BOOK PEOPLE, INCORPORATED; VBK, INCORPORATED, doing business as BLUE WILLOW BOOKSHOP; ASSOCIATION OF AMERICAN PUBLISHERS; AUTHORS GUILD, INCORPORATED; COMIC BOOK LEGAL DEFENSE FUND; AMERICAN BOOKSELLERS ASSOCIATION v. MARTHA WONG, in her official capacity as the Chair of the Texas State Library and Archives Commission; KEVIN ELLIS, in his official capacity the Chair of the Texas State Board of Education; MIKE MORATH, in his official capacity as the Commissioner of the Texas Education Agency
No. 23-50668
United States Court of Appeals for the Fifth Circuit
January 17, 2024
DON WILLETT, Circuit Judge:
In an effort to keep material deemed inappropriate off Texas public-school bookshelves, the Texas Legislature in 2023 passed the Restricting Explicit and Adult-Designated Educational Resources Act (READER). In short, the Act requires school book vendors who want to do business with Texas public schools to issue sexual-content ratings for all library materials they have ever sold (or will sell), flagging any materials deemed to be “sexually explicit” or “sexually relevant” based on the materials’ depictions of or references to sex.
Plaintiffs—two Texas bookstores, three national trade associations (representing booksellers, book publishers, and book authors), and a legal-defense organization—sued for injunctive relief, alleging that READER violates their rights under the First and Fourteenth Amendments. The district court granted Plaintiffs’ motion for a preliminary injunction. Texas immediately appealed.
The question presented is narrow: Are Plaintiffs likely to succeed on their claims that READER violates their First Amendment rights? Controlling precedent suggests the answer is yes.
We AFFIRM the district court‘s grant of the preliminary injunction as to Commissioner Morath. We VACATE the preliminary injunction against Chairs Wong and Ellis and REMAND to the district court with instructions to dismiss Plaintiffs’ suit against them. We DENY AS MOOT the State‘s motion for stay pending appeal.
I
Texas has about 5.3 million schoolchildren and nearly 9,000 K-12 campuses. In 2023, the Texas Legislature passed READER, which regulates the sale and purchase of public-school library materials.1 The Act‘s goals are to keep “sexually explicit” material out of school libraries and to require parental consent for any “sexually relevant” material.2 It aims to accomplish these goals through (1) library-collection standards imposed on school districts, and (2) a rating system for all library materials, imposed on library-material
A
First, the library-collection standards. READER amends Chapter 33 of the Texas Education Code to require the Texas State Library and Archives Commission (the Commission), with approval by majority vote of the Texas State Board of Education, to “adopt standards for school library collection development.”4 The standards must, in relevant part, prohibit school districts from possessing, purchasing, or acquiring “(i) harmful material, as defined by Section 43.24, Penal Code; (ii) library material rated sexually explicit by the . . . vendor; or (iii) library material that is pervasively vulgar or educationally unsuitable as referenced in Pico v. Board of Education, 457 U.S. 853 (1982).”5 School districts must follow these standards in “developing or implementing the district‘s library collection development policies.”6 The Commission must review and update its standards every five years.7
The district court did not enjoin enforcement of this chapter, and the library standards are not at issue on appeal.
B
What is instead at issue is READER‘s vendor-rating system. To comply with READER, library-material vendors “may not sell library materials to a school district . . . unless [they have] issued appropriate ratings” for library materials they have previously sold to a school district or open-enrollment charter school8 and that remain in active use by a district or school.9 The Act requires vendors to give all library material a rating of “sexually explicit,” “sexually relevant,” or “no rating.”10
The Act defines “sexually explicit” and “sexually relevant” this way:
“Sexually explicit material” means any communication, language, or material, including a written description, illustration, photographic image, video image, or audio file, other than library material directly related to the curriculum required under Section 28.002(a), that describes, depicts, or portrays sexual conduct, as defined by Section 43.25, Penal Code, in a way that is patently offensive, as defined by Section 43.21, Penal Code.11
“Sexually relevant material” means any communication, language, or material, including a written description, illustration, photographic image, video image, or audio file, other than library material directly related to the curriculum required under Section 28.002(a), that describes, depicts, or portrays sexual conduct,
as defined by Section 43.25, Penal Code.12
The Penal Code, in turn, defines “sexual conduct” as “sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.”13 And it defines “patently offensive” as “so offensive on its face as to affront current community standards of decency.”14
Once the vendors have rated the material, they must then submit to the Texas Education Agency (TEA) a list of the material rated as sexually explicit or sexually relevant.15 Material rated sexually explicit may not be sold to school districts and must be removed from library bookshelves.16 And vendors must issue a recall for all material that is rated sexually explicit and in active use by a school district.17 Material rated sexually relevant may not be “reserve[d], check[ed] out, or otherwise use[d] outside the school library” without written parental consent.18
Vendors must submit to TEA their list of ratings by April 1, 2024.19 TEA must then post “each list submitted . . . in a conspicuous place on the agency‘s Internet website as soon as practicable.”20 The Act requires the vendors to conduct this review yearly, with updated ratings due September 1 of each year.21
1
READER provides the following “rating guidelines” for vendors to follow in determining whether material is sexually explicit or sexually relevant. First, a vendor “must perform a contextual analysis of the material to determine whether the material describes, depicts, or portrays sexual conduct in a way that is patently offensive.”22 There are three factors that “a vendor must consider” in performing the contextual analysis:
- the explicitness or graphic nature of a description or depiction of sexual conduct contained in the material;
- whether the material consists predominantly of or contains multiple repetitions of depictions of sexual or excretory organs or activities; and
- whether a reasonable person would find that the material intentionally panders to, titillates, or shocks the reader.23
In examining these factors, “a vendor must weigh and balance each factor and conclude whether the library material is patently offensive, recognizing that . . . each instance of a description, depiction, or portrayal of sexual conduct contained in a material may present a unique mix of factors.”24 And finally, in making the patently offensive determination, READER instructs that a vendor “must consider the full context in which the description, depiction,
2
Once vendors submit their ratings, TEA “may review” the “material sold by a . . . vendor that is not rated or incorrectly rated by the vendor.”26 If TEA undertakes this review and determines that a different rating, or no rating at all, should be applied to certain material, “the agency shall provide written notice to the vendor,” which “must include information regarding the vendor‘s duty under this section and provide the corrected rating required for the library material.”27
After receiving notice, the vendor then has 60 days to “(1) rate the library material according to the agency‘s corrected rating; and (2) notify the agency of the action taken under Subdivision (1).”28 “The agency shall post and maintain in a conspicuous place on [its] Internet website a list of library material vendors who fail to comply” after receiving notice.29 School districts are prohibited from purchasing library materials from vendors on the noncompliance list.30 Vendors on the list may petition the agency for removal from the list, and TEA may remove a vendor from the list only if it is satisfied that the vendor has rated the material according to TEA‘s corrected rating.31
C
Plaintiffs are two Texas bookstores, three national trade associations, and a legal-defense organization.32 The bookstores have sold and would like to continue selling library material to public-school libraries. In July 2023, before READER went into effect, Plaintiffs sued the State Defendants33 and sought a preliminary injunction under
The State opposed the preliminary injunction and moved to dismiss the suit under Federal Rule of Civil Procedure 12(b)(1), arguing that Plaintiffs’ claims were unripe, that Plaintiffs lacked standing, and that Defendants were entitled to sovereign immunity.34
On appeal, Defendants sought a stay pending appeal and, alternatively, an administrative stay. A different panel of this court granted the administrative stay and ordered that the motion to stay pending appeal be carried with the case. We now review the district court‘s rulings with respect to Defendants’ sovereign immunity and Plaintiffs’ preliminary injunction.
II
We review the district court‘s standing and sovereign-immunity determinations de novo.37 And “[w]e review the district court‘s grant of [Plaintiffs‘] preliminary injunction for abuse of discretion, reviewing underlying factual findings for clear error and legal conclusions de novo.”38
III
We first address whether Plaintiffs have standing and, if so, whether their claims are ripe.39
A
Plaintiffs “bear[] the burden of establishing the three familiar elements of standing.”40 They “must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.”41 Plaintiffs seek injunctive relief, so they must show “a continuing injury or threatened future injury, not a past one.”42 To do so, Plaintiffs “must show that ‘the threatened injury is certainly impending, or there is a substantial risk that the harm will occur.‘”43 “[T]he threat of future injury
At this stage, Plaintiffs “must clearly show only that each element of standing is likely to obtain in the case at hand.”46 Our analysis will focus on the two booksellers’ standing because “[t]he presence of any one plaintiff with standing to pursue injunctive relief . . . satisfies Article III‘s case-or-controversy requirement.”47
We first consider injury in fact.
1
The Bookseller Plaintiffs allege that READER unconstitutionally compels their speech and that, if they comply with the law, they will suffer economic and reputational injuries.
In a pre-enforcement challenge, Plaintiffs can establish an injury in fact if they show that “(1) [they] ha[ve] an intention to engage in a course of conduct arguably affected with a constitutional interest, (2) [their] intended future conduct is arguably proscribed by the policy in question, and (3) the threat of future enforcement of the challenged policies is substantial.”48 We conclude that Plaintiffs have met all three elements here.
First, Plaintiffs have alleged their intention to engage in a course of conduct arguably affected with a constitutional interest. They have alleged that they have sold books to public schools and that they intend to continue doing so. Selling books is arguably affected with a First Amendment interest.49 And Plaintiffs have an interest in selling books without being coerced to speak the State‘s preferred message—the ratings.50 The State‘s position
Second, READER arguably proscribes Plaintiffs’ continued sales to public schools. The two Bookseller Plaintiffs are indisputably “library material vendors” under the statute, so they are subject to its rating provisions.53 By its plain terms,
Thus, the statute arguably “facially restrict[s]” Plaintiffs’ intended future conduct.55
Third, we assume that Plaintiffs face a credible threat of enforcement because the State has provided no “compelling contrary evidence.”56 The State‘s main argument is that, despite READER‘s plain language, the Act doesn‘t actually prevent Plaintiffs from selling books because READER lacks a mechanism for Defendants to enforce the rating system or the library standards against these Plaintiffs. The State is half right.
True, the State cannot enforce the library-collection standards against Plaintiffs. Although school districts must adhere to Chapter 33‘s library-collection standards, no Plaintiff has any duty under that chapter.57 No Plaintiff brings any claims under Chapter 33, and indeed, the district court did not enjoin its enforcement.
But Chapter 35 facially forbids Plaintiffs from selling books to public schools unless they comply with the statute and provide ratings.58 Still, the State maintains that the rating system, too, can be enforced only against the school districts—not Plaintiffs. That the State enforces READER through school districts is not fatal to Plaintiffs’ standing. Courts have found that plaintiffs have standing to sue government entities that injure them through another entity.59
We assume there is a credible threat of enforcement and conclude that Plaintiffs have sufficiently established an injury in fact under our pre-enforcement standing precedent.
Independent of its alleged constitutional injuries, Plaintiffs have also established an injury in fact by alleging an economic injury.62 Plaintiffs allege that READER causes “significant economic damages” in four ways.
- First, Blue Willow alleges that it has already lost business. It has sold over $200,000 in books to Katy ISD in the past 5-7 years, but as a result of READER, Katy ISD has paused all purchasing, including from Blue Willow.
- Second, Plaintiffs allege that they will lose money between September 1, 2023 (when the law goes into effect), and April 1, 2024 (when ratings are due), because READER prohibits vendors from selling any books to public schools until they have complied with the rating requirements.
- Third, Plaintiffs allege that complying with READER will require them to divert extensive time and resources from their normal operations. Blue Willow estimates that compliance will cost between $200 and $1,000 per book and estimates that the cost to rate books already sold will be between $4 million and $500 million. It alleges that compliance costs alone will put it out of business because its annual sales are just over $1 million.
- Fourth, Blue Willow alleges that 20% of its sales are to schools or related to school author visits and festivals. It alleges that, if schools are no longer able to buy from them, it will lose most of this revenue.
“[E]conomic harm—like damage to one‘s business interest—is a quintessential Article III injury.”63 We have found a “concrete injury” when a plaintiff is “forced to divert time and resources away from their regular [business].”64
The State contends that these economic injuries cannot confer standing because the vendors are not required to participate in the rating system and their alleged injuries are not imminent. We are not persuaded. Plaintiffs allege that they will be harmed if they comply with READER and harmed if they don‘t. If Plaintiffs try to comply, they have alleged that it will cost them potentially millions of dollars to rate and review books. And if they don‘t comply, the law at least facially prohibits them from selling any books to schools—which
2
Next, we consider whether Plaintiffs’ injuries are fairly traceable to Defendants’ actions and redressable by the requested relief. To prove traceability, Plaintiffs must allege “a causal connection between the injury and the conduct complained of.”66 “Tracing an injury is not the same as seeking its proximate cause.”67 Where, as here, “a causal relation between injury and challenged action depends upon the decision of an independent third party . . . standing is not precluded, but it is ordinarily substantially more difficult to establish.”68 To meet its burden, Plaintiffs “must show at the least ‘that third parties will likely react in predictable ways.‘”69 And to satisfy the redressability requirement, Plaintiffs must show that a “favorable decision will relieve a discrete injury to [themselves].”70 It must be “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”71
Plaintiffs’ injuries are traceable to the State‘s enforcement of READER, but only to Commissioner Morath. Although Chairs Wong and Ellis are responsible for promulgating the library-collection standards, those standards are not enforceable against Plaintiffs, and Plaintiffs have not explained how their injuries are otherwise traceable to Chairs Wong or Ellis.72
To enforce READER, Commissioner Morath is required to collect ratings from vendors and post them on the Agency‘s website.73 He has discretion to review vendors’ ratings, and if he does, he must notify vendors of the updated ratings
Plaintiffs’ claims are traceable to the Commissioner and redressable by an injunction against him.
B
Plaintiffs have standing, but this alone does not earn them their day in court. Their claims must also be ripe. In determining whether a claim is ripe, we must consider two factors: “(1) ‘the fitness of the issues for judicial decision’ and (2) ‘the hardship to the parties of withholding court consideration.‘”80 “[A] claim is ‘fit for judicial decision’ if it presents a pure question of law that needs no further factual development.”81 “[I]f a claim is ‘contingent [on] future events that may not occur as anticipated, or indeed may not occur at all,’ the claim is not ripe.”82
Plaintiffs’ claims are fit for our review. No other factual or legal developments
The State also argues that because READER doesn‘t penalize the absence of an initial rating for a particular book, any harm that might come from a dispute about a hypothetical future rating hinges on future events that may or may not occur. According to the State, Plaintiffs will not be injured until the vendors either refuse to comply with the rating system or rate books in the wrong categories and then refuse to adopt the Agency‘s corrected ratings and land themselves on the noncompliance list. But the State ignores Plaintiffs’ immediate economic injury of having to assign ratings to library material at all. Plaintiffs’ First Amendment challenges to READER are “pure question[s] of law” that need no further factual or legal development.84
Finally, if we withheld our consideration of Plaintiffs’ claims, the hardship to Plaintiffs would not be minimal, as the State contends. As explained above, Plaintiffs allege that complying with the law will cost valuable time and resources. For example, Blue Willow alleged that the compliance costs alone could put it out of business.
Plaintiffs’ claims are ripe.
C
Having concluded that Plaintiffs have standing to assert their First Amendment claims and that their claims are ripe for review, we turn to the
final jurisdictional question: whether Commissioner Morath is entitled to sovereign immunity.
Generally, “sovereign immunity bars private suits against nonconsenting states in federal court.”85 This bar also applies to suits like this one “against state officials or agencies that are effectively suits against a state.”86 Under the Ex parte Young exception to sovereign immunity, however, a plaintiff can seek prospective injunctive relief “against individual state officials acting in violation of federal law.”87 These state officials must “have some connection with the enforcement of the allegedly unconstitutional law.”88 Here, Plaintiffs sued for injunctive relief based on an ongoing violation of the
To satisfy the required enforcement connection, the state official must have a duty beyond “the general duty to see that the laws of the state are implemented.”89 Rather, the official must have “the particular duty to enforce the statute in question and a demonstrated willingness to exercise that duty.”90 This analysis is “provision-by-provision“: The officer must enforce “the particular statutory provision that is the subject of the litigation.”91 We have defined “enforcement” as “compulsion or constraint,”92 so “[i]f the official does not compel or constrain anyone to obey the challenged law, enjoining that official could not stop any ongoing constitutional violation.”93 Plaintiffs need only show a “scintilla of enforcement by the relevant state official.”94 We have noted that the “Article III standing analysis and Ex parte Young analysis ‘significantly overlap,‘”95 such that “a finding of standing tends toward a finding” that a plaintiff may sue the official under the Ex parte Young exception.96
Plaintiffs have shown that Commissioner Morath has a sufficient connection to READER‘s enforcement. The State again urges that Commissioner Morath‘s only enforcement authority is over school districts and, if Plaintiffs are compelled to or constrained from doing anything, it is by school districts, not the State.
True, the enforcement here “is not the same type of direct enforcement found in Ex Parte Young, for instance, where the attorney general threatened civil and criminal prosecution.”97 But “such enforcement is not required.”98 Plaintiffs have identified specific actions that this court can enjoin: Commissioner Morath is ultimately responsible for collecting and posting the vendors’ lists of ratings, reviewing those ratings to determine whether a corrected rating is required, notifying vendors when their ratings are overridden, and posting lists of noncompliant vendors on TEA‘s website. And he is responsible for ensuring that school districts comply with READER‘s prohibition on buying material from vendors that violate this statute.99
We agree with Plaintiffs that these acts “compel[] them to submit ratings with which they disagree,” and “constrain[] them from continuing to do business with school districts if they fail to submit the required ratings or decline to acquiesce in the State‘s revised ratings.” That Commissioner
Because Commissioner Morath has a sufficient connection to the statute‘s enforcement, Plaintiffs can sue him under Ex parte Young.
IV
Satisfied that we have jurisdiction, we now turn to the merits of the preliminary injunction. “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”101
A
We first consider whether Plaintiffs have shown a likelihood of success on the merits of their
1
Before turning to the merits of Plaintiffs’
“When government speaks, it is not barred by the
First, the State does not point to any history of book ratings, and we haven‘t found any ourselves. Instead, the State directs us to the “abundant history” of other labels and media ratings, such as ratings for movies and video games, and warning labels on cigarettes. In its view, those labels operate largely the same as READER‘s rating system. But READER‘s rating system is different from these examples in two important ways. One, as Plaintiffs note, movie and video game ratings are entirely voluntary.109 There are no legal requirements that any entity submit ratings before sale. By contrast, READER‘s rating system requires third-party sellers to rate library materials before they can sell them to public schools. And two, READER does not require vendors to apply a government-created warning label on library material before sale, like tobacco or alcohol warnings. As explained in Part IV.B.2, the Supreme Court has approved these kinds of warning labels because they are “purely factual and uncontroversial.”110 We cannot say the same for READER‘s ratings.
Second, we agree with Plaintiffs that the public is not likely to attribute the ratings to the Agency. READER does not clearly state how TEA will post the initial rating lists on its website, and the State‘s representations on this issue have been conflicting. In its brief, it says that the law does not require TEA “to identify or otherwise associate any vendor with any book or any rating.” But at the hearing before the district court, the State conceded that the lists would be posted under each vendor‘s name. It explained that this would be necessary because otherwise, “[t]here would be no other way for the school district[s] to know who they can purchase from.” We think that the State‘s representation to the district court is most consistent with READER‘s text.111 So although the ratings will be posted on TEA‘s website, the public will be able to see how each vendor rated material and will attribute the ratings to the vendor—not TEA.
We are not persuaded by the State‘s characterization of the ratings as a “form of consistency review” that is a “purely ministerial task” instead of an expression of the vendors’ opinion on the subject matter being rated. An act is ministerial
Third, and finally, the State argues that the ratings are TEA‘s speech because the Act allows TEA to review the vendors’ ratings and issue corrected ratings. This argument, however, can‘t be squared with the text.
In sum, the district court was correct that the government-speech doctrine does not apply. The ratings are the vendor‘s speech, not the government‘s.
2
Because READER affects Plaintiffs’
Plaintiffs allege that READER is “textbook compelled speech” in two ways. First, they argue that it coerces them to review library material and issue ratings as a condition to selling books to public schools. TEA then posts those ratings on its website, attributing them to Plaintiffs. Second, if TEA disagrees with one of Plaintiffs’ ratings, the law requires Plaintiffs to adopt TEA‘s “corrected” rating. TEA then attributes the corrected rating to the vendors on its website. If Plaintiffs do not comply with either provision, they are prohibited from selling to school districts.
“[T]he right of freedom of thought protected by the
In response to Plaintiffs’ compelled speech claim, the State argues that two exceptions to the compelled-speech doctrine apply: (1) the government-operations exception and (2) the commercial-speech exception.
First, government operations. We have recognized that “[t]here is no right to refrain from speaking when ‘essential operations of government require it for the preservation of an orderly society.‘”116 This exception has been applied to sex offender registration requirements,117 disclosures on IRS forms,118 and demographic information for the census.119 But we have noted that there is “limited” precedent on the exception.120 Even assuming that READER‘s rating system is part of an essential government operation, the ratings are unlike any information to which courts have applied the exception. READER requires vendors to decide whether library materials are sexually explicit or sexually relevant according to guidelines that require them to undertake a contextual analysis of material, weighing and balancing several factors. This goes beyond a mere disclosure of demographic or similar factual information. We therefore conclude that the exception does not apply.
b
Second, commercial speech. “Commercial speech is ‘[e]xpression related solely to the economic interests of the speaker and its audience.‘”121 It has also been defined as “speech which does ‘no more than propose a commercial transaction.‘”122 The “commercial speech doctrine rests heavily on ‘the common-sense distinction between speech proposing a commercial transaction . . . and other varieties of speech.‘”123
Assuming the ratings are commercial speech, we must decide whether they unconstitutionally compel Plaintiffs’ speech. In Zauderer,124 the Supreme Court explained that “the State may at times ‘prescribe what shall be orthodox in commercial advertising’ by requiring the dissemination of ‘purely factual and uncontroversial
According to the State, Zauderer applies here because the library-material ratings are “purely factual and uncontroversial” like a nutrition label; they simply tell the buyer what they are receiving rather than pass judgment or express a view on the material‘s appropriateness for children. We disagree. The ratings READER requires are neither factual nor uncontroversial. The statute requires vendors to undertake contextual analyses, weighing and balancing many factors to determine a rating for each book. Balancing a myriad of factors that depend on community standards is anything but the mere disclosure of factual information. And it has already proven controversial.127
We conclude that neither exception applies. Plaintiffs are thus likely to succeed on their compelled speech claim.128 Accordingly, we need not address whether they are also likely to succeed on their claims that READER is a prior restraint or unconstitutionally vague.
B
Finally, we turn to the remaining preliminary-injunction factors. We first consider whether Plaintiffs are likely to suffer irreparable harm absent the injunction, and if so, we must “balance the equities and consider whether an injunction serves the public interest.”129
1
We have already concluded that Plaintiffs are likely to sustain economic and constitutional injuries. We now consider whether those injuries are irreparable. “An irreparable harm is one ‘for which there is no adequate remedy at law.‘”130
“When an alleged deprivation of a constitutional right is involved, most courts
They have also shown that they will suffer irreparable economic injury. We have explained that although compliance costs are not always recoverable,133 “complying with a regulation later held invalid almost always produces the irreparable harm of nonrecoverable compliance costs.”134 Even if the bookstores could pass along some costs to their customers, Blue Willow has alleged here that the compliance costs alone “threatens the very existence of [its] business.”135 Recovering costs won‘t resurrect Blue Willow if compliance costs put it out of business.
2
Plaintiffs’ risk of irreparable harm must be weighed against any injury the State would sustain.136 Where the State is appealing an injunction, its interest and harm merge with the public interest.137
“When a statute is enjoined, the State necessarily suffers the irreparable harm of denying the public interest in the enforcement of its laws.”138 We agree with the State that it has an interest in protecting children from harmful library materials. But “neither [the State] nor the public has any interest in enforcing a regulation that violates federal law.”139 Indeed, “[i]njunctions protecting
V
For these reasons, we AFFIRM the district court‘s grant of the preliminary injunction as to Commissioner Morath. We VACATE the preliminary injunction against Chairs Wong and Ellis and REMAND to the district court with instructions to dismiss Plaintiffs’ suit against them. We DENY AS MOOT the State‘s motion for stay pending appeal.