ALICIA LOWE et al. v. JANET T. MILLS et al.
1:21-cv-00242-JDL
UNITED STATES DISTRICT COURT DISTRICT OF MAINE
February 23, 2024
PageID #: 2027
Jon D. Levy, CHIEF U.S. DISTRICT JUDGE
Thе remaining Defendants-Jeanne M. Lambrew, Commissioner of the Maine Department of Health and Human Services (“Department“), and Dr. Puthiery Va, Director of the Maine Center for Disease Control and Prevention (“Maine CDC“)-move to dismiss the outstanding claims against them as moot (ECF No. 188). The motion is premised on the removal of COVID-19 from the list of diseases against which workers in designated healthcare facilities (“DHCFs“) in Maine must be immunized under the DHCF worker immunization rule:
The procedural history of this case is complex, and includes three appeals to the United States Court of Appeals for the First Circuit and two petitions for writ of certiorari to the United States Supreme Court.1 The background and essential facts are set out in my prior decision, Lowe v. Mills, No. 1:21-cv-00242-JDL, 2022 WL 3542187, at *2-5 (D. Me. Aug. 18, 2022), and I do not repeat them here.
A. Remaining Defendants and Surviving Claims
In the wake of the First Circuit‘s decision (ECF No. 163) on the Plaintiffs’ appeal from my Order (ECF No. 156) granting the original Defendants’ prior Motions to Dismiss (ECF Nos. 107, 108, 109), the only surviving claims against the remaining Defendants, Commissioner Lambrеw and Dr. Va, are the Plaintiffs’ constitutional claims alleging violations of the First Amendment‘s guarantee of the free exercise of religion and the Fourteenth Amendment‘s equal protection guarantee (the “surviving claims“). The Plaintiffs’ other claims against Commissioner Lambrew and Dr. Va-alleging violations of Title VII of the Civil Rights Act of 1964; the Supremacy Clause of the United States Constitution,
B. Facts Underlying Defendants’ Latest Motion to Dismiss
The following facts, drawn from the Defendants’ Motion to Dismiss as well as the attached affidavit of Deputy Director of the Maine CDC Nancy Beardsley (ECF No. 188-1) and Maine CDC data on COVID-19 hospitalizations and deaths from January 2022 through August 2023 (ECF Nos. 188-2, 188-3), are largely uncontested by the Plaintiffs in their response to the pending motion. See Gonzalez v. United States, 284 F.3d 281, 288 (1st Cir. 2002) (acknowledging that courts may consider materials outside the pleadings on a Rule 12(b)(1) motion).
On May 11, 2023, the federal COVID-19 public health emergency ended. Maine‘s state-level COVID-19 health emergency, which when declared was designated to be coterminous with the federal public health emergency, ended that same day. Neither event came as a surprise; in late January 2023, the Biden Administration announced that it would end the federal public health emergency on May 11, 2023. That announcement, by implication, forecast an imminent, definitive end to the parallel health emergency in Maine declared under state law.
In late May and early June 2023, after the federal and state COVID-19 health emergency declarations had formally terminated, the Department and Maine CDC reviewed then-current risks of COVID-19 in healthcare settings for the stated purpose of ensuring that the State‘s rules and policies were consistent with the latest available science and research. That exercise included reviewing the evidentiary basis for the COVID-19 vaccination requirement in the DHCF worker immunization rule.3 The review revealed declining hospitalizations and deaths from COVID-19 in Maine since January 2022 as well as increasing rates of vaccination against
On August 31, 2023, the Department formally amended the DHCF worker immunization rule to remove COVID-19 and the attendant vaccination requirement; the amendment became effective on September 5, 2023. See
II. DISCUSSION
A. Threshold Question: What is the Scope of the Plaintiffs’ Claims?
In the Amended Complaint, the Plaintiffs challenge what they characterize as the “COVID-19 Vaccine Mandate,” ECF No. 152 at 2, ¶ 1, which they refer to alternatively as both the “Governor‘s COVID-19 Vaccine Mandate,” see, e.g., ECF No. 152 at 12, ¶ 31, and the “Governor‘s mandate,” see, e.g., ECF No. 152 at 2, ¶ 1. The
First, the specific document that the Plaintiffs identify as the mandate they challenge compels that conclusion. Both the Original Complaint (ECF No. 1) and the Amended Complaint incorporate as Exhibit A “a true and correct copy of the Governor‘s COVID-19 Vaccine Mandate” in the form of an August 12, 2021, announcement available on the website of the Office of Governor (ECF No. 1-1). ECF Nos. 1 at 15, ¶ 41; 152 at 12, ¶ 31. The “mandate” provided, in pertinent part:
The Maine Department of Health and Human Services (DHHS) and Center for Disease Control and Prevention (Maine CDC), utilizing their authority under existing law to require certain vaccinations of people who work in health care settings, issued an emergency rule that will require health care workers to be fully vaccinated [against COVID-19] by October 1, 2021.
The language that the Plaintiffs use in the Amended Complaint to describe the challenged “mandate” and the broader context established by the accompanying allegations further support this conclusion. The “COVID-19 Vaccine” qualifier plainly narrows the Plaintiffs’ claims as challenging the vaccination requirement for one of the diseases listed in the version of the regulation in effect after August 12, 2021, or, at most, the statutory exemptions as applied by enforcing that subsection of the rule.6 The “Governor” qualifier similarly limits the Plaintiffs’ сonstitutional challenges: promulgating the regulation is within the Governor‘s executive power, as exercised by the Department pursuant to
Nor dоes the Amended Complaint bring facial challenges to either the regulation or the statute. To facially challenge the DHCF worker immunization rule and the statute whose exemptions the rule expressly incorporates, the Plaintiffs must allege facts to support a claim that the regulation and statute are unconstitutional in every instance-i.e., whenever vaccination requirements for any and all diseases listed in the regulation may be enforced. See United States v. Salerno, 481 U.S. 739, 745 (1987) (“A facial challenge to a legislative Act is, of course, the most difficult
Instead, the Plaintiffs’ challenge has been and remains focused on the now-repealed COVID-19 vaccinаtion requirement in
The Amended Complaint does not contain allegations that support a reasonable inference that all of the vaccines for all of the diseases listed in the version of the DHCF worker immunization rule that included COVID-19 have some connection to aborted fetal cells. Thus, as pleaded, the Plaintiffs’ religious objections to receiving a COVID-19 vaccine do not apply to the remaining vaccines and the circumstances in which the statutory exemptions may apply. More fundamentally, the Plaintiffs do not allege any facts showing that they have standing to mount so broad a challenge. In sum, the Amended Complaint alleges an as-applied challenge to the tandem оperation of the regulation and section 802, but does not contain allegations supporting a facial challenge to either the rule or the statute.
B. Whether the Plaintiffs’ Claims are Moot
The Defendants’ Motion to Dismiss сenters on the following question: Did the Department‘s removal of COVID-19 from the DHCF worker immunization rule moot
Mootness manifests differently as to claims for declaratory and injunctive relief. “[R]equests for declaratory relief can only survive a mootness challenge where
The “proper vehicle” for challenging a court‘s subject-matter jurisdiction on the basis of mootness is
As а direct consequence of the Department removing the COVID-19 vaccination requirement from the DHCF worker immunization rule, which operated in tandem with section 802‘s exemptions to immunization, this Court cannot provide
In short, the Plaintiffs’ surviving claims are moot, and I therefore consider whether any exception to the mootness doctrine applies.
C. Whether an Exception to the Mootness Doctrine Applies
Two recognized exceptions to mootness are relevant here: the “voluntary cessation” exception and the “capable of repetition yet evading review” exception.
Government action that “withdraws or modifies a COVID restriction in the course of litigation . . . does not necessarily moot the case . . . where [plaintiffs] ‘remain under a constant threat’ that government officials will use their power to reinstate the challenged restrictions.” Tandon v. Newsom, 593 U.S. 61, 63 (2021) (quoting Roman Cath. Diocese v. Cuomo, 592 U.S. 14, 20 (2020)). Animatеd by such threats, the voluntary cessation exception exists “to stop a scheming defendant from trying to ‘immunize itself from suit indefinitely’ by unilaterally changing its behavior long enough to secure a dismissal’ and then backsliding when the judge is out of the picture-‘repeating this cycle until it achieves all its unlawful ends.‘” Boston Bit Labs, 11 F.4th at 10 (twice quoting Lewis, 813 F.3d at 59 (alteration omitted), then quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (alterations omitted)). The exception “can apply when a defendant voluntarily ceases the challenged practice in order to moot the plaintiff‘s case and there exists a reasonable expectation that the challenged conduct will be repeated’ after the suit‘s ‘dismissal.‘” Id. at 9 (quoting Lewis, 813 F.3d at 59) (alteration omitted). By contrast, the exception “does not apply’ if the change in conduct is ‘unrelated to the litigation.‘” Id. at 10 (quoting Lewis, 813 F.3d at 59). The party claiming mootness has the burden to show that the voluntary cessation exception does not apply. Id.
The Defendants contend that the Department repealed the COVID-19 vaccination requirement “based on changed circumstances of the COVID-19 pandemic, not on this litigation.” ECF No. 188 at 12. As evidence of this fact, the
In response, the Plaintiffs strive to cast the repeal decision as a bad-faith litigation tactic. Their reframing of the repeal decision rests on the close temporal proximity between the First Circuit‘s opinion in Lowe v. Mills, 68 F.4th 706 (1st Cir. 2023), aff‘g in part and rev‘g in part 2022 WL 3542187 (D. Me. Aug. 18, 2022), entered on May 25, 2023, and the launch of the Defendants’ review of the science underlying the COVID-19 vaccination rule in late May/early June 2023. The Plaintiffs contend that the review being launched on the heels of the First Circuit‘s decision is circumstantial evidence of a spurious scheme by the Defendants to rid themselves of a case they thought they had won, but that was revived on appeal.11
The meaning that the Plaintiffs attribute to the sequence of key events ignores the undisputed fact that the Defendants’ reassessment of the need for the vaccination requirement followed shortly after the federal and state COVID-19 public health emergencies ended on May 11, 2023. The Plaintiffs also overlook the fact that the reassessment coincided with the June 5, 2023, announcement of the withdrawal of the CMS rule. The Plaintiffs’ suggestion that the Defendants engaged in a bad faith litigation tactic, while not accounting for obviously relevant Federal and State governmental actions, is based on a substantially incomрlete and, therefore, misleading narrative of the relevant events. Further, the Plaintiffs have not supported their position with declarations under oath or exhibits, nor have they requested permission to perform discovery on the issue.
Accordingly, the Plaintiffs do not credibly dispute the fact that the review that led the Department to reconsider the continued need for the COVID-19 vaccination requirement for DHCF workers was prompted by the termination of the federal and Maine COVID-19 public health emergency declarations on May 11, 2023. It is
2. Exception for Conduct Capable of Repetition but Evading Review
The Plaintiffs fare no better with the other relevant exception to mootness, which relates to conduct capable of repetition but evading judicial review. This exception “applies only in exceptional situations’ where . . . ‘(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.‘” Spencer, 523 U.S. at 17 (first quoting City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983), then quoting Lewis v. Cont‘l Bank Corp., 494 U.S. 472, 481 (1990) (alterations omitted)). In contrast to the voluntary cessation
On this record, the Plaintiffs have not met their burden as to the second prong because they fail to present any positive, non-speculative evidence to support a reasonable expectation that they will be subject to the challenged COVID-19 vaccination requirement-or one substantially similar to it-again. Ne. Fla. Chapter of Associated Gen. Contractors v. City of Jacksonville, 508 U.S. 656, 662 & n.3 (1993). Nor do the Plaintiffs demonstrate a “probability” of the same. ACLU of Massachusetts, 705 F.3d at 57 (quotation marks omitted)). Instead, Plaintiffs pin their reasonable expectation argument on the Defendants’ (1) retained authority to amend the DHCF worker immunization rule in the future, leaving open the possibility that the Defendants could return COVID-19 to the rule‘s list of required vaccinations; and (2) refusal “to concede any unlawful conduct” in this litigation. ECF No. 195 at 17 (quoting ECF No. 188 at 14 n.5). Under similar circumstances, however, the First Circuit has squarely rejected the same argument.
In Boston Bit Labs, the First Circuit reiterated that the “sheer ‘power to reinstitute a challenged law is not a sufficient basis on which a court can conclude that a challenge remains live.‘” 11 F.4th at 11 (alteration omitted) (quoting Am. Bankers Assoc. v. Nat‘l Credit Union Admin., 934 F.3d 649, 661 (D.C. Cir. 2019)). That the Boston Bit Labs Court weighed the risk of recurrence in light of a governor‘s power to issue executive orders, 11 F.4th at 10, is a distinction without a difference. Here, the Plaintiffs’ alleged expectation of recurrence derives from the Department‘s
As a fallback, the Plaintiffs argue that the “Defendants have failed to make it absolutely clear that such deliberate conduct is unlikely to recur again.” ECF No. 195 at 18. This argument, however, conflates the Defendants’ burden as to the second prong of the voluntary cessation exception, see Friends of the Earth, Inc. v. Laidlaw Env‘t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (articulating the “absolutely clear” requirement), with the Plaintiffs’ burden to show that the conduct-capable-of-repetition exception to mootness applies.
The Plaintiffs have not presented any affirmative support to substantiate that their expectation that the challenged conduct will recur is reasonable. Accordingly, the conduct-capable-of-repetition exception to mootness does not apply.
III. CONCLUSION
Because the Plaintiffs’ surviving claims are moot following the repeal of the COVID-19 vaccination requirement from the DHCF worker immunization rule and no exception to mootness applies, it is ORDERED that the Defendants’ Motion to Dismiss (ECF No. 188) is GRANTED; the Plaintiffs’ request to amend the First Amended Complaint (ECF No. 195 at 5) is DENIED; and the First Amended Complaint (ECF No. 152) is DISMISSED.
SO ORDERED.
Dated this 23rd day of February, 2024.
/s/ Jon D. Levy
CHIEF U.S. DISTRICT JUDGE
Notes
ECF No. 195 at 5-6.State Defendants explicitly admit that it was not until “around the end of May 2023 and the beginning of June 2023,” that they purportedly “reviewed the available science and research on the then current risks of COVID-19 in healthcare settings.” (MTD 5.) And, on July 11, 2023, “the Department announced that it was proposing to end the requirement that DHCFs require their employees to be vaccinated against COVID-19.” (Id. at 7.) This timing is unequivocally relevant to the determination of whether State Defendants’ contentions of mootness have any merit. One need not ponder too long to see the importance of this admission. The First Circuit released its decision on Plaintiffs’ appeal of the dismissal of their Complaint on May 25, 2023, see
Lowe v. Mills, 68 F.4th 706 (1st Cir. 2023), and held that Plaintiffs had stated a claim upon which relief can be granted and that “it is plausible, in the absence of any factual devеlopment, that the Mandate” violates the Free Exercise Clause. Id. at 714. Thus, precisely “around the end of May 2023” (MTD 5) when the First Circuit held that Plaintiffs were entitled to probe their First and Fourteenth Amendment claims in discovery, State Defendants had a sudden revelation that they should reconsider the evidence concerning the Vaccine Mandate. That timing is critical here. After Plaintiffs fought for two years to have their day in Court, and despite State Defendants admitting that they were aware of changed circumstances concerning the risk of COVID-19 beginning “in January 2022” (MTD 6 (emphasis added)), State Defendants did nothing to alter the challenged Vaccine Mandate until the eve of discovery commencing in this Court. That is a litigation tactic, not a genuine change of heart, and it precludes a finding of mootness.