586 F.Supp.3d 1118
D.N.M.2022Background:
- Plaintiffs (Hinkle Family Fun Center, LLC, individual owners, and other recreational businesses) sued New Mexico Governor Michelle Lujan Grisham and NMDOH Secretary Kathyleen Kunkel (named individually and acting under color of law) challenging three 2020 public-health orders (March, June, July PHOs) and a July 2020 executive order that restricted travel, alleging violations of substantive and procedural due process and equal protection under the Fourteenth Amendment.
- The Challenged Orders required recreational facilities to remain closed (or limited) early in the pandemic; Plaintiffs sought declaratory and injunctive relief to prevent enforcement of those orders.
- By February–July 2021, New Mexico rescinded or allowed the PHOs/EO to expire and, as of July 1, 2021, lifted pandemic-related occupancy restrictions so businesses could operate at 100% capacity; quarantine and travel restrictions had been rescinded earlier.
- Plaintiffs moved for leave to file a third amended complaint adding money damages and a Fifth Amendment takings claim; Defendants moved to dismiss the Second Amended Complaint as moot or for failure to state a claim.
- The court denied leave to amend as futile (qualified immunity would bar damages claims; takings claim fails as a matter of law) and dismissed the SAC for lack of subject-matter jurisdiction because the challenged orders are no longer in effect and mootness exceptions did not apply.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Motion to amend to add money damages (§1983) | Plaintiffs seek actual and punitive damages for Fourteenth Amendment violations. | Defendants argue any individual-capacity damages claims are barred by qualified immunity. | Denied: qualified immunity bars proposed damages; amendment would be futile. |
| Motion to amend to add Fifth Amendment takings claim | Plaintiffs contend PHOs imposed a negative servitude/physical taking (no public access) requiring compensation. | Defendants argue takings actions target government entities, not individuals, and the orders were regulatory (temporary) not per se physical takings. | Denied: takings claim fails—Cedar Point inapplicable, Penn Central balancing disfavors compensation; claim insufficient in any capacity. |
| Mootness of the SAC (jurisdiction) | Plaintiffs contend the controversy remains live and could recur (capable of repetition yet evading review). | Defendants say the Challenged Orders expired/rescinded and no present injury exists; case is moot. | Dismissed for lack of jurisdiction: orders expired; plaintiffs lack a redressable, ongoing injury. |
| Mootness exceptions (capable of repetition; voluntary cessation) | Plaintiffs assert emergency powers remain and future orders could again restrict their businesses. | Defendants contend policies shifted to vaccines/masks, no reasonable expectation of reimposing similar business closures, and cessation was not manipulative. | Exceptions do not apply: plaintiffs failed to show orders were too short to litigate or a reasonable expectation of recurrence; voluntary-cessation exception inapplicable. |
Key Cases Cited
- South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) (Supreme Court emphasized deference to public-health officials during pandemic and reluctance to declare restrictions indisputably unconstitutional)
- Jacobson v. Massachusetts, 197 U.S. 11 (1905) (states’ police powers permit public-health measures during emergencies)
- Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (2021) (per se physical takings occur when government appropriates right to exclude for third parties)
- Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978) (framework for regulatory takings balancing economic impact, investment-backed expectations, and character of government action)
- Mitchell v. Forsyth, 472 U.S. 511 (1985) (qualified immunity may be resolved pre-discovery if law was not clearly established)
- Rivas-Villegas v. Cortesluna, 142 S. Ct. 4 (2021) (clarifies when rights are "clearly established" for qualified-immunity purposes)
- City of Tahlequah v. Bond, 142 S. Ct. 9 (2021) (qualified-immunity standard reiteration)
- Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096 (10th Cir. 2010) (voluntary-cessation mootness doctrine applied to government actors)
- Brown v. Buhman, 822 F.3d 1151 (10th Cir. 2016) (Article III requires a live controversy at all stages; mootness doctrine explained)