Jennifer Case v. Kay Ivey ( 2022 )


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  • USCA11 Case: 21-12276    Date Filed: 07/05/2022   Page: 1 of 11
    [DO NOT PUBLISH]
    In the
    United States Court of Appeals
    For the Eleventh Circuit
    ____________________
    No. 21-12276
    ____________________
    JENNIFER CASE,
    MARK LIDDLE,
    Pastor,
    JIM NELSON,
    Pastor,
    SCOTT FARR,
    BRUCE ERVIN,
    Plaintiffs-Appellants,
    REBECCA CALLAHAN
    et al.,
    Plaintiffs,
    versus
    USCA11 Case: 21-12276        Date Filed: 07/05/2022    Page: 2 of 11
    2                      Opinion of the Court                21-12276
    KAY IVEY,
    in her individual capacity and official
    capacity as Governor of Alabama,
    DR. SCOTT HARRIS,
    in his individual capacity and official
    capacity as State Health Officer,
    Defendants-Appellees.
    ____________________
    Appeal from the United States District Court
    for the Middle District of Alabama
    D.C. Docket No. 2:20-cv-00777-WKW-JTA
    ____________________
    Before NEWSOM, TJOFLAT, and HULL, Circuit Judges.
    PER CURIAM:
    Plaintiffs sued Alabama’s Governor and State Health Of-
    ficer, seeking damages and injunctive relief because, they claim, Al-
    abama’s response to the COVID-19 pandemic violated their consti-
    tutional rights. The district court dismissed plaintiffs’ injunctive-
    relief claims as moot, and it dismissed their damages claims because
    defendants are entitled to qualified immunity. We affirm.
    USCA11 Case: 21-12276        Date Filed: 07/05/2022     Page: 3 of 11
    21-12276               Opinion of the Court                         3
    I
    In early 2020, Alabama’s Governor, Kay Ivey, and its State
    Health Officer, Dr. Scott Harris, promulgated a series of orders in
    response to the COVID-19 pandemic. Following a state-of-emer-
    gency declaration on March 13, 2020, Dr. Harris issued an order
    that prohibited gatherings of more than 25 individuals if they could
    not maintain at least six feet of social distance. About a week later,
    that order was tightened to gatherings of ten or more. The order
    also closed certain close-contact service providers—including bar-
    ber shops—until May 15, 2020. In July, Governor Ivey issued a
    mask mandate requiring all persons to wear a mask if they were
    within six feet of another individual. That mandate stayed in place
    until April 7, 2021.
    Plaintiffs are a collection of individuals who were affected by
    those orders in various ways. Jennifer Case contends (1) that the
    orders restricted her religious liberty because they precluded her
    from attending church for a short period of time and (2) that the
    mask mandate violated her fundamental right to direct the up-
    bringing of her children. Mark Liddle and Jim Nelson—who are
    pastors—assert that the orders violated their religious liberty be-
    cause they were prohibited from conducting their religious services
    in a manner consistent with their sincerely held religious beliefs
    and because they were barred from ministering to the sick and el-
    derly. Bruce Ervin and Scott Farr—who are co-owners of a barber
    shop that was forced to close for a period of time—argue that the
    orders violated their constitutional property and contract rights.
    USCA11 Case: 21-12276           Date Filed: 07/05/2022       Page: 4 of 11
    4                         Opinion of the Court                    21-12276
    Plaintiffs sued on September 24, 2020, seeking injunctive re-
    lief and damages. Defendants filed a motion to dismiss, which the
    district court granted on the ground that plaintiffs’ initial complaint
    was a shotgun pleading. But the court permitted plaintiffs to refile
    an amended complaint. Plaintiffs filed their amended complaint,
    and defendants again moved to dismiss. While the second motion
    to dismiss was pending, Governor Ivey rescinded the COVID-
    related orders. Defendants filed a “Suggestion of Mootness,” con-
    tending that because the orders had been rescinded, “Plaintiffs’
    claims for injunctive relief are moot and due to be dismissed.”
    Plaintiffs never responded to that filing.
    The district court granted defendants’ motion to dismiss. It
    held (1) that plaintiffs’ claims for prospective injunctive relief were
    moot and (2) that defendants were entitled to qualified immunity
    on plaintiffs’ claims for damages because defendants had not vio-
    lated plaintiffs’ constitutional rights, or because, at the very least,
    those rights were not clearly established. Plaintiffs now appeal, ar-
    guing that defendants are not entitled to qualified immunity be-
    cause (1) they acted outside of their discretionary authority, and
    (2) even if they didn’t, they violated clearly established law. 1 We
    disagree and affirm the dismissal.
    1 Although they briefed the issue, plaintiffs conceded at oral argument that
    their claims for injunctive relief were rendered moot when the Governor re-
    scinded the orders. See Oral Arg. at 1:35–1:40, 2:55–3:10. Accordingly, we
    focus our discussion only on whether defendants are entitled to qualified im-
    munity.
    USCA11 Case: 21-12276          Date Filed: 07/05/2022        Page: 5 of 11
    21-12276                 Opinion of the Court                             5
    II
    Whether defendants are entitled to qualified immunity is a
    two-pronged inquiry.2 “The initial inquiry . . . is whether the pub-
    lic official proves that he was acting within the scope of his discre-
    tionary authority when the allegedly wrongful acts occurred.”
    Grider v. City of Auburn, 
    618 F.3d 1240
    , 1254 n.19 (11th Cir. 2010)
    (quotation omitted). If the official meets that initial burden, then
    “the plaintiff must prove that the official’s conduct violated clearly
    established law.” Harbert Int’l, Inc. v. James, 
    157 F.3d 1271
    , 1281
    (11th Cir. 1998).
    A
    To determine whether an official is acting within the scope
    of his discretionary authority, “[w]e ask whether the government
    employee was (a) performing a legitimate job-related function
    (that is, pursuing a job-related goal), (b) through means that were
    within his power to utilize.” Holloman ex rel. Holloman v. Har-
    land, 
    370 F.3d 1252
    , 1265 (11th Cir. 2004). In making that determi-
    nation, “it is critical to define properly the inquiry,” i.e., we do not
    ask “whether it was within the defendant’s authority to commit the
    allegedly illegal act.” Harbert, 157 F.3d at 1282. We instead “ask
    whether the act complained of, if done for a proper purpose, would
    2 “We review de novo the grant of a motion to dismiss for failure to state a
    claim.” Bishop v. Ross Earle & Bonan, P.A., 
    817 F.3d 1268
    , 1270 (11th Cir.
    2016).
    USCA11 Case: 21-12276       Date Filed: 07/05/2022    Page: 6 of 11
    6                      Opinion of the Court                21-12276
    be within, or reasonably related to, the outer perimeter of an offi-
    cial’s discretionary duties.” 
    Id.
     (quotation omitted).
    Plaintiffs contend that defendants were not acting within
    their discretionary authority because they do not have the “author-
    ity to mandate such unprecedented measures as telling churches
    how they may assemble and worship, mandating universal mask
    wearing, and picking and choosing which businesses may stay
    open.” But that defines the inquiry far too narrowly. At this stage
    of the qualified-immunity analysis, we should ask only whether de-
    fendants’ duties include issuing orders in response to a public-
    health emergency—we shouldn’t analyze the propriety of the spe-
    cific orders they issued. Cf. 
    id.
     at 1282–83 (“[W]e did not ask
    whether it was within the defendants’ authority to suspend an em-
    ployee for an improper reason; instead, we asked whether their dis-
    cretionary duties included the administration of discipline.”).
    So framed, the challenged orders were—we think plainly—
    within the scope of defendants’ discretionary authority. The Ala-
    bama Emergency Management Act grants the governor broad au-
    thority to respond to emergencies—including by “mak[ing] . . . the
    necessary orders, rules and regulations to carry out” the AEMA’s
    provisions, 
    Ala. Code § 31-9-6
    (1), such as to “secure the safety and
    protection of the civilian population,” 
    id.
     § 31-9-8(a)(5). And the
    Alabama Code grants the State Health Officer the authority “to
    adopt and promulgate rules and regulations providing proper
    methods and details for administering the health and quarantine
    laws of the state, which rules and regulations shall have the force
    USCA11 Case: 21-12276           Date Filed: 07/05/2022        Page: 7 of 11
    21-12276                  Opinion of the Court                              7
    and effect of law.” Id. § 22-2-2(6). 3 To be absolutely clear, the Code
    does not grant defendants the authority to issue unlawful rules and
    regulations. But, again, at this step in the qualified-immunity in-
    quiry, the question “is not whether it was within the defendant’s
    authority to commit the allegedly illegal act.” Harbert, 157 F.3d at
    1282. We ask only whether the orders were “reasonably related
    to[] the outer perimeter of an official’s discretionary duties.” Id.
    Based on the text of the Code, they were.
    B
    Because defendants have shown that they acted within their
    discretionary authority, “the burden shifts to [plaintiffs] to establish
    that the defendants’ conduct violated clearly established law.” Id.
    at 1284. “A right is clearly established when it is sufficiently clear
    that every reasonable official would have understood that what he
    is doing violates that right.” Johnson v. City of Miami Beach, 
    18 F.4th 1267
    , 1273 (11th Cir. 2021) (quotation omitted). “The usual
    way of establishing that a constitutional violation was clearly estab-
    lished law is by pointing to a case, in existence at the time, in which
    the Supreme Court or this Court found a violation based on
    3 Plaintiffs concede that the State Health Officer retains this rulemaking au-
    thority. They assert, however, that any rule or regulation that they challenge
    was not tied to a health or quarantine law, because the “State of Alabama does
    not have a single health or quarantine law that contemplates” the specific or-
    ders that Harris issued. But that goes to whether the orders were lawful, not
    to whether the act of issuing those orders was within Harris’s discretionary
    authority. See Harbert, 157 F.3d at 1282–83. And, as already explained, that’s
    not the right question at this stage of the qualified-immunity inquiry.
    USCA11 Case: 21-12276             Date Filed: 07/05/2022         Page: 8 of 11
    8                          Opinion of the Court                        21-12276
    materially similar facts.” Id. (quotation omitted). 4 Plaintiffs have
    failed to meet their burden.
    i
    First, plaintiffs contend that defendants violated their
    “clearly established rights under the Free Exercise, Establishment,
    and Assembly Clauses of the First Amendment.” But instead of
    “pointing to a case” in which we or the Supreme Court “found a
    violation based on materially similar facts,” id., plaintiffs make a
    handful of generalized assertions about the scope of the First
    Amendment’s protection. For example, plaintiffs cite Thomas Jef-
    ferson’s Letter to the Danbury Baptists and Virginia Statute of Re-
    ligious Liberty, James Madison’s Memorial and Remonstrance, the
    Declaration of Independence, a handful of out-of-circuit cases, and
    former-President Trump’s recent proclamation honoring a
    twelfth-century martyr. None of that is sufficient to create a
    “clearly established” right, though, which (as explained) ordinarily
    4 There are, of course, other ways in which a plaintiff might demonstrate that
    a right is “clearly established” for qualified-immunity purposes, such as when
    “a broader, clearly established principle should control the novel facts of a par-
    ticular situation,” or when an official’s conduct “so obviously violates the con-
    stitution that prior case law is unnecessary.” Corbitt v. Vickers, 
    929 F.3d 1304
    ,
    1312 (11th Cir. 2019) (cleaned up). Because plaintiffs don’t specify the theory
    under which they seek to demonstrate that the government violated their
    clearly established rights, we assume that they are traveling under “the usual
    way”—by relying on a case directly on point. Johnson, 18 F.4th at 1273. To
    be clear, though, even if plaintiffs had invoked either of the less “usual ways,”
    we would reach the same conclusion.
    USCA11 Case: 21-12276             Date Filed: 07/05/2022         Page: 9 of 11
    21-12276                   Opinion of the Court                                9
    must come from “existing precedent [that has] placed the statutory
    or constitutional question beyond debate.” Mullenix v. Luna, 
    577 U.S. 7
    , 12 (2015). To be fair, plaintiffs also cite a handful of recent
    COVID-related decisions of the Supreme Court, but all of them
    post-date the challenged orders, which disqualifies them as sources
    of “clearly established” law. See Coffin v. Brandau, 
    642 F.3d 999
    ,
    103 (11th Cir. 2011) (en banc) (stating that we must determine
    “whether the right in question was clearly established at the time
    of the violation” (emphasis added)). Plaintiffs have failed to satisfy
    their burden that any of the challenged orders violated their clearly
    established First Amendment rights.5
    ii
    Next, plaintiffs—citing Troxel v. Granville, 
    530 U.S. 57
    (2000)—contend that the mask mandate violated Case’s fundamen-
    tal right to direct the upbringing of her children. But they cite to
    no case that extends Troxel to the specific right they now assert:
    the right to the “choice both of how to dress their children and
    what kind of medical care to provide them” in the specific context
    5 Plaintiffs also cite Everson v. Board of Education, 
    330 U.S. 1
    , 15 (1947), for
    the general proposition that the government can neither “force nor influence
    a person to go to or to remain away from church against his will” without
    violating the Establishment Clause. And they cite Employment Division v.
    Smith, 
    494 U.S. 872
    , 877 (1990), to support the notion that the state may not
    prohibit “assembling with others for a worship service” without bumping up
    against free-exercise rights. But neither of those cases was “based on” facts
    “materially” (or really even remotely) “similar” to those presented by this case.
    Johnson, 18 F.4th at 1273.
    USCA11 Case: 21-12276       Date Filed: 07/05/2022    Page: 10 of 11
    10                     Opinion of the Court                21-12276
    of a mask mandate. Accordingly, plaintiffs have failed to carry their
    burden to demonstrate that any parental rights that defendants
    might have violated were clearly established.
    iii
    Plaintiffs also assert that the Fifth and Fourteenth Amend-
    ments guarantee “[t]he right to own, buy, sell, and use property,”
    and that Governor Ivey violated those rights when she ordered sev-
    eral businesses to close for a period of time. But they cite only one
    case, Knick v. Township of Scott, 
    139 S. Ct. 2162
     (2019), about
    which they say only that it “signal[s] an increased recognition of
    property rights’ importance.” That’s insufficient to clearly estab-
    lish the right plaintiffs seek to vindicate in this case.
    iv
    Finally, citing Lochner v. New York, 
    198 U.S. 45
     (1905),
    plaintiffs contend that defendants violated a Fourteenth Amend-
    ment due-process right to make and enforce contracts because Farr
    and Ervin were forced to cancel their customers’ appointments.
    Even setting aside the fact that Lochner was effectively overruled
    by the Supreme Court—as plaintiffs acknowledge in their brief—in
    West Coast Hotel Co. v. Parrish, 
    300 U.S. 379
     (1937), plaintiffs do
    not cite any case clearly establishing a constitutional right that
    USCA11 Case: 21-12276           Date Filed: 07/05/2022         Page: 11 of 11
    21-12276                   Opinion of the Court                              11
    defendants violated by promulgating orders resulting in the cancel-
    lation of hair appointments. 6
    * * *
    Defendants were acting within their discretionary authority
    when they issued the challenged orders and plaintiffs failed to meet
    their burden to establish that the orders violated their clearly estab-
    lished rights. AFFIRMED.
    6 Plaintiffs
    also invoke the Constitution’s prohibition on passing laws “impair-
    ing the Obligation of Contracts.” U.S. Const. art. I, § 10, cl. 1. But they cite
    no cases applying that provision to similar circumstances and have thus failed
    to carry their burden to demonstrate that defendants violated a clearly estab-
    lished right. See Johnson, 18 F.4th at 1273.