Let Them Play MN; Jane Doe 1, both individually and as parent and guardian of Jane Doe 2 and John Moe 3, minors; John Moe 4; Jane Doe 5; John Moe 6, as parent and guardian of John Moe 7 and Jane Doe 8, minors; Jane Doe 10; John Moe 11, Plaintiffs, v. Governor Tim Walz, in his official capacity; Attorney General Keith Ellison, in his official capacity; Commissioner Jan Malcolm, in her official capacity; Minnesota Department of Health, Defendants.
File No. 21-cv-79 (ECT/DTS)
UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA
August 24, 2021
CASE 0:21-cv-00079-ECT-DTS Doc. 78 Filed 08/24/21
Cicely R. Miltich and Elizabeth C. Kramer, Office of the Minnesota Attorney General, St. Paul, MN, for Defendants.
OPINION AND ORDER
This case involves restrictions the state of Minnesota imposed on youth sports activities in an effort to limit the spread of COVID-19. After Plaintiffs were denied a preliminary injunction against the restrictions, they filed an Amended Complaint incorporating new factual allegations. Defendants have now moved to dismiss the Amended Complaint for lack of subject-matter jurisdiction and for failure to state a claim upon which relief can be granted.
Defendants’ motion will be granted. The Eleventh Amendment bars many of the claims Plaintiffs assert in the Amended Complaint. To the extent it does not, Plaintiffs’ claims are moot. By the time of the hearing on Defendants’ motion, most of the challenged restrictions had already been lifted. After the hearing, the Minnesota Legislature terminated the peacetime-emergency declaration that had given all of Governor Tim Walz‘s COVID-19-related emergency executive orders legal effect. Finally, if a live controversy remained, Plaintiffs’ claims would still fail on the merits.
I
A
The COVID-19 pandemic has inspired significant responses from federal, state,
Plaintiffs generally allege that, in an effort to justify restricting youth sports, state officials designed their data collection and contact tracing methods so as to exaggerate the relative risk of COVID-19 transmission attributable to sports, as opposed to other activities. Am. Compl. ¶¶ 55-95 [ECF No. 45]. For example, MDH would classify a COVID-19 case as “sports-related” if the infected individual reported playing sports or attending a sporting event “during their incubation period . . . or infectious period,” even if there was no clear evidence that “the transmission occurred while playing the sport.” Id. ¶ 67. In contrast, Defendants “intentionally chose[] to avoid collecting data regarding COVID cases and outbreaks in retail settings.” Id. ¶ 51. But this alleged bias occurred at the systemic level; in other words, Plaintiffs do not allege that Defendants inappropriately targeted any individual youth athletes—let alone named Plaintiffs—for data collection.
Plaintiffs challenge three types of limitations on youth sports activities. The first was a temporary ban on all youth sports. Governor Walz ordered the ban in Executive Order 20-99, which he issued on November 18, 2020. Second Miltich Decl., Ex. 4 (“EO 20-99“) [ECF No. 51-4]. That order, among other things, required “Organized Youth Sports organizations [to] stop all in-person activities—including practices, group workouts, games, and tournaments.” Id. ¶¶ 2, 7.g.1 On December 18, 2020, Governor Walz allowed certain “[o]utdoor workouts, practices, training, [and] skill-building” to resume. First Miltich Decl., Ex. 10 ¶¶ 1, 7-8 (“EO 20-103“) [ECF No. 27-10]. Starting January 3, organized youth sports could start back up in full as long as they abided by certain conditions. See id.; see also id., Ex. 11 ¶¶ 2, 7.g.
Those conditions are the second and third components of Plaintiffs’ challenge. Second, starting on January 10, “face coverings [had to] be worn in accordance with applicable guidance for youth sports available on the [MDH‘s] Stay Safe Minnesota website.” Id., Ex. 11 ¶ 7.g.v. According to
Third, under EO 21-01 and later orders that reaffirmed it, youth sports organizations were required to follow certain quarantine protocols identified by the Minnesota Department of Health (“MDH“). According to Plaintiffs, state officials have “applied unfair and unequal quarantine rules on young people and youth athletes[.]” Am. Compl. ¶ 136. The content of the challenged quarantine rules is not clear. Rather than pointing to a specific executive order or source of MDH guidance, as they do in their other allegations, Plaintiffs recount specific scenarios in which youth athletes have been required to quarantine. For example, although “[n]on-athlete students are required to quarantine if they are within 6 feet of each other for a cumulative total of 15 minutes in a day,” a youth hockey goalie “will be required to quarantine if a defenseman on the opposing team tests positive for COVID even if that defenseman never crosses the blueline and never comes within 25 feet of the goalie.” Id. ¶¶ 138, 141; see also id. ¶¶ 142-46. Plaintiff John Moe 11, a high school swimmer, was required to quarantine for fourteen days after an exposure—causing him to miss a competition—while Governor Walz allegedly quarantined for only ten days after an exposure of his own. Id. ¶¶ 163-64.
Defendants, for their part, have submitted MDH quarantine protocols with their briefing. According to a document entitled “Quarantine Guidance for COVID-19,” MDH recommends that all Minnesotans exposed to COVID-19 quarantine for fourteen, ten, or seven days depending on various factors. Second Miltich Decl., Exs. 39, 40 [ECF No. 51-39 through 51-40]. EO 21-01 and its successor orders required youth sports organizations to adopt a COVID-19 preparedness plan that included quarantine and isolation rules. See EO 21-01 ¶ 7.g.ii. According to a document called “COVID-19 Organized Sports Practice and Games Guidance for Youth and Adults,” sports organizations are advised to use a 14-day quarantine rule but “may allow shortened quarantine periods (of either 10 or 7 days) as long as the exposed individual meets the criteria for shortened quarantine in the” general “Quarantine Guidance for COVID-19” document. Second Miltich Decl., Ex. 38 at 15. In other words, the executive orders seem to incorporate the quarantine rules that are generally recommended for all Minnesotans, and Plaintiffs’ allegations do not identify any policy imposing
B
Plaintiff Let Them Play MN is a Minnesota non-profit corporation that “promotes youth participation in athletics and activities[.]” Am. Compl. ¶¶ 14-15. Together with a group of unnamed youth sports athletes, coaches, and parents, the organization first filed a lawsuit challenging Executive Order 20-99—which included the temporary ban on organized youth sports—in December 2020. See Let Them Play MN v. Walz, No. 20-cv-2505 (JRT/HB) (D. Minn.), ECF No. 1. Plaintiffs moved for a preliminary injunction in that case, arguing that EO 20-99‘s restrictions on social gatherings violated their First Amendment rights of free speech and assembly, and Chief Judge Tunheim denied their motion. See Let Them Play MN v. Walz, No. 20-cv-2505 (JRT/HB), 2020 WL 7425278, at *4-8 (D. Minn. Dec. 18, 2020). Soon thereafter, Plaintiffs appealed and requested a preliminary injunction pending appeal, which the Eighth Circuit denied. See Order, Let Them Play MN v. Walz, No. 20-3656 (8th Cir. Dec. 28, 2020). Plaintiffs then moved to dismiss their appeal and filed a notice of voluntary dismissal in the District Court on January 5, 2021. See No. 20-cv-2505, ECF Nos. 29, 47, 49.
Plaintiffs filed this action three days later. ECF No. 1. On January 19, Plaintiffs moved for a preliminary injunction and for leave to conduct expedited discovery. ECF No. 10. That motion was denied after a hearing. ECF No. 33; see Let Them Play MN, 2021 WL 423923, at *14. Defendants then moved to dismiss the Complaint. ECF No. 36. With Defendants’ agreement, Plaintiffs responded with the now-operative Amended Complaint, and Defendants’ original motion was denied as moot. ECF Nos. 43, 45, 46.
In the Amended Complaint, Plaintiffs raise three claims against Governor Walz, Attorney General Keith Ellison, Commissioner of Health Jan Malcolm, and MDH. First, they claim that Minnesota‘s youth-sports restrictions violate the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. Am. Compl. ¶¶ 165-93. Second, they claim that the restrictions violate their “rights to due process, procedural due process, and/or substantive due process” under the federal Constitution. Am. Compl. ¶¶ 194-217.2 Third, they claim that Defendants have violated their rights to due process and equal protection under the Minnesota constitution. Am. Compl. ¶¶ 218-24. They seek a declaration that Minnesota‘s youth-sports restrictions—including “quarantine guidance unique to young people or youth sports, any mask requirement outdoors, . . . any subsequent orders, Defendants’ intentionally biased fact-finding efforts, and all guidance on their face and as applied to Plaintiffs“—violate the federal and Minnesota constitutions; permanent injunctive relief; compensatory and nominal damages, with interest; and reasonable attorneys’ fees and costs. Id. at 48-49. Defendants have moved to dismiss the Amended Complaint in its entirety. ECF No. 47.
An important development followed the hearing on Defendants’ motion. On June 29, 2021, the Minnesota Legislature passed a bill that, among other things, terminated the peacetime emergency that Governor Walz declared in Executive Order 20-01 on March 13, 2020. See Notice of Suppl. Authority [ECF Nos. 77, 77-1]; see also
II
In their motion, Defendants argue both that subject-matter jurisdiction is lacking and that Plaintiffs’ claims fail on the merits. A court reviewing a motion to dismiss for lack of subject-matter jurisdiction under
A
As Plaintiffs seemed to concede at the hearing on Defendants’ motion, the Eleventh Amendment narrows the scope of this dispute at the starting gate. That amendment generally bars suits against “an unconsenting State . . . brought in federal courts by her own citizens as well as by citizens of another state.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (citation omitted). Under an exception to the general rule, recognized in Ex parte Young, 209 U.S. 123 (1908), “a private party can sue a state officer in his official capacity to enjoin a prospective action that would violate federal law.” 281 Care Comm. v. Arneson, 638 F.3d 621, 632 (8th Cir. 2011). These principles have several consequences for the claims raised in the Amended Complaint.
First, Plaintiffs purport to sue MDH directly. But the Eleventh Amendment bars suit against “states or state agencies” for “any kind of relief.” Monroe v. Ark. State Univ., 495 F.3d 591, 594 (8th Cir. 2007). Plaintiffs’ claims against MDH must therefore be dismissed.
Second, Plaintiffs assert claims for “compensatory and nominal damages” against all Defendants in their official capacities. Am. Compl. at 49 ¶ E. The Eleventh Amendment bars these claims because “claims against state officials in their official capacities are really suits against the state[.]” Kruger v. Nebraska, 820 F.3d 295, 301 (8th Cir. 2016); see Kentucky v. Graham, 473 U.S. 159, 169 (1985); Reynolds v. Dormire, 636 F.3d 976, 981 (8th Cir. 2011). Plaintiffs’ official-capacity claims for monetary relief must therefore be dismissed, too.
Third, in Count III of the Amended Complaint, Plaintiffs claim that Defendants are violating their rights under the Minnesota constitution. Am. Compl. ¶¶ 218-24. As noted in the order denying Plaintiffs’ motion for a preliminary injunction, however, “a federal court lacks jurisdiction to order state officials to ‘conform their conduct to state law.‘” Let Them Play MN v. Walz, 2021 WL 423923, at *4 (quoting Pennhurst, 465 U.S. at 106). Count III therefore must be dismissed. After accounting for the Eleventh Amendment, then, only Plaintiffs’ federal
B
Apart from the Eleventh Amendment, there are other jurisdictional problems with Plaintiffs’ claims. The United States Constitution limits the subject-matter jurisdiction of federal courts to ongoing cases and controversies. See
“When, during the course of litigation, the issues presented in a case ‘lose their life because of the passage of time or a change in circumstances . . . and a federal court can no longer grant effective relief,’ the case is considered moot.” Ali v. Cangemi, 419 F.3d 722, 723 (8th Cir. 2005) (alteration in original) (quoting Haden v. Pelofsky, 212 F.3d 466, 469 (8th Cir. 2000)); see Already LLC, 568 U.S. at 91. If an action is moot because it no longer satisfies the case-or-controversy requirement, a federal court “ha[s] no discretion and must dismiss the action for lack of jurisdiction.” Ali, 419 F.3d at 724 (citing Powell v. McCormack, 395 U.S. 486, 496 n.7 (1969)).
To recap, Plaintiffs seek declaratory and injunctive relief with respect to three of Minnesota‘s COVID-19-related restrictions: (1) the temporary ban on youth sports in Executive Order 20-99; (2) the youth-sports face-covering requirement; and (3) quarantine rules as applied to youth athletes.4 None of these three restrictions
Start with the temporary ban on youth sports. Even before the original Complaint was filed in this case on January 8, 2021, youth sports activities had resumed, and the ban has now been lifted for over seven months. See First Miltich Decl., Exs. 10, 11. No allegations or evidence in the record suggest that Plaintiffs face a present injury or a “real and immediate” threat of future injury resulting from the ban. Lyons, 461 U.S. at 101-05, 107 n.8.
The face-covering requirement was rescinded after Defendants filed their motion but before the hearing. Specifically, on May 14, 2021, Governor Walz issued Executive Order 21-23, which “lift[ed] face-covering requirements in most settings.” Third Miltich Decl., Ex. 52 [ECF No. 73-1]. The order “immediately” rescinded Paragraph 7.g.v of Executive Order 21-11, which had required participants in youth sports activities to wear face coverings. Id. ¶ 5. Both Executive Order 21-23 and updated MDH guidance continued to recommend that youth sports participants wear face coverings “when recommended by MDH or CDC” but made clear that it was “no longer a statewide requirement.” Id., Ex. 53 at 2 [ECF No. 73-2].5 Just as with the temporary ban on youth sports, Plaintiffs do not identify an ongoing injury or a real and immediate threat of future injury flowing from the face-covering requirement.
Finally, Minnesota‘s quarantine rules do not create an ongoing redressable injury. As noted above, it is not entirely clear what quarantine rules Plaintiffs challenge. But all agree that the challenged rules derived their legal effect from delegations in Governor Walz‘s executive orders. See, e.g., Second Miltich Decl., Ex. 7 ¶ 7.g.ii-v. The Minnesota Legislature has now terminated the peacetime emergency that gave Governor Walz the power to issue those orders, depriving them of legal effect. See ECF No. 77-1. Plaintiffs did not seek leave to respond to Defendants’ notice of this legislative action and do not seem to contest that the challenged quarantine rules are no longer in effect.
Notwithstanding these changed circumstances, Plaintiffs argue that the case is not moot because Defendants voluntarily rescinded the challenged restrictions. See Pls.’ Mem. in Opp‘n at 26-29. “To be sure, voluntary cessation of a challenged practice does not necessarily moot a case.” Hillesheim v. Holiday Stationstores, Inc., 903 F.3d 786, 791 (8th Cir. 2018). If it did, “a defendant could engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where he left off, repeating this cycle until he achieves all his unlawful ends.” Already LLC, 568 U.S. at 91. Even when cessation is voluntary, however, a case “might become moot if subsequent events ma[k]e it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Prowse v. Payne, 984 F.3d 700, 702-03 (8th Cir. 2021) (quoting Friends of the Earth, Inc. v. Laidlaw Env‘t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)). “The burden of showing that the challenged conduct is unlikely to recur rests on the party asserting mootness.” Strutton v. Meade, 668 F.3d 549, 556 (8th Cir. 2012). Although this is a “heavy burden,” it is “slightly less onerous when it is the government that has voluntarily ceased the challenged conduct.” Prowse, 984 F.3d at 703 (collecting cases); see 13C Edward H. Cooper, Federal Practice and Procedure § 3533.7 (3d ed. Apr. 2021 Update).
On this record, Defendants have shown that the challenged restrictions cannot reasonably be expected to recur. First, none of the circumstances surrounding the voluntary lifting of restrictions indicate the type of manipulative behavior the voluntary-cessation exception is meant to address. Governor Walz issued his order lifting the temporary ban on youth sports after Plaintiffs voluntarily dismissed their prior case and before they had filed this action. See First Miltich Decl., Ex. 11. The face-covering requirement was rescinded more than four months after Plaintiffs filed this action, and after Defendants had already prevailed on Plaintiffs’ motion for a preliminary injunction. The stated justifications for this change were new guidance from the Centers for Disease Control and Prevention, the state‘s “progress on vaccine administration,” and trends in “public health risk metrics.” Third Miltich Decl., Ex. 52 at 1. In other words, there is no indication that Defendants lifted the restrictions to evade judicial review in this case. See Cnty. of Butler v. Governor of Pa., 8 F.4th 226, 2021 WL 3520610, at *1 (3d Cir. Aug. 11, 2021); Calvary Chapel of Bangor v. Mills, ___ F. Supp. 3d ___, No. 1:20-cv-00156-NT, 2021 WL 2292795, at *11 (D. Me. June 4, 2021).
Second, it is doubtful that the more fundamental cause of mootness in this case—the Minnesota Legislature‘s termination of the peacetime-emergency declaration—was even “voluntary” in the relevant sense. It was a policy choice made, not by Defendants, but by a different branch of the Minnesota government. Lewis v. Cuomo, No. 20-CV-6316, 2021 WL 3163238, at *8 (W.D.N.Y. July 27, 2021) (holding that the voluntary-cessation exception did not apply in challenge to COVID-19 restrictions that were rescinded “due to the combined actions of the Legislature and [the governor]“); see also League of Indep. Fitness Facilities & Trainers, Inc. v. Whitmer, 843 F. App‘x 707, 709-710 (6th Cir. 2021) (finding challenge to state COVID-19 restrictions moot after state supreme court held that governor lacked authority to impose them). As a result of the Legislature‘s action, Governor Walz no longer has the standing legal authority to issue binding rules under the previously declared peacetime emergency. In effect, then, Plaintiffs have received much of the relief they seek. See N.Y. State Rifle & Pistol Ass‘n, Inc. v. City of New York, 140 S. Ct. 1525, 1526 (2020). And the Legislature‘s participation in the decision detracts from Plaintiffs’ primary argument, which is that “the Governor could unilaterally reimpose restrictions at any moment.” Pls.’ Mem. in Opp‘n at 27.
To be sure, there is always some “uncertainty about the future course of the pandemic.” Cassell v. Snyders, 990 F.3d 539, 546 (7th Cir. 2021). The emergence of the Delta variant of the virus, among others, has presented new concerns and inspired new public-health measures. See Delta Variant: What We Know About the Science, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/coronavirus/2019-ncov/variants/delta-variant.html (last visited Aug. 23, 2021). But the fact “that the government once imposed a particular COVID restriction does not necessarily mean that litigation over a defunct restriction presents a live controversy in perpetuity.” Hawse v. Page, 7 F.4th 685, 2021 WL 3234293, at *6-7 (8th Cir. July 30, 2021) (finding case moot despite concerns posed by Delta variant). Under these circumstances, finding a live controversy would require both scientific and political speculation—i.e., that the pandemic will proceed in a particular way, and that Minnesota‘s political branches will decide to reimpose the particular restrictions
III
Lack of subject-matter jurisdiction is, of course, sufficient to require dismissal of this case. Nonetheless, under the unique circumstances of this case, it is worth briefly explaining why Plaintiffs would not have prevailed on the merits.
In reviewing a motion to dismiss for failure to state a claim under
Plaintiffs claim that the challenged restrictions violate the Equal Protection Clause of the Fourteenth Amendment. That clause “commands that no [s]tate shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)). The “first step” when evaluating an equal-protection claim is to decide “whether the plaintiff has demonstrated that she was treated differently than others who were similarly situated to her.” Adam & Eve Jonesboro, LLC v. Perrin, 933 F.3d 951, 959 (8th Cir. 2019) (citation omitted). Once a plaintiff clears that “threshold,” the next step is to apply the appropriated level of scrutiny to the challenged. Id.; see True v. Nebraska, 612 F.3d 676, 683-84 (8th Cir. 2010).
Plaintiffs’ allegations do not satisfy either step. First, Plaintiffs have not plausibly identified a more favorably treated group to which they are similarly situated “in all relevant respects.” Carter v. Arkansas, 392 F.3d 965, 969 (8th Cir. 2004) (citation omitted); see Satanic Temple v. City of Belle Plaine, 475 F. Supp. 3d 950, 962 (D. Minn. 2020). Adult organized sports, for example, have consistently been subject to the same restrictions as youth organized sports. Compare, e.g., Second Miltich Decl. Ex. 7 ¶ 7.g, with id. ¶ 7.h; see also id., Ex. 38 (online sports guidance applicable to “youth and adults“). Plaintiffs suggest that participants in organized youth sports are similarly situated to participants in unorganized youth sports, see Am. Compl. ¶ 174, but this is not plausible. The executive orders at issue define organized youth sports as activities provided by an organization “on a regular basis for a defined period of time.” Second Miltich Decl., Ex. 7 ¶ 7.g.i. Plaintiffs seem to acknowledge in their allegations, at least implicitly, that regular, sustained contact poses the greatest risk of viral transmission. See, e.g., Am. Compl. ¶¶ 139-44. They do not explain how youth participating in
Second, Plaintiffs have not plausibly alleged that the challenged restrictions fail to satisfy the rational basis standard.7 Under that standard, a challenged state law will be upheld as long as it is “rationally related to a legitimate government interest.” Gallagher v. City of Clayton, 699 F.3d 1013, 1019 (8th Cir. 2012). The Eighth Circuit has said that courts can conduct this inquiry even at the motion to dismiss stage. See id. at 1019-20; Gilmore v. Cnty. of Douglas, 406 F.3d 935, 938 (8th Cir. 2005), and in order to prevail, a plaintiff‘s allegations must plausibly show that no “reasonably conceivable state of facts” could support the challenged law. F.C.C. v. Beach Commc‘ns, Inc., 508 U.S. 307, 313-15 (1993). The Amended Complaint, and documents embraced by it, show why Plaintiffs have not done so here. All three challenged restrictions share the common purpose of limiting the spread of COVID-19—undoubtedly a legitimate state interest. See Let Them Play MN, 2021 WL 423923, at *8. The youth-sports ban and quarantine rules pursued this goal by temporarily limiting all contact between youth athletes. The face-covering requirement took a different tack, allowing sports to continue but trying to block the respiratory droplets believed to carry the virus. The pleading-stage record shows a reasonably conceivable state of facts that could support this policy: namely, that sustained contact, combined with physical exertion that increases respiration, results in a heightened risk of spreading COVID-19, and that youth sports activities necessarily involve these risks. See, e.g., Second Miltich, Decl., Ex. 7 at 2; see also id. Exs. 16-21 [ECF Nos. 51-16 through 51-21].
Plaintiffs’ arguments do not overcome this analysis. To be sure, Plaintiffs’ allegations present a competing factual narrative that they believe would not support the challenged restrictions. This does not make a legal difference because the Constitution allowed Defendants to make their policy choices based on “rational speculation unsupported by evidence of empirical data.”8 Beach Commc‘ns, 508 U.S. at 315.
At bottom, just as they did in their request for a preliminary injunction, Plaintiffs present “sincere, reasonable, and good-faith objections to Minnesota‘s policies.” Let Them Play MN, 2021 WL 423923, at *1. As before, “the appropriate audience for their argument and objections are Minnesota‘s political branches, not a federal court.” Id.
ORDER
Based on the foregoing, and on all the files, records, and proceedings in this case,
IT IS ORDERED THAT:
- Defendants’ Motion to Dismiss [ECF No. 47] is GRANTED; and
- This action is DISMISSED WITHOUT PREJUDICE for lack of subject-matter jurisdiction.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: August 24, 2021
s/ Eric C. Tostrud
Eric C. Tostrud
United States District Court