Case v. Ivey

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

JENNIFER CASE, et al., )

)

Plaintiffs, )

)

v. ) CASE NO. 2:20-CV-777-WKW

) [WO]

KAY IVEY, in her individual )

capacity and official capacity as )

Governor of Alabama, et al., )

)

Defendants. )

MEMORANDUM AND OPINION ORDER

I. INTRODUCTION

More than a year ago, on January 21, 2020, the first case of the Novel

Coronavirus (“COVID-19”) was confirmed in the United States. See First Travel-

related Case of 2019 Novel Coronavirus Detected in United States, CDC

NEWSROOM, cdc.gov/media/releases/2020/p0121-novel-coronavirus-travel-

case.html (last visited May 19, 2021). Since that time, COVID-19 has rapidly spread

throughout the country, infecting at least 33,079,543 individuals, and it is listed as a

cause of death in 591,265 deaths. See COVID Data Tracker, covid.cdc.gov/covid-

data-tracker/#cases_totalcases (last visited June 1, 2021). The State of Alabama,

like the rest of the country, has not been spared from the devastating effects brought

on by the virus. To date, Alabama has confirmed 543,405 cases of COVID-19 and

11,146 Covid-related deaths. See Coronavirus Resource Center, JOHNS HOPKINS

UNIVERSITY & MEDICINE, coronavirus.jhu.edu/region/us/alabama (last visited June

1, 2021).

This case centers on certain proclamations and orders issued by the Governor

of Alabama, Kay Ivey, and State Health Officer, Dr. Scott Harris (collectively

“Defendants”), to stem the tide of the COVID-19 pandemic in Alabama. Plaintiffs

Jennifer Case, Rebecca Callahan, Pastor Mark Liddle, Pastor Jim Nelson, Dr. R.S.

Porter, Scott Farr, and Bruce Ervin (collectively “Plaintiffs”) filed suit against

Defendants to challenge these proclamations and orders. Before the court are

Defendants’ Motion to Dismiss (Doc. # 42), and Plaintiffs’ Motion for Preliminary

Injunction (Doc. # 2). For the reasons stated below, Defendants’ Motion to Dismiss

is due to be granted, and Plaintiffs’ Motion for Preliminary Injunction is due to be

denied as moot.

II. JURISDICTION AND VENUE

The court has subject matter jurisdiction under 28 U.S.C. §§ 1331, 1343. The

parties do not dispute personal jurisdiction or venue.

III. STANDARD OF REVIEW

“To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. This standard “is not akin to a

‘probability requirement,’ but it asks for more than a sheer possibility that [the]

defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). “For

purposes of Rule 12(b)(6) review, . . . a court generally may not look beyond the

pleadings.” United States ex rel. Osheroff v. Humana Inc., 776 F.3d 805, 811 (11th

Cir. 2015).

Defendants challenge the court’s subject matter jurisdiction by arguing that

Plaintiffs lack standing to challenge the expired, rescinded, or otherwise terminated

provisions from past COVID-19 orders. An attack on subject matter jurisdiction

under Federal Rule of Civil Procedure 12(b)(1) may be either a facial attack or a

factual attack. Lawrence v. Dunbar, 919 F.2d 1525, 1528–29 (11th Cir. 1990) (per

curiam). A facial attack simply challenges the sufficiency of the plaintiff’s

jurisdictional allegations, which are taken as true. Id. at 1529. Factual attacks

challenge “the existence of subject matter jurisdiction in fact, irrespective of the

pleadings, and matters outside the pleadings, such as testimony and affidavits, are

considered.” Id. (quoting Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511

(5th Cir. 1980)). All questions regarding Plaintiffs’ standing can be resolved on the

face of the complaint.

IV. BACKGROUND

On March 13, 2020, the President of the United States declared COVID-19 a

national emergency. That same day, Governor Ivey issued her own proclamation

declaring that a state public health emergency existed in Alabama due to the presence

of COVID-19. (Doc. # 40-1.) Following Governor Ivey’s initial declaration,

Defendants issued a string of proclamations and orders that imposed various

restrictions and offered nonbinding guidelines to combat the spread of the virus. Due

to the fluidity of the pandemic, and as more information about COVID-19 came to

light, the substance of Defendants’ proclamations and orders evolved with the

passage of time. Given the nature of this case and the number of proclamations and

orders at issue, it is necessary to discuss the authority under which Defendants acted

and to detail the substance of their proclamations and orders.

A. Defendants’ authority to issue proclamations and orders related to COVID-

19

Beginning with Governor Ivey’s authority, the Alabama Emergency

Management Act (“AEMA”) vests her with certain powers to respond to emergency

situations like the COVID-19 pandemic. See Ala. Code § 31-9-1 et seq. The AEMA

defines a state public health emergency as “[a]n occurrence or imminent threat of an

illness that . . . [i]s believed to be caused by . . . [t]he appearance of a novel . . .

infectious agent” and “[p]oses a high probability of” death or serious disability. §

31-9-3(4)(a)-(b). Amidst a state public health emergency, “the Governor is

authorized and empowered . . . [t]o make, amend, and rescind the necessary orders,

rules, and regulations to carry out the provisions” of the AEMA. § 31-9-6(1). The

statute also provides that “the Governor shall have and may exercise” emergency

powers “[t]o enforce all laws, rules, and regulations relating to emergency

management”; “[t]o perform and exercise such other functions, powers and duties

as are necessary to promote and secure the safety and protection of the civilian

population”; and “[t]o employ such measures . . . as may be reasonably necessary

for the purpose of securing compliance with the provisions of [the AEMA] or with

the findings or recommendations of such boards of health by reasons of conditions

arising” from the emergency at hand. § 31-9-8(a)(1), (5), (6). Governor Ivey’s

proclamations issued in response to the COVID-19 pandemic squarely fall within

the framework of the AEMA.

For his part, Dr. Harris, as the State Health Officer of Alabama, “shall . . .

keep himself informed in regard to all diseases which may be in danger of invading

the state and, as far as authorized by law, take prompt measures to prevent such

invasions . . . .” Ala. Code § 22-2-8. Dr. Harris also possesses the authority to

“adopt and promulgate rules and regulations providing proper methods and details

for administering the health and quarantine laws of the state . . . .” § 22-2-2(6).

These “rules and regulations shall have the force of law and shall be executed by the

same courts, bodies, officials, agents, and employees as in the case of health laws

. . . .” Id. The authority outlined above demonstrates that Alabama law provides Dr.

Harris with the ability to issue orders in response to COVID-19.

It is also worth noting a broader principle at play in this case—Defendants’

authority to enact policies (like the ones challenged here) in the face of an emergency

is derived from the state’s “police power.” See Barnes v. Glen Theatre, Inc., 501

U.S. 560, 569 (1991) (“The traditional police power of the States is defined as the

authority to provide for the public health, safety, and morals . . . .”); see also State

Police Power, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining state police

power as “the power of a state to enforce laws for the health, welfare, morals, and

safety of its citizens, if enacted so that the means are reasonably calculated to protect

those legitimate state interests.”).

B. Substance of Defendants’ orders and proclamations

The Governor’s first declaration, on March 13, 2020, noted the presence of

COVID-19 in Alabama and that the virus’s appearance “in the State indicat[ed] the

potential of widespread exposure to an infectious agent that pose[d] significant risk

of substantial harm to a large number of people.” (Doc. # 40-1, at 1.) Four days

later, on March 17, 2020, Dr. Harris issued an order titled “Order of the State Health

Officer Suspending Certain Public Gatherings Due to the Risk of Infection by

COVID-19.” (Doc. # 40-1, at 4.) Dr. Harris’s order established that “the State Board

of Health ha[d] designated COVID-19 to be a disease of epidemic potential, a threat

to the health and welfare of the public, or otherwise of public importance.” (Doc. #

40-1, at 4.) Moreover, the order implemented a ban on “all gatherings of 25 persons

or more, or gatherings of any size that [could not] maintain a consistent six-foot

distance between persons” in Blount, Saint Clair, Shelby, Tuscaloosa, and Walker

counties. (Doc. # 40-1, at 4.) The restriction applied “to all gatherings, events, or

activities that [brought] 25 or more persons in a single room or a single space at the

same time.” (Doc. # 40-1, at 4.)

On March 18, 2020, Governor Ivey issued a supplemental declaration

proclaiming “the existence of conditions that warrant[ed] implementation of

additional extraordinary measures and relief during the state health emergency now

in effect in order to guard public health and protect human life.” (Doc. # 40-1, at 7.)

The declaration, among other things, rescheduled the primary runoff election and

required the closure of all K-12 public schools until April 6, 2020. (Doc. # 40-1, 7–

8.)1 The next day, Dr. Harris issued an order, applicable statewide, that reiterated

the ban on gatherings of twenty-five persons or more, closed beaches, and imposed

certain restrictions on senior citizen centers, hospitals, nursing homes, long term care

facilities, bars, restaurants, and breweries. (Doc. # 40-1, at 10–12.) Dr. Harris issued

1 This proclamation came on the heels of the national “15 Days to Slow the Spread”

campaign, which encouraged individuals to heed the directions of state and local authorities and

to adopt social-distancing measures like avoiding gatherings of more than ten people. See The

President’s Coronavirus Guidelines for America, justice.gov/doj/page/file/1258511/download

(last visited June 1, 2021).

another order on March 20, 2020, clarifying that the ban on gatherings of twenty-

five persons or more applied to “all non-work related gatherings” and instructed that

employers “shall take all reasonable steps” to comply with the restriction for

employees and customers. (Doc. # 40-1, at 15.)

On March 27, 2020, Dr. Harris issued an amended order with increased

restrictions. That order banned “all non-work related gatherings of 10 persons or

more, or non-work related gatherings of any size that [could] not maintain a

consistent six-foot distance between persons . . . .” (Doc. # 40-1, at 18–19.) The

order also closed certain “non-essential” businesses and venues and prohibited

various sports and fitness activities from taking place. As relevant to the instant

case, the March 27, 2020 order closed “close-contact service providers,” such as

barber shops. (Doc. # 40-1, at 19.)

Then, on April 3, 2020, Dr. Harris issued a statewide “Stay at Home” order.

(Doc. # 40-2, at 1–8.) The Stay at Home order instructed individuals “to stay at his

or her place of residence except as necessary to perform” certain “essential

activities” like obtaining necessary supplies, obtaining or providing necessary

services, attending religious services, taking care of others, attending work, engaging

in outdoor activities, seeking shelter, traveling as required by law, and visiting

family members. Regarding the exception for attending religious services, the Stay

at Home order specified that “[a] person may leave his or her place of residence to

attend an event that is a religious service, wedding, or funeral” provided that “the

event involve[d] fewer than 10 people and the people maintain[ed] a consistent six-

foot distance from one another” or if the event was a “drive-in”2 worship service.

(Doc. # 40-2, at 2–3.) Additionally, the Stay at Home order defined “[r]eligious

entities, including religious and faith-based facilities, entities and groups” as

“essential businesses and operations.” (Doc. # 40-2, at 4, 6.)

Later in month, on April 28, 2020, Dr. Harris issued an amended order titled

“Safer at Home” (Doc. # 40-8), which began easing certain restrictions imposed by

the Stay at Home order. For instance, the Safer at Home order no longer instructed

individuals to stay at their residence except to perform essential activities. Instead,

the order reinstituted the ban on “all non-work related gatherings of 10 persons or

more, or non-work related gatherings of any size that [could not] maintain a

consistent six-foot distance between persons from different households . . . .” (Doc.

# 40-8, at 2.) The order also permitted “drive-in gatherings of any size” provided

the gatherings complied with various rules. See infra n.2 (defining rules for drive-

in gatherings). As defined in the order, “non-work related” gatherings included

“church services, weddings, funerals services, social gatherings, concerts, festivals,

sporting events, and similar events.” (Doc. # 40-8, at 3.) While the Safer at Home

2 The order required participants at drive-in worship services to remain in their vehicles

for the entirety of the service, to share the same residence as other participants in their vehicle, and

to maintain six feet of distance from participants in other vehicles.

order walked backed certain restrictions, higher-risk businesses like entertainment

venues, athletic facilities, and close-contact service providers remained closed. (See

Doc. # 40-8, at 4.)

On May 8, 2020, in an effort to “preserve the economic well-being of the

citizens of Alabama,” Governor Ivey issued a declaration wherein she “determined

that businesses should begin to reopen in May 2020 while following the applicable

public health guidance to protect employees, customers, and members of the public.”

(Doc. # 40-2, at 9–10.) Following the Governor’s declaration, Dr. Harris issued an

amended Safer at Home order that allowed close-contact service providers and

athletic facilities to reopen on May 11, 2020. (Doc. # 40-2, at 17–18.) The amended

Safer at Home order also prohibited “all non-work related gatherings of any size that

[could not] maintain a consistent six-foot distance between persons from different

households . . . .” (Doc. # 40-2, at 16.) Moreover, Dr. Harris’s order provided that

“[o]rganizers of religious gatherings are strongly encouraged to read and implement

the Alabama Department of Health’s ‘Guidelines for Places of Worship’ . . . .” (Doc.

# 40-2, at 16.) These guidelines recommended that places of worship in Alabama

implement COVID-19 screening protocols for employees and volunteers, that they

increase their hygiene practices, and that they institute various social distancing

measures. (Doc. # 40-5, at 19.) But they did not require those measures.

On June 30, 2020, Governor Ivey issued another emergency declaration.

(Doc. # 40-3, at 1.) That declaration is important for two reasons. First, Governor

Ivey used her authority under the AEMA to incorporate Dr. Harris’s latest Safer at

Home order, which was attached to the declaration, for the purposes of complying

with the Alabama Administrative Procedure Act (“AAPA”).3 Specifically, the

declaration promulgated the attached Safer at Home order “as an order, rule, or

regulation under the applicable provisions of the [AEMA].” (Doc. # 40-3, at 12

(citing Ala. Code §§ 31-9-6(1) and 31-9-13).) All of Governor Ivey’s subsequent

declarations incorporated Dr. Harris’s Safer at Home orders in the same fashion.

Second, the declaration introduced, for the first time, enforcement language: “The

law-enforcing authorities of the state shall enforce [the Safer at Home] order as any

other order, rule, or regulation promulgated by the Governor . . . and the penalty for

violating it shall be a fine of not more than $500 or imprisonment in the county jail

. . . .” (Doc. # 40-3, at 12.) Similar enforcement language appeared in subsequent

declarations.

3 Dr. Harris’s authority to issue emergency rules (i.e., Safer at Home orders) was set to

expire under the AAPA on July 15, 2020. See Ala. Code § 41-22-5(b)(1) (providing that

emergency rules “may be effective for a period of not longer than 120 days and shall not be

renewable”); Ala. Code § 41-22-5(b)(2) (“An agency shall not adopt the same or substantially

similar emergency rule within one calendar year from its adoption unless the agency clearly

establishes it could not reasonably be foreseen during the initial 120-day period that such

emergency would continue or would likely reoccur during the next nine months.”).

The next major development concerning Defendants’ COVID-19 policies

came on July 15, 2020, when the Safer at Home order was amended to include a

“mask requirement.” (Doc. # 40-4, at 1.) The order read

[E]ach person shall wear a mask or other facial covering that covers his

or her nostrils and mouth at all times when within six feet of a person

from another household in any of the following places: an indoor space

open to the general public, a vehicle operated by a transportation

service, or an outdoor public space where ten or more people are

gathered.

(Doc. # 40-4, at 4.) Importantly, the mask requirement contained exceptions for

practical necessity, physical exercise, effective communication, constitutionally

protected activity, and essential job functions. (Doc. # 40-4, at 4–5.) Under the

practical necessity exception, children six years of age or younger did not have to

wear a mask nor did individuals with a medical condition or disability that prevented

them from wearing a facial covering. Further, under the constitutionally protected

activity exception, individuals actively providing or obtaining access to religious

worship did not have to wear a mask, though they were strongly encouraged to do

so. While the order preempted “any municipal ordinances concerning the use of

facial coverings to prevent the spread of COVID-19,” it provided that if the mask

requirement was rescinded, “orders of county health officers and municipal

ordinances pertaining to COVID-19 facial coverings may take effect according to

their terms.” (Doc. # 40-4, at 13.)

From July 2020 to March 2021, Governor Ivey extended the Safer at Home

order by various declarations. (Doc. # 53-1, at 2.) These versions of the Safer at

Home order were substantially similar to the July 15 Safer at Home order as it relates

to Plaintiffs’ challenges in this case. Namely, the Safer at Home orders from July

15, 2020, to March 22, 2021, contained each of the following: (1) a ban on all non-

work related gatherings of any size that could not maintain a consistent six-foot

distance between persons from different households; (2) guidelines for places of

worship; (3) a mask requirement subject to enumerated exceptions; and (4) general

enforcement language.

On April 7, 2021, Governor Ivey changed course by issuing a new “Safer

Apart” health order. (Doc. # 53-2.) The Safer Apart order provided that “[a]lthough

COVID-19 remains a serious public health threat, . . . a new approach to COVID-19

mitigation measures is warranted based on rising vaccination rates, decreasing

confirmed cases of COVID-19, and decreasing numbers of hospitalizations and

deaths attributable to the virus.” (Doc. # 53-2, at 2.) As relevant here, the Safer

Apart order rescinded the mask requirement, removed all social distancing

restrictions on gatherings, and did not contain guidelines for places of worship. The

Safer Apart order expired by its own terms on May 31, 2021. See THE OFFICE OF

ALABAMA GOVERNOR, Twenty-seventh Supplemental State of Emergency:

Coronavirus (COVID-19), governor.alabama.gov/newsroom/2021/05/twenty-

seventh-supplemental-state-of-emergency-coronavirus-covid-19/ (last visited June

1, 2021).

C. Plaintiffs

Plaintiff Jennifer Case (“Case”) is a wife, mother, and homemaker who

teaches her two children at home. She alleges that Defendants’ proclamations and

orders have “denied her [the] right to attend the church of her choice, and to exercise

the mode of worship and articles of faith to which she is guaranteed by both the

Constitution of Alabama and the First Amendment to the United States

Constitution.” (Doc. # 40, at 3.) To this end, Case testifies that her church “stopped

having worship services on March 15, 2020, in compliance with the Governor’s

executive order . . . .” (Doc. # 40-6, at 3.) However, Case also testifies that her

church “resumed worship services in May 2020 but require[d] attendees to wear

masks,” thus preventing her from attending. (Doc. # 40-6, at 3.) Concerning her

inability to wear a mask, Case testifies that “she has a medical condition that makes

it difficult to breathe properly while wearing a mask” and “that when she has tried

to wear a mask, it has quickly caused a severe headache and sore throat.” (Doc. #

40-6, at 3.) According to Case, various stores, shops, and restaurants have denied

her admission due to her inability to wear a mask. Case also alleges that she does

not allow her children to wear a mask because doing so would violate her beliefs as

a parent.

Plaintiff Rebecca Callahan (“Callahan”) works as a school bus driver for the

Shelby County, Alabama School District and has held that position for fifteen years.

She testifies that on August 13, 2020, the Shelby County School Board implemented

a policy requiring school bus drivers to wear face masks at all times while driving

their buses. (Doc. # 40-6, at 9.) According to Callahan, she believes that the school

board instituted this policy to comply with Defendants’ mask requirement. Callahan

alleges that she “believes that wearing . . . a facial covering while in transport of

small children is a danger to them and to her personally and deprives her of personal

freedom to define her own appearance.” (Doc. # 40, at 4.)

Plaintiff Mark Liddle (“Liddle”) is the Pastor of Dominion Baptist Church, in

Shelby County, Alabama. Plaintiff Jim Nelson (“Nelson”) is the Pastor of Church

of the Living God, in Lawrence County, Alabama. Both Liddle and Nelson allege

that Defendants’ actions have resulted in the denial of “their right to preach and

conduct ‘in person’ services at their respective churches and to conduct their services

in a manner to which they are accustomed.” (Doc. # 40, at 4.) They further allege

that they have “been denied their right in accordance with their faith to provide

prayer and loving care to the sick, elderly, and distraught of society.” (Doc. # 40, at

4.) Based on these allegations, Liddle and Nelson contend that Defendants violated

their constitutional rights of assembly and religious liberty.

Plaintiff Dr. R.S. Porter (“Porter”) is a licensed chiropractor. He and his wife

own and operate a chiropractic clinic in Huntsville, Alabama, called Functional

Chiropractic. Porter alleges that his “business was severely damaged by the

Defendants’ actions and orders when patients cancelled and/or refused to keep

appointments because of said orders and a requirement to wear facial coverings.”

(Doc. # 40, at 4.) Moreover, Porter alleges that “his property interest and family

income were taken by the discriminatory and unfair mandate of the Defendants

which affected his business.” (Doc. # 40, at 4.)

Plaintiffs Scott Farr (“Farr”) and Bruce Ervin (“Ervin”) are co-owners of a

barber shop in Shelby County, Alabama, called the Male Room. Both Farr and Ervin

testify that Defendants’ orders resulted in the closure of their business from March

18, 2020 until May 1, 2020. (Doc. # 40-6, at 20–21.) Although Defendants’ orders

permitted close-contact service providers, like the Male Room, to reopen on May

11, 2020, Farr and Ervin “felt obligated” to open on May 1 because they told their

employees and customers that they would do so. As a result of opening their doors

ten days early, Farr and Ervin testify that they received nine citations from the City

of Hoover, Alabama. (Doc. # 40-6, at 20–21.) Farr and Ervin allege that

Defendants’ orders closing their business “were arbitrary, discriminatory, and an

unjust seizure of their personal and real property in . . . violation of their rights under

both the Fifth and Fourteenth Amendments to the United States Constitution and the

Constitution of the State of Alabama.” (Doc. # 40, at 5.)

Plaintiffs bring eight causes of action against Defendants (in both their official

and individual capacities), seeking both injunctive and monetary relief: (1) a void

for vagueness challenge under the Fifth Amendment; (2) an establishment clause

challenge under the First Amendment; (3) a free exercise challenge under the First

Amendment; (4) a freedom of assembly challenge under the First Amendment; (5)

a substantive due process challenge under the Fifth Amendment; (6) a “takings”

challenge under the Fifth Amendment; (7) a contracts clause challenge under the

Tenth Amendment; and (8) a separation of powers challenge under the Alabama

Constitution.

Defendants advance several arguments in favor of their motion to dismiss

Plaintiffs’ second amended complaint. First, sovereign immunity (for official

capacity claims) and qualified immunity (for individual capacity claims) prevent

Plaintiffs from recovering money damages. Second, Plaintiffs lack standing to seek

injunctive relief as to the requirements in Defendants’ orders and proclamations that

are no longer in effect and that such claims for such relief are otherwise moot. Third,

Plaintiffs’ separation of powers challenge under the Alabama Constitution runs

contrary to the United States Supreme Court’s holding in Pennhurst State Sch. &

Hosp. v. Halderman, 465 U.S. 89 (1984). Fourth, and finally, Defendants argue that

Plaintiffs’ claims fail on the merits.

V. DISCUSSION

A. Jurisdictional Issues

The discussion begins, as it must, with the jurisdictional issues that

Defendants raise as grounds for dismissing Plaintiffs’ second amended complaint.

Defendants’ jurisdictional arguments implicate the doctrines of standing, mootness,

and Eleventh Amendment immunity. Each issue will be addressed in turn.

1. Plaintiffs lack standing to seek retrospective injunctive relief against the

provisions of Defendants’ COVID-19 orders that expired prior to the filing of this

lawsuit.

Defendants contend that Plaintiffs lack standing to seek injunctive relief for

orders that were no longer “in effect when this lawsuit was filed” because such relief

is “premised on past conduct” and does not satisfy the redressability prong of the

standing test. (Doc. # 42, at 19.) Defendants’ argument is sound.

Because Article III confers federal court jurisdiction only on cases or

controversies, a federal court lacks subject matter jurisdiction over a complaint that

fails to make plausible allegations of standing. Stalley ex rel. United States v.

Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008). “The

party invoking federal jurisdiction bears the burden of establishing” standing. Lujan

v. Defenders of Wildlife, Inc., 504 U.S. 555, 561 (1992). The burden of proof for

establishing standing is the same as the general burden of proof at the pleading stage:

plausibility. See id. Further, “a plaintiff must demonstrate standing separately for

each form of relief sought.” Friends of the Earth, Inc. v. Laidlaw Environ. Servs.

(TOC), Inc., 528 U.S. 167, 185 (2000) (citing Los Angeles v. Lyons, 461 U.S. 95,

109 (1983)).

The “irreducible constitutional minimum of standing contains three

elements.” Lujan, 504 U.S. at 560. “First, the plaintiff must have suffered an ‘injury

in fact’—an invasion of a legally protected interest which is (a) concrete and

particularized, and (b) ‘actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Id.

(citations omitted). “For an injury to be ‘particularized,’ it must affect the plaintiff

in a personal and individual way.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548

(2016) (quoting Lujan, 504 U.S. at 560 n.1). “A ‘concrete’ injury must be ‘de facto’;

that is, it must actually exist.” Id. (citation omitted).

Second, “the injury has to be ‘fairly . . . trace[able] to the challenged action of

the defendant, and not . . . the result [of] the independent action of some third party

not before the court.’” Lujan, 505 U.S. at 560–61 (quoting Simon v. Eastern Ky.

Welfare Rights Organization, 426 U.S. 26, 41–42 (1976)). Third, “it must be

‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a

favorable decision.’” Id. at 561 (quoting Simon, 426 U.S. at 38, 43). The salient

inquiry regarding redressability is whether “the effect of the court’s judgment on the

defendant—not an absent third party— . . . redress[es] the plaintiff’s injury, whether

directly or indirectly.” Lewis v. Governor of Alabama, 944 F.3d 1287, 1301 (11th

Cir. 2019).

Here, Plaintiffs seek injunctive relief concerning the “discriminatory closing

of businesses” and “stay at home orders.” (Doc. # 40, at 26.) However, when

Plaintiffs filed their complaint on September 24, 2020, the provisions of Defendants’

orders that closed certain businesses in Alabama and directed individuals to stay at

home except for enumerated essential activities were no longer in effect. See Cook

v. Bennet, 792 F.3d 1294, 1298 (11th Cir. 2015) (“Standing is determined at the time

the plaintiff files its complaint.”).4 Indeed, those provisions expired more than four

months before Plaintiffs filed their complaint. Thus, an injunction prohibiting

Defendants from enforcing provisions of their orders that have expired will not

redress Plaintiffs’ alleged injury. See Smith v. Ivey, No. 2:20-cv-237-ECM, 2020

WL 6802023, at *11 (M.D. Ala. Nov. 19, 2020) (finding that the plaintiff could not

establish redressability because, among other things, the defendant’s challenged

4 Defendants’ August 27 Safer at Home order was in effect at the time Plaintiffs filed their

complaint. (Doc. # 40-5, at 1–11.) As relevant here, this Safer at Home order contained the mask

requirement, a ban on all non-work related gatherings of any size, including drive-in gatherings,

that could not maintain a consistent six-foot distance between persons from different households,

and guidelines for houses of worship, all aimed at reducing the transmission of COVID-19.

Further, under the August 27 Safer at Home order, all businesses in Alabama, including retailers

and close-contact service providers, were open to the public subject to various public health

requirements.

action was no longer in effect at the time the plaintiff filed her suit); see also Lujan,

504 U.S. at 561 (“[I]t must be likely, as opposed to merely speculative, that the injury

will be redressed by a favorable decision.”). Put differently, Plaintiffs’ redress, as it

relates to injunctive relief against the provisions that expired prior to the filing of the

complaint, has already occurred.

In an attempt to skirt the redressability requirement, Plaintiffs argue that the

provisions that expired prior to the filing of the complaint “are capable of repetition

while evading review and concern ongoing and continuous violations of federal

law.” (Doc. # 49, at 7.) Plaintiffs’ argument fails for two reasons. First, the “capable

of repetition, yet evading review” doctrine is an exception to mootness. Standing,

however, “admits of no similar exception; if a plaintiff lacks standing at the time the

action commences, the fact that the dispute is capable of repetition yet evading

review will not entitle the complainant to a federal judicial forum.” Friends of the

Earth, 528 U.S. at 191 (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,

109 (1998)). Second, the expired provisions do not present an ongoing and

continuous violation of federal law because they are no longer in effect. See Steel

Co., 523 U.S. at 109 (“Past exposure to illegal conduct does not in itself show a

present case or controversy regarding injunctive relief . . . if unaccompanied by any

continuing, present adverse effects.” (quotations and citation omitted)). Hence,

Plaintiffs lack standing to seek retrospective injunctive relief against the expired

provisions.

2. Plaintiff Porter lacks standing as to Counts 6 and 7.

Porter seeks damages for alleged violations of the Takings Clause (Count 6)

and the Contracts Clause (Count 7) of the United States Constitution. In Count 6,

he alleges that his business “was adversely affected and . . . suffered damages when

requirements of social distancing, facial coverings (masks), and emergency

maximum occupancy rates of 50%, caused patients and clientele to discontinue

services.” (Doc. # 40, at 23 (emphasis added).) In Count 7, he alleges that he “sold

monthly memberships by which patients could pay a monthly membership fee and

utilize his chiropractic services at any time,” but that “Defendants’ orders effectively

canceled these contracts and prevented [him] from enforcing them.” (Doc. # 40, at

24 (emphasis added).) These allegations fail to confer standing because they do not

identify an injury traceable to Defendants.

Specifically, the allegations in Count 6 demonstrate that the source of Porter’s

injury5 was caused by his patients’ decision to discontinue services—not

Defendants’ actions. The same is true concerning Count 7 because nothing in

5 To be sure, Porter’s allegations that Defendants’ orders resulted in him experiencing

economic harm are sufficient to establish an injury-in-fact. See Lewis, 944 F.3d at 1296

(explaining that “[e]conomic harm . . . is a well-established injury-in-fact under federal standing

jurisprudence”) (cleaned up).

Defendants’ orders required Porter’s patients to cancel their monthly memberships.

In fact, Defendants’ orders defined Porter’s chiropractic clinic as an “essential

business,” thus allowing it to remain open to the public. (Doc. # 40-2, at 4.)6 The

fact that Defendants’ orders created an express exception for Porter’s business to

remain open underscores that it was his patients’ decision—not Defendants—to

cancel their monthly memberships (or appointments) with the clinic. Because the

cause of Porter’s injuries is tied to the decisions of independent third parties not

before the court, his injuries are not traceable to Defendants. See Lujan, 504 U.S. at

561–62 (explaining that when traceability “depends on the unfettered choices made

by independent actors not before the courts and whose exercise of broad and

legitimate discretion the courts cannot presume either to control or to predict,”

standing will be “substantially more difficult to establish”) (cleaned up).

Accordingly, Porter lacks standing as it relates to his damages claim in Counts 6 and

7.

6 This stands in stark contrast to the circumstances Farr and Ervin allege. Defendants’

orders explicitly directed that Farr and Ervin, unlike Porter, close their business for more than a

month with no exception. Consequently, Farr and Ervin have standing to pursue damages in

connection with Counts 6 and 7.

3. Plaintiffs’ claims for prospective injunctive relief are moot.7

Plaintiffs also seek prospective injunctive relief “prohibiting Defendants from

enforcing the orders . . . with regard to wearing of masks, unconstitutional regulation

of houses of worship . . . and social distancing.” (Doc. # 40, at 26.) Defendants

assert that Plaintiffs’ claims for such relief are now moot in light of the newly issued

Safer Apart order. (Doc. # 53.) Defendants are correct.

“Under Article III of the Constitution, federal courts may only hear ‘cases or

controversies.’” Frulla v. CRA Holdings, Inc., 543 F.3d 1247, 1250 (11th Cir. 2008)

(quoting Lujan, 504 U.S. at 559–60). “The doctrine of mootness, which evolved

directly from Article III’s case-or-controversy limitation, provides that ‘the requisite

personal interest that must exist at the commencement of the litigation (standing)

must continue throughout its existence (mootness).’” Id. at 1251–52 (quoting

Tanner Adver. Group, L.L.C. v. Fayette Cty., Ga., 451 F.3d 777, 785 (11th Cir. 2006)

7 Even though Plaintiffs’ claims for injunctive relief are moot, Plaintiffs also lack standing

as it relates to injunctive relief against the mask requirement. Simply put, the allegations in the

complaint do not demonstrate that a favorable ruling prohibiting Defendants from enforcing the

requirement will likely redress Plaintiffs’ alleged injuries. See Cangelosi v. Edwards, No. 20-

1991, 2020 WL 6449111, at *4 (E.D. La. Nov. 3, 2020) (finding that the plaintiff lacked standing

to challenge a statewide mask order because “[t]he proposition than an injunction against the

Governor would relieve the plaintiff of having to wear a face covering in order to enter certain

businesses [was] highly speculative”); Parker v. Wolf, —F. Supp. 3d—, No. 20-cv-1601, 2020

WL 7295831, at *13 (M.D. Penn. Dec. 11, 2020) (finding that the plaintiffs did not have standing

to pursue an injunction prohibiting government officials from enforcing a mask mandate because

such relief would not redress the plaintiffs’ alleged injuries in light of the fact that “those injuries

[would] almost certainly persist even in the absence of state-level enforcement . . .”), appeal

docketed, No. 20-3518 (3d Cir. Dec. 14, 2020).

(en banc)). “A case becomes moot—and therefore no longer a ‘Case’ or

‘Controversy’ for purposes of Article III—when the issues presented are no longer

live or the parties lack a legally cognizable interest in the outcome.” Already, LLC

v. Nike, Inc., 568 U.S. 85, 91 (2013) (cleaned up). And the Eleventh Circuit has

“held that a case must be dismissed as moot if events that occur subsequent to the

filing of a lawsuit . . . deprive the court of the ability to give the plaintiff . . .

meaningful relief.” Keohane v. Fla. Dep’t of Corr. Sec’y, 952 F.3d 1257, 1267 (11th

Cir. 2020) (cleaned up).

Here, the April 7, 2021 Safer Apart order, which superseded all of

Defendants’ previous orders, eliminated the provisions of the previous orders that

formed the basis of Plaintiffs’ request for prospective injunctive relief. In particular,

the Safer Apart order rescinded the mask requirement, removed all social distancing

restrictions on gatherings, and did not contain guidelines for places of worship.

(Doc. # 53-2, at 2–7.) With these provisions no longer in existence, there is no live

case or controversy to adjudicate as to Plaintiffs’ claims for prospective injunctive

relief. But that is not the end of the matter. There are two exceptions to the mootness

doctrine that warrant discussion: Voluntary cessation and capable of repetition yet

evading review. For the reasons explained below, neither exception applies.

Beginning with the first exception, “a defendant’s ‘voluntary cessation of

allegedly illegal conduct does not [necessarily] moot a case.’” Keohane, 952 F.3d

at 1267 (quoting United States v. Concentrated Phosphate Exp. Ass’n, 393 U.S. 199,

203 (1968) (alteration added)). “So when a defendant contends that a plaintiff’s

claim has become moot as a result of the defendant’s own independent decision to

cease some disputed action, it usually bears the burden of showing that it is

absolutely clear the allegedly wrongful behavior could not reasonably be expected

to recur.” Id. (cleaned up). However, when government actors, like Defendants,

take steps to cease allegedly illegal conduct, “there is a rebuttable presumption that

the objectionable behavior will not recur.” Troiano v. Supervisor of Elections in

Palm Beach Cty., 382 F.3d 1276, 1283 (11th Cir. 2004) (emphasis in original).

Indeed, the Eleventh Circuit has recognized that “governmental entities and officials

have been given considerably more leeway than private parties in the presumption

that they are unlikely to resume illegal activities.” Flanigan’s Enters., Inc. of Ga. v.

City of Sandy Springs, 868 F.3d 1248, 1256 (11th Cir. 2017) (en banc) (quoting

Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 1328–29 (11th Cir.

2004)). Thus, “once the repeal of an ordinance has caused . . . jurisdiction to be

questioned, [the plaintiff] bears the burden of presenting affirmative evidence that

its challenge is no longer moot.” Id. (alteration in original). “Mere speculation that

[a defendant] may return to its previous ways is no substitute for concrete evidence

. . . .” Nat’l Advert. Co. v. City of Miami, 402 F.3d 1329, 1334 (11th Cir. 2005).

Against this backdrop, “[t]he key inquiry . . . is whether the evidence”

provides “a reasonable expectation that” Defendants “will reverse course and reenact

the allegedly offensive” provisions of their orders. Flanigan’s Enters., Inc. of Ga.,

868 F.3d at 1256. To make this determination, courts examine three factors: (1)

“whether the change in conduct resulted from substantial deliberation or is merely

an attempt to manipulate . . . jurisdiction”; (2) “whether the government’s decision

to terminate the challenged conduct was unambiguous”; and (3) “whether the

government has consistently maintained its commitment to the new policy . . . .” Id.

at 1257. While these factors provide guidance, they “should not be viewed as

exclusive nor should any single factor be viewed as dispositive.” Id. Instead, “the

entirety of the relevant circumstances should be considered and a mootness finding

should follow when the totality of those circumstances persuades the court that there

is no reasonable expectation that the government entity will reenact the challenged

legislation.” Id.

As to the first factor, it is highly unlikely that Defendants’ decision to

terminate the challenged provisions—a choice with far reaching implications for the

public health of all Alabama citizens—was anything other than a product of

substantial deliberation. In fact, the plain language of the Safer Apart order makes

clear that Defendants carefully considered a number of factors (i.e., rising

vaccination rates, decreasing confirmed cases of COVID-19, and decreasing

numbers of hospitalizations and deaths attributable to the virus) when they decided

to change their approach to mitigating the spread of COVID-19. Moreover,

Defendants’ reliance on these factors, which are wholly separate from this lawsuit,

lends further support to substantial deliberation. See id. (holding that the defendant

government entity had “undertaken the ‘substantial deliberation’ required to” show

“that there [was] no reasonable expectation that it [would] reenact the allegedly

offensive provision of its Code” when the government entity had “offered persuasive

explanations, not dependent upon [the] litigation, to explain its course of conduct in

repealing” the challenged actions) (alterations added). The record here broadly

supports the substantial deliberation by State officials in dealing with a public health

emergency of unknown proportions.

Next, Defendants’ decision to remove the disputed provisions from the Safer

Apart order “is plainly an unambiguous termination of the challenged conduct.” Id.

at 1261. To illustrate, Defendants have “not merely declined to enforce” the disputed

provisions against Plaintiffs. Id. Conversely, they have “removed the challenged

portion[s]” of the orders altogether. Id. (alteration added); see also Keohane, 952

F.3d at 1268 (holding that the government defendant unambiguously terminated the

challenged policy when it removed the policy in its entirety and did not simply

decline to enforce the policy against the plaintiff).

The third factor—whether Defendants have consistently maintained their

commitment to the new Safer Apart order—is a closer call. On the one hand, it is

difficult to determine Defendants’ commitment to the Safer Apart order given that it

was enacted just a short time ago (April 7, 2021). On the other, Plaintiffs do not

plausibly allege that Defendants have enforced, threatened to enforce, or

demonstrated a willingness to enforce the challenged provisions of the previous

orders,8 and Defendants have publicly repealed, rescinded, or otherwise eliminated

those provisions. See Flanigan’s Enters., Inc. of Ga., 868 F.3d at 1262–63 (“Thus,

where the City has shown no inclination towards enforcing the old scheme, we are

inclined to believe that the repeal of an otherwise unenforced code provision and the

public embrace of that decision sufficiently serves to underscore the City’s

commitment to its new legislative scheme.”). Ultimately, this tension is immaterial

because the first two factors cut in favor of Defendants and tip the scale toward a

mootness finding. Therefore, there is no reasonable expectation that Defendants will

return to the challenged provisions of the now extinct Safer at Home orders.

8 The only allegation that Plaintiffs make concerning Defendants’ enforcement of the Safer

at Home order is that Farr and Ervin received nine citations from the City of Hoover when they

decided to open their business on May 1, 2020—ten days before close-contact service providers

were allowed to reopen. (Doc. # 40, at 14.) Plaintiffs further allege that “[t]he City of Hoover

was acting as an enforcement agent for . . .” Defendants when it issued the citations. (Doc. # 40,

at 14.) This allegation amounts to a legal conclusion and is not enough to demonstrate that

Defendants enforced the challenged provisions. See Iqbal, 556 U.S. at 678 (explaining that “the

tenant that a court must accept as true all the allegations contained in a complaint is inapplicable

to legal conclusions”).

Turning to the second exception, a plaintiff’s claim for prospective injunctive

relief is not moot “when the action being challenged by the lawsuit is capable of

being repeated and evading review . . . .” Al Najjar v. Ashcroft, 273 F.3d 1330, 1336

(11th Cir. 2001) (emphasis in original). The capable of repetition yet evading review

exception “is narrow and applies only in exceptional circumstances.” Id. (cleaned

up). Courts “may apply this exception when (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.” Wood v. Raffensperger, 981 F.3d 1307, 1317

(11th Cir. 2020) (cleaned up).

To support their argument that the capable of repetition yet evading review

exception applies, Plaintiffs contend that “Defendants can roll back their orders and

reinstate more severe restrictions” at any point. (Doc. # 49, at 8.) According to

Plaintiffs, this is likely because “there are already new COVID strains that are posed

to cause even more issues for years to come.” (Doc. # 49, at 8.) Here’s the problem

with Plaintiffs’ assertions—they amount to nothing more than speculation. And

speculation is not enough to save Plaintiffs’ claims for prospective injunctive relief

from being moot. See Hall v. Sec’y, Ala., 902 F.3d 1294, 1297 (11th Cir. 2018)

(“‘The remote possibility than an event might recur is not enough to overcome

mootness . . . .’”) (quoting Al Najjar, 273 F.3d at 1336). In any event, there is no

reasonable expectation that Plaintiffs will be subjected to the challenged provisions

in the future for the reasons previously discussed. See supra, at 27–29.

Given that the challenged provisions are no longer in existence and that

neither exception to the mootness doctrine applies, Plaintiffs’ claims for prospective

injunctive are moot.9

4. Eleventh Amendment immunity bars Plaintiffs’ claims for money

damages against Defendants in their official capacities.

Defendants correctly assert that any suit against them in their official

capacities for money damages is due to be dismissed because they are entitled to

Eleventh Amendment immunity. (Doc. # 42, at 15.) A state is entitled to sovereign

immunity and may not be sued unless it consents to suit or unless Congress abrogates

sovereign immunity. Pennhurst, 465 U.S. at 98–99. Suits brought pursuant to 42

U.S.C. § 1983, like the one here, are no exception to the rule. Quern v. Jordan, 440

U.S. 332, 342 (1979). This immunity extends to state officials for claims brought

against them in their official capacities for monetary damages because an award of

damages would be paid by the state, thus making the state a “real, substantial party

in interest.” Pennhurst, 465 U.S. at 101 (citation and quotations omitted). Here,

Defendants—the Governor of Alabama and the State Health Officer of Alabama—

9 Because the Safer Apart order rendered Plaintiffs’ claims for prospective injunctive relief

moot, the court need not address Defendants’ argument that the Eleventh Amendment bars such

relief.

are unquestionably state officials. Thus, Defendants are entitled to Eleventh

Amendment immunity on Plaintiffs’ claims against them in their official capacities

for monetary damages. See Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326,

1337 (11th Cir. 1999) (explaining that “the Eleventh Amendment bars suits against

state officials in federal court seeking retrospective or compensatory relief . . . .”).

5. Eleventh Amendment Immunity also bars Count 8.

Plaintiffs allege in Count 8 that Defendants’ proclamations and orders violate

Alabama’s separation of powers doctrine. (See Doc. # 40, at 25.) Specifically, they

claim that Defendants’ actions are “null and void” because they usurped the role of

the legislature, thus violating the Alabama Constitution. In other words, Plaintiffs

contend that Defendants—state officials—have violated state law. However, the

United States Supreme Court has held that the Eleventh Amendment plainly bars

such a claim. See Pennhurst, 465 U.S. at 121 (concluding that “a claim that state

officials violated state law in carrying out their official responsibilities is a claim

against the State that is [barred] by the Eleventh Amendment”) (alteration added).

Accordingly, Count 8 is due to be dismissed on Eleventh Amendment immunity

grounds.

B. Qualified Immunity

Defendants raise the defense of qualified immunity as it relates to Plaintiffs’

claims against them in their individual capacities for money damages. (See Doc. #

42, at 16.) “The doctrine of qualified immunity protects government officials ‘from

liability for civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.’”

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982)). Qualified immunity serves to balance “two important

interests—the need to hold public officials accountable when they exercise power

irresponsibly and the need to shield officials from harassment, distraction, and

liability when they perform their duties reasonably.” Id. As a threshold matter,

defendants asserting the defense of qualified immunity “must first establish that they

were acting within the scope of their discretionary authority when the alleged

wrongful acts occurred.” Melton v. Abston, 841 F.3d 1207, 1221 (11th Cir. 2016)

(citation omitted). Despite Plaintiffs’ protestations to the contrary (see Doc. # 49, at

3–6), Defendants have established that they acted within the scope of their

discretionary authority under the AEMA, the Alabama Code, and Alabama’s police

power when they issued orders in response to COVID-19. See supra, at 4–6.

Accordingly, “the burden shifts to [Plaintiffs] to establish that qualified immunity is

inappropriate.” Melton, 841 F.3d at 1221 (citation omitted).

To establish that Defendants are not entitled to qualified immunity, Plaintiffs

must satisfy two elements: (1) that Defendants’ actions “violated a constitutional

right” and (2) the “right was clearly established at the time of the alleged violation.”

Patel v. Lanier Cty. Ga., 969 F.3d 1173, 1188 (11th Cir. 2020) (citation and internal

quotation marks omitted). “The determination of these elements may be conducted

in any order.” Melton, 841 F.3d at 1221 (citing Pearson, 555 U.S. at 236). Here, as

to some claims, the complaint’s allegations do not establish that Defendants’ actions

violated Plaintiffs’ constitutional rights, thus failing the first element of the qualified

immunity test. As to other claims, the complaint’s allegations do not demonstrate a

violation of a clearly established constitutional right, thus failing the second element

of the qualified immunity test. The subsequent discussion addresses each Count in

Plaintiffs’ complaint in turn. Corbitt v. Vickers, 929 F.3d 1304, 1313 (11th Cir.

2019), cert. denied, 141 S. Ct. 110 (2020).

1. Void for Vagueness (Count 1)

In Count 1, Plaintiffs contend that Defendants’ COVID-19 orders and

proclamations are unconstitutionally vague. They allege that “the Governor and

State Health Officer, through a common program of unilateral executive

proclamations and orders . . . have subjected and continue to subject all Plaintiffs

. . . to vague and arbitrary laws in violation of the Fourteenth Amendment.” (Doc.

# 40, at 12.) Plaintiffs’ void-for-vagueness challenge is tied to the following

provisions of Defendants’ orders: (1) the six-foot social distancing requirement; (2)

business closures; (3) restrictions on religious activity; and (4) the mask requirement.

Vague laws trespass on the constitutional guarantee of due process. See

Johnson v. United States, 135 S. Ct. 2551, 2556 (2015). A statutory provision is

void for vagueness if it (1) fails to provide people of ordinary intelligence with fair

notice of what conduct it proscribes or (2) is so unclear that it authorizes or

encourages discriminatory enforcement. United States v. Williams, 553 U.S. 285,

304 (2008). To succeed on a void-for-vagueness challenge, Plaintiffs must show

that the statutory provision is “impermissibly vague in all of its applications.” Ala.

Educ. Ass’n v. State Superintendent of Educ., 746 F.3d 1136, 1139 (11th Cir. 2014)

(quoting Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,

495 (1982)). If the statutory provision at issue clearly proscribes some conduct in

which the challenger engages, the challenger cannot complain of the statute’s

vagueness. Id. at 1139–40.

Importantly, courts do not apply these principles to hypotheticals. “Litigants

may not comb the statute books for poorly drafted laws and sue to enjoin their

enforcement.” Bankshot Billiards, Inc. v. City of Ocala, 634 F.3d 1340, 1349 (11th

Cir. 2011). Rather, courts review laws for vagueness “only when a litigant alleges

a constitutional harm.” Id. Vague laws can harm in two ways. One harm occurs

when a person is prosecuted for violating a vague law. Id. The other occurs when

one is “chilled from engaging in constitutional activity.” Id. at 1350. Given that a

litigant cannot argue that a law is vague based on how it might apply in a

hypothetical situation, courts “consider whether a statute is vague as applied to the

particular facts at issue.” Holder v. Humanitarian Law Project, 561 U.S. 1, 18

(2010).

Beginning with the social distancing requirement, Plaintiffs allege that

“[s]ince March 19, [Defendants have] routinely required people to keep a 6-foot

distance from each other.” (Doc. # 40, at 12.) They further allege that Defendants

‘have never explained why they ordered people to stay six feet apart instead of four,

five, seven, or ten feet” and that the social distancing requirement “is arbitrary on its

face.” (Doc. # 40, at 13.) Based on these allegations, Plaintiffs claim that they have

been “subjected to vague and arbitrary restrictions of assembly in violation of the

Due Process of the Fourteenth Amendment.” (Doc. # 40, at 13.) But, contrary to

Plaintiffs’ assertions, there is nothing vague about what the social distancing

provision requires—six feet of separation from others. In fact, as Defendants

correctly note, “it is difficult to envision a requirement with more mathematical

precision.” (Doc. # 42, at 30.) Thus, the social distancing requirement comports

with due process because it provides “a person of ordinary intelligence fair notice of

what is prohibited” and is not “so standardless that it authorizes or encourages

seriously discriminatory enforcement.” Williams, 553 U.S. at 304.

Next, Plaintiffs Farr and Ervin allege that they “have been harmed by

Defendants’ vague and arbitrary business restriction and shutdown orders.” (Doc. #

40, at 14.) The crux of Farr’s and Ervin’s argument is that Defendants’ orders

“arbitrarily classified” their business, a barber shop, as “non-essential,” resulting in

its closure from March 27 until May 11. (Doc. # 40, at 13.) While Farr and Ervin

take issue with how Defendants’ orders classified their business, there was nothing

vague about what the orders required. For example, the March 27 order made clear

that non-essential businesses, including close-contact service providers, were

required to close to non-employees or not take place. And the order expressly

defined close-contact service providers to include barber shops. (See Doc. # 40-1,

at 19.) This language demonstrates that Farr and Ervin had clear notice that their

business fell into the non-essential category and was required to close. See Hartman

v. Acton, —F. Supp. 3d—, 2020 WL 1932896, at *5–6 (S.D. Ohio April 21, 2020)

(rejecting the plaintiffs’ void-for-vagueness challenge to the defendant’s COVID-19

business closure order because the order provided “clear and fair warning of what

conduct [was] proscribed”).

Further, Plaintiffs’ vagueness challenge to provisions of Defendants’ orders

that placed limitations on religious gatherings fails for similar reasons. Consider the

April 3, 2020 order. It clearly provided that individuals were permitted to leave their

place of residence to attend religious services. (See Doc. # 40-2, at 1–2.) True, the

order limited attendance at religious services to specific circumstances, but it

provided a detailed explanation of what those circumstances were. (See Doc. # 40-

2, at 2–3 (allowing attendance at religious services provided that “the event

involv[ed] fewer than ten people” and attendees “maintain[ed] a consistent six-foot

distance from another” or if the event was a drive-in worship service that adhered to

enumerated rules).) There is nothing vague about this language because it plainly

delineated what conduct was proscribed. There may be other constitutional

problems with this aspect of the orders, but vagueness is not one of them.

Plaintiffs’ vagueness challenge to the mask requirement also falls short. The

only allegations in Plaintiffs’ complaint implicating constitutional harm due to the

claimed vagueness of the mask requirement (i.e., the only allegations warranting

discussion) center on religious activity.10 Specifically, Plaintiffs allege that

“worship services have been restricted by the mask mandate which only gives a

vague and arbitrary exception that chills and infringes Free Exercise.” (Doc. # 40,

at 15.) The exception that Plaintiffs take issue with reads: “The facial-covering

requirement does not apply to . . . [a]ny person who cannot wear a facial covering

because he or she is actively providing or obtaining access to religious worship

10 Confusingly, Plaintiffs embed in Count 1 an allegation that the mask requirement

violates their substantive due process rights. (See Doc. # 40, at 17 (“Moreover, the executive

branch’s arbitrary actions requiring every person in Alabama to wear a mask in public as described

in Defendants’ orders . . . rise to the level of shocking the conscience, thus violating the substantive

due process right against arbitrary government action”) (internal quotations and citation omitted).)

To the extent that Plaintiffs seek to bring a separate substantive due process claim, that claim is

due to be dismissed because it lacks merit. See Davis v. Carter, 555 F.3d 979, 982 (11th Cir. 2009)

(“To rise to the conscience-shocking level, conduct most likely must be intended to injure in some

way unjustifiable by any government interest.”).

. . . .” (Doc. # 40-4, at 5.) Plaintiffs complain that there is no definition of the phrase

“obtaining access to religious worship,” and, as a result, the exception does “not

provide fair warning . . . as to what conduct is permitted and what is prohibited.”

(Doc. # 40, at 17.)

The fact that the exception does not define the phrase “obtaining access to

religious services” does not render it vague. Indeed, “perfect clarity and precise

guidance have never been required even of regulations that restrict expressive

activity.” Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989). Moreover,

whether an individual is actively providing or obtaining access to religious services

is a question of fact. See Williams, 553 U.S. at 306 (holding that the statutes at issue

were not impermissibly vague because a conviction under them turned on questions

of fact). Put another way, whether an individual qualifies under the exception “is a

true-or-false determination, not a subjective judgment such as whether conduct is

‘annoying’ or ‘indecent.’” Id. And in the event that a close case might arise under

the religious worship exception during a criminal enforcement action, “[t]he

problem that poses is addressed, not by the doctrine of vagueness, but by the

requirement of proof beyond a reasonable doubt.” Id. (citing In re Winship, 397

U.S. 358, 363 (1970)).

To save their vagueness challenge to the mask requirement’s religious activity

exception, Plaintiffs argue a long line of hypotheticals:

Indeed, what does “actively obtaining access” mean? . . . If a person is

on church property, must they be masked at any point? Should

congregants mask between prayers and hymns or while at their seat? Is

this completely up to individual discretion? Is serving the community,

like working in a kitchen run by one’s church religious worship? Is

being baptized religious worship?

(Doc. # 49, at 14.) These hypotheticals are wholly divorced from the facts at issue

and do not make the otherwise clear text of the exception vague. See Holder, 561

U.S. at 18.

Finally, to the extent that Plaintiffs argue that the social-distancing

requirement, the business restrictions, the limitations on religious activity, and the

mask requirement are capable of arbitrary and discriminatory enforcement, that

argument fails. To be sure, arbitrary and discriminatory enforcement is relevant in

vagueness cases. For instance, a statute cannot leave police officers free to decide,

case-by-case, what is illegal. See Chicago v. Morales, 527 U.S. 41, 61 (1991);

Kolender v. Lawson, 461 U.S. 352, 358 (1983). So, if a law is enforced in different

ways against different people, that may mean the law is vague. But at the same time,

“discriminatory enforcement does not necessarily mean that the ordinance that is

being enforced is itself void-for-vagueness. The most clearly stated law against

running red lights . . . could be enforced discriminatorily by the police, if they so

chose.” Diversified Numismatics, Inc. v. City of Orlando, 949 F.2d 382, 387 (11th

Cir. 1991). Instead, a vagueness claim must show that the text of the law itself is

vague. Indigo Room, Inc. v. City of Fort Myers, 710 F.3d 1294, 1302 (11th Cir.

2013). Here, the text of the provisions that Plaintiffs challenge is not facially vague,

and the complaint is devoid of any allegations showing that Defendants ever

enforced the provisions, let alone enforced them in an arbitrary manner.

Accordingly, Defendants are entitled to qualified immunity on Count 1

because Plaintiffs have failed to plausibly allege a constitutional violation under the

void-for-vagueness doctrine.

2. Free Exercise (Count 3)

In Count 3, Plaintiffs allege that certain of Defendants’ actions violated their

rights under the Free Exercise Clause in two ways. First, Plaintiffs take issue with

the April 3, 2020 order. That order, although categorizing “religious entities” as

“essential” and permitting drive-in worship services, restricted in-person worship

services to a maximum of 9 socially distanced people. At the same time, secular

“essential retailers”—which included, among other entities, supermarkets, liquor

stores, pharmacies, bicycle shops, and “big box” stores—could remain open

provided that occupancy was “no more than 50 percent of the normal occupancy

load”11; employees of essential retailers did “not knowingly allow customers or

11 The April 3, 2020 order defined “essential retailers” as “all supermarkets, food and

beverage stores, including liquor stores and warehouse clubs, food providers, convenience stores,

office-supply stores, bookstores, computer stores, pharmacies, health care supply stores, hardware

stores, home improvement stores, building materials stores, stores that sell electrical, plumbing,

and heating materials, gun stores, gas stations; auto, farm equipment, bicycle, motorcycle, and boat

supply and repair stores, and businesses that ship or deliver groceries, food, and goods directly to

residences.” (Doc. # 33-1, at 5.)

patrons to congregate within six feet of one another”; and essential retailers took

“reasonable steps to comply with guidelines on sanitation from the Centers for

Disease Control and Prevention and the Alabama Department of Public Health.”

(Doc. # 33-1, at 8.) Second, Plaintiffs contend that, “[s]ince the May 8 order to the

present day, worship services have been limited by [Defendants] to capacity no more

than what 6 foot social distancing allows and [have been] imposed upon by

‘guidelines’ in clear violation of the Free Exercise Clause.” (Doc. # 40, at 20

(alteration added).)

Under the Free Exercise Clause of the First Amendment, applicable to the

states through the Fourteenth Amendment, Congress “shall make no law . . .

prohibiting the free exercise of religion.” U.S. Const. amend. I. “Government is not

free to disregard the First Amendment in times of crisis. At a minimum, that

Amendment prohibits government officials from treating religious exercises worse

than comparable secular activities, unless they are pursuing a compelling interest

and using the least restrictive means available.” Roman Cath. Diocese of Brooklyn

v. Cuomo, 141 S. Ct. 63, 69 (2020) (Gorsuch, J., concurring). Generally, only where

a law “is neutral and of general applicability” does the compelling interest standard

yield way to “rational basis scrutiny.” Church of the Lukumi Babalu Aye v. City of

Hialeah, 508 U.S. 520, 531 (1993) (citation omitted). Thus, “[i]f a law is one that

is neutral and generally applicable,” the plaintiff need only “show that there is not a

legitimate government interest or that the law is not rationally related to protect that

interest.” GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1255 n.21 (11th Cir.

2012) (alteration added).

Neutrality is lacking where

the object of a law is to infringe upon or restrict practices because of

their religious motivation . . . . To determine the object of a law [courts]

begin with its text, for the minimum requirement of neutrality is that a

law not discriminate on its face. A law lacks facial neutrality if it refers

to a religious practice without a secular meaning discernable from the

language or context.

Lukumi, 508 U.S. at 533–34. But “[f]acial neutrality is not determinative” because

the Free Exercise Clause “forbids subtle departures from neutrality . . . and covert

suppression of particular religious beliefs.” Id. at 534 (internal quotations and

citations omitted) (alteration added). Legislative history and “the effect of a law in

its real operation” help illuminate whether an otherwise facially neutral law

impermissibly targets religion. Id. at 535.

Concerning the requirement of general applicability, the Supreme Court has

explained:

All laws are selective to some extent, but categories of selection are of

paramount concern when a law has the incidental effect of burdening

religious practice. The Free Exercise Clause protect[s] religious

observers against unequal treatment, . . . and inequality results when a

legislature decides that the governmental interests it seeks to advance

are worthy of being pursued only against conduct with a religious

motivation.

Id. at 542–43 (citation and internal quotations omitted) (alteration in original).

Stated differently, a challenged governmental action is not generally applicable if it

is underinclusive. Id. at 542.

The recent Supreme Court decision in Roman Catholic Diocese of Brooklyn

provides support for Plaintiffs’ position that their First Amendment freedoms have

been compressed unnecessarily during the COVID-19 pandemic. See 141 S. Ct. at

63. There, the Court confronted a free exercise challenge to occupancy limitations

at public places of worship that were more restrictive than occupancy limitations at

businesses selling groceries and liquor and providing acupuncture and transportation

services. Enjoining the Governor of New York from enforcing the occupancy

restrictions on the movants’ religious services, the Court held that “[s]temming the

spread of COVID-19 is unquestionably a compelling [state] interest, but it is hard to

see how the challenged regulations can be regarded as ‘narrowly tailored.’” Id. at

67 (alteration added). In a concurring opinion, Justice Gorsuch observed that the

10- and 25-person occupancy limitations at issue applied “even to the largest

cathedrals and synagogues, which ordinarily hold hundreds,” and “no matter the

precautions taken, including social distancing, wearing masks, leaving doors and

windows open, forgoing singing, and disinfecting spaces between services.” Id. at

69 (Gorsuch, J., concurring). He concluded that the only rationale for subjecting

religious institutions to the occupancy restrictions

seem[ed] to be a judgment that what happens there just isn’t as

‘essential’ as what happens in secular spaces. Indeed, the Governor is

remarkably frank about this: In his judgment laundry and liquor, travel

and tools, are all ‘essential’ while traditional religious exercises are not.

That is exactly the kind of discrimination the First Amendment forbids.

Id.

Here, akin to the disparate occupancy restrictions in Roman Catholic Diocese

of Brooklyn, no matter the square footage of the houses of worship in Alabama—

from big city megachurches to small town synagogues—attendance was limited to

no more than 9 people so long as 6-foot spacing could be achieved. Yet, big box

retailers—take for example Costco whose average store is 146,000, square feet, see

https://investor.costo.com/corporate-profile-2, (last visited May 17, 2021)—could

accommodate many more, likely hundreds more, people under the 50%-occupancy

restriction. The April 3, 2020 order provides no justification for treating gatherings

in a house of worship differently from gatherings in a big box retailer.

To the extent that courts have reasoned that the distinction lies in the “purpose

of shopping,” which “is not to gather with others . . . but to purchase the necessary

items and then leave as soon as possible,” see Cassell v. Snyders, 458 F. Supp. 3d

981, 996 (N.D. Ill. 2020), there is nothing in the April 3, 2020 order that placed time

limitations on visits to big box retailers, liquor stores, or the local supermarkets.

People could gather inside at Home Depot, Publix, or a local CVS for as long as they

liked so long as the maximum occupancy rate for the business did not exceed half-

capacity and the business did not knowingly allow the gatherers to inch closer

together than 6 feet. However, houses of worship did not enjoy the same gathering

luxuries under the April 3, 2020 order: They had to limit occupancy to 9 people no

less than 6-feet apart no matter if the space was 324-square feet (the minimum square

footage needed to house 9 people 6-feet apart) or 1,500-square feet (a square footage

that would have accommodated 40 people 6 feet apart). The April 3, 2020 order did

not imagine less restrictive rules; to illustrate, “the maximum attendance at a

religious service could be tied to the size of the church or synagogue.” Roman

Catholic Diocese of Brooklyn, 114 S. Ct. at 67. Thus, the April 3, 2020 order was

likely a violation of the Free Exercise Clause.

Notwithstanding the similarities between the Governor of New York’s

executive order and the State of Alabama’s April 3, 2020 order, and even assuming

the allegations demonstrate that the occupancy restrictions for religious spaces

violate the Free Exercise Clause, the Supreme Court’s decision in Roman Catholic

Diocese of Brooklyn cannot clearly establish the law as of April 3, 2020, because it

was handed down on November 25, 2020. Neither Governor Ivey nor Dr. Harris

had the benefit of the Supreme Court’s decision in Roman Catholic Diocese of

Brooklyn when the April 3, 2020 order was implemented. In other words, this

decision could not have put Defendants on fair notice that the occupancy restrictions

on houses of worship were unconstitutional.

Moreover, Plaintiffs would be hard pressed to come up with a decision

predating April 3, 2020, that clearly establishes the law, so not surprisingly, they

have not done so. Between March 13, 2020—the date the Governor declared a state

emergency based on the COVID-19 pandemic—and April 3, 2020, the medical data

and CDC guidance on COVID-19 were rapidly evolving and continuously changing.

The rationale for the restrictions imposed by the Governor and the State Health

Officer on April 3, 2020, absent any demonstration that they harbored animosity

against religious institutions, must be viewed though a temporal lens.

As recognized by some of our nation’s Justices, state government officials

deserved a measure of leniency during the early stages of the COVID-19 pandemic

when there was scant information known about the illness and its effects:

For months now, States and their subdivisions have responded to

the pandemic by imposing unprecedented restrictions on personal

liberty, including the free exercise of religion. This initial response was

understandable. In times of crisis, public officials must respond quickly

and decisively to evolving and uncertain situations. At the dawn of an

emergency—and the opening days of the COVID–19 outbreak plainly

qualify—public officials may not be able to craft precisely tailored

rules. Time, information, and expertise may be in short supply, and

those responsible for enforcement may lack the resources needed to

administer rules that draw fine distinctions. Thus, at the outset of an

emergency, it may be appropriate for courts to tolerate very blunt rules.

In general, that is what has happened thus far during the COVID–19

pandemic.

But a public health emergency does not give Governors and other

public officials carte blanche to disregard the Constitution for as long

as the medical problem persists. As more medical and scientific

evidence becomes available, and as States have time to craft policies in

light of that evidence, courts should expect policies that more carefully

account for constitutional rights.

Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603, 2604–05 (2020) (Alito,

J., with whom Thomas, J., and Kavanaugh, J., joined, dissenting); see also Roman

Cath. Diocese of Brooklyn, 141 S. Ct. at 70 (observing that in a prior decision, the

Chief Justice “expressed willingness to defer to executive orders in the pandemic’s

early stages based on the newness of the emergency and how little was then known

about the disease,” and that “[a]t that time, COVID had been with us, in earnest, for

just three months,” but that “[n]ow, as we round out 2020 and face the prospect of

entering a second calendar year living in the pandemic’s shadow, that rationale has

expired according to its own terms” (citing S. Bay United Pentecostal Church v.

Newsom, 140 S. Ct. 1613 (Roberts, C.J., concurring)).

The point in time in which Governor Ivey and Dr. Harris acted, i.e., April 3,

2020, was just three weeks after Governor Ivey had declared a state public health

emergency. Then, time was of the essence, and information and expertise were in

short and rare supply. However, as time passed and Governor Ivey and Dr. Harris

garnered more medical and scientific data on COVID-19, the occupancy restrictions

on religious activities evolved and eased and, since May 8, 2020, have remained the

same for both religious and secular establishments. These are not the sort of facts

for which a governor and her state health officer should be held accountable for

money damages in their individual capacities. See King v. Pridmore, 961 F.3d 1135,

1145 (11th Cir. 2020) (“The qualified immunity defense embodies an objective

reasonableness standard, giving a government agent the benefit of the doubt,

provided that the conduct was not so obviously illegal in the light of then-existing

law that only an official who was incompetent or who knowingly was violating the

law would have committed the acts.”), cert. denied sub nom. King, Trinell v.

Pridmore, Ricky, et al., No. 20-877, 2021 WL 1520797 (U.S. Apr. 19, 2021).

Indeed, this action was filed on September 24, 2020, many months after the

offending April 3, 2020 order.12

Furthermore, from May 8, 2020 onward, the mandatory occupancy

restrictions eased, bringing houses of worship on par with essential secular retailers:

All were subject to capacity limits controlled by the 6-feet distancing requirement,

and the 9-person occupancy restriction on religious institutions was eliminated. The

court does not discount that the 6-feet distancing rule impacted how religious

sacraments, such as Baptisms, Bar/Bat Mitzvahs, and Eucharist, were conducted.

But against the strictures of the May 8, 2020 order, for purposes of the qualified

immunity analysis, and regardless of whether the allegations state a claim, Plaintiffs

have not demonstrated that Defendants violated clearly established law as to their

Free Exercise Clause challenge to the 6-feet distancing rule for houses of worship.

12 On October 6, 2020, Plaintiffs’ motion for a temporary restraining order was denied,

among other reasons, for “inexplicable delay.” (Doc. # 17, at 3.)

“As a rule of thumb, the more exceptions to a prohibition, the less likely it

will count as a generally applicable, non-discriminatory law,” Maryville Baptist

Church, Inc. v. Beshear, 957 F.3d 610, 614 (6th Cir. 2020), but the exceptions here

are nil. The 6-feet distancing requirement as of May 8, 2020, carried no exceptions.

It applied across the board to secular and religious gatherings alike, thus, indicating

that Defendants did not selectively “impose burdens only on conduct motivated by

religious belief . . . .” Lukumi, 508 U.S. at 543.

Finally, Plaintiffs’ contention that the guidelines for places of worship violate

the Free Exercise Clause is a nonstarter. The guidelines—which address public

health concerns like disinfecting seats and improving ventilation (see Doc. # 1-5)—

importantly are merely guidelines, not mandatory requirements. No sanction or

threat of enforcement accompanies a place of worship’s disregard of the guidelines.

Accordingly, absent Plaintiffs’ demonstration that Defendants violated clearly

established law, Defendants are entitled to qualified immunity on Count 3.

3. Establishment Clause (Count 2)

In Count 2, Plaintiffs allege that Defendants’ COVID-19 orders violate the

Establishment Clause of the First Amendment. Their argument focuses on the

restrictions imposed on religious activities from March 27, 2020, until May 8, 2020,

and the guidelines for places of worship.

The Establishment Clause of the First Amendment provides that “Congress

shall make no law respecting an establishment of religion . . . .” U.S. Const. amend.

I. “This restriction has been made applicable to the states, as well as state-created

entities and their employees, through the Due Process Clause of the Fourteenth

Amendment.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1284 (11th

Cir. 2014) (citing Cantwell v. Connecticut, 310 U.S. 296, 303 (1940)). Moreover,

“[t]he Establishment Clause applies not only to state statutes, but [also to] acts and

decisions of individual government actors . . . .” Id. (citing Lee v. Weisman, 505

U.S. 577, 587 (1992) (alterations added)).

As a preliminary matter, the parties do not agree on what constitutional

standard applies to Plaintiffs’ Establishment Clause claim. Defendants analyze this

claim under the test announced in Lemon v. Kurtzman, 403 U.S. 602 (1971).

Plaintiffs contend that the Lemon test does not govern and urge the court to apply

Everson v. Board of Education of Ewing Tp., 330 U.S. 1 (1947). To be fair, the

Lemon test “has been harshly criticized by Members of [the Supreme Court],

lamented by lower court judges, and questioned by a diverse roster of scholars.” Am.

Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2081 (2019) (plurality) (footnotes

omitted) (alteration added). In fact, the Eleventh Circuit Court of Appeals recently

held that the Lemon test “no longer govern[s] Establishment Clause challenges to

religious monuments and displays . . . .” Kondrat’yev v. City of Pensacola, 949 F.3d

1319, 1325 (11th Cir. 2020). However, Plaintiffs’ Establishment Clause claim does

not involve a challenge to religious monuments or displays, and Plaintiffs do not cite

any authority indicating that Lemon does not control in this particular context.

Accordingly, the Lemon test applies to Plaintiffs’ Establishment Clause claim.

Under Lemon, the governmental action at issue survives an Establishment

Clause challenge if (1) it has a secular purpose; (2) its principle or primary effect

neither advances nor inhibits religion; and (3) it does not foster excessive

entanglement with religion. 403 U.S. at 612–13.

Plaintiffs’ Establishment Clause challenge to the guidelines for places of

worship fails because the guidelines easily pass muster under Lemon. The guidelines

plainly have a strong secular purpose—slowing the spread of COVID-19.

Moreover, their principal or primary effect neither advances nor inhibits religion

because they are permissive suggestions, not binding requirements. And given their

permissive nature, it cannot be said that the guidelines foster an excessive

entanglement with religion.

While the guidelines withstand scrutiny under Lemon, the restrictions

imposed on religious activities from March 27, 2020, until May 8, 2020, are

problematic. True, the restrictions, like the guidelines, had a secular purpose (i.e.,

mitigating the transmission of COVID-19). But the real issue is whether the

principal or primary effect of the restrictions inhibited religion. As previously

detailed in the free exercise section, see supra, at 46–50, the April 3, 2020 order

treated gatherings at houses of worship differently from gatherings at big box

retailers, allowing less at the former and more at the latter with no apparent

justification. This is a problem in the context of the Establishment Clause because

“[t]he First Amendment mandates governmental neutrality between . . . religion and

nonreligion.” Epperson v. Arkansas, 393 U.S. 97, 104 (1968) (alteration added).

The March 27 order also inhibited religious activities: It instituted a hard cap on

attendance at religious services to no more than 9 people contingent upon social

distancing requirements and, unlike subsequent orders, did not contain an express

exception for drive-in religious events. Given that the March 27 and April 3 orders

inhibited religion, they likely fostered an excessive entanglement between church

and state. See Agostini v. Felton, 521 U.S. 203, 232 (1997) (explaining that “the

factors we use to assess whether an entanglement is ‘excessive’ are similar to factors

we use to examine ‘effect’”).

Nevertheless, it need not be decided whether the allegations plausibly state an

Establishment Clause violation because, for the reasons previously discussed in the

free exercise section, see supra, at 46–50, Defendants’ March 27 and April 3 orders

did not violate clearly established law, and the restrictions in the orders have since

abated. Put differently, even if Defendants’ conduct in enacting the orders at issue

violated the Establishment Clause, their actions cannot be viewed in a vacuum for

purposes of qualified immunity. When Defendants issued the March 27 and April 3

orders, they were acting during the early days of a pandemic not seen in more than

a century and did not have the benefit of any clearly established law indicating that

their orders violated the Establishment Clause in such a context. Accordingly,

Defendants are entitled to qualified immunity on Count 2.

4. Freedom of Assembly: Expressive Association (Count 4)

In Count 4, Plaintiffs allege that Defendants’ COVID-19 orders restricted

their right to assemble. Plaintiffs take aim at the March 27, 2020 order, which

provided that “all non-work related gatherings of 10 persons or more, or non-work

related gatherings of any size that cannot maintain a consistent six-foot distance

between persons are prohibited.” (Doc. # 40-1, at 18–19.) Specifically, Plaintiffs

allege that “Defendants [sic] actions have violated [their] constitutional rights to

assemble in congregational worship in a manner which their faith requires . . . .”

(Doc. # 40, at 21.) Because Plaintiffs’ allegations implicate their right to associate

for the purpose of religious worship, the court construes Count 4 as an expressive

association claim arising under the First Amendment. See Legacy Church, Inc. v.

Kunkel, 455 F. Supp. 3d 1100, 1157 (D. N.M. 2020) (construing a freedom of

assembly claim as an expressive association claim because the plaintiff asserted “its

right to associate for the purpose of engaging in religious exercise”).

“The First Amendment protects two forms of association: expressive

association and intimate association.” Gaines v. Wardynski, 871 F.3d 1203, 1212

(11th Cir. 2017). As relevant here, “[t]he right of expressive association—the

freedom to associate for the purpose of engaging in activities protected by the First

Amendment, such as . . . the exercise of religion—is protected by the First

Amendment as a necessary corollary of the rights that the amendment protects by its

terms.” McCabe v. Sharrett, 12 F.3d 1558, 1563 (11th Cir. 1994). Yet, “[t]he right

to associate for expressive purposes is not . . . absolute.” Roberts v. United States

Jaycees, 468 U.S. 609, 623 (1984). “Infringements on that right may be justified by

regulations adopted to serve compelling state interests, unrelated to the suppression

of ideas, that cannot be achieved through means significantly less restrictive of

associational freedoms.” Id. (citations omitted).

Here, the March 27, 2020 order serves a compelling state interest—preventing

the spread of the COVID-19 virus. See Roman Catholic Diocese of Brooklyn, 141

S. Ct. at 67 (slowing “the spread of COVID-19 is unquestionably a compelling

interest”). That said, Plaintiffs’ allegations do suggest that Defendants’ March 27

order impermissibly chilled their expressive association right to gather for the

purposes of religious worship. As previously explained, the order capped attendance

at religious services to no more than 9 socially distanced people and did not contain

an express exception for drive-in religious events. These aspects of the March 27

order provide support for the proposition that Defendants did not advance their

compelling interest in protecting the public’s health through the least restrictive

means of achieving those ends. See id. (explaining that “the maximum attendance

at a religious service could be tied to the size of the church or synagogue”).

Again, though it appears that the allegations plausibly state a violation of

Plaintiffs’ constitutional right to expressive association, for the reasons previously

discussed in the free exercise and establishment clause sections, see supra, at 46–

50, 53–54, Defendants’ March 27 order did not violate clearly established law, and

its restrictions have since abated. Accordingly, Defendants are entitled to qualified

immunity on Count 4.

5. Substantive Due Process (Count 5)

In Count 5, Plaintiffs Farr, Ervin, and Case all allege that Defendants’ actions

violated their substantive due process rights. Starting with Farr and Ervin, their

substantive due process claim is based on the theory that Defendants’ actions

infringed upon their economic liberties. Specifically, Farr and Ervin contend that

they “have been denied their right to work and make a living for themselves and

their families as a result of the Defendants’ action in closing their business.” (Doc.

# 40, at 21.) Their claim is without merit.

The United States Supreme Court has held “for many years . . . that the

‘liberties’ protected by substantive due process do not include economic liberties.”

Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 560 U.S. 702, 721

(2010) (citing Lincoln Fed. Labor Union v. Nw. Iron & Metal Co., 335 U.S. 525,

536 (1949) (emphasis added)). And the Eleventh Circuit, albeit in an unpublished

opinion, noted that “the right to work in a specific profession is not a fundamental

right.” Helm v. Liem, 523 F. App’x 643, 645 (11th Cir. 2013). Hence, Defendants’

orders that closed Farr’s and Ervin’s business are subject to rational basis review.

See Vesta Fire Ins. Corp. v. State of Fla., 141 F.3d 1427, 1430 n.5 (11th Cir. 1998)

(explaining that “because the regulation about which Plaintiffs complain is

economic, the legislation is presumed valid unless no rational basis exists for its

enactment”). The orders pass that test: Preventing the spread of COVID-19 is a

legitimate government interest and the measures at issue are rationally related to

serving that interest.

Other courts addressing similar economic substantive due process challenges

to business closures during the COVID-19 pandemic have reached the same

outcome. See, e.g., Savage v. Mills, 478 F. Supp. 3d 16, 30 (D. Me. 2020)

(dismissing the plaintiffs’ economic substantive due process claim because “[h]arm

to business interests . . . is not a ‘plain, palpable invasion of rights’ under the

Fourteenth Amendment”); Paradise Concepts, Inc. v. Wolf, 482 F. Supp. 3d 365,

371–72 (concluding that the plaintiffs’ “claims concerning the right to operate a

business are not actionable in a Substantive Due Process Claim”); Best Supplement

Guide, LLC v. Newsom, No. 2:20-cv-965-JAM-CKD, 2020 WL 2615022, at *6

(E.D. Cal. May 22, 2020) (finding that the plaintiffs did not have a substantial

likelihood of success concerning their substantive due process claim because the

right to pursue work was not fundamental and the state’s orders were enacted for a

legitimate reason).

Case’s substantive due process claim is different. She argues that Defendants’

mask requirement unconstitutionally infringed on her substantive due process right

to control the upbringing of her children. To this end, she alleges that “causing her

children to wear a mask violates her beliefs as a mother and parent of 2 children.”

(Doc. # 40, at 22.)

While it is true that the Supreme Court has long recognized that a fundamental

right exists “to direct the education and upbringing of one’s children,” Washington

v. Glucksberg, 521 U.S. 702, 720 (1997) (citing Meyer v. Nebraska, 262 U.S. 390

(1923) and Pierce v. Society of Sisters, 268 U.S. 510 (1925)), the court is skeptical

that such a right is broad enough in scope to encompass an interest in keeping one’s

children from wearing a mask during a global pandemic, see Reno v. Flores, 507

U.S. 292, 302 (1993) (explaining that any “substantive due process analysis must

begin with a careful description of the asserted right, for the doctrine of judicial self-

restraint requires us to exercise the utmost care whenever we are asked to break new

ground in this field”) (cleaned up).

Still, any doubt about whether the mask requirement implicated (or infringed)

Case’s fundamental right to direct the upbringing of her children is dismissed

because her substantive due process claim fails for a separate reason: The

complaint’s allegations do not plausibly demonstrate that Defendants’ conduct in

enacting the mask requirement rose to the “conscience-shocking level.” Davis, 555

F.3d at 982; see also Ass’n of Jewish Camp Operators v. Cuomo, 470 F. Supp. 3d

197, 226 (N.D. N.Y. 2020) (finding that the defendant’s COVID-19 orders, which

closed overnight summer camps, did not rise to the conscience-shocking level

necessary to establish a substantive due process claim concerning the right to control

the upbringing of one’s children).

Consequently, Defendants are entitled to qualified immunity on Count 5

because Farr, Ervin, and Case fail to plausibly allege a violation of their substantive

due process rights.

6. Per Se Regulatory Taking (Count 6)

In Count 6, Plaintiffs Ervin and Farr allege that the March 27, 2020 order,

which directed non-essential businesses, including Ervin’s and Farr’s barber shop,

to close to non-employees or not take place, shuttered the doors of their business.

Ervin and Farr further allege that the order deprived them of “virtually all

economically viable use of their” business for a temporary period. (Doc. # 40, at

23.) Based on these allegations, Ervin and Farr argue that the order amounted “to a

per se compensable taking under the rule established in Lucas v. S.C. Coastal

Council, 505 U.S. 1003, 1019 (1992).” (Doc. # 49, at 19–20.) Their argument is

unavailing.

The Takings Clause of the Fifth Amendment provides that private property

shall not “be taken for public use, without just compensation.” U.S. Const. amend

V. “[T]o state a Takings claim under . . . federal . . . law, a plaintiff must first

demonstrate that he possesses a property interest that is constitutionally protected.”

Givens v. Ala. Dep’t of Corr., 381 F.3d 1064, 1066 (11th Cir. 2004) (cleaned up).

“Only if the plaintiff actually possesses such an interest will a reviewing court then

determine whether the deprivation or reduction of that interest constitutes a taking.”

Id. (citation and internal quotation marks omitted).

Assuming, without deciding, that Ervin and Farr have alleged a

constitutionally protected property interest in operating their business, their per se

regulatory takings claim fails because the closure of their business did not

permanently deprive their property of all value. A per se regulatory taking occurs

“where regulation denies all economically beneficial or productive use of land.”

Lucas, 505 U.S. at 1015. The Supreme Court, however, has clarified “that the

categorical rule in Lucas was carved out for the ‘extraordinary case’ in which a

regulation permanently deprives property of all value . . . .” Tahoe-Sierra Pres.

Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 332 (2002) (emphasis

added).

Here, Defendants’ March 27 order resulted in a temporary closure of Ervin’s

and Farr’s business—forty-four days to be exact. This “temporary prohibition on

economic use” did not render Ervin’s and Farr’s interest in operating their business

“valueless” because the interest “recover[ed] value as soon as the prohibition [was]

lifted” on May 11. Id. (alterations added). Moreover, the forty-four-day closure of

Ervin’s and Farr’s business is nowhere near the thirty-two-month prohibition at issue

in Tahoe-Sierra, which still fell short of constituting a per se regulatory taking.

Thus, the allegations in the complaint do not present an “extraordinary case in which

a regulation permanently” deprived Ervin and Farr of all value associated with their

business. Id.13

13 While neither party addresses the issue, Ervin’s and Farr’s per se regulatory takings

claim also fails under the framework set out in Penn Central Transp. Co. v. New York City, 438

U.S. 104 (1978). Under that framework, courts analyze three factors to determine whether the

regulation at issue constitutes a taking: (1) the economic impact of the regulation on the claimant;

(2) the extent to which the regulation has interfered with distinct investment-backed expectations;

and (3) the character of the government action. Id. at 124. Here, the first two factors weigh in

favor of Ervin and Farr. The temporary closure of their business undoubtedly caused a negative

economic impact and interfered with investment-backed expectations. However, the third factor—

the character of the government action—cuts in favor of Defendants and outweighs the other two

factors. See TJM 64, Inc. v. Harris, 475 F. Supp. 3d 828, 839 (W.D. Tenn. 2020) (“The character

of Defendants’ actions and the context in which Defendants find themselves, here facing a national

public health emergency, cut strongly against a finding that the COVID-19 Closure Orders amount

to regulatory takings.”).

Ervin’s and Farr’s takings claim fails for another independent reason—the

March 27 order represents a valid exercise of Alabama’s police power. The plain

language of the Takings Clause does not require compensation unless private

property has been taken “for public use.” U.S. Const. amend. V. And there is no

taking for “public use” when the government acts pursuant to its police power. See

Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 491 (1987) (“Long

ago it was recognized that all property in this country is held under the implied

obligation that the owner’s use of it shall not be injurious to the community[,] . . .

and the Takings Clause did not transform that principle to one that requires

compensation whenever the State asserts its power to enforce it.”) (cleaned up);

Goldblatt v. Town of Hempstead, 369 U.S. 590, 592 (1962) (“If this ordinance is

otherwise a valid exercise of the town’s police powers, the fact that it deprives the

property of its most beneficial use does not render it unconstitutional.”); Mugler v.

Kansas, 123 U.S. 623, 668–69 (1887) (“A prohibition simply upon the use of

property for purposes that are declared, by valid legislation, to be injurious to the

health . . . or safety of the community, cannot, in any just sense, be deemed a taking

. . . for the public benefit.”). Thus, pursuant to Alabama’s police power,

Defendants “reasonably concluded that the health, safety . . . or general welfare

would be promoted by” ordering the temporary closure of Ervin’s and Farr’s

business. Penn Central, 438 U.S. at 125; see also TJM 64, Inc., 475 F. Supp. 3d at

339 (“Defendants’ promulgation of the . . . COVID-19 Closure order was not for a

‘public use’ but was instead a valid exercise of the broad police powers bestowed

upon state and local officials to prevent detrimental public harms by restricting

Plaintiffs’ use of their property.”).

Therefore, Defendants are entitled to qualified immunity on Count 6 because

Farr and Ervin fail to plausibly allege a per se regulatory takings claim.

7. Contracts Clause (Count 7)

The Contracts Clause provides that “[n]o state shall . . . pass any . . . Law

impairing the Obligation of Contracts.” U.S. Const., Art. I, § 10, cl. 1. “Although

the language of the Contract Clause is facially absolute, its prohibition must be

accommodated to the inherent police power of the State ‘to safeguard the vital

interests of its people.’” Energy Reserves Group, Inc. v. Kansas Power and Light

Co., 459 U.S. 400, 410 (1983) (citation omitted). When evaluating a Contracts

Clause claim, courts examine three factors: “(1) whether the law substantially

impairs a contractual relationship; (2) whether there is a significant and legitimate

public purpose for the law; and (3) whether the adjustments of rights and

responsibilities of the contracting parties are based upon reasonable conditions and

are of an appropriate nature.” Vesta Fire Ins. Corp., 141 F.3d at 1433. All three

factors weigh in favor of Defendants.

First, Plaintiffs fail to plausibly allege a substantial impairment of a

contractual relationship. The only argument that Ervin and Farr advance concerning

this factor is that “contracts with their employees were severely impaired during the

period that Defendants’ orders completely shut down their business.” (Doc. # 49, at

20.) However, Defendants’ orders directing Ervin’s and Farr’s business to

temporarily close did not result in a “severe, permanent,” or “irrevocabl[e]” change

in the contractual relationships with their employees. Allied Structural Steel Co. v.

Spannaus, 438 U.S. 234, 250 (1978) (citation omitted). Rather, such orders

amounted to a “temporary alteration” of those contractual relationships. Id.; see also

Xponential Fitness v. Arizona, No. CV-20-01310-PHX-DJH, 2020 WL 3971908, at

*9 (D. Ariz. July 14, 2020) (“As the closure of gyms pursuant to the [COVID-19

order] is temporary, the Court is skeptical that it meets the threshold requirement of

substantial impairment.”).

Second, there can be no dispute that a significant and legitimate public

purpose existed for the temporary closure of Ervin’s and Farr’s business: Protecting

the public health by slowing the spread of COVID-19 at close-contact service

providers. See Xponential Fitness, 2020 WL 3971908, at *9 (finding that COVID-

19 business closure order “was a reasonable way to advance a legitimate public

purpose—namely, slowing the spread of COVID-19 in Arizona”).

Third, the adjustments of rights and responsibilities of the contracting parties

were based upon reasonable conditions and were of an appropriate nature.

Concerning this factor, “[u]nless the State itself is a contracting party . . . courts

properly defer to legislative judgement as to the necessity and reasonableness of a

particular measure.” Energy Reserves, 459 U.S. at 412–13 (cleaned up). Here, the

contracts at issue were between private parties; the State of Alabama was not a party.

Thus, based upon Defendants’ judgment in the face of the COVID-19 emergency,

the temporary business closures’ impact on Ervin’s and Farr’s employment contracts

did not amount to an unconstitutional impairment.

Accordingly, Defendants are entitled to qualified immunity on Count 7

because Plaintiffs fail to plausibly allege a Contracts Clause violation.

VI. CONCLUSION

Defendants instituted drastic measures to curtail the drastic impact of COVID-

19 on the citizens of Alabama. But as Chief Justice Roberts recently explained, the

“Constitution principally entrusts ‘[t]he safety and the health of the people’ to the

politically accountable officials of the States ‘to guard and protect.’” S. Bay United

Pentecostal Church, 140 S. Ct. at 1613 (Roberts, C.J., concurring) (quoting

Jacobson v. Massachusetts, 197 U.S. 11, 38 (1905)). And “[w]hen those officials

‘undertake[] to act in areas fraught with medical and scientific uncertainties,’ their

latitude ‘must be especially broad.’” Id. (quoting Marshall v. United States, 414

U.S. 417, 427 (1974) (first alteration added)).

The court is not unsympathetic to Plaintiffs’ plight in general and especially

in relation to the sacred, fundamental constitutional rights held dear by most

Americans. But there is not one citizen living within the borders of this land who

has not suffered real, sometimes harsh, effects from governmental reactions (at all

levels) to the COVID-19 crisis. The political, medical, scientific, and legal

conclusions that resulted are a legitimate product of our constitutional republic when

those representatives declare a national emergency. The legal conclusions herein

reflect this court’s finding that the facts of the case do not rise, after applying existing

law to all these circumstances, to a level justifying judicial intervention.

Because Defendants acted within their broad latitude to address the multitude

“medical and scientific uncertainties” brought on by the COVID-19 pandemic, their

actions “should not be subject to second guessing by an ‘unelected federal judiciary,’

which lacks the background, competence, and expertise to assess public health and

is not accountable to the people.” Id. at 1614 (citing Garcia v. San Antonio Metro.

Transit Auth., 469 U.S. 528, 545 (1985)).

Accordingly, it is ORDERED that Defendants’ motion to dismiss (Doc. # 42)

is GRANTED as follows:

(1) Defendants’ motion to dismiss is granted as to Plaintiffs’ claim for

retrospective injunctive relief for lack of standing.

(2) Defendants’ motion to dismiss is granted as to Porter’s takings clause

claim (Count 6) and contracts clause claim (Count 7) for lack of standing.

(3) Defendants’ motion to dismiss is granted as to Plaintiffs’ claim for

prospective injunctive relief because such claim is moot.

(4) Defendants are entitled to Eleventh Amendment immunity against

Plaintiffs’ claims for money damages against them in their official capacities, and

those claims for money damages are dismissed with prejudice.

(5) Defendants are also entitled to Eleventh Amendment immunity against

Plaintiffs’ ultra vires claim (Count 8), and this claim is dismissed with prejudice.

(6) Defendants are entitled to qualified immunity on Plaintiffs’

establishment clause claim (Count 2), free exercise claim (Count 3), and expressive

association claim (Count 4) because the complaint’s allegations do not plausibly

establish that Defendants’ conduct violated clearly established law. These claims

are dismissed with prejudice.

(7) Defendants are also entitled to qualified immunity on Plaintiffs’ void

for vagueness claim (Count 1), substantive due process claim (Count 5), takings

clause claim (Count 6), and contracts clause claim (Count 7) because the complaint’s

allegations do not plausibly establish that Defendants’ actions violated Plaintiffs’

constitutional rights. These claims are dismissed with prejudice.

It is further ORDERED that Plaintiffs’ motion for preliminary injunction

(Doc. # 2) is DENIED as moot, and that this case is DISMISSED.

DONE this 1st day of June, 2021.

/s/ W. Keith Watkins

UNITED STATES DISTRICT JUDGE