Lighthouse Fellowship Church v. Northam

• Decision Date: 21 May 2020
• Docket Number: Civil No. 2:20cv204
• Citation: 462 F.Supp.3d 635
• 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.

462 F.Supp.3d 635

LIGHTHOUSE FELLOWSHIP CHURCH, Plaintiff,

v.Ralph NORTHAM, in his official capacity as Governor of the Commonwealth of Virginia, Defendant.

Civil No. 2:20cv204

United States District Court, E.D. Virginia, Norfolk Division.

Signed May 21, 2020

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 Attorney General, Richmond, VA, for Defendant.

ORDER

Arenda L. Wright Allen, United States District Judge

Pending before the Court is an Emergency Motion for an Injunction Pending Appeal filed by Plaintiff. Mot. for Injunction Pending Appeal, ECF No. 18 (hereinafter "IPA Mot."). For the following reasons Plaintiff's Motion (ECF No. 18) is DENIED . No hearing is required, because the facts and arguments are presented adequately in the briefing and the exhibits submitted by the parties.

I. BACKGROUND

On May 5, 2020, the Court denied Plaintiff's Emergency Motion for a Temporary Restraining Order ("TRO") and Preliminary Injunction because Plaintiff is unlikely to succeed on the merits of its claims, the balance of the equities tips against Plaintiff, and because preliminary injunctive relief is not in the public interest. See Order, ECF No. 16.

Plaintiff subsequently filed a Notice of Appeal. Notice of Appeal, ECF No. 17. Plaintiff now moves for an injunction pending appeal, pursuant to Federal Rule of Civil Procedure 62(d) —providing that the Court may issue an injunction pending appeal while an appeal is pending from an order that refuses a preliminary injunction—and pursuant to Federal Rule of Appellate Procedure 8(a)(1)(C) —providing that a party typically must move for an injunction pending appeal in the district court before moving for an injunction pending appeal in the court of appeals. IPA Mot., ECF No. 18.

The Court has recited the background relevant to the Plaintiff's Motion for a TRO and Preliminary Injunction thoroughly and it need not be repeated here. See Order at 1–8, ECF No. 16. However, several subsequent developments in the Governor's Orders warrant acknowledgment.

On May 8, 2020, the Governor issued Executive Order 61, addressing "Phase One" of the Commonwealth's plan for easing the restrictions instituted by the previous Orders. See Executive Order 61 (May 8, 2020), https://www.governor.virginia.gov/media/governorvirginiagov/executive-actions/EO-61-and-Order-of-Public-Health-Emergency-Three---Phase-One-Easing-Of-Certain-Temporary-Restrictions-Due-To-Novel-Coronavirus-(COVID-19).pdf. The Order amends Executive Order 55. Id. at 10. Under Executive Order 61, "[a]ll public and private in-person gatherings of more than 10 individuals [remain] prohibited." Id. at 7. Nevertheless, religious gatherings are permitted if they are "limited to no more than 50% occupancy of the room or facility in which the religious services are conducted"; "[i]ndividuals attending religious services [are] at least six feet apart when seated and ... practice proper physical distancing at all times," except that family members may be seated together; religious institutions "[m]ark seating in six-foot increments and in common areas where attendees may congregate"; no items are "passed to or between attendees[ ] who are not family"; all "items used to distribute food or beverages [are] disposable, used only once, and discarded"; "[a] thorough cleaning and disinfection of frequently contacted surfaces [is] conducted prior to and following any religious service"; and the institution "[p]ost[s] signage at the entrance that states that no one with a fever or symptoms of COVID-19 is permitted in the establishment" and "signage to provide public health reminders regarding social distancing, gatherings, options for high risk individuals, and staying home if sick." Id. at 7–8. The Order also strongly encourages persons attending religious services to wear face coverings over their nose and mouth at all times. Id. at 7.

Restaurants and other similar venues, personal care and grooming services, farmers markets, fitness facilities, and "brick-and-mortar" businesses are also permitted to begin reopening if they adhere to certain requirements, including limitations involving occupancy or only operating in outdoor settings or utilizing face coverings and conducting frequent cleaning. Id. at 2–6.

Other venues must remain closed, such as theaters, performing arts centers, concert venues, museums, and other indoor entertainment centers, racetracks and historic horse racing facilities, bowling alleys, skating rinks, arcades, amusement parks, trampoline parks, fairs, arts and crafts facilities, aquariums, zoos, escape rooms, public and private social clubs, and other places of "indoor public amusement." Id. Public beaches are to remain closed except for purposes of exercising and fishing. Id. at 7. Schools and institutions of higher learning will remain closed for the remainder of the 2019–2020 school year. Id. at 8.

Although Executive Order 61 went into effect at 12:00 a.m., Friday May 15, 2020, (id. at 10), its implementation is delayed in several localities within the Commonwealth. In response to requests from "local officials from the Counties of Arlington, Fairfax, Loudon, and Prince William, and the Cities of Alexandria, Fairfax, Falls Church, Manassas, Manassas Park, as well as the Towns of Dumfries, Herndon, Leesburg, and Vienna," the Governor issued Executive Order 62, delaying the amendments made by Executive Order 61 until 11:59 p.m. on May 28, 2020 in those localities. Executive Order 62 (May 12, 2020), https://www.governor.virginia.gov/media/governorvirginiagov/executive-actions/EO-62-and-Order-of-Public-Health-Emergency-Four---Jurisdictions-Temporarily-Delayed-From-Entering-Phase-One-in-Executive-Order-61-and-Permitted-to-Remain-in-Phase-Zero-Northern-Virginia-Region.pdf. The Order noted that the delay was appropriate in light of the fact that "[t]he Northern Virginia Region is substantially higher than the rest of the Commonwealth in percentage of positive tests for COVID-19." Id.

The implementation of Executive Order 61 is also delayed until May 28, 2020 in "the City of Richmond and the County of Accomack," where Plaintiff is located. Amended Executive Order 62 (May 14, 2020), https://www.governor.virginia.gov/media/governorvirginiagov/executive-actions/EO-62-and-Order-of-Public-Health-Emergency-Four-AMENDED.pdf. These localities continue to see an increase in the number of positive cases of COVID-19, and Accomack County has a disproportionate percentage of positive cases in the state. Id. at 2. "Local health officials opine that the County of Accomack's total positive cases could increase by over 50% in a matter of days." Id. Accordingly, the parties in this litigation are in the substantially same positions they were in at the time that Plaintiff's Motion for a TRO and Preliminary Injunction was decided, although circumstances are likely to change in a matter of weeks.¹

Plaintiff's Motion for an Injunction Pending Appeal has been briefed by both parties. See IPA Mot., ECF No. 18; Resp. in Opp., ECF No. 36; Reply, ECF No. 39. The United States has filed a Statement in Support of Plaintiff. Notice, ECF No. 20. The Motion is now ripe for a decision.

II. LEGAL STANDARDS

In deciding a motion for an injunction pending appeal under Federal Rule of Civil Procedure 62, the Court must consider four factors: "(1) whether the applicant has made a strong showing that it is likely to succeed on the merits [of the appeal]; (2) whether the applicant will be irreparably injured absent [an injunction pending appeal]; (3) whether issuance of [an injunction pending appeal] will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." E.I. DuPont de Nemours & Co. v. Kolon Indus., Inc. , 871 F. Supp. 2d 513, 518 (E.D. Va. 2012) (citing Hilton v. Braunskill , 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987) ).

III. ANALYSIS

As the Court found previously in addressing Plaintiff's Motion for a TRO and a Preliminary Injunction, Plaintiff is unlikely to succeed on the merits of its constitutional claims and its state statutory claim, the balance of the equities tips against Plaintiff, and preliminary injunctive relief is not in the public interest. See Order, ECF No. 16. The same conclusions are compelled after evaluating Plaintiff's Motion for an Injunction Pending Appeal. The analysis and evaluation leading to those conclusions are adopted herein and need not be repeated extensively. See id. at 9–33.

Moreover, Plaintiff's Motion for an Injunction Pending Appeal also must be denied because sovereign immunity bars Plaintiff's claims against the Governor and because the doctrine of derivative abstention counsels this Court to abstain from granting Plaintiff the declaratory and injunctive relief it seeks. The analysis of these additional bases follows.

A. Sovereign Immunity

Defendant—the Governor of Virginia—is immune from the claims asserted in this Motion and in Plaintiff's previous Motion for a TRO and Preliminary Injunction. Accordingly, Plaintiff is unlikely to succeed on its claims against Defendant.

i. Federal Constitutional Claims

The Eleventh Amendment to the United States Constitution provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. This Amendment has been interpreted by the United States Supreme Court to mean that a state may not "be sued as defendant in any court in this country without [its] consent ...." Hans v. Louisiana , 134 U.S. 1, 17, 10 S.Ct. 504, 33 L.Ed. 842 (1890) (quoting Cunningham v. R.R. Co. , 109 U.S. 446, 451, 3 S.Ct. 292, 27 L.Ed. 992 (1883) )....