Doe v. McDonald

23-1224-cv
Doe v. McDonald
In the
United States Court of Appeals
For the Second Circuit
________
A UGUST TERM 2024
A RGUED: O CTOBER 15, 2024
D ECIDED: F EBRUARY 12, 2025
Docket No. 23-1124
JOHN D OE , A FICTITIOUS NAME ,
Petitioner–Appellee,
v.
JAMES V. MCD ONALD, M.D., IN HIS OFFICIAL CAPACITY AS
C OMMISSIONER OF HEALTH OF THE S TATE OF NEW YORK,
Respondent–Appellant,
A NNE MARIE T. S ULLIVAN, M.D., IN HER OFFICIAL CAPACITY AS
C OMMISSIONER OF MENTAL HEALTH FOR THE S TATE OF NEW YORK,
Respondent,
R UTH R IVERA, G EORGE IWCZENKO , B ARBARA A NN MOSS , M.D., E RIC
S COFF,
Intervenors–Defendants,
L OREN B ERGHORN, D IANA V ILA,
Intervenors.*
________
* The Clerk is respectfully instructed to amend the caption as set forth above.

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Appeal from the United States District Court
for the Northern District of New York.
________
Before: WALKER , JACOBS , and MERRIAM , Circuit Judges.
________
Petitioner-Appellee John Doe sued Respondent-Appellant
James V. McDonald, M.D., New York’s Commissioner of Health (the
“State”), and other defendants (who have not appealed), seeking
declaratory and injunctive relief under the Americans with
Disabilities Act, 42 U.S.C. § 12132; the Rehabilitation Act, 29 U.S.C.
§ 794; the Fair Housing Act, 42 U.S.C. § 3601 et seq.; and Article 78 of
the New York Civil Practice Law and Rules. Doe, an individual with
a serious mental illness, alleges that New York State regulations (the
“Regulations”) discriminate against him by blocking his readmission
to Oceanview Manor Home for Adults, a Transitional Adult Home
(“TAH”) in which he previously resided. Since he filed suit, the State
has allowed Doe to return to Oceanview, amended the Regulations to
allow for the readmission of former TAH residents with serious
mental illness, and removed Oceanview’s classification as a TAH. The
State moved for summary judgment on the ground that Doe lacks
standing. The district court (Suddaby, J.) denied the State’s motion.
The district court granted the State leave to file an interlocutory
appeal.
On appeal, the State argues that in finding standing, the district
court erred because Doe lacks a concrete plan to leave and seek
readmission to Oceanview. Because the State’s jurisdictional
challenge addresses events that occurred after Doe filed suit, it is
properly assessed as a question of mootness, not standing. For the
reasons that follow, we find that Doe’s suit is moot and DISMISS the

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appeal, VACATE the district court’s order, and REMAND with
instructions to dismiss for lack of subject matter jurisdiction.
________
G ARY J. MALONE , Constantine Cannon LLP, New
York, NY (Robert L. Begleiter, on the brief), for
Respondent–Appellant James V. McDonald, M.D.
MICHAEL Y. H AWRYLCHAK , O’Connell and
Aronowitz, Albany, NY (Jeffrey J. Sherrin, on the
brief), for Petitioner–Appellee John Doe.
________
JOHN M. WALKER , JR ., Circuit Judge:
Petitioner-Appellee John Doe sued Respondent-Appellant
James V. McDonald, M.D., New York’s Commissioner of Health (the
“State”),1 and other defendants (who have not appealed), seeking
declaratory and injunctive relief under the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12132; the Rehabilitation Act, 29
U.S.C. § 794; the Fair Housing Act, 42 U.S.C. § 3601 et seq.; and
Article 78 of the New York Civil Practice Law and Rules. Doe, an
individual with a serious mental illness, alleges that New York State
regulations (the “Regulations”) discriminate against him by blocking
his readmission to Oceanview Manor Home for Adults, a Transitional
Adult Home (“TAH”) in which he previously resided. Since he filed
suit, the State has allowed Doe to return to Oceanview, amended the
Regulations to allow for the readmission of former TAH residents
with serious mental illness, and removed Oceanview’s classification
1 McDonald is the current Commissioner of Health; Doe’s petition originally
named the former Commissioner, Howard Zucker.

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as a TAH. The State moved for summary judgment on the ground
that Doe lacks standing. The district court (Suddaby, J.) denied the
State’s motion. The district court granted the State leave to file an
interlocutory appeal.
On appeal, the State argues that in finding standing, the district
court erred because Doe lacks a concrete plan to leave and seek
readmission to Oceanview. Because the State’s jurisdictional
challenge addresses events that occurred after Doe filed suit, it is
properly assessed as a question of mootness, not standing. For the
reasons that follow, we find that Doe’s suit is moot and DISMISS the
appeal, VACATE the district court’s order, and REMAND with
instructions to dismiss for lack of subject matter jurisdiction.
BACKGROUND
On January 16, 2013, the New York Department of Health
(“DOH”) and Office of Mental Health published the Regulations. The
Regulations seek to integrate homes, including TAHs, to include both
disabled and non-disabled residents. They do so in part by
prohibiting such homes from accepting new residents with serious
mental illness until their populations become more integrated. The
Regulations were implemented following separate federal litigation
involving the “integration mandate” of Title II of the ADA as set forth
in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), and as part of
the State’s larger policy to prevent the housing segregation of
individuals with serious mental illness.
Doe currently resides at Oceanview Manor Home for Adults
(“Oceanview”), an adult home in Coney Island previously designated

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as a TAH.2 In 2014, Doe moved out of Oceanview and into supported
housing. Two years later, in 2016, Doe sought to return to Oceanview
after this attempt to live independently failed. However, he was
denied readmission pursuant to the Regulations because Oceanview
was then-classified as a TAH and had not yet integrated to the point
where it could accept new residents with serious mental illness.
Following that denial, Doe commenced this action in New York state
court on November 22, 2016, alleging that the Regulations harmed
him by denying him the ability to return to Oceanview “due to his
mental illness.” App’x at 48.
On March 22, 2017, the federal court overseeing the
enforcement of the integration settlement issued a temporary
restraining order, with the State’s consent, directing the State to grant
Doe’s request to return to Oceanview (the “TRO”). Doe returned on
October 31, 2017. On November 4, 2021, Doe again attempted to
move out of Oceanview, but immediately changed his mind and was
allowed to return on the same day before his discharge had been
processed.
On January 25, 2019, the DOH announced a provision to allow
TAHs to readmit persons with serious mental illness, like Doe, on a
case-by-case basis. On October 23, 2019, the State published an
emergency rule providing that when a prospective resident is “a
person with serious mental illness, but the individual is a former
resident of a [TAH] and the [admitting facility] obtains a waiver” from
2 A “transitional adult home” is “an adult home with a certified capacity of 80 beds
or more in which 25 percent or more of the resident population are persons with
serious mental illness.” N.Y. Comp. Codes R. & Regs. tit. 18, § 487.13(b)(1).
“Persons with serious mental illness” are those with “a designated diagnosis of
mental illness” which “results in substantial functional disability.” Id. § 487.2(c).

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the DOH, that individual is eligible for readmission even if the TAH
had not yet sufficiently integrated under the Regulations. App’x at
214. The rule became permanent on March 25, 2020 (the “Waiver
Rule”). As of April 2024, the DOH terminated Oceanview’s
designation as a TAH. Tenth Annual Report at 22 & n.28, O’Toole v.
Hochul, No. 1:13CV04166(NGG)(ST) (E.D.N.Y. April 2, 2024), ECF No.
419.3
On October 29, 2021, the State moved for summary judgment
on several grounds, including by challenging Doe’s Article III
standing. The district court denied the State’s motion on June 30,
2023. On a certificate of appealability, the State appeals the district
court’s ruling that Doe has standing to maintain this action.4
S TANDARD OF R EVIEW
Article III standing is a question of law that this court reviews
de novo. Shain v. Ellison, 356 F.3d 211, 214 (2d Cir. 2004). “Because
federal courts are courts of limited jurisdiction, if a ‘court determines
at any time that it lacks subject-matter jurisdiction, the court must
dismiss the action.’” McMorris v. Carlos Lopez & Assocs., LLC, 995 F.3d
295, 299 (2d Cir. 2021) (quoting Fed. R. Civ. P. 12(h)(3)). “In addition,
we have an independent duty to consider other aspects of subject-
matter jurisdiction,” including mootness, sua sponte. Nat’l Org. for
Marriage, Inc. v. Walsh, 714 F.3d 682, 687, 692 (2d Cir. 2013).
3 At oral argument, the parties did not dispute this fact, nor did they contest our
taking judicial notice of it.
4 In orders dated July 20, 2018 and November 30, 2020 not at issue in this appeal,
the district court rejected arguments by the State in its motions to dismiss that the
TRO and the Waiver Rule mooted Doe’s claims. Doe v. Zucker, No.
1:17CV01005(GTS)(CFH), 2018 WL 3520422, at *9 (N.D.N.Y. July 20, 2018); id., 2020
WL 7024386, at *5-6 (N.D.N.Y. Nov. 30, 2020).

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To have standing, a plaintiff requesting forward-looking relief
“must face a real and immediate threat of repeated injury.” Murthy v.
Missouri, 603 U.S. 43, 57 (2024) (quotation marks and citation omitted).
This threat must be demonstrated “with the manner and degree of
evidence required at the successive stages of the litigation”; at
summary judgment, this requires specific facts “set forth by affidavit
or other evidence.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)
(quotation marks and citation omitted). However, “standing is to be
determined as of the commencement of suit,” even for plaintiffs
seeking forward-looking relief. Id. at 570 n.5. Therefore, “[w]hile the
proof required to establish standing increases as the suit proceeds, the
standing inquiry remains focused on whether the party invoking
jurisdiction had the requisite stake in the outcome when the suit was
filed.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008) (citations
omitted).
DISCUSSION
The parties have treated the relevant inquiry in this appeal as
solely one of standing. The jurisdictional objections raised by the
State, however, are instead properly addressed through a mootness
inquiry. Standing is determined as of the filing of the complaint. It is
uncontested that Doe had the requisite stake in the outcome of this
litigation when he filed suit and was being excluded from Oceanview.
That is the end of our standing inquiry. Any events occurring after
that time do not pertain to standing; the only question is whether they
render Doe’s case moot. Even when “[n]either party has raised the
issue of mootness on appeal, . . . because it is a jurisdictional question,
we must examine the issue sua sponte when it emerges from the
record.” Muhammad v. City of New York Dep’t of Corr., 126 F.3d 119,
122 (2d Cir. 1997) (quotation marks and citation omitted).

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“While standing doctrine determines whether a plaintiff has a
personal stake in the litigation when the complaint is filed, mootness
doctrine determines what to do if an intervening circumstance
deprives the plaintiff of a personal stake in the outcome of the lawsuit,
at any point during litigation after its initiation.” Fed. Defs. of New
York, Inc. v. Fed. Bureau of Prisons, 954 F.3d 118, 126 (2d Cir. 2020) (per
curiam) (cleaned up). The State’s jurisdictional challenge, though
styled as one addressing standing, in fact focuses on events occurring
after Doe initiated this action on November 22, 2016: Doe moved back
into Oceanview pursuant to the TRO in October 2017; the Waiver Rule
was initiated in October 2019; Doe attempted to move out of
Oceanview in November 2021, and then promptly returned; and an
April 2024 report revealed that Oceanview lost its status as a TAH at
some point between March 2023 and March 2024. Tenth Annual
Report at 22 & n.28, O’Toole, No. 1:13CV04166(NGG)(ST).
In sum, post-filing changes in circumstance cannot deprive a
plaintiff of standing. See Davis, 554 U.S. at 734. Doe “met the
requirements for Article III standing when [he] commenced the
present action,” Chevron Corp. v. Donziger, 833 F.3d 74, 121 (2d Cir.
2016), and that is what matters to the analysis. See id. (determining
that “supposedly curative decisions” by foreign courts did not
destroy standing because they had not “yet been rendered” when
plaintiff commenced that action (citing Davis, 554 U.S. at 734)); Fed.
Defs. of New York, Inc., 954 F.3d at 126 (“In arguing that the Federal
Defenders’ stated injuries are not redressable because the MDC has
returned to its normal inmate-attorney visitation schedule,
Defendants appear to confuse standing with mootness.”). But our
jurisdictional inquiry does not end with standing. Because the State
focuses exclusively on events that occurred after the filing of the

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complaint, we instead evaluate its challenge to subject matter
jurisdiction through the lens of mootness.
I. Doe’s Claims Are Moot Because He Lacks an Enduring Stake
in the Outcome of this Suit.
To sustain jurisdiction, a dispute must not only be alive when
filed, but throughout its pendency. Already, LLC v. Nike, Inc., 568 U.S.
85, 90-91 (2013). A case is moot “when the issues presented are no
longer live or the parties lack a legally cognizable interest in the
outcome,” id. at 91 (quotation marks and citation omitted), making it
“impossible for a court to grant any effectual relief whatever to the
prevailing party,” Am. Freedom Def. Initiative v. Metro. Transp. Auth.,
815 F.3d 105, 109 (2d Cir. 2016) (per curiam) (quotation marks and
citation omitted). “The voluntary cessation of allegedly illegal
conduct usually will render a case moot” if “(1) there is no reasonable
expectation that the alleged violation will recur and (2) interim relief
or events have completely and irrevocably eradicated the effects of
the alleged violation.” Lamar Advert. of Penn, LLC v. Town of Orchard
Park, 356 F.3d 365, 375 (2d Cir. 2004) (quotation marks and citation
omitted). Here, the State rendered this case moot by voluntarily
ceasing its enforcement of the Regulations against Doe. Specifically,
it consented to his return to Oceanview pursuant to the TRO,
promulgated the Waiver Rule, and terminated Oceanview’s TAH
classification.
It is clear from the record that “there is no reasonable
expectation that the alleged violation”—Doe’s being denied
readmission to Oceanview because of the Regulations—“will recur.”
Id. First, the Waiver Rule makes it unlikely that Doe will again be
denied entry to Oceanview. “[A] significant amendment or repeal of
a challenged provision that obviates the plaintiff’s claims” ordinarily

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moots a litigation, “absent evidence that the defendant intends to
reinstate the challenged statute after the litigation is dismissed, or that
the municipality itself does not believe that the amendment renders
the case moot.” Id. at 377. In the absence of such evidence, we should
defer to a government entity’s representation that it will not reinstate
a challenged provision. Id.
There is no reason to doubt the State’s commitment to the
Waiver Rule here because the Regulations were only enacted as the
result of a separate ADA litigation, rather than because of any
independent State motive to limit the number of mentally ill residents
in TAHs. Cf. Mhany Mgmt., Inc. v. Cnty. of Nassau, 819 F.3d 581, 604
(2d Cir. 2016) (county’s voluntarily cessation did not moot lawsuit
where it occurred under “suspicious timing and circumstances”;
cessation tracked the timeline of the litigation; and county failed to
notify the court of its plans (citing City of Mesquite v. Aladdin's Castle,
Inc., 455 U.S. 283, 289 (1982))). Doe points out that the State’s decision
to ultimately grant him a waiver—if he ever requests one—remains
discretionary and asserts that the DOH denied waivers for three
applicants in December 2020 after a weeks-long delay. But, as
discussed above, there is no apparent incentive for the State to
abandon the Waiver Rule or deny or delay Doe’s application if this
suit is dismissed.5
It is also far from certain that Doe will ever need a waiver in the
first place. Doe currently resides at Oceanview, where he has
remained (but for one day) for over seven years. Although Doe has
expressed a desire “to once again move out to his own apartment,”
App’x at 1376, he has no actual plan to leave—and, therefore, no plan
5 DOH officials testified that waivers are granted or denied, on average, within 1.5
days. App’x at 1376.

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to return. As Doe stated in his response to the State’s Statement of
Material Facts, he merely “wants the option to move back to
Oceanview if” he does move out, and “it does not work out again.”
Id. Because Doe lacks a concrete plan to leave Oceanview, he is
unlikely to face an injury even if the State were to revoke the Waiver
Rule.
Future injury is even less likely because Oceanview is no longer
a TAH and is therefore not covered by the Regulations’ restriction on
admitting seriously mentally ill residents. Throughout this litigation,
Doe has only ever asserted that he would seek to return to Oceanview,
not any other TAH. See, e.g., App’x at 1379-80 (“I did not know the
neighborhood and I did not know anyone who lived around there. . . .
Because I was very unhappy with the apartment that I was assigned
to, I asked my social worker to bring me back to Oceanview[.]”); id. at
1380 (“I am very afraid to move out if I cannot be sure that I can return
to Oceanview whenever I want.”). Doe’s theory of future injury is
thus tied exclusively to the harm he would suffer if he were denied
readmission specifically to Oceanview, which is impossible unless
Oceanview is re-designated as a TAH.
Finally, “interim relief [and] events have completely and
irrevocably eradicated the effects of the alleged violation.” Lamar, 356
F.3d at 375 (quotation marks and citation omitted). As discussed
above, Doe was readmitted to and continues to reside in Oceanview,
which is no longer a TAH and is therefore not subject to the
Regulations. Further, the State promulgated the Waiver Rule to
provide individuals like Doe with protection from the harm Doe
fears. Because Doe lacks any continuing personal stake in the
outcome of this case, it is moot.

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II. No Exceptions to Mootness Apply.
A suit is not moot if it targets conduct which is “capable of
repetition, yet evading review.” Lillbask ex rel. Mauclaire v. State of
Conn. Dep’t of Educ., 397 F.3d 77, 84-85 (2d Cir. 2005) (quotation marks
and citation omitted). This rule “applies only in exceptional
situations” where “(1) the challenged action is in its duration too short
to be fully litigated prior to its cessation or expiration, and (2) there is
a reasonable expectation that the same complaining party would be
subjected to the same action again.” Id. at 85 (cleaned up). Regarding
the first condition, the Regulations were not promulgated with any
expiration date. None of the events that mooted Doe’s suit—the
Waiver Rule, Doe’s return to Oceanview, or Oceanview’s change in
status—are themselves too limited in duration to prevent the
Regulations from being fully litigated.
Second, there is no reasonable expectation that the Regulations
will exclude Doe from Oceanview again. Repetition “must be more
than a mere physical or theoretical possibility,” but “probable.” Id. at
86 (quotation marks and citation omitted). As described above, Doe’s
claim of future injury is highly speculative. He must first leave and
then seek readmission to Oceanview. The State must then reject or
delay the issuance of the waiver. Moreover, now that Oceanview is
no longer a TAH, it would also have to be redesignated as such before
Doe seeks readmission. Doe has not established a substantial risk that
all of these events will occur. This is not the kind of situation that
defeats mootness, but a risk that does not now exist and likely never
will.

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CONCLUSION
“When a civil case becomes moot on appeal from a federal
district court, the appropriate disposition is to dismiss the appeal,
reverse or vacate the district court judgment, and remand the case to
the district court with instructions to dismiss the complaint.” N.Y.C.
Emps.’ Ret. Sys. v. Dole Food Co., 969 F.2d 1430, 1433 (2d Cir. 1992)
(quotation marks and citation omitted). Accordingly, the appeal is
DISMISSED as moot, the June 30, 2023, Order of the district court is
VACATED, and the case is REMANDED with instructions to dismiss
for lack of subject matter jurisdiction.

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