Appellate Case: 20-1391 Document: 010110636013 Date Filed: 01/24/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 24, 2022 _________________________________ Christopher M. Wolpert Clerk of Court DENVER BIBLE CHURCH; COMMUNITY BAPTIST CHURCH; JOEY RHOADS,
Plaintiffs - Appellants,
v. No. 20-1391 (D.C. No. 1:20-CV-02362-DDD-NRN) GOVERNOR JARED POLIS, in his (D. Colo.) official capacity as Governor, State of Colorado; JILL HUNSAKER RYAN, in her official capacity as Executive Director of the Colorado Department of Public Health and Environment; COLORADO DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT; XAVIER BECERRA, in his official capacity as Secretary, United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES; ALEJANDRO MAYORKAS, in his official capacity as Acting Secretary, United States Department of Homeland Security; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; JANET L. YELLEN, in her official capacity as Secretary, United States Department of the Treasury; UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants - Appellees. _________________________________ Appellate Case: 20-1391 Document: 010110636013 Date Filed: 01/24/2022 Page: 2
ORDER AND JUDGMENT* _________________________________
Before MORITZ, KELLY, and BRISCOE, Circuit Judges. _________________________________
In this appeal from the denial of a preliminary injunction, plaintiffs—Denver
Bible Church, Community Baptist Church, and Joey Rhoads (Community Baptist’s
pastor)—challenge the validity of various restrictions that Colorado imposed as part
of its effort to combat the COVID-19 pandemic, as well as the federal government’s
award of COVID-19 relief funds to Colorado.1 According to plaintiffs, Colorado’s
restrictions violate their First Amendment right to the free exercise of religion, and
the federal aid violates federal statutes that prohibit religious discrimination.
But Colorado has dramatically amended and loosened its COVID-19
restrictions since plaintiffs filed this case. Consequently, Colorado no longer imposes
any COVID-19 restrictions on plaintiffs, and all but one of plaintiffs’ claims against
Colorado are moot. Moreover, neither the voluntary-cessation nor the capable-of-
repetition-yet-evading-review exceptions to mootness apply here because Colorado
has established that it is not reasonably likely to reinstate the challenged restrictions
against plaintiffs.
* 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). 1 We have jurisdiction over this interlocutory appeal under 28 U.S.C. § 1292(a)(1). 2 Appellate Case: 20-1391 Document: 010110636013 Date Filed: 01/24/2022 Page: 3
Plaintiffs’ remaining claim against Colorado is that the state’s emergency
disaster statute is facially unconstitutional. We conclude that the district court did not
abuse its discretion in denying a preliminary injunction on this claim, which is
unlikely to succeed because the statute is neutral and generally applicable.
As for plaintiffs’ claims arising from federal COVID-19 aid, we likewise
determine that the district court did not abuse its discretion in denying plaintiffs a
preliminary injunction enjoining such aid. Plaintiffs’ claims on this front are unlikely
to succeed because plaintiffs—who fail to meet their burden of showing that their
injuries are either traceable to such federal aid or redressable by an injunction
enjoining such aid—lack standing to bring them. Accordingly, for these reasons and
as explained in more detail below, we dismiss in part and affirm in part.
Background
Plaintiffs filed this action in August 2020. On the state side, they sued the
governor of Colorado, the Colorado Department of Public Health and Environment
(CDPHE), and the executive director of CDPHE (collectively, the State). Plaintiffs
asserted a variety of claims against the State, arguing that (1) the Colorado Disaster
Emergency Act (CDEA), Colo. Rev. Stat. §§ 24-33.5-701 to 24-33.5-717, is facially
unconstitutional under the First Amendment’s free-exercise clause; (2) the executive
and public-health orders, as applied, violate their First Amendment free-exercise
right; (3) the executive and public-health orders are unconstitutionally vague; (4) the
governor’s declaration of an emergency violated the CDEA; (5) the executive orders
violate the Colorado constitution and exceed the scope of the governor’s authority
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under the CDEA; and (6) the public-health orders violate their due-process rights and
Colorado’s administrative-procedure act.2
On the federal side, plaintiffs sued the Department of Health and Human
Services, the Department of Homeland Security, and the Department of the Treasury,
as well as the heads of those federal agencies (collectively, the federal agencies).
Plaintiffs contended that the federal agencies violated the Religious Freedom
Restoration Act (RFRA), 42 U.S.C. §§ 2000bb to 2000bb–4, with respect to
unspecified federal funding provided to Colorado under the Robert T. Stafford
Disaster Relief and Emergency Assistance Act (Stafford Act), 42 U.S.C. § 5121–
5208, and the Coronavirus Aid, Relief, and Economic Security Act, Pub. L. 116–136,
134 Stat. 281 (2020). Plaintiffs additionally argued that the federal agencies violated
the Stafford Act’s prohibition against religious discrimination.3
Overall, plaintiffs sought to enjoin the State from enforcing its executive and
public-health orders, to require the State to terminate such orders, and to prohibit the
federal agencies from “approving or providing any future assistance to” Colorado.
App. vol. 1, 47. To that end, plaintiffs filed a motion for a preliminary injunction.
The district court granted plaintiffs’ motion “in relatively narrow part,” concluding
that they were entitled to a preliminary injunction on their claim that the “numerical
2 Plaintiffs also alleged violations of their rights to free speech and assembly. But they did not seek a preliminary injunction on such claims, so those claims are not before us in this appeal. 3 Plaintiffs also alleged that the State violated the Stafford Act. But they did not seek a preliminary injunction on such claim, so it is not before this court. 4 Appellate Case: 20-1391 Document: 010110636013 Date Filed: 01/24/2022 Page: 5
occupancy limitations for worship services” and “the requirement that congregants
wear face masks at all times during worship services” violated their First Amendment
right to the free exercise of religion.4 App. vol. 6, 1407–08.
But as relevant to this appeal, the district court denied the remainder of
plaintiffs’ preliminary-injunction motion, concluding that plaintiffs failed to make
the required strong showing of a substantial likelihood of success on the merits. The
district court determined that both (1) the facial challenge to the CDEA and (2) the
as-applied challenge to the social-distancing requirement in the executive and public-
health orders were unlikely to succeed because the statute and the social-distancing
requirement were neutral and generally applicable and therefore likely constitutional.
Next, the district court discerned no likely due-process violation in the CDPHE’s
decision to issue public-health orders without providing notice and a hearing,
reasoning that such process is not typically required either for generally applicable
rules that affect the public at large or for rules issued in emergency situations. The
district court further concluded plaintiffs’ state-law claims were likely barred by the
Eleventh Amendment, which makes states immune from suits brought by citizens in
federal court. As for the claims against the federal agencies, the district court
determined that plaintiffs likely lacked constitutional standing to bring such claims. It
4 The State initially appealed that ruling but later voluntarily dismissed its appeal in light of changes it implemented to the relevant orders in response to the Supreme Court’s decision in Roman Catholic Diocese v. Cuomo, 141 S. Ct. 63 (2020). 5 Appellate Case: 20-1391 Document: 010110636013 Date Filed: 01/24/2022 Page: 6
therefore denied a preliminary injunction on “most of the[] asserted claims.”5 Id. at
1408.
Plaintiffs then filed this appeal. They also unsuccessfully sought an injunction
pending appeal from the district court, this court, and the Supreme Court. And
critically, since the district court’s October 2020 ruling, Colorado has significantly
amended its executive and public-health orders. It currently imposes no COVID-19
restrictions of any kind on plaintiffs.
Analysis
I. Mootness
Citing the changes to its COVID-19 executive and public-health orders, the
State argues that plaintiffs’ claims are now moot.6 “Mootness is a threshold issue
because the existence of a live case or controversy is a constitutional prerequisite to
federal . . . jurisdiction.” Rio Grande Silvery Minnow v. Bureau of Reclamation, 601
F.3d 1096, 1109 (10th Cir. 2010) (quoting Disability Law Ctr. v. Millcreek Health
Ctr., 428 F.3d 992, 996 (10th Cir. 2005)); see also U.S. Const. art. III, § 2, cl. 1
(extending federal judicial power to “[c]ases” and “[c]ontroversies”); Fleming v.
5 The district court also concluded that plaintiffs were unlikely to succeed on their claims that the executive and public-health orders were unconstitutionally vague. Plaintiffs do not challenge that ruling on appeal; nor do they challenge the district court’s ruling on their state-law claim that the governor violated the CDEA. These claims are therefore not at issue in this appeal. 6 The parties addressed mootness to some extent in their initial briefing. But after oral argument, we ordered supplemental briefing on this issue, seeking updates on the applicable executive and public-health orders and additional clarity on the parties’ positions. 6 Appellate Case: 20-1391 Document: 010110636013 Date Filed: 01/24/2022 Page: 7
Gutierrez, 785 F.3d 442, 444 (10th Cir. 2015) (noting that we lack subject-matter
jurisdiction when appeal is moot). We review mootness issues de novo. Rio Grande,
601 F.3d at 1109.
A case or controversy becomes moot “when it is impossible for the court to
grant any effectual relief whatsoever to a prevailing party.” Colo. Off-Highway
Vehicle Coal. v. U.S. Forest Serv., 357 F.3d 1130, 1133 (10th Cir. 2004). “The
crucial question is whether granting a present determination of the issues offered will
have some effect in the real world.” Rio Grande, 601 F.3d at 1110 (quoting Wyoming
v. U.S. Dep’t of Agric., 414 F.3d 1207, 1212 (10th Cir. 2005)). “Thus, ‘if an event
occurs while a case is pending on appeal that makes it impossible for the court to
grant any effectual relief what[so]ever to a prevailing party, we must dismiss the
case, rather than issue an advisory opinion.’” Fleming, 785 F.3d at 445 (quoting
Stevenson v. Blytheville Sch. Dist. No. 5, 762 F.3d 765, 768 (8th Cir. 2014)).
Here, the State asserts that because it has “lifted or let expire all restrictions on
houses of worship, including capacity limitations, masking requirements,” social-
distancing rules, and sanitization measures, plaintiffs “are not subject to any [State-
issued] COVID-19 restrictions.” Aplee. Supp. Br. 2. This accurately describes the
state of affairs in Colorado. For instance, the current primary public-health order
contains no social-distancing requirement at all; it merely encourages such
distancing. Similarly, this order includes a mask requirement for unvaccinated
individuals in certain high-risk settings, but churches are not included in the list of
high-risk settings, and the order includes an express exception for individuals
7 Appellate Case: 20-1391 Document: 010110636013 Date Filed: 01/24/2022 Page: 8
officiating or participating in religious services.7
Thus, most of plaintiffs’ claims against the State—those premised on COVID-
19 restrictions that no longer apply to them—are now moot. To see why, we walk
through the various forms of relief plaintiffs seek. See Prison Legal News v. Fed.
Bureau of Prisons, 944 F.3d 868, 880 (10th Cir. 2019) (noting that we “must decide
whether a case is moot as to ‘each form of relief sought’” (quoting Collins v. Daniels,
916 F.3d 1302, 1314 (10th Cir. 2019))).
First, plaintiffs seek declaratory judgments that (1) the executive and public-
health orders violate their First Amendment free-exercise rights, (2) the State
deprived them of constitutional due process by issuing public-health orders without
notice and a hearing, and (3) the State issued the executive and public-health orders
in violation of various state laws. But declaratory-judgment claims become moot if
circumstances change such that the defendants are not “actually situated to have their
future conduct toward the plaintiff altered by the court’s declaration of rights.”
Jordan v. Sosa, 654 F.3d 1012, 1025–26 (10th Cir. 2011). And here, although the
7 The current primary public-health order is the Eleventh Amended PHO 20- 38, effective through January 31, 2022. See Colo. Dep’t of Pub. Health & Env’t, Pub. Health & Exec. Ords., https://covid19.colorado.gov/public-health-executive-orders (last visited Jan. 14, 2022). This order postdates the State’s supplemental briefing, which attached and discussed the Ninth Amended PHO 20-38 (effective through November 30, 2021). Yet for purposes of evaluating plaintiffs’ claims in this case, the Ninth and Eleventh versions appear largely identical: neither imposes any restrictions on houses of worship. And indeed, the State has pledged to file a letter of supplemental authority in the event it issues an amended executive or public-health order that imposes any restriction on plaintiffs. To date, it has not done so. We therefore focus our analysis on the most current order as of the date of this opinion— the Eleventh—in the interest of remaining as current as possible. 8 Appellate Case: 20-1391 Document: 010110636013 Date Filed: 01/24/2022 Page: 9
State continues to issue amended executive and public-health orders related to the
pandemic without providing notice or a hearing to individual affected parties, the
amended orders no longer contain any provisions that apply to plaintiffs. Thus, the
circumstances have shifted such that the State is not situated to have its future
conduct toward plaintiffs changed by this court’s declaration of rights. See id. at
1026. In other words, none of these declarations—that some former version of the
orders violated plaintiffs’ free-exercise rights, that plaintiffs were entitled to notice
and a hearing before the State issued those former orders, or that the State violated
state law in issuing the former orders—would have any effect on the State’s future
conduct toward plaintiffs because the State no longer imposes the complained-of
restrictions on plaintiffs.
Plaintiffs also sought injunctive relief to prevent the State from enforcing its
COVID-19 orders against them and to require the State to publicly terminate such
orders. Yet if a defendant has carried out the action that a plaintiff sought to compel
through an injunction, then the claim for injunctive relief is moot because “[t]here is
no point in ordering an action that has already taken place.” S. Utah Wilderness All.
v. Smith, 110 F.3d 724, 728 (10th Cir. 1997). In other words, a claim for injunctive
relief is moot if there is no reasonable likelihood that the injunction would result in
any changes. Id. And here, an injunction would have no effect because the State has
already ceased enforcing any COVID-19 restrictions against plaintiffs and has
superseded or allowed to expire the orders that formerly applied to plaintiffs. See id.
Faced with this apparent mootness, plaintiffs invoke the voluntary-cessation
9 Appellate Case: 20-1391 Document: 010110636013 Date Filed: 01/24/2022 Page: 10
exception, arguing that their claims are not moot because the State voluntarily
changed the restrictions and may reinstate them at any time. The voluntary-cessation
“exception exists to counteract the possibility of a defendant ceasing illegal action
long enough to render a lawsuit moot and then resuming the illegal conduct.” Rio
Grande, 601 F.3d at 1115 (quoting Chihuahuan Grasslands All. v. Kempthorne, 545
F.3d 884, 892 (10th Cir. 2008)). Yet voluntary actions may nevertheless moot a case
“if it is clear that the defendant has not changed course simply to deprive the court of
jurisdiction.” Id. at 1115–16 (quoting Nat’l Advert. Co. v. City of Mia., 402 F.3d
1329, 1333 (11th Cir. 2005) (per curiam)).
As the party asserting mootness, the State bears a “‘heavy burden of
persua[ding]’ the court that the challenged conduct cannot reasonably be expected to
start up again.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528
U.S. 167, 189 (2000) (alteration in original) (quoting United States v. Concentrated
Phosphate Exp. Ass’n, 393 U.S. 199, 203 (1968)). To carry this burden, the State
“must do more than offer ‘a mere informal promise or assurance . . . that the
challenged practice will cease’ or ‘announce[] . . . an intention to change.’” Prison
Legal News, 944 F.3d at 881 (omissions and alterations in original) (quoting Rio
Grande, 601 F.3d at 1118). At the same time, “the ‘[w]ithdrawal or alteration of
administrative policies can moot an attack on those policies.’” Rio Grande, 601 F.3d
at 1117 (alteration in original) (quoting Bahnmiller v. Derwinski, 923 F.2d 1085,
1089 (4th Cir. 1991)). “And the ‘mere possibility’ that an agency might rescind
amendments to its actions or regulations does not enliven a moot controversy.” Id.
10 Appellate Case: 20-1391 Document: 010110636013 Date Filed: 01/24/2022 Page: 11
(quoting Ala. Hosp. Ass’n v. Beasley, 702 F.2d 955, 961 (11th Cir. 1983)). In other
words, “[a] case ‘cease[s] to be a live controversy if the possibility of recurrence of
the challenged conduct is only a “speculative contingency.”’” Id. (second alteration
in original) (quoting Burbank v. Twomey, 520 F.2d 744, 748 (7th Cir. 1975)).
Here, the State contends that there is no reasonable expectation it will ever
reinstate the challenged COVID-19 restrictions against plaintiffs. In support, it points
out that it initially imposed the challenged restrictions in the absence of Supreme
Court guidance on the constitutional limitations of such restrictions. But after the
decisions in Roman Catholic Diocese, 141 S. Ct. 63, and Tandon v. Newsom, 141 S.
Ct. 1294 (2021), the State “listened to the Supreme Court’s direction and put these
decisions into action” by including religious exemptions in its COVID-19 orders.
Aplee. Supp. Br. 9. For instance, although the current primary public-health order
includes a mask requirement for unvaccinated individuals in certain high-risk, indoor
settings, it also includes an exemption to this requirement for officiating or
participating in a religious service. Similarly, the order includes a vaccination
requirement for indoor events of over 500 individuals in certain counties, but such
requirement does not apply to houses of worship. Thus, we agree with the State that
“it is unreasonable to expect that [the State] will disregard Supreme Court precedent
and impose the same restrictions on houses of worship again.” Id.; see also Hawse v.
Page, 7 F.4th 685, 693 (8th Cir. 2021) (noting that even if the county were to tighten
COVID-19 restrictions at some point in the future, “there is no reasonable
expectation that the [c]ounty would flout the Supreme Court’s intervening
11 Appellate Case: 20-1391 Document: 010110636013 Date Filed: 01/24/2022 Page: 12
pronouncements on equal treatment between religious exercise and comparable
secular activity”).
The State additionally points out that advances in pharmaceutical tools—
primarily COVID-19 vaccines—render it unlikely that the State will return to
“traditional non[]pharmaceutical interventions like capacity limitations and masking
requirements,” even if the pandemic worsens again in the future. For example, the
State notes that when faced with the recent surge in COVID-19 cases caused by the
Delta variant, it “did not resort back to the types of traditional non[]pharmaceutical
interventions that [plaintiffs] complain of here.” Aplee. Supp. Br. 10. Instead, it took
steps to increase access to vaccines and to mandate vaccination in certain situations.8
See Hawse, 7 F.4th at 692–93 (finding it persuasive, on voluntary-cessation inquiry,
that county did not impose capacity limitations on houses of worship despite
emergence of Delta variant).
In response, plaintiffs rely on two recent Supreme Court decisions that granted
injunctions pending appeal of certain COVID-19 restrictions and argue that the
8 We recognize the reality of the recent surge in COVID-19 cases—a surge related, at least in part, to the Omicron variant. See Ctrs. for Disease Control & Prevention, Omicron Variant: What You Need to Know, https://www.cdc.gov/coronavirus/2019-ncov/variants/omicron-variant.html (last visited Jan. 14, 2022). The parties have not specifically addressed this issue in any supplemental filings. As noted earlier, the State promised to notify this court in the event it issues any orders that impose restrictions on houses of worship. We have received no such notification; nor do we see any such restrictions in the current public-health order, which took effect as the Omicron surge was beginning. The Omicron surge therefore does not impact our analysis, except to underline the strength of the State’s position that it is not reasonably likely to reimpose pandemic- related restrictions on plaintiffs even when facing a surge in COVID-19 cases. 12 Appellate Case: 20-1391 Document: 010110636013 Date Filed: 01/24/2022 Page: 13
State’s history of “moving the goalposts” renders this case not moot. Tandon, 141 S.
Ct. at 1297 (finding appeal of COVID-19 restrictions not moot because of frequency
with which state changed them); see also Roman Cath. Diocese, 141 S. Ct. at 68
(finding it “clear” that free-exercise challenge to COVID-19 restrictions was “not
moot” because “[t]he [g]overnor regularly change[d] the classification of particular
areas without prior notice” such that “the applicants remain under a constant threat”
of restrictions being reinstated). Yet we agree with the State that these cases are
distinguishable because, contrary to plaintiffs’ assertion, the State here has no history
of moving the goalposts. Cf. Prison Legal News, 944 F.3d at 882 (noting that
voluntary-cessation “inquiry is fact-specific”). For instance, in Tandon, “California
officials changed the challenged policy shortly after [plaintiffs’] application was
filed.” 141 S. Ct. at 1297. But here, the State has “steadily loosened” its restrictions
over time and has included religious exemptions in its more recent executive and
public-health orders. State Aplee. Br. 20. Nor is this case like Roman Catholic
Diocese, where New York was using a color-coded dial system to quickly and
regularly change restrictions without prior notice; here, the current public-health
order expressly supersedes the State’s prior dial system (and has done so since April
2021).9 See 141 S. Ct. at 68.
9 The system in Roman Catholic consisted of color-coded zones based on the prevalence of COVID-19; for example, “[i]n red zones, no more than 10 persons [could] attend each religious service, and in orange zones, attendance [was] capped at 25.” 141 S. Ct. at 66, 68; see also id. at 72–73 (Kavanaugh, J., concurring) (explaining that color code is based on prevalence of COVID-19). Here, the State’s 13 Appellate Case: 20-1391 Document: 010110636013 Date Filed: 01/24/2022 Page: 14
Thus, any chance of the State reimposing the challenged restrictions on
plaintiffs is entirely speculative, stemming only from the uncertainty inherent in the
pandemic and the State’s general authority to impose restrictions in emergencies.
And we reject plaintiffs’ position that such a speculative possibility is sufficient to
invoke the voluntary-cessation exception. See Rio Grande, 601 F.3d at 1117
(explaining that voluntary-cessation exception does not apply “‘if the possibility of
recurrence of the challenged conduct is only a “speculative contingency”’” (quoting
Burbank, 520 F.2d at 748)); cf. also Bos. Bit Labs, Inc. v. Baker, 11 F.4th 3, 10 n.4
(1st Cir. 2021) (“That the [g]overnor has the power to issue executive orders cannot
itself be enough to skirt mootness, because then no suit against the government
would ever be moot.”).
In sum, the State has met its burden of showing “that the challenged conduct
cannot reasonably be expected to start up again.”10 Friends of the Earth, 528 U.S. at
189 (quoting Concentrated Phosphate, 393 U.S. at 203). Nothing about the changes
in the executive and public-health orders appears to be an attempt to evade liability in
this litigation (indeed, plaintiffs never suggest as much); the State has continued to
now-superseded dial system similarly classified counties by COVID-19 prevalence using color codes that corresponded to particular restriction levels. 10 In their opening brief, plaintiffs cite County of Butler v. Wolf, 486 F. Supp. 3d 883 (W.D. Pa. 2020), appeal dismissed sub nom County of Butler v. Governor of Pa., 8 F.4th 226 (3d Cir. 2021), cert. denied, 2022 WL 89363 (Jan. 10, 2022), in support of their voluntary-cessation argument. There, the district court relied on the voluntary-cessation exception to reject a mootness argument because the orders at issue had merely been suspended. Cnty. of Butler, 486 F. Supp. 3d at 911–12. Here, though, the current order expressly supersedes prior orders, so County of Butler is easily distinguishable. 14 Appellate Case: 20-1391 Document: 010110636013 Date Filed: 01/24/2022 Page: 15
decrease restrictions over time, even when faced with increasing COVID-19 cases;
and the State has followed and intends to continue following recent Supreme Court
precedent by incorporating religions exemptions into current and future restrictions.
We therefore conclude that the voluntary-cessation exception does not apply here.
See Hawse, 7 F.4th at 693; Calvary Chapel of Bangor v. Mills, No. 20-cv-00156,
2021 WL 2292795, at *12–13 (D. Me. June 4, 2021) (concluding that voluntary-
cessation exception did not apply based on absence of color-coded system and fact
that governor’s actions since May 2020 were almost entirely in direction of easing
restrictions), appeal docketed, No. 21-1453 (1st Cir. June 14, 2021). Most of
plaintiffs’ claims against the State, as detailed above, are therefore moot.11
“When a case becomes moot on appeal, the ordinary course is to vacate the
judgment below and remand with directions to dismiss.” Kan. Jud. Rev. v. Stout, 562
F.3d 1240, 1248 (10th Cir. 2009). We do this “because ‘[a] party who seeks review
of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance,
11 For the first time in their supplemental brief on mootness, plaintiffs invoke the mootness exception for conduct capable of repetition yet evading review. This exception requires the party asserting it to show that “(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration[] and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” N.M. Health Connections v. U.S. Dep’t of Health & Hum. Servs., 946 F.3d 1138, 1159 (10th Cir. 2019) (quoting Brown v. Buhman, 822 F.3d 1151, 1166 (10th Cir. 2016)); see also Jordan, 654 F.3d at 1036 (noting that party asserting this exception bears burden of proving it applies). Here, as discussed in the text, plaintiffs only speculate that they will again be subject to the challenged COVID-19 restrictions; they therefore have not met their burden to demonstrate “a reasonable expectation” that they will be subject to the same COVID-19 restrictions in the future. N.M. Health Connections, 946 F.3d at 1159 (quoting Brown, 822 F.3d at 1166). Thus, this exception does not apply here. 15 Appellate Case: 20-1391 Document: 010110636013 Date Filed: 01/24/2022 Page: 16
ought not in fairness be forced to acquiesce in the judgment.’” Wyoming, 414 F.3d at
1213 (alteration in original) (quoting U.S. Bancorp Mortg. Co. v. Bonner Mall
P’ship, 513 U.S. 18, 25 (1994)). Thus, we dismiss the appeal of plaintiffs’ claims that
(1) the executive and public-health orders, as applied, violate their free-exercise
rights, (2) the governor violated the Colorado Constitution and exceeded his authority
under the CDEA, and (3) the public-health orders violate the Due Process Clause and
Colorado’s administrative-procedure act; we further vacate the district court’s rulings
on these claims and remand with directions to dismiss such claims without prejudice.
See id. at 1213–14 (noting that “it is frequently appropriate for an appellate court to
vacate the judgment below when mootness results from . . . the actions of the
prevailing party”).
II. Remaining Claims
Our mootness ruling disposes of most, but not all, of plaintiffs’ claims on
appeal: Still at issue are plaintiffs’ facial challenge to the CDEA and their claims
against the federal agencies. Plaintiffs’ facial challenge to the CDEA is not moot
because it does not turn on alleged free-exercise violations in the executive and
public-health orders but instead on the alleged unconstitutionality of the statute itself,
which has not changed. See Prison Legal News, 944 F.3d at 883, 885 (finding as-
applied claims moot and specifically noting absence of facial challenges). And as to
plaintiffs’ claims against the federal agencies, we elect to exercise our discretion to
set aside any mootness question in favor of a different threshold issue—plaintiffs’
standing to bring such claims. See Sinochem Int’l Co. v. Malay. Int’l Shipping Corp.,
16 Appellate Case: 20-1391 Document: 010110636013 Date Filed: 01/24/2022 Page: 17
549 U.S. 422, 431 (2007) (noting courts’ “leeway ‘to choose among threshold
grounds for denying audience to a case on the merits’” (quoting Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 585 (1999))); Citizen Ctr. v. Gessler, 770 F.3d 900,
906 (10th Cir. 2014) (same).
As to these remaining claims, plaintiffs argue that the district court erred in
denying their motion for a preliminary injunction. A preliminary injunction is
warranted only if a party can show (1) a substantial likelihood of success on the
merits, (2) irreparable injury, (3) that the “threatened injury outweighs the injury the
opposing party will suffer under the injunction; and (4) [that] the injunction would
not be adverse to the public interest.”12 Awad v. Ziriax, 670 F.3d 1111, 1125 (10th
Cir. 2012) (quoting Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC, 562
F.3d 1067, 1070 (10th Cir. 2009)). As the party seeking an injunction, plaintiffs bear
the burden of showing each prong. Heideman v. S. Salt Lake City, 348 F.3d 1182,
1188–89 (10th Cir. 2003). And because plaintiffs seek a disfavored type of
injunction—one that would grant them “all the relief [they] could expect from a trial
win”—they face a heightened burden of making a “strong showing” on the first and
third prongs. Mrs. Fields Franchising, LLC v. MFGPC, 941 F.3d 1221, 1232 (10th
Cir. 2019) (quoting Free the Nipple–Fort Collins v. City of Fort Collins, 916 F.3d
792, 797 (10th Cir. 2019)). Here, the district court denied relief based on the first
12 Although it is not relevant to the issues in this appeal, the third and fourth “factors merge when the [g]overnment is the opposing party,” as it is here. Nken v. Holder, 556 U.S. 418, 435 (2009). 17 Appellate Case: 20-1391 Document: 010110636013 Date Filed: 01/24/2022 Page: 18
prong, concluding that plaintiffs failed to make a strong showing of a substantial
likelihood of success on the merits.
We review that ruling for abuse of discretion. See Awad, 670 F.3d at 1125.
“An abuse of discretion occurs only when the trial court bases its decision on an
erroneous conclusion of law or where there is no rational basis in the evidence for the
ruling.” Id. (quoting Wilderness Workshop v. U.S. Bureau of Land Mgmt., 531 F.3d
1220, 1223–24 (10th Cir. 2008)).
A. Facial Challenge to the CDEA
Plaintiffs argue the district court erred in concluding they were unlikely to
succeed on their claim that the CDEA facially violates the Free Exercise Clause.
When faced with a claim that a law violates the right to free exercise of religion,
courts often apply strict scrutiny, a difficult standard that requires the government to
justify the law with a compelling government interest and show that the law is
narrowly tailored to advance that interest. See Church of Lukumi Babalu Aye, Inc. v.
City of Hialeah, 508 U.S. 520, 546 (1993). But such strict scrutiny does not always
apply to free-exercise claims. Critically, for our purposes, “a law that is [1] neutral
and [2] of general applicability need not be justified by a compelling governmental
interest even if the law has the incidental effect of burdening a particular religious
practice.” Id. at 531. Instead, a neutral and generally applicable law “need only be
rationally related to a legitimate governmental interest to survive a constitutional
challenge.” Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 649
(10th Cir. 2006). That is, a neutral and generally applicable law is much more likely
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to survive a constitutional challenge. See id. at 659 (noting “little doubt” that neutral
and generally applicable zoning law survived rational-basis review).
Here, the district court concluded that the CDEA was both neutral and
generally applicable, rejecting plaintiffs’ position “that the CDEA exempts certain
secular institutions from its mandates and thus favors those institutions over religious
institutions.” App. vol. 6, 1424. Because that conclusion rendered the law subject to
rational-basis review, plaintiffs’ constitutional challenge was not substantially likely
to succeed.
On appeal, plaintiffs concede the CDEA’s language is neutral but again assert
that the CDEA is not generally applicable because “it facially classifies hundreds of
thousands of Coloradans as being exempt . . . and in application, exempts even more
groups than the statute permits.” Aplt. Br. 20. Thus, plaintiffs contend, the district
court erred by finding the statute was generally applicable (and therefore not subject
to strict scrutiny). See Lukumi Babalu, 508 U.S. at 531–32.
A law is not generally applicable when it imposes “burdens only on conduct
motivated by religious belief.” Id. at 543. For instance, in Lukumi Babalu, city
ordinances prohibiting animal sacrifice but allowing the killing of animals in a
variety of other contexts were not generally applicable because they furthered the
city’s governmental interests in protecting public health and preventing animal
cruelty “only against conduct motivated by religious belief.” Id. at 543, 545.
Likewise, we have held “[a] rule that is discriminatorily motivated and applied is not
a neutral rule of general applicability.” Axson-Flynn v. Johnson, 356 F.3d 1277, 1294
19 Appellate Case: 20-1391 Document: 010110636013 Date Filed: 01/24/2022 Page: 20
(10th Cir. 2004). Accordingly, in Axson-Flynn, we remanded for further proceedings
on whether a rule that theater students adhere precisely to their scripts, under which a
Mormon student was required to use profane language, “was discriminatorily applied
to religious conduct (and thus was not generally applicable).” Id. at 1280, 1294. On
the other hand, the mere existence of “a secular exemption” does not “automatically
create[] a claim for a religious exemption.” Grace United Methodist Church, 451
F.3d at 651. Thus, we have held that a zoning law (under which a church was not
permitted to operate a daycare in a particular location) was generally applicable
because there was no evidence of discriminatory motivation or application. See id. at
651–55.
Here, a review of the CDEA shows that it is more like the generally applicable
zoning law in Grace Methodist than the religiously targeted or discriminatorily
applied laws in Lukumi Babalu and Axson-Flynn. Colorado enacted the CDEA to
limit the “vulnerability of people and communities of [Colorado] to damage, injury,
and loss of life and property resulting from all[ ]hazards, including natural
catastrophes” such as epidemics. Colo. Rev. Stat. § 24-33.5-702(1)(a). To that end,
the CDEA empowers the governor to declare a disaster emergency and issue
executive orders to combat such disaster. Id. § 24-33.5-704(4). And in the provisions
plaintiffs highlight, the CDEA provides that “[n]othing” in it “shall be construed to[]
(a) [i]nterfere with the course or conduct of a labor dispute; . . . (b) [i]nterfere with
dissemination of news or comment on public affairs; . . . [or] (c) [a]ffect the
jurisdiction or responsibilities of police forces, fire-fighting forces, or units of the
20 Appellate Case: 20-1391 Document: 010110636013 Date Filed: 01/24/2022 Page: 21
armed forces of the United States.” Id. § 24-35.5-702(2)(a)-(c).
According to plaintiffs, these provisions are “sweeping facial exemptions
[that] negate any argument that [the] CDEA is generally applicable.” Aplt. Br. 24.
But this argument ignores the plain language of the statute. As the district court
noted, the so-called exemption for labor disputes does not actually operate as an
exemption. By its own terms, this provision actually allows interference “with the
course or conduct of a labor dispute” when such interference is “necessary to
forestall or mitigate imminent or existing danger to public health or safety.” § 24-
33.5-702(2)(a). Similarly, the police provision is not an exemption; as the district
court explained, it is “an acknowledgement” that the CDEA does not allow the
governor “to control law enforcement or armed forces not within his [or her]
purview.” App. vol. 6, 1425.
And the exemption for news media simply prevents interference with the
“dissemination of news,” § 24-33.5-702(2)(b); it does not entirely exclude news
organizations from the CDEA. The district court accurately characterized this
exception as “giv[ing] effect to the First Amendment’s Free Speech Clause, which
prohibits laws that infringe the right to speak.” App. vol. 6, 1424. That the CDEA
gives such effect expressly does not mean the statute facially violates the First
Amendment’s Free Exercise Clause by not mentioning a similar express exemption
for the free exercise of religion. Notably, under a prior version of the primary public-
health order issued in the emergency disaster occasioned by the pandemic, the State
placed news organizations and houses of worship in the same category and imposed
21 Appellate Case: 20-1391 Document: 010110636013 Date Filed: 01/24/2022 Page: 22
the same restrictions on both.
Thus, despite plaintiffs’ emphasis on the number of individuals potentially
touched by the so-called exemptions in the CDEA, those exemptions do not operate
as broadly as plaintiffs would have it. And the mere existence of a secular exemption
is not sufficient to establish a claim for a religious exemption. See Grace United, 451
F.3d at 651. Further, plaintiffs point to no evidence of discriminatory motivation or
application, see Axson-Flynn, 356 F.3d at 1294; nor do they argue that the CDEA
imposes restrictions only on conduct motivated by religious belief, see Lukumi-
Babalu, 508 U.S. at 543. Indeed, other than citing three Supreme Court cases for
general propositions of free-exercise law, plaintiffs cite no caselaw supporting their
assertion that the CDEA is not generally applicable. Thus, because the CDEA
appears to be neutral and generally applicable (and therefore subject only to the low
bar of rational-basis review), plaintiffs fail to make the required strong showing of a
substantial likelihood of success on the merits of their claim that the CDEA is
facially unconstitutional. Accordingly, the district court did not abuse its discretion in
denying a preliminary injunction on this claim.
B. Claims Against the Federal Agencies
In these claims, plaintiffs assert that the federal agencies violated both RFRA
and the Stafford Act by distributing COVID-19 relief aid to Colorado while Colorado
was imposing and enforcing COVID-19 restrictions that violated plaintiffs’ free-
exercise rights. RFRA prohibits the federal government from substantially burdening
the exercise of religion—even if the burden results from a neutral law of general
22 Appellate Case: 20-1391 Document: 010110636013 Date Filed: 01/24/2022 Page: 23
applicability—except in furtherance of a compelling governmental interest that is the
least restrictive means of furthering that interest. See 42 U.S.C. §§ 2000bb-1,
2000bb-3. And the Stafford Act—which authorizes the president to provide disaster
relief in certain emergency situations, see Barbosa v. U.S. Dep’t of Homeland Sec.,
916 F.3d 1068, 1069 (D.C. Cir. 2019)—includes a nondiscrimination clause, under
which “relief and assistance activities shall be accomplished in an equitable and
impartial manner, without discrimination on the ground[] of . . . religion.” 42 U.S.C.
§ 5151(a); see also 44 C.F.R. § 206.11.
The district court did not reach the merits of these claims because it concluded
that plaintiffs likely lacked standing to bring them. “Standing to sue is a doctrine
rooted in the traditional understanding of a case or controversy. The doctrine
developed in our case[]law to ensure that federal courts do not exceed their authority
as it has been traditionally understood.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338
(2016). To establish the standing necessary to invoke federal jurisdiction under
Article III’s case-or-controversy requirement, a plaintiff must demonstrate, at an
“irreducible minimum,” three elements: (1) an actual or threatened injury that is both
(2) traceable to the defendant’s challenged conduct and (3) likely to be redressed by
the relief requested. Valley Forge Christian Coll. v. Ams. United for Separation of
Church & State, Inc., 454 U.S. 464, 472 (1982); see also Aptive Env’t, LLC v. Town
of Castle Rock, 959 F.3d 961, 973 (10th Cir. 2020) (listing these three elements as
necessary “[t]o satisfy Article III’s case-or-controversy requirement”).
The district court accepted that plaintiffs had shown the required injury,
23 Appellate Case: 20-1391 Document: 010110636013 Date Filed: 01/24/2022 Page: 24
describing it as “the deprivation of their ability to freely practice their religion due to
the restrictions imposed by the” executive and public-health orders. App. vol. 6,
1445. But the district court concluded that this injury was likely not traceable to the
federal agencies because “nothing in the record indicates that any action by the
[f]ederal [agencies] caused or induced the State . . . to issue the challenged public-
health orders” or to keep such orders in place. Id. at 1445–46. Instead, the evidence
showed that Colorado issued several of the relevant orders “before receiving any
federal disaster funds” and that the federal agencies did not “condition[] their
approval or distribution of aid on the issuance of orders that mandate” any particular
COVID-19 restrictions. Id. at 1446. The district court also concluded that plaintiffs
likely could not show redressability because no evidence demonstrated “that an
injunction against future federal aid would lead Colorado to rescind any unlawful”
orders. Id.
On appeal, plaintiffs first assert that the district court erred by applying the
standing test from Valley Forge because that case involved taxpayer standing and this
case involves RFRA, which Congress enacted “to provide a claim or defense to
persons whose religious exercise is substantially burdened by government.” Aplt. Br.
48 (quoting § 2000bb(b)(2)). But as the federal agencies point out, the standing test
recited in Valley Forge derives from Article III of the Constitution and remains the
same, no matter the type of case. See Valley Forge, 454 U.S. at 472 (explaining that
Article III “requires” three-part standing test).
Nevertheless, plaintiffs contend that RFRA itself establishes their standing,
24 Appellate Case: 20-1391 Document: 010110636013 Date Filed: 01/24/2022 Page: 25
asserting that “the words ‘traceability’ and ‘redressability’ are not part of RFRA.”
Aplt. Br. 53. Yet RFRA itself expressly provides that “[s]tanding to assert a claim or
defense under this section shall be governed by the general rules of standing under
[A]rticle III of the Constitution.” § 2000bb-1(c). In line with this statutory command,
we conduct the usual three-part standing inquiry in RFRA cases. See, e.g., Hobby
Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1126 (10th Cir. 2013) (en banc), aff’d
sub nom. Burwell v. Hobby Lobby Stores, Inc., 573 U.S 682 (2014).
Thus, to establish standing here, plaintiffs must show injury, traceability, and
redressability. Like the district court, we assume the alleged free-exercise violations
constitute the required injury. But plaintiffs fail to show either traceability or
redressability. At best, they provide conclusory assertions about the federal agencies’
alleged participation in the State’s free-exercise violations. For instance, they state
that the federal agencies “approv[ed]” Colorado’s restrictions. Aplt. Br. 52. But even
assuming such approval would establish both traceability and redressability, plaintiffs
cite no record evidence supporting the existence of such approval. Indeed, on the
contrary, plaintiffs do not challenge the district court’s finding that Colorado
imposed some of the challenged restrictions before the federal agencies awarded any
relief funds. And this finding negates any implication that Colorado imposed the
challenged restrictions as a result or condition of receiving such federal aid or that it
would rescind such restrictions if the aid were halted.13
13 Plaintiffs cite a variety of inapposite authority that has little to do with standing, including Federal Rule of Civil Procedure 65, which governs preliminary 25 Appellate Case: 20-1391 Document: 010110636013 Date Filed: 01/24/2022 Page: 26
Thus, because plaintiffs point to no record evidence that the State imposed
unconstitutional restrictions as a result or condition of receiving federal COVID-19
aid or that enjoining such federal aid would cause the State to amend or rescind its
orders, plaintiffs have not met their burden to establish either traceability or
redressability. Accordingly, plaintiffs lack standing and therefore fail to make the
requisite strong showing of a substantial likelihood of success on the merits of their
claims against the federal agencies.
Conclusion
Because the State no longer imposes any COVID-19 restrictions on plaintiffs,
all but one of their claims against the State are moot. And the State has met its
burden of showing that the voluntary-cessation exception to mootness does not apply;
there is no reasonable chance that the State will impose similar restrictions on these
plaintiffs again. For the same reason, the mootness exception for conduct capable of
repetition but evading review also does not apply here. Accordingly, we dismiss as
moot plaintiffs’ claims that (1) the executive and public-health orders, as applied,
violate their free-exercise rights, (2) the governor violated the Colorado Constitution
injunctions and restraining orders; the Restatement (First) of Torts § 876 (1939), which describes tort liability for those who act in concert; and Reliance Insurance Co. v. Mast Construction Co., 84 F.3d 372 (10th Cir. 1996), which concerned whether a nonparty was bound by a restraining order. Moreover, these authorities on participatory liability do not help plaintiffs overcome the evidentiary problem that dooms their standing argument. That is, even assuming that federal aid could cause a state to impose unconstitutional restrictions—such that a federal agency could bear some level of responsibility for unconstitutional state restrictions—there is absolutely no evidence of that occurring here. 26 Appellate Case: 20-1391 Document: 010110636013 Date Filed: 01/24/2022 Page: 27
and exceeded his authority under the CDEA, and (3) the public-health orders violate
the Due Process Clause and Colorado’s administrative-procedure act, vacate these
portions of the judgment and related interlocutory rulings of the district court, and
remand the mooted claims to the district court for dismissal without prejudice.
As for the facial challenge to the CDEA and the claims against the federal
agencies, plaintiffs fail to make a strong showing of a substantial likelihood of
success on the merits of such claims. The CDEA is likely constitutional because it is
neutral and generally applicable and subject to rational-basis review. And plaintiffs
lack standing to bring their claims against the federal agencies. We therefore affirm
the district court’s order denying a preliminary injunction on these claims.
Entered for the Court
Nancy L. Moritz Circuit Judge