NOT RECOMMENDED FOR PUBLICATION File Name: 22a0030n.06
No. 2 1

- 2602 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
KENNETH A. THOMPSON; DARLENE DOWLING THOMPSON; MARK L. DE YOUNG; FREDRICK D. GULICK, SR.; ANN E. GULICK; ROBERT L. JEFFORDS; KENNETH R. SPIEGEL; SHAWN M. JACKSON; DAVID ISAAC; JULIE ISAAC; JEFFREY S. PRITCHARD; HAPPY LAWN, dba Linda F. Jackson; MELVIN L. JOHNS; THOMAS EARL DUN N; LINDA L. DUNN; KRYSTYNA JOHNS; CHARISE SPINK, dba His And Her Storage; ROGER E. RAYCRAFT, JR.; ELIZABETH L. RAYCRAFT; GAYLE L. GUTCHAK; RORY C. GUTCHAK; WILLIAM E. NORRIS; IVAN MORSE; PAUL C. LESLIE, Pastor; DEANNA K. LESLIE; LINDA LEE TARVER, Dr.; TARV ER CONSULTING; TRACY BOLLE; THE EVENING POST, LLC; HAPPY LAW; STEVE A. MCINTOSH; ELOISE A. MCINTOSH; RODNEY D. FATER; VICKY L. FATER; REX S. COOPER; VICKIE L. COOPER; DAVID A. ARNDT; DORI S S. ARNDT; JACK L. ELLIOTT; TIMOTHY R. WALTERS; COLTON R. WALTERS; W ILLIAM SCOTT; DEBORA SCOTT, Plaintiffs

- Appellants ,

v. GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan; GARLIN GILCHRIST, II, Lieutenant Governor, in his official capacity as Lieutenant Governor of the State of Michig an and as President of the Senate; ROBERT GORDON, in his official capacity as Director Michigan Department of Health and Human Services; DANA NESSEL, in her official capacity as Michigan Attorney General; JOSEPH GASPER, in his official capacity as Director of the Michigan State Police; JONEIGH S. KHALDUN, in her official capacity as Chief Medical Executive and Chief Deputy Director for Health, Defendants

- Appellees

. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL F ROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

B efore : COLE , LARSEN , and MURPHY, Circuit Judges.No. 2 1

- 2602 , Thompson, et al. v. Whitmer , et al.

2 MURPHY, Circuit Judge. For several months a fter the start o f the COVID

- 19 pandemic, Michigan ’s governor issued dozens of executive orders that closed Michigan businesses and directed Michigan residents to stay home. A large group of residents sued to challenge these orders. The residents ’ complaint allege s in great de tail their theories why the orders violate d many constitutional provisions. Yet the complaint allege s no detail about the residents themselves ; it
says only that they are “domiciled” in Michigan and “conducting business

. ” Compl., R.1, PageID
11. It is n ot clear that these conclusory allegations sufficed to plead the ir standing to challenge
any executive order. Yet the governor has now rescinded the orders , and the Michigan Supreme Court has found that she lacked the state

- law authority to issue them. So the residents’ requests for declaratory and injunctive relief are moot. And while the y also brought a damages claim, they chose to sue the state officials only in their official (not personal) capacities

. The state’s s overeig n immunity thus bars this damages claim

. In short, w e affirm the dismissal of the complaint

. I On March 10, 2020, the Michigan governor declared a state of emergency in Michigan after officials identified two presum ed cases of COVID

- 19. Over the next few months , the
governor signed a series of executive orders limiting what Michiganders could do

. The orders closed schools, prohibited people from congregating in large groups, and shuttered restaurants, bars, gyms, and other places of public accommodation. The governor also barred residents from leaving their homes except for permitted purposes

. Th is general “stay

- at

- home ” order remained in place , in one form or another, until June 1, 2020, when the g overnor declared that “Michiganders [were] no longer re quired to stay home.” Order 2020

- 110, R.11

- 17, PageID 283. During this time, th e governor asserted that she had the authority to issue these orders under both the EmergencyNo. 2 1

- 2602 , Thompson, et al. v. Whitmer , et al.

3 Management Act of 1976 , see Mich. Comp. Laws § 30.403(3)

– (4) , and the Emergency P owers of the Govern or Act of 1945 , see id. § 10.31(1)

. About t wo weeks before the governor lifted t he stay

- at

- home mandate , a large group of Michigan residents ( whom we will call the “ residents ”) sued her and five other state actors in their official capacities. The residents alleg ed that the executive orders violated the U.S. C onstitution and the Racketeer Influenced and Corrupt Organizations Act (RICO) , 18 U.S.C. § § 196 1

– 19 68

. The y brought their constitutional claims under 42 U.S.C. § 1983 and their RICO claims under 18 U.S.C. § 1964(c). T hey sought declaratory and injunctive relief and some $ 7.5 million in damages

. Th e officials moved to dismiss the residents’ complaint. Before the district court could rule on their motion, the Michigan Supreme Court issued a relevant decision in a different case . H ealthcare providers had filed a separate federal suit challenging the executive orders that barred them from offering some healthcare services. See In re Certified Quest ions , 958 N.W.2d 1, 7 (Mich. 2020). T he district court i n th at suit certified questions to the Michigan Supreme Court about the validity of the executive orders under the two relevant state statutes

. See Midwest Inst. of Health, PLLC v. Whitmer , 2020 WL 3248785, at *1 (W.D. Mich. June 16, 2020). The Michigan Supreme Court held that the governor ’ s executive orders were invalid under state law

. Certified Questions , 958 N.W.2d at 9

– 25. It interpreted the Emergency Management Act to bar the governor fro m issu ing emergency executive orders that last longer than 28 days without legislative approval.
I d. at 9

– 11. And it held that the Emergency Powers of the Governor Act unconstitutional ly delegat ed legislative power to the governor under the Michigan Cons titution

. I d. at 16

– 24 ; see House of Representatives v. Governor , 949 N.W.2d 276, 276 (Mich. 2020). Back in this case, t h e district court found that these state

- law development s affected the residents’ federal claims against the governor’s executive orders

. It concluded that the governor’sNo. 2 1

- 2602 , Thompson, et al. v. Whitmer , et al.

4 rescission of those orders

— together with the Michigan Supreme Court’s decision finding them invalid

— mooted the residents’ request s for declaratory and injunctive relief

. See Thomp son v. Whitmer , 2021 WL 2118281, at *1 (W.D. Mich. Feb. 10, 2021). In addition, a lthough the residents sought damages against the state officers, the court held that the state’s sovereign immunity barred th e s e damages claim s . Id. The residents moved for relief from judgment under Federal Rule of Civil Procedure 60(b), alleging that the district court had been biased . The court denied the motion

. Thompson v. Whitmer , 2021 WL 2451688, at *1 (W.D. Mich. May 24, 2021)

. T his appeal followed. We review the court’s grant of the motion to dismiss de novo. See Ass’n of Am. Physicians & Surgeons v. FDA , 13 F.4th 531, 5 35 (6th Cir. 2021).
II The residents ask ed the district court to issue a declaration that the governor’s exec utive orders violate d federal law , an injunction against enforcement of the orders in the future , and damages for injurie s that the orders caused in the past. Bu t the ir claims for declaratory and injunctive relief are moot , and the ir claim for monetary re lief fails on sovereign

- immunity grounds

. A. Declaratory and Injunctive Relief
T he Constitution grants the “judicial Power” to federal courts only over “Cases” or “Controversies.” U.S. Const. art. III, § 2. This text does not allow courts t o interven e in the operations of a state government simply because concerned residents believe that the government ha s acted unlawfully. See Ass’n of Am. Physicians , 13 F.4th at 536

. Under our separation of
powers, c ourts instead can assess the legality of government conduct only when deciding a “case” of the kind that the judicial branch has historically resolved

. See Uzuegbunam v. Preczewski , 141 S. Ct. 792, 798 (2021); Steel Co. v. Citizens for a Better Env ’ t , 523 U.S. 83, 102 (1998).No. 2 1

- 2602 , Thompson, et al. v. Whitmer , et al.

5 The Supreme Court has established various rules that litigant s must meet to make out a traditional (and hence justiciable) “case

. ” Two are relevant here. P laintiff s m ust first show that the y ha ve “ standing

. ” See Steel Co. , 523 U.S. at 102

. T o do so, they must allege that they have suffered (or are at imminent risk of suffering) a n injury t hat was (or will be) caused by the defendant ’ s conduct and that can be redress ed by the requested relief. See id. at 102

– 03. The second ( “mootness” ) rule ensures that these injury, causation, and redressability requirement s continue to be met throughout the litigation

. See United States v. Sanchez

- Gomez , 138 S. Ct. 1532, 1537 (2018) . If a defendant proves that later events have eliminate d a plaintiff’s injury or ma d e it impossible to grant relief, the case has become “ moot ” and a court cannot address its merits. See Friends of the Earth, Inc. v. Laidlaw Env’t Serv s . (TOC), Inc. , 528 U.S. 167, 189

– 91 (2000)

. These standing and mootness rules must be met for each form of relief that a plaintiff seek s . See DaimlerChrysler Corp. v. Cuno , 547 U.S. 332, 352

– 53 (2006)

. So, for example , a claim that

a police officer harmed a plaintiff in the past (say, through an unconstitutional chokehold) may give the plaintiff standing to seek the traditional relief available for past harm s : monetary damages (even if only nominal). See City of Los Angeles v. Lyons , 461 U. S. 95, 109 (1983) ; see also Uzuegbunam , 141 S. Ct. at 797

– 800. But past injury alone will not give the plaintiff standing to seek a forward

- looking injunction against the officer’s future conduct unless the same plaintiff identifies an imminent risk of incurring the same injury

. See Lyons , 461 U.S. at 111

– 12

. In other words , a request for prospective relief must be accompanied by an allegation of prospective injury.
E ven if a plaintiff has standing to seek this forward

- looking relief at the start , moreover, a defendant’s decision to stop engaging in the injurious conduct can moot a claim for th e relief during the litigation

. S ee Already, LLC v. Nike, Inc. , 568 U.S. 85, 91

– 92 (2013) ; Diffenderfer v. Cent. Baptist Church of Mia

. , Inc. , 404 U.S. 412, 414 (1972) (per curiam). A legislature mightNo. 2 1

- 2602 , Thompson, et al. v. Whitmer , et al.

6 repeal the law that regulate d the plaintiff , and that change can sometimes moot a request for an injuncti on against the law’s enforcement. See Diffenderfer , 404 U.S. at 414 ; Lyda v. City of Detroit ( In re City of Detroit ), 841 F.3d 684, 693 (6th Cir. 2016) ; see generally 13C Charles A. Wright et al., Federal Practice and Procedure § 3533. 6 , at 259

– 319 (3d ed. 2008). Or an executive officer might amend the policy that covered the plaintiff , which likewise can sometimes moot a request for an injuncti on against th is policy. See Hanrahan v. Mohr , 905 F.3d 947, 962

– 63 (6th Cir. 2018) ; Mosley v. Hairston , 920 F.2d 409, 414

– 15 (6th Cir. 1990); see generally 13C Wright et al., supra , § 3533.7, at 319

– 75. That said, defendant s bear a “formidable burden ” when they claim that a case has become
moot because of their change d ways . Already , 568 U.S. at 91 (quoti ng Laidlaw , 528 U.S. at 1 90 )

. They must show both that they are not reasonably likely to engage in the challenged conduct again

a n d that the change (if it lasts) would eliminate the plaintiff’s claimed injury

. See Thomas v. City of Memphis , 996 F.3d 318, 324 (6th Cir. 2021)

. Courts often find these standards met when some external factor provide d the motivation for a defendant’s change. We , for example, have held that an executive officer’s decision to amend a regulation mooted a challenge to the re gulation because the amendment sprang from Congress’s decision to change the background law. See Mosley , 920 F.2d at 41 4

– 1 5. And the Supreme Court has held that a federal constitutional challenge to the denial of state

- law benefits was mooted by a stat e court ’s decision interpret ing the state law to make the plaintiffs eligible for the benefits. See Geduldig v. Aiello , 417 U.S. 484, 49 1

– 9 2 (1974);

see also Bethell v. Flori da , 741 F.2d 1341, 1342 (11th Cir. 1984) (per curiam)

. These rules doom the residents’ request s for declaratory and injunctive relief. At the outset, it is far from clear that the residents even pleaded their standing to seek this relief . The y needed
to plausibly allege that they faced an imminent risk of suffering a future injury from each of theNo. 2 1

- 2602 , Thompson, et al. v. Whitmer , et al.

7 executive order s that they challenged

. See Lyons , 461 U.S. at 111

– 12 ; Ass’n of Am. Physicians , 13 F.4th at 543. Their complaint spends pages asserting abstract ways in which the executive orders violate the Constitution (ranging from the denial of the free exercise of religion to the impairment of the obligation of contracts). But the complaint lacks the most basic of factual allegations about the residents themselves or how these orders injured them. The complaint does not allege that any resident planned to (but could not) attend a religious service because of an executive order

. Cf. Maryvill e Baptist Church, Inc. v. Beshear , 977 F.3d 561, 563

– 64 (6th Cir. 2020) (per curiam). Nor does it allege that a resident operated a specific business (like a gym) closed by an order. Cf. League of Indep. Fitness Facilities & Trainers, Inc. v. Whitmer , 84 3
F. App’x 707, 708

– 09 (6th Cir. 2021). And it does not allege that the residents planned to gather in groups larger than those allowed by an order. Cf. Ramsek v. Beshear , 989 F.3d 494, 496

– 97 (6th Cir. 2021). Rather, t he complaint’s only plaintiff

- spec ific allegations assert that the residents are “domiciled within ” Michigan and that they “stand in their capacity as Michiganders, who[] are conducting business.” Compl., R.1, PageID 11. That is it. At most, these allegations might suffice to plead an in jury from the general stay

- at

- home order. Yet any challenge to that order has been mooted by later events. T he governor rescinded the stay

- at

- home order (along with the other orders ) a few weeks after this suit began

. So the residents lack a live interest in obtaining declaratory or injunctive relief against this now inoperable order. See Hanrahan , 905 F.3d at 960

– 61

. Admittedly, whether the governor’s voluntary decision to rescind t he order by itself

s uffice d to prove that she was not reasonably likely to reissue a similar order might have raised a difficult mootness question

. Compare Roman Cath

. Diocese of Brooklyn v. Cuomo , 141 S. Ct. 63,
68

– 69 (2020) (per curiam) , with Ramsek , 989 F.3d at 499

– 500; Pleasant View Baptist Church v.No. 2 1

- 2602 , Thompson, et al. v. Whitmer , et al.

8 Beshear , 838 F. App’x 936, 938

– 39 (6th Cir. 2020) (order)

. But a separate factor leaves no doubt that the governor’s decision to rescind the stay

- at

- home order has mooted the residents’ request for prospective relief agains t the state officials

. The Michigan Supreme Court has since ruled that the governor lacked the authority to issue any of the executive order s under Michigan law

— which makes it “absolutely clear the allegedly wrongful behavior could not reasonably be expec ted to

recur. ” Laidlaw , 528 U.S. at 190; s ee Certified Questions , 958 N.W.2d at 31 ; cf. Bethell , 741 F.2d
at 1342. For th at behavior to recur , the governor would have to disregard the Michigan Supreme Court’s interpretation of state law. We would not re asonably expect that result.
We have already made this point in a similar case. A trade organization for fitness facilities had brought a challenge to the governor’s executive orders regulat ing gyms. See League of Indep. Fitness Facilities , 843 F. App’x at 708

– 09. Al though this organization had standing to sue , we held that its challenge was mooted by the combined effect of the governor ’s decision resci nd ing the executive orders and the Michigan Supreme Court’s decision find ing them invalid

. See i d. at 709

– 10. The request for prospective relief in this case warrants the same result

. In response , the residents argue that a claim for nominal damages can save a case from a mootness finding even if a defendant changes its injurious policies during the litigation. See Uzuegbunam , 141 S. Ct. at 797

– 800. True enough. But t his argument conflates the residents’
claims for injunctive and declaratory relief with their case as a whole. Unlike the plaintiffs in Uzuegbunam , t he residents here did not need to rel y on a nominal

- damages theory because they alleged actual damages. Their damages claim for past injuries is not moot. See Lyons , 461 U.S.
at 105, 111. But th e residents must independently meet the se standing and mootness rules f o r each remedy

. See Cuno , 547 U.S. at 352

– 53 . And they offer no basis to find that their distinct claims for declaratory and injunctive relief r emain live. So th e se other claims are moot.No. 2 1

- 2602 , Thompson, et al. v. Whitmer , et al.

9 B. Damages This mootness finding leaves the residents ’ damages request for the past injuries that the y allegedly suffered from the prior operation of the executive order s . As noted, it is not clear that the residents’ factual allegations ( that they live in Michigan ) pla usibly pleaded an injury . But we need not decide th at point. Their request for damages fails on sovereign

- immunity grounds

. As the Elevent h Amendment illustrates , states are generally entitled to sovereign immunity from suits brought by private parties s eeking damages in federal court

. See Seminole Tribe of Fla. v. Florida , 517 U.S. 44, 54 (1996)

. This immunity also reaches suits against state offic er s when a judgment would put the state itself on the hook for the award. See Edelman v. Jordan , 415 U.S. 651, 663 (1974)

. Still, Congress may abrogate the states’ sovereign immunity and make the m subject to suit if it pass es the relevant l aw under certain constitutional provisions (but not others)

. Congress, for example, may abrogate the states’ sovere ign immunity under its power to enforce
t he Fourteenth Amendment , but not its power to regulate interstate commerce

. S ee Seminole Tribe , 517 U.S. at 59

– 72

. Yet e ven when it passes a law under a constitutional provision that gives it this
power , Congress must speak clear ly if it intends to subject the states to suit. Courts will not interpret ambiguous laws to abrogate that immunity

. Se e Raygor v. Regents of Univ. of Minn. , 534 U.S. 533, 541

– 4 3 (2002) ; Will v. Mich. Dep’t of State Police , 491 U.S. 58, 6 5 (1989)

. T his sovereign

- immunity framework requires us t o consider the specific laws under which the residents have sued the state offic er s. They allege constitutional claims against the officers under 42 U.S.C. § 1983 and a RICO claim against them under 18 U.S.C. § 1964(c). Neither cause of action can overcome Michigan’s sovereign immunity. Start with the constitutional claims under § 1983. T he Supreme Court has long interpreted § 1983 not to abrogate the states’ sovereign immunity

. See Quern v. Jordan , 440 U.S. 332, 340

–No. 2 1

- 2602 , Thompson, et al. v. Whitmer , et al.

10 41 (1979) ; Hutsell v. Sayre , 5 F.3d 996, 999 (6th Cir. 1993)

. Indeed , the Court has made clear that § 1983 does not even cover the states as a statutory matter. The statute permits a plaintiff to sue a “person ,” 42 U.S.C. § 1983 , a nd t he Court has interpreted the word “person” to exclude the state s ,

s ee Will , 491 U.S. at 63

– 70. C ritically, moreover, its interpretation of the word “person” also exclude s state officers when sued for damages in their official capacities

. See id. at 71. T h e Court reasoned that such a suit is “against the official’s office” and so “no different from a suit against the State itself.” Id. ; s ee Kentucky v. Graham , 473 U.S. 159, 165

– 68 (1985).
W e must add two caveats to th is § 1983 test

. Caveat O ne: C ourts routinely entertain damages claims against state officers under § 1983 for the violation of constitutional rights

. Why? In those claims, the plaintiffs sued the officers in their personal capacities and thus may legally seek money only from the officers’ bank accounts (even if many states opt to reimburse officers as a discretionary matter)

. See Graham , 473 U.S. at 166. Be cause the real parties in interest are the offic ers accused of violating federal law , t he actions f all within § 1983 and do not implicate a
state ’s sovereign immunity. See Hafer v. Melo , 502 U.S. 21, 27 (1991)

. Caveat Two: Courts routinely entertain su its against state officers even in their official capacities when the plaintiff seeks prospective inj unctive relief

. See Ex Parte Young , 209 U.S. 123, 150

– 56 (1908). Why? These suits are likewise not treated “as actions against the State.” Graham , 473 U.S. at 167 n.14; see Will , 491 U.S. at 71 n.10. ( That is why sovereign immunity would not have barr ed the residents’ claims for injunctive relief if those claims were not moot.) Given the residents’ p leading choices in this case , though, sovereign immunity and the relevant § 1983 caselaw foreclose the ir damages claims for the alleged constitutional violati ons. The residents unambiguously decided to sue each of the six state actors in their official capacities, not their personal capacities. Their complaint even emphasize d this point. The allegationsNo. 2 1

- 2602 , Thompson, et al. v. Whitmer , et al.

11 identifying the governor, for exa mple, state that she “is being sued in her official capacity only .” Compl., R.1, PageID 11 (emphasis added). The complaint makes identical statements for the other state officers. Id. , PageID 11

– 13. Thus, the State of Michigan is t he real party in inte rest, and the residents cannot sue it under § 1983. See Will , 491 U.S. at 7 1

. The residents’ damages claim under RICO fares no better. Congress enacted RICO under its authority to regulate interstate commerce. See U.S. Const. art. I, § 8; Waucaush v. Un ited
States , 380 F.3d 251, 255 (6th Cir. 2004). Yet Congress lacks the constitutional power to abrogate the states’ sovereign immunity under the Commerce Clause. See Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Savings Bank , 527 U.S. 627, 635

– 36 (1999). And nothing in RICO shows a clear indication that Congress intended to waive the states’ sovereign immunity anyway

. See 18 U.S.C. § 1964(c). So we have previously applied sovereign immunity to bar RICO claims asserted against state officials in their official capacities

. See Chaz Constr., LLC v. Codell , 137
F. App’x 735, 743 (6th Cir. 2005); see also Bair v. Krug , 853 F.2d 672, 673

– 75 (9th Cir. 1988). In response, t he residents seem to argue that their claims for damages do not trigger Michigan’s sovereign immunity because they are “ equitable .” They fail to explain why we should consider these claims equitable. Regardless, sovereign immunity covers retroactive claims for money against the state e ven when they are “labeled ‘equitable’ in nature.” Edelman , 415 U.S. at
66 6

. So t he residents’ claims cannot be saved by clever pleading

. The residents also reassert their claim

— raised for the first time in a Rule 60(b) motion

— that the district court harbored bias against them. Because t his claim made its initial appearance in a motion to reopen the judgment , we review it for an abuse of discretion. See Williams v.
Browman , 981 F.2d 901, 903 (6th Cir. 1992) (per curiam)

. T he residents point to no evidence of bias other than the court ’s decision to rul e against them

. Yet i t is black

- letter law that adverseNo. 2 1

- 2602 , Thompson, et al. v. Whitmer , et al.

12 rulings against a party alone can almost never establish bias. See Liteky v. United States , 510 U.S. 5 40, 555 (1994) ; Burley v. Gagacki , 834 F.3d 606, 616 (6th Cir. 2016). And n othing the court said in its ruling rev e aled the “ high degree of favoritism or antagonism ” that is required. Liteky , 510 U.S. at 555. To the contrary , the court dispassionately got the law right. We affirm.