NOT RECOMMENDED FOR PUBLICATION File Name: 23a0370n.06
Case No. 22-5969 FILED UNITED STATES COURT OF APPEALS Aug 14, 2023 FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
) G.S., by and through his parents and next friends, ) Brittany and Ryan Schwaigert, et al, ) Plaintiffs-Appellees, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE WESTERN ) DISTRICT OF TENNESSEE BILL LEE, Governor, ) Defendant-Appellant. ) OPINION )
Before: SUTTON, Chief Judge; DAVIS and MATHIS, Circuit Judges.
DAVIS, Circuit Judge. Shelby County issued a mask mandate to protect against the
continued spread of COVID-19 during a state-declared state of emergency stemming from the high
rates of transmission. Days later, the Governor of Tennessee signed an executive order permitting
students and their parents to opt out of the County’s mask mandate as applied to grade-school
students in academic settings. Shelby County subsequently recognized the executive order as an
exception to the mask mandate. Consequently, hundreds of grade-school students in Shelby
County started attending schools without face coverings. Three grade-school students with
disabilities sued the Governor and Shelby County on behalf of themselves and a class of similarly
situated individuals to challenge the executive order and the County’s failure to enforce its mask
mandate in academic settings. The students requested declaratory and injunctive relief, alleging
that they faced heightened risks of death or serious injury in the event of exposure to the virus, and Case No. 22-5969, G.S., et al. v. Lee
accordingly required reasonable accommodations in the form of face coverings for other students
in their proximity. The district court granted a preliminary injunction, but the case became moot
before it ruled on the students’ request for a permanent injunction. It then awarded attorneys’ fees
to the students based on their preliminary relief. The Governor appeals the fee award, contending
that the students are not “prevailing parties” as required by the relevant fee-shifting statutes. For
the reasons that follow, we AFFIRM.
I.
On August 6, 2021, as the nation contemplated and navigated the transition from quarantine
practices back to in-person interactions, the Shelby County Health Department issued Amended
Health Order No. 24 (“AHO No. 24”). Pursuant to Tenn. Code Ann. § 68-2-609(4), which
authorizes county health officials to issue general health and safety orders, AHO No. 24 purported
to address the County’s consistently high rates of positive COVID-19 cases that constituted a
public health emergency. The order provided guidance on several measures to protect against
COVID-19 including universal masking for persons entering indoor areas of K–12 schools, Pre-K
schools, and daycare facilities.
On August 16, 2021, ten days after the county issued AHO No. 24, Bill Lee, the Governor
of Tennessee, signed Executive Order No. 84 (“EO No. 84”) which permitted grade-school
students and their parents to opt out of AHO No. 24’s mask mandate in academic settings. In
response, the Shelby County Health Department issued Amended Health Order No. 25 (“AHO No.
25”), which listed EO No. 84 as an exception to the County’s masking requirement. As a result,
Shelby County stopped enforcing the mask-mandate at schools, and hundreds of grade-school
students started attending schools with no face coverings.
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On August 27, 2021, two Shelby County students with disabilities, G.S. and S.T, sued
Governor Lee and the County in federal court on behalf of themselves and a class of similarly
situated students, seeking declaratory and injunctive relief relating to Shelby County’s masking
practices. The students brought claims under the Americans with Disabilities Act (“ADA”) and
Section 504 of the Rehabilitation Act, alleging that they had medical conditions which increased
their risk of death or serious complications in the event of exposure to COVID-19. The students
further alleged that some of the purported class members were under age 12, rendering them
ineligible for COVID-19 vaccinations according to the Food and Drug Administration (“FDA”)
regulations. The students sought relief, including: (1) a declaration that EO No. 84 was in violation
of both the ADA and the Rehabilitation Act; (2) a temporary restraining order (“TRO”) enjoining
the Governor and the State of Tennessee from permitting parents to opt out of Shelby County’s
mask mandate; (3) preliminary and permanent injunctions enjoining the same; and (4) reasonable
attorneys’ fees, costs, and expenses.
On the same day they filed suit, the students also filed a motion for a TRO and a preliminary
injunction against the Governor and Shelby County. The district court granted the TRO first, and
a preliminary injunction shortly after, holding separate hearings for each. During the TRO hearing,
G.S.’s mother testified that Shelby County grade schools had been enforcing the AHO No. 24
mask mandate but stopped after the Governor issued EO No. 84. As a result, her son who needs
to interact with neurotypical peers according to his individualized education plan was no longer
getting those interactions. At the time of the TRO hearing, 22% of students had opted out of the
County’s mask mandate at S.T.’s school. S.T.’s mother testified that S.T. had been excluded from
participating in certain classes because other students were not wearing masks. Additionally, one
of the students’ experts testified about the effectiveness of masks in reducing the risk of exposure
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to COVID-19, especially with respect to students with disabilities who face a higher risk of death.
The parties also briefed the TRO motion before the hearing and provided supplemental briefing
afterwards.
At the preliminary-injunction hearing, the students relied on the evidence and testimony
they presented at the TRO hearing. For his part, the Governor offered Theresa Nicholls, the
Assistant Commissioner of Special Populations at the Tennessee Department of Education, as a
witness. The students also amended their complaint on the day of the hearing to add a third student,
J.M., as a plaintiff. Like the other named students, J.M. has a disability that places her at a
heightened risk of death or serious complications in the event of COVID-19 exposure.
The district court granted the students’ request for a preliminary injunction on September
17, 2021. In doing so, the court enjoined the Governor from enforcing EO No. 84 or otherwise
allowing parties to opt out of the County’s mask mandate, ordered Shelby County to enforce AHO
No. 24, and noted that the injunction would be in effect until terminated by a final order or
otherwise dissolved by the court. Shelby County subsequently moved for judgment on the
pleadings. The district court granted Shelby County’s motion and dismissed the County from the
lawsuit. As for Governor Lee, he appealed the district court’s order granting a preliminary
injunction and requested a stay pending resolution of his appeal. When the district court denied
the Governor’s motion to stay, he requested a stay from this court. On November 12, 2021, while
his stay motion was pending in this court, the Tennessee General Assembly enacted the COVID-
19 Act which addressed face covering protocols for schools, including with respect to reasonable
accommodations pursuant to the ADA. Tenn. Code Ann. § 14-2-104(d). As a result, the Governor
terminated EO No. 84 because the COVID-19 Act “negate[d] the need” for such an order.
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We later denied the Governor’s motion for a stay, finding that the students had provided
ample evidence that absent reasonable accommodations to mitigate the risk of contracting COVID-
19, they would be denied public education due to their disabilities. G.S. by & through Schwaigert
v. Lee, No. 21-5915, 2021 WL 5411218, at *2 (6th Cir. Nov. 19, 2021). While the students had
offered evidence before the district court regarding the reasonableness of a universal mask mandate
to mitigate the spread of the virus, the Governor had not submitted evidence to the contrary. Id.
Consequently, he had not submitted sufficient evidence to show a likelihood of success on the
merits of his appeal. Id. at *3. We also questioned whether the enactment of the COVID-19 Act
and termination of EO No. 84 rendered this case moot. Id. But we declined to answer because the
district court had not had an opportunity to address the issue. Id. Pursuant to a joint motion by
the parties, we ultimately dismissed the Governor’s appeal.
Back in the district court, on December 23, 2021, the students moved for attorneys’ fees,
arguing that they were “prevailing parties” under 42 U.S.C. §§ 1988, 12205.1 The Governor
moved to dismiss based on lack of subject-matter jurisdiction, maintaining that the students’ claims
had become moot. The students opposed the Governor’s motion and filed a motion for summary
judgment on the merits, which also contained a request for a permanent injunction. The district
1 The students brought claims pursuant to the ADA and the Rehabilitation Act. Accordingly, 42 U.S.C. § 12205 (ADA) and 29 U.S.C. § 794a (Rehabilitation Act) govern their request for attorneys’ fees, not 42 U.S.C. § 1988. Section 1988 lists the civil-rights actions to which it pertains and does not include the claims in this case. Nonetheless, our analysis regarding whether a party qualifies as a “prevailing party” is interchangeable under these fee-shifting statutes. See Buckhannon Bd. & Care Home, Inc. v. W. V. Dep’t of Health & Hum. Res., 532 U.S. 598, 603 (2001) (explaining that “prevailing party” is a term of art and citing § 1988 cases to analyze a request for fees pursuant to § 12205); see also Gavette v. Brady, 7 F.3d 233 (6th Cir. 1993) (table) (citing § 1988 cases to analyze the term in a case where the plaintiff requested fees pursuant to 29 U.S.C. § 794a). Accordingly, we review cases discussing § 1988 and other fee-shifting statutes to inform our analysis. -5- Case No. 22-5969, G.S., et al. v. Lee
court granted the Governor’s motion to dismiss and denied the students’ motion for summary
judgment as moot. Regarding its ruling on the motion to dismiss, the court explained:
There is no reasonable expectation that another Executive Order involving an opt-out masking provision will recur, and the combination of [Tennessee’s] COVID Act, the lack of a declared state of emergency in Tennessee, and [the Governor’s termination of EO No. 84] have eradicated, completely and irrevocably, the presence and effect of the opt-out mask provision in schools.
R. 127, PageID: 1772. The district court noted that the state of emergency had expired on
November 19, 2021, and was not extended. The students subsequently renewed their request for
attorney’s fees, which the district court granted. The court then dismissed the case with prejudice
and the Governor timely appealed, maintaining that the students were not “prevailing parties” such
that they were entitled to a fee award.
II.
American common law does not provide a right to attorney’s fees. And pursuant to the
“American rule” that each party is to bear his or her own costs, we do not award such fees “absent
explicit statutory authority.” McQueary v. Conway, 614 F.3d 591, 597 (6th Cir. 2010) (citation
and quotation marks omitted); see also Miller v. Caudill, 936 F.3d 442, 445 (6th Cir. 2019).
Several statutes, including the ADA and Section 504 of the Rehabilitation Act, authorize courts to
grant fees to the “prevailing party.” 42 U.S.C. § 12205; 29 U.S.C. § 794a. Whether a party has
prevailed within the meaning of these fee-shifting statutes is a legal question that we review de
novo. Miller, 936 F.3d at 448.
A party who obtains preliminary injunctive relief is not ordinarily considered a prevailing
party for purposes of attorneys’ fees. Planned Parenthood Sw. Ohio Region v. Dewine, 931 F.3d
530, 538 (6th Cir. 2019). But there are “occasional exceptions.” Id. (quoting McQueary, 614 F.3d
at 604) (quotation marks omitted). Namely, a plaintiff will be deemed the prevailing party if the
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preliminary injunction resulted in “a court-ordered, material, enduring change in the legal
relationship between the parties.” Miller, 936 F.3d at 448.
The Supreme Court’s guidance in Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of
Health & Human Res., 532 U.S. 598 (2001) and Sole v. Wyner, 551 U.S. 74 (2007), and our own
previous decisions, give shape to this inquiry. McQueary, 614 F.3d at 597–598; see also Dewine,
931 F.3d at 541 (explaining that a combined application of these Supreme Court cases and relevant
Sixth Circuit precedent can be used to determine whether a party prevailed). Buckhannon
emphasizes that the change in the legal relationship between the parties must be court-ordered
rather than voluntary. 532 U.S. at 604. This means that the “plaintiff [cannot] ‘prevail’ based on
the theory that its lawsuit catalyzed a change in the defendant’s behavior.” Dewine, 931 F.3d at
538 (citing Buckhannon, 532 U.S. at 605). Sole stresses that the alteration in the legal relationship
must be “enduring” and material. 551 U.S. at 82, 86; McQueary, 614 F.3d at 597–98. To be
considered enduring, a change must not be “reversed, dissolved, or otherwise undone by the final
decision in the same case.” McQueary, 614 F.3d at 597 (quoting Sole, 551 U.S. at 83). To be
material, the party must have “succeed[ed] on [a] significant issue in litigation which achieve[d]
some of the benefit the part[y] sought in bringing suit.” Dewine, 931 F.3d at 538 (second, third,
and fourth alterations in original) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).
Finally, this circuit has underscored that the plaintiff’s success must have been “based, at least in
part, on the merits of the claim.” Id. at 539 (citation omitted).
If “the combined application of [the cases we highlighted in McQueary] does not clearly
dictate whether a plaintiff is prevailing, the necessary inquiry [becomes] ‘contextual and case-
specific,’ and for the district court’s consideration.” Dewine, 931 F.3d at 541 (quoting McQueary,
614 F.3d at 601, 604).
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III.
On the Merits. Here, the Governor does not argue that the preliminary injunction was not
based on the merits; nor could he. The district court held hearings on the students’ request for a
TRO and a preliminary injunction, both of which involved the Governor’s and the County’s
masking requirements in grade schools. During the TRO hearing, the court considered
declarations and heard testimony from two of the named students’ mothers and two medical
experts on behalf of the students, all regarding the merits of the students’ claims. The court also
heard testimony from a witness on the Governor’s behalf. Additionally, the court permitted the
parties to submit supplemental briefing before and after the TRO hearing. With this backdrop, the
district court issued the preliminary injunction only after it “conclude[d] that [the students had]
not only shown that the accommodation of required indoor masking is reasonable, but also that
[EO No. 84] rejected this accommodation in favor of more costly, inefficient alternatives.” R. 62,
PageID: 1254. When Governor Lee appealed the preliminary-injunction ruling, we agreed with
the district court. We found not only that the students had demonstrated a likelihood of success
on the merits, but also that the Governor had failed to offer evidence to rebut their claims or
otherwise show a likelihood of success as to his appeal. G.S., 2021 WL 5411218, at *2. The
Governor cannot dispute that the district court’s preliminary-injunction order was the result of
substantive hearings and briefing as opposed to an effort to maintain the status quo in light of
equity considerations. McQueary, 614 F.3d at 598 (“In the context of a preliminary injunction, . .
. there is only prevailing party status if the injunction represents an unambiguous indication of
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probable success on the merits, and not merely a maintenance of the status quo ordered because
the balance of equities greatly favors the plaintiff.” (citation and quotation marks omitted)).
Instead of contesting whether the preliminary relief was on the merits, Governor Lee
contends that the students are not prevailing parties because their preliminary-injunctive relief did
not produce an enduring change in the legal relationship between the parties. He also implies that
the change was the result of his voluntary action as opposed to a court order.2 Neither argument
resonates.
Enduring Relief. Governor Lee argues that the students’ relief was not sufficiently
enduring because they did not get everything they asked for in this lawsuit, and because the
preliminary injunction did not provide them with a one-time irrevocable opportunity. But as we
explained in Dewine, plaintiffs are not required to get everything they asked for to enjoy
prevailing-party status. 931 F.3d at 540–41. In that case, Planned Parenthood of Southwest Ohio
Region (“Planned Parenthood”) sued Ohio’s attorney general and a county official, challenging a
state statute. Id. at 534. The statute regulated a medical abortion drug pursuant to the FDA’s
approval letter and final printed label. Id. at 536. But contrary to standard medical practice, the
FDA’s guidance did not allow physicians to rely on a particular evidence-based protocol in
prescribing the drug. Id. at 535. Planned Parenthood raised four claims, seeking declaratory relief,
a preliminary injunction and a permanent injunction preventing enforcement of the statute. Id.
Based on the likelihood of success on the merits as to one of their claims, Planned Parenthood
2 The Governor implies throughout his initial brief that the change in the parties’ legal relationship was a result of his voluntary action but does not develop the argument. This argument fails for that reason alone. See United States v. Layne, 192 F.3d 556, 566 (6th Cir. 1999) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.” (quoting McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997))). However, because the students address the issue and the Governor arguably responds, both in footnotes, we briefly consider voluntary cessation below. -9- Case No. 22-5969, G.S., et al. v. Lee
obtained preliminary and permanent injunctions enjoining enforcement of the law in full. Id. at
534–36. We affirmed the preliminary injunction in part on appeal, narrowing the scope to govern
only unconstitutional applications of the statute. Id. at 536. But we ultimately vacated the
permanent injunction. Id. at 536–537. After the preliminary injunction had been in place for
nearly 12 years, the FDA mooted the parties’ dispute by amending its approval letter and final
printed label for the drug to comport with the evidence-based protocol at issue. Id. at 537. As a
result, the parties agreed to dismiss the case. Id. Planned Parenthood subsequently sought and
obtained attorneys’ fees. Id. at 537–38.
The state offered several arguments in Dewine to dispute prevailing-party status, including
that Planned Parenthood did not receive “everything it asked for.” Dewine, 931 F.3d at 540
(quoting McQueary, 614 F.3d at 599). In rejecting this argument, we first clarified that “McQueary
does not require a plaintiff to achieve such comprehensive success in all instances in which cases
are mooted prior to the issuance of a final judicial order.” Id. at 540. That language merely
illustrated why we declined to create a per se rule on prevailing-party status in the context
preliminary injunctions. Id. We further explained that it is not “the magnitude of a party’s relief
[that] dictate[s] the outcome of the prevailing-party inquiry.” Id. at 541 (citing Binta B. ex rel.
S.A. v. Gordon, 710 F.3d 608, 620 (6th Cir. 2013)). Rather, the standard is a “generous” one,
where “a plaintiff prevails ‘even if [his] limited success does not grant him the “primary relief” he
sought.’” Id. (alteration in original) (quoting McQueary, 614 F.3d at 603).
Governor Lee’s arguments fail for the same reasons we outlined in Dewine. Although we
vacated Planned Parenthood’s permanent injunction, that ruling did not disturb the preliminary
injunction. Id. at 541. And even though three of the four claims in that case failed, one survived.
Id. at 537. We required no more to find that Planned Parenthood had received at least some of the
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benefit it sought in the lawsuit. See id. at 542. Likewise, the fact that the students here also
requested permanent relief is inconsequential under this generous standard. McQueary, 614 F.3d
at 603 (“A plaintiff crosses the threshold to ‘prevailing party’ status by succeeding on a single
claim, even if he loses on several others and even if that limited success does not grant him the
‘primary relief’ he sought.” (citing Texas State Tchrs. Ass’n v. Garland Indep. Sch. Dist., 489 U.S.
782, 790–791 (1989))). The students requested a preliminary injunction enjoining enforcement of
EO No. 84 and requiring Shelby County to enforce its mask mandate in grade schools with no opt-
out provisions pursuant to EO No. 84. That is precisely what they received.
The Governor relies on Miller to argue that the preliminary injunction in this case did not
provide the students with a “one-time” irrevocable opportunity. 936 F.3d at 448. But this reliance
is misplaced. In Miller, we found the plaintiffs’ preliminary injunctive relief enjoining the
defendant from refusing to issue them marriage licenses sufficient to achieve prevailing-party
status. Id. at 448–449. We did mention that marriage “licenses [were] one-time things for all but
the dilatory or wishy-washy.” Id. at 448. However, our analysis there called for a “case-specific
inquiry;” we were not establishing a bright-line rule. Id. (quoting McQueary, 614 F.3d at 601).
Indeed, we only used the phrase “one-time” once to explain why plaintiffs were not required to
seek relief specific to a time and place to be considered prevailing parties. Id. Notably, we have
not imposed this one-time rule in every case. Take our decision in Tennessee State Conf. of
NAACP v. Hargett, 53 F.4th 406 (6th Cir. 2022). In that case, we found a preliminary injunction
against enforcement of a state statute sufficiently enduring where it allowed plaintiffs the
“unburdened” opportunity “to conduct voter-registration drives for seven months during the run-
up to the 2020 election” before the state legislature amended the relevant statute and mooted the
case. Id. at 410–411.
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Under the Governor’s proposed “one-time” blanket rule, the plaintiffs in Hargett would
not have prevailed for purposes of attorneys’ fees because the case became moot before the
election, so the specific time and event had not occurred. Id. at 411. And voter registrations are
not “one-time” things; unlike marriages, they have expiration dates and require renewal. Still, as
we explained, those plaintiffs were prevailing parties and their relief sufficiently enduring because
“[t]hose drives, and the voter registrations that resulted from them, [were] as ‘irrevocable’ as the
marriage licenses in Miller were.” 53 F.4th at 411. So too were the abortion drugs prescribed
pursuant to the preliminary injunction in Dewine that stood for nearly 12 years before a third
party’s action mooted the case. 931 F.3d at 534. And the same is true for the education that the
students received each day the preliminary injunction in this case afforded them the opportunity
to participate in in-person learning with the mask-mandate in place during the state-declared state
of emergency. To be sure, the district court issued the preliminary injunction on September 17,
2021, and the state of emergency did not expire until November 19, 2021, about a week after
Governor Lee terminated EO No. 84.
Governor Lee argues that the preliminary injunction was only in place for two months
before the case became moot, and the students maintain that the case survived closer to six months
after they obtained preliminary injunctive relief. This dispute is of no consequence. The Governor
has not cited any case requiring such a mathematical approach to determining whether relief was
sufficiently enduring. True, the preliminary injunctions in Hargett and Dewine were 7 months and
almost 12 years, respectively, which supported a finding that those plaintiffs were entitled to
prevailing party status. Hargett, 53 F.4th at 410; Dewine, 931 F.3d at 534. Looking at the timeline
can be helpful, but we did not establish any specific time threshold in either case. Rather, we
placed more weight on the question of whether the relief was irrevocable in determining whether
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it was sufficiently enduring in Hargett, 53 F.4th at 411. And we explained that the “most
important[]” point in Dewine was that “Planned Parenthood’s relief never expired and was not
‘reversed, dissolved, or otherwise undone by the final decision in the same case.’” 931 F.3d at
539 (quoting Sole, 551 U.S. at 83). The same is true for the students’ relief in this case.
The Governor also argues that the students’ relief was not sufficiently enduring because
they claimed below, in their response to the Governor’s motion to dismiss, that the COVID-19 Act
violates their rights even more than EO No. 84. However, this point is of questionable relevance.
The legality of the COVID-19 Act is not at issue in this case. We are satisfied that the students’
relief was sufficiently enduring in that the injunction prevented Governor Lee from restricting their
access to in person education during the state-declared state of emergency. See Roberts v. Neace,
65 F.4th 280, 285 (6th Cir. 2023) (finding preliminary injunction sufficiently enduring where
“congregants could attend faith-based gatherings and travel out of state, all without the threat of
enforcement” of orders issued in response to COVID-19 prohibiting religious gatherings).
Voluntary Cessation. The Governor suggests in his reply that the students are attempting
to invoke the “catalyst theory” that the Supreme Court rejected in Buckhannon, 532 U.S. at 610.
Regardless of whether the Governor waived this argument by failing to adequately develop it or
raising it for the first time in reply,3 the record would seem to belie this argument in any event. It
was the Tennessee Legislature’s passage of the COVID-19 Act, along with the expired state of
emergency that mooted this case; not Governor Lee’s subsequent termination of EO No. 84.4 The
COVID-19 Act accounted for reasonable accommodations pursuant to the ADA in grade schools,
3 See Sanborn v. Parker, 629 F.3d 554, 579 (6th Cir. 2010). 4 Whether the Governor’s role in signing the legislation into law makes any difference to the analysis is an open question; one the parties’ briefing does not address or otherwise aid the court in resolving today. - 13 - Case No. 22-5969, G.S., et al. v. Lee
including mask-mandates. Tenn. Code Ann. § 14-2-104(b). EO No. 84’s opt-out provision did
not provide for such an accommodation and was accordingly in violation of Tennessee law.
Governor Lee’s termination of a legally invalid executive order could not have mooted this case.
See City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 n.10 (1982) (“Mere voluntary
cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled
to leave ‘[t]he defendant . . . free to return to his old ways.’” (alteration in original) (quoting United
States v. W. T. Grant Co., 345 U.S. 629, 632 (1953))).
IV.
For the reasons stated above, we AFFIRM.
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