Petition for Writ of Certiorari — Chad Parker, et al., Petitioners v. Governor of Pennsylvania, et al.

No. ______

In the

Supreme Court of the United States

__________________

CHAD PARKER, ET AL.,

v.

Petitioners,

GOVERNOR OF PENNSYLVANIA, ET AL.,

Respondents.

__________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

__________________

PETITION FOR WRIT OF CERTIORARI

__________________

David Yerushalmi

American Freedom

Law Center

2020 Pennsylvania Ave. NW

Suite 189

Washington, D.C. 20006

(646) 262-0500

Robert Joseph Muise

Counsel of Record

American Freedom

Law Center

P.O. Box 131098

Ann Arbor, MI 48113

(734) 635-3756

rmuise@americanfreedomlaw

center.org

Counsel for Petitioners

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTIONS PRESENTED

The COVID-19 pandemic created a constitutional

crisis.

For years, American citizens, including

Petitioners, were subject to constantly changing orders

that imposed burdens on fundamental freedoms in a

way that our nation has never experienced in its

history. The cost of these burdens is incalculable.

Unfortunately, many courts did nothing, abdicating

their duty to say what the law is and allowing this

assault on liberty to proceed largely unchecked.

1. Is this constitutional challenge to the

Pennsylvania “mask mandate” moot when the

restriction is capable of repetition yet so short in

duration that it evaded review and Pennsylvania

officials voluntary ceased the allegedly unlawful action

while this lawsuit was pending?

2. Do Petitioners have standing to challenge

Pennsylvania’s “contact tracing” program, which was

developed during the COVID-19 pandemic, when

Petitioners were directly subject to its restrictions

during the pandemic, the program had a chilling effect

on Petitioners’ freedom to associate, Petitioners had

private and personal data subject to disclosure as a

result of a breach of the program’s database, and the

program remains in existence today?

ii

PARTIES TO THE PROCEEDING

Petitioners are Chad Parker, Rebecca Parker

(“Parkers”), Mark Redman, and Donna Redman

(“Redmans”) (collectively referred to as “Petitioners”).

Respondents are the Governor of Pennsylvania, the

Attorney General of Pennsylvania, and the Secretary of

the Pennsylvania Department of Health (collectively

referred to as “Respondents”).

STATEMENT OF RELATED PROCEEDINGS

There are no related proceedings.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING . . . . . . . . . . . . . . ii

STATEMENT OF RELATED PROCEEDINGS . . . . ii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . v

PETITION FOR WRIT OF CERTIORARI . . . . . . . . 1

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL PROVISIONS INVOLVED . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 2

I.

Procedural Background. . . . . . . . . . . . . . . . . . 2

II.

Decision Below. . . . . . . . . . . . . . . . . . . . . . . . . 3

III.

Statement of Facts. . . . . . . . . . . . . . . . . . . . . . 4

A. The Mask Mandate. . . . . . . . . . . . . . . . . . . 4

B. The Contact Tracing Program. . . . . . . . . . 7

REASONS FOR GRANTING THE PETITION . . . 12

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

I.

Petitioners’ Challenge to the Mask Mandate

Is Not Moot. . . . . . . . . . . . . . . . . . . . . . . . . . . 15

iv

A. Petitioners’ Challenge to the Mask

Mandate Is Not Moot as the Challenged

Restriction Falls Within the Capable of

Repetition, Yet Evading Review

Exception to Mootness. . . . . . . . . . . . . . . 17

B. Respondents’ Voluntary Cessation of the

Mask Mandate Does Not Moot

Petitioners’ Challenge. . . . . . . . . . . . . . . . 20

II.

Petitioners Have Standing to Challenge the

Contact Tracing Program.. . . . . . . . . . . . . . . 22

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

APPENDIX

Appendix A Opinion in the United States Court of

Appeals for the Third Circuit

(September 8, 2023) . . . . . . . . . . . App. 1

Appendix B Order in the United States District

Court for the Middle District of

Pennsylvania

(September 13, 2022) . . . . . . . . . App. 12

v

TABLE OF AUTHORITIES

CASES

Abbott Labs. v. Gardner,

387 U.S. 136 (1967). . . . . . . . . . . . . . . . . . . . . . . 26

Adarand Constr., Inc. v. Slater,

528 U.S. 216 (2000). . . . . . . . . . . . . . . . . . . . 20, 21

Allen v. Wright,

468 U.S. 737 (1984). . . . . . . . . . . . . . . . . . . . . . . 22

Ams. for Prosperity Found. v. Bonta,

141 S. Ct. 2373 (2021). . . . . . . . . . . . . . . . . . . . . 25

Blunt v. Lower Merion Sch. Dist.,

767 F.3d 247 (3d Cir. 2014) . . . . . . . . . . . . . . . . 23

City of Mesquite v. Aladdin’s Castle, Inc.,

455 U.S. 283 (1982). . . . . . . . . . . . . . . . . . . . . . . 20

Coolidge v. N.H.,

403 U.S. 443 (1971). . . . . . . . . . . . . . . . . . . . . . . 13

Dombrowski v. Pfister,

380 U.S. 479 (1965). . . . . . . . . . . . . . . . . . . . . . . 26

Elrod v. Burns,

427 U.S. 347 (1976). . . . . . . . . . . . . . . . . . . . 13, 26

G&V Lounge, Inc. v. Mich. Liquor Control Comm’n,

23 F.3d 1071 (6th Cir. 1994). . . . . . . . . . . . . . . . 27

Healy v. James,

408 U.S. 169 (1972). . . . . . . . . . . . . . . . . . . . . . . 24

Honig v. Doe,

484 U.S. 305 (1988). . . . . . . . . . . . . . . . . . . . . . . 19

vi

Kingdomware Techs., Inc. v. U.S.,

136 S. Ct. 1969 (2016). . . . . . . . . . . . . . . . . . . . . 18

Korematsu v. U.S.,

323 U.S. 214 (1944). . . . . . . . . . . . . . . . . . . . . . . 12

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) . . . . . . . . . . . . . . . 12

Meyer v. Neb.,

262 U.S. 390 (1923). . . . . . . . . . . . . . . . . . . . . . . 12

Parker v. Governor of Pa.,

No. 22-2789, 2023 U.S. App. LEXIS 23850 (3d

Cir. Sep. 8, 2023). . . . . . . . . . . . . . . . . . . . . . . . . . 1

Parker v. Wolf,

No. 1:20-CV-01601, 2022 U.S. Dist. LEXIS

244944 (M.D. Pa. Sep. 13, 2022) . . . . . . . . . . . . . 1

Roberts v. U.S. Jaycees,

468 U.S. 609 (1984). . . . . . . . . . . . . . . . . . . . . . . 25

Roman Catholic Diocese v. Cuomo,

141 S. Ct. 63 (2020). . . . . . . . . . . . . . . . . . . . 15, 19

Ross v. Bank of Am., N.A.,

524 F.3d 217 (2d Cir. 2008) . . . . . . . . . . . . . . . . 23

Salvation Army v. Dep’t of Cmty. Affairs,

919 F.2d 183 (3d Cir. 1990) . . . . . . . . . . . . . . . . 25

Smith v. Nixon,

807 F.2d 197 (D.C. Cir. 1986) . . . . . . . . . . . . . . . 27

S. Bay United Pentecostal Church v. Newsom,

141 S. Ct. 716 (2021). . . . . . . . . . . . . . . . . . . . . . 19

vii

Speech First, Inc. v. Schlissel,

939 F.3d 756 (6th Cir. 2019). . . . . . . . . . . . . . . . 21

Thomas More Law Ctr. v. Obama,

651 F.3d 529 (6th Cir. 2011). . . . . . . . . . . . . . . . 26

Trump v. Haw.,

138 S. Ct. 2392 (2018). . . . . . . . . . . . . . . . . . . . . 12

Tucker v. Gaddis,

40 F.4th 289 (5th Cir. 2022) . . . . . . . . . . . . . . . . 16

U.S. v. W. T. Grant Co.,

345 U.S. 629 (1953). . . . . . . . . . . . . . . . . . . . 20, 21

Warth v. Seldin,

422 U.S. 490 (1975). . . . . . . . . . . . . . . . . . . . . . . 22

Weinstein v. Bradford,

423 U.S. 147 (1975). . . . . . . . . . . . . . . . . . . . . . . 18

Wis. Right to Life,

551 U.S. 449 (2007). . . . . . . . . . . . . . . . . . . . . . . 19

CONSTITUTION AND STATUTES

U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . 1, 24, 25

U.S. Const. amend. XIV, § 1 . . . . . . . . . . . . . . . . . . . 2

U.S. Const. art. III . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3

28 U.S.C. § 1254(1). . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 Pa. Code § 27.60(a) . . . . . . . . . . . . . . . . . . . . . . . . 9

28 Pa. Code § 27.65 . . . . . . . . . . . . . . . . . . . . . . . . . . 9

28 Pa. Code § 27.66 . . . . . . . . . . . . . . . . . . . . . . . . . . 9

viii

28 Pa. Code § 27.8 . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

28 Pa. Code § 27.87(a) . . . . . . . . . . . . . . . . . . . . . . . . 9

28 Pa. Code § 27.88(a) . . . . . . . . . . . . . . . . . . . . . . . . 9

28 Pa. Code § 27.97 . . . . . . . . . . . . . . . . . . . . . . . . . . 9

28 Pa. Code § 27.152(b) . . . . . . . . . . . . . . . . . . . . . . . 9

28 Pa. Code § 27.152(c) . . . . . . . . . . . . . . . . . . . . . . . 9

RULES

Fed. R. Civ. P. 12(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . 2

Fed. R. Civ. P. 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . 2

Sup. Ct. R. 10(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

OTHER AUTHORITIES

Joseph C. Davis & Nicholas R. Reaves, The Point

Isn’t Moot: How Lower Courts Have Blessed

Government Abuse of the Voluntary Cessation

Doctrine, 129 Yale L.J. Forum 325 (2019) . . . . . 16

1

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the court of appeals appears at

App. 1 and is available at Parker v. Governor of

Pennsylvania, No. 22-2789, 2023 U.S. App. LEXIS

23850 (3d Cir. Sep. 8, 2023). The opinion of the district

court appears at App. 12 and is available at Parker v.

Wolf, No. 1:20-CV-01601, 2022 U.S. Dist. LEXIS

244944 (M.D. Pa. Sep. 13, 2022).

JURISDICTION

The opinion of the court of appeals was entered on

September 8, 2023. App. 1. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

Article III provides, in relevant part, “The judicial

power shall extend to all Cases [and] Controversies

. . . .” U.S. Const. art. III.

The First Amendment provides, in relevant part,

“Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech

. . . .” U.S. Const. amend. I.

The Fourteenth Amendment provides, in relevant

part, “No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens of

the United States; nor shall any State deprive any

person of life, liberty, or property, without due process

of law; nor deny to any person within its jurisdiction

2

the equal protection of the laws.” U.S. Const. amend.

XIV, § 1.

STATEMENT OF THE CASE

I.

Procedural Background.

Petitioners filed this action on September 3, 2020.

On October 6, 2020, Petitioners filed a motion for

preliminary injunction, seeking to preliminarily enjoin

Pennsylvania’s mask mandate and contact tracing

program. The motion was denied on December 11,

2020. That same day, Petitioners filed a notice of

appeal. Petitioners also filed a motion for injunction

pending appeal with the district court. The motion was

denied. Petitioners then promptly filed a motion for

injunction pending appeal with the U.S. Court of

Appeals for the Third Circuit, and that motion was

denied without an opinion on January 19, 2021.

The Third Circuit affirmed the district court’s denial

of Petitioners’ request for a preliminary injunction on

November 23, 2021.

On May 25, 2021, Petitioners filed a First Amended

Complaint. R-42. Respondents moved to dismiss the

pleading under Rules 12(b)(1) and 12(b)(6) of the

Federal Rules of Civil Procedure. Petitioners opposed

the motion.

On September 13, 2022, the district court granted

Respondents’ motion, dismissing the claims on

justiciability grounds and closing the case. Petitioners

filed a timely notice of appeal. On September 8, 2023,

the Third Circuit affirmed the district court’s ruling.

App. 1-11.

3

This petition follows.

II.

Decision Below.

The Third Circuit affirmed the district court’s order

dismissing Petitioners’ First Amended Complaint on

justiciability grounds. The circuit court dismissed

Petitioners’ challenge to the contact tracing program on

standing grounds, concluding that Petitioners lacked

an ongoing or imminent injury arising from the

program. App. 5-8. More specifically, the court relied

on the prior panel’s preliminary injunction ruling and

held that Chad Parker’s past exposure to the program

did not render a future injury imminent, noting that

“the risk of future exposure depends on an ‘attenuated

chain of events’ initiated by third parties.” App. 6. The

court also “rejected [Petitioners’] alleged change in

behavior as a valid injury.” Id.

The court further held that Petitioners’ alleged

“‘chilling injury’ does not support Article III standing,”

and that Petitioners “cannot establish an ongoing or

imminent injury simply through allegations” that there

was a “large data breach” of Petitioners’ private and

personal information that was collected and stored by

the government pursuant to the challenged program.

See App. 7-8.

The circuit court also relied primarily on the prior

panel’s preliminary injunction ruling and dismissed

Petitioners’ challenge to the mask mandate on

mootness grounds.

The court held that the

Department of Health’s decision to lift the mandate in

June 2021 rendered Petitioners’ challenge moot and

“that neither exception to the mootness doctrine

4

applied because the mandate ‘expired based on the

availability of vaccines’ and [Petitioners] failed to show

there was a ‘reasonable expectation that a statewide

mask order will be reinstated.’” App. 9-10.

III.

Statement of Facts.

A. The Mask Mandate.

On March 9, 2020, the Pennsylvania Secretary of

Health announced the presence of 10 suspected cases

of COVID-19 in Pennsylvania and stated that the

Commonwealth would start contact tracing. R-42,

First Am. Compl. ¶ 30.

On April 1, 2020, the Pennsylvania Governor issued

a state-wide, stay-at-home order pursuant to his

“emergency powers.” The stay-at-home order was the

equivalent of a house arrest for the people of

Pennsylvania, including Petitioners. Id. ¶ 31.

At that time, Petitioners were told that the stay-athome order was required to ensure that the hospitals

were not overrun and to “flatten the curve.” Petitioners

were willing to cooperate given this explanation and

what certainly appeared to be a short-term restriction.

While both of the conditions were soon met, the

restriction remained. Id. ¶ 32.

Respondents did not establish any clear guidelines

or objective criteria for when they would lift or end the

COVID-19 restrictions, including the challenged mask

mandate and contact tracing program. With regard to

the contact tracing program, Respondents built a large,

government infrastructure surrounding the program

such that this program will be permanent and thus

5

available for use during any government-perceived or

government-created “crisis.” Id. ¶ 34.

On July 1, 2020, the Pennsylvania Secretary of

Health issued an order mandating “universal face

coverings,” requiring all persons in Pennsylvania to

wear a face mask when leaving their home. More

specifically, pursuant to the mask mandate, individuals

were required to wear a face mask when outdoors and

unable to consistently maintain a distance of six feet

from individuals who are not members of the same

household and when in any indoor location where

members of the public are generally permitted. Id.

¶ 47.

On November 17, 2020, the Department of Health

issued an “Updated Order” requiring universal face

coverings. This mandate went into effect on November

18, 2020. The mandate was amended again on March

16, 2021. Id. ¶¶ 53-54.

At all times, Petitioners were subject to the mask

mandate and the penalties for failing to comply with it.

Id. ¶ 55.

For many, including Petitioners, requiring them to

wear a face mask forced them to convey a message with

which they disagreed. To Petitioners, wearing a mask

conveys the message that the wearer has surrendered

his or her freedom to the government, particularly in

light of the facts of the declared pandemic. Id. ¶ 64.

Because a mask had become a political symbol

during the highly politicized pandemic, the wearing of

a mask was a form of symbolic speech. Consequently,

via the mask mandate, Respondents were compelling

6

Petitioners to engage in a form of expression and to

convey a message with which Petitioners disagreed.

Id. ¶ 65.

The mask mandate presumed that all people were

diseased and thus made the wearer contribute to a

false public statement that all people were in fact

diseased. Id. ¶ 66.

Petitioners also objected to the mask mandate

because it violated privacy interests, including their

right to bodily integrity and personal autonomy free

from government interference. Id. ¶ 67.

Under the mask mandate, a mask was required for

everyone, even though the vast majority of individuals

required to wear one were healthy or were not in a

group with a high risk to contract COVID-19. In fact,

under the mandate, masks were required to be worn by

those who already contracted COVID-19 and were now

immune from the virus, including Petitioner Chad

Parker. Id. ¶ 68.

Respondents also implemented a policy whereby

vaccinated persons were excused from certain COVID19 restrictions, including the requirement to wear a

face mask. This policy discriminated against people

who oppose the COVID-19 vaccine (specifically

including Petitioners, who oppose it on religious

grounds); it discriminated in favor of those who were

vaccinated over those who were not vaccinated; and it

was a way for the government to coerce individuals to

receive the vaccine. Id. ¶ 82.

7

The mask mandate was eventually lifted,

unilaterally, by the Department of Health on June 28,

2021. App. 3.

B. The Contact Tracing Program.

On July 14, 2020, Petitioner Chad Parker believed

he had a sinus infection, so he sought medical

treatment. On July 19, 2020, he was tested for COVID19, and on July 24, 2020, his test result was positive.

Petitioner works for a government employer, which

follows the CDC guidance for when a person who tests

positive for COVID-19 is cleared to return to work.

Pursuant to the guidance in place at the time,

Petitioner was cleared on July 24, 2020, and he

returned to work on July 25, 2020. R-42, First Am.

Compl. ¶ 110.

On July 25, 2020, Petitioner Chad Parker was

contacted by a contact tracer. The contact tracer asked

probing questions, including who Petitioner lives with,

the ages of the individuals he lives with, the names of

any businesses or other places he recently visited, and

the names and contact information of any people he

recently visited or had contact with. Petitioner was

disturbed by the intensive questioning by this

government investigator and by the investigation itself,

which sought personal and private information

regarding his personal and private contacts and

associations. Id. ¶ 111.

In a press release posted on August 31, 2020, the

Department of Health acknowledged the following with

regard to the contact tracing program: “During the case

investigation, public health professionals spend 30 to

8

60 minutes asking questions to ensure all potential

close contacts are identified. They collect information

about who the case came in contact with and where they

went while they were infectious.” Id. ¶ 112 (emphasis

added).

Shortly following the probing phone call with the

contact tracer, the Parkers received a letter in the mail

from the Department of Health dated July 25, 2020

(“DOH Letter”). The letter was addressed to the

“Parker/Kenwick Family,” and it stated that “[t]he

Secretary of Health is directing you as a close contact

of a person that has COVID-19 to self-quarantine in

your home.” The letter further stated that “[t]his

authority is granted to the Secretary of Health under

the law,” citing as authority, inter alia, various sections

of the Disease Prevention and Control Law and the

Department of Health’s regulations found at 28

Pennsylvania Code Chapter 27. Id. ¶¶ 113-14.

During the mandated, 14-day quarantine (house

arrest), the DOH Letter also “directed” the Parkers to,

inter alia, “[m]aintain social distancing of at least 6 feet

from family members” and to “[c]ooperate with the

monitoring and other contacts of the Department or its

representatives.” The letter concluded with a stern

warning:

You must immediately adhere to this quarantine

directive and all disease control measures

included in it. If you do not cooperate with this

directive, the Secretary of Health may petition a

court to have you confined to an appropriate

place chosen by the Department. . . . This may

be a hospital, or some other appropriate place,

9

whichever the Department determines is best

suited for your case. You will be kept there until

the Department determines it can release you

from quarantine. Law enforcement may be

called upon, to the extent necessary, to ensure

your compliance with this directive.

Id. ¶¶ 115-16 (emphasis added).

Pursuant to 28 Pennsylvania Code Chapter 27, a

violation of the Department’ directives as set forth in

the DOH Letter could result in criminal penalties

(§ 27.8).

Additionally, Chapter 27 gives the

Department very broad, plenary, and punitive powers.

For example, among other powers, the Department has

the power to isolate, quarantine, segregate, and surveil

individuals without a warrant or consent (§ 27.60(a));

it has the power to define the conditions of the

quarantine (§ 27.65); it has the power to put a

placard/sign in front of a person’s home if the

Department believes that the person is not “fully”

compliant (§ 27.66); it has the power to restrict physical

movement, requiring the quarantine to “take place in

an institution where the person’s movement is

physically restricted” (§ 27.88(a)); it has the power to

“treat” minors without parental consent (§ 27.97); it

has the power to isolate a person if he or she refuses

treatment (§ 27.87(a)); it has the power to enter a home

without a warrant or consent (§ 27.152(b)); and it has

the power to review confidential medical records

without a warrant or consent (§ 27.152(c)). All of these

powers are available to the Department this very day

to enforce the challenged contact tracing program. R42, First Am. Compl. ¶ 117.

10

Indeed, the Department of Health has the authority

to remove minor children from their homes and place

them in an isolated quarantine location without

parental consent pursuant to the contact tracing

program. Id. ¶ 118.

From the date of his first phone call with a contact

tracer to August 24, 2020, Petitioner Chad Parker

received approximately 14 text messages a day as a

result of the contact tracing program. The text

messages required responses to a “Daily Self-Report.”

There was no way to stop the incessant messages,

which were apparently generated by the Sara Alert

system. Moreover, pursuant to the DOH Letter, the

Parkers were required to “cooperate” and thus respond.

Id. ¶ 122.

Because the Parkers are now in Respondents’

contact tracing database, they reasonably fear that

they will be subjected once again to a quarantine. At a

minimum, they object to being subjected to

surveillance, having their personal medical records

reviewed by the Department of Health, and being in

the government’s database. Id. ¶ 123.

The Redmans were also subject to the contact

tracing program. On April 29, 2021, the Redmans were

advised by an assistant principal from their son’s high

school that their son, P.G., was a “close contact” with

someone who had tested positive for COVID-19. The

Redmans were advised that their son was ordered to

leave the school, and that they should pick him up as

he could not take the bus home. Based on the date of

the last contact, P.G. was excluded from school until

11

May 8, 2021, as the school uses a 14-day quarantine

period. Id. at ¶ 133.

On May 3, 2021, the Redmans received a letter from

the high school advising them that P.G. “may have

been exposed to someone who has COVID-19.” As a

result of the contact tracing program, P.G. was forced

to stay at home even though he had no symptoms

whatsoever of COVID-19. In addition to missing his inperson instruction, P.G. missed a scheduled lifeguard

recertification class as a result of the contact tracing

quarantine. Id. ¶¶ 138-39.

On May 7, 2021, P.G. (a minor) received a letter

addressed to him from the Department of Health. The

letter stated: “I need to speak with you regarding an

urgent health matter. Please contact me at 1-877 PA

HEALTH (1-877-724-3258), Option l, as soon as

possible. Please leave a message with a good contact

number if I am not available. Your cooperation is

greatly appreciated.” The letter was signed by Emily

Charland-Snoots, “PA Department of Health Contact

Tracer.” Id. ¶ 140.

The contact tracing program has resulted in the

government (Respondents) creating a large database of

confidential, private, and, sensitive information about

private individuals. This massive contact tracing

database was subject to a serious data breach, thereby

compromising the confidential, private, and sensitive

information of countless numbers of Pennsylvanians,

including Petitioners, who have been subject to the

contact tracing program and are part of the database.

Id. ¶ 150.

12

REASONS FOR GRANTING THE PETITION

“Determination by the [government] of what

constitutes proper exercise of police power is not final

or conclusive but is subject to supervision by the

courts.” Meyer v. Neb., 262 U.S. 390, 400 (1923). But

this supervision is only effective if the courts are

willing to exercise their authority to decide important

constitutional questions. Unfortunately, the Courts’

justiciability doctrines (standing, ripeness, mootness)

have become convenient excuses for lower courts to

surrender their duty to say what the law is,

particularly when dealing with the draconian and

historic restrictions imposed during the recent

pandemic.

While the fear engendered by war, pandemic, or

some other crisis might lead politicians, their

attorneys, and yes, even judges of the highest order, to

assert that patent violations of the Constitution are

acceptable (or beyond judicial scrutiny) because public

safety interests demand an exception to our most

fundamental liberties, history teaches that we will look

back on these arguments as “gravely wrong . . .

overruled in the court of history . . . and . . . [having] no

place in law under the Constitution.” Trump v. Haw.,

138 S. Ct. 2392, 2423 (2018) (repudiating Korematsu v.

United States, 323 U.S. 214 (1944)).

During times such as these, “[i]t is emphatically the

province and duty of the judicial department to say

what the law is.” Marbury v. Madison, 5 U.S. (1

Cranch) 137, 177 (1803). The importance of doing so

during (and in the immediate aftermath of) a crisis is

essential to ensure the protection of constitutional

13

liberties for it is in such times that the need for

protection is at its zenith. See generally Coolidge v.

N.H., 403 U.S. 443, 455 (1971) (“In times of unrest,

whether caused by crime or racial conflict or fear of

internal subversion, this basic law [the Fourth

Amendment] and the values that it represents may

appear unrealistic or ‘extravagant’ to some. But the

values were those of the authors of our fundamental

constitutional concepts.”).

Indeed, our Constitution does not permit such a

tyrannical reign even if it is of short duration. Elrod v.

Burns, 427 U.S. 347, 373 (1976) (“The loss of First

Amendment freedoms, for even minimal periods of

time, unquestionably constitutes irreparable injury.”).

The only meaningful check on such abuse of power

is the judiciary. However, if the judiciary refuses to

exercise its authority to resolve the merits of a case,

then tyranny lives for another day.

Review by this Court is necessary because the lower

courts do not uniformly apply the Court’s justiciability

doctrines, and this is particularly true in cases

challenging the enforcement of emergency orders

issued during the recent COVID-19 crisis. See Sup. Ct.

R. 10(c).

ARGUMENT

This case presents a justiciable controversy.

Petitioners’ challenge to the Pennsylvania mask

mandate is not moot for at least two reasons. First, the

government’s cessation of its unlawful actions was

entirely voluntary, the government retains the

authority to continue the illegal conduct, and the public

14

has an exceedingly strong interest in determining

whether the government’s action was lawful. This

Court has repeatedly said that a defendant who

invokes mootness based on voluntary cessation bears a

“formidable burden.” That is, Respondents bear a

“heavy burden of persuading the court that the

challenged conduct cannot reasonably be expected to

start up again.” Respondents cannot meet this burden,

and it was wrong to place that burden on Petitioners.

And second, the mandate is capable of repetition yet too

short in duration for meaningful review.

Petitioners likewise have standing to challenge the

contact tracing program. Cognizable injuries caused by

the program include: (1) the chilling effect caused by

forced disclosures; (2) changes in behavior compelled by

the program; (3) the current and ongoing retention by

the government of private information and records of

Petitioners due to the fact that Petitioners were

themselves targets of the program; and (4) this

database was hacked, resulting in a leak of the private

information. These injuries are fairly traceable to

Respondents, and they are likely to be redressed by the

requested relief.

This Court should grant the petition, vacate the

adverse decision below, clarify the Court’s justiciability

doctrines, particularly mootness, and remand the case

for the Third Circuit to properly apply the doctrines in

this case.

15

I.

Petitioners’ Challenge

Mandate Is Not Moot.

to

the

Mask

The judiciary’s primary role is to safeguard

freedom—it would be wrong to surrender that role

because of a pandemic. As stated by Justice Gorsuch,

“[Courts] may not shelter in place when the

Constitution is under attack. Things never go well

when [they] do.” Roman Catholic Diocese v. Cuomo,

141 S. Ct. 63, 71 (2020) (Gorsuch, J., concurring).

This case reflects a growing trend of allowing

government defendants to moot a pending case by

rescinding the challenged regulation prior to the courts

deciding the constitutionality of the claims against

them, thus allowing government officials to remain

unaccountable for the legal ramifications of their

enacted policies.

Such decisions are an abuse of the doctrine of

mootness. As recently stated by Judge Ho in the Fifth

Circuit:

To be clear, it’s not supposed to be this way. It

shouldn’t be that easy for the government to

avoid accountability by abusing the doctrine of

mootness. But judges too often dismiss cases as

moot when they’re not—whether out of an

excessive sense of deference to public officials,

fear of deciding controversial cases, or simple

good faith mistake. And when that happens,

fundamental constitutional freedoms frequently

suffer as a result.

That’s why legal commentators have bemoaned

that acts of “strategic mooting litter the Federal

16

Reporter.” Joseph C. Davis & Nicholas R.

Reaves, The Point Isn’t Moot: How Lower Courts

Have Blessed Government Abuse of the

Voluntary Cessation Doctrine, 129 Yale L.J.

Forum 325, 328 (2019).

Because judicial

acceptance of such gamesmanship “harm[s] both

good sense and [] individual rights” and

“depriv[es] the citizenry of certainty and clarity

in the law” by “preventing the final resolution of

important legal issues.” Id.

I am thankful that our court does not make that

same mistake today. But I continue to worry

that judges may be tempted to misapply

mootness in other cases—not to ensure that we

decide only actual cases or controversies, but to

avoid deciding cases that happen to be

controversial.

Tucker v. Gaddis, 40 F.4th 289, 293-94 (5th Cir. 2022)

(Ho, J., concurring).

This case presents a particularly egregious example

of the “gamesmanship” identified by Circuit Judge Ho.

While the mask mandate was in full force, the district

court denied Petitioners’ request for a preliminary

injunction, erroneously concluding that Petitioners

lacked standing to challenge the mandate (mootness

was obviously not an issue at that time). Notably, the

government never raised standing as an issue in the

district court as Petitioners were plainly subject to the

mandate, which carried penalties for violating it.

Petitioners immediately appealed the district court’s

ruling, seeking an injunction pending appeal in the

lower court, which was denied for the same reasons the

17

court denied the preliminary injunction. Petitioners

immediately followed that denial with a request for an

injunction pending appeal in the Third Circuit (while

the mandate was still in effect). That request was

denied without explanation. In the Third Circuit’s

opinion on the merits of Petitioners’ interlocutory

appeal (which was not heard until after the mandate

was voluntarily ended by government officials), the

court held that the challenge to the mask mandate was

now moot.

Upon remand, the district court followed the Third

Circuit’s decision and ultimately dismissed the First

Amended Complaint. That dismissal was affirmed by

the Third Circuit.

A. Petitioners’ Challenge to the Mask

Mandate Is Not Moot as the Challenged

Restriction Falls Within the Capable of

Repetition, Yet Evading Review

Exception to Mootness.

The Pennsylvania mask mandate, like so many

COVID restrictions, was an on-again/off-again

mandate. The original mask mandate was issued in

July 2020. R-42, First Am. Compl. ¶ 47. On

November 17, 2020, the Department of Health issued

a new mask mandate order, which went into effect on

November 18, 2020. Id. ¶ 53. The November 2020

order expressly stated, “My Order Requiring Universal

Face Coverings, dated July 15, 2020, is hereby

rescinded and superseded by this Order.” Id., Ex. 1.

This mandate was then updated on March 16, 2021,

and it expressly stated, “This Amended Order shall

take effect at 12:01 a.m. on March 17, 2021 and shall

18

remain in effect until further notice.” Id., Ex. 2

(emphasis added). The mandate was unilaterally

rescinded by the Department of Health on June 28,

2021. App. 8.

Petitioners’ claim comes within the “capable of

repetition, yet evading review” exception to the

mootness doctrine. This exception applies to situations

where: “(1) the challenged action was in its duration too

short to be fully litigated prior to its cessation or

expiration; and (2) there was a reasonable expectation

that the same complaining party would be subjected to

the same action again.” Weinstein v. Bradford, 423

U.S. 147, 148 (1975) (emphasis added).

This Court has found periods of up to two years to

be too short to be fully litigated.

See, e.g.,

Kingdomware Techs., Inc. v. United States, 136 S. Ct.

1969, 1976 (2016) (holding that a procurement contract

that expires in two years does not permit judicial

review). Petitioners satisfy the first requirement.

Petitioners also satisfy the second requirement of

the “capable of repetition, yet evading review”

exception because this standard is a forgiving one.

That is, “reasonable” in this context is not an exacting

bar. Indeed, this Court has indicated that it is

somewhat less than probable:

[W]e have found controversies capable of

repetition based on expectations that, while

reasonable, were hardly demonstrably probable

. . . Our concern in these cases . . . was whether

the controversy was capable of repetition and

not . . . whether the claimant had demonstrated

19

that a recurrence of the dispute was more

probable than not.

Honig v. Doe, 484 U.S. 305, 318 n.6 (1988) (emphasis in

original) (internal citations omitted).

In other words, recurrence of the issue need not be

more probable than not; instead, the controversy must

be capable of repetition. This standard provides that

the chain of potential events does not have to be certain

or even probable to support the court’s finding of nonmootness.

This Court has found restrictions issued during the

COVID-19 pandemic capable of repetition. In Roman

Catholic Diocese of Brooklyn v. Cuomo, the Court found

that a church’s challenge to New York’s pandemic

restrictions was not moot where “[t]he Governor

regularly change[d] the classification of particular

areas without prior notice” and retained the authority

to continue doing so. 141 S. Ct. 63, 68 (2020) (per

curiam). And while the Court did not identify which

mootness exception applied, it cited to Wisconsin Right

to Life’s discussion of the “capable of repetition, yet

evading review” exception. Id. (citing Wis. Right to

Life, 551 U.S. 449, 462 (2007)).

The Court applied Roman Catholic Diocese in

Tandon v. Newsom and held that a challenge to

California’s restrictions on religious gatherings was not

moot because California officials “retain[ed] authority

to reinstate” the challenged restrictions “at any time.”

141 S. Ct. 1294, 1297 (2021) (per curiam) (citing S. Bay

United Pentecostal Church v. Newsom, 141 S. Ct. 716,

720, 209 (2021) (Gorsuch, J.) (explaining that the case

20

was not moot because California officials have a record

of “moving the goalposts”)).

The Third Circuit’s dismissal of this challenge based

on mootness grounds was contrary to this Court’s

precedent, and there is a strong public interest in

having the constitutionality of such mandates

determined by the courts.

B. Respondents’ Voluntary Cessation of the

Mask Mandate Does Not Moot

Petitioners’ Challenge.

When a party seeks to escape liability by claiming

that it has voluntarily ceased the offending conduct,

“the heavy burden of persuading the court that the

challenged conduct cannot reasonably be expected to

start up again lies with the party” seeking to avoid

liability. Adarand Constructors, Inc. v. Slater, 528 U.S.

216, 222 (2000) (internal quotations and citation

omitted) (emphasis added).

As this Court noted, not only is a defendant “free to

return to his old ways,” but also the public has an

interest “in having the legality of the practices settled.”

United States v. W. T. Grant Co., 345 U.S. 629, 632

(1953) (emphasis added); see also City of Mesquite v.

Aladdin’s Castle, Inc., 455 U.S. 283, 289, n.10 (1982).

Consequently, “[a]long with its power to hear the

case, the court’s power to grant injunctive relief

survives discontinuance of the illegal conduct.” W. T.

Grant Co., 345 U.S. at 633. Accordingly, a claim for

injunctive relief may be improper only “if the defendant

can demonstrate that ‘there is no reasonable

21

expectation that the wrong will be repeated.’ The

[defendant’s] burden is a heavy one.” Id. (citation

omitted) (emphasis added).

This Court has also instructed the lower courts to be

particularly vigilant in cases such as this, warning that

“[i]t is the duty of the courts to beware of efforts to

defeat injunctive relief by protestations of repentance

and reform, especially when abandonment seems timed

to anticipate suit, and there is probability of

resumption.” Id. at 632, n.5.

As the Court concluded, denying a plaintiff

prospective relief “would be justified only if it were

absolutely clear that the litigant no longer had any

need of the judicial protection that it sought.” Adarand

Constructors, Inc., 528 U.S. at 224 (emphasis added);

see also Speech First, Inc. v. Schlissel, 939 F.3d 756,

767-70 (6th Cir. 2019) (finding the challenge to a

university’s speech restriction not moot and stating

that “[i]f the discretion to effect the change lies with

one agency or individual, or there are no formal

processes required to effect the change, significantly

more than the bare solicitude itself is necessary to

show that the voluntary cessation moots the claim”).

Here, the Department of Health’s cessation of the

mask mandate was done unilaterally and not by a

formal legislative process. Respondents are free to

return to their old ways, and the public has a very

strong interest in having the legality of the challenged

restrictions settled. This challenge is not moot, and a

federal court should decide the important

constitutional claims presented.

22

II.

Petitioners Have Standing to Challenge the

Contact Tracing Program.

Similar to mootness, the justiciability doctrine of

standing was abused in this case to avoid reaching a

ruling on the merits of Petitioners’ challenge to the

contact tracing program.

“In essence the question of standing is whether the

litigant is entitled to have the court decide the merits

of the dispute or of particular issues.” Warth v. Seldin,

422 U.S. 490, 498 (1975). To establish standing, “[a]

plaintiff must allege personal injury fairly traceable to

the defendant’s allegedly unlawful conduct and likely

to be redressed by the requested relief.” Allen v.

Wright, 468 U.S. 737, 751 (1984). Petitioners meet this

standard.

As alleged in the First Amended Complaint:

The challenged contact tracing program is not

limited to COVID-19. Rather, Defendants have

put in place a large, government infrastructure

that can be utilized during any alleged health

“crisis.”

R-42, First Am. Compl. ¶ 149. This Orwellian program

exists today. Id. Consequently, there is nothing moot

about this challenge. The only question is whether

Petitioners, who were directly and personally harmed

by this program and remain harmed by it, have

standing to advance their challenge. That is, whether

Petitioners have suffered a redressable injury that is

fairly traceable to this program.

23

Identifying one redressable injury, trifle or

otherwise, is sufficient. Blunt v. Lower Merion Sch.

Dist., 767 F.3d 247, 278 (3d Cir. 2014) (“In the context

of a motion to dismiss, we have held that the [i]njuryin-fact element is not Mount Everest. The contours of

the injury-in-fact requirement, while not precisely

defined, are very generous, requiring only that

claimant allege [ ] some specific, identifiable trifle of

injury.”); Ross v. Bank of Am., N.A., 524 F.3d 217, 222

(2d Cir. 2008) (“Injury in fact is a low threshold . . . .”).

As alleged in the First Amended Complaint:

The contact tracing program has resulted in the

government ([Respondents]) creating a large

database of confidential, private, and, sensitive

information about private individuals. This

massive contact tracing database was subject to

a serious data breach, thereby compromising the

confidential, private, and sensitive information

of countless numbers of Pennsylvanians,

including [Petitioners].

R-42, First Am. Compl. ¶ 150; see also id. ¶ 123

(objecting to “being subjected to surveillance, having

their personal medical records reviewed by the

Department of Health, and being in the government’s

database”).

Moreover, Petitioners did not volunteer to be

ensnarled in the contact tracing program. There is

nothing voluntary about it. Pursuant to the program,

the government demanded the information from those

required to report, and the information was sent

without Petitioners’ consent. See, e.g., id. ¶¶ 120, 123

24

(alleging, inter alia, that a positive test “triggers”

contact tracing and that Petitioners object to being

forced into the program). There is no dispute that the

government demands cooperation with the contact

tracing program, and if the person refuses, they are

subject to penalty. See id. ¶¶ 114-18.

Additionally, following the district court’s denial of

Petitioners’ request for a preliminary injunction based

on the lower court’s opinion that it was too speculative

that any Petitioner would again be subjected to this

program, Petitioners were, in fact, subjected to it.

More specifically, the Redmans’ minor son was subject

to the contact tracing program when he returned to

school—one of the fears the Redmans had with

returning their children to school. Id. ¶¶ 124, 128, 134.

The allegations regarding the Redmans’ more recent

entanglement with the contact tracing program, which

further demonstrate the reasonableness of Petitioners’

fears about the program and its harmful chilling effect,

were not included in the original complaint nor were

they in Petitioners’ request for a preliminary injunction

as they occurred after these filings. They were,

however, included in the First Amended Complaint.

Id. ¶¶ 133-44.

Nonetheless, the Third Circuit

subsequently rejected Petitioners’ arguments.

“Among the rights protected by the First

Amendment is the right of individuals to associate to

further their personal beliefs. While the freedom of

association is not explicitly set out in the Amendment,

it has long been held to be implicit in the freedoms of

speech, assembly, and petition.” Healy v. James, 408

U.S. 169, 181 (1972) (citations omitted). “[I]mplicit in

25

the right to engage in activities protected by the First

Amendment” is “a corresponding right to associate with

others in pursuit of a wide variety of political, social,

economic, educational, religious, and cultural ends.”

Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984). As

recently stated by this Court:

When it comes to the freedom of association, the

protections of the First Amendment are

triggered not only by actual restrictions on an

individual’s ability to join with others to further

shared goals. The risk of a chilling effect on

association is enough, because First Amendment

freedoms need breathing space to survive.

Ams. for Prosperity Found. v. Bonta, 141 S. Ct. 2373,

2389 (2021) (internal quotations and citation omitted).

A cognizable injury includes the chilling effect on

the First Amendment right of association caused by

forced disclosures, such as those required by the

contact tracing program. See Salvation Army v. Dep’t

of Cmty. Affairs, 919 F.2d 183, 201 (3d Cir. 1990)

(acknowledging that “forced disclosure may chill

individuals from associating with a group”). The threat

to quarantine under the contact tracing program was

a penalty that hung over private associations like the

Sword of Damocles, thereby chilling these associations

and causing irreparable harm. Through the contact

tracing program, the government uses its authority to

inquire into and search out the private associations of

individuals. The breadth of government power under

this program forced Petitioners to keep their children

from attending public schools in person (the public

schools are required to follow the contact tracing

26

program and report contacts); to avoid seeking medical

treatment (medical facilities are required to report);

and to avoid businesses, restaurants, and other public

or social events that may keep rosters, lists, videos or

other ways to document persons who entered the

business establishment or attended the event. The

keeping of this contact information by businesses was

required by the Governor’s order. The program also

forced the Redmans to avoid worship services, and it

required the Parkers to maintain social distancing

among family members living in the same household.

R-42, First Am. Compl. ¶¶ 108-50.

Accordingly, the contact tracing program compelled

Petitioners to change their behavior to comply with (or,

more accurately, to avoid the sanctions of) this

government program that impermissibly burdened

their fundamental rights. See Thomas More Law Ctr.

v. Obama, 651 F.3d 529, 535-36 (6th Cir. 2011)

(changing behavior to comply with future mandate

requirements causes a present injury in fact); see also

Abbott Labs. v. Gardner, 387 U.S. 136, 154 (1967)

(stating that there was “no question that petitioners

have sufficient standing” to challenge a regulation that

would require “changes in their everyday business

practices”). Petitioners need not wait for additional,

future harm to occur to seek relief from a court.

Indeed, when a challenged restriction chills rights

protected by the First Amendment, the affected party

has standing to challenge that restriction.

See

Dombrowski v. Pfister, 380 U.S. 479, 486 (1965) (“The

threat of sanctions may deter . . . almost as potently as

the actual application of sanctions.”); Elrod, 427 U.S. at

373 (“The loss of First Amendment freedoms, for even

27

minimal periods of time, unquestionably constitutes

irreparable injury.”); G&V Lounge, Inc. v. Mich. Liquor

Control Comm’n, 23 F.3d 1071, 1076 (6th Cir. 1994)

(recognizing that “a chilling effect on one’s

constitutional rights constitutes a present injury in

fact”).

Petitioners have also been injured by the fact that

their personal information, including medical

information, is now part of the contact tracing database

as Petitioners have been the targets of this program,

and this database has been shown to be susceptible to

breaches of privacy. See R-42, First Am. Compl.

¶¶ 123, 150, 190. This harm could be remedied by

declaring the program unconstitutional and ordering

the government to expunge all of Petitioners’ private

information and records from the program. See, e.g.,

Smith v. Nixon, 807 F.2d 197, 204 (D.C. Cir. 1986)

(stating that “a court may order expungement of

records in an action brought . . . directly under the

Constitution, without violating the intricate statutory

provisions that purport to be the ‘exclusive’ means by

which [government records] may . . . be alienated or

destroyed”).

In sum, the harm caused by this program is not

“hypothetical”—it is real. And this harm is the natural

and probable consequence of the intrusive, unchecked

government program. Petitioners have standing to

advance this challenge.

28

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Robert Joseph Muise

Counsel of Record

American Freedom Law Center

P.O. Box 131098

Ann Arbor, Michigan 48113

(734) 635-3756

rmuise@americanfreedomlawcenter.org

David Yerushalmi

American Freedom Law Center

2020 Pennsylvania Avenue NW

Suite 189

Washington, D.C. 20006

(646) 262-0500

Counsel for Petitioners