R. K., et al. v. Lee, et al.
No. 22-5004
United States Court of Appeals, Sixth Circuit
November 18, 2022
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0249p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
R. K., a minor, by and through her mother and next friend, J. K.; W. S., a minor, by and through her parent and next friend, M. S.; S. B., a minor, by and through his parents and next friends, M. B. AND L. H.; M. S., a minor, by and through her parent and next friend, K. P.; T. W., a minor, by and through her parent and next friend, M. W.; M. K., a minor, by and through her parent and next friend, S. K.; E. W., a minor, by and through his parent and next friend, J. W.; J. M., a minor, by and through her parent and next friend, K. M., and on behalf of those similarly situated,
Plaintiffs-Appellees,
v.
BILL LEE, in his official capacity as Governor of Tennessee; PENNY SCHWINN, in her official capacity as Commissioner of the Tennessee Department of Education,
Defendants-Appellants.
No. 22-5004
Appeal from the United States District Court for the Middle District of Tennessee at Nashville.
No. 3:21-cv-00853—Waverly D. Crenshaw, Jr., Chief District Judge.
Argued: July 25, 2022
Decided and Filed: November 18, 2022
Before: NORRIS, SUHRHEINRICH, and CLAY, Circuit Judges.
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COUNSEL
ARGUED: James R. Newsom, III, OFFICE OF THE TENNESSEE ATTORNEY GENERAL AND REPORTER, Memphis, Tennessee, for Appellants. Justin S. Gilbert, GILBERT LAW, PLC, Chattanooga, Tennessee, for Appellees. ON BRIEF: James R. Newsom, III, Matthew Dowty, Reed N. Smith, Robert W. Wilson, OFFICE OF THE TENNESSEE ATTORNEY
NORRIS, J., delivered the opinion of the court in which SUHRHEINRICH, J., joined. CLAY, J. (pp. 9–14), delivered a separate opinion concurring in the judgment only.
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OPINION
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ALAN E. NORRIS, Circuit Judge. In 2021, the Tennessee General Assembly enacted a new statute (“the Act”) in response to the COVID-19 pandemic.
Immediately after passage of the Act, and prior to seeking accommodation under its terms, eight minor students with disabilities (a point that is uncontested) filed suit through their parents, alleging that the new legislation violated the Americans with Disabilities Act (“ADA”),
I.
Article III limits federal courts’ jurisdiction to actual cases or controversies. Spokeo, Inc. v. Robins, 578 U.S. 330, 337 (2016). The doctrine of standing “limits the category of litigants empowered to maintain a lawsuit in federal court to [those who] seek redress for a legal wrong.” Id. at 338. The “irreducible constitutional minimum of standing” requires (1) an injury in fact that is (2) fairly traceable to the defendant’s conduct and (3) likely redressable by a favorable judicial decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). Moreover, “a party who fails to show a substantial likelihood of standing is not entitled to a preliminary injunction.” Memphis A. Randolph Inst. v. Hargett, 978 F.3d 378, 386 (6th Cir. 2020) (quotation marks omitted).
1. Injury in Fact
“[U]nder Article III, an injury in law is not an injury in fact. Only those plaintiffs who have been concretely harmed by a defendant’s statutory violation may sue . . . over that violation in federal court.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2205 (2021). Similarly, just because Congress has created an express statutory right of action does not mean a plaintiff is injured whenever a defendant violates the underlying statutory duty. See id.; see also Spokeo, 578 U.S. at 341 (“Article III standing requires a concrete injury even in the context of a statutory violation.”).
The Act specifically provides that school officials “shall . . . to the extent practicable, provide a reasonable accommodation” to any student who requests it.
Equally significant is plaintiffs’ failure to test the practical effect of the Act by seeking an accommodation; instead, they filed this suit on the heels of the Act’s passage. A concrete injury, such as falling ill from COVID-19 due to a lack of universal masking, must be more than speculative. “A threatened injury must be ‘certainly impending’ to constitute injury in fact.” Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (quotation omitted). Indeed, no action to enforce the Act would ever be directed at any of these plaintiffs—it would be directed only at their schools, should they decide to violate the Act—which further attenuates the risk of harm the plaintiffs may suffer. Moreover, the Act does not prohibit individual students from wearing masks at any time; it merely redefines how universal mask mandates can be imposed.
Finally, plaintiffs’ argument that they are injured by the Act because it categorically violates the ADA amounts to an overly generalized grievance. The Supreme Court “has repeatedly held that an asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court.” Allen v. Wright, 468 U.S. 737, 754 (1984), abrogated in part on other grounds by Lexmark Int’l., Inc. v. Static Control Components, Inc., 572 U.S. 118, 129–30 (2014).
2. Traceability
Whatever injury the plaintiffs may suffer is not fairly traceable to the two defendants here: Governor Lee and Commissioner of Education Schwinn. In cases where the plaintiff’s injury “depends on the unfettered choices made by independent actors not before the court[],” the plaintiff has the heightened burden “to adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit redressability of injury.” Lujan, 504 U.S. at 562 (citations omitted).
Nor does the Governor’s role in declaring states of emergency change that. The Act requires that severe conditions exist for universal masking to be imposed.
The case against the Commissioner of Education is arguably a closer one, but it still falls short. Commissioner Schwinn has specific authority to “withhold future distributions of school funds” from schools that violate the Act.
To put it another way, the Act does not place Commissioner Schwinn in a position adverse to these plaintiffs, which means that any injury they suffer is not fairly traceable to her
All of the foregoing, which has focused on the Act’s masking and ADA accommodation provisions, applies with equal force to the Act’s quarantining provision, which vests the “sole authority to determine quarantine guidelines for” any “private business or school” in the state’s commissioner of health; it also provides that “[a] local health entity or official, . . . or school does not have the authority to quarantine a person or private business for purposes of COVID-19.”
The plaintiffs argue that traceability exists because the Act severely limits universal masking and quarantining of COVID-positive students, thereby preventing schools from offering students reasonable accommodations. However, plaintiffs nowhere explain why universal masking and quarantining constitute the only reasonable accommodations under the ADA. There is reason to think that a more tailored accommodation—perhaps even the six-foot bubble accommodation contemplated by the Act—would be sufficient to comply with the ADA. See E.T. v. Paxton, 19 F.4th 760, 768 (5th Cir. 2021) (“[T]here are any number of other ways schools could accommodate plaintiffs’ disabilities without traversing either [an executive order banning mask mandates] or federal law.”).
To satisfy the redressability element of standing, the plaintiff must show that it is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 561 (quotation omitted). Redressability can be a low bar to clear, at least where a plaintiff seeks redress for “a completed violation of a legal right”—in which case, nominal damages alone provide sufficient redress. Uzuegbunam v. Preczewski, 141 S. Ct. 792, 802 (2021). “Remedies, however, ordinarily operate with respect to specific parties.” California v. Texas, 141 S. Ct. 2104, 2115 (2021) (quotation omitted). “In the absence of any specific party, they do not simply operate on legal rules in the abstract.” Id. (quotation omitted). Rather, prospective relief can redress a future injury only if “the court [may] enjoin[] not the execution the statute, but the acts of the official, the statute notwithstanding.” Id. (quoting Massachusetts v. Mellon, 262 U.S. 447, 488 (1923)).
Here, the plaintiffs do not seek redress for a completed violation of a legal right; they seek only prospective relief to protect against future violations. Because the plaintiffs’ injuries are not fairly traceable to any defendant here, no remedy applicable to those defendants (be it an injunction or a declaration) would redress the plaintiffs’ alleged injuries. See Allen, 468 U.S. at 757 (noting that “the federal judiciary may not redress” an injury unless it is “fairly traceable to the Government conduct respondents challenge as unlawful”).
In sum, we conclude that plaintiffs have failed to bear their burden of establishing standing. In reaching this decision, we note that two of our sister circuits have recently voided injunctions against similar laws for lack of standing. See Disability Rights S.C. v. McMaster, 24 F.4th 893 (4th Cir. 2022); E.T. v. Paxton, 19 F.4th 760 (5th Cir. 2021). While these decisions do not control our own, in this instance we find them instructive inasmuch as they found the same jurisdictional flaw as we did under similar, though not identical, circumstances.
II.
After oral argument was held in this matter, plaintiffs filed a Motion for Suggestion of Mootness of Appeal based upon the evolving COVID-19 situation in Tennessee. Specifically, they note that none of the school districts in Tennessee is currently operating under a mask
While this appeal may well be moot, the complaint itself has failed to set out an actual case or controversy and thus lawsuit itself is subject to dismissal for lack of jurisdiction. To dismiss this appeal on mootness grounds would mean that a jurisdictionally flawed case remains in the district court. That approach serves no one’s best interest, including the plaintiffs’ who would presumably wish to challenge the Act if, and when, circumstances changed and they could point to actual, rather than speculative, harm. In our view, it is far better to dismiss the case in its entirety for lack of jurisdiction. This is a course of action that we have taken when faced when both standing and mootness deficiencies are present. See Ass’n of Am. Physicians & Surgeons v. FDA, 13 F.4th 531, 536 (6th Cir. 2021) (citing Sinochem Int’l Co. v. Malaysia Shipping Corp., 549 U.S. 422, 431 (2007)) (observing that this court has “discretion to choose between non-merits grounds for dismissing a suit”).
III.
The district court’s injunction is vacated and the cause is remanded with instructions to dismiss the action for lack of jurisdiction.
R. K., et al. v. Lee, et al.
No. 22-5004
United States Court of Appeals, Sixth Circuit
November 18, 2022
CLAY, Circuit Judge, concurring in the judgment only. After argument was heard in this case, Plaintiffs filed a motion for suggestion of mootness, noting that, in light of changed public health conditions and advancements in treatment options, none of the Plaintiffs required universal masking to access schools. Defendants opposed this motion, arguing that this Court should instead dismiss the case on standing grounds. Although I agree with the majority that this case should be dismissed for lack of jurisdiction, I believe it should be dismissed for mootness, and not for lack of standing.
Both standing and mootness are jurisdictional doctrines derived from the Constitution’s grant of power to the federal courts to resolve only live “cases” and “controversies.”
Plaintiffs concede that they no longer require universal masking to safely access their schools. Their claims are moot because this Court’s order would not affect their legal interests and a decision in this case would have no practical effect. Moreover, the case as a whole is moot since Plaintiffs acknowledge that they do not “reasonably anticipate” facing the same risks they
The majority argues that dismissing the case on mootness grounds would leave a jurisdictionally flawed case in the district court.1 This is not so. If a case is moot, the judgment below “must be vacated and the case remanded with instructions to dismiss.” Memphis A. Philip Randolph Inst. v. Hargett, 2 F.4th 548, 558 (6th Cir. 2021) (quoting McPherson v. Mich. High Sch. Athletic Ass’n, Inc., 119 F.3d 453, 458 (6th Cir. 1997) (en banc)).
Dismissing the case on mootness grounds is the better resolution of this case since Plaintiffs have presented evidence indicating that they continue to have standing to pursue their claims and because a resolution of this case on those grounds would better comport with this Court’s prior decision in this case. Earlier this year, a different panel of this Court denied Defendants’ motion to stay the district court’s injunction, determining that Plaintiffs showed a substantial likelihood of standing. See R.K. v. Lee, No. 22-5004, ECF No. 23 (6th Cir. May 10, 2022).
To establish standing, a plaintiff must show that it has: (1) suffered an injury or a threatened injury; (2) that the injury is fairly traceable to the defendants; and (3) that a ruling in favor of the plaintiff will redress that injury. See CHKRS, LLC v. City of Dublin, 984 F.3d 483, 488 (6th Cir. 2021) (quoting Buchholz v. Meyer Njus Tanick, PA, 946 F.3d 855, 860 (6th Cir. 2020)); Coyne v. Am. Tobacco Co., 183 F.3d 488, 494 (6th Cir. 1999) (citing Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472
Plaintiffs met these requirements. In their complaint, Plaintiffs alleged a concrete and particularized injury: the Tennessee statute infringes on their rights by preventing them from seeking and securing individualized, reasonable accommodations in light of the COVID-19 pandemic, including, but not limited to, masking. See Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013). As Plaintiffs put it, they need not “await falling ill or dying because ‘[s]tanding can derive from imminent, rather than actual injury . . . .’” (Appellees’ Br. 30 (quoting R.K. v. Lee I, 568 F. Supp. 3d 895, 899 (M.D. Tenn. 2021) (quoting Davis v. FEC, 554 U.S. 724, 734 (2008))).) The Supreme Court has made that much clear; indeed, “a person exposed to a risk of future harm may pursue forward-looking, injunctive relief to prevent the harm from occurring, at least so long as the risk of harm is sufficiently imminent and substantial.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2210 (2021) (emphasis added).
The record is replete with evidence showing the imminent and substantial nature of the risk in this case. The statutory provisions at issue remove school districts’ “ability to determine what is reasonable for its schools and students, and what is an appropriate accommodation under the ADA, given the local COVID-19 rates and its impact on a particular community.” (Mem. Op., R. 45, Page ID # 1133.) The text of the statute makes clear that if it were to go into effect, there is only a single, one-size-fits-all accommodation available to disabled children: the requirement that other individuals within six feet of the students wear masks, and only if those individuals are within six feet of the accommodated student for more than fifteen minutes. See
The lead opinion also argues that the risk of harm to Plaintiffs from enforcement of the statute is too attenuated because the statute focuses on circumscribing schools’ ability to mandate
Second, Plaintiffs’ alleged injury is also clearly traceable to Defendants. The causation requirement in standing “is not focused on whether the defendant ‘caused’ the plaintiff’s injury in the liability sense,” but whether the alleged injury “fairly can be traced to the challenged action of the defendant” and not a third party. Wuliger v. Manufacturers Life Ins. Co., 567 F.3d 787, 796 (6th Cir. 2009) (determining that causation element of standing was met in the plaintiff’s suit for rescission where the plaintiff alleged that insurance company issued and collected premiums on insurance policy that was fraudulently procured, even though insurance company played no role in fraudulent procurement). In this case, Defendants do have a role in enforcing the statute barring schools from issuing universal mask mandates.2 The Governor has
The lead opinion cites this Court’s decision in Universal Life Church Monastery Storehouse v. Nabors, 35 F.4th 1021, 1031 (6th Cir. 2022) for the proposition that a governor’s obligation to ensure that laws are faithfully executed does not confer standing on plaintiffs seeking to challenge a statute. In that case, however, the plaintiffs did not allege that the governor had any role to play in their injury or in the challenged statute prohibiting online-ordained ministers from solemnizing marriage rites. By contrast, in this case, the Governor serves as one of the gatekeepers of the accommodation that Plaintiffs seek.
Third and finally, Plaintiffs have shown that a ruling in their favor would redress their injury. Defendants contend that the “authority to deny or grant masking to Plaintiffs as an accommodation . . . resides in nonparties––i.e., local schools and their principals . . . .” and this precludes a finding of redressability “[b]ecause such third-party conduct is the deciding factor.” (Appellant’s Br. at 27–28 (citing Lujan, 504 U.S. at 569).) This argument is misleading. To be sure, under the statute, local schools have the authority to grant the single, one-size-fits-all “reasonable accommodation” that was carved out by the state legislature: a six-foot bubble that requires other students to wear masks if they are within the bubble for more than fifteen minutes. See
The district court did not err when it granted the motion for preliminary injunction, since the Plaintiffs had standing to bring their claims. Nonetheless, due to changed circumstances, the case as a whole has become moot. Accordingly, the injunction must be dissolved and the case dismissed.