Grace Bible Fellowship v. Polis

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 29, 2024
• Docket: 23-1148
• Status: Unpublished

Opinion

Appellate Case: 23-1148 Document: 010111024162 Date Filed: 03/29/2024 Page: 1

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 29, 2024 _________________________________ Christopher M. Wolpert Clerk of Court GRACE BIBLE FELLOWSHIP; JOEY RHOADS,

Plaintiffs - Appellants,

v. No. 23-1148 (D.C. No. 1:20-CV-02362-DDD-NRN) JARED POLIS, in his official capacity as (D. Colo.) 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. _________________________________

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,

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 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). Appellate Case: 23-1148 Document: 010111024162 Date Filed: 03/29/2024 Page: 2

that one of their claims is moot, and that they fail to state their remaining claim, we

affirm.

Background

Plaintiffs filed their original complaint in August 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

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 WL 200661, at *1, 7 (10th Cir. Jan. 24, 2022)

(unpublished). And on plaintiffs’ facial free-exercise challenge to the Colorado

Disaster Emergency Act (CDEA), Colo. Rev. Stat. §§ 24-33.5-701 to 24-33.5-717,

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 (10th Cir. Dec. 23, 2020) (order granting motion to voluntarily dismiss appeal). 2 Appellate Case: 23-1148 Document: 010111024162 Date Filed: 03/29/2024 Page: 3

we affirmed the denial of a preliminary injunction because plaintiffs were unlikely to

succeed on the merits. Id. 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. §§ 25-1.5-101 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 [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,

3 Appellate Case: 23-1148 Document: 010111024162 Date Filed: 03/29/2024 Page: 4

and that they failed to state a claim. In support, defendants submitted affidavits and

evidence 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

Analysis

Plaintiffs argue that the district court erred in dismissing their claims. Our

review is de novo, except that we review any jurisdictional findings of fact for clear

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 findings); 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).

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. 4 Appellate Case: 23-1148 Document: 010111024162 Date Filed: 03/29/2024 Page: 5

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 public-health

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 subject-matter 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 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, the district court has “wide discretion to

allow affidavits, 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.

5 Appellate Case: 23-1148 Document: 010111024162 Date Filed: 03/29/2024 Page: 6

425 (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, Article III of the

Constitution confines the federal judicial 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 (2020). “The

doctrines of standing and 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 (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 first time in the amended complaint. The district

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court 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 (1992) (citations omitted) (quoting Whitmore v. Arkansas, 495 U.S. 149,

155 (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.

Plaintiffs first argue, as they did below, that they “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 months-long 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.

5 Standing is typically assessed as of the date the complaint is filed. See Rio Grande, 57 F.4th at 1161. The district court concluded that the appropriate point of reference for the newly asserted claims is the date that plaintiffs filed their amended complaint. Plaintiffs 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))). 7 Appellate Case: 23-1148 Document: 010111024162 Date Filed: 03/29/2024 Page: 8

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, [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

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 Plaintiffs briefly assert that their past injuries resulted in “a 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 8 Appellate Case: 23-1148 Document: 010111024162 Date Filed: 03/29/2024 Page: 9

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 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 an objectively justified fear of future

enforcement.” App. 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

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. 9 Appellate Case: 23-1148 Document: 010111024162 Date Filed: 03/29/2024 Page: 10

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

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

challenge to a statute . . . must . . . establish an injury-in-fact sufficient to satisfy

Article 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 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 id. 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

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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 (2022). But that case doesn’t help plaintiffs. There, the Court

held that the challenged practice (prohibiting a football coach from leading a prayer

on the field after a game) was “neither 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 official expression of hostility to religion.” App. vol. 3, 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 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,”

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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.

Conclusion

Plaintiffs’ newly asserted claims are not justiciable because plaintiffs fail to

show the requisite injury for Article III standing. As for plaintiffs’ reasserted free-

exercise challenges to the CDEA, their as-applied claim is moot, and they fail to state

a facial claim. We thus affirm the district court’s order dismissing plaintiffs’

amended complaint.

Entered for the Court

Nancy L. Moritz Circuit Judge