[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-12276

____________________

JENNIFER CASE, 

MARK LIDDLE, 

Pastor, 

JIM NELSON, 

Pastor, 

SCOTT FARR, 

BRUCE ERVIN, 

Plaintiffs-Appellants,

REBECCA CALLAHAN

et al.,

Plaintiffs,

versus

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2 Opinion of the Court 21-12276

KAY IVEY,

in her individual capacity and official 

capacity as Governor of Alabama, 

DR. SCOTT HARRIS, 

in his individual capacity and official 

capacity as State Health Officer,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Middle District of Alabama

D.C. Docket No. 2:20-cv-00777-WKW-JTA

____________________

Before NEWSOM, TJOFLAT, and HULL, Circuit Judges.

PER CURIAM:

Plaintiffs sued Alabama’s Governor and State Health Officer, seeking damages and injunctive relief because, they claim, Alabama’s response to the COVID-19 pandemic violated their constitutional rights. The district court dismissed plaintiffs’ injunctiverelief claims as moot, and it dismissed their damages claims because 

defendants are entitled to qualified immunity. We affirm.

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21-12276 Opinion of the Court 3

I 

In early 2020, Alabama’s Governor, Kay Ivey, and its State 

Health Officer, Dr. Scott Harris, promulgated a series of orders in 

response to the COVID-19 pandemic. Following a state-of-emergency declaration on March 13, 2020, Dr. Harris issued an order 

that prohibited gatherings of more than 25 individuals if they could 

not maintain at least six feet of social distance. About a week later, 

that order was tightened to gatherings of ten or more. The order 

also closed certain close-contact service providers—including barber shops—until May 15, 2020. In July, Governor Ivey issued a 

mask mandate requiring all persons to wear a mask if they were 

within six feet of another individual. That mandate stayed in place 

until April 7, 2021. 

Plaintiffs are a collection of individuals who were affected by 

those orders in various ways. Jennifer Case contends (1) that the 

orders restricted her religious liberty because they precluded her 

from attending church for a short period of time and (2) that the 

mask mandate violated her fundamental right to direct the upbringing of her children. Mark Liddle and Jim Nelson—who are 

pastors—assert that the orders violated their religious liberty because they were prohibited from conducting their religious services 

in a manner consistent with their sincerely held religious beliefs 

and because they were barred from ministering to the sick and elderly. Bruce Ervin and Scott Farr—who are co-owners of a barber 

shop that was forced to close for a period of time—argue that the 

orders violated their constitutional property and contract rights. 

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Plaintiffs sued on September 24, 2020, seeking injunctive relief and damages. Defendants filed a motion to dismiss, which the 

district court granted on the ground that plaintiffs’ initial complaint 

was a shotgun pleading. But the court permitted plaintiffs to refile 

an amended complaint. Plaintiffs filed their amended complaint, 

and defendants again moved to dismiss. While the second motion 

to dismiss was pending, Governor Ivey rescinded the COVIDrelated orders. Defendants filed a “Suggestion of Mootness,” contending that because the orders had been rescinded, “Plaintiffs’ 

claims for injunctive relief are moot and due to be dismissed.” 

Plaintiffs never responded to that filing.

The district court granted defendants’ motion to dismiss. It 

held (1) that plaintiffs’ claims for prospective injunctive relief were 

moot and (2) that defendants were entitled to qualified immunity 

on plaintiffs’ claims for damages because defendants had not violated plaintiffs’ constitutional rights, or because, at the very least, 

those rights were not clearly established. Plaintiffs now appeal, arguing that defendants are not entitled to qualified immunity because (1) they acted outside of their discretionary authority, and 

(2) even if they didn’t, they violated clearly established law.1 We 

disagree and affirm the dismissal.

1 Although they briefed the issue, plaintiffs conceded at oral argument that 

their claims for injunctive relief were rendered moot when the Governor rescinded the orders. See Oral Arg. at 1:35–1:40, 2:55–3:10. Accordingly, we 

focus our discussion only on whether defendants are entitled to qualified immunity.

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II 

Whether defendants are entitled to qualified immunity is a 

two-pronged inquiry.2 “The initial inquiry . . . is whether the public official proves that he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.” 

Grider v. City of Auburn, 618 F.3d 1240, 1254 n.19 (11th Cir. 2010)

(quotation omitted). If the official meets that initial burden, then 

“the plaintiff must prove that the official’s conduct violated clearly 

established law.” Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1281 

(11th Cir. 1998).

A 

To determine whether an official is acting within the scope 

of his discretionary authority, “[w]e ask whether the government 

employee was (a) performing a legitimate job-related function 

(that is, pursuing a job-related goal), (b) through means that were 

within his power to utilize.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004). In making that determination, “it is critical to define properly the inquiry,” i.e., we do not

ask “whether it was within the defendant’s authority to commit the 

allegedly illegal act.” Harbert, 157 F.3d at 1282. We instead “ask 

whether the act complained of, if done for a proper purpose, would 

2 “We review de novo the grant of a motion to dismiss for failure to state a 

claim.” Bishop v. Ross Earle & Bonan, P.A., 817 F.3d 1268, 1270 (11th Cir. 

2016).

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be within, or reasonably related to, the outer perimeter of an official’s discretionary duties.” Id. (quotation omitted).

Plaintiffs contend that defendants were not acting within 

their discretionary authority because they do not have the “authority to mandate such unprecedented measures as telling churches 

how they may assemble and worship, mandating universal mask 

wearing, and picking and choosing which businesses may stay 

open.” But that defines the inquiry far too narrowly. At this stage 

of the qualified-immunity analysis, we should ask only whether defendants’ duties include issuing orders in response to a publichealth emergency—we shouldn’t analyze the propriety of the specific orders they issued. Cf. id. at 1282–83 (“[W]e did not ask 

whether it was within the defendants’ authority to suspend an employee for an improper reason; instead, we asked whether their discretionary duties included the administration of discipline.”). 

So framed, the challenged orders were—we think plainly—

within the scope of defendants’ discretionary authority. The Alabama Emergency Management Act grants the governor broad authority to respond to emergencies—including by “mak[ing] . . . the 

necessary orders, rules and regulations to carry out” the AEMA’s 

provisions, Ala. Code § 31-9-6(1), such as to “secure the safety and 

protection of the civilian population,” id. § 31-9-8(a)(5). And the 

Alabama Code grants the State Health Officer the authority “to 

adopt and promulgate rules and regulations providing proper 

methods and details for administering the health and quarantine 

laws of the state, which rules and regulations shall have the force 

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21-12276 Opinion of the Court 7

and effect of law.” Id. § 22-2-2(6).3 To be absolutely clear, the Code 

does not grant defendants the authority to issue unlawful rules and 

regulations. But, again, at this step in the qualified-immunity inquiry, the question “is not whether it was within the defendant’s 

authority to commit the allegedly illegal act.” Harbert, 157 F.3d at 

1282. We ask only whether the orders were “reasonably related 

to[] the outer perimeter of an official’s discretionary duties.” Id. 

Based on the text of the Code, they were.

B 

Because defendants have shown that they acted within their 

discretionary authority, “the burden shifts to [plaintiffs] to establish 

that the defendants’ conduct violated clearly established law.” Id. 

at 1284. “A right is clearly established when it is sufficiently clear 

that every reasonable official would have understood that what he 

is doing violates that right.” Johnson v. City of Miami Beach, 18 

F.4th 1267, 1273 (11th Cir. 2021) (quotation omitted). “The usual 

way of establishing that a constitutional violation was clearly established law is by pointing to a case, in existence at the time, in which 

the Supreme Court or this Court found a violation based on 

3 Plaintiffs concede that the State Health Officer retains this rulemaking authority. They assert, however, that any rule or regulation that they challenge 

was not tied to a health or quarantine law, because the “State of Alabama does 

not have a single health or quarantine law that contemplates” the specific orders that Harris issued. But that goes to whether the orders were lawful, not 

to whether the act of issuing those orders was within Harris’s discretionary 

authority. See Harbert, 157 F.3d at 1282–83. And, as already explained, that’s 

not the right question at this stage of the qualified-immunity inquiry.

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materially similar facts.” Id. (quotation omitted).4 Plaintiffs have 

failed to meet their burden.

i 

First, plaintiffs contend that defendants violated their 

“clearly established rights under the Free Exercise, Establishment, 

and Assembly Clauses of the First Amendment.” But instead of 

“pointing to a case” in which we or the Supreme Court “found a 

violation based on materially similar facts,” id., plaintiffs make a 

handful of generalized assertions about the scope of the First 

Amendment’s protection. For example, plaintiffs cite Thomas Jefferson’s Letter to the Danbury Baptists and Virginia Statute of Religious Liberty, James Madison’s Memorial and Remonstrance, the 

Declaration of Independence, a handful of out-of-circuit cases, and 

former-President Trump’s recent proclamation honoring a 

twelfth-century martyr. None of that is sufficient to create a 

“clearly established” right, though, which (as explained) ordinarily 

4 There are, of course, other ways in which a plaintiff might demonstrate that 

a right is “clearly established” for qualified-immunity purposes, such as when 

“a broader, clearly established principle should control the novel facts of a particular situation,” or when an official’s conduct “so obviously violates the constitution that prior case law is unnecessary.” Corbitt v. Vickers, 929 F.3d 1304, 

1312 (11th Cir. 2019) (cleaned up). Because plaintiffs don’t specify the theory 

under which they seek to demonstrate that the government violated their 

clearly established rights, we assume that they are traveling under “the usual 

way”—by relying on a case directly on point. Johnson, 18 F.4th at 1273. To 

be clear, though, even if plaintiffs had invoked either of the less “usual ways,” 

we would reach the same conclusion.

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must come from “existing precedent [that has] placed the statutory 

or constitutional question beyond debate.” Mullenix v. Luna, 577 

U.S. 7, 12 (2015). To be fair, plaintiffs also cite a handful of recent 

COVID-related decisions of the Supreme Court, but all of them

post-date the challenged orders, which disqualifies them as sources 

of “clearly established” law. See Coffin v. Brandau, 642 F.3d 999, 

103 (11th Cir. 2011) (en banc) (stating that we must determine 

“whether the right in question was clearly established at the time 

of the violation” (emphasis added)). Plaintiffs have failed to satisfy 

their burden that any of the challenged orders violated their clearly 

established First Amendment rights.5

ii 

Next, plaintiffs—citing Troxel v. Granville, 530 U.S. 57 

(2000)—contend that the mask mandate violated Case’s fundamental right to direct the upbringing of her children. But they cite to 

no case that extends Troxel to the specific right they now assert: 

the right to the “choice both of how to dress their children and 

what kind of medical care to provide them” in the specific context 

5 Plaintiffs also cite Everson v. Board of Education, 330 U.S. 1, 15 (1947), for 

the general proposition that the government can neither “force nor influence 

a person to go to or to remain away from church against his will” without 

violating the Establishment Clause. And they cite Employment Division v. 

Smith, 494 U.S. 872, 877 (1990), to support the notion that the state may not 

prohibit “assembling with others for a worship service” without bumping up 

against free-exercise rights. But neither of those cases was “based on” facts 

“materially” (or really even remotely) “similar” to those presented by this case. 

Johnson, 18 F.4th at 1273. 

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of a mask mandate. Accordingly, plaintiffs have failed to carry their 

burden to demonstrate that any parental rights that defendants 

might have violated were clearly established.

iii 

Plaintiffs also assert that the Fifth and Fourteenth Amendments guarantee “[t]he right to own, buy, sell, and use property,” 

and that Governor Ivey violated those rights when she ordered several businesses to close for a period of time. But they cite only one 

case, Knick v. Township of Scott, 139 S. Ct. 2162 (2019), about 

which they say only that it “signal[s] an increased recognition of 

property rights’ importance.” That’s insufficient to clearly establish the right plaintiffs seek to vindicate in this case.

iv 

Finally, citing Lochner v. New York, 198 U.S. 45 (1905), 

plaintiffs contend that defendants violated a Fourteenth Amendment due-process right to make and enforce contracts because Farr 

and Ervin were forced to cancel their customers’ appointments. 

Even setting aside the fact that Lochner was effectively overruled

by the Supreme Court—as plaintiffs acknowledge in their brief—in 

West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), plaintiffs do

not cite any case clearly establishing a constitutional right that 

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21-12276 Opinion of the Court 11

defendants violated by promulgating orders resulting in the cancellation of hair appointments.6

* * *

Defendants were acting within their discretionary authority 

when they issued the challenged orders and plaintiffs failed to meet 

their burden to establish that the orders violated their clearly established rights. AFFIRMED.

6 Plaintiffs also invoke the Constitution’s prohibition on passing laws “impairing the Obligation of Contracts.” U.S. Const. art. I, § 10, cl. 1. But they cite 

no cases applying that provision to similar circumstances and have thus failed 

to carry their burden to demonstrate that defendants violated a clearly established right. See Johnson, 18 F.4th at 1273.

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