TANYA RUTNER HARTMAN, and GILDED SOCIAL v. AMY ACTON, In her official capacity as Director of the Ohio Department of Health
Case No. 2:20-CV-1952
IN
November 3, 2020
Chief Judge Algenon L. Marbley; Magistrate Judge Jolson
ORDER
This matter is before the Court on Defendant’s Motion to Dismiss. (ECF No.
I. BACKGROUND
This Court incorporates by reference the statement of facts set forth in its April 21, 2020 Order denying Plaintiffs’ Motion for a Temporary Restraining Order (“TRO”). (ECF No. 7). Since that Order, Director Acton’s April 2, 2020 Stay at Home Order (“Stay at Home Order”) at issue in the TRO proceedings has expired and Ms. Hartman has been permitted to resume her normal business operations. Nonetheless, Ms. Hartman, as owner and operator of bridal shop Gilded Social, has filed an amended complaint continuing to challenge the provisions of the April 2, 2020 Stay at Home Order and Director Acton’s authority to promulgate such an order. (ECF No. 15). Ms. Hartman brings claims against Director Acton in her official and individual capacity for declaratory and injunctive relief and damages. (ECF No. 15). Defendant, Dr. Acton, has brought a Motion to Dismiss this amended complaint arguing that this Court lacks subject matter jurisdiction over Plaintiffs’ claims and that the complaint fails to state a viable claim for relief. (ECF No. 18). Plaintiffs have responded opposing this motion and Defendant has timely filed a reply. (ECF No. 20; No. 22). On June 11, 2020, Dr. Acton resigned as the Director of the Ohio Department of Public Health (“the Director”).
II. STANDARD OF REVIEW
A. 12(b)(1)
When subject matter jurisdiction is challenged pursuant to
B. 12(b)(6)
This Court may dismiss a cause of action under 12(b)(6) for “failure to state a claim upon which relief can be granted.” A 12(b)(6) motion “is a test of the plaintiff’s cause of action as stated in the complaint, not a challenge to the plaintiff’s factual allegations.” Golden City of Columbus, 404 F.3d 950, 958-59 (6th Cir. 2005). The Court must construe the complaint in the light most favorable to the non-moving party. Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008). This Court is not required, however, to accept as true mere legal conclusions unsupported by factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although liberal,
III. ANALYSIS
In her motion to dismiss, Defendant argues that this Court lacks jurisdiction over Plaintiffs’ claims and the complaint fails to state a viable claim for relief. Specifically, Defendant makes the following arguments: (1) the Eleventh Amendment to the Constitution bars state law claims and claims for non-prospective declaratory and monetary relief against Dr. Acton in her official capacity; (2) Plaintiffs have no standing to bring claims on behalf of other businesses; (3) that Plaintiffs’ claims are moot and not ripe to the extent they relate to potential future orders that could be issued; (4) and that the amended complaint fails to state a valid claim for vagueness, impermissible delegation, violation of procedural due process, or violation of equal protection. (ECF No. 18).
Plaintiffs have filed a response clarifying that they are not: (1) seeking damages against Dr. Acton in her official capacity, nor requesting declaratory relief on the basis of her past conduct, nor challenging her conduct on the basis of state law; (2) Plaintiffs are not bringing their claims on behalf of a class; and (3) bringing claims for impermissible delegation pursuant to the U.S. Constitution, noting “the delegation authority to [sic] AMY ACTION under state law does not directly give rise to a claim under the federal constitution, see Motion to Dismiss, at 16-18.” (ECF No. 20 at 1). Accordingly, to the extent these claims are raised in Plaintiffs’ amended complaint, they are hereby DISMISSED.
In their response, Plaintiffs oppose the remainder of Defendant’s motion to dismiss, arguing: (A) that although Dr. Acton’s Stay at Home Order has expired, this matter is not moot since she has voluntary ceased the allegedly illegal conduct and the capable of repetition and evading review exception to mootness applies; (B) their complaint states a valid claim that the Director’s order was unconstitutionally vague; (C) their complaint states a valid claim that the Director’s order violated their rights to procedural due process; and (D) Dr. Acton is not entitled to qualified immunity for the claims brought against her in her individual capacity. This Court will address each of these arguments in turn.
A. 12(b)(1) Lack of Subject Matter Jurisdiction - Mootness / Ripeness
On June 11, 2020, Dr. Acton resigned as the Director of the Ohio Department of Public Health. Although Dr. Acton is no longer serving as the Director of the Ohio Department of Public Health, the claims brought against her in her official capacity are not moot. Although it is true that state officials “literally are persons,” suits against state officials in their official capacity are “no different from a suit against the State itself” since they are “a suit against the official’s office.” Will v. Michigan Dep‘t of State Police, 491 U.S. 58, 71 (1989). Additionally, claims made against a public official in their official capacity do not terminate when the official leaves office; instead, the “officer’s successor is automatically substituted as a party.” See
Defendant argues that Plaintiffs’ amended complaint should be dismissed as moot because it relates to a Stay at Home order that is no longer in effect. (ECF No. 18 at 12). Defendant also argues that to the extent that Plaintiffs’ complaint addresses the potential impact of any future orders to be issued by Dr. Acton, those claims should be dismissed for lack of ripeness. Id. at 34. Plaintiffs argue that their claims are not moot since the alleged conduct was voluntarily ceased and the Director’s order could be reinstated at any time. Plaintiffs add that even if considered moot, the capable of repetition yet evading review exception to mootness applies. (ECF No. 20 at 2).
There are, however, two exceptions to the mootness doctrine. First, a case will not be dismissed where a plaintiff‘s claim has been mooted by a defendant‘s voluntary cessation of allegedly improper behavior. Id. at 189. Second, a case will not be dismissed even when a plaintiff‘s claim has become moot if the circumstances are such that the injury is capable of repetition, yet evading review. Weinstein v. Bradford, 423 U.S. 147, 148–49, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975).
Defendant argues that Plaintiffs’ claims regarding the now expired Stay at Home Order should be dismissed as moot since Plaintiffs can only obtain prospective declaratory and injunctive relief against state officials, pursuant to the Eleventh Amendment. A case is only considered moot by the defendant’s voluntary cessation of the conduct at issue, however, if the defendant can show that “there is no reasonable expectation that the wrong will be repeated” or “interim relief or events
Furthermore, even if the expiry of the order rendered Plaintiffs’ claims moot, the issues in this case fall into the other exception to the mootness doctrine: that the conduct at issue here is capable of repetition yet evading review. The Supreme Court recognizes an exception to mootness in cases that are “capable of repetition, yet evading review.” See Murphy v. Hunt, 455 U.S. 478, 102 S. Ct. 1181, 71 L.Ed.2d 353 (1982). The Court has explained that, “in the absence of a class action, the ‘capable of repetition, yet evading review’ doctrine [is] limited to the situation where two elements combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration; and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” Weinstein v. Bradford, 423 U.S. 147, 149 (1975). The Director’s Stay at Home Order was designed as a short measure intended to “avoid an imminent threat” and stem the spread of a new and virulent disease. (ECF No. 15-1 at 13).
The first prong of the “capable of repetition, yet evading review” doctrine is satisfied since each version of the Director’s Stay at Home Order contained an expiration date that was less than two months after the issuance of that order and the Supreme Court and other courts recognize challenged conduct as evading reviewing when the relevant duration is less than two years. See Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1976, 195 L. Ed. 2d 334 (2016) (applying capable of repetition yet evading review mootness exception and noting “[w]e have previously held that a period of two years is too short to complete judicial review of the lawfulness of the procurement.”); Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (nine months for pregnancy); Kentucky v. U.S. ex rel. Hagel, 759 F.3d 588, 596 (6th Cir. 2014) (approximately 6-month period between solicitation of bids for Army contract and new vendor’s contract); People for the Ethical Treatment of Animals, Inc. v. United States Fish & Wildlife Serv., 59 F. Supp. 3d 91, 97 (D.D.C. 2014) (noting that orders of “less than two years’ duration ordinarily evade review.”); Granato v. Bane, 74 F.3d 406, 411 (2d Cir. 1996) (hospitalization lasting less than a
The second prong is also satisfied here since the Supreme Court and Sixth Circuit have emphasized that the proper focus is whether “‘the controversy was capable of repetition and not ... whether the claimant had demonstrated that a recurrence of the dispute was more probable than not.’” Lawrence v. Blackwell, 430 F.3d 368, 371 (6th Cir. 2005) (citing Honig v. Doe, 484 U.S. 305, 319 n. 6, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) (emphasis in original)). Defendant repeatedly defends the Stay at Home Orders arguing that it is within the Director’s legal purview to impose such restrictions. Furthermore, in light of the realistic prospect of a resurgence of the virus in the fall, it is reasonable to expect that the Director may impose the same or a similar order in the future. Accordingly, such an action is “capable of repetition” and Plaintiffs’ claims are not moot.
In finding that Plaintiffs’ claims are not moot, however, this Court will not entertain speculative or hypothetical future provisions that could be imposed by the Director in the future and will constrain its review to the constitutionality of the April 2, 2020 Stay at Home Order. Defendant argues that Plaintiffs’ complaint should be dismissed to the extent that Plaintiffs “seek relief regarding orders that could possibly be issued by Dr. Acton in the future” since those claims would not be ripe. (ECF No. 18 at 34).
Just as with mootness, ripeness doctrine is also drawn from Article III of the Constitution and is a threshold jurisdictional inquiry. See Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n. 18, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993). Ripeness doctrine prevents “the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements ... and also [exists] to protect ... from judicial interference until a[ ] ... decision has been formalized and its effects felt in a concrete way by the challenging parties.” Kiser v. Reitz, 765 F.3d 601, 606 (6th Cir. 2014) (citing Abbott Labs. v. Gardner, 387 U.S. 136, 148–49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)). A claim is not ripe if “it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (internal quotation marks omitted). Accordingly, “ripeness is ‘a question of timing.’” Cleveland Branch, N.A.A.C.P. v. City of Parma, OH, 263 F.3d 513, 533 (6th Cir. 2001) (finding that Plaintiff’s claims were ripe since “[t]his case is not anchored in future events that have not occurred, but in events that have already occurred”).
As Defendant indicates, any challenge to a future hypothetical order issued by the Director would not be ripe since the specifics of future orders and the impact of those orders on Plaintiffs are not before this court. Plaintiffs, however, have clarified that they are not seeking a declaratory judgment that any future hypothetical orders should be held unconstitutional, focusing their claims instead on the constitutionality of the Director’s expired April 2020 order. Defendant concedes this fact, noting that the “Amended Complaint seeks relief with respect to the Amended Order, which is no longer in effect.” (ECF No. 18). Accordingly, since Plaintiff does not seek to enjoin the enforcement of a hypothetical future order and Defendant does not challenge the ripeness of Plaintiffs’ claims as they are presented in relation to the April 20 Stay at Home Order, this Court need not conduct a formal ripeness analysis.1
1. Vagueness
Defendant argues that Plaintiffs have not stated a valid void for vagueness claim since the terms of the Director’s Stay at Home Order are clear, Plaintiffs understood they were not categorized as an Essential Business Operation (as that term is defined in the Order), and Plaintiffs “simply disagree with the conclusion that their business was not essential.” (ECF No. 18 at 23). Plaintiffs counter that their vagueness challenge is not only premised on fair notice to the individuals affected by the Stay at Home Order, but is also based on the notion that “if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them.” (ECF No. 20 at 5). Plaintiffs essentially launch a facial challenge against
The void for vagueness doctrine comes from the Due Process Clause and prohibits civil and criminal laws that fail “to give ordinary people fair notice of the conduct [they] punishes, or [are] so standardless that [they] invite[] arbitrary enforcement.” Johnson v. United States, 135 S. Ct. 2551, 2556 (2015). The nature of the statute dictates the standard to be applied, with civil laws “held to a less strict vagueness standard than criminal laws ‘because the consequences of imprecision are qualitatively less severe.’” Buckle Up Festival, LLC v. City of Cincinnati, 336 F. Supp. 3d 882, 886 (S.D. Ohio 2018) (citing Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498, 102 S. Ct. 1186, 1193, 71 L. Ed. 2d 362 (1982)). Where a contested statute does not implicate the First Amendment, a court is required to examine the vagueness challenge “in the light of the facts of the case at hand” and Plaintiff “bears the burden of establishing that the statute is vague as
As to the vagueness challenge to the Director’s Amended Stay at Home Order, this Court has already determined that the language of the Stay at Home Order is clear and that officials enforcing this Order have clear standards by which to enforce that Order. (ECF No. 7 at 10-12). As this Court determined previously, Plaintiffs do not argue that this Order was enforced against them, let alone discriminatorily enforced against them but not a similar business classified as “non-essential,” and their submissions to this Court indicate that they understood that the Order applied to their business. Accordingly, the Director’s Amended Stay at Home Order is neither vague because it fails to give notice nor vague because it is so “standard less that it invites arbitrary enforcement.” Johnson, 135 S. Ct. at 2556.
Plaintiffs’ vagueness challenge also fails with respect to the Ohio statute authorizing The Director to issue the Stay at Home Order,
this fundamental delegation of authority to the legislative body”); Brockert v. Skornicka, 711 F.2d 1376, 1382 (7th Cir. 1983) (granting defendants’ motion for summary judgement finding no violation of Due Process vagueness doctrine where ordinance was not criminal statute and delegated authority to city mayor, the “city’s executive department,” and thereby placed discretion “where it has been customarily and appropriately exercised” in deciding to grant exemptions for rule requiring city employees to live in the city). Here, the delegation of authority to the Department of Health in
2. Procedural Due Process
Defendant also moves to dismiss Plaintiffs’ procedural due process claims, arguing
To state a claim for a violation of procedural due process, a Plaintiff must allege: “(1) that it had a life, liberty, or property interest protected by the Due Process Clause of the Fourteenth Amendment; (2) that it was deprived of that protected interest within the meaning of
the Due Process Clause; and (3) that the state did not afford it adequate procedural rights before depriving it of its protected interest.” Golf Vill. N. LLC v. City of Powell, Ohio, 333 F. Supp. 3d 769, 778 (S.D. Ohio 2018) (citing Med. Corp., Inc. v. City of Lima, 296 F.3d 404, 409 (6th Cir. 2002)). Since the majority of the issues disputed by the parties remain the same, this Court adopts and incorporates by reference its analysis of Plaintiff’s procedural due process claim made in its Order addressing Plaintiffs’ Motion for a Temporary Restraining Order (ECF No. 7 at 12-20). In that Order, this Court determined that while Plaintiffs do have a property interest in the continued operation of their business, but their procedural due process rights were not violated nor implicated by the Director’s Stay at Home Order since it was an order of general applicability and “the rights of an individual affected by a law of general applicability ‘are protected in the only way that they can be in a complex society, by [the affected individual’s] power, immediate or remote, over those who make the rule.’” (ECF No. 7 at 15) (citing Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445 (1915) and Logan v. Zimmerman Brush Co., 455 U.S. 422, 433 (1982))
Plaintiffs’ sole deviation from their position taken during the TRO proceeding relates to whether the Director’s Stay at Home Order can be properly categorized as a legislative act which requires no procedural due process guarantees. Plaintiffs argue that principles of comity and federalism require this Court to view the Director’s Order as administrative, since Ohio law considers the Director to be a direct and immediate subordinate of the Governor, and as such, is “indisputably an executive branch officer for which state principles of separation of powers precludes her actions from being legislative.” (ECF No. 20 at 11).
The determination of whether an act is adjudicative or legislative is made pursuant to federal law since Plaintiffs claim that the Director’s actions violated their due process rights under the United States Constitution. See Smith v. Jefferson Cty. Bd. of Sch. Comm‘rs, 641 F.3d 197, 216 (6th Cir. 2011) (applying federal law when assessing whether activities of Board of School Commissioners were legislative or adjudicatory); Convey It, Inc. v. Chatfield, No. 3:10-CV-457, 2012 WL 4088873, at *3 (S.D. Ohio Sept. 17, 2012) (noting that because the source of the right at issue was the United States Constitution, federal law governs the issue of whether the regulation was legislative or administrative act). As this Court has already determined, both the Sixth Circuit and the Supreme Court reject formalistic distinctions when determining whether an act is legislative or adjudicative and categorize as legislative those rules and regulations adopted by administrative agencies that are intended to apply to large groups equally and which do not target the rights of one individual. (ECF No. 7 at 16); see also United States v. Florida East Coast Ry., 410 U.S. 224 (1973) (determining that no due process
Plaintiffs argue that the Director can never act in a “legislative function” but Plaintiffs do not even cite any state law that supports that administrative agencies can never act in a legislative capacity when rulemaking. (ECF No. 20 at 14). This Court also could not locate any authority supporting this argument. In fact, Ohio law supports the proposition that administrative officers and agencies can act in quasi-legislative manner when they make rules and that the delegation of such rule-making power is not per se unconstitutional pursuant to the Ohio constitution.6 See
DeMoise v. Dowell, 10 Ohio St. 3d 92, 93–94, 461 N.E.2d 1286, 1288 (Oh. 1984) (noting it is “well established that the state can directly exercise its police power concerning public health or it may delegate that power to other governmental agencies”); State v. Schreckengost, 30 Ohio St. 2d 30, 32–33, 282 N.E.2d 50, 52 (Oh. 1972) (determining that legislation authorizing the Division of Parks and Recreation to makes rules and regulations necessary to proper management of parks and bodies of water was not unconstitutional delegation of legislative authority); Fortner v. Thomas, 22 Ohio St. 2d 13, 13, 257 N.E.2d 371, 372 (Oh. 1970) (noting that Ohio courts are not permitted to conduct “judicial review of quasi-legislative proceedings of administrative officers and agencies” and are limited to deciding “whether such rules are reasonable and lawful as applied to the facts of a particular justiciable case.”); Belden v. Union Cent. Life Ins. Co., 143 Ohio St. 329, 342, 55 N.E.2d 629, 635 (Oh. 1944) (noting that “legislative acts granting to a board or an administrative agency quasi-legislative or quasi judicial power, have been uniformly sustained where the General Assembly has laid down the policy and established the standards while leaving to an administrative agency the making of subordinate rules within prescribed limits and the determination of facts to which the legislative policy is to apply.”).
Accordingly, Plaintiffs have failed to state claim for violation of their procedural due process rights, since the Director’s Stay at Home Order was a general applicable regulation and no post-deprivation hearing was required.
3. Qualified Immunity
Lastly, Defendant argues she is entitled to qualified immunity because it is not clearly established that the statute she relied on as the authority for her Stay at Home Order was unconstitutionally vague and because there was no underlying violation of Plaintiffs’ rights. (ECF No. 45). Plaintiffs oppose the request for qualified immunity, arguing that the requirement for a post deprivation hearing is “sufficiently clear to a reasonable official when a decree or conduct related thereto deprive or infringes a liberty or property right.” (ECF No. 20 at 18).
Here, Plaintiffs have failed plausibly to allege the violation of a constitutional right. Accordingly, this Court need not determine whether the alleged right was clearly established, and Defendant is entitled to qualified immunity.
IV. CONCLUSION
For these reasons stated above, this Court GRANTS Defendant’s Motion to Dismiss. This case is dismissed with prejudice.
IT IS SO ORDERED.
ALGENON L. MARBLEY
CHIEF UNITED STATES DISTRICT JUDGE
DATED: November 3, 2020