G.S. v. Bill Lee

NOT RECOMMENDED FOR PUBLICATION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
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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.
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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.
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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.
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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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