NOT RECOMMENDED FOR PUBLICATION File Name: 21a0069n.06
No. 20-1581
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED LEAGUE OF INDEPENDENT FITNESS Feb 03, 2021 FACILITIES AND TRAINERS, INC., et DEBORAH S. HUNT, Clerk al., Plaintiff-Appellee, ON APPEAL FROM THE UNITED v. STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF GOVERNOR GRETCHEN WHITMER, et MICHIGAN al., Defendant-Appellant.
BEFORE: CLAY, READLER, and MURPHY, Circuit Judges.
CLAY, Circuit Judge. Beginning in March 2020, Defendant Governor Gretchen
Whitmer issued a series of executive orders in an attempt to mitigate the severe public health risk
posed by the COVID-19 pandemic, and Defendant Robert Gordon, the then Director of the
Michigan Department of Health and Human Services, issued an emergency order authorizing local
health departments to enforce the Governor’s executive orders. Several of the executive orders
mandated the closure of certain indoor exercise facilities. In June 2020, Plaintiffs, a trade
organization that represents over 150 fitness facilities throughout Michigan and a number of
individual companies that own and operate fitness businesses in Michigan, obtained a preliminary
injunction enjoining Governor Whitmer and Director Gordon from enforcing the challenged
orders. Defendants appealed, and a panel of this Court stayed the district court’s injunction pending
appeal. For the reasons set forth below, we now DISMISS the appeal for lack of jurisdiction. Case No. 20-1581, League of Independent Fitness Facilities, et al. v. Whitmer, et al.
BACKGROUND
On March 10, 2020, pursuant to Michigan’s Emergency Management Act of 1976
(“EMA”), MCL 30.401 et seq., and Michigan’s Emergency Powers of the Governor Act of 1945
(“EPGA”), MCL 10.31 et seq., and in response to the COVID-19 pandemic, Governor Whitmer
declared a state of emergency. See In re Certified Questions From United States Dist. Court, W.
Dist. of Michigan, S. Div., --- N.W.2d ---, 2020 WL 5877599, at *4 (Mich. Oct. 2, 2020). Over the
next few months, Governor Whitmer used her powers under the EMA and EPGA to issue a series
of executive orders that, inter alia, placed various restrictions on fitness centers and indoor gyms.
Plaintiffs subsequently filed a complaint in the United States District Court for the Western
District of Michigan seeking a declaratory judgment that Governor Whitmer’s orders were
unlawful, and to enjoin Governor Whitmer and Director Gordon from enforcing the orders or
issuing future similar orders. Plaintiffs filed a Motion for a Preliminary Injunction on June 8, 2020,
and on June 19, 2020, the district court granted Plaintiffs a preliminary injunction.
Defendants appealed the district court’s preliminary injunction, and also moved the district
court for a stay pending appeal. On June 22, 2020, the district court denied Defendants’ motion
for a stay pending appeal. Defendants then filed a motion with this Court requesting a stay pending
appeal, which a panel of this Court granted on June 24, 2020. See League of Indep. Fitness
Facilities & Trainers, Inc. v. Whitmer, 814 F. App’x 125, 130 (6th Cir. 2020) (order).
DISCUSSION
Two subsequent events have led Plaintiffs and Defendants to agree that this appeal should
be dismissed as moot. First, on September 3, 2020, Governor Whitmer issued a new executive
order that lifted the prior restrictions on indoor fitness facilities. Second, on October 2, 2020, the
Supreme Court of Michigan held that Governor Whitmer “lacked the authority to declare a ‘state
-2- Case No. 20-1581, League of Independent Fitness Facilities, et al. v. Whitmer, et al.
of emergency’ or a ‘state of disaster’ under the EMA after April 30, 2020, on the basis of the
COVID-19 pandemic” and that “the EPGA is in violation of the Constitution of our state.” In re
Certified Questions, --- N.W.2d ---, 2020 WL 5877599, at *24; see also House of Representatives
v. Governor, 949 N.W.2d 276, 276 (Mich. 2020) (“As stated in In re Certified Questions, the
Emergency Powers of the Governor Act is incompatible with the Constitution of our state, and
therefore, executive orders issued under that act are of no continuing legal effect.”).
“Article III of the United States Constitution limits the federal judicial power to ‘Cases’
and ‘Controversies.”’ Radiant Glob. Logistics, Inc. v. Furstenau, 951 F.3d 393, 395 (6th Cir. 2020)
(citing U.S. Const. art. III, § 2, cl. 1). “A case becomes moot—and therefore no longer a ‘Case’ or
‘Controversy’ for purposes of Article III—‘when the issues presented are no longer “live” or the
parties lack a legally cognizable interest in the outcome.”’ Already, LLC v. Nike, Inc., 568 U.S. 85,
91 (2013) (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982)). Therefore, “[i]f events occur
during the case, including during the appeal, that make it ‘impossible for the court to grant any
effectual relief whatever to a prevailing party,’ the appeal must be dismissed as moot.” Fialka-
Feldman v. Oakland Univ. Bd. of Trs., 639 F.3d 711, 713 (6th Cir. 2011) (quoting Church of
Scientology v. United States, 506 U.S. 9, 12 (1992)); see also Ermold v. Davis, 855 F.3d 715, 718–
19 (6th Cir. 2017); McPherson v. Mich. High School Athletic Ass’n, Inc., 119 F.3d 453, 458 (6th
Cir. 1997) (en banc).
Because the challenged executive orders have been rescinded by Governor Whitmer, we
cannot grant any effectual relief to the parties. See Radiant, 951 F.3d at 396 (“We cannot turn back
the clock on the preliminary injunction and thus have no way to grant relief . . .”). To be sure, “[i]t
is well settled that ‘a defendant’s voluntary cessation of a challenged practice does not deprive a
federal court of its power to determine the legality of the practice.”’ Friends of the Earth, Inc. v.
-3- Case No. 20-1581, League of Independent Fitness Facilities, et al. v. Whitmer, et al.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (quoting City of Mesquite v. Aladdin’s
Castle, Inc., 455 U.S. 283, 289 (1982)); see also Speech First, Inc. v. Schlissel, 939 F.3d 756, 768
(6th Cir. 2019). However, voluntary cessation will moot a case when “subsequent events [make]
it absolutely clear that the allegedly wrongful behavior [cannot] reasonably be expected to recur.”
Friends of the Earth, Inc., 528 U.S. at 189 (quoting United States v. Concentrated Phosphate
Export Assn., 393 U.S. 199, 203 (1968)). This is such a case. Even if Governor Whitmer wanted
to reenact the challenged executive orders, the Supreme Court of Michigan has held that she lacks
such authority.
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NOT RECOMMENDED FOR PUBLICATION File Name: 21a0069n.06
No. 20-1581
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED LEAGUE OF INDEPENDENT FITNESS Feb 03, 2021 FACILITIES AND TRAINERS, INC., et DEBORAH S. HUNT, Clerk al., Plaintiff-Appellee, ON APPEAL FROM THE UNITED v. STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF GOVERNOR GRETCHEN WHITMER, et MICHIGAN al., Defendant-Appellant.
BEFORE: CLAY, READLER, and MURPHY, Circuit Judges.
CLAY, Circuit Judge. Beginning in March 2020, Defendant Governor Gretchen
Whitmer issued a series of executive orders in an attempt to mitigate the severe public health risk
posed by the COVID-19 pandemic, and Defendant Robert Gordon, the then Director of the
Michigan Department of Health and Human Services, issued an emergency order authorizing local
health departments to enforce the Governor’s executive orders. Several of the executive orders
mandated the closure of certain indoor exercise facilities. In June 2020, Plaintiffs, a trade
organization that represents over 150 fitness facilities throughout Michigan and a number of
individual companies that own and operate fitness businesses in Michigan, obtained a preliminary
injunction enjoining Governor Whitmer and Director Gordon from enforcing the challenged
orders. Defendants appealed, and a panel of this Court stayed the district court’s injunction pending
appeal. For the reasons set forth below, we now DISMISS the appeal for lack of jurisdiction. Case No. 20-1581, League of Independent Fitness Facilities, et al. v. Whitmer, et al.
BACKGROUND
On March 10, 2020, pursuant to Michigan’s Emergency Management Act of 1976
(“EMA”), MCL 30.401 et seq., and Michigan’s Emergency Powers of the Governor Act of 1945
(“EPGA”), MCL 10.31 et seq., and in response to the COVID-19 pandemic, Governor Whitmer
declared a state of emergency. See In re Certified Questions From United States Dist. Court, W.
Dist. of Michigan, S. Div., --- N.W.2d ---, 2020 WL 5877599, at *4 (Mich. Oct. 2, 2020). Over the
next few months, Governor Whitmer used her powers under the EMA and EPGA to issue a series
of executive orders that, inter alia, placed various restrictions on fitness centers and indoor gyms.
Plaintiffs subsequently filed a complaint in the United States District Court for the Western
District of Michigan seeking a declaratory judgment that Governor Whitmer’s orders were
unlawful, and to enjoin Governor Whitmer and Director Gordon from enforcing the orders or
issuing future similar orders. Plaintiffs filed a Motion for a Preliminary Injunction on June 8, 2020,
and on June 19, 2020, the district court granted Plaintiffs a preliminary injunction.
Defendants appealed the district court’s preliminary injunction, and also moved the district
court for a stay pending appeal. On June 22, 2020, the district court denied Defendants’ motion
for a stay pending appeal. Defendants then filed a motion with this Court requesting a stay pending
appeal, which a panel of this Court granted on June 24, 2020. See League of Indep. Fitness
Facilities & Trainers, Inc. v. Whitmer, 814 F. App’x 125, 130 (6th Cir. 2020) (order).
DISCUSSION
Two subsequent events have led Plaintiffs and Defendants to agree that this appeal should
be dismissed as moot. First, on September 3, 2020, Governor Whitmer issued a new executive
order that lifted the prior restrictions on indoor fitness facilities. Second, on October 2, 2020, the
Supreme Court of Michigan held that Governor Whitmer “lacked the authority to declare a ‘state
-2- Case No. 20-1581, League of Independent Fitness Facilities, et al. v. Whitmer, et al.
of emergency’ or a ‘state of disaster’ under the EMA after April 30, 2020, on the basis of the
COVID-19 pandemic” and that “the EPGA is in violation of the Constitution of our state.” In re
Certified Questions, --- N.W.2d ---, 2020 WL 5877599, at *24; see also House of Representatives
v. Governor, 949 N.W.2d 276, 276 (Mich. 2020) (“As stated in In re Certified Questions, the
Emergency Powers of the Governor Act is incompatible with the Constitution of our state, and
therefore, executive orders issued under that act are of no continuing legal effect.”).
“Article III of the United States Constitution limits the federal judicial power to ‘Cases’
and ‘Controversies.”’ Radiant Glob. Logistics, Inc. v. Furstenau, 951 F.3d 393, 395 (6th Cir. 2020)
(citing U.S. Const. art. III, § 2, cl. 1). “A case becomes moot—and therefore no longer a ‘Case’ or
‘Controversy’ for purposes of Article III—‘when the issues presented are no longer “live” or the
parties lack a legally cognizable interest in the outcome.”’ Already, LLC v. Nike, Inc., 568 U.S. 85,
91 (2013) (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982)). Therefore, “[i]f events occur
during the case, including during the appeal, that make it ‘impossible for the court to grant any
effectual relief whatever to a prevailing party,’ the appeal must be dismissed as moot.” Fialka-
Feldman v. Oakland Univ. Bd. of Trs., 639 F.3d 711, 713 (6th Cir. 2011) (quoting Church of
Scientology v. United States, 506 U.S. 9, 12 (1992)); see also Ermold v. Davis, 855 F.3d 715, 718–
19 (6th Cir. 2017); McPherson v. Mich. High School Athletic Ass’n, Inc., 119 F.3d 453, 458 (6th
Cir. 1997) (en banc).
Because the challenged executive orders have been rescinded by Governor Whitmer, we
cannot grant any effectual relief to the parties. See Radiant, 951 F.3d at 396 (“We cannot turn back
the clock on the preliminary injunction and thus have no way to grant relief . . .”). To be sure, “[i]t
is well settled that ‘a defendant’s voluntary cessation of a challenged practice does not deprive a
federal court of its power to determine the legality of the practice.”’ Friends of the Earth, Inc. v.
-3- Case No. 20-1581, League of Independent Fitness Facilities, et al. v. Whitmer, et al.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (quoting City of Mesquite v. Aladdin’s
Castle, Inc., 455 U.S. 283, 289 (1982)); see also Speech First, Inc. v. Schlissel, 939 F.3d 756, 768
(6th Cir. 2019). However, voluntary cessation will moot a case when “subsequent events [make]
it absolutely clear that the allegedly wrongful behavior [cannot] reasonably be expected to recur.”
Friends of the Earth, Inc., 528 U.S. at 189 (quoting United States v. Concentrated Phosphate
Export Assn., 393 U.S. 199, 203 (1968)). This is such a case. Even if Governor Whitmer wanted
to reenact the challenged executive orders, the Supreme Court of Michigan has held that she lacks
such authority. Therefore, this appeal is moot, and we lack jurisdiction to consider the merits of
Plaintiffs’ request for a preliminary injunction.
Defendants also request that we vacate the district court’s opinion granting the preliminary
injunction. “Whether any opinion should be vacated on the basis of mootness is an equitable
question.” Coal. for Gov’t Procurement v. Fed. Prison Indus., Inc., 365 F.3d 435, 484 (6th Cir.
2004) (citing U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 26 (1994)). Particularly
for civil cases that have reached final judgment in the district court, when the case “becomes moot
pending appellate adjudication,” we sometimes “vacate the judgment below and remand with a
direction to dismiss.” Id. at 484–85 (quoting United States v. Munsingwear, Inc., 340 U.S. 36, 39
(1950)) (vacating a summary judgment decision that was rendered moot pending appellate
resolution). But there is far less concern over any preclusive effect of a district court’s decision
“when the mooted appeal is of a preliminary injunction in an ongoing litigation—as is the case
here—because a preliminary injunction has no preclusive effect.” Radiant, 951 F.3d at 397
(cleaned up); see also Ohio A. Philip Randolph Inst. v. Larose, 761 F. App’x 506, 513 n.4 (6th Cir.
2019) (“A decision of a federal district court judge is not binding precedent in either a different
judicial district, the same judicial district, or even upon the same judge in a different case” (quoting
-4- Case No. 20-1581, League of Independent Fitness Facilities, et al. v. Whitmer, et al.
Camreta v. Greene, 563 U.S. 692, 730 n.7 (2011)). Accordingly, we decline to vacate the district
court’s opinion.
CONCLUSION
For the reasons stated above, we DISMISS the appeal for lack of jurisdiction and express
no view on the merits of the district court’s decision.
-5-