Jennifer v. Ivey

Decision Date01 June 2021
Docket NumberCASE NO. 2:20-CV-777-WKW
Citation542 F.Supp.3d 1245
Parties Jennifer CASE, et al., Plaintiffs, v. Kay IVEY, in her individual capacity and official capacity as Governor of Alabama, et al., Defendants.
CourtU.S. District Court — Middle District of Alabama

Melissa L. Isaak, Isaak Law Firm, Roy S. Moore, Talmadge Butts, Foundation for Moral Law, Montgomery, AL, for Plaintiffs Jennifer Case, Rebecca Callahan, Mark Liddle, Jim Nelson, R.S. Porter, Scott Farr, Bruce Ervin.

Roy S. Moore, Foundation for Moral Law, Montgomery, AL, for Plaintiff Charles W. Hatcher, II.

Andrew Reid Harris, Brenton Merrill Smith, James William Davis, Jeremy Stone Weber, Alabama Attorney General's Office, Montgomery, AL, for Defendants.

MEMORANDUM AND OPINION ORDER

W. Keith Watkins, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

More than a year ago, on January 21, 2020, the first case of the Novel Coronavirus ("COVID-19") was confirmed in the United States. See First Travel-related Case of 2019 Novel Coronavirus Detected in United States , CDC NEWSROOM , cdc.gov/media/releases/2020/p0121-novel-coronavirus-travel-case.html (last visited May 19, 2021). Since that time, COVID-19 has rapidly spread throughout the country, infecting at least 33,079,543 individuals, and it is listed as a cause of death in 591,265 deaths. See COVID Data Tracker , covid.cdc.gov/covid-data-tracker/#cases_totalcases (last visited June 1, 2021). The State of Alabama, like the rest of the country, has not been spared from the devastating effects brought on by the virus. To date, Alabama has confirmed 543,405 cases of COVID-19 and 11,146 Covid-related deaths. See Coronavirus Resource Center , JOHNS HOPKINS UNIVERSITY & MEDICINE , coronavirus.jhu.edu/region/us/alabama (last visited June 1, 2021).

This case centers on certain proclamations and orders issued by the Governor of Alabama, Kay Ivey, and State Health Officer, Dr. Scott Harris (collectively "Defendants"), to stem the tide of the COVID-19 pandemic in Alabama. Plaintiffs Jennifer Case, Rebecca Callahan, Pastor Mark Liddle, Pastor Jim Nelson, Dr. R.S. Porter, Scott Farr, and Bruce Ervin (collectively "Plaintiffs") filed suit against Defendants to challenge these proclamations and orders. Before the court are DefendantsMotion to Dismiss (Doc. # 42), and PlaintiffsMotion for Preliminary Injunction (Doc. # 2). For the reasons stated below, DefendantsMotion to Dismiss is due to be granted, and PlaintiffsMotion for Preliminary Injunction is due to be denied as moot.

II. JURISDICTION AND VENUE

The court has subject matter jurisdiction under 28 U.S.C. §§ 1331, 1343. The parties do not dispute personal jurisdiction or venue.

III. STANDARD OF REVIEW

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. This standard "is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that [the] defendant has acted unlawfully." Id. (quoting Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). "For purposes of Rule 12(b)(6) review, ... a court generally may not look beyond the pleadings." United States ex rel. Osheroff v. Humana Inc. , 776 F.3d 805, 811 (11th Cir. 2015).

Defendants challenge the court's subject matter jurisdiction by arguing that Plaintiffs lack standing to challenge the expired, rescinded, or otherwise terminated provisions from past COVID-19 orders. An attack on subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) may be either a facial attack or a factual attack. Lawrence v. Dunbar , 919 F.2d 1525, 1528–29 (11th Cir. 1990) (per curiam). A facial attack simply challenges the sufficiency of the plaintiff's jurisdictional allegations, which are taken as true. Id. at 1529. Factual attacks challenge "the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered." Id. (quoting Menchaca v. Chrysler Credit Corp. , 613 F.2d 507, 511 (5th Cir. 1980) ). All questions regarding Plaintiffs’ standing can be resolved on the face of the complaint.

IV. BACKGROUND

On March 13, 2020, the President of the United States declared COVID-19 a national emergency. That same day, Governor Ivey issued her own proclamation declaring that a state public health emergency existed in Alabama due to the presence of COVID-19. (Doc. # 40-1.) Following Governor Ivey's initial declaration, Defendants issued a string of proclamations and orders that imposed various restrictions and offered nonbinding guidelines to combat the spread of the virus. Due to the fluidity of the pandemic, and as more information about COVID-19 came to light, the substance of Defendants’ proclamations and orders evolved with the passage of time. Given the nature of this case and the number of proclamations and orders at issue, it is necessary to discuss the authority under which Defendants acted and to detail the substance of their proclamations and orders.

A. Defendants’ authority to issue proclamations and orders related to COVID-19

Beginning with Governor Ivey's authority, the Alabama Emergency Management Act ("AEMA") vests her with certain powers to respond to emergency situations like the COVID-19 pandemic. See Ala. Code § 31-9-1 et seq. The AEMA defines a state public health emergency as "[a]n occurrence or imminent threat of an illness that ... [i]s believed to be caused by ... [t]he appearance of a novel ... infectious agent" and "[p]oses a high probability of" death or serious disability. § 31-9-3(4)(a)-(b). Amidst a state public health emergency, "the Governor is authorized and empowered ... [t]o make, amend, and rescind the necessary orders, rules, and regulations to carry out the provisions" of the AEMA. § 31-9-6(1). The statute also provides that "the Governor shall have and may exercise" emergency powers "[t]o enforce all laws, rules, and regulations relating to emergency management"; "[t]o perform and exercise such other functions, powers and duties as are necessary to promote and secure the safety and protection of the civilian population"; and "[t]o employ such measures ... as may be reasonably necessary for the purpose of securing compliance with the provisions of [the AEMA] or with the findings or recommendations of such boards of health by reasons of conditions arising" from the emergency at hand. § 31-9-8(a)(1), (5), (6). Governor Ivey's proclamations issued in response to the COVID-19 pandemic squarely fall within the framework of the AEMA.

For his part, Dr. Harris, as the State Health Officer of Alabama, "shall ... keep himself informed in regard to all diseases which may be in danger of invading the state and, as far as authorized by law, take prompt measures to prevent such invasions ...." Ala. Code § 22-2-8. Dr. Harris also possesses the authority to "adopt and promulgate rules and regulations providing proper methods and details for administering the health and quarantine laws of the state ...." § 22-2-2(6). These "rules and regulations shall have the force of law and shall be executed by the same courts, bodies, officials, agents, and employees as in the case of health laws ...." Id. The authority outlined above demonstrates that Alabama law provides Dr. Harris with the ability to issue orders in response to COVID-19.

It is also worth noting a broader principle at play in this caseDefendants’ authority to enact policies (like the ones challenged here) in the face of an emergency is derived from the state's "police power." See Barnes v. Glen Theatre, Inc. , 501 U.S. 560, 569, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) ("The traditional police power of the States is defined as the authority to provide for the public health, safety, and morals ...."); see also State Police Power , BLACK'S LAW DICTIONARY (11th ed. 2019) (defining state police power as "the power of a state to enforce laws for the health, welfare, morals, and safety of its citizens, if enacted so that the means are reasonably calculated to protect those legitimate state interests.").

B. Substance of Defendants’ orders and proclamations

The Governor's first declaration, on March 13, 2020, noted the presence of COVID-19 in Alabama and that the virus's appearance "in the State indicat[ed] the potential of widespread exposure to an infectious agent that pose[d] significant risk of substantial harm to a large number of people." (Doc. # 40-1, at 1.) Four days later, on March 17, 2020, Dr. Harris issued an order titled "Order of the State Health Officer Suspending Certain Public Gatherings Due to the Risk of Infection by COVID-19." (Doc. # 40-1, at 4.) Dr. Harris's order established that "the State Board of Health ha[d] designated COVID-19 to be a disease of epidemic potential, a threat to the health and welfare of the public, or otherwise of public importance." (Doc. # 40-1, at 4.) Moreover, the order implemented a ban on "all gatherings of 25 persons or more, or gatherings of any size that [could not] maintain a consistent six-foot distance between persons" in Blount, Saint Clair, Shelby, Tuscaloosa, and Walker counties. (Doc. # 40-1, at 4.) The restriction applied "to all gatherings, events, or activities that [brought] 25 or more persons in a single room or a single space at the same time." (Doc. # 40-1, at 4.)

On March 18, 2020, Governor Ivey issued a supplemental declaration proclaiming "the existence of conditions that warrant[ed] implementation of additional extraordinary measures and relief during the state health emergency now in effect in order to guard...

To continue reading

Request your trial
15 cases
  • Gunter v. N. Wasco Cnty. Sch. Dist. Bd. of Educ.
    • United States
    • U.S. District Court — District of Oregon
    • December 22, 2021
    ...; Oberheim v. Bason , 565 F.Supp.3d 607, 619-20 (M.D. Pa. Sept. 30, 2021) ; Guilfoyle , 2021 WL 4594780, at *14 ; Case v. Ivey , 542 F.Supp.3d 1245, 1279–81 (M.D. Ala. 2021).c. Analysis Under rational basis review, in considering Plaintiffs’ substantive due process claims, the Court asks on......
  • Skatemore, Inc. v. Whitmer
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • July 19, 2022
    ...a physical or regulatory taking was "without merit."); TJM 64, Inc. v. Harris , 526 F. Supp. 3d 331 (W.D. Tenn. 2021) ; Case v. Ivey , 542 F.Supp.3d 1245 (M.D. Ala. 2021), appeal filed , No. 21-12276 (11th Cir. July 2, 2021); Underwood v. City of Starkville , 538 F.Supp.3d 667 (N.D. Miss. 2......
  • Lloyd v. Sch. Bd. of Palm Beach Cnty.
    • United States
    • U.S. District Court — Southern District of Florida
    • October 29, 2021
    ...right of a parent to direct the upbringing of their children extends to the context of mask mandates. Case v. Ivey , No. 2:20-CV-777-WKW, 542 F.Supp.3d 1245, 1281 (M.D. Ala. June 1, 2021) ("[T]he court is skeptical that such a right is broad enough in scope to encompass an interest in keepi......
  • 640 Tenth, LP v. Newsom
    • United States
    • California Court of Appeals
    • May 13, 2022
    ...Skatemore, Inc. v. Whitmer (W.D.Mich. Sept. 2, 2021, No. 1:21-cv-66) 2021 U.S.Dist. Lexis 166744 *15 [bowling alley]; Case v. Ivey (M.D.Ala. 2021), 542 F.Supp.3d 1245 [barber shops]; Underwood v. City of Starkville (N.D.Miss. 2021) 538 F.Supp.3d 667 [fitness center]; Daugherty Speedway v. F......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT