PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-1153
LIGHTHOUSE FELLOWSHIP CHURCH,
Plaintiff – Appellant,
v.
RALPH NORTHAM, in his official capacity as Governor of the Commonwealth of Virginia,
Defendant – Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Arenda L. Wright Allen, District Judge. (2:20-cv-00204-AWA-RJK)
Argued: October 27, 2021 Decided: December 14, 2021
Before KING, AGEE, and THACKER, Circuit Judges.
Vacated and remanded by published opinion. Judge King wrote the opinion, in which Judge Agee and Judge Thacker joined.
ARGUED: Daniel Joseph Schmid, LIBERTY COUNSEL, Orlando, Florida, for Appellant. Michelle Shane Kallen, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF: Mathew D. Staver, Anita L. Staver, Horatio G. Mihet, Roger K. Gannam, LIBERTY COUNSEL, Orlando, Florida, for Appellant. Mark R. Herring, Attorney General, Samuel T. Towell, Deputy Attorney General, Jacqueline C. Hedblom, Assistant Attorney General, Toby J. Heytens, Solictor General, Jessica Merry Samuels, Deputy Solicitor General, Kendall T. Burchard, John Marshall Fellow, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
2 KING, Circuit Judge:
Plaintiff Lighthouse Fellowship Church initiated this civil action in the Eastern
District of Virginia in April 2020 against defendant Ralph Northam, the Governor of
Virginia, challenging the legality of executive orders the Governor issued to combat the
spread of COVID-19. Lighthouse Church alleged that Governor Northam’s executive
orders discriminated against its religious exercise, in contravention of various
constitutional and statutory provisions. The Complaint named Governor Northam in his
official capacity only, seeking, inter alia, declaratory and injunctive relief. Nine months
later, the district court ruled that Governor Northam was entitled to sovereign immunity
under the Eleventh Amendment and dismissed the proceedings. See Lighthouse
Fellowship Church v. Northam, No. 2:20-cv-00204 (E.D. Va. Jan. 27, 2021), ECF No. 61
(the “Dismissal Order”). Lighthouse has appealed from the Dismissal Order.
The specific executive orders that Lighthouse Church challenged expired in June of
2020, and the state of emergency in Virginia upon which they were predicated ended on
July 1, 2021. The end of the state of emergency terminated all outstanding COVID-19-
related executive orders. Lighthouse nevertheless contends on appeal that these
proceedings are not moot because two exceptions to the mootness doctrine are applicable:
first, the “voluntary cessation” exception and, second, the exception for “wrongs capable
of repetition yet evading review.” As explained below, we are satisfied that neither of
those exceptions applies and that no live controversy exists. Consequently, we vacate the
judgment and remand for dismissal of this action as moot.
3 I.
A.
Lighthouse Church, a subsidiary of a religious organization incorporated in
Maryland, has a small church in Accomack County, Virginia, where it conducts regular
worship services. Lighthouse challenged two of the executive orders issued by Governor
Northam to slow the spread of COVID-19 in Virginia, asserting that they restricted
Lighthouse’s ability to conduct in-person worship services in the early months of the
pandemic. The Complaint alleged that those orders — Executive Order 53 (“EO 53”) and
Executive Order 55 (“EO 55”) — contravened the Constitutions of both the United States
and Virginia, as well as federal and state statutes, because they discriminated against
religious exercise.
On March 12, 2020, Governor Northam, by Executive Order 51 (“EO 51”), declared
a state of emergency in Virginia due to the spread of COVID-19. The declaration of
emergency authorized the Governor to issue executive orders to manage the emergency.
See Va. Code § 44-146.17. To that end, EOs 53 and 55 were then issued to impose various
restrictions on both public and private gatherings. EO 53, issued on March 23, 2020, placed
a 10-person cap on all public and private gatherings and closed most businesses and non-
business entities. EO 53, however, exempted several categories of businesses, including
for example liquor stores — but not churches — from the 10-person cap. EO 55, which
took effect just a week later on March 30, 2020, required “[a]ll individuals in Virginia [to]
4 remain at their place of residence,” with certain exceptions. See J.A. 68. 1 Important here,
EO 55 reiterated that the 10-person cap on gatherings imposed by EO 53 remained in place.
Governor Northam, pursuant to his statutory authority under Virginia Code section
44-146.17(1), specified in EOs 53 and 55 that violations thereof were punishable as a Class
1 misdemeanor. Lighthouse Church contravened EOs 53 and 55 on April 5, 2020, when it
conducted a church service in Accomack County with 16 persons in attendance, six more
than authorized. This church service led to the issuance of a criminal citation against the
pastor, a man of the cloth named Kevin Wilson. 2
B.
Following the April 5, 2020 church service and citation, the evolving public health
situation in Virginia prompted several new executive orders. Shortly after EOs 53 and 55
took effect, Governor Northam and his team developed a phased reopening plan that would
restart activities in Virginia and gradually return the life of the Commonwealth and its
citizens to normal. Each phase of the reopening plan provided specific exceptions for
religious services, and Lighthouse Church does not maintain that any of the executive
orders issued subsequent to EOs 53 and 55 discriminated against religious exercise.
1 Citations herein to “J.A. __” refer to the contents of the Joint Appendix filed by the parties in this appeal. 2 According to Lighthouse Church’s lawyers, Pastor Wilson was accorded a nolle prosequi by the Commonwealth’s Attorney for Accomack County. See Br. of Appellant 11-12. His prosecution was thus terminated.
5 The reopening plan had three phases. Phase One thereof, which began in Accomack
County on May 29, 2020, exempted attendance at religious services from the general 10-
person gathering limit specified in EO 53. During that phase, attendance at religious
services was limited to “50% of the lowest occupancy load on the certificate of occupancy
of the room or facility in which the religious services [were] conducted.” See J.A. 274.
Phase Two of the reopening plan, which began on June 5, 2020, prohibited gatherings of
more than 50 persons, but contained an exception for religious services, allowing them to
continue at 50% capacity. Phase Three, effective on July 1, 2020, exempted religious
services from the otherwise applicable 250-person gathering limit, effectively eliminating
restrictions on the number of individuals that could gather and attend in-person religious
services.
On May 28, 2021, Governor Northam issued Executive Order 79, which ended
nearly all COVID-19-related restrictions in Virginia, including all caps on in-person
gatherings. Finally, on July 1, 2021, the state of emergency in Virginia ended and all
remaining COVID-19-related executive orders were terminated.
C.
Lighthouse Church filed its Complaint against Governor Northam in the Eastern
District of Virginia on April 24, 2020, when EOs 53 and 55 were yet in effect. The
Complaint alleged that EOs 53 and 55 contravened the United States Constitution’s First
Amendment, Fourteenth Amendment, and Guarantee Clause; the federal Religious Land
Use and Institutionalized Persons Act; several provisions of Virginia’s Constitution; and
6 the Virginia Act for Religious Freedom. With the Complaint, Lighthouse filed a motion
for a temporary restraining order (“TRO”) and a preliminary injunction.
On May 1, 2020, the district court entered an order denying the requested TRO and
preliminary injunction. See Lighthouse Fellowship Church v. Northam, No. 2:20-cv-00204
(E.D. Va. May 1, 2020), ECF No. 16. Lighthouse Church then lodged an immediate appeal
from the preliminary injunction denial to this Court. On October 13, 2020, we dismissed
Lighthouse’s appeal as moot. See Lighthouse Fellowship Church v. Northam, No. 20-1515
(4th Cir. Oct. 13, 2020), ECF No. 31. 3
On July 6, 2020, Governor Northam moved in the district court for dismissal of the
Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). By its
Dismissal Order of January 27, 2021, the court ruled in Governor Northam’s favor and
dismissed the Complaint under Rule 12(b)(1), concluding that all claims alleged against
the Governor were barred by the Eleventh Amendment. In dismissing the lawsuit, the court
also denied a flawed request by Lighthouse Church to amend the Complaint. Although the
court invited Lighthouse to file a proper motion to amend, Lighthouse did not do so.
Lighthouse has timely appealed from the Dismissal Order, and we possess jurisdiction
pursuant to 28 U.S.C. § 1291.
3 For reasons explained later, our dismissal on mootness grounds of Lighthouse Church’s appeal from the denial of the preliminary injunction has no bearing on our resolution of this appeal. See infra note 5.
7 II.
On appeal, Lighthouse Church first contends — as it must — that this dispute has
not been mooted by the circumstances now presented. It also maintains that the district
court erred in ruling in its Dismissal Order that Governor Northam was entitled to
sovereign immunity under the Eleventh Amendment. For his part, Governor Northam
disagrees with both of Lighthouse’s appellate contentions, but argues that we should find
mootness without reaching or addressing the immunity issue. We turn immediately to the
mootness question and how it should be resolved. See Biggs v. N. C. Dep’t of Pub. Safety,
953 F.3d 236, 240-41 (4th Cir. 2020).
The mootness doctrine is rooted in the case-or-controversy limitation on federal
judicial power contained in Article III, Section 2 of the Constitution. See Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000). A pending
lawsuit is rendered moot “when the issues presented are no longer ‘live’ or the parties lack
a legally cognizable interest in the outcome.” See Porter v. Clarke, 852 F.3d 358, 363 (4th
Cir. 2017) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). A court ruling in
those circumstances would constitute an impermissible advisory opinion. See Preiser v.
Newkirk, 422 U.S. 395, 401 (1975). As we have explained, a case may become moot after
the entry of the district court’s judgment and while the appeal is pending. See Mellen v.
Bunting, 327 F.3d 355, 363-64 (4th Cir. 2003).
As explained above, both of the executive orders that Lighthouse Church
specifically challenged in its Complaint — EOs 53 and 55 — expired in June of 2020. And
8 all of the COVID-19-related executive orders terminated on July 1, 2021, when the state
of emergency in Virginia ended. It is thus clear to us that these proceedings no longer
present a live controversy, absent some exception to mootness being applicable. We will
thus examine the applicability of the two exceptions asserted by Lighthouse — the
“voluntary cessation” exception and the exception for “wrongs capable of repetition yet
evading review.” 4
Pursuant to the “voluntary cessation” exception, a civil action does not become moot
when a defendant voluntarily ceases its allegedly improper behavior, if there is a reasonable
chance that the behavior will resume. The Supreme Court has recognized that the standard
for determining whether a pending case “has been mooted by the defendant’s voluntary
conduct is stringent: A case might become moot if subsequent events made it absolutely
clear that the allegedly wrongful behavior could not reasonably be expected to recur.” See
Friends of the Earth, 528 U.S. at 189 (internal quotation marks omitted); see also Incumaa
v. Ozmint, 507 F.3d 281, 288 (4th Cir. 2007) (explaining that the voluntary cessation
exception “does not apply where there is no reasonable expectation that the wrong will be
repeated” (internal quotation marks omitted)).
4 Although we use the customary term “exception to mootness” in our analysis, we observe that both exceptions asserted here are not actual exceptions to the Article III case- or-controversy limitation on federal judicial power. Rather, they merely describe limited circumstances where a case is not moot because the plaintiff continues to have a cognizable interest in the outcome that satisfies the Constitution’s case-or-controversy requirement.
9 Although it is not easy to make a sufficient showing that the voluntary cessation
exception does not apply, it is not impossible. In fact, in circumstances where a challenged
governmental regulation or legislation has expired, the inapplicability of the voluntary
cessation exception has been established in several significant situations where mootness
has been found. See, e.g., Trump v. Hawaii, 138 S. Ct. 377, 377 (Mem.) (recognizing that,
because the contested orders suspending entry of aliens and refugees had “expired by their
own terms[,] the appeal no longer present[ed] a live case or controversy” (alteration and
internal quotation marks omitted)); Kremens v. Bartley, 431 U.S. 119, 132 (1977) (ruling
that repeal of statute allowing involuntary commitment of juveniles mooted litigation that
challenged statute); Burke v. Barnes, 479 U.S. 361, 363 (1987) (concluding that expiration
of challenged proposed legislation mooted litigation).
EOs 53 and 55 were terminated more than 17 months ago. And it is compelling that
all COVID-19-related executive orders issued by Governor Northam subsequent to EOs
53 and 55 contained exceptions for religious exercise and have now ended. Lighthouse
Church maintained at oral argument of this appeal, however, that it was under a “constant
threat” of reinstatement by the Governor of the restrictions on religious exercise contained
in EOs 53 and 55. As primary support for that position, Lighthouse relies on the Supreme
Court’s decision late last year in Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S.
Ct. 63 (2020). In that proceeding, the Governor of New York had implemented a color-
coded system, imposing severe restrictions on attendance at religious services in
geographical areas classified as “red” or “orange” zones. Id. at 65-66. When the dispute
reached the Court, the Governor had reclassified the zones where the plaintiff houses of
10 worship were located from “orange” to “yellow” — and the “yellow” zone provided for a
lower level of unchallenged restrictions on worship services. Id. at 68. In those
circumstances, the Court ruled that the dispute was not moot. Id. As the Court explained,
the Governor had regularly “chang[ed] the classification of particular areas without prior
notice. If that occurr[ed] again, the reclassification [would] almost certainly bar
individuals in the affected area from attending services before judicial relief [could] be
obtained.” Id. 5
Consistent with the First Circuit’s observation in a dispute very similar to this one,
we are satisfied that “night-and-day differences separate” the Lighthouse Church’s case
from the dispute before the Supreme Court in Catholic Diocese. See Bos. Bit Labs, Inc. v.
Baker, 11 F.4th 3, 11-12 (1st Cir. 2021) (concluding that challenge to long-expired
COVID-19 restrictions was moot); see also Hawse v. Page, 7 F.4th 685, 692-94 (8th Cir.
2021) (ruling that appellants lacked standing to sue and that their challenge to long-expired
COVID-19 restrictions was moot). That distinction is due to the fact that all executive
orders issued by Governor Northam concerning the COVID-19 pandemic expired when
the state of emergency in Virginia ended on July 1, 2021. With the termination of the state
of emergency, the Governor’s power to issue new executive orders involving COVID-19-
related restrictions was extinguished.
The Catholic Diocese decision is the primary reason our dismissal of Lighthouse 5
Church’s earlier appeal has no bearing on the resolution of this appeal. See supra note 3. If Catholic Diocese had been decided before we disposed of the earlier appeal, it might have altered the result. We thus assess this appeal without regard to our disposition of the earlier appeal.
11 Additionally, the current circumstances are materially different from those present
at the outset of the pandemic, when the Supreme Court rendered its Catholic Diocese
decision. We are now better informed concerning COVID-19. The availability of vaccines
and other measures to combat the virus have led to a significant change in the relevant
circumstances — including the resumption of pre-COVID-19 activities — as evidenced by
the removal of many restrictions. Finally, with the benefit of the Catholic Diocese decision
— unambiguously barring discrimination against religious institutions during the
pandemic without satisfying strict scrutiny review — it is entirely speculative to assert that
Governor Northam will declare a new state of emergency in Virginia and reinstate
restrictions on religious exercise that have not been in place for more than a year.
A finding of mootness in this action is also entirely consistent with our own
precedent. Although we have not heretofore addressed mootness in the specific context of
COVID-19-related restrictions, a recent published decision provides strong support for
Governor Northam. In June of this year, in American Federation of Government
Employees v. Office of Special Counsel, 1 F.4th 180 (4th Cir. 2021), we assessed a First
Amendment challenge to an advisory opinion of the Office of Special Counsel (the “OSC”)
about the Hatch Act’s application to conduct that occurred during the 2020 election. After
the district court ruled — but before the dispute reached this Court — the OSC withdrew
its opinion because the 2020 election was over. Id. at 184. In rejecting the proposition that
the dispute was not moot because the alleged wrong could reoccur, we deemed it
unreasonable to expect a recurrence. As Judge Wilkinson carefully explained, “there [was]
no whiff of any of the opportunism, on the part of the defendant, that typically supports
12 invocations of mootness exceptions where voluntary cessation of the challenged conduct
is at issue.” Id. at 188. Observing that the OSC had withdrawn its guidance because of
changed circumstances, “not with the aim of avoiding judgment in court,” the appeal was
dismissed as moot. Id. Here, the easing of Virginia’s COVID-19-related restrictions
occurred gradually — over several months — as Virginia navigated its way through the
pandemic. And we are satisfied that the gradual easing of restrictions in the
Commonwealth was in response to changed circumstances concerning COVID-19 and not
in response to litigation.
Lighthouse Church does not dispute the legality of any executive order that followed
EOs 53 and 55. To avoid mootness, it instead argues that the entire regime of Governor
Northam’s executive orders discriminated against religious exercise because the regime
permitted the Governor to impose new restrictions at any time. That contention, however,
has no limiting principle. Lighthouse’s contention implies that, absent a change in Virginia
law that would limit the Governor’s emergency powers, this controversy remains live. We
decline to rule that such a change in Virginia law is necessary to moot this dispute. Rather,
it is “absolutely clear” that the challenged restrictions in EOs 53 and 55 cannot be
reasonably expected to be reinstated. See Friends of the Earth, 528 U.S. at 189. 6
6 Our ruling today is also consistent with this Court’s decisions in Pashby v. Delia, 709 F.3d 307 (4th Cir. 2013), and Deal v. Mercer County Board of Education, 911 F.3d 183 (4th Cir. 2018). Lighthouse relies on those decisions for the proposition that, if the government retains authority to resume its behavior, a case is never moot. In both decisions, however, we conducted a factual inquiry into the likelihood of recurrence of the offending behavior and found a recurrence to be likely. That was because the government’s termination of the offending behavior was in response to a lawsuit, and retention of (Continued) 13 C.
We next turn to the exception to mootness for “wrongs capable of repetition yet
evading review.” This exception applies only if “(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.” See
Fed. Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007) (internal
quotation marks omitted). And we have recognized this exception to be “a narrow one,
reserved for ‘exceptional’ circumstances.” See Int’l Bhd. of Teamsters, Loc. Union No.
639 v. Airgas, Inc., 885 F.3d 230, 237 (4th Cir. 2018) (citation omitted). As we have
emphasized, the “party seeking to invoke this exception to the mootness doctrine bears the
burden of showing its application.” See Williams v. Ozmint, 716 F.3d 801, 810 (4th Cir.
2013) (citation omitted).
The first inquiry before us in considering this exception is whether EOs 53 and 55
were inherently limited in duration, which would have prevented them from being fully
litigated prior to their expiration. Notably, the Supreme Court has found a period of as
long as two years too short to complete judicial review in the context of the exception for
wrongs capable of repetition yet evading review. See Kingdomware Techs., Inc. v. United
authority to resume that behavior weighed strongly against a finding of mootness. See Pashby, 709 F.3d at 316; Deal, 911 F.3d at 187, 191-92. Moreover, in the Deal case, the government was “fighting” to resume the offending program, even after its temporary suspension. See 911 F.3d at 192. On the other hand, Governor Northam, having ended the state of emergency in Virginia, cannot issue new COVID-19-related restrictions without first declaring a new state of emergency. And, on this record, the Governor does not seek to reinstate EOs 53 and 55 or anything similar.
14 States, 136 S. Ct. 1969, 1976 (2016). And Lighthouse Church argues that, because the
lifespans of EOs 53 and 55 were about 30 days, those executive orders were inherently
limited in duration. Although Lighthouse has also indicated that it is challenging the entire
longer-lasting regime of Governor Northam’s executive orders — and not just EOs 53 and
55 — we will assume without deciding that the “inherently limited in duration”
requirement has been satisfied.
The second inquiry for this exception — whether there is a reasonable expectation
that Lighthouse Church will again be subjected to the challenged acts — is very similar to
the analysis of the voluntary cessation exception. The Supreme Court has explained that
“a mere physical or theoretical possibility” is insufficient to satisfy this second inquiry.
See Murphy v. Hunt, 455 U.S. 478, 482 (1982). And as we have elaborated, “conjecture
as to the likelihood of repetition has no place in the application of this exceptional and
narrow grant of judicial power to hear cases for which there is in fact a reasonable
expectation of repetition.” See Incumaa, 507 F.3d at 289 (internal quotation marks
omitted). In this situation, there is simply no reasonable expectation that Lighthouse will
again be subjected to executive orders along the lines of EOs 53 and 55, which expired in
June 2020. Governor Northam has a track record which shows that EOs 53 and 55 —
issued at a time of great uncertainty and without the benefit of the Supreme Court’s
decision in Catholic Diocese — will not be reinstated. In the absence of a reasonable
expectation that Lighthouse will be subjected to future restrictions such as those in EOs 53
15 and 55, the asserted exception for wrongs capable of repetition yet evading review does
not apply. As such, Lighthouse’s challenge to EOs 53 and 55 is moot. 7
***
Because the executive orders that Lighthouse Church challenges are no longer in
effect and no exception to mootness is applicable, there is presently no live controversy
between the parties in these proceedings. And because this civil action is moot, we vacate
the district court’s judgment without reaching or addressing the issue concerning Governor
Northam’s entitlement to sovereign immunity.
III.
Pursuant to the foregoing, we vacate and remand for dismissal of this civil action as
moot.
VACATED AND REMANDED
7 Finally, we reject Lighthouse Church’s contention that an as-applied challenge is never moot. In arguing that contention, Lighthouse relies on Green v. City of Raleigh, 523 F.3d 293, 300 (4th Cir. 2008). Its position, however, reveals a misunderstanding of our precedent and the mootness doctrine. In Green, an as-applied challenge to superseded ordinances was not mooted by newly adopted ordinances because the new ordinances were sufficiently similar to the prior ones, not because the plaintiff was pursuing an as-applied rather than a facial challenge. See id.; see also Am. Legion Post 7 of Durham, N.C. v. City of Durham, 239 F.3d 601, 606 (4th Cir. 2001) (ruling that as-applied challenge to superseded ordinance was moot).