LIGHTHOUSE FELLOWSHIP CHURCH, Plaintiff – Appellant, v. RALPH NORTHAM, in his official capacity as Governor of the Commonwealth of Virginia, Defendant – Appellee.
No. 21-1153
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
December 14, 2021
PUBLISHED
Before KING, AGEE, and THACKER, Circuit Judges.
Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Arenda L. Wright Allen, District Judge. (2:20-cv-00204-AWA-RJK). Argued: October 27, 2021. Vacated and remanded by published opinion. Judge King wrote the opinion, in which Judge Agee and Judge Thacker joined.
ARGUED: Daniel Joseph Schmid, LIBERTY COUNSEL, Orlando, Florida, for Appellant. Michelle Shane Kallen, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF: Mathew D. Staver, Anita L. Staver, Horatio G. Mihet, Roger K. Gannam, LIBERTY COUNSEL, Orlando, Florida, for Appellant. Mark R. Herring, Attorney General, Samuel T. Towell, Deputy Attorney General, Jacqueline C. Hedblom, Assistant Attorney General, Toby J. Heytens, Solictor General, Jessica Merry Samuels, Deputy Solicitor General, Kendall T. Burchard, John Marshall Fellow, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
Plaintiff Lighthouse Fellowship Church initiated this civil action in the Eastern District of Virginia in April 2020 against defendant Ralph Northam, the Governor of Virginia, challenging the legality of executive orders the Governor issued to combat the spread of COVID-19. Lighthouse Church alleged that Governor Northam’s executive orders discriminated against its religious exercise, in contravention of various constitutional and statutory provisions. The Complaint named Governor Northam in his official capacity only, seeking, inter alia, declaratory and injunctive relief. Nine months later, the district court ruled that Governor Northam was entitled to sovereign immunity under the
The specific executive orders that Lighthouse Church challenged expired in June of 2020, and the state of emergency in Virginia upon which they were predicated ended on July 1, 2021. The end of the state of emergency terminated all outstanding COVID-19-related executive orders. Lighthouse nevertheless contends on appeal that these proceedings are not moot because two exceptions to the mootness doctrine are applicable: first, the “voluntary cessation” exception and, second, the exception
I.
A.
Lighthouse Church, a subsidiary of a religious organization incorporated in Maryland, has a small church in Accomack County, Virginia, where it conducts regular worship services. Lighthouse challenged two of the executive orders issued by Governor Northam to slow the spread of COVID-19 in Virginia, asserting that they restricted Lighthouse’s ability to conduct in-person worship services in the early months of the рandemic. The Complaint alleged that those orders — Executive Order 53 (“EO 53”) and Executive Order 55 (“EO 55”) — contravened the Constitutions of both the United States and Virginia, as well as federal and state statutes, because they discriminated against religious exercise.
On March 12, 2020, Governor Northam, by Executive Order 51 (“EO 51”), declared a state of emergency in Virginia due to the spread of COVID-19. The declaration of emergency authorized the Governor to issue executivе orders to manage the emergency. See
Governor Northam, pursuant to his statutory authority under
B.
Following the April 5, 2020 church service and citation, the evolving public health situation in Virginia prompted several new executive orders. Shortly after EOs 53 and 55 took effect, Governor Northam and his team developed a phased reopening plan that would restart activities in Virginia and gradually return the life of the Commonwealth and its citizens to normal. Each phase of the reopening plan provided specific exceptions for religious services, and Lighthouse Church does not maintain that any of the executive orders issued subsequent
The reopening plan had three phases. Phase One thereof, which began in Accomack County on May 29, 2020, exempted attendance at religious services from the general 10-рerson gathering limit specified in EO 53. During that phase, attendance at religious services was limited to “50% of the lowest occupancy load on the certificate of occupancy of the room or facility in which the religious services [were] conducted.” See J.A. 274. Phase Two of the reopening plan, which began on June 5, 2020, prohibited gatherings of more than 50 persons, but contained an exception for religious services, allowing them to continue at 50% capacity. Phase Three, effective on July 1, 2020, exempted religious services from the otherwise applicable 250-person gathering limit, effectively eliminating restrictions on the number of individuals that could gather and attend in-person religious services.
On May 28, 2021, Governor Northam issued Executive Order 79, which ended nearly all COVID-19-related restrictions in Virginia, including all caps on in-person gatherings. Finally, on July 1, 2021, the state of emergency in Virginia ended and all remaining COVID-19-related executive orders were terminated.
C.
Lighthouse Church filed its Complaint against Governor Northam in the Eastern District of Virginia on April 24, 2020, when EOs 53 and 55 were yet in effect. The Complaint alleged that EOs 53 and 55 contravened the United States Constitution’s
On May 1, 2020, the district court entered an order denying the requested TRO and preliminary injunction. See Lighthouse Fellowship Church v. Northam, No. 2:20-cv-00204 (E.D. Va. May 1, 2020), ECF No. 16. Lighthouse Churсh then lodged an immediate appeal from the preliminary injunction denial to this Court. On October 13, 2020, we dismissed Lighthouse’s appeal as moot. See Lighthouse Fellowship Church v. Northam, No. 20-1515 (4th Cir. Oct. 13, 2020), ECF No. 31.3
On July 6, 2020, Governor Northam moved in the district court for dismissal of the Complaint pursuant to
II.
On appeal, Lighthouse Church first contends — as it must — that this dispute has not been mooted by the circumstances now
A.
The mootness doctrine is rooted in the case-or-controversy limitation on federal judicial power contained in
As explained above, both of the executive orders that Lighthouse Church specifically challenged in its Complaint — EOs 53 and 55 — expired in Junе of 2020. And all of the COVID-19-related executive orders terminated on July 1, 2021, when the state of emergency in Virginia ended. It is thus clear to us that these proceedings no longer present a live controversy, absent some exception to mootness being applicable. We will thus examine the applicability of the two exceptions asserted by Lighthouse — the “voluntary cessation” exception and the exception for “wrongs capable of repetition yet evading review.”4
B.
Pursuant to the “voluntary cessation” exception, a civil action does not become moot when a defendant voluntarily ceases its allegedly improper behavior, if there is a reasonable chance that the behavior will resume. The Supreme Court has recognized that the standard for determining whether a pending case “has been mooted by the defendant’s voluntary conduct is stringent: A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” See Friends of the Earth, 528 U.S. at 189 (internal quotation marks omitted); see also Incumaa v. Ozmint, 507 F.3d 281, 288 (4th Cir. 2007) (explaining that the voluntary cessation exception “does not apply where there is no reasonable expectation that the wrong will be repeated” (internal quotation marks omitted)).
Although it is not easy to make a sufficient showing that the voluntary cessation exception does not apply, it is not impossible.
EOs 53 and 55 were terminated more than 17 months ago. And it is compelling that all COVID-19-related executive orders issued by Governor Northam subsequent to EOs 53 and 55 contained exceptions for religious exercise and have now ended. Lighthouse Church maintained at oral argument of this appeal, however, that it was under a “constant threat” of reinstatement by the Governor of the restrictions on religious exercise contained in EOs 53 and 55. As primary support for that position, Lighthouse relies on the Supreme Court’s decision late last year in Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020). In that proceeding, the Governor of New York had implemented a color-coded system, imposing severe restrictions on attendance at religious services in geographical areas classified as “red” or “orange” zones. Id. at 65-66. When the dispute reached the Court, the Governor had reclassified the zones where the plaintiff houses of worship were located from “orange” to “yellow” — and the “yellow” zone provided for a lower level of unchallenged restrictions on worship services. Id. at 68. In those circumstances, the Court ruled that the dispute was not moot. Id. As the Court explained, the Governor had regularly “chang[ed] the classification of particular areas without prior notice. If that occurr[ed] again, the reclassification [would] almost certainly bar individuals in the affected area from attending services before judicial relief [could] be obtained.” Id.5
Consistent with the First Circuit’s observation in a dispute very similar to this one, we are satisfied that “night-and-day differences separate” the Lighthouse Church’s case from the dispute before the Supreme Court in Catholic Diocese. See Bos. Bit Labs, Inc. v. Baker, 11 F.4th 3, 11-12 (1st Cir. 2021) (concluding that challenge to long-expired COVID-19 restrictions was moot); see also Hawse v. Page, 7 F.4th 685, 692-94 (8th Cir. 2021) (ruling that appellants lacked standing to sue and that their challenge to long-expired COVID-19 restrictions was moot). That distinction is due to the fact that all executive orders issued by Governor Northam concerning the COVID-19 pandemic expired when the state of emergency in Virginia ended on July 1, 2021. With the termination of the state of emergency, the Governor’s power to issue new executive
Additionally, the current circumstances are materially different from those present at the outset of the pandemic, when the Supreme Court rendered its Catholic Diocese decision. We are now better informed concerning COVID-19. The availability of vaccines and other measures to combat the virus have led to a significant change in the relevant circumstances — including the resumption of pre-COVID-19 activities — as evidenced by the removal of many restrictions. Finally, with the benefit of the Catholic Diocese decision — unambiguously barring discrimination against religious institutions during the pandemic without satisfying strict scrutiny review — it is entirely speculative to assert that Governor Northam will declare a new state of emergency in Virginia and reinstate restrictions on rеligious exercise that have not been in place for more than a year.
A finding of mootness in this action is also entirely consistent with our own precedent. Although we have not heretofore addressed mootness in the specific context of COVID-19-related restrictions, a recent published decision provides strong support for Governor Northam. In June of this year, in American Federation of Government Employees v. Office of Speciаl Counsel, 1 F.4th 180 (4th Cir. 2021), we assessed a
Lighthouse Church does not dispute the legality of any executive order that followed EOs 53 and 55. To avoid mootness, it instead argues that the entirе regime of Governor Northam’s executive orders discriminated against religious exercise because the regime permitted the Governor to impose new restrictions at any time. That contention, however, has no limiting principle. Lighthouse’s contention implies that, absent a change in Virginia law that would limit the Governor’s emergency powers, this controversy remains live. We decline to rule that such a change in Virginia law is necessary to moоt this dispute. Rather, it is “absolutely clear” that the challenged restrictions in EOs 53 and 55 cannot be reasonably expected to be reinstated. See Friends of the Earth, 528 U.S. at 189.6
C.
We
The first inquiry before us in cоnsidering this exception is whether EOs 53 and 55 were inherently limited in duration, which would have prevented them from being fully litigated prior to their expiration. Notably, the Supreme Court has found a period of as long as two years too short to complete judicial review in the context of the exception for wrongs capable of repetition yet evading review. See Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1976 (2016). And Lighthouse Church argues that, because the lifespans of EOs 53 and 55 were about 30 days, those executive orders were inherently limited in duration. Although Lighthouse has also indicated that it is challenging the entire longer-lasting regime of Governor Northam’s executive orders — and not just EOs 53 and 55 — we will assume without deciding that the “inherently limited in duration” requirement has been satisfied.
The second inquiry for this exception — whether there is a reasonable expectation that Lighthouse Church will again be subjected to the challenged acts — is very similar to the analysis of the voluntary cessation exception. The Supreme Court has explained that “a mere physical or theoretical possibility” is insufficient to satisfy this second inquiry. See Murphy v. Hunt, 455 U.S. 478, 482 (1982). And as we have elaborated, “conjecture as to the likelihood of repetition has no place in the application of this exceptional and narrow grant of judicial power to hear cases for which there is in fact a reasonable expеctation of repetition.” See Incumaa, 507 F.3d at 289 (internal quotation marks omitted). In this situation, there is simply no reasonable expectation that Lighthouse will again be subjected to executive orders along the lines of EOs 53 and 55, which expired in June 2020. Governor Northam has a track record which shows that EOs 53 and 55 — issued at a time of great uncertainty and without the benefit of the
* * *
Because the executive orders that Lighthouse Church challenges are no longer in effect and no exception to mootness is applicable, there is presently no live controversy between the parties in these proceedings. And because this civil action is moot, we vacate the district court’s judgment without reaching or addressing the issue concerning Governor Northam’s entitlement to sovereign immunity.
III.
Pursuant to the foregoing, we vacate and remand for dismissal of this civil action as moot.
VACATED AND REMANDED