Petition for Writ of Certiorari — Grace Bible Fellowship, et al., Petitioners v. Jared Polis, Governor of Colorado, et al.

No. 24IN THE

Supreme Court of the United States

GRACE BIBLE FELLOWSHIP AND JOEY RHOADS,

Petitioners,

v.

JARED POLIS, IN HIS OFFICIAL CAPACITY AS

GOVERNOR, STATE OF COLORADO, AND JILL

HUNSAKER RYAN, IN HER OFFICIAL CAPACITY

AS EXECUTIVE DIRECTOR OF THE COLORADO

DEPARTMENT OF HEALTH AND ENVIRONMENT,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF A PPEALS FOR THE TENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

REBECCA R. MESSALL

Counsel of Record

MESSALL LAW FIRM, LLC

11670 Fountains Drive, Suite 200

Maple Grove, MN 55364

(612) 471-5800

rm@lawmessall.com

Counsel for Petitioners

331291

A

(800) 274-3321 • (800) 359-6859

i

QUESTION PRESENTED

Whether plaintiffs seeking only declaratory relief,

w ithout alleg ing an “ongoing” or “ imminent” or

“continuing” deprivation of constitutional rights, lack an

Article III controversy such that, despite actual injuries,

they lack standing and fail to state a claim.

ii

PARTIES TO THE PROCEEDINGS

The parties are those listed in the caption.

iii

CORPORATE DISCLOSURE

Not applicable

iv

RELATED PROCEEDINGS

U.S. Court of Appeals for the Tenth Circuit, No. 23-1148,

Grace Bible Fellowship v. Polis,

• Order, entered April 26, 2024, denying Petition for

Rehearing En Banc

• Order and Judgment upholding dismissal, entered

March 29, 2024

U.S. District Court for the District of Colorado, No. 1:20cv-02362, Grace Bible Fellowship v. Polis,

• Amended Final Judgment, entered April 7, 2023

• Order Granting Motions to Dismiss, entered March

22, 2023

United States Supreme Court, Community Baptist

Church v. Polis, No. 21-1328, May 31, 2022, denying

Petition for Writ of Certiorari.

U.S. Court of Appeals for the Tenth Circuit, No. 20- 1391,

Denver Bible Church v. Polis,

• Order denying motion for stay of mandate, entered

March 1, 2022

• Order denying Petition for Rehearing En Banc,

entered February 22, 2022

• Order and Judgment entered January 24, 2022

v

U.S. Court of Appeals for the Tenth Circuit, No. 20-1377,

Order Granting Motion to Dismiss State Defendants’

Appeal, entered December 22, 2020.

U.S. District Court for the District of Colorado, No. 1:20cv-02362, Denver Bible Church v. Polis, Order granting

partial injunctive relief, entered October 15, 2020, and

Order denying emergency injunction pending appeal,

March 28, 2021.

vi

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDINGS . . . . . . . . . . . . . . ii

CORPORATE DISCLOSURE . . . . . . . . . . . . . . . . . . . . iii

RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . vi

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . ix

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . .x

OFFICIAL AND UNOFFICIAL REPORTS OF

OPINIONS AND ORDERS . . . . . . . . . . . . . . . . . . . . .1

STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . .2

CONSTITUTIONAL PROVISIONS . . . . . . . . . . . . . . . .2

RELATED STATUTES . . . . . . . . . . . . . . . . . . . . . . . . . .3

I. STATEMENT OF THE CASE . . . . . . . . . . . . . .4

A. Legal background . . . . . . . . . . . . . . . . . . . . . . .4

B. Factual and procedural background . . . . . .4

1. Original Complaint . . . . . . . . . . . . . . . . . . .4

vii

Table of Contents

Page

2. First Amended Complaint . . . . . . . . . . .6

3. Intervening authority . . . . . . . . . . . . . . . . .9

II. REASONS FOR GRANTING THE WRIT . . . .9

A. A n i nt r a - c i r c u i t s p l i t h a r m e d

Plaintiffs’ case . . . . . . . . . . . . . . . . . . . . . . . . .9

B. The Fifth and Eleventh Circuit’s

methods provide more fairness under

12(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

C. A circuit-split exists on whether

standing for declaratory (i.e., not

injunctive) relief requires that an actual

injury also be “ongoing,” “imminent”

or “continuing” at the time a complaint

is amended . . . . . . . . . . . . . . . . . . . . . . . . . . .12

1.

The First Circuit quotes a wellknown treatise . . . . . . . . . . . . . . . . . . . .12

2. The Eighth Circuit rejects an

“ongoing” requirement . . . . . . . . . . . . .14

 7KH SDQHO·V RSLQLRQ FRQÁLFWV ZLWK

this Court’s decision in Super Tire

Engineering, Co. v. McCorkle,

416 U.S. 115 (1974) . . . . . . . . . . . . . . . . .16

viii

Table of Contents

Page

 7KH SDQHO·V RSLQLRQ DOVR FRQÁLFWV

w ith this Cour t’s r ulings on

standing in First Amendment cases

where government action is capable

of repetition but evading review. . . . . .16

D. A circuit-split exists on the elements

necessary to prove mootness, plus

the panel’s decision conf licts with

an intervening mootness decision

by this Court on March 19, 2024 . . . . . . . . . 17

E. The panel’s “wide discretion” method

for jurisdictional analysis overlooks

this Court’s requirements for analyzing

First Amendment facial challenges

based on overbreadth, vagueness, and

denial of equal protection . . . . . . . . . . . . . . .20

III. The questions presented are important

and recurring. . . . . . . . . . . . . . . . . . . . . . . . . . . . .21

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

ix

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT, FILED MARCH 29,

2024. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1a

APPENDIX B — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

DI S T R IC T OF C OL OR A D O, F I L ED

MARCH 22, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . .14a

APPENDIX C — DENIAL OF REHEARING

OF THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT,

FILED APRIL 26, 2024 . . . . . . . . . . . . . . . . . . . . . .42a

APPENDIX D — RELEVANT STATUTORY

PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44a

x

TABLE OF CITED AUTHORITIES

Page

Cases

Arostegui-Maldonado v. Garland,

75 F.4th 1132 (10th Cir. 2023) . . . . . . . . . . . . . . . . . . .11

Babbitt v.

United Farm Workers National Union,

442 U.S. 289 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . .14

Bell Atl. Corp v. Twombly,

550 U.S. 544 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . .21

Bituminous Coal Operators’ Ass’n. Inc. v. Int’l

Union, United Mine Workers of Am.,

585 F.2d 586 (3d Cir. 1978), abrogated on other

grounds by Carbon Fuel Co. v. United Mine

Workers of Am., 444 U.S. 212 (1979) . . . . . . . . . . . .13

Carbon Fuel Co. v. United Mine Workers of Am.,

444 U.S. 212 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

Cleveland Branch, N.A.A.C.P. v.

City of Parma, Ohio,

263 F.3d 513 (6th Cir. 2001),

cert denied, 535 U.S. 971 (2002). . . . . . . . . . . . . . . .15

Cmty Baptist Church v. Polis,

No. 20-1391, 2022 WL20061

(10th Cir. Jan. 24, 2022). . . . . . . . . . . . . . . . . . . . . .6, 18

xi

Cited Authorities

Page

County of Los Angeles v. Davis,

440 U.S. 625 (1979) . . . . . . . . . . . . . . . . . . . . . . . . .18, 19

Denver Bible Church v. Azar,

494 F. Supp. 3d 816 (D. Colo. 2020) . . . . . . . . . . .1, 4, 5

Federal Bureau Investigation v. Fikre,

601 U.S. 234 (2024). . . . . . . . . . . . . . . . . . . . . . . . . .9, 19

Friends of the Earth, Inc. v.

Laidlaw Envir’l Servs.,

528 U.S. 167 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . .15

Front Range Equine Rescue v. Vilsack,

844 F.3d 1230 (10th Cir. 2017). . . . . . . . . . . . . . . . . . .11

Globe Newspaper Co. v. Superior Court for

Norfolk County,

457 U.S. 596 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Grace Bible Fellowship v. Polis,

694 F. Supp. 3d 1338 (D. Colo. 2023) . . . . . . . . . . . . . .7

Grace Bible Fellowship v. Polis,

No. 23-1148, 2024 WL 134201

(10th Cir. Mar. 29, 2024) . . . . . . . . . . . . . . . . . . . 6, 7, 10

Home Building & Loan Assn v. Blaisdell,

290 U.S. 398 (1934). . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

xii

Cited Authorities

Page

Jones v. State of Ga.,

725 F.2d 622 (11th Cir. 1984). . . . . . . . . . . . . . . . . . . .11

Kennedy v. Bremerton School District,

597 U.S. 507 (2022). . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

Lewis v. Casey,

518 U.S. 343 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

Montez v. Dep’t of Navy,

392 F.3d 147 (5th Cir. 2004). . . . . . . . . . . . . . . . . . 10, 11

Moody v. NetChoice, LLC,

144 S. Ct. 2383 (2024) . . . . . . . . . . . . . . . . . . . .9, 10, 20

Nebraska Press Association v. Stuart,

427 U.S. 539 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Odom v. Penske Leasing Co.,

893 F.3d 739 (10th Cir. 2018). . . . . . . . . . . . . . 10, 11, 21

PeTA, People for the Ethical Treatment of

Animals v. Rasmussen,

298 F.3d 1198 (10th Cir. 2002). . . . . . . . . . . . . . . . . . .15

Powell v. McCormack,

395 U.S. 486 (1969). . . . . . . . . . . . . . . . . . . . . . . . .13, 18

Roman Catholic Diocese v. Cuomo,

141 S. Ct. 63 (2020). . . . . . . . . . . . . . . . . . . . . . . . . . . .19

xiii

Cited Authorities

Page

Steffel v. Thompson,

415 U.S. 452 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

Stuart v. Colo. Interstate Gas Co.,

271 F.3d 1221 (10th Cir. 2001). . . . . . . . . . . . . 10, 11, 21

Super Tire Engineering, Co. v. McCorkle,

416 U.S. 115 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

Tandon v. Newsom,

141 S. Ct. 1294 (2021). . . . . . . . . . . . . . . . . . . . . . . . . .19

United Food and Commercial Workers Intern.

Union, AFL-CIO v. IBP, Inc.,

857 F.2d 422 (8th Cir. 1988) . . . . . . . . . . . . . . . . . . . .14

United States v. Bishop,

555 F.2d 771 (10th Cir. 1977) . . . . . . . . . . . . . . . . . . . .4

Verizon New England, Inc. v.

Intern’l Broth. of Electrical Workers,

651 F. 3d 176 (1st Cir. 2011) . . . . . . . . . . . . . . .12, 13, 14

Vince11, 13nt v. Garland,

80 F.4th 1197 (10th Cir. 2023) . . . . . . . . . . . . . . . . 11, 13

Ward v. Utah,

321 F.3d 1263 (10th Cir. 2003) . . . . . . . . . . . . . . . . . . .8

xiv

Cited Authorities

Page

Statutes

23 U.S.C. § 125 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

28 U.S.C. § 1254(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

42 U.S.C. § 5121 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

C.R.S. §25-33.5-701 et seq. . . . . . . . . . . . . . . . . . . . . . . . . .4

C.R.S. §24-33.5-704(4) . . . . . . . . . . . . . . . . . . . . . . .3, 9, 16

Rules

Fed. R. Civ. P. 12(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Other Authorities

10B Charles Alan Wright et al., Federal Practice

and Procedure § 2757, at 475 (1998) . . . . . . . . . . . . .12

1

OFFICIAL AND UNOFFICIAL REPORTS OF

OPINIONS AND ORDERS

Grace Bible Fellowship v. Polis, Order Denying Petition

for Rehearing En Banc, No. 23-1148, (10 th Cir. Apr. 26,

2024), App. 42a - 43a

Grace Bible Fellowship v Polis, 2024 WL 1340201 (10th Cir.

Mar. 29, 2024) (not reported in Fed. Rptr.), App. 1a - 13a

Grace Bible Fellowship v Polis, 694 F. Supp. 3d 1338 (D.

Colo. Mar. 22, 2023), App. 14a - 41a

Church v. Polis, No. 20-1391, 2022 WL 200661 (10 th Cir.

Jan. 24, 2022), cert. denied sub nom Cmty. Baptist Church

v. Polis, 142 S. Ct. 2753 (2022).

Denver Bible Church v. Azar, 494 F. Supp.3d 816 (D. Colo.

2020), aff’d in part, dismissed in part sub nom Church v.

Polis, No. 20-1391, 2022 WL 200661 (10th Cir. Jan. 24, 2022)

Denver Bible Church v. Becerra, 2021 WL 1220758 (D.

Colo. Mar. 28, 2021)

Church v. Polis, 2020 WL 9257251 (10 th Cir. Dec. 23, 2020)

Denver Bible Church v. Azar, 494 F. Supp. 3d 816 (D.

Colo. 2020)

2

STATEMENT OF JURISDICTION

On April 26, 2024, the Tenth Circuit denied a Petition

for Rehearing en Banc. Based on a timely application,

this Court granted an extension of time until Saturday,

$XJXVWWRÀOHWKLVSHWLWLRQZKLFKLVWLPHO\ÀOHG

on Monday, August 26, 2024.

The statute conferring this Court’s jurisdiction is

86&†  1RWLÀFDWLRQVDUHQRWUHTXLUHGXQGHU

Rule 29.4.

CONSTITUTIONAL PROVISIONS

First Amendment:

Cong r e s s sha l l ma ke no l aw r e sp ec t i ng a n

establishment of religion, or prohibiting the free exercise

thereof, or abridging the freedom of speech, or of the

press; or the right of the people peaceably to assemble,

and to petition the Government for a redress of grievances.

U.S. Const. amend I.

Fourteenth Amendment:

Sec. 1. All persons born or naturalized in the United

States and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they reside.

No State shall make or enforce any law which shall abridge

the privileges and immunities of citizens of the United

States; no shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.

3

RELATED STATUTES

Other relevant portions of the Colorado Disaster

Emergency Act appear at App. 41 - 52a.

C.R.S. § 24-33.5-704 (7) In addition to any other

powers conferred upon the governor by law, the governor

may:

(j) Determine the percentage at which the state and

a local government will contribute moneys to cover the

nonfederal cost share required by the federal “Robert

T. Stafford Disaster Relief and Emergency Assistance

Act”, as amended, 42 U.S.C. sec. 5121 et seq., required

by the federal highway administration pursuant to 23

U.S.C. sec. 125, or required by any other federal law

in order to receive federal disaster relief funds. After

making such a determination, the governor may amend

the percentage at which the state and local government

will contribute moneys to the nonfederal cost share

based on the needs of the individual local governments.

As soon as practicable after making or amending such a

determination, the governor shall notify the joint budget

committee of the source and amount of state moneys

that will be contributed to cover a nonfederal cost share

pursuant to this paragraph (j).

4

I. STATEMENT OF THE CASE

A. Legal background

“Emergency does not create power. Emergency does

not increase granted power or remove or diminish the

restrictions upon power granted or reserved.” United

States v. Bishop, 555 F.2d 771, 777 (10 th Cir. 1977), citing

Home Building & Loan Assn v. Blaisdell, 290 U.S. 398,

425 (1934).

B. Factual and procedural background

1. Original Complaint

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March 2020, were continually reissued for a period much

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Rhoads and his congregation1WRÀOHDQRULJLQDOFRPSODLQW

and motion for preliminary injunction in August 2020,

EDVHGRQPRUHWKDQDGR]HQDIÀGDYLWVIURP5KRDGVDQG

church members describing the multiple injuries they

were then suffering.

One claim sought relief, as-applied and facially, for

free exercise violations caused by Colorado’s emergency

statute. C.R.S. §25-33.5-701 et seq. (“CDEA”). Most of

1. Petitioner Grace Bible Fellowship, at the time of the

original complaint, was then known as Community Baptist

&KXUFK'XULQJWKLVOLWLJDWLRQWKHFKXUFKGLVDIÀOLDWHGIURPWKH

Baptist denomination to become an independent congregation, as

explained in an unopposed motion to substitute, granted July 27,

2022. ECF 33-34, Denver Bible Church v. Azar, 1:20-cv-02362DDD-NRN (D. Colo).

5

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CDEA’s and the public health statutes’ alleged authority.

Other claims were against federal agencies participating

in what was revealed to be a coordinated national

“lockdown,” facilitated by federal funding channeled

through state statutes similar to CDEA.

In October 2020, the district court granted partial

injunctive relief from a capacity limit (from which, due

to their small facility, Plaintiffs obtained no practical

relief due to a social distancing mandate) and a facecovering requirement as necessary to “carry out their

religious exercise.” Denver Bible Church v. Azar, 494 F.

Supp. 3d 816, 844 (D. Colo. 2020). However, the district

court expressly held that Plaintiffs remained subject to

a mandate that required sanitization, prohibited shaking

hands, and required 6-foot social distancing. Id. at 836.

The latter limited Plaintiffs’ indoor worship attendance to

20-35 people in space that allowed 251 people. See Rhoads

DIÀGDYLW(&)Denver Bible Church v. Azar, 1:20-cv02362-DDD-NRN (D. Colo.).

Posted on a government website, the mandates

changed in content in rapid succession and, nearly each

time, the content increased, up to 60 pages in length. The

district court agreed the mandates presented “somewhat

of a moving target.” 494 F. Supp. 3d at 836 and fn. 7.

As weeks passed, new mandates contained provisions

warning that they carried criminal penalties enforceable

by different levels of authority, including county district

attorneys.

The governor and the public health director (“State

Defendants”) obtained an administrative stay in

6

conjunction with their appeal to the Tenth Circuit from

the district court’s partial preliminary injunction. At the

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Circuit, and, in this Court, sought an emergency injunction

pending appeal (undocketed).

State Defendants withdrew their Tenth Circuit

appeal, while Plaintiffs sought an injunction pending

appeal, denied by both the district court, the Tenth Circuit

and, on June 1, 2021, by this Court (not referred).

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11, 2021, State Defendants advised that all mandates had

been allowed to expire on June 1, 2021. Brief at 22, Denver

Bible Church v. Polis, No. 20-1391. After oral argument

in November 2021, a panel denied and vacated, as moot,

Plaintiffs’ appeal from the district court’s denial of

broader preliminary injunctive relief, and also ruled that

the facial free exercise claim was unlikely to succeed on

the merits. Grace Bible Fellowship v. Polis, No. 23-1148,

2024 WL 134201 *1 (10th Cir., Mar. 29, 2024) (unpublished),

citing Cmty Baptist Church v. Polis, No. 20-1391, 2022

WL20061, at *7 (10 th Cir. Jan. 24, 2022) (unpublished).

On remand, the district court granted interim attorneys

fees, dismissed the original complaint, and granted leave

to amend.

2.

First Amended Complaint

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significantly differed from the original complaint by

altogether dropping claims against the mandates. But

in another way, FAC merely expanded upon the original

complaint’s constitutional challenge to CDEA by adding,

7

along with free exercise, claims for the violation of

equal protection, and for the deprivation of speech

and expressive conduct by reason of overbreadth and

vagueness. Also new in FAC were these same claims

regarding the public health statutes, though not including

free exercise. Grace Bible Fellowship v. Polis, No. 23-1148

(10th Cir.), Opening Brief at 2-6; App. Vol. I 34, ¶¶46-49;

35, ¶¶52-59. Plaintiffs’ overarching claim remained the

same as to State Defendants’ position that Colorado’s

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over individual rights under the First and Fourteenth

Amendments.

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members and Pastor Rhoads accompanied FAC as had

already afforded standing for the original complaint,

including the reasserted facial and as-applied free

exercise claims against CDEA. The district court noted:

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such public-health orders in place, and there was no

dispute that the plaintiffs had standing to bring claims

against the State Defendants challenging those orders and

the state statutes under which they were promulgated.”

Grace Bible Fellowship v. Polis, 694 F. Supp. 3d 1338,

1348 (D. Colo. 2023). However, the district court granted

motions to dismiss FAC.

On appeal, the Tenth Circuit panel summarized the

district court’s action by saying that Plaintiffs “lacked

standing to bring their newly asserted claims because

“plaintiffs failed to allege the required [continuing] injury.

As to the reasserted claims, the district court found that

the as-applied CDEA free-exercise claim was moot, as [the

Tenth Circuit] had previously ruled, and that plaintiffs’

8

facial free-exercise claim failed to state a claim upon which

relief could be granted.” App. at 4a; 2024 WL 1340201 *2

(brackets added).

The panel upheld the district court’s determination

made under Fed. R. Civ. P. 12(b)(1) insofar as Plaintiffs’

constitutional injuries (albeit uncontroverted) were ruled

as not “continuing.” As such, the panel held they did not

constitute an “injury-in-fact” necessary to establish

standing to seek declaratory relief, “even for plaintiffs’

newly asserted facial challenges.” App. at 10a -11a; id.

at *4, citing Ward v. Utah, 321 F.3d 1263, 1267 (10 th Cir.

2003). The panel seemed to hold that only pre-enforcement

suits alleging a chill on First Amendment rights are

entitled to a lower threshold in pleading injury-in-fact

for standing purposes. App. at 9a - 10a; 2024 WL 1340201

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some church members never returned after the lockdown

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Id. fn 7.

Notably, the panel made no mention of the newly

asserted “as applied” challenges nor the supporting

factual allegations asserting equal protection, overbreadth

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of CDEA and the public health statutes.

Regarding FAC’s as-applied free exercise claim

against CDEA, a claim for which standing admittedly

existed under the original complaint, the panel determined

under Rule 12(b)(1) that the as-applied claim was moot, but

offered no explanation beyond adopting a previous panel’s

interlocutory ruling regarding mandates. The panel did

not consider the fact that CDEA restricts the duration

9

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704(4), thus overlooking the fact that wrongdoing under

CDEA in the instant case, and nearly always, is “capable

of repetition but evading review.”

Regarding FAC’s facial free exercise claim, the panel

ruled under 12(b)(6) that Plaintiffs failed to state a claim

upon which relief can be granted. The panel distinguished

FAC’s allegations from this Court’s intervening authority

in Kennedy v. Bremerton School District, 597 U.S. 507

(2022). to rule on the merits of the free exercise claim,

rather than on “plausibility” of the allegations. See App.

at 11a -12a; 2024 WL 1340291 *4-5.

3. Intervening authority

In addition to Kennedy, the Court’s attention is drawn

to intervening opinions on mootness, Federal Bureau of

Investigation v. Fikre, 601 U.S. 234 (2024), and on the

proper method for analyzing First Amendment facial

claims in Moody v. NetChoice, LLC, 144 S. Ct. 2383 (2024).

II. REASONS FOR GRANTING THE WRIT

The circuits are split and an intra-circuit split exists

on the method necessary to analyze jurisdictional facts.

A.

An intra-circuit split harmed Plaintiffs’ case.

7KH LQWUDFLUFXLW VSOLW LV DGGUHVVHG ÀUVW UHJDUGLQJ

the method to determine jurisdictional facts when Fed.

R. Civ. P. 12(b)(1) is asserted alone or with 12(b)(6). The

panel relied on, and twice emphasized, a simple “wide

discretion” method upheld in Stuart v. Colo. Interstate

10

Gas Co., 271 F.3d 1221 (10 th Cir. 2001), despite Plaintiffs’

objection that a later Tenth Circuit panel heavily criticized

and restricted Stuart’s use. See Odom v. Penske Leasing

Co., 893 F.3d 739 (10 th Cir. 2018).

In contrast to Stuart, Odom would have required

consideration on the merits in the instant case, rather

than under Rule 12(b)(1), inasmuch as the lack of federal

jurisdiction is not apparent from the amended complaint’s

four corners. Stuart’s lenient “wide discretion” method

lacks a framework to prevent dismissal from being

“dispensed in gross,” c.f. Lewis v. Casey, 518 U.S. 343,

358, n. 6 (1996), without any analysis of facts offered to

support each claim for relief, including here, overbreadth

and vagueness facial claims which should be analyzed

in light of this Court’s intervening decision in Moody,

discussed infra.

B. The Fifth and Eleventh Circuit’s methods

provide more fairness under 12(b)(1).

In contrast to Stuart’s lack of a helpful analytical

framework, the Court’s attention is directed to the

Fifth Circuit’s requirement that a district court assume

jurisdiction and proceed to the merits when issues of fact,

such as in the instant case, are central to both subject

matter jurisdiction and the claim on the merits. Montez v.

Dep’t of Navy, 392 F.3d 147, 150 (5th Cir. 2004) (rejecting

a jurisdictional attack intertwined on the facts with the

merits of a claim). In the instant case, the federal questions

are plainly based on extensive factual allegations, too

long to be repeated here. Grace Bible Fellowship v. Polis,

No. 23-1148 (10 th Cir.), Opening Brief at 2-11. While the

PHULWVRIWKHVHFODLPVVXSSRUWHGE\DIÀGDYLWVGHSHQGRQ

11

proof to be admitted at trial or upon dispositive motion,

federal jurisdiction does as well. Accordingly, under

Montez and even Odom, the panel’s disposition was

improper under Stuart’s “wide discretion” because proof

of the merits showing the constitutional wrongdoing, and

federal jurisdiction, are intertwined by the same factual

allegations.

Similarly, the Eleventh Circuit’s method prefers that

a district court initially assume jurisdiction and then

decide the motion under Rule12(b)(6) when a motion seeks

dismissal under both 12(b)(1) and 12(b)(6). Jones v. State

of Ga., 725 F.2d 622, 623 (11th Cir. 1984).

Plaintiffs would ask this Court to overrule Stuart,

reverse and remand the case, inasmuch as Odom expressly

relied on three of this Court’s intervening decisions.

See 893 F. 3d at 743. Moreover, Odom, relied in part on

this Court’s “emphasis on the federal courts’ ‘virtually

XQÁDJJLQJ·GXW\WRKHDUDQGGHFLGHFDVHVZLWKLQ>WKHLU@

jurisdictional grants.” Id. (citations omitted).

Importantly, unless this Court invalidates Stuart, see

Vincent v. Garland, 80 F. 4th 1197, 2000 (10 th Cir. 2023),

other Tenth Circuit panels will be “obligated to follow”

Stuart simply because it was decided prior-in-time to

the Odom decision, see Front Range Equine Rescue v.

Vilsack, 844 F. 3d 1230, 1233 (10th Cir. 2017), and the Tenth

Circuit has not overruled Stuart by an en banc decision.

See Arostegui-Maldonado v. Garland, 75 F. 4th 1132, 1142

(10th Cir. 2023).

12

C.

A circuit-split exists on whether standing for

declaratory (i.e., not injunctive) relief requires

that an actual injury also be “ongoing,”

“imminent” or “continuing” at the time a

complaint is amended.

The panel recognized that the challenged statutes

caused Plaintiffs to suffer months of actual injury. App.

at 8a; 2024 WL 1340201 *3. Yet it held that standing for

GHFODUDWRU\UHOLHIVSHFLÀFDOO\UHTXLUHVWKHH[LVWHQFHRID

“continuing injury” at the time a complaint is amended,

UDWKHU WKDQ DW LWV LQLWLDO ÀOLQJ 1RWLQJ WKDW 3ODLQWLIIV·

injury had supposedly “come and gone,” id., the panel held:

“Plaintiffs’ newly asserted claims [based on overbreadth,

denial of equal protection and denial of freedom of

speech] are not justiciable because plaintiffs fail to show

the requisite [continuing] injury for Article III standing

[necessary for declaratory relief].” App. at 13a; id. at * 5

(brackets added).

1.

The First Circuit quotes a well-known

treatise.

The First Circuit reached an opposite conclusion

about past injury, quoting a well-known treatise: “’There

LV OLWWOH GLIÀFXOW\ LQ ÀQGLQJ DQ DFWXDO FRQWURYHUV\ LI DOO

the acts that are alleged to create liability have already

occurred. The court is merely being asked, as in any

litigation, to determine the legal consequences of past

events ... ‘” Verizon New England, Inc. v. Intern’l Broth.

of Electrical Workers, 651 F. 3d 176, 189 (1st Cir. 2011),

citing 10B Charles Alan Wright et al., Federal Practice

and Procedure § 2757, at 475 (1998).

13

More specifically, declaratory judgment does not

require an accompanying order for injunction as would

be sought for wrongdoing “still in process.” Verizon, 651

F.3d at 189, citing Powell v. McCormack, 395 U.S. 486,

499 (1969) (“A court may grant declaratory relief even

though it chooses not to issue an injunction or mandamus.”)

And a declaration that constitutional violations did or did

not occur aids the parties in understanding their mutual

obligations under the existing statutes or agreement.

See Verizon, 651 F.3d at 190, citing Bituminous Coal

Operators’ Ass’n. Inc. v. Int’l Union, United Mine

Workers of Am., 585 F.2d 586, 595 (3d Cir. 1978), abrogated

on other grounds by Carbon Fuel Co. v. United Mine

Workers of Am., 444 U.S. 212, 216 & n.4 (1979).

The Verizon court focused on whether “’the soughtafter declaration would be of practical assistance in

setting the underlying controversy to rest.’” Id. at 188.

The court noted that Verizon’s requested relief was not

made in the abstract, but rather “as to the lawfulness of

the particular acts described in its complaint under the

no-strike clause of the [collective bargaining agreement].”

Id. at 189. “[Verizon] seeks a declaration that the Union’s

past actions contravened the no-strike clause of the CBA

and frustrated the company’s bargained-for quid pro quo

that such matters be resolved through arbitration. This is

not a situation where a declaration is sought on the legal

consequences of a hypothetical act that may or may not

occur in the future.” Id. at 190. The parties were still bound

by the agreement for which Verizon sought resolution

regarding the union’s disputed activities.

Likewise, in the instant case, Plaintiffs do not

request declaratory relief “in the abstract.” They

14

simply seek a resolution regarding the lawfulness of the

government’s disputed actions under the statute, not on

hypothetical facts, but on the language of the statute

and extensive testimony contained in (1) Pastor Rhoads’

DIÀGDYLW UHVSRQGLQJ WR WKH PRWLRQV WR GLVPLVV   WKH

church members’ thirteen affidavits attached to the

DPHQGHG FRPSODLQW DORQJ ZLWK 5KRDGV· LQLWLDO DIÀGDYLW

and (3) the allegations in the amended complaint. As in

Verizon, declaratory judgment will aid Plaintiffs and the

government in understanding their legal rights going

forward under the challenged statutes.

2.

The Eighth Circuit rejects an “ongoing”

requirement.

Another example of the circuit-split is United Food

and Commercial Workers Intern. Union, AFL-CIO

v. IBP, Inc., 857 F.2d 422 (8th &LU   3ULRU WR ÀOLQJ

suit to challenge a mass picketing statute, the union had

ended its most recent strike without any actual arrests

although, in earlier years, strikes prompted arrests under

WKHVWDWXWH6WDWHRIÀFLDOVDUJXHGWKDWWKHXQLRQODFNHGD

case or controversy because no picketers were “arrested,

prosecuted or threatened with prosecution . . .during the

most recent picketing activities [.]” Id. at 427. Rejecting the

argument, the court held: “This argument misapprehends

the nature of the injury in fact requirement. Plaintiffs

need not expose themselves to actual arrest or prosecution

if they legitimately possess more than an ‘imaginary or

speculative’ fear of prosecution.” Id., citing Babbitt v.

United Farm Workers National Union, 442 U.S. 289, 298

(1979) and Steffel v. Thompson, 415 U.S. 452, 459 (1974).

Plaintiffs have continually rested on the argument

that, for purposes of the standing requirement for

15

declaratory relief, their injury need not be “ongoing,”

“imminent,” or “continuing,” as long as it was “actual.”

As such, their argument was not waived by not appealing

the district court’s ruling that injury is determined at

the filing of the amended complaint. See App. at 7a,

fn. 5; 2024 WL 1340201, at fn.5. Notably, however, the

SDQHOVSHFLÀFDOO\UHOLHGRQPeTA, People for the Ethical

Treatment of Animals v. Rasmussen, 298 F.3d 1198,

1202-03 (10 th Cir. 2002), for the Tenth Circuit’s holding

that plaintiffs may “lose their standing for claims for

prospective relief.” App. at 9a; 2024 WL 1340201 at *3.

The Tenth Circuit’s position that standing can be

“lost” is a split from the Sixth Circuit, which emphatically

held that injury, for purposes of standing for declaratory

UHOLHI LV D RQHWLPH GHWHUPLQDWLRQ ZKHQ VXLW LV ÀOHG

Cleveland Branch, N.A.A.C.P. v. City of Parma, Ohio, 263

F.3d 513 (6th Cir. 2001), cert denied, 535 U.S. 971 (2002).

Not only that, after an impressive analysis, the court

stated: “We join the First, Fifth, Seventh, Eighth, and

Ninth Circuits, which have all explicitly held that standing

LVGHWHUPLQHGDVRIWKHWLPHWKHFRPSODLQWLVÀOHGµId. at

fn. 11 (citations omitted).

In the instant case, the lower courts’ denial of

standing, despite actual injury, confuses the concepts

of standing and mootness. This Court’s “repeated

statements” are that the doctrine of mootness is “’the

doctrine of standing set in a time frame: The requisite

personal interest that must exist at the commencement

of the litigation (standing) must continue throughout

its existence (mootness).’” Friends of the Earth, Inc. v.

Laidlaw Envir’l Servs., 528 U.S. 167, 189 (2000).

16

3.

The panel’s opinion conflicts with this

Court’s decision in Super Tire Engineering,

Co. v. McCorkle, 416 U.S. 115 (1974).

Plaintiffs contended that the ruling on standing

FRQÁLFWHG ZLWK Super Tire. Grace Bible Fellowship v.

Polis, No. 201348, Opening Brief at 27. Even though

the tire company’s injury from a strike was no longer

“in process” after a strike ended, the Court upheld the

company’s standing to seek declaratory relief inasmuch

as the statute’s funding for striking workers was “lurking

in the background” in every labor negotiation as an

ongoing incentive for a labor strike. In the case at bar,

the challenged disaster emergency statute is written

to coordinate with federal statutes so as to be the legal

conduit for federal emergency funding. C.R.S. § 24-33.5704(7)(j), Related Statutes, supra at p. 3. As such, federal

funding is lurking in the background as an incentive for

the governor’s decision to declare a disaster emergency,

particularly where, in the case at bar, the state obtained

tens of billions of dollars and other federal aid on the

condition that it implement virus mitigation measures

such as caused Plaintiffs’ injuries.

 7KH SDQHO·V RSLQLRQ DOVR FRQÁLFWV ZLWK

this Court’s rulings on standing in First

Amendment cases where government

action is capable of repetition but evading

review.

In its opinion regarding the individual mandates,

the district court noted that State Defendants’ practice

of issuing new mandates created a “moving target” for

Plaintiffs and the court itself. 494 F. Supp. 3d 816, fn. 8.

17

But the reason for the “moving target” is rooted in

the disaster statute’s provision for the expiration, but

LQGHÀQLWH UHLVVXDQFH RI PDQGDWHV RQ D GD\ EDVLV

C.R.S. §24-33.5-704(4). App. at 47a. Notably, of the original

complaint’s challenge to the varying language contained in

QXPHURXVVSHFLÀFPDQGDWHVDOPRVWQRQHRIWKHPDQGDWHV

were adjudicated except the ones current at the time of

district court and appellate review.

However, in Globe Newspaper Co. v. Superior Court

for Norfolk County, 457 U.S. 596 (1982), this Court upheld

First Amendment standing where, as is the case here,

the challenged order was of short duration. Likewise,

in Nebraska Press Association v. Stuart, 427 U.S. 539

(1976), this Court upheld standing despite the expiration

of a challenged order inasmuch as it could be “reasonably

assumed” that, as a newspaper, it “will someday be

subjected to another order relying on the [challenged

statute].” Id. at 603. Likewise, here, the 30-day-duration

of mandates issued under the challenged statutes makes

the government’s actions capable of repetition but evading

review. None of the defendants in the case at bar stipulated

WKDW 3ODLQWLIIV· ÀUVW DPHQGPHQW DQG HTXDO SURWHFWLRQ

rights would not be violated in the future and in fact,

essentially reserved their prerogative to do so.

D.

A circuit-split exists on the elements necessary

to prove mootness, plus the panel’s decision

conf licts with an inter vening mootness

decision by this Court on March 19, 2024.

Plaintiffs’ as-applied challenge to CDEA’s violation of

free exercise was abruptly dismissed. Without explaining

its rationale, see App. at 11a; 2024 WL 1340201 *5, the

18

panel incorporated by reference a portion of a different

panel’s unpublished opinion two years earlier in Church v.

Polis, No. 20-1391, 2022 WL 200661 (10 th Cir. 2022). The

earlier panel deemed moot Plaintiffs’ appeal of a partially

denied preliminary injunction protecting religious

exercise from then-expired mandates. Id. at 844.

The panel’s adopted opinion from the earlier panel is

nevertheless a split from the Sixth Circuit’s framework

IRUPRRWQHVVZKLFKUHTXLUHVLGHQWLÀFDWLRQRIWKH´LVVXH

presented.” N.A.A.C.P., 263 F.3d at 530, citing County of

Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (quoting

Powell v. McCormack, 395 U.S. 486, 496 (1969). Here,

the “issue presented” does not arise from the expired

mandates, but is whether Colorado’s disaster statute, as

applied, deprived Plaintiffs of their free exercise rights.

Their interest is still “cognizable” and the issue is “live”

VLQFHE\GHÀQLWLRQLWDULVHVIURPSDVWHYHQWVLQRUGHUWR

be an as-applied claim under the statute.

The Sixth Circuit’s second mootness element requires

evidence that “subsequent events make it absolutely clear

that the allegedly wrongful behavior cannot reasonably

be expected to recur.” Id. In adopting the prior panel’s

unpublished opinion, the panel relied on the government’s

promise to notify the court in the event of any new

government restrictions on houses of worship regarding

“covid-19 cases.” Church v. Polis, No. 20-1391, 2022 WL

200661 at fn. 8. Such a promise however, is irrelevant on

the issue of whether Plaintiffs’ as-applied free exercise

challenge to the statute is moot, as opposed to the previous

FKDOOHQJHWRVSHFLÀFPDQGDWHV

The panel’s opinion also lacks any analysis for the

third mootness element, although the Sixth Circuit

19

requires that “’interim relief or events have completely

and irrevocably eradicated the effects of the alleged

violation.’” 263 F.3d at 530-531, citing Davis, 440 U.S.

at 631. The loss of Plaintiffs’ free exercise rights should

have been deemed an irreparable harm “for even minimal

periods of time.” Tandon v. Newsom, 141 S. Ct. 1294, 1297

(2021) (per curiam), citing Roman Catholic Diocese v.

Cuomo, 141 S. Ct. 63, 67 (2020) (per curiam).

But the panel did not consider whether events have

“completely and irrevocably eradicated the effects” of

Plaintiffs’ free exercise deprivation when such a loss

cannot be replaced. And the court did not consider Plaintiff

5KRDGV·DIÀGDYLWWKDWWKHIRUFHGRQOLQHZRUVKLSFDXVHG

the church equipment costs of $10,000.00 which, “for our

small congregation” was “an enormous amount of money,”

and that “donations were decreased to about 65% of the

norm.” The fact that some members “stopped attending

and never returned” was considered, but rejected as

LQVXIÀFLHQWO\SOHDGHGEH\RQGWKHDIÀGDYLWLWVHOI$SSDW

91, fn. 7; 2024 WL 1340201, fn. 7.

On the mootness issue, just ten days before the

panel’s decision, this Court stated in Federal Bureau

Investigation v. Fikre, 601 U.S. 234 (2024), which was

not considered by the panel or en banc, though raised to

the latter: “In all cases, it is the defendant’s ‘burden to

establish’ that it cannot reasonably be expected to resume

its challenged conduct-whether the suit happens to be new

or long lingering, and whether the challenged conduct

might recur immediately or later at some more propitious

moment.” 601 U.S. at 243 (emphasis in the original).

Notably, in Fikre, both the Ninth Circuit and this

&RXUWUHMHFWHGWKHJRYHUQPHQW·VFRQGLWLRQDODIÀGDYLWWKDW

20

based on “currently available information,” the plaintiff

would not be restored to the disputed No-Fly List where

his claim challenged past conduct, as well. Here, however,

the panel relied on the government’s promise to inform a

previous panel whenever additional covid-19 restrictions

on houses of worship are issued. Such a promise fails to

satisfy the government’s “formidable burden” to show

mootness of Plaintiffs’ as-applied free exercise claim

against the statute regarding acts taken under CDEA.

On the contrary, the government’s statement implicitly

contains its view that it has authority to take future action

against houses of worship in violation of speech, free

exercise and equal protection rights.

E. The panel’s “wide discretion” method for

jurisdictional analysis overlooks this Court’s

requirements for analyzing First Amendment

facial challenges based on overbreadth,

vagueness, and denial of equal protection.

With respect to FAC’s as-applied and facial First

A mendment claims for violations of overbreadth,

vagueness and equal protection, neither the district court

nor the panel, by dismissing the claims under 12(b)(1) for

lack of a “continuing injury,” reviewed FAC under the

requirements in this Court’s intervening Moody decision

on July 1, 2024. 144 S. Ct. 2383. This Court vacated and

remanded decisions by the Fifth and Eleventh Circuits

because of “much work to do below on both these cases,

given the facial nature.” Likewise, Plaintiffs would ask

the Court to vacate and remand the case at bar because,

based on the requisite analysis set out in Moody, there is

much work to do to analyze the First Amendment claims

in this case, both facial and as-applied.

21

III. The questions presented are important and

recurring

Odom, supra, highlighted the importance of Rule

12(b)(1) determinations, in part, because of this Court’s

´HPSKDVLV RQ WKH IHGHUDO FRXUWV· ¶YLUWXDOO\ XQÁDJJLQJ·

duty to hear and decide cases within [their] jurisdictional

grants.” 893 F.3d at 743 (citations omitted). Yet, the panel

ruled on the basis of Stuart, without any sophisticated

framework to prevent the “wide discretion” analysis from

also becoming the method for determining a supposed

12(b)(6) failure to state a claim upon which relief can be

granted, skirting the normal “plausibility” protections

under Bell Atl. Corp v. Twombly, 550 U.S. 544, 570 (2007).

The questions presented in this case arise from

government’s unprecedented challenge to individual

constitutional rights accomplished simply with postings

on a webpage, using phrases of “emergency” and “public

health,” and tapping into billions of already prized federal

funding.

22

CONCLUSION

Stuart’s “wide discretion” method under Rule 12(b)(1)

led to Plaintiffs’ being denied ordinary protections under

Rules 12(b)(6) and Rule 56. Accordingly, for the reasons

set forth above, Plaintiffs ask the Court to grant this

Petition for Writ of Certiorari or otherwise to vacate the

panel’s opinion, directing a remand to the district court

for reconsideration under the cited authorities.

Respectfully submitted,

REBECCA R. MESSALL

Counsel of Record

MESSALL LAW FIRM, LLC

11670 Fountains Drive, Suite 200

Maple Grove, MN 55364

(612) 471-5800

rm@lawmessall.com

Counsel for Petitioners

APPENDIX

i

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT, FILED MARCH 29,

2024. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1a

APPENDIX B — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

DI S T R IC T OF C OL OR A D O, F I L ED

MARCH 22, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . .14a

APPENDIX C — DENIAL OF REHEARING

OF THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT,

FILED APRIL 26, 2024 . . . . . . . . . . . . . . . . . . . . . .42a

APPENDIX D — RELEVANT STATUTORY

PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44a

1a

Appendix

A

APPENDIX A — OPINION

OF THE

UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT,

FILED MARCH 29, 2024

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 23-1148

(D.C. No. 1:20-CV-02362-DDD-NRN)

(D. Colo.)

GRACE BIBLE FELLOWSHIP; JOEY RHOADS,

Plaintiffs-Appellants,

v.

JARED POLIS, IN HIS OFFICIAL CAPACITY

AS GOVERNOR, STATE OF COLORADO;

JILL HUNSAKER RYAN, IN HER OFFICIAL

CAPACITY AS EXECUTIVE DIRECTOR,

COLORADO DEPARTMENT OF HEALTH AND

ENVIRONMENT; WELD COUNTY DISTRICT

ATTORNEY, IN HIS OFFICIAL CAPACITY,

Defendants-Appellees.

ORDER AND JUDGMENT*

Before MORITZ, MURPHY, and CARSON, Circuit Judges.

* This order and judgment is not binding precedent, except

under the doctrines of law of the case, res judicata, and collateral

estoppel. But it may be cited for its persuasive value. See Fed. R.

App. P. 32.1(a); 10th Cir. R. 32.1(A).

2a

Appendix A

Grace Bible Fellowship and its pastor, Joey Rhoads,

appeal the district court’s order dismissing their

amended complaint.1 Because we agree that plaintiffs

fail to demonstrate the injury required for constitutional

standing as to most of their claims, that one of their claims

is moot, and that they fail to state their remaining claim,

ZHDIÀUP

Background

3ODLQWLIIV ÀOHG WKHLU RULJLQDO FRPSODLQW LQ $XJXVW

2020, challenging various COVID-19 restrictions imposed

by Colorado and the federal government’s award of

COVID-19 relief funds to Colorado. Plaintiffs also moved

to preliminarily enjoin Colorado from enforcing its

executive and public-health orders and to prohibit various

federal agencies from approving or providing any future

monetary assistance to the state. The district court largely

denied plaintiffs’ motion, ruling that they failed to make

the required strong showing of a substantial likelihood of

success on the merits. See Denver Bible Church v. Azar,

494 F. Supp. 3d 816, 822-23 (D. Colo. 2020). 2

1. Rhoads is the only remaining plaintiff from the original

complaint: the district court allowed Grace Bible Fellowship to

substitute for Community Baptist Church, and the remaining

plaintiffs withdrew. See Fed. R. Civ. P. 25(c).

2. The district court did issue a relatively narrow preliminary

injunction against Colorado’s numerical occupancy limitation and

masking requirement for worship services. See Denver Bible Church,

494 F. Supp. 3d at 843-44. Colorado initially appealed that order but

then voluntarily dismissed its appeal. See Denver Bible Church v.

Polis, No. 20-1377, 2020 U.S. App. LEXIS 42049 (order granting

motion to voluntarily dismiss appeal).

3a

Appendix A

Plaintiffs appealed, but by the time the case reached

oral argument in November 2021, Colorado no longer

imposed any COVID-19 restrictions on plaintiffs, so

we dismissed most of their claims as moot. See Cmty.

Baptist Church v. Polis, No. 20-1391, 2022 U.S. App.

LEXIS 1994, 2022 WL 200661, at *1, 7 (10th Cir. Jan.

24, 2022) (unpublished). And on plaintiffs’ facial freeexercise challenge to the Colorado Disaster Emergency

Act (CDEA), Colo. Rev. Stat. §§ 24-33.5-701 to 24-33.5 ZH DIÀUPHG WKH GHQLDO RI D SUHOLPLQDU\ LQMXQFWLRQ

because plaintiffs were unlikely to succeed on the merits.

2022 U.S. App. LEXIS 1994, [WL] at *7.

On remand, the district court dismissed the moot

claims, and plaintiffs filed an amended complaint

challenging “the State’s authority to impose any sort of

public-health restrictions . . . on houses of worship[] and . . .

assert[ing] that certain state statutes that authorize the

issuance of such public-health orders impermissibly treat

secular institutions more favorably than religious ones.”

App. vol. 3, 645. The amended complaint listed 14 claims,

alleging that both the CDEA and certain public-health

statutes that govern the CDPHE, Colo. Rev. Stat. §§ 251.5-101 and 25-1.5-102, (1) are unconstitutionally overbroad

and violate plaintiffs’ free-speech rights both facially and

as applied; (2) are unconstitutionally vague both facially

and as applied; and (3) violate equal protection both

facially and as applied. Plaintiffs also reasserted two

claims from their original complaint, contending that the

CDEA violates their free-exercise rights both facially and

as applied. For relief, plaintiffs requested a “declaratory

judgment and permanent injunctive relief . . . declaring

[their] rights under [the] CDEA and the [p]ublic[-h]ealth

4a

Appendix A

[s]tatutes and prohibiting [d]efendants . . . from issuing,

enforcing[,] or threatening to enforce . . . any executive

orders and/or public[-]health orders issued” under those

laws. App. vol. 1, 36.

Defendants moved to dismiss the claims against them

for lack of subject-matter jurisdiction and failure to state

a claim under Federal Rule of Civil Procedure 12(b)(1)

and (6), arguing that plaintiffs lacked standing, that their

claims were moot, and that they failed to state a claim.

,QVXSSRUWGHIHQGDQWVVXEPLWWHGDIÀGDYLWVDQGHYLGHQFH

demonstrating that no executive or public-health orders

issued under the challenged statutes were currently in

effect.

The district court granted defendants’ motions

and dismissed the amended complaint, concluding that

plaintiffs lacked standing to bring their newly asserted

claims because plaintiffs failed to allege the required

injury. As to the reasserted claims, the district found that

the as-applied CDEA free-exercise claim was moot, as

we had previously ruled, and that plaintiffs’ facial CDEA

free-exercise claim failed to state a claim upon which relief

could be granted. 3

Plaintiffs now appeal the dismissal of their claims for

prospective declaratory relief.4

3. The district court also granted in part plaintiffs’ motion for

interim attorney fees based on their success in obtaining partial,

preliminary injunctive relief.

4. Plaintiffs do not appeal the attorney-fee ruling or the

dismissal of their claims for a permanent injunction.

5a

Appendix A

Analysis

Plaintiffs argue that the district court erred in

dismissing their claims. Our review is de novo, except

WKDWZHUHYLHZDQ\MXULVGLFWLRQDOÀQGLQJVRIIDFWIRUFOHDU

error. See Baker v. USD 229 Blue Valley, 979 F.3d 866,

871 (10th Cir. 2020) (noting de novo review of Rule 12(b)(1)

dismissal and clear-error review of jurisdictional fact

ÀQGLQJV  Serna v. Denver Police Dep’t, 58 F.4th 1167,

1169 (10th Cir. 2023) (noting de novo review of Rule 12(b)(6)

dismissal); Rio Grande Found. v. Oliver, 57 F.4th 1147,

1159 (10th Cir. 2023) (noting de novo review of standing

and mootness).

As an initial matter, plaintiffs argue that the district

court procedurally erred by considering evidence outside

the complaint when dismissing their newly asserted claims

for lack of subject-matter jurisdiction under Rule 12(b)(1).

To be sure, defendants factually attacked the district

court’s subject-matter jurisdiction by submitting evidence

showing the absence of any existing executive or publichealth orders issued under the challenged statutes. And

the district court considered that evidence when ruling

that plaintiffs failed to establish any current and ongoing

or imminent injury, as required to obtain the requested

prospective relief on their newly asserted claims. But it

did not err in doing so.

A Rule 12(b)(1) motion to dismiss for lack of subjectmatter jurisdiction can take two forms: a facial or a factual

attack. Baker, 979 F.3d at 872. “A facial attack assumes

the allegations in the complaint are true and argues they

fail to establish jurisdiction.” Id. By contrast, “[a] factual

6a

Appendix A

attack goes beyond the allegations in the complaint and

adduces evidence to contest jurisdiction.” Id. And when

faced with a factual attack on subject-matter jurisdiction,

WKHGLVWULFWFRXUWKDV´ZLGHGLVFUHWLRQWRDOORZDIÀGDYLWV

other documents, and a limited evidentiary hearing to

resolve disputed jurisdictional facts.” Id. (quoting Stuart

v. Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir.

2001)). The district court’s “exercise of such discretion

does not convert a Rule 12(b)(1) motion into a summary[-]

judgment motion unless ‘resolution of the jurisdictional

question is intertwined with the merits,’” which is not the

case here. Id. (quoting Holt v. United States, 46 F.3d 1000,

1003 (10th Cir. 1995), abrogated in part on other grounds

by Cent. Green Co. v. United States, 531 U.S. 425, 121 S.

Ct. 1005, 148 L. Ed. 2d 919 (2001)). Additionally, although

plaintiffs suggest in passing that the district court further

erred by failing to conduct a hearing, they never asked for

a hearing below and do not explain on appeal how failing

to conduct one here was an abuse of discretion. See id.

(noting “wide discretion” to allow evidentiary hearing

on jurisdictional facts). We therefore reject plaintiffs’

procedural challenge to the district court’s jurisdictional

rulings.

Turning to the merits of the jurisdictional matters,

$UWLFOH,,,RIWKH&RQVWLWXWLRQFRQÀQHVWKHIHGHUDOMXGLFLDO

power to deciding “[c]ases” and “[c]ontroversies.” U.S.

Const. art. III, § 2. This constitutional limitation requires

“a genuine, live dispute between adverse parties, thereby

preventing the federal courts from issuing advisory

opinions.” Carney v. Adams, 592 U.S. 53, 58, 141 S. Ct. 493,

208 L. Ed. 2d 305 (2020). “The doctrines of standing and

7a

Appendix A

mootness aim to ensure federal courts stay within Article

III’s bounds throughout the litigation.” Rio Grande, 57

F.4th at 1159-60. To establish Article III standing, a

plaintiff must demonstrate “a concrete and particularized

injury that is fairly traceable to the challenged conduct[]

and is likely to be redressed by a favorable judicial

decision.” Carney, 592 U.S. at 58 (quoting Hollingsworth

v. Perry, 570 U.S. 693, 704, 133 S. Ct. 2652, 186 L. Ed. 2d

768 (2013)). And a case becomes moot “[w]hen it becomes

impossible for a court to grant effective relief.” Rio

Grande, 57 F.4th at 1165 (quoting Kan. Jud. Rev. v. Stout,

562 F.3d 1240, 1246 (10th Cir. 2009)).

Like the district court, we consider plaintiffs’ claims

in two groups, beginning with the claims asserted for the

ÀUVW WLPH LQ WKH DPHQGHG FRPSODLQW 7KH GLVWULFW FRXUW

found that plaintiffs lacked standing as to these new claims

based on their failure to allege the injury component.

An injury is “an invasion of a legally protected interest

which is (a) concrete and particularized; and (b) ‘actual or

imminent, not “conjectural” or “hypothetical.” ’ ” Lujan v.

Defs. of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L.

Ed. 2d 351 (1992) (citations omitted) (quoting Whitmore

v. Arkansas, 495 U.S. 149, 155, 110 S. Ct. 1717, 109 L. Ed.

2d 135 (1990)). “[A] grievance that amounts to nothing

more than an abstract and generalized harm to a citizen’s

interest in the proper application of the law does not count

as an ‘injury[-]in[-]fact.’”5 Carney, 592 U.S. at 58.

5. Standing is typically assessed as of the date the complaint is

ÀOHGSee Rio Grande, 57 F.4th at 1161. The district court concluded

that the appropriate point of reference for the newly asserted claims

LVWKHGDWHWKDWSODLQWLIIVÀOHGWKHLUDPHQGHGFRPSODLQW3ODLQWLIIV

8a

Appendix A

3ODLQWLIIV ÀUVW DUJXH DV WKH\ GLG EHORZ WKDW WKH\

“were injured by complying with unconstitutional orders

or violating them at the risk of prosecution.” Aplt. Br.

30. Stated differently, plaintiffs say that they “suffered

[an] actual injury-in-fact by enduring the State’s monthslong invasion of the [c]hurch’s First and Fourteenth

Amendment interests” via the orders imposing COVID-19

restrictions on them. Rep. Br. 3. But as the district court

explained, that alleged injury has come and gone: the

complained-of orders imposing COVID-19 restrictions on

plaintiffs are no longer in force. This is critical because

plaintiffs seek prospective—not retrospective—relief.

See Collins v. Daniels, 916 F.3d 1302, 1314 (10th Cir. 2019)

(“Plaintiffs have the burden to demonstrate standing for

each form of relief sought.” (quoting Lippoldt v. Cole, 468

F.3d 1204, 1216 (10th Cir. 2006))). That is, plaintiffs do

not seek relief for their asserted past injuries; instead,

they ask for a declaration about the legality of certain

statutes going forward. See PeTA, People for the Ethical

Treatment of Animals v. Rasmussen, 298 F.3d 1198, 1202

n.2 (10th Cir. 2002) (explaining that declaratory relief is

retrospective only “to the extent that it is intertwined

with a claim for monetary damages that requires us to

declare whether a past constitutional violation occurred”).

And even though “plaintiff[s] may present evidence of a

past injury to establish standing for retrospective relief,

do not challenge that conclusion, so we accept it for purposes of this

appeal. See Atlas Biologicals, Inc. v. Kutrubes, 50 F.4th 1307, 1322

(10th Cir. 2022) (explaining that it is plaintiffs’ burden to establish

jurisdiction and “a federal court is not obliged ‘to conjure up possible

theories’ to support subject-matter jurisdiction” (quoting Raley v.

Hyundai Motor Co., 642 F.3d 1271, 1275 (10th Cir. 2011))).

9a

Appendix A

[they] must demonstrate a continuing injury to establish

standing for prospective relief.”6 Jordan v. Sosa, 654 F.3d

1012, 1019 (10th Cir. 2011) (emphases added); see also

PeTA, 298 F.3d at 1202-03 (noting that plaintiffs may

“lose their standing for claims for prospective relief” if,

during litigation, “an event occurs that heals the injury”).

Thus, plaintiffs’ alleged past injuries do not “demonstrate

a continuing injury to establish standing for prospective

relief,” which is the only kind of relief plaintiffs seek.7

Jordan, 654 F.3d at 1019.

To be sure, a slightly lower threshold applies when

assessing injury for pre-enforcement First Amendment

claims. See Peck v. McCann, 43 F.4th 1116, 1129 (10th

Cir. 2022). Under this lower standard, a plaintiff must

allege an intention to engage in constitutionally protected

6. Plaintiffs purport to challenge this legal proposition,

contending that a claim seeking prospective declaratory relief can

be based on a past injury. But we have expressly held to the contrary,

explaining that even though “a complaint for nominal damages [for

a past injury] could satisfy Article III’s case[-]or[-]controversy

requirements, . . . a functionally identical claim for declaratory relief

will not.” Utah Animal Rts. Coal. Salt Lake City Corp., 371 F.3d

1248, 1257 (10th Cir. 2004).

7. 3ODLQWLIIVEULHÁ\DVVHUWWKDWWKHLUSDVWLQMXULHVUHVXOWHGLQ´D

continuing injury due to the fact [that] some church members never

returned after the lockdown.” Aplt. Br. 27. But even assuming that

the loss of church members could constitute a continuing injury (a

proposition that plaintiffs fail to develop or provide authority for),

plaintiffs do not allege that such loss is traceable to defendants’

conduct or that it is likely to be redressed by a favorable judicial

decision, as they must to establish standing. See Carney, 592 U.S.

at 58.

10a

Appendix A

conduct proscribed by statute and a credible threat of

future prosecution, plus ongoing injury resulting from

this chilling effect. See id. But here, as the district court

concluded, “the amended complaint contains no plausible

allegations that . . . plaintiffs are avoiding engaging in

any activity they have previously engaged in based on

DQREMHFWLYHO\MXVWLÀHGIHDURIIXWXUHHQIRUFHPHQWµ$SS

vol. 3, 656. Nor have plaintiffs “adequately alleged that

they are subject to a credible threat of enforcement of any

public-health restrictions that may proscribe protected

religious or expressive conduct in the future.” Id. at 654.

And there is nothing in the challenged statutes themselves

“that prohibits or restricts . . . plaintiffs from engaging

in religious activities.” Id. at 656.

Plaintiffs do not dispute these propositions on

appeal. In fact, they seemingly disavow any reliance on

imminent injuries and disclaim any pre-enforcement

First Amendment challenge, stating that their amended

complaint “is not a ‘pre[-]enforcement action.’” Aplt. Br. 30.

In other words, plaintiffs do not seek to establish standing

under the lower First Amendment threshold and instead

stake standing on their alleged actual injuries, which

occurred in the past, are not ongoing, and do not establish

standing for the prospective relief they seek.

In sum, that plaintiffs’ newly asserted claims

challenge various existing state statutes is not enough to

confer standing: the “mere presence on the statute books

of an unconstitutional statute . . . does not entitle anyone

to sue.” Winsness v. Yocom, 433 F.3d 727, 732 (10th Cir.

2006). This is true even for plaintiffs’ newly asserted

11a

Appendix A

facial challenges because we have made clear that “[a]

plaintiff bringing a facial challenge to a statute . . . must

HVWDEOLVKDQLQMXU\LQIDFWVXIÀFLHQWWRVDWLVI\$UWLFOH

III’s case-or-controversy requirement.” Ward v. Utah, 321

F.3d 1263, 1267 (10th Cir. 2003). Plaintiffs have not done

so here, so they lack standing for such claims.

We next consider plaintiffs’ reasserted claims

challenging the CDEA on free-exercise grounds. For

the as-applied claim, we agree with the district court

that such claim is moot, as we previously held. See Cmty.

Baptist Church, 2022 U.S. App. LEXIS 1994, 2022 WL

200661, at *6-7.

For the facial claim, we agree with the district court

that plaintiffs fail to state a claim. In so holding, the

district court determined (as we suggested in deciding

plaintiffs’ prior appeal, see 2022 U.S. App. LEXIS 1994,

[WL] at *8-9) that the CDEA was neutral, generally

applicable, and survived the resulting rational-basis

review. See Grace United Methodist Church v. City of

Cheyenne, 451 F.3d 643, 649 (10th Cir. 2006) (explaining

rational-basis review of neutral, generally applicable laws,

as compared to strict-scrutiny review of laws or policies

that are not neutral or generally applicable).

Plaintiffs dispute only the general applicability of the

CDEA, relying for support on the Supreme Court’s recent

ruling in Kennedy v. Bremerton School District, 597 U.S.

507, 142 S. Ct. 2407, 213 L. Ed. 2d 755 (2022). But that

case doesn’t help plaintiffs. There, the Court held that

the challenged practice (prohibiting a football coach from

12a

Appendix A

OHDGLQJDSUD\HURQWKHÀHOGDIWHUDJDPH ZDV´QHLWKHU

neutral nor generally applicable” because the defendant

school district “sought to restrict [the coach’s] actions

at least in part because of their religious character.”

Kennedy, 597 U.S. at 526. Such facts sharply contrast

with plaintiffs’ allegations about the CDEA. As the district

court put it, the “amended complaint does not allege that

the law is discriminatorily motivated or constitutes an

RIÀFLDO H[SUHVVLRQ RI KRVWLOLW\ WR UHOLJLRQµ $SS YRO 

651 n.4; see also Grace United, 451 F.3d at 649-50 (“A law

is neutral so long as its object is something other than

the infringement or restriction of religious practices.”);

Axson-Flynn v. Johnson, 356 F.3d 1277, 1294 (10th Cir.

2004) (noting that rule motivated by discrimination

is not neutral or generally applicable). To be sure, the

CDEA contains some limited secular exemptions, but we

previously explained why those exemptions were far less

broad than plaintiffs would have it. See Cmty. Baptist

Church, 2022 U.S. App. LEXIS 1994, 2022 WL 200661,

at *9. And plaintiffs advance no reason to question our

prior reasoning. Indeed, although plaintiffs baldly assert

on appeal that the CDEA “allow[s them] to be punished

for ‘personal religious observance,’” Aplt. Br. 36 (quoting

Kennedy, 597 U.S. at 543), they “have not pointed to any

part of the law that . . . prohibits any religious conduct or

burdens their religious practice in any way,” App. vol. 3,

651 n.4. We therefore agree with the district court that

plaintiffs fail to state a claim that the CDEA facially

violates the Free Exercise Clause.

13a

Appendix A

Conclusion

Plaintiffs’ newly asserted claims are not justiciable

because plaintiffs fail to show the requisite injury for

Article III standing. As for plaintiffs’ reasserted freeexercise challenges to the CDEA, their as-applied claim is

PRRWDQGWKH\IDLOWRVWDWHDIDFLDOFODLP:HWKXVDIÀUP

the district court’s order dismissing plaintiffs’ amended

complaint.

Entered for the Court

Nancy L. Moritz

Circuit Judge

14a

Appendix

B UNITED STATES

APPENDIX B — ORDER

OF THE

DISTRICT COURT FOR THE DISTRICT OF

COLORADO, FILED MARCH 22, 2023

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Daniel D. Domenico

Civil Action No. 1:20-cv-02362-DDD-NRN

GRACE BIBLE FELLOWSHIP; and JOEY RHOADS,

Plaintiffs,

v.

JARED POLIS, IN HIS OFFICIAL CAPACITY

AS GOVERNOR, STATE OF COLORADO;

JILL HUNSAKER RYAN, IN HER OFFICIAL

CAPACITY AS EXECUTIVE DIRECTOR,

COLORADO DEPARTMENT OF HEALTH AND

ENVIRONMENT; AND WELD COUNTY DISTRICT

ATTORNEY, IN HIS OFFICIAL CAPACITY,

Defendants.

ORDER GRANTING MOTIONS TO DISMISS

7KLVFDVHZDVRULJLQDOO\ÀOHGLQ$XJXVWGXULQJ

the height of the COVID-19 pandemic. At that time, the

State of Colorado1 had put in place numerous public1. The originally named “State Defendants” were Jared Polis,

Jill Hun-saker Ryan, and the Colorado Department of Public Health

and Environment. The plaintiffs have since voluntarily dismissed

their claims against the public-health department. (Docs. 152, 154.)

15a

Appendix B

health restrictions on public and private gatherings and

operation of businesses. The plaintiffs in this case, the

governing body and pastor of a church located in Brighton,

Colorado, 2 claimed those restrictions violated their

constitutional rights. The plaintiffs’ original complaint

had some merit, as shown by my order granting in part

their motion for a preliminary injunction and the State’s

subsequent amendment of its public-health orders and

withdrawal of its appeal of the preliminary injunction.

The State no longer imposes any COVID-19 restrictions

on the plaintiffs. But the plaintiffs seek to keep this case

alive via an amended complaint when the State (and by

extension, local prosecutors) have moved on. There is

no longer a case or controversy under Article III of the

Constitution, so the plaintiffs’ amended complaint must be

dismissed for lack of subject-matter jurisdiction. As the

prevailing party at the preliminary-injunction stage, the

plaintiffs are awarded reasonable attorney fees and costs

against the State Defendants in the amount of $118,948.12.

BACKGROUND

7KHSODLQWLIIVÀOHGWKHLURULJLQDOFRPSODLQWRQ$XJXVW

9, 2020, followed shortly by a motion for preliminary

injunction on August 17, 2020. (Docs. 1, 13.) On October 15,

2020, I granted in part the preliminary-injunction motion.

(Doc. 65.) Both the plaintiffs and the State Defendants

appealed that order (Docs. 66, 74), and I stayed the

2. Of the original plaintiffs, Pastor Joey Rhoads is the only

one who remains. (See Docs. 130, 131, 133, 134.) The withdrawal and

substitution of some of the plaintiffs, however, does not alter the

analysis or result here. I will use “plaintiffs” in this Order to refer

to all of the plaintiffs, past and present.

16a

Appendix B

case between those parties pending resolution of their

interlocutory appeals (Doc. 82).

While the appeals were pending, the Supreme Court

issued decisions in Roman Catholic Diocese v. Cuomo, 141

S. Ct. 63, 208 L. Ed. 2d 206 (2020), and Tandon v. Newsom,

141 S. Ct. 1294, 209 L. Ed. 2d 355 (2021). In response, the

State Defendants amended their public-health orders and

voluntarily dismissed their appeal. (Doc. 96; Doc. 114 at

11.) The plaintiffs’ appeal proceeded to disposition by the

Tenth Circuit, which found that “[b]ecause the State no

longer imposes any COVID-19 restrictions on plaintiffs, all

but one of their claims against the State are moot.” (Doc.

114 at 26.) The Circuit therefore vacated my interlocutory

rulings as to the moot claims and remanded the case with

instructions to dismiss those claims without prejudice.

(Id. at 26-27.)

After the plaintiffs’ petition to the Supreme Court

for a writ of certiorari was denied (Docs. 123, 124), I

lifted the stay of this case and dismissed the plaintiffs’

moot claims as instructed by the Tenth Circuit (Doc.

 ,DOVRJUDQWHGWKHSODLQWLIIVOHDYHWRÀOHDQDPHQGHG

complaint. (Id.) The plaintiffs did so on August 1, 2022,

and that amended complaint (Doc. 135) is the subject of

this Order. The amended complaint names as defendants

Jared Polis, the Governor of Colorado; Jill Hunsaker Ryan,

the Executive Director of the Colorado Department of

Health and Environment; and the Weld County District

Attorney. (Id.)

The plaintiffs take issue with the State’s authority

to impose any sort of public-health restrictions—e.g.,

17a

Appendix B

occupancy limitations, social-distancing requirements,

and mask-wearing requirements—on houses of worship,

and they assert that certain state statutes that authorize

the issuance of such public-health orders impermissibly

treat secular institutions more favorably than religious

ones. (See generally id.) The plaintiffs assert fourteen

claims for relief:

(1) the Colorado Disaster Emergency Act

(“CDEA”), Colo. Rev. Stat. §§ 24-33.5-701 to

717, which authorizes the Colorado Governor

to declare a state of disaster emergency

and issue executive orders to combat

such emergencies, is unconstitutionally

overbroad and violates the plaintiffs’ freespeech rights both facially (Claim 1) and as

applied (Claim 2);

(2) the CDEA is unconstitutionally vague both

facially (Claim 3) and as applied (Claim 4);

(3) the CDEA violates the plaintiffs’ freeexercise rights both facially (Claim 5) and

as applied (Claim 6);

(4) the CDEA violates the plaintiffs’ equalprotection rights both facially (Claim 7) and

as applied (Claim 8);

(5) the public-health statutes that govern

the powers and duties of the Colorado

Department of Health and Environment,

Colo. Rev. Stat. §§ 25-1.5-101 and 102, are

18a

Appendix B

unconstitutionally overbroad and violate the

plaintiffs’ free-speech rights both facially

(Claim 9) and as applied (Claim 10);

(6) t h e p u b l i c - h e a l t h s t a t u t e s a r e

unconstitutionally vague both facially

(Claim 11) and as applied (Claim 12); and

(7) the public-health statutes violate the

plaintiffs’ equal-protection rights both

facially (Claim 13) and as applied (Claim 14).

(Id. ¶¶ 46-59.)

All three defendants move to dismiss the claims

against them. (Docs. 143, 159.) The plaintiffs move for

an award of interim attorney fees against the State

Defendants pursuant to 42 U.S.C. § 1988, asserting that

they are the prevailing party based on their success in

obtaining preliminary injunctive relief and the State

Defendants’ subsequent abandonment of their appeal.

(Doc. 116.)

DISCUSSION

I.

Motions to Dismiss

A.

Applicable Law

“Federal courts do not possess a roving commission to

publicly opine on every legal question,” even ones involving

important legal or constitutional matters. TransUnion

LLC v. Ramirez, 141 S. Ct. 2190, 2203, 210 L. Ed. 2d 568

19a

Appendix B

(2021). The federal courts’ subject-matter jurisdiction is

limited, and among the most foundational limitations is

that Article III of the Constitution permits federal courts

to decide only “Cases” or “Controversies.” U.S. Const. art.

III, § 2. “[T]he existence of a live case or controversy is a

constitutional prerequisite to federal court jurisdiction.”

McClendon v. City of Albuquerque, 100 F.3d 863, 867

(10th Cir. 1996); see also Allen v. Wright, 468 U.S. 737,

750, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984) (“The case-orcontroversy doctrines state fundamental limits on federal

judicial power in our system of government.”).

´7RTXDOLI\DVDFDVHÀWIRUIHGHUDOFRXUWDGMXGLFDWLRQ

‘an actual controversy must be extant at all stages of

UHYLHZ QRW PHUHO\ DW WKH WLPH WKH FRPSODLQW LV ÀOHG·µ

$UL]RQDQVIRU2IÀFLDO(QJOLVKY$UL]RQD, 520 U.S. 43, 67,

117 S. Ct. 1055, 137 L. Ed. 2d 170 (1997). “The doctrines

of standing and mootness aim to ensure federal courts

stay within Article III’s bounds throughout the litigation.”

Rio Grande Found. v. Oliver, 57 F.4th 1147, 1159-60 (10th

Cir. 2023); see also Allen, 468 U.S. at 750. “Standing

FRQFHUQVZKHWKHUDSODLQWLII·VDFWLRQTXDOLÀHVDVDFDVHRU

FRQWURYHUV\ZKHQLWLVÀOHGPRRWQHVVHQVXUHVLWUHPDLQV

one at the time a court renders its decision.” Rio Grande

Found., 57 F.4th at 1160.

“[T]he irreducible constitutional minimum of standing

contains three elements.” Lujan v. Defs. of Wildlife, 504

U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992).

“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. (cleaned up). “Second,

20a

Appendix B

there must be a causal connection between the injury and

the conduct complained of—the injury has to be fairly

traceable to the challenged action of the defendant, and

not the result of the independent action of some third

party not before the court.” Id. (cleaned up). “Third, it

must be likely, as opposed to merely speculative, that the

injury will be redressed by a favorable decision.” Id. at

561 (internal quotation marks omitted). 3

“[S]tanding is determined at the time the action is

brought, and [courts] generally look to when the complaint

ZDVÀUVWÀOHGQRWWRVXEVHTXHQWHYHQWVµMink v. Suthers,

482 F.3d 1244, 1253-54 (10th Cir. 2007) (citation omitted).

Standing is assessed as of the time of the original

complaint, even if the complaint is later amended. S. Utah

Wilderness Alliance v. Palma, 707 F.3d 1143, 1153 (10th

Cir. 2013); accord Rio Grande Found., 57 F.4th at 1161.

But a court must “examine ‘the amended complaint in

assessing a plaintiff’s claims, including the allegations in

support of standing.’” S. Utah Wilderness Alliance, 707

F.3d at 1152-53 (quoting Mink, 482 F.3d at 1254). When,

as in this case, an amended complaint raises new claims

or adds parties that were not present in the original

complaint, the time for evaluating standing “is not so

3. See also Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 24041, 57 S. Ct. 461, 81 L. Ed. 617 (1937) (dispute is only cognizable

FDVHRUFRQWURYHUV\LILWLVERWK´GHÀQLWHFRQFUHWHDQGWRXFKHVRQ

WKHOHJDOUHODWLRQVRIWKHSDUWLHVµDQG´VXIÀFLHQWO\LPPHGLDWHDQG

real”); Rezaq v. Nalley, 677 F.3d 1001, 1008 (10th Cir. 2012) (plaintiff

seeking injunctive relief must show “ongoing, personal stake in the

outcome of the controversy, a likelihood of substantial and immediate

irreparable injury, and the inadequacy of remedies at law”).

21a

Appendix B

clear”; the rule “seems to be that standing is determined

at the time the relevant claim is raised or party is joined.”

Saleh v. Fed. Bureau of Prisons, Nos. 05-cv-02467-PABKLM, 06-cv-01747-PAB-KLM, 07-cv-00021-PAB-KLM,

2009 U.S. Dist. LEXIS 89962, 2009 WL 3158120, at *5 (D.

Colo. Sept. 29, 2009); accord Prairie Prot. Colo. v. USDA

APHIS Wildlife Servs., No. 19-cv-2537-WJM-KLM, 2020

U.S. Dist. LEXIS 111851, 2020 WL 3469712, at *8 to *9

(D. Colo. June 25, 2020) (“[S]tanding to bring a claim

DVVHUWHGIRUWKHÀUVWWLPHLQDQDPHQGHGFRPSODLQWPXVW

be judged as of the amended complaint.”).

“Mootness usually results when a plaintiff has standing

at the beginning of a case, but, due to intervening events,

loses one of the elements of standing during litigation;

thus, courts have sometimes described mootness as ‘the

doctrine of standing set in a time frame.’” :LOG(DUWK

Guardians v. Pub. Serv. Co. of Colo., 690 F.3d 1174, 1182

(10th Cir. 2012); see also Smallwood v. Scibana, 227 F.

App’x 747, 748 (10th Cir. 2007) (“Mootness is implicated

when a case or controversy, originally present, ceases

to exist.”). Mootness, “though analytically similar to

standing,” differs in some ways. :LOG(DUWK*XDUGLDQV,

690 F.3d at 1182. As relevant here, “the plaintiff bears the

burden of demonstrating standing, [while] the defendant

bears the burden of proving moot-ness.” Id. at 1183.

“ Both st and i ng and mootness a re th reshold

jurisdictional issues.” In re Yellow Cab Co-op. Ass’n, 132

F.3d 591, 594 (10th Cir. 1997). A motion to dismiss for

lack of subject-matter jurisdiction generally takes one

of two forms: a facial or factual attack. Holt v. United

22a

Appendix B

States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). A facial

DWWDFNFKDOOHQJHVWKHVXIÀFLHQF\RIWKHFRPSODLQW·VIDFWXDO

allegations as to subject-matter jurisdiction, while a

factual attack challenges the facts on which subjectmatter jurisdiction depends. Id. When reviewing a facial

attack on a complaint, a district court must accept the

allegations in the complaint as true. Id. at 1002. But when

reviewing a factual attack, the court “may not presume the

truthfulness of the complaint’s factual allegations.” Id. at

7KHFRXUWPXVWLQVWHDGPDNHLWVRZQÀQGLQJVDVWR

the relevant jurisdictional facts, and has wide discretion to

FRQVLGHUDIÀGDYLWVGRFXPHQWVDQGRWKHUHYLGHQFHRXWVLGH

the pleadings. Id.

B. Analysis

1.

There is no live case or controversy between

the parties, and therefore no subject-matter

jurisdiction under Article III.

The plaintiffs’ amended complaint seeks (1) declaratory

relief “declaring Plaintiffs[’] rights under [the] CDEA

and the Public Health Statutes,” and (2) injunctive relief

“prohibiting Defendants . . . from issuing, enforcing, or

threatening to enforce against Plaintiffs and other persons

any executive orders and/or public health orders issued

pursuant to [the] CDEA and the Public Health Statutes.”

(Doc. 135 at 13.) At the time the amended complaint was

ÀOHG DQG QRZ  WKHUH ZHUH QR ´H[HFXWLYH RUGHUV DQGRU

public health orders issued pursuant to [the] CDEA and

the Public Health Statutes” in force to which the plaintiffs

object. (See Doc. 155 at 10 (“Grace Bible Fellowship’s

23a

Appendix B

members were restricted, between March 2020 and June

2021 . . . .”); Doc. 143-1 ¶ 4 (State Defendants “currently

impose no COVID-19-related restrictions on Plaintiffs in

this case or houses of worship generally”); Doc. 143-2 ¶ 4

(same) see also, e.g., Doc. 135 ¶ 41 (discussing public-health

orders in past tense); Doc. 135-10 ¶ 6 (same).)

$W WKH WLPH WKH RULJLQDO FRPSODLQW ZDV ÀOHG WKHUH

were such public-health orders in place, and there was no

dispute that the plaintiffs had standing to bring claims

against the State Defendants challenging those orders and

the state statutes under which they were promulgated.

But when the State Defendants amended the relevant

public-health orders, the majority of the plaintiffs’ original

claims became moot. (Doc. 114; see also Doc. 129.) The

defendants now argue that the plaintiffs’ as-applied claims

in the amended complaint are likewise moot (see Doc. 143

at 4-7; Doc. 159 at 4-7), but I do not think that is quite

right. Most of the plaintiffs’ claims in the in the amended

complaint—both facial and as-applied—are asserted

IRU WKH ÀUVW WLPH LQ WKH DPHQGHG FRPSODLQW ZKLFK ZDV

ÀOHG DIWHU WKH FKDOOHQJHG JRYHUQPHQW UHVWULFWLRQV KDG

ended. The question as to those claims, then, is whether

the plaintiffs had standing to bring them at the time the

DPHQGHGFRPSODLQWZDVÀOHG4

4. The only claims in the amended complaint that also appear in

the original complaint are the claims against the State Defendants

asserting facial and as-applied free-exercise challenges to the

CDEA. (Compare Doc. 1 (Claim 3), with Doc. 135 (Claims 5 and 6).)

The as-applied challenge is moot, as held by the Tenth Circuit. (Doc.

114.) The Circuit found that the facial challenge was not moot, at least

as of the time its order issued. (Doc. 114 at 16.) There is nothing in

24a

Appendix B

But whether the case-or-controversy question is

phrased in terms of standing or mootness, in order for a

justiciable controversy to exist now, the plaintiffs must

have suffered in the past, be suffering presently, or be

threatened with in the future an actual injury traceable to

the defendants that is likely to be redressed by a favorable

judicial decision.

a.

The Past and Present

The State Defendants did at one time issue publichealth orders that, as previously held, likely harmed

the plaintiffs and violated their constitutional right to

free exercise. But the CDEA and public-health statutes

that are the subject of the plaintiffs’ amended complaint

the Circuit’s rather cursory treatment of the mootness question to

suggest that it meant to say that any facial challenge the plaintiffs

might bring would always present a case or controversy. For the

reasons discussed below, I believe the facial free-exercise claim

against the State Defendants, like the rest of the plaintiffs’ claims,

does not currently present a justiciable case or controversy. But to

the extent the law-of-the-case doctrine and the mandate rule compel

me to hold that claim is not moot, it must be dismissed for failure

to state a claim upon which relief can be granted. The CDEA is

neutral and generally applicable and survives rational-basis review,

and the plaintiffs’ amended complaint does not allege that the law

LV GLVFULPLQDWRULO\ PRWLYDWHG RU FRQVWLWXWHV DQ RIÀFLDO H[SUHVVLRQ

of hostility to religion. (See Doc. 65 at 19-20; Doc. 114 at 18-22.) The

Supreme Court’s recent decision in Kennedy v. Bremerton School

District, 142 S. Ct. 2407, 213 L. Ed. 2d 755 (2022), does not change

that conclusion. And the plaintiffs have not pointed to any part of the

law that, in the absence of an active public-health order issued by the

governor or the public-health department, prohibits any religious

conduct or burdens their religious practice in any way.

25a

Appendix B

have not been used to adopt any orders restricting the

plaintiffs’ religious activities since at least June 2021.

(Doc. 155 at 10.) The past harm to the plaintiffs from the

State Defendants’ now-rescinded public-health orders

is not enough to present a live case or controversy now.

Damages are the typical remedy for past harms, so where,

as here, only prospective relief is at stake, prior injury

is not likely to be an adequate basis for a live case or

controversy. See Jordan v. Sosa, 654 F.3d 1012, 1019 (10th

Cir. 2011) (“Although a plaintiff may present evidence of a

past injury to establish standing for retrospective relief,

he must demonstrate a continuing injury to establish

standing for prospective relief.”); PeTA v. Rasmussen, 298

F.3d 1198, 1202-03 (10th Cir. 2002) (event during litigation

can “heal” injury and cause plaintiffs to lose standing).

The plaintiffs’ desire for the “satisfaction of a declaration

[they were] wronged” does not create an Article III case or

controversy. Bauchman v. W. High Sch., 132 F.3d 542, 54849 (10th Cir. 1997). And “[p]ast 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.” O’Shea v. Littleton,

414 U.S. 488, 495-96, 94 S. Ct. 669, 38 L. Ed. 2d 674 (1974)).

A declaration or injunction would not change anything

about the defendants’ past conduct or do anything more to

redress the plaintiffs’ past injury than what has already

been done by the State Defendants’ (semi-voluntary)

recission of their public-health orders.

Nor would a declaration or injunction alter the

parties’ current actions toward each other. A live case

or controversy only exists if a court’s decision would

26a

Appendix B

“settl[e] some dispute which affects the behavior of the

defendant toward the plaintiff.” Jordan, 654 F.3d at

1025. A declaration or injunction of the sort requested

in the amended complaint, however, would not change

anything about the defendants’ current behavior. The

“mere presence” on the State’s books of a statute a plaintiff

believes is unconstitutional does not confer standing to

challenge it. See Winsness v. Yocom, 433 F.3d 727, 732

(10th Cir. 2006). Of course, a court order declaring the

challenged statutes unconstitutional might provide the

plaintiffs with some reassurance and the satisfaction

of knowing that their legal theories are correct and

UHVSHFWHG%XWWKDWLVWKHGHÀQLWLRQRIDQDGYLVRU\RSLQLRQ

and “federal courts do not issue advisory opinions.”

TransUnion, 141 S. Ct. at 2203. While we all have an

interest in not having unconstitutional laws on the books,

a plaintiff raising only a generally available

grievance about government—claiming only

harm to his and every citizen’s interest in

proper application of the Constitution and laws,

and seeking relief that no more directly and

WDQJLEO\ EHQHÀWV KLP WKDQ LW GRHV WKH SXEOLF

at large—does not state an Article III case or

controversy.

Lujan, 504 U.S. at 573-74. The Constitution leaves such

grievances “for resolution through the political process.”

6WHHO&RY&LWL]HQVIRUD%HWWHU(QY·W, 523 U.S. 83, 97 n.2,

118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998).

27a

Appendix B

A live case or controversy therefore does not exist

based on any past or presently ongoing injury to the

plaintiffs.

b.

The Future

If there is no past or present injury that gives rise

to a viable case or controversy, what about the future?

Preventing harm in the future can be the source of

standing in some circumstances. But those circumstances

are not present here.

To give rise to standing, an injury must be “actual or

imminent.” Lujan, 504 U.S. at 560. As explained, there is

no actual, current injury caused by the challenged statutes

or the defendants’ actions. To the extent the plaintiffs

have suffered actual injuries, those injuries are in the

past and would not be redressed even if their substantive

arguments prevailed. The plaintiffs’ concerns about future

injury might be redress-able, but any potential future

injuries are not imminent; they are instead the sort of

“conjectural or hypothetical” injuries that Lujan and its

SURJHQ\WHDFKDUHLQVXIÀFLHQWWRFRQIHUVWDQGLQJ

The injury-in-fact requirement may be applied

“somewhat more leniently” in the First Amendment

context, “facilitating pre-enforcement suits.” Peck v.

McCann, 43 F.4th 1116, 1129 (10th Cir. 2022) (citing Ward

v. Utah, 321 F.3d 1263, 1267 (10th Cir. 2003)); see also

Mink, 482 F.3d at 1253, Winsness, 433 F.3d at 731. Under

this more lenient approach, a plaintiff may show an injury

28a

Appendix B

in fact by alleging (a) “an intention to engage in a course

of conduct arguably affected with a constitutional interest,

but proscribed by statute, and there exists a credible

threat of prosecution thereunder,” or (b) “a credible threat

of future prosecution” plus an “ongoing injury resulting

from the statute’s chilling effect on his desire to exercise

his First Amendment rights.” Peck, 43 F.4th at 1129. As

the Peck court noted, “though these are listed as two

distinct tests in Ward, they overlap and the analysis will

be similar under either.” Id. at 1129 n.9.

The plaintiffs here have not adequately alleged that

they are subject to a credible threat of enforcement of any

public-health restrictions that may proscribe protected

religious or expressive conduct in the future. As the

Tenth Circuit explained, it is unreasonable to expect that

the defendants will reinstate the challenged restrictions

against houses of worship. (Doc. 114 at 9-15; see also

Doc. 129 at 3-5.) The chance that the State might do so

in response to the COVID-19 pandemic—or that it might

impose some other restriction that burdens religious

practice in response to some hypothetical future publichealth emergency—is “entirely speculative.” (Doc. 114

at 14.)

Nothing in the amended complaint supports an

inference that a credible threat of prosecution has arisen

since the Tenth Circuit issued its order. There are no

allegations that the plaintiffs are engaging in, intend

to engage in, or are being chilled from engaging in any

activity that is currently proscribed by the CDEA, the

challenged public-health statutes, or any public-health

orders issued pursuant to those laws. The plaintiffs’

29a

Appendix B

allegations are based on the theory that the State

Defendants could use the challenged laws to adopt orders

or regulations that might unconstitutionally infringe on

the plaintiffs’ protected activities. That is simply not

plausible in any relevant way. Comparing the plaintiffs’

situation to that in Peck is useful.

In Peck, the court explained that plaintiffs suing for

prospective relief based on a law’s alleged chilling effect

can satisfy the requirement that their claim of

injury be “concrete and particularized” by (1)

evidence that in the past they have engaged in

the type of [conduct] affected by the challenged

JRYHUQPHQWDFWLRQ  DIÀGDYLWVRUWHVWLPRQ\

VWDWLQJ D SUHVHQW GHVLUH WKRXJK QR VSHFLÀF

plans, to engage in such [conduct]; and (3) a

plausible claim that they presently have no

intention to do so because of a credible threat

that the [challenged law] will be enforced.

43 F.4th at 1129-30 (quoting Initiative & Referendum Inst.

v. Walker, 450 F.3d 1082, 1088-89 (10th Cir. 2006)). Ms.

3HFNVDWLVÀHGWKRVHUHTXLUHPHQWVDVWRRQHRIKHUFODLPV

because (1) she previously disclosed information to a

newspaper in apparent violation of the challenged statute;

(2) she submitted a sworn declaration stating her desire

to make such disclosures to the public and press in the

future; and (3) there was a credible threat of enforcement

because a judge had issued an order warning her against

making prohibited disclosures again, and the state had

not disavowed future enforcement. Id. at 1130-33.

30a

Appendix B

Here, by contrast, the amended complaint contains

no plausible allegations that the plaintiffs are avoiding

engaging in any activity they have previously engaged

in based on an objectively justified fear of future

enforcement. They rely entirely on the State Defendants’

past public-health orders that placed restrictions on

KRXVHV RI ZRUVKLS %XW WKDW LV LQVXIÀFLHQW XQGHU DQ\ RI

the applicable factors. There is nothing in the CDEA or

the challenged public-health statutes that prohibits or

restricts the plaintiffs from engaging in religious activities

that they are doing, have done, or allege they wish to do.

While “past wrongs are evidence bearing on whether

there is a real and immediate threat of repeated injury,”

“they do not confer standing to pursue prospective relief

without some credible threat of future injury.” Mink, 482

F.3d at 1253. It has been well-established in this case that

the State Defendants’ past wrongs are not evidence of a

credible threat of enforcement of public-health orders that

may or may not be issued in the future.

The presence on the State’s books of statutes

that grant broad authority to the Governor and state

bureaucrats to order extraordinary limits on the freedoms

of its citizens in an emergency is worth pondering. That

these statutes have been used in the recent past to adopt

public-health orders that likely discriminated against

religious activity is troubling. That the State at one point

argued that the federal courts owe near-total deference to

its determinations as to what extraordinary measures are

ZDUUDQWHGDQGZKDWFRXQWVDVHPHUJHQF\WKDWMXVWLÀHV

such measures, is even more so.

31a

Appendix B

But at this point, the State has rescinded all such

emergency measures. The Tenth Circuit has recognized

that the State is unlikely to return to such measures, at

least in the face of this Court’s prior order and subsequent

decisions of the Supreme Court. The plaintiffs here do not

allege a credible threat of prosecution or enforcement of

any current or future public-health restrictions under the

CDEA or challenged public-health statutes. A live case or

controversy therefore does not exist based on potential

future injury to the plaintiffs.

2.

The plaintiffs’ arguments to the contrary

are unavailing.

The plaintiffs’ counterarguments are incorrect. In

large part, their arguments rehash those they made as to

their original free-exercise claims—they argue that the

CDEA and public-health statutes permit the entry of new

orders at any time, and that the State Defendants only

withdrew the prior orders to avoid review and have not

entirely disavowed the possibility of adopting new, similar

orders. They also argue that their facial challenges do not

need to meet the usual standing requirements otherwise

required under Lujan and its progeny.

As explained above, the State Defendants’ previous

imposition of public-health orders that caused the plaintiffs

LQMXU\GRHVQRWVXIÀFHWRJLYHWKHSODLQWLIIVVWDQGLQJWR

pursue prospective relief now that those orders are well

in the past. And plaintiffs bringing facial challenges must

VWLOOVKRZDQLQMXU\LQIDFWVXIÀFLHQWWRVDWLVI\WKH$UWLFOH

III case-or-controversy requirement, even under the more

32a

Appendix B

lenient standards that apply in the First Amendment

context. See Ward, 321 F.3d at 1267; D.L.S. v. Utah, 374

F.3d 971, 975-76 (10th Cir. 2004).

The plaintiffs are also incorrect in arguing that a

credible threat of enforcement exists unless and until

the defendants “foreswear” any future enforcement. “It

is not necessary for defendants to refute and eliminate

all possible risk that the statute might be enforced to

demonstrate a lack of a case or controversy.” Mink, 482

F.3d at 1255 (cleaned up). And the State Defendants have

DIÀUPHGWKDWWKH\KDYH´QRSODQVWRLPSRVHRQ3ODLQWLIIV

or houses of worship any future restrictions related to

the COVID-19 pandemic.” (Doc. 143-1 ¶ 4; Doc. 143-2 ¶ 4.)

Nor are the plaintiffs correct that the State Defendants’

declarations are inadmissible at the motion-to-dismiss

VWDJH$FRXUWKDVZLGHGLVFUHWLRQWRFRQVLGHUDIÀGDYLWV

documents, and other evidence outside the pleadings

when evaluating a factual challenge to its subject-matter

jurisdiction. Holt, 46 F.3d at 1003; see also Mink, 482 F.3d

at 1253-55 (citing various cases relying on government

officials’ assurances regarding their intentions to

determine standing questions).

The authorities cited by the plaintiffs do not go as far

as they argue. (See Doc. 155 at 10, 12-14, 23-24.) Neither

Peck nor Rich’s Modern Constitutional Law suggest there

is a general exception to Article III standing requirements

for First Amendment cases or for overbreadth challenges.

Peck, as explained above, simply recognizes that at

least in expression cases, a plaintiff can have standing

without risking prosecution by actually violating the

33a

Appendix B

law in question. But plaintiffs still must show a credible

threat of prosecution if they were to violate the law. 43

F.4th at 1129-30. And the “general exception to the law of

standing” for over-breadth claims that Rich discusses is

an exception to the usual third-party standing rule. (See

Doc. 155 at 10.) That exception just means that plaintiffs

whose own behavior falls squarely within the core of the

law in question can still mount an overbreadth challenge.

But such plaintiffs “still must show that they themselves

have suffered some cognizable injury from the statute.”

D.L.S., 374 F.3d at 976. The plaintiffs cite )(5Y9DOGH],

58 F.3d 1530, 1533 (10th Cir. 1995), for the proposition that

they may continue to pursue declaratory relief for past

injuries. But in that case, the plaintiffs also sought nominal

damages, which prevented mootness; the plaintiffs here

do not assert any claim for damages.

The Tenth Circuit discussed at length the reasons why

public-health restrictions similar to those that previously

injured the plaintiffs are unlikely to be enacted in the

future. Nothing alleged in the amended complaint or

anything that has happened since the Circuit’s order

issued has made future enactment of such restrictions

any more likely. If anything, the passage of time has made

it more and more clear that the Circuit’s prediction was

correct. There is no credible threat that the plaintiffs will

be subject to restrictions (let alone prosecution) of the

sort they contend would violate their constitutional rights.

The harm they seek to prevent is thus too conjectural and

speculative to present a justiciable a case or controversy.

Their claims must therefore be dismissed for lack of

subject-matter jurisdiction.

34a

Appendix B

II. Motion for Attorney Fees

The plaintiffs seek an award of “interim attorney

fees” as the prevailing party at the preliminary-injunction

stage. (Doc. 116.)

A.

Applicable Law

“In any action or proceeding to enforce a provision

of section[] . . . 1983, . . . of this title, . . . the court, in its

discretion, may allow the prevailing party . . . a reasonable

attorney’s fee as part of the costs . . . .” 42 U.S.C. § 1988(b).

“In any fee request under § 1988(b), a claimant must prove

two elements: (1) that the claimant was the ‘prevailing

party’ in the proceeding; and (2) that the claimant’s fee

request is ‘reasonable.’” 5RELQVRQY&LW\RI(GPRQG, 160

F.3d 1275, 1280 (10th Cir. 1998). Here, the parties do not

dispute that the plaintiffs are “prevailing parties” in light

of their success in obtaining preliminary injunctive relief

and the fact that the State Defendants ultimately amended

their public-health orders and voluntarily dismissed their

interlocutory appeal. See Kan. Judicial Watch v. Stout,

653 F.3d 1230, 1235-38 (10th Cir. 2011) (plaintiff that

obtains preliminary injunction based on likelihood of

success on the merits is prevailing party if events outside

SODLQWLII·VFRQWUROPRRWWKHFDVHEHIRUHÀQDODGMXGLFDWLRQ 

They do dispute, however, what amount of attorney fees is

“reasonable” in light of the plaintiffs’ degree of success.

“To determine the reasonableness of a fee request,

a court must begin by calculating the so-called ‘lodestar

amount’ of a fee.” Robinson, 160 F.3d at 1281. “The lodestar

35a

Appendix B

calculation is the product of the number of attorney hours

‘reasonably expended’ and a ‘reasonable hourly rate.’”

Id. “[A] claimant is entitled to the presumption that this

ORGHVWDUDPRXQWUHÁHFWVD¶UHDVRQDEOH·IHHµid., but if “a

plaintiff has achieved only partial or limited success, the

product of hours reasonably expended on the litigation as a

whole times a reasonable hourly rate may be an excessive

amount,” +HQVOH\Y(FNHUKDUW, 461 U.S. 424, 436, 103 S.

Ct. 1933, 76 L. Ed. 2d 40 (1983).

“[T]he extent of a plaintiff’s success is a crucial factor

in determining the proper amount of an award of attorney’s

fees under 42 U.S.C. § 1988.” Id. at 440. “A reduced fee

DZDUGLVDSSURSULDWHLIWKHUHOLHIKRZHYHUVLJQLÀFDQWLV

limited in comparison to the scope of the litigation as a

whole.” Id. “Where the plaintiff has failed to prevail on

a claim that is distinct in all respects from his successful

claims, the hours spent on the unsuccessful claim should

be excluded in considering the amount of a reasonable fee.”

Id. “There is no precise rule or formula for making these

determinations. The district court may attempt to identify

VSHFLÀFKRXUVWKDWVKRXOGEHHOLPLQDWHGRULWPD\VLPSO\

reduce the award to account for the limited success. The

court necessarily has discretion in making this equitable

judgment.” Id. at 436-37.

B. Analysis

The plaintiffs have submitted attorney invoices

UHÁHFWLQJ ZLWKDGMXVWPHQWV KRXUVELOOHGIURP-XO\

6, 2020 through December 14, 2020, at $350 per hour, for a

total of $178,045 in fees, plus $251.45 in costs, for a grand

36a

Appendix B

total of $178,296.45. (Doc. 169.) The State Defendants do

not contest that $350 is a reasonable hourly rate for the

plaintiffs’ counsel. They do, however, contest the number

of attorney hours reasonably billed. The State Defendants

argue that (1) the plaintiffs are not entitled to recover fees

for work expended on claims unrelated to the one claim

on which the plaintiffs were partially successful (i.e.,

claims other than the plaintiffs’ as-applied free-exercise

challenge to the CDEA); (2) the plaintiffs are not entitled

to recover fees for work expended after partial injunctive

relief was granted on October 15, 2020, because the

plaintiffs “did not prevail on any claims or legal arguments

after that point”; and (3) the plaintiffs’ fees should be

further reduced “as this Court deems appropriate” to

account for the limited degree of the plaintiffs’ success

in obtaining only part of the injunctive relief they sought.

(See generally Doc. 140.)

The plaintiffs’ original complaint asserted eleven

substantive causes of action, and they sought preliminary

injunctive relief based on nine of those, seven of which

were asserted against the State Defendants. (See Doc.

65 at 9, 40 n.27.) The plaintiffs obtained relief based on

only one of those claims: their as-applied free-exercise

challenge to the CDEA. (See id. at 3 (plaintiffs “have

not demonstrated a likelihood of success on the merits

of most of their asserted claims”).) And, they obtained

only part of the relief they sought—the plaintiffs sought

to enjoin enforcement of “any and all” public-health

restrictions the State imposed on houses of worship (see,

e.g., Doc. 98 at 2, 23), but I enjoined enforcement of the

State Defendants’ public-health orders “in relatively

37a

Appendix B

narrow part”: I prohibited the State from enforcing (1)

numerical occupancy limitations for worship services, and

(2) the face-mask requirement, to the extent that “the

temporary removal of a face covering is necessary for

Plaintiffs or their employees, volunteers, or congregants

to carry out their religious exercise” (Doc. 65 at 2, 44).

Injunctive relief was denied as to “the neutrally applicable

rules and prohibitions in [the public-health orders],”

including “sanitization requirements, main-tain[ing] social

distancing between individuals, and not permit[ting]

shaking hands.” (Id. at 29.)

As to whether it is reasonable for the plaintiffs to

recover for hours expended on claims other than their

as-applied free-exercise challenge to the CDEA, I agree

with the State Defendants that the plaintiffs should not

recover for time spent on their claims asserted against

the Federal Defendants under the Religious Freedom

Restoration Act and Stafford Act, as those claims raised

unrelated legal issues against separate defendants based

on a separate set of facts. See Jane L. v. Bangerter,

 )G   WK &LU   DIÀUPLQJ GHQLDO

of fees expended on unsuccessful claims that raised

unrelated issues). But as to the other claims asserted

against the State Defendants on which the plaintiffs were

unsuccessful, at least some of them were interrelated

with the claim on which the plaintiffs achieved success.

See id. (failure on some claims should not preclude full

UHFRYHU\ RI IHHV LI VXFFHVV ZDV DFKLHYHG RQ VLJQLÀFDQW

claim based on related legal theories or common core of

facts). The plaintiffs’ free-exercise challenge under the

Colorado Constitution asserted a related legal theory,

38a

Appendix B

and their vagueness challenges were based on a common

core of facts inasmuch as they necessitated detailed

review and scrutiny of the various restrictions imposed

by the numerous public-health orders issued by the State

Defendants.

As to hours expended after partial injunctive relief

was granted on October 15, 2020, while the plaintiffs were

not successful in obtaining any further relief after that

date, it was reasonable for them to continue to expend

attorney time defending the preliminary relief they had

obtained. The State Defendants immediately appealed my

SUHOLPLQDU\LQMXQFWLRQRUGHUDQGÀOHGPRWLRQVEHIRUHWKLV

Court and the Tenth Circuit seeking to stay that order. It

was reasonable for the plaintiffs to spend attorney time

opposing those motions and defending against the State

Defendants’ interlocutory appeal. Some of the time the

plaintiffs spent after that date, though, was not reasonably

expended. The hours the plaintiffs spent on their own

appeal of my denial of injunctive relief with respect to

unrelated claims should not be recoverable. And some of

the time the plaintiffs spent defending against the State

Defendants’ appeal appears to have been unnecessary or

excessive. For example, although the State Defendants

moved to voluntarily dismiss their appeal on December

8, 2020 and the plaintiffs ultimately did not oppose, their

FRXQVHO VSHQW  KRXUV GUDIWLQJ DQG ÀOLQJ D UHVSRQVH

brief “objecting to the motion’s rationale, while not

objecting to a Rule 42(b) dismissal.” See (Doc. 169-6 at

1-2); Polis v. Denver Bible Church, No. 20-1377 (10th Cir.

ÀOHG2FW (&)1RV

39a

Appendix B

Finally, I agree with the State Defendants that some

reduction of the plaintiffs’ fee award is warranted to

account for the degree of success the plaintiffs achieved

even on the one claim on which they were successful. The

SODLQWLIIV DFKLHYHG D VLJQLÀFDQW VXFFHVV E\ REWDLQLQJ D

preliminary injunction based on the legal conclusion that

“normal constitutional scrutiny—even strict scrutiny,

where appropriate” applies during a public-health

emergency. See (Doc. 65 at 11-19); see also Roman Catholic

Diocese, 141 S. Ct. at 68 (“[E]even in a pandemic, the

Constitution cannot be put away and forgotten.”). The

application of normal constitutional scrutiny in this case,

however, ultimately resulted in an injunction barring

enforcement of only two narrow provisions of the State’s

public-health orders, which was a far cry from the

sweeping injunctive relief that the plaintiffs sought. “A

reduced fee award is appropriate if the relief, however

VLJQLÀFDQWLVOLPLWHGLQFRPSDULVRQWRWKHVFRSHRIWKH

litigation as a whole.” Hensley, 461 U.S. at 440.

Based on my detailed review of the plaintiffs’ invoices

DQGDIWHUFRQVLGHUDWLRQRIDOOWKHUHOHYDQWIDFWRUV,ÀQG

that a one-third reduction of the plaintiffs’ attorney fees is

appropriate to account for attorney time spent on claims

wholly unrelated to the claim on which the plaintiffs were

successful, and the plaintiffs’ limited degree of success

with respect to the claim on which they prevailed. 5 See

5. The plaintiffs note that counsel exercised billing judgment

by writing off 40.1 hours/$14,035 during the six months at issue; that

of two attorneys of record, only one submitted invoices; and that

they have not sought to recover fees for the time spent preparing

their motion and reply. (Doc. 144 at 6; see also Doc. 169.) I have not

40a

Appendix B

)R[Y9LFH, 563 U.S. 826, 838, 131 S. Ct. 2205, 180 L. Ed.

2d 45 (2011) (“[T]rial courts need not, and indeed should

not, become green-eyeshade accountants. The essential

goal in shifting fees (to either party) is to do rough justice,

not to achieve auditing perfection.”); Mares v. Credit

Bureau of Raton, 801 F.2d 1197, 1203 (10th Cir. 1986) (“A

general reduction of hours claimed in order to achieve

what the court determines to be a reasonable number

LVQRWDQHUURQHRXVPHWKRGVRORQJDVWKHUHLVVXIÀFLHQW

reason for its use. . . . [T]he district court did not err by

refusing to isolate and analyze every hour assigned to

different tasks . . . and then prescribe task hours which

were acceptable.”); DeGrado v. Jefferson Pilot Fin. Ins.

Co., No. 02-cv-01533-WYD-BNB, 2009 U.S. Dist. LEXIS

60515, 2009 WL 1973501, at *9 to *10 (D. Colo. July 6, 2009)

(rather than “evaluat[ing] almost every task [to] determine

how much time should be deducted,” applying 25% acrossthe-board reduction to account for duplicative or excessive

time); Carr v. Fort Morgan School Dist., 4 F. Supp. 2d

998, 1003 (D. Colo. 1998) (15% across-the-board reduction

appropriate to account for excessive time). Applying that

reduction results in attorney fees of $118,696.67. Adding

in the $251.45 in costs that the State Defendants have not

contested results in a total award of $118,948.12.

reduced the plaintiffs’ fees to account for an excessive amount of time

spent on any particular task or tasks due to inexperience of counsel,

duplication of effort, or the like. Recovery of co-counsel’s fees or fees

for the time spent preparing the instant motion may or may not be

reasonable. But it is the plaintiffs’ burden to prove the amount of

fees to which they are reasonably entitled, and I cannot evaluate the

reasonableness of including or excluding fees that I have not seen.

41a

Appendix B

CONCLUSION

It is ORDERED that:

The State Defendants’ Motion to Dismiss Plaintiffs’

First Amended Complaint (Doc. 143) is GRANTED;

Defendant Weld County District Attorney’s Motion

to Dismiss First Amended Complaint (Doc. 159) is

GRANTED;

Plaintiffs’ First Amended Complaint for Declaratory

and Injunctive Relief (Doc. 135) is DISMISSED

WITHOUT PREJUDICE;

Plaintiffs’ Objection to Magistrate Ruling (Doc. 167)

is OVERRULED AS MOOT;

Plaintiffs’ Motion for Interim Attorney Fees Against

State Defendants (Doc. 116) is GRANTED IN PART.

Pursuant to 42 U.S.C. § 1988(b), the plaintiffs are awarded

reasonable attorney fees and costs against the State

Defendants in the amount of $118,948.12; and

The Clerk of Court is DIRECTED to close this case.

DATED: March 22, 2023

BY THE COURT:

/s/ Daniel D. Domenico

Daniel D. Domenico

United States District Judge

42a

AppendixOF

C REHEARING OF

APPENDIX C — DENIAL

THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT, FILED APRIL 26, 2024

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 23-1148

(D.C. No. 1:20-CV-02362-DDD-NRN)

(D. Colo.)

GRACE BIBLE FELLOWSHIP, et al.,

Plaintiffs-Appellants,

v.

JARED POLIS, IN HIS OFFICIAL CAPACITY

AS GOVERNOR, STATE OF COLORADO, et al.,

Defendants-Appellees.

ORDER

Before MORITZ, MURPHY, and CARSON, Circuit

Judges.

Appellants’ petition for rehearing is denied.

The petition for rehearing en banc was transmitted

to all of the judges of the court who are in regular active

service. As no member of the panel and no judge in regular

active service on the court requested that the court be

polled, that petition is also denied.

43a

Appendix C

Entered for the Court

/s/ Christopher M. Wolpert

CHRISTOPHER M. WOLPERT, Clerk

44a

D STATUTORY

APPENDIX D —Appendix

RELEVANT

PROVISIONS

C.R.S.A. § 24-33.5-702

Formerly cited as CO ST § 24-32-2102

§ 24-33.5-702. Purposes and limitations

***

(2) Nothing in this part 7 shall be construed to:

(a) Interfere with the course or conduct of a labor dispute;

except that actions otherwise authorized by this part 7

or other laws may be taken when necessary to forestall

or mitigate imminent or existing danger to public health

or safety;

(b) Interfere with dissemination of news or comment on

public affairs; except that any communications facility

or organization, including but not limited to radio and

television stations, wire services, and newspapers, may

be required to transmit or print public service messages

furnishing information or instructions in connection with

a disaster emergency;

(c) Affect the jurisdiction or responsibilities of police

IRUFHVÀUHÀJKWLQJIRUFHVRUXQLWVRIWKHDUPHGIRUFHVRI

the United States, or of any personnel thereof, when on

active duty; except that state, local, and interjurisdictional

disaster emergency plans shall place reliance upon the

forces available for performance of functions related to

disaster emergencies; or

45a

Appendix D

(d) Limit, modify, or abridge the authority of the governor

to proclaim martial law or exercise any other powers

vested in the governor under the constitution, statutes, or

common law of this state independent of, or in conjunction

with, any provision of this part 7.

46a

Appendix D

C.R.S.A. § 24-33.5-703

Formerly cited as CO ST § 24-32-2103

†'HÀQLWLRQV

***

(7. 3) “Recover y” means the short, intermediate,

DQG ORQJWHUP DFWLRQV WDNHQ WR UHVWRUH FRPPXQLW\

functions, services, vital resources, facilities, programs,

continuity of local government services and functions, and

infrastructure to the affected area.

****

47a

Appendix D

C.R.S.A. § 24-33.5-704

Formerly cited as CO ST § 24-32-2104

§ 24-33.5-704. The governor and disaster emergencies-response--duties and limitations

***

(4) A disaster emergency shall be declared by executive

order or proclamation of the governor if the governor

ÀQGV D GLVDVWHU KDV RFFXUUHG RU WKDW WKLV RFFXUUHQFH

or the threat thereof is imminent. The state of disaster

HPHUJHQF\ VKDOO FRQWLQXH XQWLO WKH JRYHUQRU ÀQGV WKDW

the threat of danger has passed or that the disaster has

been dealt with to the extent that emergency conditions

no longer exist and the governor terminates the state of

disaster emergency by executive order or proclamation,

but no state of disaster emergency may continue for longer

than thirty days unless renewed by the governor. The

general assembly, by joint resolution, may terminate a

state of disaster emergency at any time. Thereupon, the

governor shall issue an executive order or proclamation

ending the state of disaster emergency. All executive

orders or proclamations issued under this subsection

(4) shall indicate the nature of the disaster, the area

threatened, and the conditions that brought it about or

that make possible termination of the state of disaster

emergency. An executive order or proclamation shall

be disseminated promptly by means calculated to bring

its contents to the attention of the general public and,

unless the circumstances attendant upon the disaster

SUHYHQWRULPSHGHVKDOOEHSURPSWO\ÀOHGZLWKWKHRIÀFH

48a

Appendix D

of emergency management in the division of homeland

security and emergency management, the secretary

of state, the county clerk and recorder, and emergency

management agencies in the area to which it applies.

(5) An executive order or proclamation of a state of disaster

emergency shall activate the disaster response and

recovery aspects of the state, local, and interjurisdictional

disaster emergency plans applicable to the political

subdivision or area in question and shall be authority

for the deployment and use of any forces to which the

plans apply and for use or distribution of any supplies,

equipment, and materials and facilities assembled,

stockpiled, or arranged to be made available pursuant

to this part 7 or any other provision of law relating to

disaster emergencies.

***

(7) In addition to any other powers conferred upon the

governor by law, the governor may:

***

(e) Direct and compel the evacuation of all or part of the

population from any stricken or threatened area within

the state if the governor deems this action necessary

for the preservation of life or other disaster mitigation,

response, or recovery;

***

49a

Appendix D

(g) Control ingress to and egress from a disaster area, the

movement of persons within the area, and the occupancy

of premises therein;

***

(8) Repealed by Laws 2018, Ch. 234, § 21, eff. August 8,

2018, and relocated and amended by Laws 2018, Ch. 234,

§ 5, eff. August 8, 2018.

****

50a

Appendix D

C.R.S.A. § 25-1.5-101

§ 25-1.5-101. Powers and duties of department-ODERUDWRU\FDVKIXQGRIÀFHRIVXLFLGHSUHYHQWLRQ

suicide prevention coordination cash fund-dispensation of payments under contracts

ZLWKJUDQWHHVUHSRUWGHÀQLWLRQV

(1) The department has, in addition to all other powers

and duties imposed upon it by law, the powers and duties

provided in this section as follows:

(a) To close theaters, schools, and other public places, and

to forbid gatherings of people when necessary to protect

the public health;

****

51a

Appendix D

C.R.S.A. § 25-1.5-102

§ 25-1.5-102. Epidemic and communicable diseases-SRZHUVDQGGXWLHVRIGHSDUWPHQWUXOHVGHÀQLWLRQV

(1) The department has, in addition to all other powers

and duties imposed upon it by law, the powers and duties

provided in this section as follows:

(a)(I) To investigate and control the causes of epidemic

and communicable diseases affecting the public health.

***

(II) Except as otherwise directed by executive order of

the governor, the department shall exercise its powers and

duties to control epidemic and communicable diseases and

protect the public health as set out in this section.

***

(c) To establish, maintain, and enforce isolation and

quarantine, and, in pursuance thereof and for this purpose

only, to exercise such physical control over property

and the persons of the people within this state as the

GHSDUWPHQWPD\ÀQGQHFHVVDU\IRUWKHSURWHFWLRQRIWKH

public health;

(d) To abate nuisances when necessary for the purpose

of eliminating sources of epidemic and communicable

diseases affecting the public health.

****

52a

Appendix D

&ROR5HY6WDW VHFW'HÀQLWLRQV

(Colorado Revised Statutes (2024 Edition))

†'HÀQLWLRQV

***

(5) “Public health” means the prevention of injury, disease,

and premature mortality; the promotion of health in the

community; and the response to public and environmental

health needs and emergencies and is accomplished

through the provision of essential public health services.

****