USCA4 Appeal: 23-1887 Doc: 71 Filed: 12/31/2024 Pg: 1 of 21
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23-1887
WEST VIRGINIA PARENTS FOR RELIGIOUS FREEDOM; PASTOR CHRIS FIGARETTI; JUDD UHL, individually and on behalf of their minor children, and on behalf of others similarly situated,
Plaintiffs – Appellants,
and
ANDREW WALDRON,
Plaintiff,
v.
DR. MATTHEW CHRISTIANSEN, in his official capacity as the State Health Officer; JUSTIN DAVIS, in his official capacity as the Interim Commissioner for the Bureau of Public Health,
Defendants – Appellees,
BELINDA MOSS, in her official capacity as the Principal Administrator of Cheat Lake Elementary School; MINDY WILSON, in her official capacity as the Principal Administrator of the Jefferson Elementary Center,
Defendants.
Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. John Preston Bailey, District Judge. (5:23-cv-00158-JPB)
Argued: September 25, 2024 Decided: December 31, 2024 USCA4 Appeal: 23-1887 Doc: 71 Filed: 12/31/2024 Pg: 2 of 21
Before KING, BENJAMIN, and BERNER, Circuit Judges.
Vacated and remanded by published opinion. Judge King wrote the opinion, in which Judge Benjamin joined. Judge Berner wrote a dissenting opinion.
ARGUED: Christopher David Wiest, Covington, Kentucky, for Appellants. Jonathan Zak Ritchie, HISSAM FORMAN DONOVAN RITCHIE PLLC, Charleston, West Virginia, for Appellees. ON BRIEF: Aaron Siri, Elizabeth A. Brehm, Walker Moller, SIRI & GLIMSTAD LLP, New York, New York, for Appellants. Michael B. Hissam, Maureen F. Gleason, HISSAM FORMAN DONOVAN RITCHIE PLLC, Charleston, West Virginia, for Appellees.
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KING, Circuit Judge:
The Plaintiffs herein seek appellate relief from an abstention ruling made against
them in August 2023 in the Northern District of West Virginia. See W. Va. Parents for
Religious Freedom v. Christiansen, 685 F. Supp. 3d 371 (N.D.W.Va. 2023) (the
“Abstention Ruling”). By their Complaint, the Plaintiffs sued under 42 U.S.C. § 1983 and
sought declaratory and injunctive relief against Dr. Matthew Christiansen, the State Health
Officer and Commissioner of the West Virginia Bureau of Public Health (the
“Commissioner”). The Complaint alleges a single First Amendment claim, i.e., that West
Virginia’s mandatory vaccination requirement for children — section 16-3-4 of the West
Virginia Code (the “Vaccination Mandate”) — is unconstitutional under the Free Exercise
Clause of the First Amendment. 1
In its Abstention Ruling, the district court applied the so-called Pullman abstention
doctrine and did not resolve the Free Exercise claim alleged in the Complaint. See R.R.
Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941). As our colleague Judge Niemeyer
recognized recently in Sonda v. W. Va. Oil & Gas Conservation Comm’n, the Pullman
abstention doctrine is described thusly:
[T]he Pullman exception may be applied when there is (1) an unclear issue of state law presented for decision (2) the resolution of which may moot or present in a different posture the federal constitutional issues such that the state law issue is potentially dispositive.
1 The Free Exercise Clause of the First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” U.S. Const. amend. I.
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See 92 F.4th 213, 219 (4th Cir. Jan. 31, 2024) (cleaned up). As explained herein, we are
satisfied that — in these circumstances — the Abstention Ruling was erroneously made,
and we therefore vacate and remand.
I.
A.
Pursuant to West Virginia law, the public school attendance of all children in the
State aged six to seventeen is mandated, with exceptions for private schooling, parochial
schooling, learning pods, microschooling, and home schooling. See W. Va. Code §§ 18-
8-1–1a. In order for the State’s children to attend a public, private, or parochial school,
however, their parents are obliged to comply with the Vaccination Mandate. Pursuant
thereto, those children are required to be immunized against “chickenpox, hepatitis-b,
measles, meningitis, mumps, diphtheria, polio, rubella, tetanus, and whooping cough.” See
W. Va. Code § 16-3-4(b).
The Commissioner is authorized, however, to exempt a child from the Vaccination
Mandate “upon sufficient medical evidence that immunization is contraindicated or there
exists a specific precaution to a particular vaccine.” See W. Va. Code § 16-3-4(h). A
request for an exemption from the Vaccination Mandate must be accompanied by a
certification of a licensed physician “stating that the physical condition of the child is such
that immunization is contraindicated or there exists a specific precaution to a particular
vaccine.” See W. Va. Code § 16-3-4(h)(1). The West Virginia Code does not authorize
the Commissioner to issue an exemption authorized for religious reasons.
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B.
On April 26, 2023, the Plaintiffs filed this lawsuit in the Northern District of West
Virginia. They sued the Commissioner in his official capacities and pleaded their single
claim — that the Vaccination Mandate contravenes the Free Exercise Clause of the First
Amendment. 2 More specifically, the Plaintiffs simply contend that the Vaccination
Mandate is unconstitutional because there is no exemption for religious purposes.
Two days after the Complaint was filed, on April 28, 2023, the Plaintiffs moved for
a preliminary injunction and sought expedited consideration of their § 1983 Free Exercise
claim. The parties promptly submitted supporting and opposing briefs, and the district
court, on May 10, heard oral argument from the lawyers. 3 On May 18, the district court
entered an order denying the preliminary injunction request, ruling that the Plaintiffs had
failed to demonstrate a substantial threat of irreparable injury if an injunction was denied.
See J.A. 210–14. 4 The court explained that the 2022-23 school year was ending soon, and
“[P]laintiffs will not be forced to choose between religious conviction and mandatory
2 Pursuant to § 1983 of Title 42, an individual can sue government officials and others acting “under the color of state law” for a civil rights violation. 3 Two amicus curiae participants — The Center for Rural Health Development, Inc. and the Attorney General of West Virginia — came forth and made submissions in the preliminary injunction proceedings. The Center for Rural Health Department supported the Commissioner, and the Attorney General supported the Plaintiffs. Neither has participated in this appeal. 4 Our citations herein to “J.A. ___” refer to the Joint Appendix filed herein by the parties.
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vaccination for several additional months.” See J.A. 214. The court also established an
expedited briefing schedule for the relevant issues.
Soon thereafter, the Plaintiffs and the Commissioner each moved for summary
judgment. The Plaintiffs contended that the Vaccination Mandate plainly contravenes the
Free Exercise Clause. The Commissioner made three contentions in response, arguing in
what was designated as a cross-motion for summary judgment: (1) that the district court
should abstain from resolving the Free Exercise claim, pursuant to the Pullman abstention
doctrine; (2) that the Plaintiffs had failed to sue the proper State official, were unable to
satisfy the Ex Parte Young exception to sovereign immunity, and that the lack of
redressability undermined Article III standing; and (3) that the Vaccination Mandate is
constitutional and does not contravene the Free Exercise Clause.
The Commissioner’s summary judgment brief advised the district court of a recent
State enactment — called the Equal Protection for Religion Act (the “EPRA”) — that was
passed by the West Virginia legislature in March 2023 and made effective on May 29,
2023. The Commissioner asserted — in arguing for Pullman abstention — that the state
courts should be accorded an initial opportunity to assess how EPRA impacted the
Vaccination Mandate. 5 The Commissioner also pointed out that the Vaccination Mandate
5 The ERPA provides, inter alia, as follows:
Notwithstanding any other provision of law, no state action may . . . [s]ubstantially burden a person’s exercise of religion unless applying the burden to that person’s exercise of religion in a particular situation is (Continued) 6 USCA4 Appeal: 23-1887 Doc: 71 Filed: 12/31/2024 Pg: 7 of 21
had been upheld by our Court several years ago in the face of constitutional challenges,
that is, in Workman v. Mingo Cnty. Bd. of Educ., 419 Fed. App’x 348 (4th Cir. 2011)
(unpublished) (holding that Vaccination Mandate does not contravene, inter alia, Free
Exercise Clause).
By its Abstention Ruling of August 2, 2023, the district court denied the Plaintiffs’
summary judgment request, resolved to abstain from the Free Exercise claim, and did not
reach, address, or resolve the Commissioner’s substantive contentions. The Abstention
Ruling decided that the Pullman abstention doctrine applied to the situation presented and
that a stay of the proceedings was warranted on that basis, stating that an EPRA claim “has
the potential to resolve this issue without this Court having to render an opinion on a
substantial federal constitutional question.” See Abstention Ruling, 685 F. Supp. 3d at 379.
The Abstention Ruling explicitly recited that the court would “abstain from ruling on the
substantive issues presented by this case” and “stay[ed] this matter until such time that the
essential to further a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest.
See W. Va. Code § 35-1A-1(a). EPRA purports to create a cause of action for any “person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened” in violation of the Act. Id. at § 35-1A-1(b)(1). No West Virginia state court has heretofore applied or construed EPRA.
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claims addressed herein are presented to the state courts of West Virginia.” Id. 6 The
Plaintiffs thereupon filed a notice of appeal, seeking reversal of the Abstention Ruling.
In their appellate submissions, the parties each addressed the jurisdictional issue
presented, in that the Abstention Ruling appears to be a non-final interlocutory order. The
Plaintiffs contended that appellate jurisdiction exists under 28 U.S.C. § 1291, in that the
Abstention Ruling placed them “effectively out of court.” Alternatively, the Plaintiffs
argued that appellate jurisdiction exists under the “collateral order doctrine.” The
Commissioner’s brief agreed with the Plaintiffs’ jurisdictional contentions.
Of importance, Judge Niemeyer’s recent Sonda decision has now resolved the
jurisdictional issue in favor of the Plaintiffs. See Sonda v. W. Va. Oil & Gas Conservation
Comm’n, 94 F.4th 213, 218 (4th Cir. Jan. 31, 2024) (recognizing that § 1291 final order
jurisdiction, as well as collateral order jurisdiction, are proper in appeal from stay order
predicated on Pullman abstention). Pursuant to Sonda’s thorough explanation of its
jurisdictional ruling, we possess jurisdiction in this appeal. 7
6 The Abstention Ruling denied the summary judgment request of the Plaintiffs and awarded the abstention request interposed by the Commissioner. The Abstention Ruling was entitled — apparently with a misnomer — as:
Order Denying Plaintiffs’ Motion for Summary Judgment and for Permanent Injunction and Granting Defendant’s Cross-Motion for Summary Judgment.
See Abstention Ruling, 685 F. Supp. 3d at 371 (emphasis added). 7 The Sonda decision was rendered on January 31, 2024, almost six months after the Abstention Ruling. Sonda’s rulings bear substantially on the controlling issues herein, and they constrain our resolution of this appeal.
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II.
We are obliged to review a district court’s Pullman abstention decision for abuse of
discretion. See Richmond, Fredericksburg & Potomac R.R. Co. v. Frost, 4 F.3d 244, 250
(4th Cir. 1993). And an abuse of discretion occurs when the district court is guided by an
erroneous legal principle. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 401–02
(1990). Importantly, however, “there is little or no discretion to abstain in a case which
does not meet traditional abstention requirements.” See Martin v. Stewart, 499 F.3d 360,
363 (4th Cir. 2007) (internal quotation marks omitted). And “[w]hether a case satisfies the
basic requirements of abstention” is a legal question that we review de novo. See Myles
Lumber Co. v. CNA Fin. Corp., 233 F.3d 821, 823 (4th Cir. 2000).
III.
The Plaintiffs pursue three contentions in arguing that the district court abused its
discretion in abstaining under the Pullman abstention doctrine. First, they contend that the
Abstention Ruling fails to satisfy the requirements of Pullman abstention. Second, the
Plaintiffs contend that the Abstention Ruling improperly created a state court exhaustion
requirement — compelling a West Virginia plaintiff pursuing a § 1983 claim under the
Free Exercise Clause to first exhaust that claim in a state court. Third, they contend that
Pullman abstention is not warranted in this situation, where the challenged state law, in
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their view, plainly violates the Free Exercise Clause. As explained herein, we are satisfied
that the Abstention Ruling is fatally flawed.
Put simply, a federal court’s decision to abstain from the exercise of its jurisdiction
is “the exception, not the rule.” See Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 236
(1984) (internal quotations omitted). And as a general proposition, as Judge Niemeyer
emphasized in Sonda, “a federal court, whose jurisdiction has been invoked, must exercise
that jurisdiction and address the matter before it.” See Sonda v. W. Va. Oil and Gas
Conservation Comm’n, 92 F.4th 213, 219 (4th Cir. Jan. 31, 2024) (emphasis in the
original). Indeed, “[t]he Supreme Court has repeatedly instructed that federal courts have
a strict duty to exercise the jurisdiction that is conferred upon them by Congress.” See
Martin v. Stewart, 499 F.3d 360, 363 (4th Cir. 2007) (internal quotation marks omitted).
As Sonda also emphasized, that duty constitutes a “virtually unflagging obligation.” See
92 F.4th at 219 (internal quotation marks omitted).
There are multiple abstention doctrines — including Pullman abstention — that
constitute “extraordinary and narrow exceptions to a federal court’s duty to exercise the
jurisdiction conferred on it.” See Sonda, 92 F.4th at 219 (internal quotation marks omitted).
Again, — repetition sometimes being helpful — the Pullman abstention doctrine only
applies where:
[T]here is (1) an unclear issue of state law presented for decision (2) the resolution of which may moot or present in a different posture the federal constitutional issue such that the state law issue is potentially dispositive.
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Id. (internal quotation marks omitted). As a result, Pullman abstention can only be invoked
to avoid the unnecessary adjudication of a federal constitutional issue and to prevent
friction between federal and state legal principles. See Midkiff, 467 U.S. at 236.
Pullman abstention is typically reserved for a situation where the state law being
presented is unclear and could be interpreted in a way that avoids the federal constitutional
issue. See City of Houston v. Hill, 482 U.S. 451, 467 (1987). And Pullman abstention is
not applicable if the state law is not subject to an interpretation that would render
unnecessary the adjudication of a federal constitutional question. See Midkiff, 467 U.S. at
236 (quoting Harman v. Forssenius, 380 U.S. 528, 535 (1965)) (internal quotation marks
omitted). The Supreme Court has repeatedly emphasized that abstention should only be
invoked in “special circumstances,” after careful consideration of the applicable facts, due
to litigation delays that can be caused by abstention. See Harris Cnty. Comm’rs Ct. v.
Moore, 420 U.S. 77, 83 (1975). And an exercise of caution by a court abstaining in a Free
Exercise claim is particularly important, because the delay may impact the exercise of
religious freedoms. Indeed, the Court has “been particularly reluctant to abstain in cases
involving facial challenges based on the First Amendment.” See City of Houston, 482 U.S.
at 467.
With these authorities in mind, we turn to resolution of this appeal. As the Plaintiffs
correctly contend, the only state law presented for decision here is the Vaccination
Mandate. On the other hand, the only state law identified as being unclear is the recently
adopted EPRA. And the Plaintiffs are not challenging the Vaccination Mandate under
EPRA. Rather, the Plaintiffs pursue their Free Exercise claim solely under the Free
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Exercise Clause. Otherwise stated, they consider and steadfastly maintain that EPRA is
irrelevant.
If the Plaintiffs had deemed it appropriate, they could have sought to pursue a claim
under EPRA. As the Supreme Court has emphasized, however, “abstention cannot be
ordered simply to give state courts the first opportunity to vindicate the federal claim.” See
Zwickler v. Koota, 389 U.S. 241, 251 (1967) (discussing McNeese v. Bd. of Educ., 373 U.S.
668 (1963)). And the Court has also recognized that abstention is not justified when “the
plaintiffs might have sought relief under a similar provision of the state constitution.” See
Examining Bd. of Engr’s, Architects, and Surveyors v. Flores de Otero, 426 U.S. 572, 598
(1976); see also Wisconsin v. Constantineau, 400 U.S. 433, 439 (1971); Midkiff, 467 U.S.
229, 237 n.4.
Finally, the Commissioner argues — perhaps hoping the federal courts set off on a
“wild goose chase” — that abstention under the Pullman doctrine is proper in these
circumstances. But the Pullman abstention doctrine requires that the federal claim
“present” an unclear issue of state law, or that the federal court will have to “interpret an
unclear state law.” See Nivens v. Gilchrist, 444 F.3d 237, 246 (4th Cir. 2006); see also
Sonda, 92 F.4th at 219. Again, EPRA — the Commissioner’s assertedly unclear state law
— is not “presented” as unclear in connection with the Free Exercise claim, and the district
court was not “required” to interpret it. 8
8 Although the Commissioner also asserts that an assessment of strict scrutiny and rational basis standards of review are somehow impacted by EPRA, those assertions are akin to a “red herring.” The West Virginia legislature is not empowered to bind a federal (Continued) 12 USCA4 Appeal: 23-1887 Doc: 71 Filed: 12/31/2024 Pg: 13 of 21
Anticipating that he could receive an adverse decision from us on the Abstention
Ruling, the Commissioner alternatively argued that we should resolve this appeal by
awarding judgment to him based on his contentions regarding Ex Parte Young and Article
III standing. But — as we have emphasized may times — we are a “court of review, not
of first view.” See Moses Enter., LLC v. Lexington Ins. Co., 66 F.4th 523, 529 (4th Cir.
2023) (quoting Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005)). So, we will be content
to leave resolution of the issues concerning Ex Parte Young and Article III standing to the
sound judgment of the district court. As his final alternative, if those contentions fail, the
Commissioner urges that we remand for the district court to resolve the Free Exercise
claim.
In these circumstances, we are satisfied that the district court erred in applying the
Pullman abstention doctrine, and that it abused its discretion in making the Abstention
Ruling. We will therefore vacate and remand for further proceedings. Those proceedings
should include resolution of the Commissioner’s Ex Parte Young and Article III standing
contentions, and, if necessary, the Plaintiffs’ Free Exercise claim. 9
court, and it cannot require us to apply strict scrutiny principles to a federal legal issue. Nor could the West Virginia legislature offer controlling guidance to the federal courts on when or whether strict scrutiny should be applied. See England v. Louisiana State Bd. of Med. Exam’rs, 375 U.S. 411 (1964) (recognizing “the primacy of the federal judiciary in deciding questions of federal law”).
If the district court’s remand proceedings reach the merits of the Free Exercise 9
claim, the court should assess the applicability of our 2011 decision in Workman v. Mingo Cnty. Bd. of Educ., 419 Fed. App’x 348 (4th Cir. 2011) (unpublished). As noted, we have therein already ruled, inter alia, that the Vaccination Mandate does not contravene the Free Exercise Clause. And although that decision was not published, it was unanimously (Continued) 13 USCA4 Appeal: 23-1887 Doc: 71 Filed: 12/31/2024 Pg: 14 of 21
IV.
Pursuant to the foregoing, we vacate the Abstention Ruling and remand for such
other and further proceedings as may be appropriate.
VACATED AND REMANDED
rendered after full briefing and oral argument, and on the basis of Jacobson v. Massachusetts and its progeny. See 197 U.S. 11 (1905).
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BERNER, Circuit Judge, dissenting:
In light of the deference owed to the district court, I would affirm its decision to
abstain. Two conditions must exist for a federal court to invoke Pullman abstention. See
R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941). The doctrine applies only where
“there is (1) an unclear issue of state law presented for decision (2) the resolution of which
may moot or present in a different posture the federal constitutional issue such that the state
law issue is potentially dispositive.” Wise v. Circosta, 978 F.3d 93, 101 (4th Cir. 2020) (en
banc) (citation omitted). Whether a case meets these two basic requirements is reviewed
de novo. See Erie Ins. Exch. v. Md. Ins. Admin., 105 F.4th 145, 149 (4th Cir. 2024). If a
case fulfills both prerequisites, however, “we review the district court’s ultimate decision
to abstain for abuse of discretion.” Id. (internal quotation marks omitted).
Unlike the majority, I believe this case comfortably satisfies both Pullman
prerequisites. Plaintiffs argue that Section 16-3-4 of the West Virginia Code (the
Vaccination Mandate) is unlawful. They seek to challenge the Vaccination Mandate under
the Free Exercise Clause of the United States Constitution. The answer to an unclear
question of West Virginia law, however, may moot their federal constitutional claim or, at
the very least, present their case “in a different posture.” Wise, 978 F.3d at 101. Whether
the Vaccination Mandate violates West Virginia’s Equal Protection for Religion Act (the
EPRA) is an open and fundamentally different question from whether the Vaccination
Mandate violates the Free Exercise Clause. West Virginia state courts’ resolution of the
former may obviate the federal courts’ need to decide the latter.
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This case satisfies the first Pullman requirement because there is “an unclear issue
of state law presented for decision.” Wise, 978 F.3d at 101. No one disputes that the
Vaccination Mandate’s legality under the EPRA is an unsettled question of West Virginia
law. The EPRA establishes that strict scrutiny applies to any state regulation that
substantially burdens religion. W. Va. Code § 35-1A-1. The statute applies
“[n]otwithstanding any other provision of law,” id. § 35-1A-1(a), and Plaintiffs argue that
the Vaccination Mandate substantially burdens religion. Plaintiffs decline to pursue a state
law claim, but the West Virginia Attorney General, writing in support of the Plaintiffs as
amicus curiae before the district court, asserted that the Vaccination Mandate’s lack of a
religious exemption is unlawful under the EPRA. See J.A. 219, 224-25.
In arguing that this case fails to satisfy the first Pullman factor, Plaintiffs misread
the phrase “presented for decision,” Wise, 978 F.3d at 101. According to Plaintiffs, there
cannot be “an unclear issue of state law presented for decision,” id., unless a litigant raises
a state law claim. Plaintiffs contend that “[w]hether or not the [Vaccination Mandate]
violates the EPRA has not been ‘presented for decision’ because it is not and never has
been at issue in this litigation as Plaintiffs have not asked a federal court to interpret that
statute.” Plaintiffs’ Opening Br. 30-31. In Plaintiffs’ view, “[t]he only claim ‘presented for
decision’ below was a federal constitutional claim.” Plaintiffs’ Reply Br. 2.
This cramped reading of the phrase “presented for decision” does not comport with
our precedent. The majority seemingly accepts Plaintiffs’ interpretation, stating that “the
only state law presented for decision here is the Vaccination Mandate.” Maj. Op. 11. Yet
no federal court of appeals, including the Fourth Circuit, has conditioned the
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appropriateness of Pullman abstention on the affirmative invocation of a state law claim.
An issue of state law may be “presented for decision” even where the plaintiff does not
plead a state law claim. In Franklin & Waldron, Inc. v. City of Martinsville, for example,
this court affirmed a district court’s decision to abstain under Pullman even where no
violation of state law was alleged and, indeed, the plaintiff “insist[ed] that relief in the
courts of Virginia [was] precluded.” 493 F.2d 481, 483 (4th Cir. 1974) (Clark, J., sitting
by designation). This court similarly found abstention proper in multiple other instances
where the plaintiffs declined to raise a claim under state law. See Webster v. Perry, 512
F.2d 612 (4th Cir. 1975) (per curiam); Ratcliff v. Buncombe County, 759 F.2d 1183 (4th
Cir. 1985).
Conditioning the availability of Pullman abstention on whether the plaintiff
affirmatively raised a state law claim also defies common sense. As the Second Circuit
explained, “[i]t is no answer to the contention that the district court should have abstained,
that [plaintiffs-appellants] did not raise their state claims in their complaint. [Plaintiffs-
appellants] cannot be allowed to frustrate the policies underlying the doctrine of abstention
by this simple expedient.” Reid v. Bd. of Ed. of City of N.Y., 453 F.2d 238, 243 n.7 (2d Cir.
1971).
After setting aside the EPRA issue as not “presented,” the majority concludes that
this case cannot satisfy the first Pullman prerequisite. It endorses Plaintiffs’ argument that
there is no “unclear issue of state law” because the wording of the Vaccination Mandate is
unambiguous. See Plaintiffs’ Reply Br. 8. This limited inquiry misses the mark. In
determining whether Pullman abstention is appropriate, we are not constrained to
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evaluating only whether the meaning of the challenged law seems “unclear” in isolation.
Rather, the ambiguity may derive from the uncertain relationship between the challenged
provision and another state law. The unclear issue of state law in this case concerns the
relationship between the Vaccination Mandate and the EPRA. The text of the Vaccination
Mandate may be unambiguous, but no West Virginia court has analyzed whether the
Vaccination Mandate, as it applies to people with a religious objection to vaccination,
violates the EPRA. This is an unresolved issue of state law with no clear answer.
In several cases where the meaning of the challenged state law was perfectly clear,
this court and the Supreme Court have found abstention proper because the challenged
law’s relationship with a different state law or constitutional provision was unsettled. In
Ratcliff, for example, we held that the district court should properly have abstained from
hearing a federal constitutional challenge to a North Carolina law because a different
provision of the North Carolina code may have conflicted with that law: “[T]he dual office
holding provision in Chapter 129 may well control . . . because, in North Carolina, a special
and particular statute controls over a statute that is general in nature.” 759 F.2d at 1186.
Similarly, the Supreme Court in Reetz v. Bozanich found abstention appropriate where the
challenged Alaska law, though not facially ambiguous, was potentially invalidated by
“provisions of the Alaska Constitution at issue [that] have never been interpreted by an
Alaska court.” 397 U.S. 82, 86 (1970); see also City of Meridian v. S. Bell Tel. & Tel. Co.,
358 U.S. 639, 641 (1959) (per curiam); Askew v. Hargrave, 401 U.S. 476, 478 (1971) (per
curiam); Harris Cnty. Comm’rs Ct. v. Moore, 420 U.S. 77, 84 (1975) (“[I]n this case, the
uncertain status of local law stems from the unsettled relationship between the state
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constitution and [the challenged] statute.”). Because the relationship between the
Vaccination Mandate and the EPRA is unsettled, this case satisfies the first Pullman
requirement.
This case also meets the second Pullman precondition, which provides that a federal
court should abstain only where “the resolution of [the state law issue] may moot or present
in a different posture the federal constitutional issue such that the state law issue is
potentially dispositive.” Wise, 978 F.3d at 101. There is no requirement that the resolution
of the state law issue necessarily moot the federal constitutional issue. Instead, it is enough
that questions of state law “may dispose of the case and avoid the need for deciding the
constitutional question.” Meredith v. Talbot County, 828 F.2d 228, 231 (4th Cir. 1987). See
also Martin v. Stewart, 499 F.3d 360, 364 (4th Cir. 2007) (stating that “courts may abstain
when the need to decide a federal constitutional question might be avoided.”). In this
instance, it is sufficiently likely that a ruling from a West Virginia state court would render
unnecessary the adjudication of the Free Exercise claim in federal court.
At the very least, adjudication of the state law issue may “present the issue in a
different posture.” Wise, 978 F.3d at 101. The EPRA requires West Virginia courts to apply
strict scrutiny to laws substantially burdening religion, see W. Va. Code § 35-1A-1, but
heightened scrutiny might not apply to Plaintiffs’ Free Exercise claim. As the district court
correctly noted, “the most hotly contested issue for decision posed to this Court is whether
strict scrutiny applies under federal law.” W. Va. Parents for Religious Freedom v.
Christiansen, 685 F. Supp. 3d 371, 378 (N.D. W. Va. 2023). Plaintiffs argue that federal
courts evaluating a Free Exercise claim must also apply strict scrutiny, citing two recent
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rulings by the Supreme Court, Fulton v. City of Philadelphia, 593 U.S. 522 (2021), and
Tandon v. Newsom, 593 U.S. 61 (2021) (per curiam), which Plaintiffs describe as “directly
on point.” Plaintiffs’ Opening Br. 1. This characterization of Fulton and Tandon overstates
their relevance here. All three federal courts of appeals to hear post- Fulton and Tandon
challenges to compulsory vaccination policies similar to the Vaccination Mandate—
regulations that provide for medical exemptions but not religious exemptions—declined to
apply strict scrutiny. See Does 1-6 v. Mills, 16 F.4th 20, 29-32 (1st Cir. 2021); We the
Patriots USA, Inc. v. Conn. Off. of Early Childhood Dev., 76 F.4th 130, 147-54 (2d Cir.
2023); Spivack v. City of Philadelphia, 109 F.4th 158, 173-77 (3d Cir. 2024). At a
minimum, a challenge under the EPRA may “present the issue in a different posture” than
a challenge under the Free Exercise Clause because, under the EPRA, the level of scrutiny
would not be disputed.
The majority points to the Supreme Court’s admonitions that (1) “abstention cannot
be ordered simply to give state courts the first opportunity to vindicate the federal claim,”
Zwickler v. Koota, 389 U.S. 241, 251 (1967), and (2) abstention is not justified when
“plaintiffs might have sought relief under a similar provision of the state constitution,”
Examining Bd. of Eng’rs, Architects, and Surveyors v. Flores de Otero, 426 U.S. 572, 598
(1976) (quoting Harris County, 420 U.S. at 84). Maj. Op. 12. This case brushes up against
neither of those limitations, however. First, abstention was ordered to provide the state
court the initial opportunity to vindicate the state claim. Second, the EPRA and the Free
Exercise Clause are not “similar provision[s].” Flores de Otero, 426 U.S. at 598; compare
U.S. Const. amend. I with W. Va. Code § 35-1A-1.
20 USCA4 Appeal: 23-1887 Doc: 71 Filed: 12/31/2024 Pg: 21 of 21
Because this case satisfies Pullman’s two prerequisites, we should analyze the
district court’s abstention decision solely for abuse of discretion. Erie Ins. Exch., 105 F.4th
at 149. Federal courts should be reluctant to abstain in cases involving facial challenges
under the First Amendment, see Zwickler, 389 U.S. at 252, but “abstention is not always
precluded by a claim of First Amendment privilege.” Pub. Citizen Health Rsch. Grp. v.
Comm’n. on Med. Discipline of Md., 573 F.2d 863, 866 (4th Cir. 1978) (per curiam). The
Supreme Court has found abstention appropriate in several such cases. E.g., Gov’t & Civic
Emps. Org. Comm. v. Windsor, 353 U.S. 364 (1957); Harrison v. NAACP, 360 U.S. 167
(1959); Babbitt v. United Farm Workers Nat’l. Union, 442 U.S. 289 (1979). So too has this
court. In Public Citizen, a case presenting a First Amendment challenge, this court affirmed
the district court’s decision to abstain despite recognizing that “First Amendment claims
do require special attention from a federal court that is considering whether to order
abstention.” 573 F.2d at 865-66. The invocation of the First Amendment does not foreclose
abstention. For these reasons, I cannot conclude that the district court’s use of Pullman
abstention in this case amounted to an abuse of discretion. I respectfully dissent.