Lighthouse Fellowship Church v. Northam
| Decision Date | 27 January 2021 |
| Docket Number | Civil No. 2:20cv204 |
| Citation | 515 F.Supp.3d 384 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | LIGHTHOUSE FELLOWSHIP CHURCH, Plaintiff, v. Ralph NORTHAM, in his official capacity as Governor of the Commonwealth of Virginia, Defendant. |
Daniel J. Schmid, Roger Michael Karam Gannam, Pro Hac Vice, Horatio Gabriel Mihet, Pro Hac Vice, Mathew Duane Staver, Pro Hac Vice, Liberty Counsel, Orlando, FL, for Plaintiff.
Jessica Merry Samuels, Toby Jay Heytens, Jacqueline Cook Hedblom, Office of the Virginia Attorney General, Richmond, VA, for Defendant.
Pending before the Court is Defendant Governor Ralph Northam's Motion to Dismiss the Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Mot. to Dismiss, ECF No. 50. For the following reasons, Defendant's Motion to Dismiss the Complaint (ECF No. 50) is GRANTED . A hearing on this Motion is not required as the facts and legal arguments are adequately presented in the briefing on the Motion. Fed. R. Civ. P. 78 ; E.D. Va. Local R. 7(J).
This case arises from the response from the Governor of the Commonwealth of Virginia to the COVID-19 pandemic. Plaintiff's lawsuit challenges a series of Executive Orders issued by Governor Ralph Northam to combat the spread of COVID-19 in the Commonwealth of Virginia ("the Executive Orders"). See Exs. A–C to V. Compl., ECF Nos. 1-1, 1-2, 1-3. Plaintiff Lighthouse Fellowship Church ("Lighthouse") alleges that the Executive Orders impermissibly discriminate against religious institutions.
In March 2020, through Executive Order 53, Governor Northam suspended "all public and private in person gatherings of more than 10 individuals" and closed most public businesses and establishments. Executive Order 53, Ex. B to V. Compl., ECF No. 1-3. "Essential" retail businesses, including grocery stores, pharmacies, liquor stores, gas stations, banks, and laundromats and dry cleaners, were exempted from these restrictions. Id. Other brick-and-mortar businesses were permitted to remain open if they limited in-person shopping to ten people or fewer. Id. Professional businesses were also permitted to remain open but were directed to implement telework options for employees wherever feasible and to adhere to social distancing recommendations and enhanced sanitation practices. Id.
Executive Order 55 followed shortly thereafter and directed "[a]ll individuals in Virginia [to] remain at their place of residence," subject to certain exceptions. Ex. C to Compl., ECF No. 1-4. These exceptions, in part, allowed persons to travel to obtain food, beverages, goods, and services identified in Executive Order 53; to seek medical, law enforcement, or emergency services; and visit one's place of worship. Id. Executive Order 55 reiterated that Id.
On Sunday, April 5, 2020, a Town of Chincoteague Police Officer visited the Lighthouse Fellowship Church to inquire whether it planned to host a religious service that day. V. Compl. at 11, ECF No. 1. The Officer informed a member of Light-house's Board of Directors that it was not permitted to have more than ten people in attendance and that all attendees must be spaced six feet apart. Id. at 12. Despite this warning, Lighthouse held a Sunday worship service that violated the Executive Orders by having 16 people in attendance. Id. at 11. The Pastor of Lighthouse Fellowship Church was issued a criminal citation and summons. Id. at 12–13; Ex. F to V. Compl., ECF No. 1-7. The Pastor inquired whether he would be further criminally cited if the church held a religious worship service on Easter Sunday. V. Compl. at 13, ECF No. 1. Officers informed him that should Lighthouse host any gathering with more than ten people in attendance, every person in attendance would be given a criminal citation for violating the Executive Orders. Id.
Plaintiff filed a Verified Complaint on April 24, 2020. Id. Plaintiff asserts that the Executive Orders violate: (1) the right to free exercise of religion under the First Amendment to the United States Constitution; (2) the right to peaceable assembly under the First Amendment; (3) the right to freedom of speech under the First Amendment; (4) the establishment clause of the First Amendment; (5) the right to equal protection under the Fourteenth Amendment; (6) the right to a republican form of government under the Guarantee Clause of Article IV, § 4 of the United States Constitution ; (7) the right to free exercise of religion under Article I, Section 16 of the Constitution of Virginia ; (8) the right to freedom of speech and assembly under Article I, Section 12 of the Constitution of Virginia ; (9) the right to have laws suspended only by the Virginia General Assembly under Article I, Section 7 of the Constitution of Virginia ; (10) the federal Religious Land Use and Institutionalized Persons Act; and (11) the Virginia Act for Religious Freedom. V. Compl. at 23–44, ECF No. 1. Plaintiff requests injunctive and declaratory relief. Id. at 45–46.
After Plaintiff filed the Complaint, Virginia began a phased easing of COVID-related restrictions.1 Exec. Order 61 (2020), available at https://www.governor.virginia.gov/executive-actions/. Virginia has been operating under Phase Three since August 2020. Exec. Order 67 (2020), available at https://www.governor.virginia.gov/media/governorvirginiagov/executive-actions/EO-67-SIXTH-AMENDED-and-Order-of-Public-Health-Emergency-Seven---Phase-Three-Further-Adjusting-of-Certain-Temporary-Restrictions-Due-to-Novel-Coronavirus-(COVID-19).pdf. Under Phase Three, gatherings of more than 25 people are prohibited, but "[i]ndividuals may attend religious services of more than 25 people" if: they remain "six feet apart when seated" and "practice proper social distancing at all times"; religious institutions "mark seating and common areas where attendees may congregate in six-foot increments"; frequently touched surfaces are routinely disinfected before and after all religious services; signage is posted prohibiting anyone with a fever or symptoms from attending the religious service in-person; "[a]ny items used to distribute food or beverages [are] disposable" and are "used only once"; and all attendees wear face masks. Id. at 11–12. Phase Three was amended on December 10, 2020, after a surge in infections in the Commonwealth. Exec. Order 72 (2020), available at https://www.governor.virginia.gov/media/governorvirginiagov/executive-ations/EO-72-and-Order-of-Public-Hea-lth-Emergency-Nine-Common-Sense-Surge-Rstrictions-Certain-Temporary-Restrictions-Due-to-Novel-Coronavirus-(COVID-19).pdf. Under this most recent order, religious services are permitted to operate without numerical limits if the services adhere to social distancing, sanitization and hygiene, signage, and face covering limitations. Id. at 12–13. Plaintiff has never amended the Complaint to address with specificity the issuance of Executive Orders 67 and 72.
Governor Northam moves to dismiss the Complaint. Mot. to Dismiss, ECF No. 50. He argues that the Complaint should be dismissed under Federal Rule of Civil Procedure 12(b)(1) for lack of jurisdiction and Rule 12(b)(6) for failure to state a claim. Id. Specifically, he argues that this Court lacks jurisdiction over Plaintiff's claims because Governor Northam, the only defendant, is immune from suit under the Eleventh Amendment. Id. at 6–8. And even if he were not immune, Governor Northam asserts that Plaintiff has failed to state its claims adequately because the temporary gathering restrictions no longer apply to religious services. Id. at 8–10. The Motion to Dismiss is fully briefed and ripe for resolution.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges the court's jurisdiction over the subject matter of the complaint. The Constitution's "Eleventh Amendment is a matter of jurisdiction ...."
Carpenters Pension Fund of Balt. v. Md. Dept. of Health and Mental Hygiene , 721 F.3d 217, 223 (4th Cir. 2013) (). Assertions of immunity under the Eleventh Amendment are evaluated under Rule 12(b)(1). See Wicomico Nursing Home v. Padilla , 910 F.3d 739, 746–48 (4th Cir. 2018) ().
"A challenge under Rule 12(b)(1) may be facial or factual." Edley-Worford v. Va. Conf. of United Methodist Church , 430 F. Supp. 3d 132, 137 (E.D. Va. 2019) (citing Kerns v. United States , 585 F.3d 187, 192 (4th Cir. 2009) ). In a facial challenge, such as this one, the defendant "contend[s] that [the] complaint simply fails to allege facts upon which subject matter jurisdiction can be based." Kerns , 585 F.3d at 192 (quotation omitted). In such challenges, "the plaintiff, in effect, is afforded the same procedural protection as he would receive under a Rule 12(b)(6)" challenge. Id. (quotation omitted). That is, "the facts alleged in the complaint are taken as true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction." Id.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint. Rule 12(b)(6) permits a defendant to seek dismissal of a complaint based on a plaintiff's "failure to state a claim upon which relief can be granted." Fed. R....
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