Alvin Boone , Brandon Hester , Lindsey Quisenberry, Tammy Parkhill v. Illinois Department of Corrections

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-8012
A LVIN BOONE , BRANDON HESTER , LINDSEY QUISENBERRY,
T AMMY P ARKHILL , and SUSAN C HRISTNER , individually, as
well as on behalf of all persons similarly situated,
Plaintiffs-Respondents,
v.
ILLINOIS D EPARTMENT OF C ORRECTIONS, et al.,
Defendants-Petitioners.
____________________
Petition for Interlocutory Appeal from the
United States District Court for the
Central District of Illinois.
No. 3:21-cv-3229 — James E. Shadid, Judge.
____________________
SUBMITTED MAY 5, 2023 — D ECIDED J UNE 21, 2023
____________________
Before SCUDDER , ST . EVE , and KIRSCH , Circuit Judges.
SCUDDER , Circuit Judge. Before us is an interlocutory ap-
peal arising in mighty odd circumstances. In November 2021
the Illinois General Assembly passed Public Act 102-667,
which added a provision to the state’s Health Care Right of
Conscience Act. The new provision purported to be a

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2 No. 23-8012
“declaration of existing law” that “shall not be construed as a
new enactment.” In reviewing a challenge to this new provi-
sion, the district court took the legislature at its word, ex-
plained that the provision “was merely a clarification of exist-
ing law” that affected nobody’s rights or obligations, and thus
rejected the plaintiffs’ requests to enjoin the added provision
from being enforced. But the district court then allowed the
challenge to go forward to determine whether the new provi-
sion somehow harmed the plaintiffs in a way that would en-
title them to some form of legal relief.
Both parties seek interlocutory review to sort out the im-
pact of the district court’s first holding (that Public Act
102-667 did not change existing law) on its second (that unre-
solved issues of fact remained regarding the plaintiffs’ chal-
lenge). We see no way around it: the district court’s two con-
clusions conflict. The new measure could not have injured the
plaintiffs if it did not change their substantive rights and ob-
ligations.
The district court’s primary conclusion about Public Act
102-667—that it changed nothing in Illinois law—requires
dismissing the plaintiffs’ challenge for lack of Article III
standing. We therefore accept the interlocutory appeal as it
was presented to us and remand with instructions to dismiss
the case. At this time we do not question any other determi-
nations made by the district court, including its holding that
Public Act 102-667 did not change existing law. Such ques-
tions would be better addressed in an appeal from a final
judgment on all the plaintiffs’ claims.

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No. 23-8012 3
I
The underlying lawsuit relates to COVID-19 vaccine man-
dates imposed by several Illinois state agencies. In October
2021 the plaintiffs, who work for these agencies, sued their
employers and Governor J.B. Pritzker in Illinois state court,
asserting the vaccine mandates were unlawful. The defend-
ants then removed the case to federal court. In response to
similar lawsuits, Illinois passed Public Act 102-667 on No-
vember 8, 2021. The measure amended the Health Care Right
of Conscience Act to add the following provision:
It is not a violation of this Act for any person or
public official, or for any public or private asso-
ciation, agency, corporation, entity, institution,
or employer, to take any measures or impose
any requirements, including, but not limited to,
any measures or requirements that involve pro-
vision of services by a physician or health care
personnel, intended to prevent contraction or
transmission of COVID-19 or any pathogens
that result in COVID-19 or any of its subsequent
iterations. It is not a violation of this Act to en-
force such measures or requirements. This Sec-
tion is a declaration of existing law and shall not
be construed as a new enactment.
745 ILCS 70/13.5. This amendment took effect on June 1, 2022.
The next day the plaintiffs amended their complaint to
add several claims challenging this new law. They contended
that this amendment to the Health Care Right of Conscience
Act violated federal and state constitutional protections of
free exercise of religion and equal protection of the laws, so

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4 No. 23-8012
they requested a declaration that the statute is unconstitu-
tional as well as an injunction preventing the state from en-
forcing the amendment.
Notice what the plaintiffs did not do. In their amended
complaint they never challenged any of the original provi-
sions of the Health Care Right to Conscience Act—the statute
that Public Act 102-667 purported to clarify. Quite the oppo-
site: the plaintiffs asserted that the amendment conflicted with
the meaning of the original Act despite the amendment’s own
statement to the contrary. In short, they contended that Public
Act 102-667 changed, rather than clarified, existing law. Their
issue was with the new provision, and that provision alone.
The defendants invoked Rule 12(b)(6) and moved to dis-
miss the plaintiffs’ claims for failure to state a claim upon
which relief can be granted. The district court granted the de-
fendants’ motion to dismiss the plaintiffs’ original October
2021 claims challenging their employers’ vaccination require-
ments under unrelated state and federal law. Those claims are
not before us on this interlocutory appeal. Nor has the district
court entered final judgment on those other claims.
As for the plaintiffs’ claims regarding Public Act 102-667,
the outcome was mixed. The district court determined that
the new provision, by its terms, did not change and instead
merely clarified existing law. The district court therefore held
that the plaintiffs were unlikely to succeed on the merits and
rejected their request for a preliminary injunction. But the dis-
trict court did not stop there. It went on to observe that issues
of fact remained unresolved on the very same claims, though
it did not identify what those questions of fact were. In the
end, the district court allowed the plaintiff’s challenge to Pub-
lic Act 102-667 to move forward notwithstanding the court’s

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No. 23-8012 5
prior conclusion that the amendment—as a legal matter—did
not change anything about the original Health Care Right to
Conscience Act.
The defendants then moved under 28 U.S.C. § 1292(b) to
certify the following question for interlocutory appeal:
Whether, given [the district] court’s correct de-
termination that Section 13.5 is a declaration of
existing law that did not change the HCRCA,
[the district] court cannot grant Plaintiffs any
meaningful relief.
The district court certified this exact question for appeal.
II
A
We begin with our own jurisdiction as a court of review.
Section 1292(b) requires us to independently decide whether
to accept the certified question for interlocutory appeal. We
may accept interlocutory appeals only if they present ques-
tions of law that are controlling and contestable, the resolu-
tion of which would speed up the litigation. See 28 U.S.C.
§ 1292(b); Ahrenholz v. Bd. of Trs. of the Univ. of Illinois, 219 F.3d
674, 675 (7th Cir. 2000). All those statutory criteria are met.
First, the certified question is a purely legal one. We have
previously accepted interlocutory appeals regarding “the suf-
ficiency of the allegations of a complaint” when the questions
presented “require[ ] the interpretation, and not merely the
application, of a legal standard.” In re Text Messaging Antitrust
Litig., 630 F.3d 622, 625 (7th Cir. 2010).
Second, the question of law is controlling. The only active
claims in this litigation are the plaintiffs’ challenges to Public

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6 No. 23-8012
Act 102-667, and the district court has already determined
that the amendment did not change existing law. Resolution
of the certified question is therefore “quite likely to affect the
future course of the litigation.” Sokaogon Gaming Enter. Corp.
v. Tushie-Montgomery Assocs., Inc., 86 F.3d 656, 659 (7th Cir.
1996).
Third, the question of law is contestable. The district court
explained that the plaintiffs were unlikely to succeed on the
merits of their challenge to Public Act 102-667, but it never-
theless held that they might be entitled to some relief. This
demonstrates the confusion posed by the question presented
to us for review.
Fourth, resolution of the certified question promises to
speed up the litigation. If we conclude that no relief is availa-
ble to the plaintiffs, the entirety of the litigation in the district
court is almost certain to end—though an appeal from final
judgment may follow. See Johnson v. Burken, 930 F.2d 1202,
1205 (7th Cir. 1991) (“[B]eing a threshold question its resolu-
tion now may materially advance the ultimate termination of
the litigation.”). And even if we find that some relief remains
available to the plaintiffs, our identification of that relief
would narrow the issues moving forward. We understand
this is likely why the defendants sought interlocutory review
in the first place: they do not want to spend the time and
money necessary to defend a law that, in their view, caused
no harm to the plaintiffs—or anyone else for that matter.
We conclude that we have jurisdiction to accept this inter-
locutory appeal under § 1292(b), and we accept the appeal.

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No. 23-8012 7
B
With that we move to the merits of the certified question—
whether the plaintiffs are entitled to any form of relief from
Public Act 102-667, assuming that amendment did not change
anything about the Health Care Right of Conscience Act.
At the outset we recognize that the plaintiffs continue to
contend that Public Act 102-667 is at odds with the original
meaning of Illinois’s Health Care Right of Conscience Act.
That may well be the case. But we accept the premise of the
question as it was presented to us for interlocutory review
and therefore do not address the plaintiffs’ contentions fur-
ther at this juncture.
For their part, the defendants explain that because Public
Act 102-667 did nothing more than clarify existing law (a
premise we accept for purposes of this appeal), the plaintiffs’
isolated challenge to the statute does not state a claim upon
which relief can be granted. See Fed. R. Civ. P. 12(b)(6). This
position appears sound: we do not see how the plaintiffs’ de-
sired outcome—a judicial invalidation of a statute of no inde-
pendent legal significance—could provide meaningful relief
to them or any plaintiffs.
But we decline to engage further with that question be-
cause our analysis has uncovered a related, threshold flaw
with the plaintiffs’ case—at least in the posture of this inter-
locutory appeal. If Public Act 102-667 truly did not effect a
change in the law, no harm can flow from it, and no harm can
be remedied by striking it down. That jeopardizes the author-
ity of federal courts to hear this case in the first place. See
Sweeney v. Raoul, 990 F.3d 555, 559 (7th Cir. 2021) (“To estab-
lish ‘the irreducible constitutional minimum of standing,’ the

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8 No. 23-8012
plaintiff must have suffered an injury in fact traceable to the
defendant and capable of being redressed through a favorable
judicial ruling.” (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555,
560–61 (1992))). Simply put, the plaintiffs lack standing to
bring—and we and the district court lack jurisdiction to
hear—a challenge to a statutory measure that cannot have
harmed the plaintiffs.
We must end our analysis with that conclusion and not go
any further. See Indiana Right to Life Victory Fund v. Morales, 66
F.4th 625, 630 (7th Cir. 2023) (“We must address [ ] jurisdic-
tional questions before we can even consider the merits.” (cit-
ing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93–95
(1998))). Once the district court determined that the General
Assembly’s amendment did not change anything about the
Health Care Right of Conscience Act, any further proceedings
related to that challenge became futile. The district court
should have immediately dismissed the plaintiffs’ challenges
to the amendment for lack of standing.
Do not overread our decision. We do not here decide
whether Public Act 102-667 changed or merely clarified the
Health Care Right of Conscience Act. Nor do we cast into
doubt the plaintiffs’ standing to challenge the amendment in
the event it actually changed the law—or the plaintiffs’ stand-
ing to challenge the underlying Act if the amendment did not
change anything. We hold only that, accepting the certified
question as it comes to us and assuming that the General As-
sembly merely clarified existing law when it passed Public
Act 102-667, the plaintiffs lack standing to challenge that
amendment.
We therefore REVERSE and REMAND with instructions
to dismiss the plaintiffs’ challenges to Public Act 102-667 for

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No. 23-8012 9
lack of standing. The district court is free on remand to issue
a proper final judgment pursuant to Rules 54(a) and 58(a),
which would cover all the claims in the plaintiffs’ amended
complaint. The plaintiffs could then invoke 28 U.S.C. § 1291
and notice an appeal on any issues not resolved by this inter-
locutory appeal.

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