NOT PRECEDENTIAL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* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent.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,

, 274 (M.D. Pa. 2020), aff’d,

(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

Despite this warning, Pennsylvania never petitioned for an involuntary quarantine during the pandemic.

.

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,

, 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

and 1343. We have

jurisdiction under

. 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

. 7 In re Horizon Healthcare Servs. Data Breach Litig.,

(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,

(2016). 9 Clapper v. Amnesty Int’l USA,

(2013). 10 Parker I,

, at *2–3. 11 Id. at *2. 12 Id. (citing City of Los Angeles v. Lyons,

(1983)). 13 Id. at *3. 14 Id. (quoting Clapper,

). 15

(quoting Clapper,

).

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,

(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.,

, 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.,

(3d Cir. 1990).

.

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.,

(3d Cir. 2022) (emphasis removed) (citing Reilly v. Ceridian Corp.,

, 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,

, at *2 (citing City of Los Angeles,

). 23 Cnty. of Butler v. Governor of Pa.,

, 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,

(3d Cir. 2020). 25 Cnty. of Butler, 8 F.4th at 231 (citations omitted). 26 Id. (citation omitted). 27 Parker I,

, at *4. 28

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,

(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.

at 457–58. The Pennsylvania Supreme Court then held that, absent an emergency declaration, DOH lacked the legal authority to issue a mask mandate.

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