In United States v. Perez-Garcia, No. 22-50314 (9th Cir. Mar. 18, 2024), the Ninth Circuit holds that once it has already announced a decision, any arguments thereafter regarding mootness are discretionary rather than jurisdictional, subject to “equitable and pragmatic considerations.”
During a criminal proceeding below, two defendants – as a condition of pretrial release – were temporarily barred from possessing firearms pending trial. The defendants appealed this restriction to the Ninth Circuit, contending that the pretrial firearm condition violated their Second Amendment rights under New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022). The panel issued a summary order affirming the restriction on January 26, 2023, simply stating: “We affirm the district court’s orders. An opinion explaining this disposition will follow.”
After the Ninth Circuit order, one defendant was tried and convicted, while the other had their bond revoked for failure to appear at hearings. The defendants moved to dismiss their own appeals, thereupon, on grounds of mootness.
The Ninth Circuit, in its opinion on the merits, denies the motions to dismiss. “We have explained that ‘[t]here is a significant difference between a request to dismiss a case or proceeding for mootness prior to the time an appellate court has rendered its decision on the merits and a request made after that time.’ Armster v. U.S. Dist. Ct. for the Cent. Dist. of Cal., 806 F.2d 1347, 1355 (9th Cir. 1986). The former scenario implicates limitations on our constitutional power because Article III does not give federal courts constitutional authority to decide moot cases. See id. But when mootness arises after a ‘valid decision’ has already been rendered, ‘we are not precluded from exercising [A]rticle III power.’ Id. Rather, we may exercise our discretion to determine whether the case should be dismissed based on equitable and pragmatic considerations.”
The panel cites four grounds for denying the motions. First, “the case is not moot, at least in the jurisdictional sense. We already heard and conclusively resolved the merits of Appellants’ appeal in a dispositive order, and no party disputes that we had jurisdiction when we decided this case.” Second, “this opinion is not advisory because it addresses ‘properly presented questions concerning . . . specific constitutional rights.’” The panel follows the Second Circuit’s holding that the “appellate practice of bifurcating an expedited order with its reasoning is common, often necessary, and constitutional.” Third, equity favors the issuance of a decision as guidance to lower courts. “Were we to dismiss Appellants’ appeals and not issue this opinion, we would deprive the legal community as a whole of ‘the benefit of an appellate court decision that adjudicated properly presented questions concerning . . . specific constitutional rights.’” Fourth, and relatedly, “dismissal would not be pragmatic because it would likely force later panels to duplicate our efforts while confronting the exact same issues.”
The panel also notes that allowing parties to dismiss their own appeals while awaiting a fuller opinion would allow parties to finagle a preferred outcome, disserving justice. “We are also mindful that dismissal at this stage could incentivize parties to strategically prevent the publication of a decision adverse to their interests. Here, Appellants seek dismissal only ‘[a]fter seeing the proverbial writing on the wall’ in our previously filed expedited order.”
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