O.E.O. v. Figueroa et al

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
O.E.O.,
Petitioner,
v.
Fred Figueroa, et al.,
Respondents.
No. CV-25-02283-PHX-DWL (MTM)
ORDER
In a June 26, 2026 order, the Court indicated that Respondents’ mootness arguments
“seem[ed] correct” but afforded Petitioner a further chance to be heard. (Doc. 105.)
Having reviewed Petitioner’s resulting brief (Doc. 106), the Court changes course and
agrees with Petitioner that this action is not subject to dismissal on mootness grounds.
As background, “[t]he 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. But voluntary cessation can yield
mootness if a stringent standard is met: A case might become moot if subsequent events
made it absolutely clear that the allegedly wrongful behavior could not reasonably be
expected to recur. The party asserting mootness bears a heavy burden in meeting this
standard.” Rosebrock v. Mathis, 745 F.3d 963, 971 (9th Cir. 2014). The Ninth Circuit has
“not set forth a definitive test for determining whether a voluntary cessation . . . not
reflected in statutory changes or even in changes in ordinances or regulations . . . has
rendered a case moot” but has “indicated that mootness is more likely if (1) the policy
Case 2:25-cv-02283-DWL--MTM Document 107 Filed 07/21/26 Page 1 of 5

- 2 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
change is evidenced by language that is broad in scope and unequivocal in tone; (2) the
policy change fully addresses all of the objectionable measures that the Government
officials took against the plaintiffs in the case; (3) the case in question was the catalyst for
the agency’s adoption of the new policy; (4) the policy has been in place for a long time
when we consider mootness; and (5) since the policy’s implementation the agency’s
officials have not engaged in conduct similar to that challenged by the plaintiff. On the
other hand, we are less inclined to find mootness where the new policy . . . could be easily
abandoned or altered in the future.” Id. at 972 (cleaned up). “Ultimately, the question
remains whether the party asserting mootness has met its heavy burden of proving that the
challenged conduct cannot reasonably be expected to recur.” Id.
Here, even though Petitioner has now obtained essentially all of the relief he sought
at the outset of this litigation—he has now received a favorable age redetermination, been
released from an adult ICE detention facility, and been allowed to reunite with his chosen
sponsor—each development was due to Respondents’ voluntary cessation of the conduct
that Petitioner sought to challenge. Notably, Respondents acknowledge that this lawsuit
was the catalyst for those acts of voluntary cessation. (Doc. 75 at 4, emphasis added
[“[T]he agencies have voluntarily agreed to reexamine their prior decisions and made make
[sic] a new determination of Petitioner’s age. Due to issues raised in the litigation, ICE
asked ORR to re-take custody of Petitioner for the purpose of conducting a new age
determination and ORR agreed to do so.”].) This acknowledgement cuts against a finding
of mootness. See, e.g., West Virginia v. EPA, 597 U.S. 697, 719 (2022) (“That burden is
heavy where, as here, the only conceivable basis for a finding of mootness in the case is
the respondent’s voluntary conduct”) (cleaned up); Fikre v. Fed. Bureau of Investigation,
904 F.3d 1033, 1039-40 (9th Cir. 2018) (“The FBI’s decision to restore Fikre’s flying
privileges is an individualized determination untethered to any explanation or change in
policy, much less an abiding change in policy. . . . DHS affirmed as late as March 2015
. . . that Fikre posed ‘a threat to civil aviation or national security’ and it refused to remove
him from the No Fly List. Yet it did just that fourteen months later, without explanation
Case 2:25-cv-02283-DWL--MTM Document 107 Filed 07/21/26 Page 2 of 5

- 3 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
or any announced change in policy. Fikre was taken off the list two months after briefing
was completed on the government’s motion to dismiss Fikre’s lawsuit. This record
suggests that Fikre’s removal from the No Fly List was more likely an exercise of discretion
than a decision arising from a broad change in agency policy or procedure.”). In contrast,
courts are more likely to find mootness when, unlike in this case, the acts of voluntary
cessation were due to an intervening change in the law or a broader change in agency
policy. See, e.g., Public Utilities Comm’n of State of Cal. v. F.E.R.C., 100 F.3d 1451, 1460
(9th Cir. 1996) (concluding that “the voluntary cessation exception is inapplicable” where
“Mojave Pipeline’s decision to refuse its section 7 certificate was motivated by
economic/business considerations, not this litigation”); Pizzuto v. Tewalt, 2024 WL
2832598, *4 (D. Idaho 2024) (“Defendant Tewalt has clearly identified the Supreme
Court’s opinion in Ramirez as the catalyst for his decision to reverse course and approve
Pizzuto’s requests. That independent basis for the defendants’ change in stance lends
credence to their assurance that Pizzuto will receive the accommodation.”).
It is also notable that, in response to the Court’s invitation to “provide the sort of
assurances necessary to avoid application of the voluntary-cessation doctrine” (Doc. 103
at 8), Respondents did not submit any declarations or other evidence and did not
affirmatively disavow an intention to revisit their treatment of Petitioner in the future.
Instead, Respondents merely asserted through counsel that it “is highly unlikely,”
“certainly not reasonably exepected [sic],” and “not at all probable” that they will do so.
(Doc. 104 at 1-2.) On the one hand, the Court accepts that these representations are sincere
and offered in good faith. Rosebrock, 745 F.3d at 971 (“We presume that a government
entity is acting in good faith when it changes its policy . . . . .”). And the plausibility of
these assurances is enhanced by Petitioner’s failure, in response to the Court’s invitation
to “identify, if one exists, any prior case in which ORR determined that an unaccompanied
alien was a minor, and thus released that individual to the custody of a sponsor, only for
ICE and/or ORR to later reconsider the age determination and deem the individual an
adult” (Doc. 105 at 1-2), to identify any such case. (Doc. 106.) On the other hand,
Case 2:25-cv-02283-DWL--MTM Document 107 Filed 07/21/26 Page 3 of 5

- 4 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Respondents’ showing here is still less developed and convincing than the sort of showing
the government often makes when attempting to establish the inapplicability of the
voluntary-cessation exception to mootness. See, e.g., Picrin-Peron v. Rison, 930 F.2d 773,
776 (9th Cir. 1991) (when the Ninth Circuit asked the government to supply “any authority
for its promise” that the challenged conduct would not recur, “the government filed a
declaration of the director of the Los Angeles District Office of the INS who reiterated
under oath the statement made by the government in its motion”); Pizzuto, 2024 WL
2832598 at *4 (“Here, as in Picrin-Peron, the defendants have done more than make bare
assertions of mootness. In both cases, the government-defendants offered sworn,
unequivocal assurances that the challenged conduct would not occur in the future.”).
Additionally, Respondents’ assurances are not entirely consistent with ORR’s express
disclaimer, in the most recent age determination, that “should ORR obtain new evidence,
or if ORR is able to authenticate existing or new evidence, the Office reserves the right to
engage in a new review.” (Doc. 106 at 19.)
Given this backdrop, the Court concludes—while acknowledging that the issue
presents a close call—that Respondents have not met their heavy burden of establishing
mootness based on their voluntary cessation of the challenged conduct. The first
Rosebrock factor (i.e., “the policy change is evidenced by language that is broad in scope
and unequivocal in tone”) cuts against Respondents because, as noted above, ORR has
expressly reserved the right to reconsider the age determination and Respondents failed to
provide the type of rock-solid assurances that are often provided in this context. The third
Rosebrock factor (i.e., “the case in question was the catalyst for the agency’s adoption of
the new policy”) also cuts against Respondents because, as noted above, this case alone—
and not some intervening legal development or policy change—was the catalyst for the
change in Petitioner’s treatment. And the fourth Rosebrock factor (i.e., “the policy has
been in place for a long time when we consider mootness”) is also unfavorable to
Respondents because all of the developments at issue occurred within the past few weeks
or months. Compare Pizzuto, 2024 WL 2832598 at *4 (“Defendant Tewalt’s commitment
Case 2:25-cv-02283-DWL--MTM Document 107 Filed 07/21/26 Page 4 of 5

- 5 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
to provide Pizzuto’s requested accommodations has remained in place and undisturbed for
over a year and a half.”). Thus, even though the second Rosebrock factor (i.e., “the policy
change fully addresses all of the objectionable measures that the Government officials took
against the plaintiffs in the case”) and the fifth Rosebrock factor (i.e., “since the policy’s
implementation the agency’s officials have not engaged in conduct similar to that
challenged by the plaintiff”) can be viewed as favoring Respondents, on balance they are
outweighed by the other factors.
As for how to proceed from here, before the issue of mootness arose, the parties
proposed the adoption of a schedule under which “Cross Motions for Summary Judgment
will be due to the Court thirty days after the Court’s order on the Preliminary Injunction.”
(Doc. 98 at 2.) Because Petitioner’s motion for preliminary injunction has since been
denied (Doc. 103), the Court will set a deadline of 30 days from the issuance of this order
to file cross-motions for summary judgment as to the remaining claims in this case.
Accordingly,
IT IS ORDERED that the parties’ cross-motions for summary judgment are due
within 30 days of the issuance of this order.
Dated this 20th day of July, 2026.
Case 2:25-cv-02283-DWL--MTM Document 107 Filed 07/21/26 Page 5 of 5