Resurrection Sch. v. Hertel

Decision Date25 May 2022
Docket Number20-2256
Citation35 F.4th 524
Parties RESURRECTION SCHOOL; Christopher Mianecki, individually and as next friend on behalf of his minor children C.M., Z.M., and N.M.; Stephanie Smith, individually and as next friend on behalf of her minor child F.S., Plaintiffs-Appellants, v. Elizabeth HERTEL, in her official capacity as the Director of the Michigan Department of Health and Human Services; Dana Nessel, in her official capacity as Attorney General of the State of Michigan ; Linda Vail, in her official capacity as the Health Officer of Ingham County; Carol A. Siemon, in her official capacity as the Ingham County Prosecuting Attorney, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED EN BANC: Erin Elizabeth Mersino, GREAT LAKES JUSTICE CENTER, Lansing, Michigan, Robert J. Muise, AMERICAN FREEDOM LAW CENTER, Ann Arbor, Michigan, for Appellants. Daniel J. Ping, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for State of Michigan Appellees. John J. Bursch, ALLIANCE DEFENDING FREEDOM, Washington, D.C., for Amicus Curiae. ON SUPPLEMENTAL BRIEF: Erin Elizabeth Mersino, GREAT LAKES JUSTICE CENTER, Lansing, Michigan, Robert J. Muise, AMERICAN FREEDOM LAW CENTER, Ann Arbor, Michigan, for Appellants. Daniel J. Ping, Ann M. Sherman, Jennifer Rosa, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for State of Michigan Appellees. Bonnie G. Toskey, Sarah K. Osburn, COHL, STOKER & TOSKEY, P.C., Lansing, Michigan, for Appellees Linda Vail and Carol Siemon. ON AMICUS BRIEF: John J. Bursch, Cody S. Barnett, ALLIANCE DEFENDING FREEDOM, Washington, D.C., Matthew F. Kuhn, Brett R. Nolan, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Amici Curiae.


KETHLEDGE, J., delivered the opinion of the court in which SUTTON, C.J., and MOORE, COLE, CLAY, GIBBONS, WHITE, STRANCH, DONALD, THAPAR, LARSEN, NALBANDIAN, and MURPHY, JJ., joined, and READLER, J., joined in Parts I and II.A. MOORE, J. (pp. 530–31), delivered a separate concurring opinion in which WHITE, STRANCH, and DONALD, JJ., joined. READLER, J. (pp. 531–32), delivered a separate opinion concurring in part and dissenting in part. BUSH, J. (pp. 532–54), delivered a separate dissenting opinion in which SILER and GRIFFIN, JJ., joined.

On Petition for Rehearing En Banc.

KETHLEDGE, Circuit Judge.

In this case, a private religious school and two parents of students who attend private religious schools seek a preliminary injunction as to a statewide mask mandate that the State itself repealed almost a year ago. We hold that both this interlocutory appeal and the claim itself are now moot.


In April 2020, Michigan Governor Gretchen Whitmer imposed a statewide mask mandate in response to the COVID-19 pandemic. In September 2020, she extended the mandate to require children in elementary schools to wear masks in the classroom. R.1-4. On October 2, 2020, the Michigan Supreme Court held that both of the Governor's orders violated the Michigan Constitution, on the ground that they represented the "exercise of the legislative power by the executive branch." In re Certified Questions , 506 Mich. 332, 958 N.W.2d 1, 24, 31 n.25 (2020).

Yet a week later the Michigan Department of Health and Human Services imposed a mandate of its own, which likewise required masks in public settings, including classrooms in public and private schools. R.1-1. The order included a dozen exceptions, namely for "individuals who:"

(a) Except as otherwise provided ... are younger than 5 years old ...;
(b) Cannot medically tolerate a face covering;
(c) Are eating or drinking while seated at a food service establishment;
(d) Are exercising outdoors and able to consistently maintain six feet of distance from others;
(e) Are swimming;
(f) Are receiving a service for which temporary removal of the face covering is necessary;
(g) Are entering a business or are receiving a service and are asked to temporarily remove a face covering for identification purposes;
(h) Are communicating with someone who is deaf, deafblind, or hard of hearing and whose ability to see the mouth is essential to communication;
(i) Are actively engaged in a public safety role, including but not limited to law enforcement, firefighters, or emergency medical personnel, and where wearing a face covering would seriously interfere in the performance of their public safety responsibilities;
(j) Are at a polling place for purposes of voting in an election;
(k) Are engaging in a religious service;
(l) Are giving a speech for broadcast or to an audience, provided that the audience is at least six feet away from the speaker.

That same month, the plaintiffs brought this suit, claiming that the State's mask mandate violated their right to the free exercise of religion under the First (and Fourteenth) Amendment to the U.S. Constitution. R.1 at 22–23. The plaintiffs also filed a motion to enjoin the mask mandate preliminarily, which the district court denied in December 2020. The plaintiffs then brought this appeal, asking us to enjoin the mandate while their case is litigated in the district court.

Meanwhile, between November 2020 and May 2021, the Department issued no fewer than twelve different orders revising its mask mandate—sometimes eliminating an exception (such as the one for polling places), other times tightening an exception (such as by limiting the exception for "service[s] for which removal of the face mask is necessary" to only medical services), and sometimes revising an earlier revision (such as a change to allow people to remove masks for "personal care services" like tanning and piercing). By the spring of 2021, however, the relevant public-health conditions had changed. By then the U.S. Food and Drug Administration had authorized three COVID-19 vaccines; better therapeutics had become available; and case counts, hospitalizations, and deaths had fallen in Michigan. The Department cited these developments—along with the "warmer weather"—and rescinded the mask mandate (and various other pandemic-related orders) on June 17, 2021. Doc. 34-2. The defendants then moved to dismiss this appeal as moot.


Any number of precepts about the federal judicial power (indeed, one could argue, nearly all of them) trace back to Chief Justice John Marshall's pronouncement that the "province of the court is, solely , to decide on the rights of individuals[.]" Marbury v. Madison , 5 U.S. (1 Cranch) 137, 170, 2 L.Ed. 60 (1803) (emphasis added). The precept that follows here is that, under Article III, the "federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them." DeFunis v. Odegaard , 416 U.S. 312, 316, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974) (internal quotation marks omitted). "Thus, when a case at first presents a question concretely affecting the rights of the parties, but—as a result of events during the pendency of the litigation—the court's decision would lack any practical effect, the case is moot." Ohio v. EPA ("Ohio "), 969 F.3d 306, 308 (6th Cir. 2020).


In deciding whether a decision in this appeal would have any "practical effect," we must be mindful of "the distinction between mootness as to a preliminary-injunction appeal and mootness as to the case as a whole." Ohio , 969 F.3d at 309. "The purpose of a preliminary injunction, unlike a permanent one, is to prevent any violation of the plaintiff's rights before the district court enters a final judgment." Id . Whether a preliminary-injunction appeal is moot, therefore, depends on whether our decision would have any "practical effect" during that window of time.

The plaintiffs face strong headwinds on that point, given that the State has already rescinded the mandate that they ask us "preliminarily" to enjoin. Yet the plaintiffs argue that two exceptions to the mootness doctrine apply here.

Voluntary Cessation . The first exception is that a defendant's "voluntary cessation" of challenged conduct moots a case only if there clearly is "no reasonable expectation that the alleged violation will recur."

Speech First, Inc. v. Schlissel , 939 F.3d 756, 767 (6th Cir. 2019) (cleaned up). Here, for the challenged conduct to recur, the State need not reimpose the "selfsame" mandate that it rescinded in June 2021. Ne. Fla. Chapter of Associated Gen. Contractors v. City of Jacksonville , 508 U.S. 656, 662, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993) (emphasis omitted). But the State would need to impose a mandate "similar" enough to the old mandate to present substantially the same legal controversy as the one presented by the plaintiffs’ complaint. See id . at 662 n.3, 113 S.Ct. 2297.

For several reasons, however, we see no reasonable possibility of that happening here. First, the State rescinded the mask mandate not in response to this lawsuit, but eight months later, along with several other pandemic-related orders. In doing so the State cited high vaccination rates, low case counts, new treatment options, and warmer weather. This case is therefore unlike Speech First , where the "timing" of the University of Michigan's cessation of the challenged conduct "raise[d] suspicions that its cessation [was] not genuine." 939 F.3d at 769. And the defendants’ own political accountability diminishes any chance that they would reimpose the same mandate after this litigation ends.

Second, the relevant circumstances have changed dramatically since the Department imposed its statewide mask mandate in October 2020. At that time, nobody was vaccinated and treatments were less effective than they are now. The relevant circumstances now, in contrast, are largely the same circumstances that prompted the State to rescind the mandate.

Third, any future masking order likely would not present substantially the...

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