NOT RECOMMENDED FOR PUBLICATION
`File Name: 24a0152n.06
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`No. 23-3480
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`UNITED STATES COURT OF APPEALS
`FOR THE SIXTH CIRCUIT
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`
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`BRYAN TESSANNE and RICHARD BRIMER, on
`their own behalf and on behalf of the class similarly
`situated,
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`Plaintiffs-Appellants,
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`v.
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`CHILDREN’S HOSPITAL MEDICAL CENTER
`OF AKRON,
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`Defendant-Appellee.
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`ON APPEAL FROM THE
`UNITED STATES DISTRICT
`COURT FOR THE NORTHERN
`DISTRICT OF OHIO
`
`
`OPINION
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`
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`Before: BOGGS, McKEAGUE, and LARSEN, Circuit Judges.
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`LARSEN, Circuit Judge. Richard Brimer and Bryan Tessanne were employees of
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`Children’s Hospital Medical Center of Akron (the Hospital). In response to the Centers for
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`Medicare and Medicaid Services’ COVID-19 vaccine mandate, the Hospital instituted a
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`vaccination policy, requiring employees to get vaccinated or obtain medical or religious
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`exemptions. Plaintiffs sought religious exemptions, but the Hospital denied them. The Hospital
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`then terminated their employment for failing to be vaccinated against COVID-19. Plaintiffs sued
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`the Hospital on behalf of themselves and all similarly situated employees, arguing that the denial
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`of their requests for religious exemptions, and the resulting terminations, violated their First
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`Amendment rights. The district court dismissed their claims on the ground that the Hospital was
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`not a government actor. For the reasons stated, we AFFIRM.
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`

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`No. 23-3480, Tessanne v. Children’s Hosp. Med. Center of Akron
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`I.
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`In November 2021, the Centers for Medicare and Medicaid Services issued an interim final
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`rule that required certain healthcare facilities to ensure that their covered staff received COVID-
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`19 vaccinations, subject to medical and religious exemptions (the CMS mandate). See Biden v.
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`Missouri, 595 U.S. 87, 91 (2022) (per curiam). In response, Children’s Hospital Medical Center
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`of Akron adopted a policy requiring such vaccinations for its employees, again subject to medical
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`and religious exemptions. Plaintiffs Brian Tessanne and Richard Brimer worked at the hospital.
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`They each requested accommodations from the vaccination policy for religious reasons. But, the
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`complaint alleges, the Hospital “summarily denied” the requests. The Hospital required its
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`employees to be vaccinated by January 11, 2022. Plaintiffs didn’t get vaccinated by that date, so
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`the Hospital suspended them, and all such employees, “stating that they would be terminated
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`effective January 27, 2022 if they remained noncompliant with the policy.” And that’s what
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`happened—plaintiffs lost their jobs on January 27. Still, the Hospital told plaintiffs that it would
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`keep their jobs open until February 27, 2022. If plaintiffs complied with the vaccination policy by
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`that date, they could return to their jobs. If they didn’t, they would “have to re-apply for their jobs
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`if they wish[ed] to return to work at [the Hospital].” Although the complaint does not make this
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`clear, the parties’ briefing indicates that plaintiffs failed to comply with the vaccination policy and
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`fully lost their jobs as of February 27. A few months later, the government rescinded the CMS
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`mandate. See 88 Fed. Reg. 36485, 36485–01 (June 5, 2023).
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`Plaintiffs sued the Hospital on behalf of themselves and other similarly situated employees,
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`arguing that the Hospital’s policy of summarily refusing requests for religious exemptions violated
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`their rights under the Free Exercise Clause of the First Amendment. They sought damages as well
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`as declaratory and injunctive relief, including reinstatement. The Hospital moved to dismiss the
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`No. 23-3480, Tessanne v. Children’s Hosp. Med. Center of Akron
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`complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The district court granted
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`the motion under Rule 12(b)(1), concluding that it lacked subject-matter jurisdiction because the
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`Hospital is not a state actor who is amenable to suit under the First Amendment. The court also
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`denied plaintiffs leave to amend their complaint. Plaintiffs now appeal.
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`II.
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` “Every federal appellate court has a special obligation to assure itself . . . of its own
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`jurisdiction[.]” Mays v. LaRose, 951 F.3d 775, 781 (6th Cir. 2020) (alterations in original). Here,
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`three jurisdictional doctrines are at play: standing, mootness, and the requirement of a
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`“substantial” federal question.
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`Standing and Mootness. The Hospital contends that plaintiffs lacked standing to bring their
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`claims for declaratory and injunctive relief. The Hospital didn’t raise this argument below, but
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`that is no matter—Article III standing is “jurisdictional and not subject to waiver.” Lewis v. Casey,
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`518 U.S. 343, 349 n.1 (1996).
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`We assess standing at the time the complaint is filed. See Lujan v. Defenders of Wildlife,
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`504 U.S. 555, 569 n.4 (1992). “[S]tanding is not dispensed in gross; rather, plaintiffs must
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`demonstrate standing for each claim that they press and for each form of relief they seek (for
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`example, injunctive relief and damages).” TransUnion LLC v. Ramirez, 594 U.S. 413, 431 (2021).
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`Here, plaintiffs sought five kinds of relief: (1) an injunction commanding the Hospital not to make
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`their terminations final; (2) an injunction commanding the Hospital to engage in an “interactive
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`process” and grant them an exemption from the vaccine mandate; (3) a declaration that the Hospital
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`violated their First Amendment rights by not granting them a religious exemption from the vaccine
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`mandate; (4) reinstatement to their positions; and (5) damages.
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`No. 23-3480, Tessanne v. Children’s Hosp. Med. Center of Akron
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`The Hospital is right that plaintiffs lacked standing to bring the first of these claims.
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`Plaintiffs lack standing to seek injunctive and declaratory relief for events that occurred wholly in
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`the past. City of Los Angeles v. Lyons, 461 U.S. 95, 101–03 (1983). To seek such prospective
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`relief, a plaintiff must be facing an imminent risk of future harm. Id. at 102; Golden v. Zwickler,
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`394 U.S. 103, 109 (1969). Here, the Hospital provisionally terminated plaintiffs’ employment on
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`January 27, 2022, for failing to be vaccinated; but it gave plaintiffs an extra month to procure the
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`vaccine. This meant that their terminations became completely final on February 28, 2022.
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`Plaintiffs didn’t file their complaint until March 3, 2022. At that point they were no longer facing
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`imminent termination; they had already been fired. No order from the court could have staved off
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`their dismissal; it had been accomplished before the court’s intervention was sought. Plaintiffs
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`lacked standing to seek this relief.
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`On the other hand, plaintiffs plainly had standing to bring their claims for reinstatement
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`and damages. Each of these seeks relief for harm done in the past. And the three standing
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`requirements—injury in fact, traceability, and redressability—were clearly met. See TransUnion,
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`594 U.S. at 423.
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`It is a more nuanced question whether plaintiffs had standing to seek an injunction
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`commanding that the Hospital grant them a religious exemption from the vaccine mandate or a
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`declaration that the Hospital violated their constitutional rights by failing to do so. Plaintiffs had
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`already been fired when they filed their complaint. And former employees generally lack standing
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`to seek court-ordered changes at their previous workplaces because they cannot benefit personally
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`from any relief a court might grant. See Feit v. Ward, 886 F.2d 848, 857 (7th Cir. 1989) (former
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`federal employee, allegedly discharged in violation of the First Amendment, could not seek
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`declaratory or injunctive relief because any change to employee speech policy could not benefit
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`No. 23-3480, Tessanne v. Children’s Hosp. Med. Center of Akron
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`him). But some courts have held that former employees who are seeking reinstatement do have
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`standing to seek such declaratory and injunctive relief because, if successful in gaining
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`reinstatement, they would again be subjected to the employer’s allegedly unlawful policies. See
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`Chen-Oster v. Goldman, Sachs & Co., 251 F. Supp. 3d 579, 588 (S.D.N.Y. 2017) (collecting
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`cases); see also Feit, 886 F.2d at 857 (noting that the plaintiff had not sought “reinstatement to his
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`former position”). We need not weigh in on this question because these claims face a different
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`problem—mootness. See Acheson Hotels, LLC v. Laufer, 601 U.S. 1, 4 (2023) (courts may address
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`standing and mootness “in any order”).
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`Even when a plaintiff has standing at the beginning of a case, events occurring “during the
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`pendency of the litigation” may strip a court’s eventual decision of “any practical effect.”
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`Resurrection Sch. v. Hertel, 35 F.4th 524, 528 (6th Cir. 2022) (en banc) (citation omitted). When
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`that happens, the court loses jurisdiction and “the case is moot.” Id. (citation omitted). Plaintiffs
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`allege that the federal government’s CMS mandate was responsible for the Hospital’s actions. But
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`the government rescinded the CMS mandate on June 5, 2023. We have held that recissions of
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`similar pandemic-era policies mooted claims to enjoin them or have them declared unlawful. See
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`Livingston Educ. Serv. Agency v. Becerra, No. 22-1257, 2023 WL 4249469, at *1 (6th Cir. June
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`29, 2023) (Head Start vaccine mandate); Resurrection Sch., 35 F.4th at 528–30 (statewide mask
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`mandate). So an order requiring the Hospital to give plaintiffs vaccine exemptions upon
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`reinstatement could have no practical effect. That makes this claim moot, along with the
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`accompanying claim for declaratory relief.
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`No. 23-3480, Tessanne v. Children’s Hosp. Med. Center of Akron
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`In sum, only plaintiffs’ claims for reinstatement and damages survive the standing and
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`mootness inquiries.1
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`Substantial Federal Question. Standing and mootness resolved, we turn to the next
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`potential jurisdictional issue—the district court’s dismissal for lack of subject-matter jurisdiction
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`under Rule 12(b)(1). The district court offered two related reasons why it lacked jurisdiction.
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`First, the court noted that the Declaratory Judgment Act alone does not confer subject-matter
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`jurisdiction. See Heydon v. MediaOne of Se. Mich., Inc., 327 F.3d 466, 470 (6th Cir. 2003). The
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`Act vests courts with discretion to fashion a remedy, but subject-matter jurisdiction must come
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`from another source. Id. Second, the court concluded that the First Amendment, the only potential
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`source of subject-matter jurisdiction, did not give plaintiffs a cause of action because they had not
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`alleged facts showing government action. We agree with each of these premises. But we disagree
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`with the conclusion that they entail a lack of jurisdiction.
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`1 That is not to say that plaintiffs may pursue either claim. The district court determined that
`plaintiffs couldn’t seek damages against the Hospital because allowing them to do so would require
`an impermissible extension of Bivens v. Six Unknown Named Agents of Federal Bureau of
`Narcotics, 403 U.S. 388 (1971). See Ciraci v. J.M. Smucker Co., 62 F.4th 278, 287 (6th Cir. 2023)
`(suggesting that no Bivens action would lie in an analogous context). Plaintiffs don’t challenge
`this ruling on appeal and thus have abandoned the issue. See United States v. Johnson, 440 F.3d
`832, 845–46 (6th Cir. 2006) (“An appellant abandons all issues not raised and argued in its initial
`brief on appeal.” (cleaned up)).
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`Nor do we decide whether plaintiffs would have a cause of action to seek reinstatement,
`even if they could show government action. As Ciraci noted, 42 U.S.C. § 1983, the common
`vehicle for asserting violations of federal civil rights, doesn’t apply in cases like this, where
`plaintiffs assert that the Hospital is a federal actor, not a state one. 62 F.4th at 287. And while
`“claimants sometimes may ‘sue to enjoin unconstitutional actions by state and federal officers’
`even in the absence of a statutory cause of action,” “[i]t is not clear whether, as a matter of historical
`equitable practice, we may infer, imply, or create a cause of action for” affirmative equitable relief
`like reinstatement. Id. (quoting Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 327
`(2015)). But since that question is not briefed and doesn’t go to our jurisdiction, we need not
`address it. Id.
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`No. 23-3480, Tessanne v. Children’s Hosp. Med. Center of Akron
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`In all but the most extreme cases, “the failure to state a proper cause of action calls for a
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`judgment on the merits and not for a dismissal for want of jurisdiction.” Shapiro v. McManus, 577
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`U.S. 39, 45 (2015) (quoting Bell v. Hood, 327 U.S. 678, 682 (1946)). There are exceptions, to be
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`sure. Claims that are “‘essentially fictitious,’ ‘wholly insubstantial,’ [or] ‘obviously frivolous’”
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`fail to raise “a substantial federal question” and may be dismissed for lack of subject-matter
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`jurisdiction. Id. (quoting Goosby v. Osser, 409 U.S. 512, 518 (1973)). But such cases are rare.
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`“[T]he limiting words ‘wholly’ and ‘obviously’ have cogent legal significance,” so even marginal
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`claims can generally clear the “low bar” required to state a “substantial federal question for
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`jurisdictional purposes.” Id. at 45–46 (quoting Goosby, 409 U.S. at 518). We think this complaint
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`gets over the hurdle. But, as we explain below, the case is still properly dismissed for failure to
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`state a claim.
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`III.
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`Despite the district court’s mistaken reliance on Rule 12(b)(1), we may still affirm under
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`Rule 12(b)(6). The Hospital moved to dismiss on Rule 12(b)(6) grounds below. And a conclusion
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`that plaintiffs failed to establish that the Hospital was a government actor would equally compel
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`dismissal for failure to state a claim. See Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247, 254
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`(2010) (“Since nothing in the analysis of the courts below turned on [the district court’s mistaken
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`reliance on Rule 12(b)(1)], a remand would only require a new Rule 12(b)(6) label for the same
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`Rule 12(b)(1) conclusion.”); see also Haines v. Fed. Motor Carrier Safety Admin., 814 F.3d 417,
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`426–29 (6th Cir. 2016) (concluding that the district court erred by dismissing plaintiff’s APA claim
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`for lack of subject-matter jurisdiction under Rule 12(b)(1) but nonetheless affirming because
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`plaintiff failed to state a claim under Rule 12(b)(6)).
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`No. 23-3480, Tessanne v. Children’s Hosp. Med. Center of Akron
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`“[M]ost rights secured by the Constitution are protected only against infringement by
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`governments.” Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156 (1978). So the question at the heart
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`of this case is whether the Hospital, a private entity, was nonetheless a government actor when it
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`denied religious exemptions to plaintiffs and terminated their employment. Our recent opinion in
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`Ciraci v. J.M. Smucker Co., 62 F.4th 278 (6th Cir. 2023), largely answers the question for us.
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`To decide whether there is government action, we ask “whether the specific conduct of
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`which a plaintiff complains is fairly attributable to the government.” Id. at 281 (cleaned up). To
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`answer that question, courts ask a few more. First, “[d]oes the private company’s conduct involve
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`a traditionally exclusive governmental function?” Id. Second, is the “conduct ‘entwined with’
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`government decisions” or is there a “close ‘nexus’ between the [government] and the challenged
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`conduct?” Id. (quoting Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288,
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`295–96 (2001)). In addition, we sometimes ask whether the government has “compelled the
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`company’s action.” Id. That inquiry is most commonly, and perhaps best, left for situations in
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`which an individual seeks to hold the government liable for the actions of a private entity. See id.
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`at 283. As Ciraci explained, “in the usual case, state action arises when the State provides a mantle
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`of authority that enhances the power of a harm-causing individual actor.” Id. at 286 (cleaned up).
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`“When government regulations demand a particular outcome, however, they deplete rather than
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`enhance private power.” Id. At a minimum, our caselaw makes clear “that compliance with
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`federal law or status as a federal contractor by itself does not make a private entity a public one.”
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`Id. We see no reason why this rule would not also apply to federal grantees, such as the Hospital
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`here.
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`Ciraci involved circumstances nearly identical to this case. First, a private entity
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`defendant—J.M. Smucker Company. Id. at 279. Second, a government-imposed vaccine
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`No. 23-3480, Tessanne v. Children’s Hosp. Med. Center of Akron
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`mandate—in Ciraci, the federal-contractor mandate. Id. at 280. Third, the creation of a company-
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`wide vaccination policy and the denial of religious exemptions. Id. Fourth, the same legal question
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`we face now—was the company a government actor such that it could be sued for violating the
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`plaintiffs’ First Amendment rights? Id.
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`Ciraci answered in the negative. The court found that the company did not engage in a
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`traditional governmental function. Id. at 282. Making “jelly, peanut butter, and other products in
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`the Smucker’s lineup” was not something normally left for the government. Id. Here, plaintiffs
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`make no assertion that providing healthcare to private individuals is a traditional government
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`function. Next, the actions of the government and J.M. Smucker Company were not so entwined
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`as to form collective government action. Id. The company didn’t conspire with the government,
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`deny the requests for religious exemption with government assistance, or “connect[] itself to joint
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`action with the government in some other cognizable way.” Id. at 282–83. So too here—the
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`complaint contains no such allegations.
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`That leaves the government-compulsion theory. Again, Ciraci tells us that the government
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`has not compelled the Hospital’s actions in a way that would make the Hospital a state actor.
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`In Ciraci, we explained that “[w]hen a private company complies with federal law, that
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`does not by itself make the company a government actor.” Id. at 284. In Ciraci, “[a]t most,
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`Smucker’s required claimants to vaccinate themselves in accordance with the President’s
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`Executive Order.” Id. at 286. But that did not make Smucker’s a government actor. Id. The same
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`is true here.
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`Plaintiffs do not exactly complain, however, that the government forced the Hospital to
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`require their vaccinations. As in Ciraci, the plaintiffs’ “specific” complaint is that the Hospital
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`failed to grant them religious exemptions from the vaccine mandate. Id. at 283. In Ciraci, we
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`No. 23-3480, Tessanne v. Children’s Hosp. Med. Center of Akron
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`explained that the federal-contractor mandate “did not tell Smucker’s to deny exemptions to
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`anyone.” Id. Rather, “[i]t told Smucker’s to grant religious exemptions to those legally entitled
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`to them, and let Smucker’s decide on its own who qualified.” Id. In other words, we explained,
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`“[t]he claimants contend that Smucker’s has exercised its discretion under the Executive Order
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`stingily, not that Smucker’s has been dragooned into denying an exemption.” Id. That being the
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`case, there was no “coercion” by the government that could have triggered government actor status.
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`Id. at 284.
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`We face an identical situation here. Through the CMS mandate, the government required
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`vaccination of the Hospital’s employees, told the Hospital to grant religious exemptions, and gave
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`the Hospital discretion to decide who qualified. The complaint alleges that, despite the allowance
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`for religious exemptions, the Hospital nonetheless “denied hundreds of these requests” and did so
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`“summarily.” R. 1, Complaint, PageID 3, 6. So, just as in Ciraci, plaintiffs find fault in a private
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`entity’s application of government policies, not in the government policies themselves. It follows
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`that no governmental action exists. Ciraci, 62 F.4th at 279.
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`Plaintiffs offer just two responses. First, they point out that Ciraci involved a different
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`federal vaccine mandate. That’s true, but it’s a distinction without a difference. For all the reasons
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`discussed above, Ciraci is nearly identical to the instant case. Second, they argue that the threat
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`of losing Medicare or Medicaid funding is more coercive than losing a single contract with the
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`government. That observation may be true as well, but it is again beside the point. Ciraci did not
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`turn on the size of the inducement offered to accept terms that included a vaccine mandate. Ciraci
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`concluded that the terms of the mandate did not require the private employer to deny religious
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`exemptions to the plaintiffs. Id. at 284 (“[E]ven if the claimants plausibly pleaded coercion
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`No. 23-3480, Tessanne v. Children’s Hosp. Med. Center of Akron
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`generally, they have pleaded nothing specifically that shows the federal policy ‘dictated’ their
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`employer’s decision to deny their exemptions.”). The same is true here.
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`Plaintiffs have failed to establish that the Hospital was a government actor and thus have
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`failed to state a claim under Rule 12(b)(6). The district court therefore reached the right result,
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`albeit under the wrong procedural rule. See Morrison, 561 U.S. at 254; Haines, 814 F.3d at 426–
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`29.
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`IV.
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`Plaintiffs also challenge the district court’s decision to deny them leave to amend the
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`complaint. The district court denied the motion because plaintiffs “summarily ask[ed] for leave to
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`cure any deficiencies” in their brief opposing the motion to dismiss without any elaboration on
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`what facts they would allege to make the complaint sufficient. We review the district court’s
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`decision for an abuse of discretion. Crosby v. Twitter, Inc., 921 F.3d 617, 627 (6th Cir. 2019).
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`There was no abuse here. Our caselaw is clear—a district court doesn’t abuse its discretion by
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`denying leave to amend where, as here, the plaintiffs didn’t formally move for leave to amend and
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`instead requested leave to amend only in their response to the motion to dismiss without explaining
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`what additional facts they would offer to satisfy the deficiencies of the initial complaint. Id. at
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`628.
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`* * *
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`We AFFIRM. Because we affirm on different grounds—for failure to state a claim under
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`Rule 12(b)(6), rather than for a lack of jurisdiction under Rule 12(b)(1)—we REMAND to the
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`district court for it to enter judgment accordingly.
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`-11-
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