Northland Baptist Church of St. Paul, Minnesota; John Bruski; Living Word Christian Center, Plaintiffs, Glow In One Mini Golf, LLC; Aaron Kessler; Myron‘s Cards and Gifts, Inc.; Larry Evenson; AJ Hulse Company; Andrew Hulse; Gay Bunch-Hulse, Plaintiffs - Appellants v. Governor Tim Walz, individually and in his official capacity; Attorney General Keith M. Ellison, in his official capacity; Mike Freeman, in his official capacity as County Attorney for Hennepin County, Minnesota; Anthony Charles Palumbo, in his official capacity as County Attorney for Anoka County, Minnesota; John Choi, in his official caрacity as County Attorney for Ramsey County, Minnesota, Defendants - Appellees
No. 21-2283
United States Court of Appeals For the Eighth Circuit
Filed: June 16, 2022
Submitted: February 17, 2022
The Forum for Constitutional Rights
Amicus on Behalf of Appellants
Appeal from United States District Court for the District of Minnesota
Before LOKEN, COLLOTON, and SHEPHERD, Circuit Judges.
In response to the COVID-19 pandemic, Minnesota Governor Tim Walz declared a state of “peacetime emergency” and began issuing executive orders (EOs) intended to combat the spread of the virus. The EOs pertinent to this appeal limited which types of businesses could continue operations and, later, specifiеd the capacities at which those businesses could operate. Appellants,
I.
On March 13, 2020, former President Donald Trump declared the United States to be in a state of emergency due to the COVID-19 pandemic and approved major disaster declarations in all 50 states and most territories. On this same day, Governor Walz issued EO 20-01, which declared Minnesota to be in a “peacetime emergency.” In that EO, Governor Walz explained:
The infectious disease known as COVID-19, an act of nature, has now bеen detected in 118 countries and territories, including the United States. COVID-19 has been reported in 42 states. There are over 1,600 confirmed cases nationwide, including fourteen in Minnesota.
The U.S. Department of Health and Human Services Secretary has declared a public health emergency for the United States to aid the nation‘s healthcare community in responding to COVID-19. The World Health Organization has recently assessed that this outbreak can be characterized аs a pandemic.
In coordination with other state agencies, local governments, and partners in the private sector, the Minnesota Department of Health . . . has been preparing for and responding to the COVID-19 pandemic in Minnesota.
R. Doc. 57-1, at 30.
Three days later, on March 16, Governor Walz issued EO 20-04 in response to a “rapidly increasing” number of confirmed COVID-19 cases within Minnesota‘s borders. This EO closed some “places of public accommodation,” which the EO defined as “a business, or an educational, refreshment, entertainment, or recreation facility, or an institution of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages, or accommodations are extended, offered, sold, or otherwise made available to the public.” R. Doc. 57-1, at 42. This included appellant Glow In One Mini Golf, LLC, an indoor mini-golf facility owned by appellant Aaron Kessler. EO 20-04 became effective March 17, 2020. On March 18, Governor Walz issued EO 20-08, which amended EO 20-04 to include, as relevant here, salons like appellant AJ Hulse Company, a hair salon with two locations owned by appellants Andrew Hulse and Gay Bunch-Hulse. EO 20-08 was effective immediately.
Appellants filed this action asserting that the EOs violated their constitutional rights, and Appellees filed a motion to dismiss, which the district court granted in part and denied in part. The district court granted sovereign immunity to appellees insofar as appellants sought monetary damages against them in their official capacities, denied sovereign immunity to appellees insofar as appellants sought declaratory and injunctive relief аgainst them in their official capacities, and granted qualified immunity to Governor Walz insofar as appellants brought claims against him in his individual capacity. The district court alternatively dismissed appellants’ equal protection and takings claims pursuant to
“We review the grant of the motion to dismiss de novo.” Allen v. Monico, 27 F.4th 1372, 1376 (8th Cir. 2022) (reviewing dismissal based on qualified immunity de novо); see also Butler v. Bank of Am., N.A., 690 F.3d 959, 961 (8th Cir. 2012) (reviewing dismissal for failure to state a claim pursuant to Rule 12(b)(6) de novo). “[W]e read the complaint in the light most favorable to the plaintiff, making all reasonable inferences of fact in the plaintiff‘s favor.” Allen, 27 F.4th at 1374. “When considering . . . a motion to dismiss under
We must first determine whether we have jurisdiction to consider appellants’ equal protection claim, a claim for which they request only declaratory and injunctive relief.
”
Here, appellants seek a declaration that
Governor Walz did not havе the statutory authority to declare an emergency . . . , issue shelter in place orders, authorize penalties in excess of his statutory authority, or otherwise restrict lawful activity . . . under the circumstances, and that the Attorney General does not have the authority to prosecute violations of the EOs using that authority,
R. Doc. 51, at 47, as well as a declaration that appellees “violated [their] equal protection rights . . . to operate their businesses without arbitrary and capricious government interference,” R. Doc. 51, at 47-48. Additionally, appellants request an injunction “prohibiting [appellees] from enforcing EO 20-74, and any additional, successor, or replacement executive orders which violate [their] rights.” R. Doc. 51, at 48.
However, EO 20-74 (as well as the other EOs challenged by appellants, though appellants focus on EO 20-74 in this claim) is no longer in effect, all capacity restrictions have lapsed, and Minnesota is no longer in a рeacetime emergency. Thus, because the issues presented by appellants’ equal protection claim lost their life during the course of this litigation, a declaration or an injunction by this Court cannot provide relief, and the claim has become moot. See Rice, 404 U.S. at 246 (“Early in its history, this Court held that it had no power to issue advisory opinions, and it has frequently repeated that federal courts are without power to decide questions that cannot affect the rights оf litigants in the case before them.” (citation omitted)); cf. Trump v. Hawaii, 138 S. Ct. 377, 377 (2017) (per curiam) (finding
However, our analysis does not end here because “[t]here is an exception to [the] mootness [doctrine] for cases that are capable of repetition yet evading review.” Calgaro v. St. Louis Cnty., 919 F.3d 1054, 1059 (8th Cir. 2019). The “capable of repetition yet evading review” exception is applicable “when there is a reasonable expectation that the alleged actions of the defendant[s] will recur.” Id. We have explained:
Under this doctrine, a case that would otherwise be moot is not if ‘(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again.
Whitfield, 3 F.4th at 1047 (alterations in original) (citation omitted); see also Murphy v. Hunt, 455 U.S. 478, 482 (1982) (per curiam) (requiring “a ‘rеasonable expectation’ or a ‘demonstrated probability’ that the same controversy will recur involving the same complaining party” (citation omitted)).
Beginning in 2020, the nation‘s understanding of COVID-19 changed rapidly, and states, like Minnesota, have been required to adapt their approach to accommodate those near-constant developments. In turn, federal courts across the country have been presented with novel questions of mootness. This Court, following the Supreme Court, has explained that although a lawsuit challenging a COVID-19 restriction may outlive that challenged restriction, “that does not necessarily moot the case.” See Hawse v. Page, 7 F.4th 685, 692 (8th Cir. 2021) (quoting Tandon v. Newsom, 141 S. Ct. 1294, 1297 (2021) (per curiam)). “At the same time, however, that the government once imposed a particular COVID restriction does not necessarily mean that litigation over a defunct restriction presents a live controversy in perpetuity.” Id. Instead, we must engage in a fact-specific аnalysis to determine if the issue is capable of repetition yet evading review. See id. (explaining that “[r]esolution of the mootness question requires attention to the particular circumstances of the case“).
In Minnesota, the governor may declare a peacetime emergency “only when an act of nature . . . endangers life and property and local government resources are inadequate to handle the situation.”
Here, it is appellants’ burden to prove that this issue is capable of repetition yet evading review. See Whitfield, 3 F.4th at 1047. However, they have not offered anything that supports their hypothesis that Governor Walz will, first, declare a second peacetime emergency and, then, will issue additional EOs—specifically, EOs like 20-74 that, in their view, treat them differently than other, similarly situated businesses and impede them from conducting their businesses as they wish. Instead, appellants state only that Governor Walz “could easily declare another peacetime emergency tomorrow” and “has stated ongoing concern about ‘variants’ which have led to a rise in COVID-19 cases among unvaccinated people.”
After carefully reviewing the allegations contained in appellants’ complaint, along with materials in the public record, materials necessarily embraced by the pleadings, and cases like Hawse, in which this Court (and other courts) have described developments in the state of the COVID-19 pandemic between 2020 and now, we find that there is no reasonable expectation that EO 20-74 is capable of repetition. Therеfore, we affirm the district court‘s dismissal of appellants’ equal protection claim, albeit on mootness grounds. See Adam & Eve Jonesboro, LLC v. Perrin, 933 F.3d 951, 958 (8th Cir. 2019) (“[W]e may affirm a judgment on any ground supported by the record.“).
However, our conclusion that appellants’ claim for declaratory and injunctive relief is moot does not preclude us from reaching appellants’ claim for damages against Governor Walz in his individual capacity. Therefore, we turn to the district court‘s finding that Governor Walz was entitled to qualified immunity on appellants’ takings claim.
“Qualified immunity is an immunity from suit, not merely a defense to liability,” and “[t]o avoid pretrial dismissal, a plaintiff must present facts showing the violation of a constitutional right that was clearly established at the time of the defendant‘s act.” Irvin v. Richardson, 20 F.4th 1199, 1204 (8th Cir. 2021). To determine if a state official is entitled to qualified immunity, we employ the familiar two-prong analysis, asking “(1) whether the facts shown by the plaintiff make out a violation of a constitutional or statutory right, and (2) whether that right was clearly established at the time of the defendant‘s alleged misconduct.” Burns v. Cole, 18 F.4th 1003, 1007 (8th Cir. 2021) (citation omitted). “Courts can ‘exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first.‘” Id. (citation omitted).
Here, appellants argue that Govеrnor Walz‘s EOs (specifically, EOs 20-04, 20-08, 20-18, 20-20, 20-33, 20-38, 20-48, and 20-56) constituted a per se taking or, in the alternative, a regulatory taking. A per se taking occurs where there is a “direct government appropriation of or physical invasion of private property.” Hawkeye Commodity Promotions, Inc. v. Vilsack, 486 F.3d 430, 440 (8th Cir. 2007) (citation omitted). A regulatory taking has traditionally been characterized as occurring when a regulation “goes too far.” See, e.g., id. (citation omitted). The Supreme Court recently clarified that when determining whether a рer se taking or a regulatory taking occurred, if either, the “essential question” is “whether the government has physically taken property for itself or someone else—by whatever means—or has instead restricted a property owner‘s ability to use his own property.” Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2072 (2021).
We need not parse through whether or not a taking occurred, however, because even assuming that a taking did occur, whatever its type, appellants have offered nothing to support thеir contention that, in 2020, the law was clearly established such that Governor Walz would have understood that his EOs constituted a taking.
“A Government official‘s conduct violates clearly established law when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right.‘” Williams v. Herron, 687 F.3d 971, 977 (8th Cir. 2012) (alterations in original) (citation omitted). “In other words, the right violated must have been established ‘bеyond debate.‘” Manning v. Cotton, 862 F.3d 663, 668 (8th Cir. 2017) (citation omitted). “[C]ourts must not define clearly established law at a high level of generality, since doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced.” Bell v. Neukirch, 979 F.3d 594, 607 (8th Cir. 2020) (alteration in original) (citation omitted). In performing the clearly established inquiry, we must “look to the state of the law at the time of the incident.” Williams, 687 F.3d at 977 (citation omitted).
We agree with the district court that Governor Walz is entitled to qualified immunity on this сlaim because appellants have not shown that Governor Walz‘s response to COVID-19—specifically, closing and then restricting the capacity of businesses deemed non-critical—was a taking under clearly established law. In appellants’ opening brief to this Court, they discuss why, in their view, Governor Walz‘s EOs constituted a taking, citing hallmark Takings Clause cases such as Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978). They suggest that, for decades, it has been clearly established
As a final matter, appellants do not point to, nor can we find, any instance in which the Supreme Court or this Court has held a government official individually liable for a government taking. Instead, Supreme Court cases оnly contemplate government entities—not individual government officials—providing just compensation. Recently, in Cedar Point Nursery, the Supreme Court, when discussing a physical taking, explained that the
Ultimately, we find that, in 2020, thе law was not clearly established such that Governor Walz would have understood that his issuance of the challenged EOs violated appellants’ constitutional right to just compensation for a government taking. We therefore affirm the district court‘s grant of qualified immunity and dismiss appellants’ takings claim.
III.
For the foregoing reasons, we affirm.
SHEPHERD
CIRCUIT JUDGE