# Hartman v. Acton

> District Court, S.D. Ohio · November 3, 2020

URL: https://www.frixlaw.com/law-library/cases/10376645

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** November 3, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10376645

## How later opinions describe it (automated extraction)

- noting that orders of “less than two years’ duration ordinarily evade review.”
- 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.”
- finding prudential factors easily satisfied but noting tension between consideration of these factors and Supreme Court’s “recent reaffirmation of the principle that ‘a federal court's obligation to hear and decide’ cases within its jurisdiction ‘is virtually unflagging.’”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

TANYA RUTNER HARTMAN, and :
GILDED SOCIAL, :
:
Plaintiffs, : Case No. 2:20-CV-1952
:
v. : Chief Judge Algenon L. Marbley
:
AMY ACTON, :
In her official capacity as Director of the Ohio :
Department of Health, : Magistrate Judge Jolson
:
Defendant. :

ORDER
This matter is before the Court on Defendant’s Motion to Dismiss. (ECF No. 18). Plaintiffs
have filed a response, opposing the motion to dismiss (ECF No. 20) and Defendant has filed a
reply (ECF No. 22). For the reasons set forth below, this Court GRANTS Defendant’s Motion to
Dismiss.
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 Rule 12(b)(1) of the Federal
Rules of Civil Procedure, the plaintiff has the burden of proving jurisdiction. Moir v. Greater
Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990) (citing Rogers v. Stratton
Industries, Inc., 798 F.2d 913, 915 (6th Cir. 1986)). Federal Rule of Civil Procedure 12(b)(1)
motions to dismiss based upon subject matter jurisdiction generally come in two varieties: (1) a
facial attack on subject matter jurisdiction; and (2) a factual attack on subject matter
jurisdiction. See Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)

(identifying the two types of 12(b)(1) motions to dismiss). Facial attacks on subject matter
jurisdiction “merely question the sufficiency of the pleading.” Id. A facial attack on subject
matter jurisdiction is reviewed under the same standard as a 12(b)(6) motion to dismiss. Id. In a
factual attack on subject matter jurisdiction, a court “must ... weigh the conflicting evidence to
arrive at the factual predicate that subject matter jurisdiction exists or does not exist.” Id. Here,
Defendant challenges the sufficiency of the pleadings and does not contest the facts.
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, Rule 12(b)(6) requires more than bare assertions of legal
conclusions. Allard v. Weitzman, 991 F.2d 1236, 1240 (6th Cir. 1993) (citation omitted).
Generally, a complaint must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). In short, a complaint’s factual allegations
“must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). It must contain “enough facts to state a claim to relief that is plausible
on its face.” Id. at 570.
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 Fed. R. Civ.
P. 25(d). Accordingly, the claims against Dr. Acton in her official capacity are construed for the
purposes of this order as claims against the office of the Director of the Ohio Department of
Public Health, currently occupied by Lance Himes. Hafer v. Melo, 502 U.S. 21, 25 (1991)

(“Indeed, when officials sued in this capacity in federal court die or leave office, their successors
automatically assume their roles in the litigation.”).
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).
Article III, § 2 of the United States Constitution vests federal courts with jurisdiction to
address “actual cases and controversies.” Coalition for Gov't Procurement v. Fed. Prison Indus.,
Inc., 365 F.3d 435, 458 (6th Cir. 2004) (citing U.S. CONST. art III, § 2). Federal courts are
prohibited from rendering decisions that “do not affect the rights of the
litigants.” Id. (citing Southwest Williamson County Cmty. Assoc. v. Slater, 243 F.3d 270, 276
(6th Cir. 2001)). This is broadly known as justiciability doctrine and encompasses the concepts
of mootness and ripeness. A case becomes moot “when the issues presented are no longer live or
parties lack a legally cognizable interest in the outcome.” See Cleveland Branch, N.A.A.C.P. v.
City of Parma, OH, 263 F.3d 513, 530 (6th Cir. 2001) (quoting County of Los Angeles v.
Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979)). In essence, the mootness
doctrine posits that cases, which, due to changed circumstances, can no longer impact the
interests of the litigants, may not be adjudicated in the federal courts. See DeFunis v.
Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974) (finding moot plaintiff’s case

challenging the constitutionality of a state law school's admissions process where plaintiff was
nearing completion of his final year in law school when the case reached the United States
Supreme Court for review and he would not go through law school admission process again).
Finally, the “heavy burden” of demonstrating mootness falls on the party asserting it. Friends of
the Earth, Inc. v. Laidlaw Envtl. Servs (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145
L.Ed.2d 610 (2000)).
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 have completely and irrevocably eradicated the effects of the alleged
violation.” Los Angeles Cty. v. Davis, 440 U.S. 625, 631, 99 S. Ct. 1379, 1383, 59 L. Ed. 2d 642
(1979) (citing United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303
(1953)). See also Friends of the Earth, 528 U.S. at 170 (“[A] defendant claiming that its
voluntary compliance moots a case bears the formidable burden of showing that it is absolutely
clear the allegedly wrongful behavior could not reasonably be expected to recur.”). Even

voluntary cessation in the form of repealing a statute may not be sufficient to moot a case. See,
e.g. City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 71 L.Ed.2d
152 (1982) (holding that a city's repeal of part of an ordinance did not moot the case because “the
city's repeal of the objectionable language would not preclude it from reenacting precisely the
same provision if the District Court's judgment were vacated”). Here, Defendant does not argue
that such restrictions on businesses will not be imposed in the near future, only that “it is
speculative to assume that Dr. Acton would revert to the same restrictions on non-essential
businesses” and that future orders might include different types of restrictions. (ECF No. 43 at
35). This is insufficient to demonstrate that the alleged wrongful conduct will not be repeated

and that the Director will not reinstate the same Stay at Order should there be a resurgence of
new cases in the Fall.
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, 96 S.Ct. 347, 46 L.Ed.2d 350 (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 month); Colautti v. Doe, 592 F.2d 704, 707 (3d Cir.1979)
(sixty-day limit on inpatient hospital benefits).
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 Plaintiffs remaining causes of action are (1) a request to permanently enjoin the Director from
reapplying or enforcing certain provisions in the April 2020 order; (2) a request for damages
against Dr. Acton in her individual capacity; and (3) a request for costs and reasonable attorneys’
fees. Sixth Circuit caselaw requires courts to analyze ripeness by examining three factors: “(1)
that [plaintiff] has suffered an “injury in fact,” (2) that there is a “causal connection between the
injury and the conduct complained of,” and (3) that it is “likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.” Kiser v. Reitz, 765 F.3d
601, 607 (6th Cir. 2014). Courts also consider two other prudential factors when determining
ripeness: the fitness of the issue for judicial decision and the hardship to the parties of
withholding court consideration. Id. at fn 2. Defendant does not dispute that Plaintiff can
demonstrate all factors in relation to the April 2020 order since Plaintiffs alleged that they
suffered an economic injury as a result of the Amended Stay at Home Order and would suffer the
same injury again if that order were reissued, and Defendant has not represented that it will
decline to enforce the order against businesses who do not comply with its provisions to cease all
in person business should the order be re-issued. Id. at 609. Furthermore, the remaining
prudential ripeness factors, fitness and hardship are satisfied here since the issues are “purely
legal, and will not be clarified by further factual development” and a denial of review would
subject Plaintiffs to hardship since the failure to comply with the Stay at Home Orders would
subject them to criminal prosecution or fines. Susan B. Anthony List v. Driehaus, 573 U.S. 149,
B. 12(b)(6) Failure to State a Claim
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 ORC § 3701.13 and the Director’s Order arguing both are unconstitutionally vague
because they “lack any objective standards to prevent arbitrary and ad hoc enforcement and
decrees.” Id. at 5-6. They add that an Ohio state court judge has recognized this statute’s
constitutional infirmity in a recently decided case. Id.

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

167, 134 S. Ct. 2334, 2347, 189 L. Ed. 2d 246 (2014) (finding prudential factors easily satisfied
but noting tension between consideration of these factors and Supreme Court’s “recent
reaffirmation of the principle that ‘a federal court's obligation to hear and decide’ cases within its
jurisdiction ‘is virtually unflagging.’”).
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 applied to his particular case, not merely that the
statute could be construed as vague in some hypothetical situation.” United States v. Krumrei,
258 F.3d 535, 537 (6th Cir. 2001) (citing United States v. Powell, 423 U.S. 87, 92, 96 S.Ct. 316,
46 L.Ed.2d 228 (1975)); see also Wayne Watson Enterprises, LLC v. City of Cambridge, 243 F.
Supp. 3d 908, 926 (S.D. Ohio 2017), aff'd, 751 F. App'x 760 (6th Cir. 2018). To survive a
vagueness challenge, the contested statute or regulation must: (1) “give the person of ordinary
intelligence a reasonable opportunity know what is prohibited”; (2) “provide explicit standards
for those who enforce them” to prevent “arbitrary and discriminatory enforcement”; and (3) not
impinge upon first amendment rights.” Grayned v. City of Rockford, 408 U.S. 104, 108-09

(1972).
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, Oh. Rev. C. § 3701.13.2 By its terms, Oh. Rev. C. §
3701.13 delegates ultimate authority in matters of quarantine to the Department of Health for the

protection of human life. This specific statute does not criminalize any conduct3 and does not
prohibit or compel Plaintiffs to act in a certain way, it merely provides the Health Department
with authority over the preservation of life and matters of quarantine. Accordingly, Plaintiffs
lack standing to challenge this statute on its face. See Wayne Watson Enterprises, LLC v. City of
Cambridge, 751 F. App'x 760, 766 (6th Cir. 2018) (noting that plaintiff lacked standing to
challenge as vague an ordinance that authorized construction of access road because the
ordinance did not regulate or criminalize Plaintiff’s conduct in any way).

2 Oh. Rev. C. § 3701.13 provides, in relevant part: “The department of health shall have
supervision of all matters relating to the preservation of the life and health of the people and have
ultimate authority in matters of quarantine and isolation, which it may declare and enforce, when
neither exists, and modify, relax, or abolish, when either has been established. The department
may approve methods of immunization against the diseases specified in section 3313.671 of the
Revised Code for the purpose of carrying out the provisions of that section and take such actions
as are necessary to encourage vaccination against those diseases.”
3 Two provisions, which Plaintiffs do not challenge as unconstitutionally vague, do criminalize
violations of the Department of Health or Director of Health’s orders. Section 3701.352
provides: “[n]o person shall violate any rule the director of health or department of health adopts
or any order the director or department of health issues under this chapter to prevent a threat to
the public caused by a pandemic, epidemic, or bioterrorism event.” Section 3701.56 provides:
“[b]oards of health of a general or city health district, health authorities and officials, officers of
state institutions, police officers, sheriffs, constables, and other officers and employees of the
state or any county, city, or township, shall enforce quarantine and isolation orders, and the rules
the department of health adopts.”
Even if Plaintiffs had standing to challenge this statute, the fact that this statute provides
the Director of Health with discretion to promulgate regulations to protect human life does not
render the statute void for vagueness. While the Due Process Clause does prohibit the
“standardless delegation of power” to private persons, here, power is delegated to an executive
branch official, not a private person. See Ctr. for Powell Crossing, LLC v. City of Powell, Ohio,

173 F. Supp. 3d 639, 675 (S.D. Ohio 2016) (citing Eubank v. Richmond, 226 U.S. 137, 33 S.Ct.
76, 57 L.Ed. 156 (1912) and Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116,
49 S.Ct. 50, 73 L.Ed. 210 (1928)). The Supreme Court has held as unconstitutional laws that
“impermissibly delegate[] basic policy matters to policemen, judges, 4 and juries for resolution
on an ad hoc and subjective basis.” Grayned v. City of Rockford, 408 U.S. 104, 108–09, 92 S. Ct.
2294, 2299, 33 L. Ed. 2d 222 (1972). The Sixth Circuit and other courts have recognized,
however, that this principle of nondelegation inherent in the void for vagueness doctrine does not
extend to delegations of discretion to legislative and executive-type officials. See Ass'n of
Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545, 552 (6th Cir. 2007) (granting

motion to dismiss finding no violation of vagueness doctrine where ordinance was not criminal
statute and delegated authority to City Council to grant exemptions from statute requiring
firefighters to live in the city); Soules v. Kauaians for Nukolii Campaign Comm., 849 F.2d 1176,
1184 (9th Cir. 1988) (delegation of authority to local council to determine when election should
be held did not violate vagueness doctrine since “void for vagueness doctrine does not apply to

4 The Supreme Court has reigned in this theory in Beckles v. United States, 137 S. Ct. 886
(2017). In Beckles, the Supreme Court determined that the advisory sentencing guidelines were
not void for vagueness. Id. at 895. In so holding, the Supreme Court noted that it has “never
suggested that unfettered discretion can be void for vagueness” since prior to the guidelines,
judges were permitted to exercise almost complete discretion in determining a Defendant’s
sentence.
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 Oh. Rev. C. § 3701.13 does not violate the vagueness doctrine’s
prohibition on the delegation of authority to “policemen, judges, and juries” since the statute
delegates policy-making power to an executive branch, here the Department of Health, where
that authority is customarily placed.5 Accordingly, Plaintiffs have failed to state a valid void for
vagueness claim against Defendant Acton.
2. Procedural Due Process
Defendant also moves to dismiss Plaintiffs’ procedural due process claims, arguing that
the Director’s Order does not require a post-deprivation hearing since it is a law of general

applicability. (ECF No. 18 at 26-27). Plaintiffs argue that the Director’s Stay at Home Order is
not a law of general applicability since The Director is a state executive branch official and thus
does not possess the power to legislate. (ECF No. 20 at 14).
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

5 Nearly every state has similar laws delegating authority with respect to public health and
matters of quarantine to a Department of Health or comparable agency or executive official such
as a governor. See State Quarantine and Isolation Statutes, National Conference of State
Legislatures (Feb. 27, 2020), https://www.ncsl.org/research/health/state-quarantine-and-
isolation-statutes.aspx.
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 right to hearing was triggered
by agency action where it was applicable “across the board all common carriers” and “no effort
was made to single out any particular railroad for special consideration based on its own peculiar
circumstances.”); Neinast v. Bd. of Trustees of Columbus Metro. Library, 346 F.3d 585, 596–97

(6th Cir. 2003) (“Governmental determinations of a general nature that affect all equally do not
give rise to a due process right to be heard.”).
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

6 To the extent Plaintiffs seek to indirectly renew their non-delegation claims within this argument by arguing that
characterizing the Director’s Order as legislative would contravene state non-delegation law, this Court reiterates its
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

prior determination that this Court lacks jurisdiction to determine claims relating to state law against the Director.
(ECF No. 7 at 6-7) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 117 (1984)).
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).
To assess whether an official should be cloaked with immunity from suit, a Court is
required to engage in two-tiered inquiry. Martin v. City of Broadview Heights, 712 F.3d 951, 957
(6th Cir. 2013) (citing Saucier v. Katz, 533 U.S. 194 (2001)). First, a court must determine
whether, viewing the facts in the light most favorable to a plaintiff, she has alleged that the
defendant-official’s conduct violated a constitutionally protected right. Pearson v. Callahan, 555
U.S. 223, 232, 129 S. Ct. 808, 816, 172 L. Ed. 2d 565 (2009). Second, the court must determine
whether that right was clearly established such that a reasonable official, at the time the act was
committed, would have understood that his behavior violated that right. Jd. The Court can
consider the prongs in any order, and the officer is entitled to qualified immunity if either is not
met. Id.; see also Doe v. Miami Univ., 882 F.3d 579, 604 (6th Cir. 2018) (internal citations
omitted).
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. ZS
IT IS SO ORDERED. So) i
ALGENON L. MARBL ———
DATED: November 3, 2020 CHIEF UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10376645. Public record. Not legal advice.