Mahwikizi v. Ctrs. for Disease Control & Prevention
| Decision Date | 22 November 2021 |
| Docket Number | 21 CV 3467 |
| Citation | 573 F.Supp.3d 1245 |
| Parties | Justin MAHWIKIZI, Plaintiff, v. CENTERS FOR DISEASE CONTROL & PREVENTION, Department of Health & Human Services, Jay Robert Pritzker, in his official capacity as Governor of Illinois, Illinois Department of Public Health, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Justin Mahwikizi, Homewood, IL, Pro Se.
AUSA, Sarah Fattahi Terman, United States Attorney's Office, Chicago, IL, for Defendant Centers for Disease Control & Prevention.
AUSA, Sarah Fattahi Terman, United States Attorney's Office, Chicago, IL, for Defendant Department of Health & Human Services.
Plaintiff Justin Mahwikizi, a Catholic rideshare driver, brings suit against the federal government and the state government, alleging that the Centers for Disease Control's requirement that people wear masks on public transportation violates his First Amendment Free Exercise and Free Speech rights by preventing him from following the teachings of the biblical Good Samaritan. The State of Illinois did not issue this mask mandate, but Mahwikizi is suing it (in addition to the federal government) because, he says, it is enforcing the federal mandate. Mahwikizi requests a temporary restraining order and preliminary injunction on enforcement of the mask mandate. The state moved to dismiss the complaint, and the federal government opposes the motion for an injunction.
The state's motion to dismiss is granted, and the motion for a temporary restraining order is denied.
Under Federal Rule of Civil Procedure 12(b)(1), a court must dismiss a claim over which it lacks subject-matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). A defendant can challenge subject-matter jurisdiction with either a facial attack or a factual attack. Bazile v. Fin. Sys. of Green Bay, Inc. , 983 F.3d 274, 279 (7th Cir. 2020). A facial attack tests whether the allegations, taken as true, support an inference that subject-matter jurisdiction exists. Id. A factual attack, however, challenges the plaintiff's underlying jurisdictional allegations. Id. A court lacks subject-matter jurisdiction if a plaintiff doesn't have standing. Taylor v. McCament , 875 F.3d 849, 853 (7th Cir. 2017). To establish standing, "a plaintiff must show (1) [he] has suffered an ‘injury in fact’ ... (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Silha v. ACT, Inc. , 807 F.3d 169, 173 (7th Cir. 2015) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 180–81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) ).
The standards for issuing a temporary restraining order and a preliminary injunction are identical. Mays v. Dart , 453 F.Supp. 3d 1074, 1087 (N.D. Ill. 2020). A preliminary injunction—and, by extension, a temporary restraining order—is "an extraordinary remedy never awarded as of right." See Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). A plaintiff seeking a TRO or 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." See Protect Our Parks, Inc. v. Buttigieg , 10 F.4th 758, 763 (7th Cir. 2021) (quoting Winter , 555 U.S. at 20, 129 S.Ct. 365 ). Although a plaintiff doesn't need to show that he will definitely win the case on the merits, a "mere possibility of success is not enough." Ill. Republican Party v. Pritzker , 973 F.3d 760, 762 (7th Cir. 2020) ; Mays v. Dart , 974 F.3d 810, 822 (7th Cir. 2020) ().
In January 2021, the Centers for Disease Control and Prevention issued an order, effective February 1, 2021, requiring people to wear masks while on "conveyances" and at transportation hubs and requiring conveyances to transport only people who are wearing masks. [20-2] at 1–2.1 The order is supposed to help "preserv[e] ... human life," "maintain[ ] a safe and secure operating transportation system," "mitigat[e] the further introduction, transmission, and spread of COVID-19 ... from one state or territory into any other state or territory," and "support[ ] response efforts to COVID-19 at the Federal, state, local, territorial, and tribal levels." Id. at 4. The definition of "conveyance" includes rideshares. Id. at 2 n.5.
The CDC issued the order under 42 U.S.C. § 264 and corresponding regulations 42 Fed. Reg. 70.2, 71.31(b), and 71.32(b). Id. at 1. Under 42 U.S.C. § 264, the Surgeon General, with the approval of the Secretary of Health and Human Services, has the authority to "make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases ... from one State ... into any other State." 42 U.S.C. § 264(a).
Justin Mahwikizi is a rideshare driver in Illinois. [1] ¶ 44.2 He alleges that the mask mandate violates his Free Exercise and Free Speech rights. Id. ¶ 8. He says the mandate requires him to leave maskless passengers on the side of the road in violation of Christian teachings about the Good Samaritan, id. ¶¶ 8–13, and that his act of accepting maskless passengers is a form of speech. Id. ¶ 8.
Mahwikizi filed a complaint seeking a declaratory judgment that the CDC mandate violates his constitutional rights, [1] at 20, and requesting that I enjoin enforcement of the mandate against him specifically (not all enforcement of the mandate), id. at 22.3 Mahwikizi also filed a motion for a temporary restraining order and preliminary injunction, requesting that I preliminarily enjoin the CDC, Department of Health and Human Services, Illinois Department of Public Health, and Governor Pritzker from enforcing the CDC mandate against him. [5] ¶ A. The state moved to dismiss the complaint, [17], arguing, among other things, that Mahwikizi lacks standing. Id. at 5–7. It did not file a response to the motion for a TRO and preliminary injunction, but I allowed its motion to dismiss to also serve as its response. [18]. The CDC responded in opposition to the motion for a TRO and preliminary injunction, [20], but has not responded to the complaint. It says that plaintiff did not properly serve the federal defendants under Fed. R. Civ. P. 4(i)(1) and (2) and its opposition to the motion "does not constitute an appearance or a responsive pleading." Id. at n.1.
To survive the state's 12(b)(1) motion, Mahwikizi must show that 1) he has suffered an injury in fact, 2) that injury was likely caused by the state, and 3) a ruling enjoining the state from enforcing the CDC mandate will likely redress Mahwikizi's injury. See Silha , 807 F.3d at 173.
Illinois argues that Mahwikizi can't show causation or redressability vis-à-vis the state because Illinois didn't issue and doesn't enforce the federal mandate. See [17] at 5–7. But Mahwikizi says that Governor Pritzker incorporated the CDC mandate into Executive Order 2021-14. See [1] at 4; [24] at 3. The state mandate, he seems to say, is the federal mandate—by enforcing the first, Illinois enforces the second. See [24] at 3. This argument rests on a misreading of the relevant executive order.4 The order states: "All individuals, including those who are fully vaccinated, shall be required to wear a face covering consistent with CDC guidance, including (1) on planes, buses, trains, and other forms of public transportation." Exec. Order 2021-12 § 2b. But the governor's reference to consistency with CDC guidance is not the same as enforcing the federal mandate. The state has its own mask requirement for users of public transportation. The Executive Order may rely on federal guidance to define its scope, but if the federal mandate went away, the state's would not. The Executive Order, enforced pursuant to state law, is independent from the federal mandate, and in this case, Mahwikizi claims injury only from the federal mandate. This is not a mere quibble, see [24] at 3, but an important distinction to understand the dispute that Mahwikizi brings to this court. Because the state does not enforce the federal mandate, but its own, Mahwikizi's alleged injuries from the federal mandate are not traceable to the actions of the state defendants. The complaint does not present a case or controversy against the state defendants.5
There is no need for an evidentiary hearing on Mahwikizi's motion for a temporary restraining order. The relevant facts—namely the content of the mask mandate and its application to rideshare drivers—are not disputed, and for purposes of this preliminary stage of the case, I accept Mahwikizi's statements as true representations about his religious beliefs and his experience as a rideshare driver.
Mahwikizi claims that the CDC mandate violates his free exercise rights by barring him from picking up maskless passengers. [1] ¶¶ 9–10. He says his Catholic faith—and, specifically, the parable of the Good Samaritan—requires him to pick up passengers regardless of whether they are wearing a mask. [1] ¶¶ 4, 6–12. I assume, for the time being, that the mandate does, in fact, interfere with plaintiff's ability to adhere to this religious principle—even though, as the government notes, the mandate does not prevent plaintiff from picking up maskless passengers without charging them. See [20] at 6. But even laws that have the "incidental effect of burdening a religious practice," St. John's United Church of Christ v. City of Chi. , 502 F.3d 616, 631 (7th Cir. 2007), will pass muster under the Free Exercise Clause if they...
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