Dawn Nowlin v. Jay Pritzker ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1479
DAWN NOWLIN, et al.,
Plaintiffs-Appellants,
v.
J. B. PRITZKER, Governor of Illinois,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 1:20-CV-1229 — James E. Shadid, Judge.
____________________
ARGUED DECEMBER 6, 2021— DECIDED MAY 20, 2022
____________________
Before RIPPLE, WOOD, and KIRSCH, Circuit Judges.
WOOD, Circuit Judge. When the COVID-19 pandemic hit
the United States, public authorities all over the country re-
sponded with emergency measures designed (they hoped) to
protect the public health. But those efforts were not uniformly
welcomed: countless people have sued in the hope of setting
them aside. The story in Illinois is typical. In an effort to curb
the spread of COVID-19, Governor J. B. Pritzker issued a se-
ries of executive orders. In the early months of the pandemic,
2 No. 21-1479
these orders required Illinois residents to shelter in place at
their residences, compelled “non-essential” businesses tem-
porarily to cease or reduce their operations, and prohibited
gatherings of more than 10 people (a limit later increased to
50 people). See, e.g., Exec. Orders Nos. 2020-32, 2020-38, 2020-
43, available at State of Illinois Coronavirus Response, Execu-
tive Orders, https://coronavirus.illinois.gov/
resources/executive-orders.html. Believing that these orders
violated numerous provisions of the U.S. Constitution, sev-
eral individual plaintiffs joined with some Illinois businesses
and sued the Governor in his official capacity.
After granting Plaintiffs one opportunity to amend their
complaint, the district court found that they lacked standing
to sue. The court also concluded that it would be futile to al-
low a second amendment because, even if it had erred about
the existence of a justiciable case or controversy, Plaintiffs did
not, and could not, state a claim upon which relief could be
granted. Accordingly, it dismissed Plaintiffs’ complaint with
prejudice and denied leave to file a second amended com-
plaint. See FED. R. CIV. P. 12(b)(1), 12(b)(6), 15(a)(2). Plaintiffs
now appeal.
With respect to five out of six counts, we too find that
Plaintiffs have not satisfied the criteria for standing to sue es-
tablished by Article III of the Constitution. The remaining
count attempts to state a claim under the Fifth Amendment’s
Takings Clause, as applied to the states through the Four-
teenth Amendment. The business plaintiffs may have
squeaked by the standing bar for that theory. Nonetheless, as
the district court found, they have not stated a claim upon
which relief can be granted. We therefore affirm the district
court’s dismissal of the amended complaint, although we
modify the dismissal to be without prejudice as to the first five
No. 21-1479 3
counts. See MAO-MSO Recovery II, LLC v. State Farm Mut.
Auto. Ins. Co., 935 F.3d 573, 577, 581–82 (7th Cir. 2019). Because
we see no abuse of discretion in the court’s denial of leave to
file a second amended complaint, we affirm that ruling as
well.
I
Plaintiffs’ complaint against the Governor alleges a cornu-
copia of constitutional violations under the First Amend-
ment’s Free Exercise, Free Speech, and Freedom of Assembly
Clauses (Counts I to III); the Fourteenth Amendment’s Due
Process and Equal Protection Clauses (Counts IV and V); and
the Fifth Amendment’s Takings Clause (Count VI). By way of
redress, they seek nominal and compensatory damages, fees
and costs, and injunctive and declaratory relief against en-
forcement of the challenged executive orders.
Governor Pritzker moved to dismiss the complaint under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). He ar-
gued that Plaintiffs failed to allege the type of concrete and
particularized injuries required to establish standing to sue in
a federal court. And in any event, he contended, Plaintiffs
failed to state claims upon which relief could be granted. The
district court granted the Governor’s motion, but it also
granted Plaintiffs leave to amend the complaint. In taking the
latter step, the court alerted Plaintiffs to the deficiencies it per-
ceived in the initial version. It noted, for example, that certain
claims appeared to be moot, while others were apparently
barred by sovereign immunity.
Plaintiffs tried to cure these deficiencies by adding a new,
though similarly vague, allegation, which they repeated
throughout their amended complaint, one time for each
4 No. 21-1479
individual plaintiff. See infra II.A (quoting and discussing the
allegation). The Governor moved to dismiss the amended
complaint, and the district court granted his request, dismiss-
ing this time with prejudice. It held that Plaintiffs failed ade-
quately to allege Article III standing; that their free-exercise
claims were moot because the Governor’s orders have ex-
empted the free exercise of religion since May 28, 2020, almost
a month before Plaintiffs filed suit; and that their claims for
monetary damages could not proceed because they had sued
the Governor in his official capacity. The court also refused to
allow Plaintiffs to amend a second time, reasoning that this
would be a futile gesture.
II
A
We evaluate de novo both a dismissal for lack of Article III
standing, Spuhler v. State Collection Serv., Inc., 983 F.3d 282, 285
(7th Cir. 2020), and one for failure to state a claim upon which
relief can be granted, United Central Bank v. Davenport Estate
LLC, 815 F.3d 315, 318 (7th Cir. 2016).
Because Article III standing is jurisdictional, we begin
(and, as it happens, largely end) there. Article III of the U.S.
Constitution limits the jurisdiction of the federal courts to
“cases or controversies.” U.S. Const. art. III. To ensure that
this limitation is respected, a plaintiff must show (1) an “in-
jury in fact,” (2) a sufficient “causal connection between the
injury and the conduct complained of,” and (3) a
“likel[ihood]” that the injury will be “redressed by a favorable
decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61
(1992).
No. 21-1479 5
At issue here is the injury-in-fact requirement. An injury-
in-fact must be “‘concrete and particularized’ and ‘actual or
imminent, not conjectural or hypothetical.’” Spokeo, Inc. v.
Robins, 578 U.S. 330, 339 (2016) (citation omitted). For an in-
jury to be “particularized,” it “must affect the plaintiff in a
personal and individual way.” Id. (internal quotation marks
omitted). To be “concrete,” the asserted injury must be “‘real,’
and not ‘abstract.’” Id. at 340 (citations omitted).
With respect to Counts I through V, we agree with the dis-
trict court that Plaintiffs failed to plead concrete and particu-
larized injuries-in-fact. Their initial complaint contained only
vague allegations such as this: “Plaintiffs were subjected to se-
vere restrictions on their religious liberty between March 20,
2020 and May 28, 2020”; “[b]etween March 20, 2020, and the
present, these orders restricted Plaintiffs[] from their constitu-
tional right to the freedom of speech and the freedom to
peaceably assemble”; “the Executive Orders … mandate that
Plaintiffs stay at home, impinging on their fundamental
right[] to … travel”; and “Defendant Pritzker's executive or-
ders … discriminate against the Plaintiffs’ freedom of speech,
and assembly … providing favored status to other political,
atheist, agnostic, socialist, and communist protesters includ-
ing but not limited to Antifa.”
Version 1 of the complaint did not contain a single allega-
tion that was specific to a particular plaintiff or that described
a concrete harm. It did not, for example, allege anything about
any given plaintiff’s inability to attend a specified religious
ceremony, or to express a viewpoint at a certain time, or to
gather with others on a specific occasion. Far from being con-
crete and particular, Plaintiffs’ allegations were abstract and
general.
6 No. 21-1479
When presented with the opportunity to cure these defi-
ciencies, Plaintiffs introduced only one new allegation, which
they repeated twelve times in their amended complaint (once
for each individual plaintiff):
The violations of the defendant discussed herein under
the First, Fifth and Fourteenth Amendments have per-
sonally and individually affected [the specified plain-
tiff] in that she has lived in fear for her safety from re-
prisals and prosecution and fears that her inalienable
rights have been removed with no end in sight.
This allegation is no less generalized or abstract than the
allegations in the initial complaint. Such a bare assertion of
harm—unsupported by any concrete details and tethered to
no specific plaintiff—does not satisfy the constitutional re-
quirement of a concrete and particularized injury-in-fact.
With respect to Counts I through V, Plaintiffs failed to plead
Article III standing.
Count VI, which pertains only to the Businesses, requires
a slightly more nuanced analysis. Reading the amended com-
plaint generously, we see a glimmer of concreteness for the
Takings claim. The Businesses alleged, for example, that they
“stand on the precipice of economic collapse as a direct result
of the actions taken by Governor Pritzker.” Their allegation of
financial injury, supposedly brought about by the Governor’s
orders to cease operations, may squeak by the injury-in-fact
requirement. That is as far as the Businesses can go, however,
as this just moves us to the question whether they have stated
a Takings claim for purposes of Rule 12(b)(6). 1 In order to
1 Because the Businesses seek declaratory relief in addition to dam-
ages, we need not reach the question whether sovereign immunity bars
No. 21-1479 7
answer that question, we must ascertain whether they
pleaded “sufficient factual matter” to state a claim for relief
that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007)).
“The Takings Clause of the Fifth Amendment, made appli-
cable to the States through the Fourteenth, provides that pri-
vate property shall not ‘be taken for public use, without just
compensation.’” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 536
(2005) (internal citations omitted). The quintessential taking is
“a direct government appropriation or physical invasion of
private property.” Id. at 537; see also Loretto v. Teleprompter
Manhattan CATV Corp., 458 U.S. 419, 427 (1982). But there is
also another variety, which arises where “government regu-
lation of private property [is] so onerous that its effect is tan-
tamount to a direct appropriation.” Lingle, 544 U.S. at 537.
Such regulatory takings also fall within the scope of the Fifth
Amendment. See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393,
415 (1922) (“[I]f regulation goes too far it will be recognized
as a taking.”).
The Businesses do not allege any physical invasion or di-
rect appropriation of their property. Rather, they contend that
the restrictions imposed on them by the Governor’s orders
constituted regulatory takings. To state a regulatory-taking
claim, they needed plausibly to allege that the Governor’s or-
ders deprived them of all or a significant part of the econom-
ically beneficial use of the property. Lucas v. S.C. Coastal
their Takings claim. Under the doctrine of constitutional avoidance, we
proceed only with a Rule 12(b)(6) analysis, which is necessary because
prospective relief is sought and sufficient for the reasons discussed above.
8 No. 21-1479
Council, 505 U.S. 1003, 1016–17 & n.7 (1992); see also Penn Cen-
tral Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978)
(whether a regulatory taking has occurred depends on several
factors, including “[t]he economic impact of the regulation on
the claimant[,] … the extent to which the regulation has inter-
fered with distinct investment-backed expectations,” and the
“character of the governmental action”).
Our examination of the amended complaint convinces us
that Plaintiffs have not met the demanding test for alleging a
regulatory taking. In keeping with their general approach,
Plaintiffs allege broadly that “[t]he Executive Orders … de-
prived Plaintiff Businesses … of all economically beneficial
use of their property” and that “the Defendant did not pro-
vide compensation for those who suffered substantial—and
perhaps total—diminution of value in their property interest
as a result.”
“While legal conclusions can provide the complaint’s
framework, they must be supported by factual allegations.”
Iqbal, 556 U.S. at 679. The Businesses have asserted legal con-
clusions, but they have not supported those conclusions with
factual allegations that plausibly suggest that the Governor’s
orders constituted regulatory takings. How much money did
they lose? How long was each Business closed? Did one or
more of them use its property in other, albeit less lucrative,
ways? We don’t know. Allegations such as “Plaintiff Busi-
nesses were unable to open for business[]” and “Plaintiffs
stand on the precipice of economic collapse” express conclu-
sions, not facts that would permit an inference of the total or
near-total deprivation of use or value required by Lucas and
Penn Central.
No. 21-1479 9
As we recently noted in a different but related context,
while the preferred or intended use of many business proper-
ties was limited or even prohibited by the Governor’s COVID
orders, those orders did not deprive property owners of all
uses to which their premises might be put. See Sandy Point
Dental, P.C., et al. v. Cincinnati Ins. Co., 20 F.4th 327, 335 (7th
Cir. 2021). Like the plaintiffs in Sandy Point, the Businesses
were free to make other uses of their properties consistent
with the closure orders. See id. That such uses would not have
been their preferred or most profitable uses does not mean
that the closure orders effected a regulatory taking. This com-
plaint fails to move the needle from the possible to the plau-
sible with respect to the alleged Takings claim. It thus fails to
state a claim upon which relief can be granted. See FED. R. CIV.
P. 12(b)(6).
B
The district court denied Plaintiffs’ request to amend the
complaint a second time on grounds of futility. As the Gover-
nor notes, ordinarily we review a district court’s denial of
leave to amend a complaint for an abuse of discretion. Run-
nion v. Girl Scouts of Greater Chi. & Nw. Ind., 786 F.3d 510, 524
(7th Cir. 2015). Nonetheless, “when the basis for denial is fu-
tility, we apply the legal sufficiency standard of Rule 12(b)(6)
to determine whether the proposed amended complaint fails
to state a claim. Accordingly, our review for abuse of discre-
tion of futility-based denials includes de novo review of the le-
gal basis for the futility.” Id. (citations omitted).
For purposes of assessing the court’s decision to refuse
further amendments, we take a quick look at the question
whether Plaintiffs had any prospect of stating a claim under
any of the counts. The answer, as we briefly explain, is no.
10 No. 21-1479
With respect to the free-exercise claim (Count I), we already
have considered similar challenges to the Governor’s orders
and concluded in a preliminary ruling that they pass consti-
tutional muster. See Elim Romanian Pentecostal Church v. Pritz-
ker, 962 F.3d 341, 346–47 (7th Cir. 2020). We later disposed of
Elim on the ground that the passage of time had drained the
litigation of all impact, even if it was not technically moot. The
same is true here. Similarly, the free-speech and free-assem-
bly claims (Counts II and III) fail because the Governor’s or-
ders concern non-expressive conduct, not speech. See Morgan
v. White, 964 F.3d 649, 652 (7th Cir. 2020) (per curiam); see also
De Jonge v. State of Oregon, 299 U.S. 353, 364 (1937) (“The right
of peaceable assembly is a right cognate to th[at] of free
speech ... .”); Kuchenreuther v. City of Milwaukee, 221 F.3d 967,
972 n.16 (7th Cir. 2000) (“We evaluate free speech and free as-
sembly claims under the same analysis.”).
The substantive-due-process claim asserted in Count IV
appears to be nothing more than a catch-all used to reiterate
grievances already captured by other theories. To the extent
that we can discern its substance, it is that “Plaintiffs’ rights to
freedom of speech, assembly, and travel are fundamental
rights protected by the U.S. Constitution,” and that the Gov-
ernor’s orders have allegedly encroached on those rights. But
repackaging those theories under the guise of a due-process
claim does not make them more compelling. And the fleeting
allusions to travel, seeming afterthoughts thrown in for good
measure, fare no better.
Plaintiffs also recycle their viewpoint-discrimination, free-
speech argument as an equal-protection challenge in Count V,
alleging that “[t]he Defendant is picking Constitutional win-
ners and losers by allowing groups of people with separate or
No. 21-1479 11
differing political and social agendas and view-points includ-
ing the radical atheist group, Antifa, to gather in large groups,
protest without restrictions and government protection.” To
the extent that this is distinct from the free-speech claim we
have already discussed, it also fails. We observed in Illinois
Republican Party v. Pritzker that the text of the executive orders
did not exempt certain political groups from the order limit-
ing the size of gatherings and thus did not facially discrimi-
nate. 973 F.3d 760, 770 (7th Cir. 2020). Although we did not
“rule out the possibility that someone might be able to prove”
discriminatory enforcement of the orders, we held that “the
record … f[ell] short.” Id. We agree with the district court that
Plaintiffs’ allegations in the present case also fall short. Fi-
nally, we already have explained why Plaintiffs’ Takings the-
ory in Count VI does not survive a Rule 12(b)(6) analysis.
Although courts should “freely give leave [to amend]
when justice so requires,” the district court here granted
Plaintiffs one opportunity to amend despite a highly “un-
promising … initial pleading.” Runnion, 786 F.3d at 519. It was
under no obligation to grant Plaintiffs another, and it was not
an abuse of discretion to refuse to do so when Plaintiffs
showed no indication that they were willing or able to cure
the deficiencies of their complaint.
III
We AFFIRM the district court’s denial of Plaintiffs’ motion
to amend their complaint for a second time. We also AFFIRM
the dismissal of Counts I through V, but we modify the dis-
missal to be without prejudice, because it rests on a lack of
Article III standing. Finally, we AFFIRM the dismissal with
prejudice of Count VI.