NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 22-2789
CHAD PARKER; REBECCA KENWICK-PARKER; MARK REDMAN;
DONNA REDMAN,
Appellants
v.
GOVERNOR OF PENNSYLVANIA; ATTORNEY GENERAL OF PENNSYLVANIA;
SECRETARY OF THE PENNSYLVANIA DEPARTMENT OF HEALTH
_______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(District Court No. 1-20-cv-01601)
U.S. District Judge: Honorable Jennifer P. Wilson
_______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
On June 9, 2023
Before: HARDMIAN, AMBRO, and FUENTES, Circuit Judges
(Filed: September 8, 2023)
_______________
OPINION*
_______________
*
This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding
precedent.
FUENTES, Circuit Judge.
Four Pennsylvania residents challenge the Commonwealth’s implementation of
emergency public health measures to combat the COVID-19 pandemic. The District Court
deemed their claims nonjusticiable and dismissed them for lack of subject matter
jurisdiction. We agree and will affirm.
I. Background
Beginning in March 2020, the Pennsylvania Department of Health (DOH) began to
trace exposures to COVID-19 and impose quarantines on exposed individuals. According
to its contract-tracing protocol, the DOH first contacts patients who tested positive for
COVID-19 and asks for a list of “close contacts” they had while infectious. 1 Next, DOH
sends each contact a letter directing the recipient to self-quarantine for 14 days. 2 The letter
warns that if the recipient fails to quarantine voluntarily, then DOH may petition a court to
impose an involuntary quarantine. 3 The DOH followed this protocol when Plaintiff Chad
Parker tested positive for COVID-19 in July 2020: Parker was contacted, asked about his
recent contacts, and directed to self-quarantine.
1
Parker v. Wolf, 506 F. Supp. 3d 271, 274 (M.D. Pa. 2020), aff’d, 2021 WL 5492803 (3d
Cir. Nov. 23, 2021). The District Court made factual findings in connection with Plaintiffs’
prior motion for a preliminary injunction. Plaintiffs do not dispute the Court’s description
of the contact-tracing protocol, which accords with their own allegations in the Amended
Complaint.
2
Parker, 506 F. Supp. 3d at 274–75.
3
Id. Despite this warning, Pennsylvania never petitioned for an involuntary quarantine
during the pandemic. Id. at 275.
2
From July 2020 to June 2021, the DOH also required most individuals to wear face
coverings when in public. In March 2021, the DOH amended this order to exempt
individuals fully vaccinated against COVID-19 from masking in non-healthcare settings.
The DOH lifted its statewide mask mandate effective June 28, 2021 and has not reimposed
it.
Plaintiffs Chad Parker, Rebecca Kenwick-Parker, Mark Redman, and Donna
Redman filed this suit in September 2020 to declare the DOH’s contact tracing and
masking regulations unconstitutional and enjoin their operation. The District Court denied
Plaintiffs’ motion for a preliminary injunction because it determined Plaintiffs’ claims were
not justiciable. 4 We affirmed on interlocutory appeal, reasoning that (1) Plaintiffs lacked
Article III standing to enjoin the contact-tracing protocol; and (2) the DOH’s withdrawal
of the mask mandate rendered Plaintiffs’ claims against it moot. 5
During the pendency of Parker I, Plaintiffs amended their complaint to add several
allegations not considered by the prior panel. Among other things, Plaintiffs now (1) allege
that P.G., a minor child of Plaintiffs Mark and Donna Redman, experienced contact tracing
in April 2021; (2) assert that the DOH’s “contact tracing database was subject to a serious
data breach, thereby compromising the confidential, private, and sensitive information of
4
Parker, 506 F. Supp. 3d at 292.
5
Parker v. Governor of Pa., No. 20-3518, 2021 WL 5492803, at *2–4 (3d Cir. Nov. 23,
2021) (“Parker I”).
3
countless numbers of Pennsylvanians;” 6 and (3) separately challenge the March 2021
amendment to the mask mandate, which exempted vaccinated individuals.
The District Court dismissed the Amended Complaint after concluding that our
opinion in Parker I foreclosed subject matter jurisdiction over Plaintiffs’ claims. Plaintiffs
again appeal.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343. We have
jurisdiction under 28 U.S.C. § 1291. We review the District Court’s dismissal for lack of
subject matter jurisdiction de novo. 7
III. Analysis
Plaintiffs argue that the District Court erred by dismissing this case because newly
added factual allegations and other developments since Parker I render their claims
justiciable. We disagree that Plaintiffs have established a live controversy and will affirm
the District Court.
A. Article III Standing
We first examine Plaintiffs’ renewed attempt to establish an ongoing or imminent
injury arising from the DOH’s contact-tracing protocol. To establish standing to sue,
Plaintiffs must show that they have “(1) suffered an injury in fact, (2) that is fairly traceable
to the challenged conduct of the defendant, and (3) that is likely to be redressed by a
6
App. 65 ¶ 150.
7
In re Horizon Healthcare Servs. Data Breach Litig., 846 F.3d 625, 632 (3d Cir. 2017).
4
favorable judicial decision.” 8 Plaintiffs seek only prospective relief, and so they must show
an ongoing or “certainly impending” future injury to pursue their claims. 9
In Parker I, we held that Plaintiffs lacked an ongoing or imminent injury arising
from contact tracing. 10 Plaintiffs alleged two relevant injuries at the time: (1) the future
threat of being subjected to the program and (2) voluntary changes they have made to their
behavior to avoid contact tracing. 11 We explained that while Chad Parker previously
encountered contact tracing, this “[p]ast exposure to conduct” did not render a future injury
imminent. 12 We also credited the District Court’s thorough factual analysis of the contact-
tracing procedure, which concluded that the risk of future exposure depends on an
“attenuated chain of events” initiated by third parties. 13 The necessary “guesswork as to
how independent decisionmakers will exercise their judgment” precluded a finding of
imminent injury. 14 And we rejected Plaintiffs’ alleged change in behavior as a valid injury,
as parties “cannot manufacture standing merely by inflicting harm on themselves based on
their fears of hypothetical future harm that is not certainly impending.” 15
8
Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016).
9
Clapper v. Amnesty Int’l USA, 568 U.S. 398, 401 (2013).
10
Parker I, 2021 WL 5492803, at *2–3.
11
Id. at *2.
12
Id. (citing City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)).
13
Id. at *3.
14
Id. (quoting Clapper, 568 U.S. at 413).
15
Id. (quoting Clapper, 568 U.S. at 416).
5
Plaintiffs do not ask us to depart from our reasoning in Parker I, but they allege two
new harms arising from contact tracing that the prior panel did not consider. 16 They first
attempt to repackage their behavioral argument by asserting a “chilling effect” on their
freedom to associate. 17 But just as a plaintiff cannot manufacture harm through voluntary
changes in behavior, a subjective “chilling injury” does not support Article III standing to
challenge a state regulation absent “evidence that the government action has a present and
concrete effect.” 18 As Plaintiffs cannot show an imminent or ongoing exposure to the
contact-tracing protocol, they cannot allege a present and concrete effect.
Next, Plaintiffs assert a new injury stemming from the DOH’s ongoing storage of
confidential information in a contact-tracing database, which allegedly experienced a
“serious data breach” of an uncertain nature. 19 We have held, however, that a plaintiff
16
Plaintiffs do argue that Parker I is not binding because it was a nonprecedential decision
issued on a motion for a preliminary injunction. True enough, “findings of fact and
conclusions of law made in conjunction with [a] preliminary injunction are indeed
preliminary” and “do not foreclose any findings or conclusions to the contrary based on
the record as developed at final hearing.” New Jersey Hosp. Ass’n v. Waldman, 73 F.3d
509, 519 (3d Cir. 1995). Yet the jurisdictional law applied at the preliminary injunction
stage is the same law we must now apply here. The discretionary “law of the case” doctrine
counsels against revisiting legal issues decided in Parker I absent (1) new evidence;
(2) supervening law; or (3) clear error in the prior ruling that creates manifest injustice.
Pub. Int. Rsch. Grp. of New Jersey, Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 116–
17 (3d Cir. 1997).
Plaintiffs do not argue that clear error or supervening law requires us to reconsider Parker
I, and so we limit our analysis to newly raised facts and legal issues the prior panel did not
consider.
17
Appellants’ Br. at 45.
18
Salvation Army v. Dep’t of Cmty. Affs. of State of N.J., 919 F.2d 183, 193 (3d Cir. 1990).
19
App. 65 ¶ 150.
6
cannot establish an ongoing or imminent injury simply through allegations that “an
unknown hacker . . . potentially gained access to sensitive information” in a large data
breach. 20 Plaintiffs have not otherwise identified a concrete harm stemming from the
DOH’s storage of information, and so they cannot rely on the alleged breach in security to
show an Article III injury. 21 They therefore lack standing to enjoin the DOH’s contact-
tracing protocol. 22
B. Mootness
We last address Plaintiffs’ contention that their claims against the DOH’s defunct
mask mandate remain live. A claim ordinarily becomes moot when events after the
complaint’s filing make it impossible for the court to grant effective relief, 23 but there are
two narrow exceptions to this rule. First, the voluntary cessation of conduct does not render
a case moot if the alleged wrongdoer “could reasonably be expected to engage in the
20
Clemens v. ExecuPharm Inc., 48 F.4th 146, 156 (3d Cir. 2022) (emphasis removed)
(citing Reilly v. Ceridian Corp., 664 F.3d 38, 42–43 (3d Cir. 2011)).
21
See Clemens, 48 F.4th at 152–56.
22
Plaintiffs’ Amended Complaint also newly alleges that in April 2021 a school official
instructed the Redmans’ son, P.G., to quarantine at home because he was exposed to
COVID-19 at school. App. 60–61 ¶¶ 133–35. The DOH then made several attempts to
contact the Redmans, but Plaintiffs do not allege that the Redmans ever responded to these
inquiries or faced any further consequences as a result. App. 61–62 ¶¶ 136–40.
Plaintiffs have not raised, and have therefore waived, any argument that their allegations
about P.G. further their claim of future harm. In any case, the experience of P.G.—a
nonparty to this litigation—does not render future harm to Plaintiffs any less speculative.
See Parker I, 2021 WL 5492803, at *2 (citing City of Los Angeles, 461 U.S. 95 at 102).
23
Cnty. of Butler v. Governor of Pa., 8 F.4th 226, 230 (3d Cir. 2021).
7
challenged behavior again.” 24 Second, an otherwise moot claim may proceed in
“exceptional situations where (1) the challenged action is in its duration too short to be
fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that
the same complaining party will be subject to the same action again.” 25 “There must be
more than a theoretical possibility of the action occurring against the complaining party
again; it must be a reasonable expectation or a demonstrated probability.” 26
In Parker I, we held that the DOH’s decision to lift the mask mandate in June 2021
rendered Plaintiffs’ challenges to it moot. 27 We concluded that neither exception to the
mootness doctrine applied because the mandate “expired based on the availability of
vaccines” and Plaintiffs failed to show there was a “reasonable expectation that a statewide
mask order will be reinstated.” 28 One development since Parker I merits brief discussion,
but it does not disturb our prior and present conclusion that Plaintiffs do not show a
statewide mask mandate is expected to recur.
Effective September 7, 2021, the DOH issued a mask mandate for school children.
Plaintiffs argue that the DOH’s continued willingness to require masking, albeit on a
smaller scale, supports their argument that a statewide mask mandate is reasonably likely
to recur and renders their claims justiciable. But Plaintiffs are incorrect for a simple reason:
24
Hartnett v. Pa. State Educ. Ass’n, 963 F.3d 301, 306 (3d Cir. 2020).
25
Cnty. of Butler, 8 F.4th at 231 (citations omitted).
26
Id. (citation omitted).
27
Parker I, 2021 WL 5492803, at *4.
28
Id.
8
the Pennsylvania Supreme Court subsequently held that the school mask mandate exceeded
DOH’s statutory authority and struck it down. 29 So, far from supporting jurisdiction, this
development in state law makes a resurrection of a statewide mask mandate even less
likely. Plaintiffs’ challenge to the mask mandate therefore remains moot and
nonjusticiable. 30
IV. Conclusion
For the foregoing reasons, we will affirm the order of the District Court.
29
See Corman v. Acting Sec’y of Pa. Dep’t of Health, 266 A.3d 452 (Pa. 2021).
Pennsylvania voters amended the state constitution on May 18, 2021 to give the legislature
unilateral power to terminate the Governor’s emergency declaration by a simple majority;
the legislature did precisely that on June 10, 2021. Id. at 457–58. The Pennsylvania
Supreme Court then held that, absent an emergency declaration, DOH lacked the legal
authority to issue a mask mandate. Id. at 486–87. The Governor has not redeclared an
emergency related to COVID-19.
30
Insofar as Plaintiffs separately challenge the DOH’s March 2021 amendment to the mask
mandate, which necessarily expired along with the mandate itself, their claims are moot
for the same reasons.
9