United States District Court, S.D. West Virginia, Bluefield
MEMORANDUM OPINION AND ORDER
A. Faber Senior United States District Judge
before the court is plaintiffs' motion for leave to
conduct limited discovery. (ECF No. 86). In that motion, they
seek to engage in limited discovery related to
defendants' argument that this case is now moot.
Defendants oppose allowing discovery because the Mercer
County Board of Education passed a resolution that it
“will never offer or employ the BITS [Bible in the
Schools] program in any of its schools”. ECF No. 93 at
2. According to defendants, this settles it. The case is
moot. End of story. See id. at 13.
appeals court wrote in this case,
A case becomes moot “when the issues presented are no
longer `live' or the parties lack a legally cognizable
interest in the outcome.” Simmons v. United Mortg.
& Loan Inv., LLC, 634 F.3d 754, 763 (4th Cir. 2011)
(internal quotation marks omitted).
When a defendant voluntarily ceases a challenged program,
however, the analysis requires additional rigor. In such a
case, “[i]t is well settled that a defendant's
voluntary cessation of a challenged practice does not deprive
a federal court of its power to determine the legality of the
practice.” Laidlaw, 528 U.S. 189, 120 S.Ct.
693 (internal quotation marks omitted). Rather, a party
asserting mootness bears a “heavy burden of
persuading” the court that “subsequent events
[make] it absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to
recur.” Id. (alteration omitted and emphasis
Deal v. Mercer County Bd. of Educ., 911 F.3d 183,
191 (4th Cir. 2018); see also Grutzmacher v. Howard
County, 851 F.3d 332, 349 (4th Cir. 2017) (“It is
well established that a defendant's voluntary cessation
of a challenged practice moots an action only if subsequent
events made it absolutely clear that the allegedly wrongful
behavior could not reasonably be expected to recur.”)
(internal citations and quotations omitted).
Grutzmacher, the court concluded that the defendants
in that case had met their “heavy burden of
persuad[ing]” the court “that they will not
revert to the challenged policies” and that dismissal
for mootness was proper. Id. In so doing, the Fourth
Circuit looked at the record and could “discern `no
hint'” that the defendants “ha[d] any
intention in reinstating the prior policies.”
Id. Therefore, based on the “formal
assurances” of defendants “and the absence of any
evidence to the contrary, ” the court affirmed the
district court's mootness finding. Id.
contradictory evidence of record in this case on mootness,
the Fourth Circuit noted:
The County has consistently described the BITS program as
“suspend[ed], ” rather than eliminated outright.
Indeed, the County has characterized the suspension as part
of a regular review process, a dubious suggestion in view of
the program's uninterrupted, decades-long history.
See Already, LLC v. Nike, Inc., 568 U.S. 85, 91, 133
S.Ct. 721, 184 L.Ed.2d 553 (2013) (explaining that the
voluntary cessation exception prevents a defendant from
“engag[ing] in unlawful conduct, stop[ping] when sued
to have the case declared moot, then pick[ing] up where he
Moreover, we have held that a defendant does not meet its
burden of demonstrating mootness when it retains authority to
“reassess” the challenged policy “at any
time.” Pashby, 709 F.3d at 316. Here, news
reports submitted to the district court by the County itself
emphasized that the County was “still vigorously
contesting” this suit and “fighting” to
retain the BITS program. Rather than enhancing the
County's case, these press reports reveal the precise
problem with relying on a party's voluntary cessation of
unconstitutional activity to establish mootness. Indeed, we
have routinely found such evidence insufficient. See
Porter, 852 F.3d at 364-65 (collecting cases).
Nor do we find compelling the fact that BITS teachers
received a notice from the Mercer County Board of Education
that their employment might be terminated. To the extent this
has persuasive value, it is undercut by Superintendant
Akers' description of the notices as a
“precautionary measure” driven solely by this
litigation and the school district's “mandatory
timelines” for informing teachers of their ongoing
employment status. Such equivocal evidence cannot save the
County's mootness claims.
In sum, the County has not carried its burden of showing that
subsequent events make it “absolutely clear” that
the suspended version of the BITS program will not return in
identical or materially indistinguishable form.
Laidlaw, 528 U.S. at 189. 120 S.Ct. 693.
Appellants' current claims are therefore not moot.
Deal, 911 F.3d at 191-92. The court understands that
the Board's resolution was passed after the appeal was
decided. However, that does not mean the court can ignore the
contradictory evidence in the record.
on the foregoing, the court deems it proper to allow
plaintiffs to engage in limited discovery regarding
the issue of mootness and the motion to do so is
GRANTED. Accordingly, the discovery deadline
in this matter is extended until October 1, 2019 to allow
discovery that bears directly on whether this case is mooted
by the resolution passed by the Mercer County Board of
Education. Plaintiffs will have until October 15, 2019 to
respond to defendants' motion to dismiss on the issue of
mootness and defendants may reply within the time period
provided by the local rules.[*] All other deadlines in the
scheduling order are CONTINUED ...