Opinion
Civil Action No. 1:20-cv-02362-DDD-NRN
2023-03-22
GRACE BIBLE FELLOWSHIP; and Joey Rhoads, Plaintiffs, v. Jared POLIS, in his official capacity as Governor, State of Colorado; Jill Hunsaker Ryan, in her official capacity as Executive Director, Colorado Department of Health and Environment; and Weld County District Attorney, in his official capacity, Defendants.
J. Brad Bergford, Illumine Legal LLC, Denver, CO, Rebecca R. Messall, Messall Law Firm, LLC, Englewood, CO, for Plaintiffs. Friedrick C. Haines, Grant T. Sullivan, Colorado Attorney General's Office, Denver, CO, for Defendant Jared Polis. Corelle M. Spettigue, Friedrick C. Haines, Ryan K. Lorch, Colorado Attorney General's Office, Denver, CO, for Defendant Jill Hunsaker Ryan. Kaitlin I. Spittell, Matthew Joseph Hegarty, Hall & Evans LLC, Denver, CO, for Defendant Weld County District Attorney.
J. Brad Bergford, Illumine Legal LLC, Denver, CO, Rebecca R. Messall, Messall Law Firm, LLC, Englewood, CO, for Plaintiffs. Friedrick C. Haines, Grant T. Sullivan, Colorado Attorney General's Office, Denver, CO, for Defendant Jared Polis. Corelle M. Spettigue, Friedrick C. Haines, Ryan K. Lorch, Colorado Attorney General's Office, Denver, CO, for Defendant Jill Hunsaker Ryan. Kaitlin I. Spittell, Matthew Joseph Hegarty, Hall & Evans LLC, Denver, CO, for Defendant Weld County District Attorney.
ORDER GRANTING MOTIONS TO DISMISS
Daniel D. Domenico, United States District Judge
This case was originally filed in August 2020, during the height of the COVID-19 pandemic. At that time, the State of Colorado had put in place numerous public-health restrictions on public and private gatherings and operation of businesses. The plaintiffs in this case, the governing body and pastor of a church located in Brighton, Colorado, claimed those restrictions violated their constitutional rights. The plaintiffs' original complaint had some merit, as shown by my order granting in part their motion for a preliminary injunction and the State's subsequent amendment of its public-health orders and withdrawal of its appeal of the preliminary injunction. The State no longer imposes any COVID-19 restrictions on the plaintiffs. But the plaintiffs seek to keep this case alive via an amended complaint when the State (and by extension, local prosecutors) have moved on. There is no longer a case or controversy under Article III of the Constitution, so the plaintiffs' amended complaint must be dismissed for lack of subject-matter jurisdiction. As the prevailing party at the preliminary-injunction stage, the plaintiffs are awarded reasonable attorney fees and costs against the State Defendants in the amount of $118,948.12.
The originally named "State Defendants" were Jared Polis, Jill Hunsaker Ryan, and the Colorado Department of Public Health and Environment. The plaintiffs have since voluntarily dismissed their claims against the public-health department. (Docs. 152, 154.)
Of the original plaintiffs, Pastor Joey Rhoads is the only one who remains. (See Docs. 130, 131, 133, 134.) The withdrawal and substitution of some of the plaintiffs, however, does not alter the analysis or result here. I will use "plaintiffs" in this Order to refer to all of the plaintiffs, past and present.
BACKGROUND
The plaintiffs filed their original complaint on August 9, 2020, followed shortly by a motion for preliminary injunction on August 17, 2020. (Docs. 1, 13.) On October 15, 2020, I granted in part the preliminary-injunction motion. (Doc. 65.) Both the plaintiffs and the State Defendants appealed that order (Docs. 66, 74), and I stayed the case between those parties pending resolution of their interlocutory appeals (Doc. 82).
While the appeals were pending, the Supreme Court issued decisions in Roman Catholic Diocese v. Cuomo, 592 U.S. 14, 141 S. Ct. 63, 208 L.Ed.2d 206 (2020), and Tandon v. Newsom, 593 U.S. 61, 141 S. Ct. 1294, 209 L.Ed.2d 355 (2021). In response, the State Defendants amended their public-health orders and voluntarily dismissed their appeal. (Doc. 96; Doc. 114 at 11.) The plaintiffs' appeal proceeded to disposition by the Tenth Circuit, which found that "[b]ecause the State no longer imposes any COVID-19 restrictions on plaintiffs, all but one of their claims against the State are moot." (Doc. 114 at 26.) The Circuit therefore vacated my interlocutory rulings as to the moot claims and remanded the case with instructions to dismiss those claims without prejudice. (Id. at 26-27.)
After the plaintiffs' petition to the Supreme Court for a writ of certiorari was denied (Docs. 123, 124), I lifted the stay of this case and dismissed the plaintiffs' moot claims as instructed by the Tenth Circuit (Doc. 129). I also granted the plaintiffs leave to file an amended complaint. (Id.) The plaintiffs did so on August 1, 2022, and that amended complaint (Doc. 135) is the subject of this Order. The amended complaint names as defendants Jared Polis, the Governor of Colorado; Jill Hunsaker Ryan, the Executive Director of the Colorado Department of Health and Environment; and the Weld County District Attorney. (Id.)
The plaintiffs take issue with the State's authority to impose any sort of public-health restrictions—e.g., occupancy limitations, social-distancing requirements, and mask-wearing requirements—on houses of worship, and they assert that certain state statutes that authorize the issuance of such public-health orders impermissibly treat secular institutions more favorably than religious ones. (See generally id.) The plaintiffs assert fourteen claims for relief:
(1) the Colorado Disaster Emergency Act ("CDEA"), Colo. Rev. Stat. §§ 24-33.5-701 to 717, which authorizes the Colorado Governor to declare a state of disaster emergency and issue executive orders to combat such emergencies, is unconstitutionally overbroad and violates the plaintiffs' free-speech rights both facially (Claim 1) and as applied (Claim 2);
(2) the CDEA is unconstitutionally vague both facially (Claim 3) and as applied (Claim 4);
(3) the CDEA violates the plaintiffs' free-exercise rights both facially (Claim 5) and as applied (Claim 6);
(4) the CDEA violates the plaintiffs' equal-protection rights both facially (Claim 7) and as applied (Claim 8);
(5) the public-health statutes that govern the powers and duties of the Colorado Department of Health and Environment, Colo. Rev. Stat. §§ 25-1.5-101 and 102, are unconstitutionally overbroad and violate the plaintiffs' free-speech rights both
facially (Claim 9) and as applied (Claim 10);(Id. ¶¶ 46-59.)
(6) the public-health statutes are unconstitutionally vague both facially (Claim 11) and as applied (Claim 12); and
(7) the public-health statutes violate the plaintiffs' equal-protection rights both facially (Claim 13) and as applied (Claim 14).
All three defendants move to dismiss the claims against them. (Docs. 143, 159.) The plaintiffs move for an award of interim attorney fees against the State Defendants pursuant to 42 U.S.C. § 1988, asserting that they are the prevailing party based on their success in obtaining preliminary injunctive relief and the State Defendants' subsequent abandonment of their appeal. (Doc. 116.)
DISCUSSION
I. Motions to Dismiss
A. Applicable Law
"Federal courts do not possess a roving commission to publicly opine on every legal question," even ones involving important legal or constitutional matters. TransUnion LLC v. Ramirez, 594 U.S. 413, 141 S. Ct. 2190, 2203, 210 L.Ed.2d 568 (2021). The federal courts' subject-matter jurisdiction is limited, and among the most foundational limitations is that Article III of the Constitution permits federal courts to decide only "Cases" or "Controversies." U.S. Const. art. III, § 2. "[T]he existence of a live case or controversy is a constitutional prerequisite to federal court jurisdiction." McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996); see also Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) ("The case-or-controversy doctrines state fundamental limits on federal judicial power in our system of government.").
"To qualify as a case fit for federal-court adjudication, 'an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.' " Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). "The doctrines of standing and mootness aim to ensure federal courts stay within Article III's bounds throughout the litigation." Rio Grande Found. v. Oliver, 57 F.4th 1147, 1159-60 (10th Cir. 2023); see also Allen, 468 U.S. at 750, 104 S.Ct. 3315. "Standing concerns whether a plaintiff's action qualifies as a case or controversy when it is filed; mootness ensures it remains one at the time a court renders its decision." Rio Grande Found., 57 F.4th at 1160.
"[T]he irreducible constitutional minimum of standing contains three elements." Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). "First, the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Id. (cleaned up). "Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court." Id. (cleaned up). "Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Id. at 561, 112 S.Ct. 2130 (internal quotation marks omitted).
See also Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41, 57 S.Ct. 461, 81 L.Ed. 617 (1937) (dispute is only cognizable case or controversy if it is both "definite, concrete, and touches on the legal relations of the parties" and "sufficiently immediate and real"); Rezaq v. Nalley, 677 F.3d 1001, 1008 (10th Cir. 2012) (plaintiff seeking injunctive relief must show "ongoing, personal stake in the outcome of the controversy, a likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at law").
"[S]tanding is determined at the time the action is brought, and [courts] generally look to when the complaint was first filed, not to subsequent events." Mink v. Suthers, 482 F.3d 1244, 1253-54 (10th Cir. 2007) (citation omitted). Standing is assessed as of the time of the original complaint, even if the complaint is later amended. S. Utah Wilderness Alliance v. Palma, 707 F.3d 1143, 1153 (10th Cir. 2013); accord Rio Grande Found., 57 F.4th at 1161. But a court must "examine 'the amended complaint in assessing a plaintiff's claims, including the allegations in support of standing.' " S. Utah Wilderness Alliance, 707 F.3d at 1152-53 (quoting Mink, 482 F.3d at 1254). When, as in this case, an amended complaint raises new claims or adds parties that were not present in the original complaint, the time for evaluating standing "is not so clear"; the rule "seems to be that standing is determined at the time the relevant claim is raised or party is joined." Saleh v. Fed. Bureau of Prisons, Nos. 06-cv-01747-PAB-KLM, 07-cv-00021-PAB-KLM, 2009 WL 3158120, at *5 (D. Colo. Sept. 29, 2009); accord Prairie Prot. Colo. v. USDA Aphis Wildlife Servs., No. 19-cv-2537-WJM-KLM, 2020 WL 3469712, at *8 to *9 (D. Colo. June 25, 2020) ("[S]tanding to bring a claim asserted for the first time in an amended complaint must be judged as of the amended complaint.").
"Mootness usually results when a plaintiff has standing at the beginning of a case, but, due to intervening events, loses one of the elements of standing during litigation; thus, courts have sometimes described mootness as 'the doctrine of standing set in a time frame.' " WildEarth Guardians v. Pub. Serv. Co. of Colo., 690 F.3d 1174, 1182 (10th Cir. 2012); see also Smallwood v. Scibana, 227 F. App'x 747, 748 (10th Cir. 2007) ("Mootness is implicated when a case or controversy, originally present, ceases to exist."). Mootness, "though analytically similar to standing," differs in some ways. WildEarth Guardians, 690 F.3d at 1182. As relevant here, "the plaintiff bears the burden of demonstrating standing, [while] the defendant bears the burden of proving mootness." Id. at 1183.
"Both standing and mootness are threshold jurisdictional issues." In re Yellow Cab Co-op. Ass'n, 132 F.3d 591, 594 (10th Cir. 1997). A motion to dismiss for lack of subject-matter jurisdiction generally takes one of two forms: a facial or factual attack. Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). A facial attack challenges the sufficiency of the complaint's factual allegations as to subject-matter jurisdiction, while a factual attack challenges the facts on which subject-matter jurisdiction depends. Id. When reviewing a facial attack on a complaint, a district court must accept the allegations in the complaint as true. Id. at 1002. But when reviewing a factual attack, the court "may not presume the truthfulness of the complaint's factual allegations." Id. at 1003. The court must instead make its own findings as to the relevant jurisdictional facts, and has wide discretion to consider affidavits, documents, and other evidence outside the pleadings. Id.
B. Analysis
1. There is no live case or controversy between the parties, and therefore no subject-matter jurisdiction under Article III.
The plaintiffs' amended complaint seeks (1) declaratory relief "declaring Plaintiffs['] rights under [the] CDEA and the Public Health Statutes," and (2) injunctive relief "prohibiting Defendants . . . from issuing, enforcing, or threatening to enforce against Plaintiffs and other persons any executive orders and/or public health orders issued pursuant to [the] CDEA and the Public Health Statutes." (Doc. 135 at 13.) At the time the amended complaint was filed (and now), there were no "executive orders and/or public health orders issued pursuant to [the] CDEA and the Public Health Statutes" in force to which the plaintiffs object. (See Doc. 155 at 10 ("Grace Bible Fellowship's members were restricted, between March 2020 and June 2021 . . . ."); Doc. 143-1 ¶ 4 (State Defendants "currently impose no COVID-19-related restrictions on Plaintiffs in this case or houses of worship generally"); Doc. 143-2 ¶ 4 (same) see also, e.g., Doc. 135 ¶ 41 (discussing public-health orders in past tense); Doc. 135-10 ¶ 6 (same).)
At the time the original complaint was filed, there were such public-health orders in place, and there was no dispute that the plaintiffs had standing to bring claims against the State Defendants challenging those orders and the state statutes under which they were promulgated. But when the State Defendants amended the relevant public-health orders, the majority of the plaintiffs' original claims became moot. (Doc. 114; see also Doc. 129.) The defendants now argue that the plaintiffs' as-applied claims in the amended complaint are likewise moot (see Doc. 143 at 4-7; Doc. 159 at 4-7), but I do not think that is quite right. Most of the plaintiffs' claims in the in the amended complaint—both facial and as-applied—are asserted for the first time in the amended complaint, which was filed after the challenged government restrictions had ended. The question as to those claims, then, is whether the plaintiffs had standing to bring them at the time the amended complaint was filed.
The only claims in the amended complaint that also appear in the original complaint are the claims against the State Defendants asserting facial and as-applied free-exercise challenges to the CDEA. (Compare Doc. 1 (Claim 3), with Doc. 135 (Claims 5 and 6).) The as-applied challenge is moot, as held by the Tenth Circuit. (Doc. 114.) The Circuit found that the facial challenge was not moot, at least as of the time its order issued. (Doc. 114 at 16.) There is nothing in the Circuit's rather cursory treatment of the mootness question to suggest that it meant to say that any facial challenge the plaintiffs might bring would always present a case or controversy. For the reasons discussed below, I believe the facial free-exercise claim against the State Defendants, like the rest of the plaintiffs' claims, does not currently present a justiciable case or controversy. But to the extent the law-of-the-case doctrine and the mandate rule compel me to hold that claim is not moot, it must be dismissed for failure to state a claim upon which relief can be granted. The CDEA is neutral and generally applicable and survives rational-basis review, and the plaintiffs' amended complaint does not allege that the law is discriminatorily motivated or constitutes an official expression of hostility to religion. (See Doc. 65 at 19-20; Doc. 114 at 18-22.) The Supreme Court's recent decision in Kennedy v. Bremerton School District, 597 U.S. 507, 142 S. Ct. 2407, 213 L.Ed.2d 755 (2022), does not change that conclusion. And the plaintiffs have not pointed to any part of the law that, in the absence of an active public-health order issued by the governor or the public-health department, prohibits any religious conduct or burdens their religious practice in any way.
But whether the case-or-controversy question is phrased in terms of standing or mootness, in order for a justiciable controversy to exist now, the plaintiffs must have suffered in the past, be suffering presently, or be threatened with in the future an actual injury traceable to the defendants that is likely to be redressed by a favorable judicial decision.
a. The Past and Present
The State Defendants did at one time issue public-health orders that, as previously held, likely harmed the plaintiffs and violated their constitutional right to free exercise. But the CDEA and public-health statutes that are the subject of the plaintiffs' amended complaint have not been used to adopt any orders restricting the plaintiffs' religious activities since at least June 2021. (Doc. 155 at 10.) The past harm to the plaintiffs from the State Defendants' now-rescinded public-health orders is not enough to present a live case or controversy now. Damages are the typical remedy for past harms, so where, as here, only prospective relief is at stake, prior injury is not likely to be an adequate basis for a live case or controversy. See Jordan v. Sosa, 654 F.3d 1012, 1019 (10th Cir. 2011) ("Although a plaintiff may present evidence of a past injury to establish standing for retrospective relief, he must demonstrate a continuing injury to establish standing for prospective relief."); PeTA v. Rasmussen, 298 F.3d 1198, 1202-03 (10th Cir. 2002) (event during litigation can "heal" injury and cause plaintiffs to lose standing). The plaintiffs' desire for the "satisfaction of a declaration [they were] wronged" does not create an Article III case or controversy. Bauchman v. W. High Sch., 132 F.3d 542, 548-49 (10th Cir. 1997). And "[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects." O'Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)). A declaration or injunction would not change anything about the defendants' past conduct or do anything more to redress the plaintiffs' past injury than what has already been done by the State Defendants' (semi-voluntary) rescission of their public-health orders.
Nor would a declaration or injunction alter the parties' current actions toward each other. A live case or controversy only exists if a court's decision would "settl[e] some dispute which affects the behavior of the defendant toward the plaintiff." Jordan, 654 F.3d at 1025. A declaration or injunction of the sort requested in the amended complaint, however, would not change anything about the defendants' current behavior. The "mere presence" on the State's books of a statute a plaintiff believes is unconstitutional does not confer standing to challenge it. See Winsness v. Yocom, 433 F.3d 727, 732 (10th Cir. 2006). Of course, a court order declaring the challenged statutes unconstitutional might provide the plaintiffs with some reassurance and the satisfaction of knowing that their legal theories are correct and respected. But that is the definition of an advisory opinion, and "federal courts do not issue advisory opinions." TransUnion, 141 S. Ct. at 2203. While we all have an interest in not having unconstitutional laws on the books,
a plaintiff raising only a generally available grievance about government—claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy.Lujan, 504 U.S. at 573-74, 112 S.Ct. 2130. The Constitution leaves such grievances "for resolution through the political process." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 97 n.2, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).
A live case or controversy therefore does not exist based on any past or presently ongoing injury to the plaintiffs.
b. The Future
If there is no past or present injury that gives rise to a viable case or controversy, what about the future? Preventing harm in the future can be the source of standing in some circumstances. But those circumstances are not present here.
To give rise to standing, an injury must be "actual or imminent." Lujan, 504 U.S. at 560, 112 S.Ct. 2130. As explained, there is no actual, current injury caused by the challenged statutes or the defendants' actions. To the extent the plaintiffs have suffered actual injuries, those injuries are in the past and would not be redressed even if their substantive arguments prevailed. The plaintiffs' concerns about future injury might be redress-able, but any potential future injuries are not imminent; they are instead the sort of "conjectural or hypothetical" injuries that Lujan and its progeny teach are insufficient to confer standing.
The injury-in-fact requirement may be applied "somewhat more leniently" in the First Amendment context, "facilitating pre-enforcement suits." Peck v. McCann, 43 F.4th 1116, 1129 (10th Cir. 2022) (citing Ward v. Utah, 321 F.3d 1263, 1267 (10th Cir. 2003)); see also Mink, 482 F.3d at 1253, Winsness, 433 F.3d at 731. Under this more lenient approach, a plaintiff may show an injury in fact by alleging (a) "an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by statute, and there exists a credible threat of prosecution thereunder," or (b) "a credible threat of future prosecution" plus an "ongoing injury resulting from the statute's chilling effect on his desire to exercise his First Amendment rights." Peck, 43 F.4th at 1129. As the Peck court noted, "though these are listed as two distinct tests in Ward, they overlap and the analysis will be similar under either." Id. at 1129 n.9.
The plaintiffs here have not 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. As the Tenth Circuit explained, it is unreasonable to expect that the defendants will reinstate the challenged restrictions against houses of worship. (Doc. 114 at 9-15; see also Doc. 129 at 3-5.) The chance that the State might do so in response to the COVID-19 pandemic—or that it might impose some other restriction that burdens religious practice in response to some hypothetical future public-health emergency—is "entirely speculative." (Doc. 114 at 14.)
Nothing in the amended complaint supports an inference that a credible threat of prosecution has arisen since the Tenth Circuit issued its order. There are no allegations that the plaintiffs are engaging in, intend to engage in, or are being chilled from engaging in any activity that is currently proscribed by the CDEA, the challenged public-health statutes, or any public-health orders issued pursuant to those laws. The plaintiffs' allegations are based on the theory that the State Defendants could use the challenged laws to adopt orders or regulations that might unconstitutionally infringe on the plaintiffs' protected activities. That is simply not plausible in any relevant way. Comparing the plaintiffs' situation to that in Peck is useful.
In Peck, the court explained that plaintiffs suing for prospective relief based on a law's alleged chilling effect
can satisfy the requirement that their claim of injury be "concrete and particularized" by (1) evidence that in the past they have engaged in the type of [conduct] affected by the challenged government action; (2) affidavits or testimony stating a present desire, though no specific plans, to engage in such [conduct]; and (3) a plausible claim that they presently have no intention to do so because
of a credible threat that the [challenged law] will be enforced.43 F.4th at 1129-30 (quoting Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1088-89 (10th Cir. 2006)). Ms. Peck satisfied those requirements as to one of her claims because (1) she previously disclosed information to a newspaper in apparent violation of the challenged statute; (2) she submitted a sworn declaration stating her desire to make such disclosures to the public and press in the future; and (3) there was a credible threat of enforcement because a judge had issued an order warning her against making prohibited disclosures again, and the state had not disavowed future enforcement. Id. at 1130-33.
Here, by contrast, the amended complaint contains no plausible allegations that the plaintiffs are avoiding engaging in any activity they have previously engaged in based on an objectively justified fear of future enforcement. They rely entirely on the State Defendants' past public-health orders that placed restrictions on houses of worship. But that is insufficient under any of the applicable factors. There is nothing in the CDEA or the challenged public-health statutes that prohibits or restricts the plaintiffs from engaging in religious activities that they are doing, have done, or allege they wish to do. While "past wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury," "they do not confer standing to pursue prospective relief without some credible threat of future injury." Mink, 482 F.3d at 1253. It has been well-established in this case that the State Defendants' past wrongs are not evidence of a credible threat of enforcement of public-health orders that may or may not be issued in the future.
The presence on the State's books of statutes that grant broad authority to the Governor and state bureaucrats to order extraordinary limits on the freedoms of its citizens in an emergency is worth pondering. That these statutes have been used in the recent past to adopt public-health orders that likely discriminated against religious activity is troubling. That the State at one point argued that the federal courts owe near-total deference to its determinations as to what extraordinary measures are warranted, and what counts as emergency that justifies such measures, is even more so.
But at this point, the State has rescinded all such emergency measures. The Tenth Circuit has recognized that the State is unlikely to return to such measures, at least in the face of this Court's prior order and subsequent decisions of the Supreme Court. The plaintiffs here do not allege a credible threat of prosecution or enforcement of any current or future public-health restrictions under the CDEA or challenged public-health statutes. A live case or controversy therefore does not exist based on potential future injury to the plaintiffs.
2. The plaintiffs' arguments to the contrary are unavailing.
The plaintiffs' counterarguments are incorrect. In large part, their arguments rehash those they made as to their original free-exercise claims—they argue that the CDEA and public-health statutes permit the entry of new orders at any time, and that the State Defendants only withdrew the prior orders to avoid review and have not entirely disavowed the possibility of adopting new, similar orders. They also argue that their facial challenges do not need to meet the usual standing requirements otherwise required under Lujan and its progeny.
As explained above, the State Defendants' previous imposition of public-health orders that caused the plaintiffs injury does not suffice to give the plaintiffs standing to pursue prospective relief now that those orders are well in the past. And plaintiffs bringing facial challenges must still show an injury in fact sufficient to satisfy the Article III case-or-controversy requirement, even under the more lenient standards that apply in the First Amendment context. See Ward, 321 F.3d at 1267; D.L.S. v. Utah, 374 F.3d 971, 975-76 (10th Cir. 2004).
The plaintiffs are also incorrect in arguing that a credible threat of enforcement exists unless and until the defendants "foreswear" any future enforcement. "It is not necessary for defendants to refute and eliminate all possible risk that the statute might be enforced to demonstrate a lack of a case or controversy." Mink, 482 F.3d at 1255 (cleaned up). And the State Defendants have affirmed that they have "no plans to impose on Plaintiffs or houses of worship any future restrictions related to the COVID-19 pandemic." (Doc. 143-1 ¶ 4; Doc. 143-2 ¶ 4.) Nor are the plaintiffs correct that the State Defendants' declarations are inadmissible at the motion-to-dismiss stage. A court has wide discretion to consider affidavits, documents, and other evidence outside the pleadings when evaluating a factual challenge to its subject-matter jurisdiction. Holt, 46 F.3d at 1003; see also Mink, 482 F.3d at 1253-55 (citing various cases relying on government officials' assurances regarding their intentions to determine standing questions).
The authorities cited by the plaintiffs do not go as far as they argue. (See Doc. 155 at 10, 12-14, 23-24.) Neither Peck nor Rich's Modern Constitutional Law suggest there is a general exception to Article III standing requirements for First Amendment cases or for overbreadth challenges. Peck, as explained above, simply recognizes that at least in expression cases, a plaintiff can have standing without risking prosecution by actually violating the law in question. But plaintiffs still must show a credible threat of prosecution if they were to violate the law. 43 F.4th at 1129-30. And the "general exception to the law of standing" for overbreadth claims that Rich discusses is an exception to the usual third-party standing rule. (See Doc. 155 at 10.) That exception just means that plaintiffs whose own behavior falls squarely within the core of the law in question can still mount an overbreadth challenge. But such plaintiffs "still must show that they themselves have suffered some cognizable injury from the statute." D.L.S., 374 F.3d at 976. The plaintiffs cite F.E.R. v. Valdez, 58 F.3d 1530, 1533 (10th Cir. 1995), for the proposition that they may continue to pursue declaratory relief for past injuries. But in that case, the plaintiffs also sought nominal damages, which prevented mootness; the plaintiffs here do not assert any claim for damages.
The Tenth Circuit discussed at length the reasons why public-health restrictions similar to those that previously injured the plaintiffs are unlikely to be enacted in the future. Nothing alleged in the amended complaint or anything that has happened since the Circuit's order issued has made future enactment of such restrictions any more likely. If anything, the passage of time has made it more and more clear that the Circuit's prediction was correct. There is no credible threat that the plaintiffs will be subject to restrictions (let alone prosecution) of the sort they contend would violate their constitutional rights. The harm they seek to prevent is thus too conjectural and speculative to present a justiciable a case or controversy. Their claims must therefore be dismissed for lack of subject-matter jurisdiction.
II. Motion for Attorney Fees
The plaintiffs seek an award of "interim attorney fees" as the prevailing party at the preliminary-injunction stage. (Doc. 116.)
A. Applicable Law
"In any action or proceeding to enforce a provision of section[ ] . . . 1983, . . . of this title, . . . the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs . . . ." 42 U.S.C. § 1988(b). "In any fee request under § 1988(b), a claimant must prove two elements: (1) that the claimant was the 'prevailing party' in the proceeding; and (2) that the claimant's fee request is 'reasonable.' " Robinson v. City of Edmond, 160 F.3d 1275, 1280 (10th Cir. 1998). Here, the parties do not dispute that the plaintiffs are "prevailing parties" in light of their success in obtaining preliminary injunctive relief and the fact that the State Defendants ultimately amended their public-health orders and voluntarily dismissed their interlocutory appeal. See Kan. Judicial Watch v. Stout, 653 F.3d 1230, 1235-38 (10th Cir. 2011) (plaintiff that obtains preliminary injunction based on likelihood of success on the merits is prevailing party if events outside plaintiff's control moot the case before final adjudication). They do dispute, however, what amount of attorney fees is "reasonable" in light of the plaintiffs' degree of success.
"To determine the reasonableness of a fee request, a court must begin by calculating the so-called 'lodestar amount' of a fee." Robinson, 160 F.3d at 1281. "The lodestar calculation is the product of the number of attorney hours 'reasonably expended' and a 'reasonable hourly rate.' " Id. "[A] claimant is entitled to the presumption that this lodestar amount reflects a 'reasonable' fee," id., but if "a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount," Hensley v. Eckerhart, 461 U.S. 424, 436, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).
"[T]he extent of a plaintiff's success is a crucial factor in determining the proper amount of an award of attorney's fees under 42 U.S.C. § 1988." Id. at 440, 103 S.Ct. 1933. "A reduced fee award is appropriate if the relief, however significant, is limited in comparison to the scope of the litigation as a whole." Id. "Where the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee." Id. "There is no precise rule or formula for making these determinations. The district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success. The court necessarily has discretion in making this equitable judgment." Id. at 436-37, 103 S.Ct. 1933.
B. Analysis
The plaintiffs have submitted attorney invoices reflecting (with adjustments): 508.7 hours billed from July 6, 2020 through December 14, 2020, at $350 per hour, for a total of $178,045 in fees, plus $251.45 in costs, for a grand total of $178,296.45. (Doc. 169.) The State Defendants do not contest that $350 is a reasonable hourly rate for the plaintiffs' counsel. They do, however, contest the number of attorney hours reasonably billed. The State Defendants argue that (1) the plaintiffs are not entitled to recover fees for work expended on claims unrelated to the one claim on which the plaintiffs were partially successful (i.e., claims other than the plaintiffs' as-applied free-exercise challenge to the CDEA); (2) the plaintiffs are not entitled to recover fees for work expended after partial injunctive relief was granted on October 15, 2020, because the plaintiffs "did not prevail on any claims or legal arguments after that point"; and (3) the plaintiffs' fees should be further reduced "as this Court deems appropriate" to account for the limited degree of the plaintiffs' success in obtaining only part of the injunctive relief they sought. (See generally Doc. 140.)
The plaintiffs' original complaint asserted eleven substantive causes of action, and they sought preliminary injunctive relief based on nine of those, seven of which were asserted against the State Defendants. (See Doc. 65 at 9, 40 n.27.) The plaintiffs obtained relief based on only one of those claims: their as-applied free-exercise challenge to the CDEA. (See id. at 3 (plaintiffs "have not demonstrated a likelihood of success on the merits of most of their asserted claims").) And, they obtained only part of the relief they sought—the plaintiffs sought to enjoin enforcement of "any and all" public-health restrictions the State imposed on houses of worship (see, e.g., Doc. 98 at 2, 23), but I enjoined enforcement of the State Defendants' public-health orders "in relatively narrow part": I prohibited the State from enforcing (1) numerical occupancy limitations for worship services, and (2) the face-mask requirement, to the extent that "the temporary removal of a face covering is necessary for Plaintiffs or their employees, volunteers, or congregants to carry out their religious exercise" (Doc. 65 at 2, 44). Injunctive relief was denied as to "the neutrally applicable rules and prohibitions in [the public-health orders]," including "sanitization requirements, maintain[ing] social distancing between individuals, and not permit[ting] shaking hands." (Id. at 29.)
As to whether it is reasonable for the plaintiffs to recover for hours expended on claims other than their as-applied free-exercise challenge to the CDEA, I agree with the State Defendants that the plaintiffs should not recover for time spent on their claims asserted against the Federal Defendants under the Religious Freedom Restoration Act and Stafford Act, as those claims raised unrelated legal issues against separate defendants based on a separate set of facts. See Jane L. v. Bangerter, 61 F.3d 1505, 1512-13 (10th Cir. 1995) (affirming denial of fees expended on unsuccessful claims that raised unrelated issues). But as to the other claims asserted against the State Defendants on which the plaintiffs were unsuccessful, at least some of them were interrelated with the claim on which the plaintiffs achieved success. See id. (failure on some claims should not preclude full recovery of fees if success was achieved on significant claim based on related legal theories or common core of facts). The plaintiffs' free-exercise challenge under the Colorado Constitution asserted a related legal theory, and their vagueness challenges were based on a common core of facts inasmuch as they necessitated detailed review and scrutiny of the various restrictions imposed by the numerous public-health orders issued by the State Defendants.
As to hours expended after partial injunctive relief was granted on October 15, 2020, while the plaintiffs were not successful in obtaining any further relief after that date, it was reasonable for them to continue to expend attorney time defending the preliminary relief they had obtained. The State Defendants immediately appealed my preliminary-injunction order, and filed motions before this Court and the Tenth Circuit seeking to stay that order. It was reasonable for the plaintiffs to spend attorney time opposing those motions and defending against the State Defendants' interlocutory appeal. Some of the time the plaintiffs spent after that date, though, was not reasonably expended. The hours the plaintiffs spent on their own appeal of my denial of injunctive relief with respect to unrelated claims should not be recoverable. And some of the time the plaintiffs spent defending against the State Defendants' appeal appears to have been unnecessary or excessive. For example, although the State Defendants moved to voluntarily dismiss their appeal on December 8, 2020 and the plaintiffs ultimately did not oppose, their counsel spent 15.1 hours drafting and filing a response brief "objecting to the motion's rationale, while not objecting to a Rule 42(b) dismissal." See (Doc. 169-6 at 1-2); Polis v. Denver Bible Church, No. 20-1377 (10th Cir. filed Oct. 16, 2020), ECF Nos. 10791840, 10793016.
Finally, I agree with the State Defendants that some reduction of the plaintiffs' fee award is warranted to account for the degree of success the plaintiffs achieved even on the one claim on which they were successful. The plaintiffs achieved a significant success by obtaining a preliminary injunction based on the legal conclusion that "normal constitutional scrutiny—even strict scrutiny, where appropriate" applies during a public-health emergency. See (Doc. 65 at 11-19); see also Roman Catholic Diocese, 141 S. Ct. at 68 ("[E]even in a pandemic, the Constitution cannot be put away and forgotten."). The application of normal constitutional scrutiny in this case, however, ultimately resulted in an injunction barring enforcement of only two narrow provisions of the State's public-health orders, which was a far cry from the sweeping injunctive relief that the plaintiffs sought. "A reduced fee award is appropriate if the relief, however significant, is limited in comparison to the scope of the litigation as a whole." Hensley, 461 U.S. at 440, 103 S.Ct. 1933.
Based on my detailed review of the plaintiffs' invoices and after consideration of all the relevant factors, I find that a one-third reduction of the plaintiffs' attorney fees is appropriate to account for attorney time spent on claims wholly unrelated to the claim on which the plaintiffs were successful, and the plaintiffs' limited degree of success with respect to the claim on which they prevailed. See Fox v. Vice, 563 U.S. 826, 838, 131 S.Ct. 2205, 180 L.Ed.2d 45 (2011) ("[T]rial courts need not, and indeed should not, become green-eyeshade accountants. The essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection."); Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1203 (10th Cir. 1986) ("A general reduction of hours claimed in order to achieve what the court determines to be a reasonable number is not an erroneous method, so long as there is sufficient reason for its use . . . . [T]he district court did not err by refusing to isolate and analyze every hour assigned to different tasks . . . and then prescribe task hours which were acceptable."); Degrado v. Jefferson Pilot Fin. Ins. Co., No. 02-cv-01533-WYD-BNB, 2009 WL 1973501, at *9 to *10 (D. Colo. July 6, 2009) (rather than "evaluat[ing] almost every task [to] determine how much time should be deducted," applying 25% across-the-board reduction to account for duplicative or excessive time); Carr v. Fort Morgan School Dist., 4 F. Supp. 2d 998, 1003 (D. Colo. 1998) (15% across-the-board reduction appropriate to account for excessive time). Applying that reduction results in attorney fees of $118,696.67. Adding in the $251.45 in costs that the State Defendants have not contested results in a total award of $118,948.12.
The plaintiffs note that counsel exercised billing judgment by writing off 40.1 hours/$14,035 during the six months at issue; that of two attorneys of record, only one submitted invoices; and that they have not sought to recover fees for the time spent preparing their motion and reply. (Doc. 144 at 6; see also Doc. 169.) I have not reduced the plaintiffs' fees to account for an excessive amount of time spent on any particular task or tasks due to inexperience of counsel, duplication of effort, or the like. Recovery of co-counsel's fees or fees for the time spent preparing the instant motion may or may not be reasonable. But it is the plaintiffs' burden to prove the amount of fees to which they are reasonably entitled, and I cannot evaluate the reasonableness of including or excluding fees that I have not seen.
CONCLUSION
It is ORDERED that:
The State Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint (Doc. 143) is GRANTED;
Defendant Weld County District Attorney's Motion to Dismiss First Amended Complaint (Doc. 159) is GRANTED;
Plaintiffs' First Amended Complaint for Declaratory and Injunctive Relief (Doc. 135) is DISMISSED WITHOUT PREJUDICE;
Plaintiffs' Objection to Magistrate Ruling (Doc. 167) is OVERRULED AS MOOT;
Plaintiffs' Motion for Interim Attorney Fees Against State Defendants (Doc. 116) is GRANTED IN PART. Pursuant to 42 U.S.C. § 1988(b), the plaintiffs are awarded reasonable attorney fees and costs against the State Defendants in the amount of $118,948.12; and
The Clerk of Court is DIRECTED to close this case.