E.T. v. Paxton

Citation41 F.4th 709
Decision Date25 July 2022
Docket Number21-51083
Parties E.T., by and through her parents and next friends; J.R., by and through her parents and next friends; S.P., by and through her parents and next friends; M.P., by and through her parents and next friends; E.S., by and through her parents and next friends; H.M., by and through her parents and next friends; A.M., by and through her parents and next friends, Plaintiffs—Appellees, v. Kenneth PAXTON, in his official capacity as Attorney General of Texas, Defendant—Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Linda T. Coberly, Winston & Strawn, L.L.P., Chicago, IL, Brandon W. Duke, Winston & Strawn, L.L.P., Houston, TX, Brian D. East, Senior Attorney, Disability Rights Texas, Central Texas Regional Office, Austin, TX, William G. Fox, John Michael Gaddis, Esq., Thomas M. Melsheimer, Scott Cashion Thomas, Esq., Attorney, Michael Woodrum, Winston & Strawn, L.L.P., Dallas, TX, L. Kym Davis Rogers, Disability Rights Texas, North Texas Regional Office, Dallas, TX, for PlaintiffsAppellees.

Judd Edward Stone, II, Office of the Attorney General, Office of the Solicitor General, Austin, TX, Eric J. Hamilton, Office of the Attorney General of Texas, Office of the Solicitor General, Austin, TX, Ryan Glen Kercher, Office of the Attorney General, Austin, TX, for DefendantAppellant.

Jeffrey Justman, Faegre Drinker Biddle & Reath, L.L.P., Minneapolis, MN, Jeffrey B. Dubner, Jessica Morton, Democracy Forward Foundation, Washington, DC, Daniel Alexander Harrell, Esq., Faegre, Drinker, Biddle & Reath, L.L.P., Dallas, TX, for Amici Curiae Texas Pediatric Society, American Academy of Pediatrics.

Fiona A. Bell, Shook, Hardy & Bacon, L.L.P., Houston, TX, for Amici Curiae Doron Dorfman, L.L.B., L.L.M., J.S.M., J.S.D., Katherine Macfarlane, J.D., Rabia Belt, J.D., M.A., Ph.D., Natalie Chin, J.D., Ruth Colker, J.D., Elizabeth Emens, J.D., Ph.D., Jasmine Harris, J.D., Allan Ides, J.D., M.A., John V. Jacobi, J.D., Arlene Kanter, J.D., L.L.M., Seema Mohapatra, J.D., M.P.H., Jamelia Morgan, J.D., M.A., Jennifer Oliva, J.D., M.B.A., Wendy E. Parmet, J.D., Elizabeth Pendo, J.D., Nicole Porter, J.D., Jessica Roberts, J.D., Laura Rothstein, J.D., Dorit Rubinstein Reiss, L.L.B., Ph.D., Leslie Salzman, J.D., Mark C. Weber, J.D.

Ellen Marjorie Saideman, Esq., Council of Parent Attorneys & Advocates, Incorporated, Towson, MD, for Amicus Curiae Council of Parent Attorneys and Advocates, Incorporated.

Janea Lamar, Alisa Philo, U.S. Department of Justice, Civil Rights Division, Appellate Section, Washington, DC, Bonnie Ilene Robin-Vergeer, Senior Attorney, U.S. Department of Justice, Civil Division, Appellate Section, Washington, DC, for Amicus Curiae United States of America.

Christina Beeler, Texas Civil Rights Project, Houston, TX, Jonathan Gabriel Chaim Fombonne, Heena Kepadia, Harris County Attorney's Office, Houston, TX, for Amicus Curiae Harris County, Texas.

Before Davis, Willett, and Oldham, Circuit Judges.

Andrew S. Oldham, Circuit Judge:*

In accordance with powers vested in him by the Texas Legislature, Governor Greg Abbott promulgated Executive Order GA-38 to unify the State's response to COVID-19. Among other things, GA-38 prohibited school districts from imposing mask mandates. Some students sued. Then the district court permanently enjoined the Texas Attorney General from enforcing GA-38. We hold, however, that the district court lacked subject-matter jurisdiction. Accordingly, we vacate the district court's injunction and remand with instructions to dismiss the suit without prejudice.


GA-38 provides that "[n]o governmental entity, including a ... school district ..., and no government official may require any person to wear a face covering or to mandate another person wear a face covering." GA-38 has "the force and effect of law." Tex. Gov't Code § 418.012.

Plaintiffs are children with disabilities attending Texas public schools. On August 17, 2021, plaintiffs filed this lawsuit in federal district court challenging GA-38 and related Public Health Guidance from the Texas Education Agency ("TEA"). The original complaint included 14 plaintiffs, who were "students with disabilities and underlying medical conditions which carry an increased risk of serious complications or death in the event that they contract COVID-19." It named as defendants Governor Abbott, the TEA, and TEA Commissioner Mike Morath.

The original complaint included three claims: (1) violation of the Americans with Disabilities Act ("ADA") against Abbott and Morath in their official capacities, (2) violation of Section 504 of the Rehabilitation Act of 1973 against all defendants, and (3) federal preemption under the American Rescue Plan Act of 2021 ("ARP Act") against all defendants. Plaintiffs requested declaratory and injunctive relief.

Plaintiffs amended their complaint twice before trial. First, on September 1, they amended their complaint to add the Attorney General as a defendant. Second, a week before trial, plaintiffs filed a second amended complaint with leave of court, adding a new claim and subtracting some plaintiffs and a defendant. The new claim alleged the ADA and Rehabilitation Act preempted GA-38. Seven plaintiffs exited the suit, and the seven remaining plaintiffs dropped their claims against the Governor.

After denying plaintiffs' request for a temporary restraining order and preliminary injunction, the district court held a bench trial and entered a permanent injunction and final judgment against the Attorney General. The court held that plaintiffs have standing to sue. It then declared that GA-38 violates Title II of the ADA and Section 504 of the Rehabilitation Act. It further held that, insofar as it applies to school districts, GA-38 is preempted by the ADA, Section 504, and the ARP Act. The court enjoined the Attorney General from enforcing the Executive Order. The Attorney General sought a stay pending appeal, which the district court denied. But we granted the stay and expedited the appeal.


"Article III jurisdiction is always first. Here, it's also last." Shrimpers & Fishermen of RGV v. Tex. Comm'n on Env't Quality , 968 F.3d 419, 426 (5th Cir. 2020) (Oldham, J., concurring) (citations omitted). To invoke our jurisdiction, plaintiffs must satisfy the familiar tripartite test for Article III standing: (A) an injury in fact; (B) that's fairly traceable to the defendant's conduct; and (C) that's likely redressable by a favorable decision. See Lujan v. Defs. of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ; see also Env't Tex. Citizen Lobby, Inc. v. ExxonMobil Corp. , 968 F.3d 357, 367 (5th Cir. 2020) ("Because this case was tried, Plaintiffs needed to prove standing by a preponderance of the evidence."). All three elements are missing here.


Plaintiffs have not presented an injury in fact sufficient to satisfy Article III. To establish such an injury, plaintiffs must show they "suffered an invasion of a legally protected interest that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ " Spokeo, Inc. v. Robins , 578 U.S. 330, 339, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016) (quoting Lujan , 504 U.S. at 560, 112 S.Ct. 2130 ). Plaintiffs haven't carried that burden here because (1) the injury they've alleged is not a cognizable injury in fact, and (2) they may not relabel their injury as something it's not.


Plaintiffs' alleged injury is the increased risk they face of contracting COVID-19 in school without mask mandates and experiencing complications or severe symptoms from a COVID-19 infection. They rely on their doctors' statements that "[i]n order to decrease [plaintiffs'] risk," everyone around them "should observe strict COVID-19 safety protocols and wear a mask indoors." Plaintiffs further contend that, without mask mandates, it is "simply too dangerous" for them to attend in-person school.

To establish an injury in fact, plaintiffs must show an "invasion of a legally protected interest" that is both "concrete and particularized" and "actual or imminent, not conjectural or hypothetical." Spokeo , 578 U.S. at 339, 136 S.Ct. 1540 (quotation omitted). This circuit does not "recognize the concept of probabilistic standing based on a non-particularized increased risk—that is, an increased risk that equally affects the general public." Shrimpers , 968 F.3d at 424 (quotation omitted). And even where increased-risk claims are particularized, they generally "cannot satisfy the actual or imminent requirement," which necessitates "evidence of a certainly impending harm or substantial risk of harm." Ibid. (quotation omitted); see also Ctr. for Biological Diversity v. EPA , 937 F.3d 533, 537 n.2 (5th Cir. 2019) ("[A]ny difference between ‘certainly impending’ and ‘substantial risk’ is immaterial here."). That's because "[m]uch government regulation slightly increases a citizen's risk of injury—or insufficiently decreases the risk compared to what some citizens might prefer." Shrimpers , 968 F.3d at 424 (quoting Pub. Citizen, Inc. v. Nat'l Highway Traffic Safety Admin. , 489 F.3d 1279, 1295 (D.C. Cir. 2007) ). And "[o]pening the courthouse to these kinds of increased-risk claims would drain the ‘actual or imminent’ requirement of meaning." Ibid. (quoting Pub. Citizen , 489 F.3d at 1295 ).

Plaintiffs' increased risk of contracting COVID-19 fails to satisfy these requirements. There is no way to understand plaintiffs' trial evidence as establishing COVID-19 infections are "certainly impending" in schools without mask mandates, but not in schools mandating masks. Shrimpers , 968 F.3d at 425. At the time of trial, two of plaintiffs' seven schools were mask-optional (in compliance with GA-38), and five mandated masks (in violation of GA-38). The two mask-optional schools had positivity rates of 1.9 and 3.0 percent. The five schools with mask mandates measured at 0.3, 1.1, 2.3, 4.9, and 5.4 percent—higher, lower, and in between the rates from the...

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  • Env't Tex. Citizen Lobby, Inc. v. E XxonMobil Corp.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • August 30, 2022
    ...omitted). Plaintiffs thus must "prove standing by a preponderance of the evidence." ETCL II , 968 F.3d at 367; see also E.T. v. Paxton , 41 F.4th 709, 714 (5th Cir. 2022).The traceability requirement is particularly important here. The Supreme Court has explained that a plaintiff can establ......
  • Env't Tex. Citizen Lobby v. ExxonMobil Corp.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • August 30, 2022
    ... ... Plaintiffs thus must "prove ... standing by a preponderance of the evidence." ETCL ... II , 968 F.3d at 367; see also E.T. v. Paxton , ... 41 F.4th 709, 714 (5th Cir. 2022) ...          The ... traceability requirement is particularly important here. The ... ...

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