Monclova Christian Academy v. Toledo-Lucas County Health Department

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 22a0250n.06
No. 20-4300
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MONCLOVA CHRISTIAN ACADEMY, et al.,
Plaintiffs-Appellants,
v.
TOLEDO-LUCAS COUNTY HEALTH DEPARTMENT,
Defendant-Appellee.
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ON APPEAL FROM THE
UNITED STATES
DISTRICT COURT FOR
THE NORTHERN
DISTRICT OF OHIO
OPINION
Before: CLAY, ROGERS, and KETHLEDGE, Circuit Judges.
KETHLEDGE, Circuit Judge. We have already decided all there is to decide in this appeal.
The plaintiffs are nine Christian schools that claim the Toledo-Lucas County Health Department
violated their Free Exercise rights when the Department ordered closed all county schools—public,
private, charter, and parochial—for grades 7 to 12, from December 4, 2020 at 4:00 p.m. until
January 11, 2021 at 8:00 a.m. (including a 2-week break for the holidays). We enjoined that order
on December 31, 2020, and the order expired by its terms on January 11, 2021. See Monclova
Christian Acad. v. Toledo-Lucas Cnty. Health Dep’t, 984 F.3d 477 (6th Cir. 2020). The
Department now asks us to dismiss this appeal as moot and also to vacate our earlier order.
The procedural posture here is worth sorting out. In brief, the plaintiffs moved in the
district court for a preliminary injunction against enforcement of the Department’s “Resolution
No. 2020.11.189” (the “closure order”), enacted pursuant to a since-amended regulation, Ohio

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Rev. Code § 3707.26, which had closed all schools, grades 7 and up, for a 5-week period in
December 2020. The district court denied that motion; the plaintiffs appealed the denial and
separately moved in our court for a preliminary injunction during the pendency of their appeal (of
the district court’s denial of the same relief). We granted that motion. Thus, as matters stand now,
we have already granted the plaintiffs a preliminary injunction against enforcement of the closure
order “during the pendency of this appeal[.]” Id. at 482. Even nominally, the only relief left for
us to provide them would be to extend the term of that injunction to run during the pendency of
any remaining litigation in the district court.
Whether this appeal is moot depends on whether injunctive relief in that narrow window
would have any concrete effect on the parties’ rights. 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 (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, 969 F.3d 306, 308 (6th Cir. 2020).
The relevant intervening event here is that the closure order expired by its terms almost 17
months ago, in January 2021. Hence the relief that the plaintiffs seek in this appeal would have
no practical effect. Nor does any exception to the mootness doctrine apply here: the order’s
expiration had nothing to do with this lawsuit; “the relevant circumstances have changed
dramatically since” the Department issued the closure order; and “any future [closure] order likely
would not present substantially the same legal controversy as the one originally presented here[,]”
given all the relevant decisions by the Supreme Court and our court since then. Resurrection
School v. Hertel, 35 F.4th 524, 529 (6th Cir. 2022) (en banc). This appeal is moot.

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The Department separately requests that we vacate our earlier opinion granting the
plaintiffs a preliminary injunction during the pendency of this appeal. Vacatur is an “extraordinary
remedy” for which the movant bears the “burden” of showing “entitlement.” U.S. Bancorp Mortg.
Co. v. Bonner Mall P’ship, 513 U.S. 18, 26 (1994). The Department asserts we should vacate our
earlier opinion because, in its view, it was “frustrated by the vagaries of circumstance” from
appealing it. But this is an appeal of the district court’s order denying a preliminary injunction,
not of our earlier opinion granting one. That distinguishes this case from Cnty. of Butler v. Gov.
of Penn., 8 F.4th 226 (3d Cir. 2021), in which (unlike here) the party seeking vacatur was the party
that brought the later-mooted appeal. Thus, if anyone could seek vacatur here, it is the plaintiffs
of the district court’s order. The Department is not entitled to vacatur here.
We dismiss this appeal as moot and deny the Department’s motion for vacatur.

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