R. K. v. Lee

• Decision Date: 18 November 2022
• Docket Number: 22-5004
• Parties: 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.
• Court: U.S. Court of Appeals — 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

United States Court of Appeals, Sixth Circuit

November 18, 2022

Argued: July 25, 2022

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:

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 GENERAL AND REPORTER, Memphis, Tennessee, for Appellants.

Justin S. Gilbert, GILBERT LAW, PLC, Chattanooga, Tennessee, Bryce W. Ashby, Brice M. Timmons, Craig A. Edgington, DONATI LAW PLLC, Memphis, Tennessee, Jessica F. Salonus, THE SALONUS FIRM, PLC, Jackson, Tennessee, for Appellees.

Before: NORRIS, SUHRHEINRICH, and CLAY, Circuit Judges.

OPINION

ALAN E. NORRIS, CIRCUIT JUDGE.

In 2021, the Tennessee General Assembly enacted a new statute ("the Act") in response to the COVID-19 pandemic. Tenn. Code Ann. § 14-1-101 et seq. Among other things, the Act addresses vaccination, masking, and quarantine decisions. For example, "[a] local health entity or official, mayor, governmental entity, or school does not have the authority to quarantine a person or private business for purposes of COVID-19," Tenn. Code Ann. § 14-4-101(b), and "a school or a governing body of a school shall not require a person to wear a face mask while on school property" unless various conditions are met. Tenn. Code. Ann. § 14-2-104(a).

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"), 42 U.S.C. § 12101; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; the Equal Protection Clause of the Fourteenth Amendment; and the Supremacy Clause, Article VI, clause 2. Plaintiffs sought a preliminary injunction, which the district court granted with respect to the two sections of the Act cited above. Specifically, the district court enjoined defendants, Bill Lee, the Governor of Tennessee, and Penny Schwinn, the Commissioner of the Tennessee Department of Education, from enforcing "Tennessee Code Annotated § 14-2-104 'Face coverings for schools'; and [] Tennessee Code Annotated § 14-4-101(b) to the extent that it prohibits local health officials and schools from making quarantining decisions as they relate to public schools." R.K. by and through J.K. v. Lee, 575 F.Supp.3d 957 993 (M.D. Tenn. 2021). Defendants appealed pursuant to 28 U.S.C. § 1292(a)(1).

The district court concluded that the Act, despite the inclusion of language that provides that "[a] school shall, to the extent practicable, provide a reasonable accommodation pursuant to the Americans with Disabilities Act," Tenn. Code Ann. § 14-2-104(d)(1), fails to comply with the requirements of either the ADA or the Rehabilitation Act.

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. Tenn. Code Ann. § 14-2-104(d)(2). It then contemplates one such accommodation: "the school shall place the [student] in an in-person educational setting in which other persons who may place or otherwise locate themselves within six feet (6') of the person receiving reasonable accommodation for longer than fifteen (15) minutes are wearing a face covering provided by the school ...." Id. The plaintiffs provide little explanation as to why this accommodation would concretely injure them, other than to quote the district court's findings of fact at length. But even those findings, which describe the undisputed fact that the plaintiffs represent a putative class of students more susceptible to COVID-19 complications, fail to explain why the six-foot bubble accommodation would be insufficient.

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).

Governor Lee's obligation to ensure that the state's laws are faithfully executed does not, by itself, mean that any injury caused by the Act is fairly traceable to him. See Universal Life Church Monastery Storehouse v. Nabors, 35 F.4th 1021, 1031 (6th Cir. 2022) ("[T]he Governor's 'take care' power does not suffice to invoke federal jurisdiction. We need specific, plausible allegations about what the Governor has done, is doing, or might do to injure plaintiffs.").

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. Tenn. Code Ann. § 14-2-104(a)(2). Severe conditions, in turn, require surging cases and a declaration by the Governor of "a state of emergency for COVID-19." Tenn. Code Ann. § 14-1-101(20)(A). The plaintiffs point to no legal duty of the Governor, however, to ever make such a declaration. Rather, making such a declaration is vested in his discretion as the state's chief executive. See Tenn. Code Ann. § 58-2-107(b)(2) (providing a state of emergency "may be declared by the governor if the governor finds an emergency has occurred or occurrence of threat thereof is imminent") (emphases added).

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. Tenn. Code Ann. § 14-2-104(e). But, like Governor Lee she has no duty to do that-the Act says only that she "may withhold" the funds, so withholding funds is committed to her discretion. Nor does the Act suggest that schools violating ...