 2020), https://abcnews.go.com/US/dr-fauci-
voices-concerns-coronavirus-spreading-amid-nationwide/story?id=71171103.
        8 See, e.g., Jamie Ducharme, “Protest Is a Profound Public Health Intervention.” Why

So Many Doctors Are Supporting Protests in the Middle of the Covid-19 Pandemic, TIME (June
10, 2020), https://time.com/5848212/doctors-supporting-protests/.


                                             11
                                 No 20-30358

                                       ***
      None of this is to say that Pastor Spell and his parishioners should ignore
the advice of health experts. But the same is true for the protestors. No doubt
many other Louisianans would have protested too, but for the advice of health
experts. The point here is that state and local officials gave them the choice.
Those officials took no action when protestors chose to ignore health experts
and violate social distancing rules. And that forbearance has consequences.
      The First Amendment does not allow our leaders to decide which rights
to honor and which to ignore. In law, as in life, what’s good for the goose is
good for the gander.     In these troubled times, nothing should unify the
American people more than the principle that freedom for me, but not for thee,
has no place under our Constitution.
      I concur in the dismissal of this appeal as moot, but in anticipation that
a future appeal may turn out very differently.




                                       12
