Hernandez v. Lujan Grisham

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 15, 2022
• Docket: 20-2176
• Status: Unpublished

Opinion

Appellate Case: 20-2176 Document: 010110768886 Date Filed: 11/15/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT November 15, 2022 _________________________________ Christopher M. Wolpert Clerk of Court CLARISSA HERNANDEZ; ROBERT HERNANDEZ; SHANNON WOODWORTH; DAVID GALLEGOS,

Plaintiffs – Appellants,

v. No. 20-2176 (D.C. No. 2:20-CV-00942-JB-GBW) MICHELLE LUJAN GRISHAM; RYAN (D. N.M.) STEWART,

Defendants – Appellees.

_________________________________

ORDER AND JUDGMENT* _________________________________

Before HOLMES, Chief Judge, BALDOCK, and MATHESON, Circuit Judges. _________________________________

Plaintiffs-Appellants Clarissa and Robert Hernandez and Shannon Woodworth,

the parents of school-age children from New Mexico, and New Mexico State Senator

David Gallegos brought suit against New Mexico Governor Michelle Lujan Grisham

and New Mexico Secretary of Education Ryan Stewart (“Defendants-Appellees”)

regarding New Mexico’s remote-learning policies in response to the COVID-19

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 20-2176 Document: 010110768886 Date Filed: 11/15/2022 Page: 2

pandemic. Specifically, Plaintiffs-Appellants alleged that the state’s remote-learning

policies in counties with high rates of COVID-19 violated students’ substantive and

procedural due process and equal protection rights under the United States

Constitution and, for those students with disabilities, such as Ms. Woodworth’s

daughter, that remote learning violated guarantees of the Individuals with Disabilities

Education Act (the “IDEA”), 20 U.S.C. §§ 1400–1482, to provide a free appropriate

public education (“FAPE”).

The district court dismissed all of Plaintiffs-Appellants’ claims. In its

comprehensive, 167-page order, the district court systematically addressed each of

the issues and ultimately denied Plaintiffs-Appellants’ motion for a preliminary

injunction and the court granted Defendants-Appellees’ motion for summary

judgment. Plaintiffs-Appellants appealed the district court’s order. However, during

the pendency of this appeal, New Mexico has continued to reassess its remote-

learning policies and as of March 8, 2021, all New Mexico public schools have been

allowed to resume full, in-person learning. As a result, Defendants-Appellees argue

that this appeal is now moot.

Though the mootness issue that Defendants-Appellees raise does implicate our

subject-matter jurisdiction, we need not reach that issue. That is because Plaintiffs-

Appellants’ appeal is fatally infirm on another threshold ground: specifically,

Plaintiffs-Appellants’ appellate briefing is so woefully inadequate—especially in

light of the complicated constitutional issues at issue here and the district court’s

extensive analysis of them—that they have waived appellate review. Therefore, we

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affirm—without any necessity of reaching the merits—the district court’s grant of

summary judgment to Defendants-Appellees.

To begin our analysis, however, we note that one significant deficiency of

Plaintiffs-Appellants’ briefing relates to their misguided attempt to challenge the

district court’s denial of their motion for a preliminary injunction. Taking this

challenge at face value, we lack jurisdiction to consider it: Plaintiffs-Appellants’

challenge to the district court’s denial of their motion for a preliminary injunction is

moot because, in the same order denying that motion, the court resolved the lawsuit

against them with finality by granting Defendants-Appellees’ motion for summary

judgment. Therefore, we dismiss Plaintiffs-Appellants’ appeal insofar as it

challenges the district court’s denial of their motion for a preliminary injunction.

I

This appeal stems from Plaintiffs-Appellants’ challenges to Governor Lujan

Grisham’s closure of New Mexico public schools during the COVID-19 pandemic

and the issuance by the New Mexico Public Education Department (the “PED”) of

Reentry Guidance providing for a phased school reopening based on local rates of

COVID-19.

A

In response to the COVID-19 pandemic, on March 11, 2020, Governor Lujan

Grisham declared a public health emergency in the State of New Mexico, invoking

the full measure of her authority under the All Hazard Emergency Act, NMSA 1978,

§§ 12-10-1 to -10, and the Public Health Emergency Response Act, NMSA 1978,

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§§ 12-10A-1 to -19. Pursuant to this authority, on March 13, 2020, Governor Lujan

Grisham ordered all New Mexico public schools to close from March 16 to April 6,

2020, and when COVID-19 cases in New Mexico continued to increase, she extended

the closure, ordering all public schools to close for the remainder of the 2019–2020

school year.

In the lead up to the 2020–2021 academic year, the PED worked with the

Office of the Governor and the New Mexico Department of Health to develop a plan

for a phased reopening of schools. Using certain criteria, including daily cases and

test positivity rates, to assess the spread of COVID-19 in New Mexico, the PED

issued its official Reentry Guidance on July 24, 2020, requiring that school districts

in New Mexico with higher rates of COVID-19 provide either fully remote or hybrid

learning, while permitting full in-person learning for schools in districts with lower

rates.1 The Reentry Guidance also allowed, but did not require, school districts in the

fully remote category to provide in-person education to children with disabilities in

groups of five children or fewer.

Applying the Reentry Guidance across the state, the PED required schools in

several counties to begin the 2020 school year operating in a fully remote capacity,

while other schools were permitted to resume in-person learning through either the

hybrid or full reentry categories.

1 Though the PED issued the first Reentry Guidance on July 24, 2020, the district court in its order and judgment relied on the then-most updated version of the Reentry Guidance issued on November 24, 2020.

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B

On September 16, 2020, Plaintiffs-Appellants brought this suit pursuant to 42

U.S.C. § 1983.2 Plaintiffs-Appellants are Clarissa and Robert Hernandez, the parents

of four school-age children who live in a county in the remote-learning category;

Shannon Woodworth, the parent of a school-age daughter with special needs in a

county also in the remote-learning category; and David Gallegos, a member of the

Board of Education for Eunice Public Schools, a remote-learning only county.

Plaintiffs-Appellants sued Governor Lujan Grisham and Secretary of Education Ryan

Stewart in their individual and official capacities,3 alleging that in the ten New

Mexico counties prohibited from resuming any form of in-person learning, the 2020

Reentry Guidance violated students’ due process and equal protection rights.4

Additionally, Plaintiffs-Appellants alleged a violation of the IDEA, arguing

that remote schooling prevented students with disabilities, such as Ms. Woodworth’s

daughter, from socializing with non-disabled students and thus prevented such

2 On September 17, 2020, Plaintiffs-Appellants filed an amended complaint to correct the caption—specifically, to correct the names of two of the parties. 3 Plaintiffs-Appellants voluntarily dismissed the State of New Mexico and Secretary of Health Kathyleen Kunkel from their suit. 4 Plaintiffs-Appellants sought class certification for similarly situated students, students with disabilities, and teachers and administrators in Chaves, Curry, Doña Ana, Eddy, Hidalgo, Lea, Luna, McKinley, Quay, and Roosevelt Counties. The district court concluded however that it likely would not grant class certification, and so this appeal relates only to the individual, named Plaintiffs-Appellants.

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students from receiving a FAPE. See, e.g., Fry v. Napoleon Cmty. Sch., 580 U.S.

154, 137 S. Ct. 743, 748–49 (2017) (explaining that the IDEA offers federal funds to

states in exchange for the commitment to provide a FAPE to children with certain

disabilities, and that under the IDEA, a FAPE comprises “special education and

related services,” including “both ‘instruction’ tailored to meet a child’s ‘unique

needs’ and sufficient ‘supportive services’ to permit the child to benefit from that

instruction” (quoting 20 U.S.C. §§ 1401(9), (26), (29))); see also Bd. of Ed. of

Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 203

(1982) (holding that the IDEA establishes a substantive right to a FAPE for children

with certain disabilities).

Plaintiffs-Appellants sought declaratory relief, a temporary restraining order,

and preliminary and permanent injunctions “enjoining Defendants from prohibiting

in-person instruction.” Aplees.’ Supp. App., Vol. 1, at 28 (Pls.’ Am. Compl. and

Req. for TRO, filed Sept. 17, 2020). Plaintiffs-Appellants also filed a separate

Motion for a Temporary Restraining Order, Preliminary Injunction, and Permanent

Injunctive Relief on September 21, 2020.

On October 14, 2020, in Hernandez v. Grisham (Hernandez I), 494 F. Supp.

3d 1044 (D.N.M. 2020), the district court issued an order on Plaintiffs-Appellants’

September 21, 2020, motion for preliminary injunction and temporary restraining

order, granting it in part and denying it in part. Specifically, the court denied

virtually all of the Plaintiffs-Appellants’ requested relief—finding Plaintiffs-

Appellants unlikely to succeed on the merits—but granted a narrow TRO under the

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IDEA to correct Ms. Woodworth’s daughter’s individualized education plan (“IEP”)

to allow for in-person instruction because the local education agency had

misinterpreted the Reentry Guidance as prohibiting in-person learning for students

with special needs.5 See, e.g., Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch.

Dist. RE-1, 580 U.S. 386, 137 S. Ct. 988, 994 (2017) (“The IEP is the means by

which special education and related services are tailored to the unique needs of a

particular child.” (quotation omitted)). Plaintiffs-Appellants did not interlocutorily

appeal the district court’s denial of their requested preliminary injunction in

Hernandez I. See, e.g., 28 U.S.C. 1292(a)(1) (providing jurisdiction to hear appeals

from “[i]nterlocutory orders . . . refusing . . . injunctions”).

Following Hernandez I, on October 26, 2020, Defendants-Appellees filed their

(second) motion to dismiss.6 They argued that the district court should dismiss

5 Specifically, the district court found that Ms. Woodworth was not required to first exhaust her administrative remedies under the IDEA before bringing her IDEA claim in federal court because her claim presented a purely legal question. Addressing Ms. Woodworth’s IDEA claim, the district court concluded that because Ms. Woodworth’s daughter was not progressing appropriately with remote instruction, “it is likely that she could demonstrate on the merits that she is not receiving a FAPE in violation of the IDEA”; so, the court ordered Secretary Stewart to direct the local education agency to amend Ms. Woodworth’s daughter’s IEP to allow for in-person instruction. See Hernandez I, 494 F. Supp. 3d at 1148–50. 6 On October 5, 2020, Governor Lujan Grisham and Secretaries Kunkel and Stewart filed their first motion to dismiss the claims against them arguing that Plaintiffs-Appellants lacked Article III standing and failed to state a § 1983 claim. The district court agreed that Plaintiffs-Appellants lacked standing as to Secretary Kunkel and—consistent with Plaintiffs-Appellants’ own stipulations of dismissal— the court dismissed Secretary Kunkel and the State of New Mexico from the case. See Hernandez v. Grisham (Hernandez II), 499 F. Supp. 3d 1013, 1018 (D.N.M. 2020). 7 Appellate Case: 20-2176 Document: 010110768886 Date Filed: 11/15/2022 Page: 8

Plaintiffs-Appellants’ constitutional claims because the Reentry Guidance is subject

to and survives rational-basis scrutiny. More specifically, they argued that the

suspension of in-person learning is rationally related to the legitimate state interest of

stopping the spread of COVID-19. Defendants-Appellees also argued that the district

court should dismiss Plaintiffs-Appellants’ IDEA claim because the IDEA does not

require in-person learning for students to receive a FAPE, and, moreover, the 2020

Reentry Guidance does not actually prohibit in-person education for special needs

students and instead provides such students with the same opportunity as non-

disabled students to participate in remote instruction.

After converting—with the parties’ consent—Defendants-Appellees’ motion to

dismiss to a motion for summary judgment7 and holding hearings on Plaintiffs-

Appellants’ motion for a preliminary injunction,8 on December 18, 2020, the district

court issued its order and judgment dismissing all of Plaintiffs-Appellants’ claims. In

its 167-page order at issue here, the district court identified 12 separate issues and

addressed each in turn, ultimately granting Defendants-Appellees’ motion for

7 The district court asked the parties whether they would object to converting the second motion to dismiss into a motion for summary judgment pursuant to Federal Rule of Civil Procedure 12(d). Plaintiffs-Appellants and Defendants-Appellees both filed notices of non-objection, and the motion to dismiss was accordingly converted. 8 The district court held three days of hearings on Plaintiffs-Appellants’ September 21, 2020, motion for a temporary restraining order, preliminary injunction, and permanent injunctive relief (the same motion addressed in Hernandez I) on November 19, November 20, and November 23, 2020.

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summary judgment and again denying Plaintiffs-Appellants’ motion for a preliminary

injunction.

Specifically, on the constitutional claims, the district court concluded that

Defendants-Appellees did not violate Plaintiffs-Appellants’ procedural due process,

substantive due process, or equal protection rights and granted summary judgment in

favor of Defendants-Appellees. The district court first explained that under Jacobson

v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), tiered scrutiny applies to

constitutional claims during a national emergency situation, and if there is neither a

fundamental right nor a suspect class at issue, courts will uphold governmental action

that rationally relates to the government’s public health objectives.

Turning specifically to Plaintiffs-Appellants’ procedural due process claim, the

district court reasoned that—even though New Mexico children possess a property

right in their public education and deprivation of an in-person education has more

than a de minimis effect on this property interest—“summary administrative action”

is justified in emergency situations where the deprivation of property serves to

protect public health and safety. See Hernandez v. Grisham (Hernandez III), 508 F.

Supp. 3d 893, 976–79 (D.N.M. 2020) (quoting Hodel v. Va. Surface Mining &

Reclamation Ass’n, Inc., 452 U.S. 264, 300 (1981)). The district court further

explained that, even if COVID-19 is no longer an emergency, because the 2020

Reentry Guidance is a quasi-legislative document affecting the entirety of New

Mexico, Plaintiffs-Appellants were not entitled to any additional due process such as

individualized notice or hearings; the “general notice as provided by law” was

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instead sufficient. Id. at 979–81 (quoting Halverson v. Skagit Cnty., 42 F.3d 1257,

1261 (9th Cir. 1994)).

Next, the district court granted summary judgment on Plaintiffs-Appellants’

substantive due process claim, declining to find that there is a fundamental right to an

in-person education under the Constitution and instead concluding that the phased

reopening of public schools satisfied rational-basis review and did not deprive

Plaintiffs-Appellants of life, liberty, or property in such a manner that shocks the

judicial conscience. In rejecting Plaintiffs-Appellants’ argument that there is a

fundamental right to an in-person education, the district court explained that

Plaintiffs-Appellants offered no more than “vague and conclusory explanations,” and

“because [Plaintiffs-Appellants] do not explain how remote instruction deprives the

Plaintiffs of a basic education and do not address how in-person instruction is ‘deeply

rooted in this Nation’s history and tradition,’” they did not satisfy the requirement

under Washington v. Glucksberg, 521 U.S. 702, 720–22 (1997), that they must

provide the court with a “careful description of the asserted fundamental liberty

interest.” Hernandez III, 508 F. Supp. 3d at 986 (quoting Glucksberg, 521 U.S. at

720–21).

Thus, applying rational-basis review because the Reentry Guidance affects

neither a suspect class nor a fundamental right, the district court concluded that “even

if the Defendants seem more concerned about the spread to adults than the effective

education of children,” the prohibition on in-person schooling in certain counties is

nonetheless still rationally related to the legitimate governmental purpose of

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preventing the spread of the COVID-19 virus. Id. at 989–91. On the final

constitutional claim, the district court found that Defendants-Appellees did not

violate Plaintiffs-Appellants’ equal protection rights because the Reentry Guidance is

neutral on its face, and Plaintiffs-Appellants failed to show that the policy was

discriminatory to either the disabled or non-disabled citizens of the New Mexico

counties prohibited from providing in-person education.

Finally, turning to the IDEA claim, the district court concluded “Plaintiffs’

IDEA claims cannot proceed, because [Ms.] Woodworth’s IDEA claims are moot.”

Id. at 973. As the district court explained, because Ms. Woodworth’s daughter’s IEP

team had already remedied the purely legal error that the court had directed the local

education agency to correct in Hernandez I, 494 F. Supp. 3d at 1148–50, Ms.

Woodworth would need to follow the administrative process to address any

remaining issues; because she did not do so, the court lacked jurisdiction over her

IDEA claim.9

9 Although the district court concluded that the IDEA claim was not properly before it because Ms. Woodworth’s claim was no longer purely legal, and, therefore, was subject to the requirement of administrative exhaustion, the court went on to consider merits-based reasons for why the claim should be dismissed. For example, the district court concluded that Ms. Woodworth could not bring “claims pursuant to § 1983, because the IDEA includes a comprehensive enforcement scheme.” Hernandez III, 508 F. Supp. 3d at 916, 994–95. Further, the district court determined that even though the IDEA may contemplate social and emotional goals, because of the individualized nature of IEPs, disabled students may still receive a FAPE even if they do not participate in in-person learning “because remote learning still allows these students to progress towards goals detailed in their IEPs.” Id. at 916, 995–97; see also Fry, 137 S. Ct. at 749 (explaining that the IEP “serves as the ‘primary vehicle’ for providing each child with the promised FAPE” and is crafted for each individual child by a “team” of school officials, teachers, and parents to 11 Appellate Case: 20-2176 Document: 010110768886 Date Filed: 11/15/2022 Page: 12

Ultimately, after considering several additional issues that are not the subject

of this appeal, the district court denied Plaintiffs-Appellants’ motion for preliminary

injunction and granted Defendants-Appellees’ converted motion for summary

judgment and dismissed the case. This appeal followed.

C

Factual developments following the district court’s order are also relevant to

this appeal. In January 2021—before the parties submitted their merits briefs in this

appeal—Governor Lujan Grisham announced that, on February 8, 2021, in-person

learning could resume in every school district in New Mexico and the PED

accordingly revised the Reentry Guidance to permit hybrid in-person learning across

the state. This announcement was followed by a further revision announced by the

PED on March 8, 2021, that all school districts could return to full-time, in-person

learning with the goal that all schools would fully reopen by April 5, 2021. Based on

this change in policy, Defendants-Appellees contend that this appeal is now moot.

“spell[] out a personalized plan to meet all of the child’s ‘educational needs’” (quoting 20 U.S.C. §§ 1414(d)(1)(A)(i)(II)(bb), (d)(1)(B))). Finally, the district court ruled that remote schooling satisfies the IDEA’s “least restrictive environment” mandate that disabled students be educated “[t]o the maximum extent appropriate . . . with children who are not disabled,” in a “regular educational environment,” 20 U.S.C. § 1412(a)(5)(A), because “a regular educational environment or regular classroom is any learning environment where a child with disabilities has not been separated from his or her classmates without disabilities” and, here, both disabled and non-disabled children were being offered the same remote instruction, Hernandez III, 508 F. Supp. 3d at 916, 997–1005. 12 Appellate Case: 20-2176 Document: 010110768886 Date Filed: 11/15/2022 Page: 13

II

“We review the denial of a motion for summary judgment de novo and apply

the same standards as the district court.” Kelley v. City of Albuquerque, 542 F.3d

802, 820 (10th Cir. 2008). “Summary judgment is appropriate if ‘there is no genuine

issue as to any material fact and . . . the [movant] is entitled to a judgment as a matter

of law.’” Id. (quoting Yaffe Cos., Inc. v. Great Am. Ins. Co., 499 F.3d 1182, 1185

(10th Cir. 2007)).

“We review [a] district court’s decision to deny a preliminary injunction for

abuse of discretion.” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir.

2003). “Four factors must be shown by the movant to obtain a preliminary

injunction: (1) the movant ‘is substantially likely to succeed on the merits; (2) [the

movant] will suffer irreparable injury if the injunction is denied; (3) [the movant’s]

threatened injury outweighs the injury the opposing party will suffer under the

injunction; and (4) the injunction would not be adverse to the public interest.’” Fish

v. Kobach, 840 F.3d 710, 723 (10th Cir. 2016) (quoting Beltronics USA, Inc. v.

Midwest Inventory Distrib., LLC, 562 F.3d 1067, 1070 (10th Cir. 2009)).

III

At the outset, we dismiss a portion of this appeal insofar as Plaintiffs-

Appellants seek to challenge the district court’s order denying their motion for a

preliminary injunction because any such challenge is moot, and we accordingly lack

jurisdiction to consider it. We otherwise affirm the district court’s judgment.

However, in doing so, we do not reach the merits. Instead, we conclude that the

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major deficiencies of Plaintiffs-Appellants’ briefing render meaningful review

infeasible. More specifically, we conclude that, due to these deficiencies, Plaintiffs-

Appellants have waived any arguments challenging the district court’s order granting

summary judgment. It is on that basis that we affirm.

On appeal, Plaintiffs-Appellants train much of their fire on the district court’s

order denying their motion for a preliminary injunction. Insofar as Plaintiffs-

Appellants’ appeal relates to that injunctive order, however, we lack jurisdiction to

consider it; that portion of Plaintiffs-Appellants’ appeal is moot.

Specifically, Plaintiffs-Appellants purport to target the district court’s denial

of their motion for a preliminary injunction. They argue that they made a sufficient

showing before the district court of the likelihood of success on the merits, the threat

of irreparable harm, the absence of harm to the opposing parties, and the absence of

any risk of harm to the public interest. Their Opening Brief has only one argument

section, and it is captioned in a manner consistent with the operative standard for

review of an order regarding a preliminary injunction. See Aplts.’ Opening Br. at 10

(“Appellants Were Likely to Prevail on the Merits . . .” (bold removed)). Plaintiffs-

Appellants contend that there is no rational basis for the prohibition on in-person

learning and, consequently, the 2020 Reentry Guidance violates the due process and

equal protection clauses of the Constitution and additionally violates the IDEA by

prohibiting disabled students from receiving a FAPE.

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Thus, Plaintiffs-Appellants frame the lion’s share of their arguments to address

the court’s denial of their motion for a preliminary injunction. Indeed, the argument

section of their Opening Brief is bereft of any discussion about why the district court

erred in entering an order granting summary judgment to Defendants-Appellees—the

order that resolved this case with finality on the merits. Indeed, the term “summary

judgment” does not appear in their Opening Brief.

Taking this misguided line of argument at face value, we conclude that any

such challenge is moot, and we do not have jurisdiction to consider it. Under Article

III of the United States Constitution, our jurisdiction is limited to “cases” or

“controversies.” U.S. Const. art. III, § 2, cl. 1. When a case or controversy no longer

exists, the appeal becomes moot, and we lose jurisdiction. This mootness analysis

turns on whether we can afford meaningful relief and applies to our review of actions

seeking declaratory or injunctive relief. See Rio Grande Silvery Minnow v. Bureau of

Reclamation, 601 F.3d 1096, 1109 (10th Cir. 2010) (“Declaratory judgment actions

must be sustainable under the same mootness criteria that apply to any other

lawsuit.”); Baker v. Bray, 701 F.2d 119, 122 (10th Cir. 1983) (“[T]he claim upon

which the request for a preliminary injunction was based . . . was dismissed by the

district court, and this action certainly mooted the issue raised herein.”).

Here, because the district court’s grant of summary judgment was a final order

resolving the merits of Plaintiffs-Appellants’ claims, we can no longer grant

preliminary relief. See United States ex rel. Bergen v. Lawrence, 848 F.2d 1502,

1512 (10th Cir. 1988) (explaining that a preliminary injunction is by its nature a

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temporary measure intended to furnish provisional protection while awaiting a final

judgment on the merits and so holding that the district court’s entry of final judgment

“superseded the preliminary injunction” and mooted an appeal as to it); see also Rose

v. Utah State Bar, 444 F. App’x 298, 299 (10th Cir. 2011) (unpublished)10

(dismissing appeal from the denial of a preliminary injunction “[b]ecause the

underlying claims have been finally adjudicated by the district court’s dismissal, [so]

we can no longer grant preliminary relief”). Even if we reversed the district court’s

denial of the Plaintiffs-Appellants’ motion for a preliminary injunction, “it would

have no effect in the real world because [Plaintiffs-Appellant’s grievances regarding

that denial] have been superseded” by the district court’s final order dismissing

Plaintiffs-Appellants’ claims on the merits. Rio Grande Silvery Minnow, 601 F.3d at

1112.

In sum, we do not have jurisdiction to consider Plaintiffs-Appellants’ appeal,

insofar as they purport to challenge the district court’s denial of their motion for a

preliminary injunction. Therefore, we dismiss that portion of the appeal.

Not distracted by Plaintiffs-Appellants’ arguments regarding the court’s denial

of the motion for a preliminary injunction, Defendants-Appellees focus their response

10 We acknowledge that the unpublished decisions cited herein are not controlling authority or otherwise binding on us. We only cite them as persuasive aids in resolving the material issues before us. See, e.g., Bear Creek Trail, LLC v. BOKF, N.A., 35 F.4th 1277, 1282 n.8 (10th Cir. 2022); United States v. Engles, 779 F.3d 1161, 1162 n.1 (10th Cir. 2015).

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on the correct order: the district court’s order granting them summary judgment. Yet

in addition to defending the court’s order on the merits, Defendants-Appellees

contend that any challenge to that order by Plaintiffs-Appellants is moot.

Specifically, they contend that this is so due to the policy change following the

district court’s December 18, 2020, order that in-person learning could resume in all

New Mexico school districts.

In support of their mootness argument, Defendants-Appellees argue that the

recognized mootness exceptions do not apply—that is, neither the capable-of-

repetition-yet-evading-review exception nor the voluntary-cessation exception—

because “there is no reasonable expectation that Plaintiffs will be subject to the same

challenged action again,” especially given that there is no history of Governor Lujan

Grisham “reimposing in-person learning restrictions on public schools,” and there is

no evidence she would do so in the future. Aplees.’ Resp. Br. at 23–25 (emphasis in

original). In reply, Plaintiffs-Appellants cursorily contend that the capable-of-

repetition-yet-evading-review exception applies—without providing any support for

this assertion or explaining how there remains a threat that in-person learning

restrictions may be reimposed in New Mexico schools.

It is axiomatic that before reaching the merits of any case, federal courts must

first establish their subject-matter jurisdiction. See Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 94 (1998). However, they need not definitively opine on the

existence of such jurisdiction when they are able to dispose of the case on another,

non-merits threshold ground. See Sinochem Int’l Co. v. Malaysia Int’l Shipping

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Corp., 549 U.S. 422, 431 (2007) (noting that “jurisdiction is vital only if the court

proposes to issue a judgment on the merits” (quoting Intec USA, LLC v. Engle, 467

F.3d 1038, 1041 (7th Cir. 2006))).

The Supreme Court has recognized that “[i]t is hardly novel for a federal court

to choose among threshold grounds for denying audience to a case on the merits.”

Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585 (1999). This is because a “court

that dismisses on . . . non-merits grounds . . . before finding subject-matter

jurisdiction, makes no assumption of law-declaring power.” Id. at 584 (emphasis

added) (quoting In re Papandreou, 139 F.3d 247, 255 (D.C. Cir. 1998)).

Accordingly, when presented with multiple, non-merits potential grounds for

dismissal, “a federal court has leeway ‘to choose among [them] for denying audience

to a case on the merits’”—without deciding the question of its subject-matter

jurisdiction. Sinochem, 549 U.S. at 431 (quoting Ruhrgas, 526 U.S. at 585); see also

Levin v. Com. Energy, Inc., 560 U.S. 413, 432 (2010) (citing Sinochem for the

proposition that a “federal court has flexibility to choose among threshold grounds

for dismissal”).

When choosing between jurisdictional and non-jurisdictional non-merits,

threshold grounds, considerations of “convenience, fairness, and judicial economy”

may counsel in favor of sidestepping a jurisdictional issue and instead reaching a

disposition on a non-merits, non-jurisdictional threshold ground. Sinochem, 549 U.S.

at 423; cf. Chegup v. Ute Indian Tribe of Uintah and Ouray Rsrv., 28 F.4th 1051,

1069 (10th Cir. 2022) (reversing the district court and holding that it should have

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first considered the non-jurisdictional, threshold ground of tribal exhaustion because,

even though a “court generally has discretion to choose among multiple threshold

grounds for dismissing a case,” “not all grounds for dismissal are created equal, and

some matters are properly resolved before others”).

Here, we resolve this case on a non-merits, threshold ground, exercising our

discretion under Sinochem and its progeny to do so without opining on the propriety

of our subject-matter jurisdiction. Specifically, consistent with our precedent, we

conclude that the deficiencies of Plaintiffs-Appellants’ briefing are so pervasive and

serious that they have waived our review of their challenges. Therefore, even though

we have no occasion to speak concerning the legal propriety of the district court’s

comprehensive and thorough order, we affirm.

We repeatedly have declined to consider appellants’ claims on the merits

based on inadequate briefing in their opening brief. See, e.g., Bronson v. Swensen,

500 F.3d 1099, 1104 (10th Cir. 2007) (noting that “we routinely have declined to

consider arguments that are not raised, or are inadequately presented, in an

appellant’s opening brief”). And, as directly relevant here, we have done so in lieu

of determining whether we lacked jurisdiction over a challenged claim due to alleged

mootness. See United States v. Fisher, 805 F.3d 982, 990 n.2 (10th Cir. 2015)

(acknowledging that “[w]e ordinarily decide subject matter jurisdiction questions

such as mootness before addressing other issues,” but pursuant to Sinochem, the

challenged claim could be resolved on the non-merits ground of “inadequate

briefing”); cf. Bishop v. Smith, 760 F.3d 1070, 1096 n.19 (10th Cir. 2014) (“Because

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the plaintiffs’ . . . theory is forfeited, there is no need to consider [the defendant’s]

arguments [that the theory] is foreclosed by the plaintiffs’ lack of standing to

challenge that provision.”). We follow a similar path here—eliding, as we may, the

question of mootness—and determining that Plaintiffs-Appellants have waived our

merits review of their claims through inadequate briefing.

In particular, we conclude that, under the circumstances here, considerations of

convenience and judicial economy counsel in favor of resolving this appeal on the

non-jurisdictional ground of waiver through inadequate briefing, and we sidestep the

jurisdictional, mootness issue. For reasons detailed below, this case may be readily

disposed of on the ground of waiver through inadequate briefing and so this non-

jurisdictional, threshold ground “weigh[s] heavily in favor of dismissal.” Sinochem,

549 U.S. at 436. To be sure, the Supreme Court has suggested that jurisdictional

questions frequently involve “no arduous inquiry” such that, at least in certain cases,

considerations of convenience and judicial economy may lead a court to favor

resolving the jurisdictional question, rather than the threshold, non-jurisdictional one.

Sinochem, 549 U.S. at 436 (quoting Ruhrgas, 526 U.S. at 587). Yet we are not

obliged to definitively opine on whether the jurisdictional mootness issue here can be

reasonably characterized as “arduous” before following an alternate, non-merits path,

and we see no need to do so. What can be safely said, however, is that the task of

resolving the jurisdictional question before us would not be entirely free of travail

and complexity.

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Specifically, we would need to consider facts outside of the district-court

record that have evolved and continue to evolve with the peaks and valleys in the

spread of the COVID-19 virus. Further, we recognize that courts have reached

different and (at least on the surface) conflicting outcomes on similar mootness

questions. Compare Danville Christian Acad., Inc. v. Beshear, --- U.S. ----, 141 S.

Ct. 527, 527–28 (2020) (holding that the case was moot where “[t]he Governor’s

school-closing Order effectively expires this week or shortly thereafter, and there is

no indication that it will be renewed”), and Eden, LLC v. Justice, 36 F.4th 166, 171–

72 (4th Cir. 2022) (dismissing the plaintiffs’ appeal as moot and holding that the

voluntary-cessation doctrine did not apply, even though West Virginia remained in a

state of emergency, because the COVID-19 executive orders at issue had already

been terminated, no new restrictions had been imposed, and there was no evidence

that the governor would reimpose any COVID-19 restrictions in the future), with

Tandon v. Newsom, --- U.S. ----, 141 S. Ct. 1294, 1297 (2021) (per curiam) (holding

that applicants were entitled to an injunction and their claims were not moot even

though the California officials had changed the policy at issue because “officials with

a track record of ‘moving the goalposts’ retain authority to reinstate those heightened

restrictions at any time” (quoting S. Bay Pentecostal Church v. Newsom, --- U.S. ----,

141 S. Ct. 716, 720 (2021) (statement of Gorsuch, J.))), and Roman Cath. Diocese v.

Cuomo, --- U.S. ----, 141 S. Ct. 63, 68 (2020) (per curiam) (holding that the case was

not moot and injunctive relief was still appropriate even though the New York

governor had relaxed the restrictions on attendance at religious services in certain

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areas because the challenged order was still in effect and the governor “regularly

chang[ed] the classification of particular areas without prior notice,” and,

consequently, “the applicants remain[ed] under a constant threat that the area in

question will be reclassified”).

When the foregoing circumstances are considered and weighed against our

assessment that the inadequate-briefing rationale provides a ready basis for disposing

of this case, we conclude that considerations of convenience and judicial economy in

this instance militate in favor of that non-jurisdictional, non-merits resolution. Cf.

Sinochem, 549 U.S. at 436 (“[W]here subject-matter jurisdiction . . . is difficult to

determine, and [the threshold non-jurisdictional issue] weigh[s] heavily in favor of

dismissal, the court properly takes the less burdensome course.”). We turn now to

explain the basis for our conclusion regarding the inadequacy of Plaintiffs-

Appellants’ briefing.

Plaintiffs-Appellants’ briefing is inadequate to support our merits review.

Accordingly, we deem any challenges that Plaintiffs-Appellants may have to the

district court’s December 18, 2020, final order granting the Defendants-Appellees’

converted motion for summary judgment to be waived. The ineluctable consequence

of that ruling is that we affirm the court’s judgment without reaching the merits.

As we have discussed, Plaintiffs-Appellants spend a great deal of their

briefing—and, most relevantly, their Opening Brief—attacking the district court’s

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denial of their motion for a preliminary injunction. Yet for reasons we have

explicated, any challenge to that order is moot, and, consequently, we lack

jurisdiction over it. To the extent that Plaintiffs-Appellants seek to attack the court’s

final resolution of the merits of their claims, we have jurisdiction over their

arguments. But that fact will not avail them because their arguments are so

inadequate that we properly decline to review them.

To begin, Plaintiffs-Appellants expressly purport to challenge the court’s

ruling on what, in effect, is a superseded and non-operative motion—Defendants-

Appellees’ motion to dismiss. And the consequences of this error are grave for the

adequacy of Plaintiffs-Appellants’ merits arguments: that is because Plaintiffs-

Appellants’ confusion regarding the motion appealed from results in Plaintiffs-

Appellants invoking the wrong standard for considering their challenge—one focused

on the sufficiency of the factual averments of their complaint, rather than correctly

on the sufficiency of their evidence—and Plaintiffs-Appellants framing their

arguments under that wrong standard.

Specifically, besides noting in their Opening Brief’s Statement of Issues their

moot challenge—i.e., “[d]id the lower court err in denying Plaintiffs’ Motion for

Preliminary Injunction?”—Plaintiffs-Appellants state one, and only one, additional

challenge. Aplts.’ Opening Br. at 1. They expressly raise the following issue: “[d]id

the lower court err in granting Defendants’ Motion to Dismiss for failure to state a

claim . . . ?” Id. (emphasis added). But recall that Defendants-Appellants’ motion to

dismiss actually had been superseded when the district court entered the December

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18 order and judgment appealed from here. That is, with the parties’ consent, the

court converted the motion to dismiss into a motion for summary judgment. It was

the court’s ruling on this converted motion for summary judgment, on December 18,

that finally resolved the merits of Plaintiffs-Appellants’ claims. Therefore, at the

outset of their briefing, Plaintiffs-Appellants critically misfire—attacking the court’s

supposed ruling on a motion that actually had been eliminated from consideration.11

As a consequence, Plaintiffs-Appellants invoke the wrong standard for our

consideration of their merits challenges—focusing on factual averments of the

complaint rather than evidence in the summary judgment record. In this regard,

Plaintiffs-Appellants purport to advise us in resolving their challenges that “appellate

11 To be sure, at the end of its December 18, 2020, Memorandum Opinion and Order, the district court stated that “Defendants’ Motion to Dismiss, filed October 26, 2020 (Doc. 43) is granted.” Hernandez III, 508 F. Supp. 3d at 1011; see also Aplts.’ Supp. Br. at 1. But the district court did so after explaining that it had converted the motion to dismiss into a motion for summary judgment pursuant to the parties’ consent, and critically, after describing the undisputed material facts, laying out the standard governing motions for summary judgment in detail, and analyzing Plaintiffs-Appellants’ claims under the summary judgment standard. Contrary to Plaintiffs-Appellants’ assertion, see Aplts.’ Supp. Br. at 4, the district court explicitly granted summary judgment to Defendants-Appellees on the constitutional and IDEA claims because it found no dispute as to any material fact and concluded that Defendants-Appellees were entitled to judgment as a matter of law. See Hernandez III, 508 F. Supp. 3d at 973 (holding “Defendants did not violate the Plaintiffs’ procedural due process, substantive due process, or equal protection rights,” and “grant[ing] summary judgment on the Plaintiffs’ constitutional claims, because there is no genuine issue of material fact, and the Defendants are entitled to judgment as a matter of law”); id. (holding “Plaintiffs’ IDEA claims cannot proceed” in part “because [Ms.] Woodworth’s IDEA claims are moot” and that “summary judgment in favor of the Defendants is appropriate”). Thus, on appeal, Plaintiffs-Appellants needed to address the court’s ruling on Defendants-Appellees’ motion for summary judgment, not the superseded motion to dismiss.

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court[s] must ‘accept all the well-pleaded allegations . . . as true and construe them in

the light most favorable to the non-movant.’” Id. at 2 (quoting Nixon v. City & Cnty.

of Denver, 784 F.3d 1364, 1368 (10th Cir. 2015)). Instead, Plaintiffs-Appellants

should have informed us that the determinative question is whether the record

evidence supported Defendants-Appellees’ contention that “there is no genuine

dispute of material fact” and that they are “entitled to judgment as a matter of law.”

FED. R. CIV. P. 56(a).

This is not a hyper-technical matter. Presumably operating under a

misapprehension concerning the type of motion at issue here, Plaintiffs-Appellants do

not present arguments in their Opening Brief related to why the district court erred in

granting summary judgment. Indeed, as we have noted, Plaintiffs-Appellants’

Opening Brief is devoid of the words “summary judgment.” Yet it is beyond

peradventure that “[t]he first task of an appellant is to explain to us why the district

court’s decision was wrong.” Nixon, 784 F.3d at 1366.

“We cannot rule on those issues the appellant does not bring to our attention.”

Fisher, 805 F.3d at 991; see also Bronson, 500 F.3d at 1104. In order for us to

address the dispositive district-court order that is actually at issue here, we would

have to fill in the gaps of Plaintiffs-Appellants’ arguments and construct the logical

links—under the proper substantive standards—tying those arguments to the district

court’s order granting Defendants-Appellees’ converted motion for summary

judgment. But “[w]e aren’t required to fill in the blanks of a litigant’s inadequate

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brief,” and we discern no reason to do so here. United States v. Banks, 884 F.3d 998,

1024 (10th Cir. 2018).

More specifically, we are not inclined to construe Plaintiffs-Appellants’

Opening Brief as raising a challenge to the district court’s grant of summary

judgment. By framing their brief and the issues on appeal as challenging the grant of

a motion to dismiss, Plaintiffs-Appellants have waived any arguments about the

district court’s grant of summary judgment—that is, they have waived any arguments

challenging the district-court order at the heart of this appeal. See Reedy v. Werholtz,

660 F.3d 1270, 1275 (10th Cir. 2011) (“The argument section of Plaintiffs’ opening

brief does not challenge the court’s reasoning on this point. We therefore do not

address the matter.”). Accordingly, on this independent threshold basis, we uphold

the district court’s judgment—without reaching the underlying merits.

Nevertheless, lest there be any doubt concerning the outcome were we to

exercise our discretion in this way, we note that, even if we were to construe

Plaintiffs-Appellants’ appeal as a challenge to the district court’s grant of summary

judgment, we would conclude that they have waived our review of the merits. That

is, Plaintiffs-Appellants fail to adequately raise arguments for why the grant of any

form of dismissal should be reversed.12 To be sure, Plaintiffs-Appellants do mention

12 After the parties filed their merits briefs, we directed the parties to file supplemental briefing addressing, among other things, the following question: “why this appeal should not be dismissed because of Plaintiffs-Appellants’ failure to adequately address the district court’s grant of summary judgment in their opening 26 Appellate Case: 20-2176 Document: 010110768886 Date Filed: 11/15/2022 Page: 27

the dismissal of their claims in their Opening Brief’s Statement of Issues, Standard of

Review, Statement of the Case, Statement of Relevant Facts, and Summary of the

Argument. But they do so only in cursory fashion. And, importantly, they do not

even mention in the Argument of their Opening Brief the court’s grant of a

dispositive motion regarding their claims. That is not good enough. See FED. R.

APP. P. 28(a)(8)(A) (noting that “the argument” section “must contain” “appellant’s

contentions and the reasons for them, with citations to the authorities and parts of the

record on which the appellant relies”); accord Burke v. Regalado, 935 F.3d 960, 1014

(10th Cir. 2019).

More generally, Plaintiffs-Appellants’ briefing fails to meaningfully explain

why the district court’s dismissal was supposedly erroneous. Indeed, the Opening

Brief is bereft of sufficient factual or legal arguments engaging with the district

court’s thorough analysis that would allow this court to appropriately review the

court’s order. For instance, as to their procedural due process claim, Plaintiffs-

Appellants do not mention the state’s power to act through “summary administrative

brief?” Order, No. 20-2176, at *1 (10th Cir., Sept. 8, 2021). In response, Plaintiffs- Appellants argue that “while the phrase ‘summary judgment’ is not used in Appellants’ briefing, Appellants’ arguments are all geared towards discussing the evidence presented.” Aplts.’ Suppl. Br. at 1. Plaintiffs-Appellants thus request that this court construe their Opening Brief as a challenge to the district court’s grant of summary judgment and further argue that they still satisfy the requirements to prevail in their appeal because their Opening Brief cited to evidence indicating a genuine dispute of material fact and addressed the legal errors in the district court’s summary- judgment order. But Plaintiffs-Appellants do not actually identify where they made such factual or legal arguments in their Opening Brief. And, thus, we are unpersuaded.

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action” during an emergency or, absent an emergency situation, the sufficiency of

general notice as provided by law to satisfy procedural due process for a quasi-

legislative action; yet both of these rationales were central to the district court’s

conclusion that Plaintiffs-Appellants were not entitled to any additional due process.

Similarly, on their substantive due process claim, Plaintiffs-Appellants argue

that there is a fundamental right to a basic education, but they do not make any

specific arguments in support of a fundamental right to an in-person education.

However, whether there is a fundamental right to an in-person education is the

question on appeal. In particular, Plaintiffs-Appellants do not offer any arguments in

their Opening Brief to negate the district court’s reasoning that “(i) the Plaintiffs

have not demonstrated the historical importance of an in-person education rather than

remote instruction; (ii) the Plaintiffs have not demonstrated that a temporary pause on

in-person learning will make it impossible for the Plaintiffs to access other

fundamental liberties; [and] (iii) the Plaintiffs have not sufficiently defined the

contours of their proposed right.” Hernandez III, 508 F. Supp. 3d at 983. Therefore,

Plaintiffs-Appellants’ Opening Brief does not provide any basis to review whether

the district court’s application of rational-basis scrutiny was erroneous.

As for their IDEA claim, Plaintiffs-Appellants argue that nearly all disabled

students require in-person teaching in order to receive a FAPE, and so the Reentry

Guidance violates Ms. Woodworth’s daughter’s rights under the IDEA by having her

participate through a virtual classroom. But these arguments ignore the district

court’s prior finding in Hernandez I that the Reentry Guidance does not prohibit in-

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person education for students with disabilities and that Ms. Woodworth’s daughter’s

IEP needed to be re-evaluated to provide her with such an in-person education. See

494 F. Supp. 3d at 1148–50. Plaintiffs-Appellants further ignore the district court’s

procedural and jurisdictional reasons for dismissing the IDEA claims—that is, that

Ms. Woodworth’s IDEA claims are now moot because of the court’s rulings in

Hernandez I, and the court lacked jurisdiction to consider any remaining challenge

because Plaintiffs-Appellants did not demonstrate that the administrative process had

been exhausted. Therefore, as with their constitutional claims, because Plaintiffs-

Appellants do not meaningfully engage with the district court’s reasoning, they

provide us with no basis to review any ostensible challenge to the court’s disposition

of their IDEA claim.

In sum, because Plaintiffs-Appellants do not provide us with arguments

addressing the district court’s analysis of the underlying issues in this case, there is

no opportunity for meaningful appellate review. See Utah Env’t Cong. v. Bosworth,

439 F.3d 1184, 1194 n.2 (10th Cir. 2006) (“An issue mentioned in a brief on appeal,

but not addressed, is waived.”); Phillips v. Calhoun, 956 F.2d 949, 954 (10th Cir.

1992) (“[I]ssues designated for review are lost if they are not actually argued in the

party’s brief.”); see also Legacy Church, Inc. v. Collins, 853 F. App’x 316, 317 (10th

Cir. 2021) (unpublished) (stating that “[t]hough Legacy Church briefly acknowledges

the district court’s dismissal of the action in its opening brief’s jurisdictional

statement, it is never mentioned again,” and concluding that “[a]rguments not

included in the opening brief are waived”).

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We have explained that “bald assertions,” Adler v. Wal-Mart Stores, Inc., 144

F.3d 664, 679 (10th Cir. 1998), and “[s]cattered statements in the appellant’s brief,”

Exum v. United States Olympic Comm., 389 F.3d 1130, 1133 n.4 (10th Cir. 2004),

that would “compel us to scavenge through [the] brief for traces of argument,”

Fisher, 805 F.3d at 991, do not adequately raise issues for appellate review. We are

not in the business of making arguments on behalf of parties. See United States v.

Yelloweagle, 643 F.3d 1275, 1284 (10th Cir. 2011) (noting that we will not “make

arguments for” a litigant). Yet at the end of the day that is what Plaintiffs-Appellants

would effectively call on us to do here—based on their repeated failure to make

arguments explaining why the district court’s dispositive motion was erroneous or

otherwise engaging with the district court’s reasoning.

Their briefing failure is especially problematic given the complexity of the

substantive issues raised by this appeal and the extensive and thorough nature of the

district court’s analysis. Plaintiffs-Appellants’ arguments give us no principled basis

to delve into those complicated issues, much less second-guess the propriety of the

district court’s reasoning. Cf. United States v. Lamirand, 669 F.3d 1091, 1098 n.7

(10th Cir. 2012) (“[T]he argument is not adequately presented to us. [The defendant]

does not even identify this distinct argument in his statement of appellate issues,

much less elaborate in the brief on its substantive premises. Instead, [the defendant]

puts forward only a couple of stray sentences in his briefs and does not cite to any

authority that even remotely supports the argument. Given the apparent complexity of

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this issue of statutory interpretation . . . we are reluctant to definitively opine on its

merits without a full adversarial framing of the relevant considerations.”).

Therefore, even if we were to overlook Plaintiffs-Appellants’ error in

misconceiving the dispositive order under review here—i.e., the court’s grant of

Defendants-Appellees’ converted motion for summary judgment—we would still

conclude that Plaintiffs-Appellants have waived appellate review through their

failure to make meaningful arguments—backed by citations to the record and legal

authority—challenging the district court’s analysis.

IV

For the foregoing reasons, we DISMISS Plaintiffs-Appellants’ appeal insofar

as it challenges the district court’s denial of their motion for a preliminary injunction

and otherwise AFFIRM—without reaching the merits—concluding that Plaintiffs-

Appellants have waived any arguments for reversing the district court’s grant of

summary judgment through their woefully inadequate briefing.

ENTERED FOR THE COURT

Jerome A. Holmes Chief Judge