NOT RECOMMENDED FOR PUBLICATION

File Name: 21a0364n.06

Case No. 21-1019

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

LYN ALLEN and CINCINNATUS, LLC,

Plaintiffs-Appellants,

v.

GRETCHEN WHITMER, in her personal 

capacity,

Defendant-Appellee.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE EASTERN DISTRICT OF 

MICHIGAN

BEFORE: BATCHELDER, WHITE, and DONALD; Circuit Judges.

BERNICE BOUIE DONALD, Circuit Judge. In April 2020, Michigan Governor 

Gretchen Whitmer (“Whitmer”) implemented a temporary executive order that, among other 

things, restricted travel between residences within the State of Michigan. After Whitmer rescinded 

the order, Plaintiffs Lyn Allen and Cincinnatus, LLC (collectively, “Plaintiffs”) sued Whitmer in 

her individual capacity, seeking nominal damages and declaratory relief based on their claims that 

the travel restriction violated their substantive due process and equal protection rights under both 

the United States Constitution and the Michigan Constitution. The district court dismissed 

Plaintiffs’ claims on jurisdictional grounds. For the following reasons, we AFFIRM the district 

court.
Case No. 21-1019, Allen v. Whitmer

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I.

On March 10, 2020, Whitmer declared a State of Emergency under the Michigan 

Constitution in response to the COVID-19 outbreak in her state. On April 9, 2020, Whitmer issued 

Executive Order 2020-42 (“EO 2020-42”), which would become effective the following day and 

expire on April 30, 2020 at 11:59 p.m. Subject to several exceptions, EO 2020-42 imposed a series 

of restrictions on travel within the state, providing, in relevant part, that travel “[b]etween 

residences in this state [is permissible] through April 10, 2020. After that date, travel between two 

residences is not permitted.” (R. 16-1 at PageID 274). EO 2020-42 stated that “a willful violation” 

of the restrictions imposed would result in a misdemeanor, consistent with MCL 10.33 and MCL 

30.405(3). (Id. at PageID 279). Whitmer voluntarily rescinded the order on April 24, 2020, nearly 

a week before it was set to expire. 

On April 25, 2020, Plaintiffs Lyn Allen (“Allen”) and her limited liability company, 

Cincinnatus, LLC (“Cincinnatus”), sued Whitmer in her individual capacity, challenging the 

constitutionality of the travel restriction. Through Cincinnatus, Allen owns a fractional ownership 

share at a timeshare in Glen Arbor, Michigan. Allen was entitled to use the timeshare from April

17, 2020 to April 24, 2020 and claims that the travel restriction barred her from travelling to and 

enjoying the use of the property during that particular week. Plaintiffs also claim that the 

restriction did not prohibit the timeshare’s co-owners, who are residents of Indiana, from traveling 

to the timeshare during the period in which the order was in effect. 

Plaintiffs argue that the travel restriction was a violation of their right to travel and right to 

equal protection as recognized under both the Fourteenth Amendment of the United States 

Constitution and Article I of the Michigan Constitution. To that end, Plaintiffs sought nominal 
Case No. 21-1019, Allen v. Whitmer

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damages under 42 U.S.C. § 1983 and declaratory relief under both 28 U.S.C. §§ 2201-02 and 

Michigan law. 

After Whitmer moved to dismiss Plaintiffs’ initial complaint, Plaintiffs filed an amended 

complaint. Whitmer again moved to dismiss, and the district court granted her motion and entered 

judgment in her favor. In ruling on the motion to dismiss, the district court held (1) that Plaintiffs 

lacked standing to seek nominal damages,

1

(2) that Plaintiffs’ claims for declaratory relief were 

moot and barred by the Eleventh Amendment, and (3) that Cincinnatus lacked standing altogether. 

This appeal then followed.

II.

We review de novo a district court’s legal conclusions on a motion to dismiss for lack of 

subject-matter jurisdiction under Rule 12(b)(1). Thomas v. City of Memphis, 996 F.3d 318, 323 

(6th Cir. 2021). “[T]he plaintiff has the burden of proving jurisdiction in order to survive the 

motion.” Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir. 1986) (emphasis in original). 

We also review de novo a district court’s dismissal of a complaint for failure to state a 

claim pursuant to Rule 12(b)(6). Bishop v. Lucent Techs., Inc., 520 F.3d 516, 519 (6th Cir. 2008). 

On review, we “consider the [Rule] 12(b)(1) motion first, since the Rule 12(b)(6) challenge 

becomes moot if this court lacks subject matter jurisdiction.” Moir v. Greater Cleveland Reg’l 

Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990). Moreover, we “may affirm the district court’s 

dismissal of [a] [p]laintiff[’s] claims on any grounds, including those not relied on by the district 

court.” Zaluski v. United Am. Healthcare Corp., 527 F.3d 564, 570 (6th Cir. 2008).

1

In the heading of this portion of the opinion, the district court stated that Plaintiffs’ claim for nominal 

damages was moot, but the actual analysis focused on whether Plaintiffs had standing.
Case No. 21-1019, Allen v. Whitmer

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III.

Article III of the Constitution limits our jurisdiction to resolving only “cases” or 

“controversies.” U.S. CONST. art. III § 2. Standing is “an essential and unchanging part of the 

case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 

(1992). To demonstrate standing, a plaintiff “must have (1) suffered an injury in fact, (2) that is 

fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by 

a favorable judicial decision.” Libertarian Party of Ohio v. Wilhem, 988 F.3d 274, 278 (6th Cir. 

2021) (citing Lujan, 504 U.S. at 560).

Here, the district court considered only the third element, concluding that nominal damages 

would not redress Plaintiffs’ alleged injuries. However, the district court issued its decision before 

the Supreme Court decided Uzuegbunam v. Preczewski, 141 S. Ct. 792 (2021). In Uzuegbunam, 

the Supreme Court held that “a request for nominal damages satisfies the redressability element of 

standing where a plaintiff’s claim is based on a completed violation of a legal right.” Id. at 802. 

That holding would appear to overrule the entirety of the district court’s basis for concluding that 

Plaintiffs lacked standing. 

Nevertheless, Uzuegbunam made clear that Plaintiffs do not automatically have standing 

to sue state officials merely because they request nominal damages. Indeed, the Supreme Court 

itself acknowledged the narrow import of its decision, explaining that it addressed “only 

redressability” and that “[i]t remains for the plaintiff to establish the other elements of standing 

(such as a particularized injury); plead a cognizable cause of action; and meet all other relevant 

requirements.” Id. (internal citations omitted). Plaintiffs contend that their amended complaint 

satisfies these requirements, because they allege they “were injured (i.e.[,] barred from travelling) 
Case No. 21-1019, Allen v. Whitmer

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in April 2020 [and] it was caused by Ms. Whitmer’s discretionary actions[.]” (Reply Br. at 5). 

We disagree. 

To demonstrate injury-in-fact, a plaintiff must show that he or she “suffered ‘an invasion 

of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not 

conjectural or hypothetical.’” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (quoting Lujan, 

504 U.S. at 560). “For an injury to be ‘particularized,’ it ‘must affect the plaintiff in a personal 

and individual way.’” Id. (quoting Lujan, 504 U.S. at 560 n.1). Although an injury need not be 

“tangible” to be concrete, the injury still “must actually exist.” Id. at 1548–49 (citation omitted).

“The existence of an abstract injury is insufficient for a plaintiff to carry his burden on this 

element.” Lyshe v. Levy, 854 F.3d 855, 857 (6th Cir. 2017).

Here, Plaintiffs challenge a law whose penalties were never enforced against them and was 

no longer in effect at the time they filed their lawsuit. They do not allege (1) that they actually 

travelled and were penalized for doing so, (2) that they attempted to travel but were deterred by a 

real threat that the State would enforce the travel restriction, (3) that that they attempted to invoke 

one of the many exceptions to EO-2020-42 that might have permitted them to travel to the 

timeshare,2or (4) that they took any other action that might have demonstrated a sincere effort on 

their part to exercise the constitutional rights in question. While none of these allegations alone 

would have necessarily sufficed to state an injury, the absence of any of them from Plaintiffs’ 

amended complaint proves fatal to their argument that they suffered actual, measurable harm. 

Plaintiffs’ allegations are premised on their “speculative fear” that if Michigan had 

enforced the travel restriction against them in a particular manner, then such hypothetical 

2 Plaintiffs do make a categorical allegation in the amended complaint that “[n]one of the exceptions in EO 

2020-42 applied to Plaintiff Allen’s situation.” (R. 16 at PageID 257). However, that allegation alone—without 

more—does not demonstrate that an exception indeed would not have applied.
Case No. 21-1019, Allen v. Whitmer

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enforcement might have resulted in penalties against Plaintiffs. Clapper v. Amnesty Int’l USA, 568 

U.S. 398, 410 (2013). Essentially, Plaintiffs ask us to draw a conclusion that the travel restriction’s 

mere existence created a cognizable injury to them, such that we must assess the law’s 

constitutionality in the abstract. But an abstract judicial declaration that a law was

unconstitutional, absent measurable harm against which to measure the law, would “create[]

tension with Article III’s prohibition against issuing advisory opinions.” Wheeler v. City of 

Lansing, 660 F.3d 931, 940 (6th Cir. 2011). Simply put, Plaintiffs “may not assert merely the 

‘vindication of the rule of law’ as [their] basis for harm without alleging an actual injury from the 

purported violation.” In re Cap. Contracting Co., 924 F.3d 890, 897 (6th Cir. 2019) (quoting Steel 

Co. v. Citizens for a Better Env’t, 523 U.S. 83, 106 (1998)).

Plaintiffs’ claims are largely based on the notion that the State could have enforced the 

travel restriction against them had Plaintiffs chosen to travel to their timeshare. Plaintiffs’ 

allegations reflect nothing more than the decision they made among their options by deciding not 

to travel. See Clapper, 568 U.S. at 416 (explaining that plaintiffs simply “cannot manufacture 

standing merely by inflicting harm on themselves based on their fears of hypothetical future harm 

that is not certainly impending”). To that end, Plaintiffs fail to demonstrate how the travel 

restriction uniquely affected them apart from all other residents who sought to travel within the 

state but refrained from doing so. See Lujan, 504 U.S. at 573–74 (“[A] plaintiff raising only a 

generally available grievance about government—claiming only harm to his and every citizen’s 

interest in proper application of the Constitution and laws, and seeking relief that no more directly 

and tangibly benefits him than it does the public at large—does not state an Article III case or 

controversy.”). 
Case No. 21-1019, Allen v. Whitmer

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Accordingly, we conclude that Plaintiffs have failed to demonstrate an injury-in-fact, and, 

therefore, lack standing as to all of their claims.3 Because Plaintiffs lack standing, we need not 

address the parties’ other arguments as to whether the district court properly dismissed the 

amended complaint.

IV.

For the foregoing reasons, we AFFIRM the district court.

3 We also note that Cincinnatus lacks standing because the amended complaint does not allege that the 

company suffered any harm separate from that of Allen. See Warth v. Seldin, 422 U.S. 490, 515–16 (1975). 

Additionally, because our analysis rests on Plaintiffs’ failure to meet the first element of the standing test, our holding 

is equally applicable to both Plaintiffs’ claims for monetary relief and declaratory relief, even though the district court 

did not address Plaintiffs’ standing as to the latter. 
Case No. 21-1019, Allen v. Whitmer

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HELENE N. WHITE, Circuit Judge, concurring in the judgment. 

I agree that the district court appropriately dismissed this case, but for different reasons 

than the majority. Allen alleges that she had the right to use her timeshare from April 17 to April 

24, 2020, and intended to travel from Detroit to Northern Michigan to do so but chose not to 

because of the threat of fines or criminal penalties under EO 2020-42. Allen’s loss of the use and 

enjoyment of the timeshare was a concrete and particularized injury directly attributable to EO 

2020-42, which unambiguously prohibited Allen from traveling to her timeshare. Allen was not 

required to violate EO 2020-42 before she could challenge it. See MedImmune, Inc. v. Genentech, 

Inc., 549 U.S. 118, 128–29 (2007) (“[W]here threatened action by government is concerned, we 

do not require a plaintiff to expose h[er]self to liability before bringing suit to challenge the basis 

for the threat—for example, the constitutionality of a law threatened to be enforced.”) (emphasis 

omitted). Where, as here, “[t]he plaintiff’s own action (or inaction) in failing to violate the law 

eliminates the imminent threat of prosecution, [it] nonetheless does not eliminate Article III 

jurisdiction.” Id. Accordingly, Allen has standing. 

But standing is only the first hurdle. Because Allen alleges claims against Whitmer in her 

personal, rather than official, capacity, Whitmer may assert a qualified immunity defense against 

Allen’s damages claim. In the mine-run of cases, qualified immunity requires a fact-intensive 

inquiry inappropriate for a district court to undertake at the 12(b)(6) stage. But this is not such a 

case. Where the “complaint establishes the defense,” a complaint may be dismissed on qualified 

immunity grounds on a motion to dismiss. Siefert v. Hamilton County, 951 F.3d 753, 762 (6th Cir. 

2020) (emphasis omitted). Here, assuming arguendo that the facts alleged in the Amended 

Complaint establish a violation of the Constitution, Allen’s damages claim fails on the second 

prong of the qualified immunity analysis because no clearly established law would have put 
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Whitmer on notice that EO 2020-42 violated the Constitution. This court and many others have 

opined over the past year whether various governmental responses to the COVID-19 pandemic 

violated the Constitution, but none of those authorities existed when Whitmer issued EO 2020-42 

on April 9, 2020. Allen may be correct that the general confines of equal protection and a right to 

intrastate travel were established in this circuit before April 2020, see Johnson v. City of 

Cincinnati, 310 F.3d 484, 497–98 (6th Cir. 2002), but she cites no case that would have established 

“beyond debate” that temporarily curtailing those rights in the context of the nascent, rapidly 

worsening COVID-19 pandemic violated the Constitution. See Ashcroft v. al-Kidd, 563 U.S. 731, 

741 (2011). Therefore, qualified immunity bars Allen’s damages claim.

This leaves the declaratory relief claims. Article III of the Constitution requires that there 

be a live case or controversy at the time we issue a decision. Burke v. Barnes, 479 U.S. 361, 363 

(1987). And once a law is repealed or expires by its own terms, a desire for retrospective 

declaratory relief, standing alone, is not enough to keep the controversy live. Id. “We can neither 

declare unconstitutional nor enjoin the enforcement of a provision that is no longer in effect.” 

Brandywine, Inc. v. City of Richmond, 359 F.3d 830, 836 (6th Cir. 2004). Allen does not argue 

that this case falls into one of the established exceptions to mootness, or that Michigan courts 

would treat the mootness question on the state declaratory relief claim any differently. We thus 

lack jurisdiction over Allen’s now-moot declaratory relief claims. See, e.g., Pleasant View Baptist 

Church v. Beshear, 838 F. App’x 936, 938 (6th Cir. 2020) (“Once a law is off the books and 

replaced with a ‘new rule’ that does not injure the plaintiff, a case becomes moot, leaving us with 

an absence of jurisdiction to adjudicate the case.”).