I. Factual and Procedural Background

A.

John B. Brandau (“Brandau”) was arrested in Yosemite National Park (“Yosemite”) for disorderly conduct and public 11562 UNITED STATES v. BRANDAU intoxication. The next day he was brought before a United States magistrate judge in Yosemite. Brandau’s federal public defender made a motion to unshackle him during his initial appearance. The magistrate judge denied the request, consid- ering himself bound by the Eastern District of California’s General Order No. 441, which required the full shackling of all defendants at first appearance. Brandau pled guilty to pub- lic intoxication in a national park, was sentenced to twelve months of non-reporting informal probation, two days’ time served, a $250 fine, and attendance at AA meetings. He was released later that morning.

Brandau filed a timely appeal of the shackling order, argu- ing that General Order No. 441 should be rescinded, both on constitutional grounds and because the rule was promulgated without public notice and comment. His case was consoli- dated with two other appeals challenging the district-wide shackling policy, one of which involved Christina Ann Carr (“Carr”).

B.

Carr was indicted and charged with four counts of submit- ting false claims to FEMA and four counts of mail fraud. She was informed by the FBI that, on account of her cooperative- ness, she could appear on her own accord at the arraignment. She self-surrendered to the Marshal’s office, at which point she was taken into custody, fully shackled, and brought to court. Carr’s federal public defender requested that she be ordered unshackled for the first appearance, in light of the fact that she had just self-surrendered, but the magistrate judge denied the request without a hearing pursuant to General Order No. 441.

Carr pled not guilty and was ordered released on her own recognizance. She timely appealed the magistrate judge’s shackling order, and her case was consolidated with Bran- dau’s. UNITED STATES v. BRANDAU 11563 The government filed a superseding indictment and Carr pled guilty, pursuant to a plea agreement, to one count of making a false statement to a government agency. She agreed to waive her right to appeal “her plea, conviction and sen- tence.” She was sentenced to a 36-month term of supervised probation and to pay a restitution amount of $1,812.

C.

Prior to the arrests of Brandau and Carr, the district judges of the Eastern District of California (“the Eastern District”) adopted General Order No. 441. The Order, drafted in consul- tation with the United States Marshal for the Eastern District, mandated that “[a]t initial appearances, all defendants will be fully shackled.” (emphasis added). “Fully shackled” was defined to include “leg shackles, waist chains, and hand- cuffs.” General Order No. 441 did not provide for any indi- vidualized determinations regarding the appropriateness of full body shackling.

On appeal from the magistrates’ shackling orders in the consolidated cases, Judge Wanger of the Eastern District con- cluded that General Order No. 441 had not been promulgated with the appropriate public notice and comment rule-making procedure. He referred the General Order to all of the judges of the Eastern District for re-promulgation. The Eastern Dis- trict judges issued General Order No. 449, adopting Local Rule Criminal 43-401, which set out a new shackling policy for initial appearances in the Sacramento and Fresno court- houses, and directing a period of public notice and comment. The judges then vacated that Order and adopted modified rules twice more.

The present rule, announced in the second modification, General Order No. 465, applies only to the Sacramento court- house and requires that “[u]nless the Court determines other- wise, at the commencement of initial appearances, all in custody defendants shall be in leg restraints (including waist 11564 UNITED STATES v. BRANDAU chains).” (emphasis added). The rule is different from General Order No. 441 in certain key respects that were central to Brandau and Carr’s initial challenge: the present rule allows for the possibility of individualized determinations, applies only to in-custody defendants, and establishes a general prac- tice of leg and waist shackling but not of handcuffing. The new rule, however, does not apply to the courthouses in Fresno and Yosemite, where Carr and Brandau appeared. General Order No. 465 is accompanied by written findings, which note “the exclusion of the Fresno division from this policy” and explain that “each judge in that division is respon- sible for, and committed to the safety and decorum of the pro- ceedings, and makes shackling decisions on individual cases in consultation with counsel, parties and the United States Marshal.” The findings further explain that General Order No. 465 does not apply at all to the courthouse in Yosemite “be- cause of the type of facilities at [that] location[ ], and because the security in [that] location[ ] is provided by federal agen- cies other than the Marshal Service and whose primary func- tions do not include courtroom security.” There is no evidence in the record concerning the nature of the shackling policy or lack thereof in Yosemite.

Moreover, the government has provided us with no infor- mation at all regarding the practical effect of the new General Order, and whether or not the de facto policy in any or all of the three locations remains full shackling of all defendants at initial appearances. Notwithstanding this uncertainty, it is clear that, at the least, the letter of the law has changed signif- icantly since the cases were appealed. Accordingly, we are faced with the question whether this appeal is now moot.

II. Mootness

A. “Capable of repetition, yet evading review”

[2] The first hurdle that Brandau and Carr (“the defen- dants”) must overcome to show that their case is not moot UNITED STATES v. BRANDAU 11565 pertains to the unusual procedural posture of their challenge. The defendants’ initial appearances are long past, and they challenge the facial legitimacy of a shackling policy that, accordingly, no longer affects them. In the ordinary case, “[w]here the activities sought to be enjoined already have occurred, and the appellate courts cannot undo what has already been done, the action is moot, and must be dis- missed.” Bernhardt v. County of Los Angeles, 279 F.3d 862, 871 (9th Cir. 2002).

[3] There is an exception to mootness, however, for situa- tions that are “capable of repetition, yet evading review.” Gerstein v. Pugh, 420 U.S. 103, 111 n.11 (1975). Shackling at first appearances — even more than the pretrial detention at issue in Gerstein —

is by nature temporary, and it is most unlikely that any given individual could have his constitutional claim decided on appeal before he is either released or convicted. The individual could nonetheless suffer repeated deprivations, and it is certain that other per- sons similarly situated will [be subjected to] alleg- edly unconstitutional procedures.

Id. Under these circumstances we have

held that although the particular situation precipitat- ing a constitutional challenge to a government policy may have become moot, the case does not become moot if the policy is ongoing. “The continued and uncontested existence of the policy that gave rise to [the] legal challenges forecloses [the] mootness argument.”

Howard, 480 F.3d at 1010 (alterations in original; citation omitted) (quoting Oregon Advocacy Ctr. v. Mink, 322 F.3d 1101, 1118 (9th Cir. 2003)). Accordingly, we held in Howard that the appeal, which like the present case concerned a 11566 UNITED STATES v. BRANDAU district-wide shackling policy at initial appearances, was not moot because the shackling policy was ongoing, even though each of the seventeen defendants who challenged that policy on interlocutory appeal were no longer in pretrial criminal proceedings.

In the present case, however, the policy being challenged is, at least on paper, no longer in place. Unlike in Howard and Mink, the government does contest the policy’s continued existence. General Order No. 441 has been rescinded, and a new policy, adopted pursuant to General Order No. 465, has been implemented with respect to the Sacramento Court- house. The associated findings state that judges shall make individual determinations regarding shackling in Fresno, and that the policy does not apply at all in Yosemite. Because the letter of the law has changed, it is not at all certain that “the policy is ongoing,” Howard, 480 F.3d at 1010, or that appel- lants, or any others similarly situated, will be subjected to the “allegedly unconstitutional procedures,” which are “capable of repetition, yet evading review,” Gerstein, 420 U.S. at 111 n.11. Whether the Gerstein exception to mootness applies here is placed in doubt.

[4] Despite the fact that the law has changed, however, there is reason to think that the actual state of affairs has not. At oral argument, counsel for the defendants represented on the basis of personal experience that the Eastern District’s shackling practice remains now as it was. Counsel for the government conceded, also on the basis of her own experi- ence, that defendants in the Eastern District are still, in gen- eral, fully shackled (handcuffed and placed in waist and leg chains) at initial appearances and that she has not personally witnessed any individualized determinations regarding shack- ling. This anecdotal information strongly suggests that the full shackling policy is ongoing. As of now, and on the record before us on appeal, we do not have sufficient information to know whether that is the case, and whether, as a result, there UNITED STATES v. BRANDAU 11567 is an “ongoing policy” that renders the alleged violations “ca- pable of repetition, yet evading review.”

B. “Voluntary cessation”

[5] There is another mootness doctrine that affects our inquiry in this case: the “voluntary cessation” exception to mootness. Even if the shackling policy is no longer “ongo- ing,” Howard, 480 F.3d at 1010, the case is not moot if that policy was abandoned voluntarily and might reasonably recur. See Padilla v. Hanft, 547 U.S. 1062 (2006) (Ginsburg, J., dis- senting from denial of petition for certiorari) (“A party’s vol- untary cessation does not make a case less capable of repetition or less evasive of review.”).

[6] It is well established that the “voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S.167, 189 (2000) (quotation marks omitted). When a party abandons a challenged practice freely, the case will be moot only

“if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reason- ably be expected to recur” . . . . The “heavy burden of persuading” the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness.

Id. (quoting United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 203 (1968)) (alterations omitted) (emphasis added). The voluntary cessation exception is not absolute:

[E]ven when a cessation is voluntary, mootness can follow. Even then, the record may show that (1) it can be said with assurance that there is no reasonable 11568 UNITED STATES v. BRANDAU expectation . . . that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged vio- lation.

Smith v. Univ. of Wash., Law Sch., 233 F.3d 1188, 1194 (9th Cir. 2000) (quotation marks omitted); see also White v. Lee, 227 F.3d 1214, 1243 (9th Cir. 2000) (where the agency’s change in position was shown to be “permanent,” the action was moot).1

[7] On the record before us, it is by no means “absolutely clear” that the full shackling policy will not recur, or that in practice, the alleged violations ever ceased, let alone were “completely and irrevocably eradicated.” See, e.g., McBride Cotton and Cattle Corp. v. Veneman, 290 F.3d 973, 983 (9th Cir. 2002) (holding a case was not moot where, “[a]lthough the Secretary argues in her brief that she has now changed her policy . . . the plaintiffs have presented additional evidence suggesting that local offices have not followed the new poli- cy”). Indeed, the rapid re-promulgation of the shackling pol- icy on three separate occasions since these cases began suggests that the policy is not in its final iteration, and that any relief that the new policy has afforded is not “irrevoca- ble.”

[8] At the same time, it is possible that the change in policy was not fully voluntary and therefore does not fall under the “voluntary cessation” exception. See Smith, 233 F.3d at 1194- 1 A statutory change is, as a rule, generally sufficient to moot a case. See Native Village of Noatak v. Blatchford, 38 F.3d 1505, 1510 (9th Cir. 1994). That narrow exception, however, likely does not apply to rules pro- mulgated by the district courts. See Chemical Producers and Distributors Ass’n v. Helliker, 463 F.3d 871, 878 (9th Cir. 2006) (“The cases we cited in [Jacobus v. Alaska, 338 F.3d 1095 (9th Cir. 2003)] for a near categori- cal rule of mootness are cases of statutory amendment. The examples we cited of continuing federal adjudicatory power are of local government or administrative agency repeal or amendment.”). UNITED STATES v. BRANDAU 11569 95. The rescission of General Order No. 441 was instigated by court order, albeit procedural in nature and issued by a judge of the same court that adopted and then re-adopted the policy. The subsequent changes in the policy took place against the legal backdrop of Howard. By allowing for individualized determinations, limiting the policy’s application to in-custody defendants, and requiring only leg shackles, the changes brought the present written policy for Sacramento into line with the Central District policy upheld in that case, see 480 F.3d 1005, although the same is not true for Fresno and Yosemite. The conformance of the Sacramento written policy to Ninth Circuit law suggests that the change was not entirely voluntary, and that a regression to the old policy is less likely to occur, at least in that part of the Eastern District.

[9] For these reasons, we are unable to determine at this juncture whether the “voluntary cessation” exception to moot- ness applies.

III. Conclusion

[10] In short, it is possible, although not certain, that in some or all of the district courts of the Eastern District of Cal- ifornia there is an “ongoing” mandatory full shackling policy, and that the violations alleged are “capable of repetition, yet evading review,” Howard, 480 F.3d at 1010, or that even if at present there is no ongoing full shackling policy, the case falls under the “voluntary cessation” exception to mootness, Friends of the Earth, 528 U.S. at 189. We are simply unable, on the record before us and without further exploration of the positions of the parties, to so determine.2 2 Although the government, as the party asserting mootness, bears the burden of persuasion, we cannot rule in favor of the defendants merely because the government has as of yet failed to adduce evidence that might prove its case. As mootness is jurisdictional, “we must . . . consider it independent of the parties’ arguments.” Cammermeyer v. Perry, 97 F.3d 1235, 1237 n.3 (9th Cir. 1996). 11570 UNITED STATES v. BRANDAU [11] Accordingly, the case shall be REMANDED to the district court for the purpose of conducting an evidentiary hearing to determine the nature of the current shackling policy in the various district courts of the Eastern District of Califor- nia. The district court shall determine, on the basis of the evi- dence presented, whether in practice, there is an “ongoing policy” of full shackling, or full shackling without individual- ized determinations, and whether the same shackling policy applies to “in-custody” and “out-of-custody” defendants. Sim- ilarly, the district court shall determine whether, even if the previous shackling policy is no longer being implemented, the case nonetheless falls under the voluntary cessation exception to mootness.

[12] On remand, the consolidated case — which challenges the constitutionality of a rule promulgated by the judges of the Eastern District, as well as their very authority to promulgate it — shall be assigned to an out-of-district judge. Although we do not suggest that there is any actual bias on the part of the judges, our ethics rules require recusal where a judge’s impartiality “might reasonably be questioned.” 28 U.S.C. § 455(a); see also Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 860 (1988) (noting 28 U.S.C. § 455(a)’s purpose of “promot[ing] public confidence in the integrity of the judicial process”). Here, the circumstances surrounding adoption of these orders suggest that an objective observer might reasonably question the impartiality of the judges.

Finally, the judges of the Eastern District shall be notified of the evidentiary hearing. They may, at their discretion, decide to retain separate counsel to represent their interests at that proceeding, as the Assistant United States Attorney stated at oral argument that she does not represent the court. Simi- larly, on remand, the Eastern District judges may wish to intervene in the proceedings, to file an amicus brief, or to decline to participate at all, as they see fit.

REMANDED FOR FURTHER PROCEEDINGS.