Docket No.: CL20-3812
Paul J. Duggan, Esquire Paul Duggan Law 56 West Gay Street, #103 Harrisonburg, Virginia 22802 Calvin C. Brown, Esquire Sandra S. Gregor, Esquire Office of the Attorney General 209 North 9th Street Richmond, Virginia 23219
Paul J. Duggan, Esquire
Paul Duggan Law
56 West Gay Street, #103
Harrisonburg, Virginia 22802 Calvin C. Brown, Esquire
Sandra S. Gregor, Esquire
Office of the Attorney General
209 North 9th Street
Richmond, Virginia 23219 Dear Counsel:
Today the Court rules on the motion for temporary injunction and petition for writ of mandamus filed by Plaintiffs William G. Dillon, Jr. and Tampico Enterprises, Inc. Plaintiffs seek to enjoin Defendants Virginia Governor Ralph S. Northam, State Health Commissioner M. Norman Oliver, and Virginia State Police Superintendent Gary T. Settle (collectively, "the Commonwealth") from enforcing Executive Order 63 ("EO 63"), Executive Order 67 ("EO 67"), Order of Public Health Emergency 5 ("HO 5"), and Order of Public Health Emergency 7 ("HO 7"). Plaintiffs also petition the Court for a writ of mandamus directing Governor Northam to notify Virginians that Plaintiffs are not limited by these orders and that the Commonwealth has no discretion to enforce the orders against Plaintiffs.
In their pleading, Plaintiffs asked the Court to enjoin the Commonwealth from enforcing Executive Order 65 ("EO 65") and Order of Public Health Emergency 6 ("HO 6"). At the July 1, 2020, hearing, the Court granted Plaintiffs leave to orally amend their motion for temporary injunction to enjoin enforcement of EO 67 and HO 7, as those orders rendered EO 65 and HO 6 moot. (Tr. 10-11, 97.)
The Court finds that Plaintiffs failed to prove that they will suffer irreparable injury without the requested temporary injunction, that the requested relief is in the public interest, and that the equities tip in their favor. The Court also finds that issuing a writ of mandamus is inappropriate because promulgation and enforcement of EO 63, EO 67, HO 5, and HO 7 (collectively, the "Contested Orders") are not ministerial acts. The Court therefore DENIES Plaintiffs' motion for temporary injunction and DENIES Plaintiffs' petition for a writ of mandamus.
In late 2019, a novel coronavirus known as COVID-19 began rapidly spreading throughout the world. Derrick Bryson Taylor, A Timeline of the Coronavirus Pandemic, N.Y. Times (July 15, 2020), https://www.nytimes.com/article/coronavirus-timeline.html. On March 7, 2020, Virginia reported its first confirmed case of COVID-19. Va. Dep't Health, First Virginia Case of COVID-19 Confirmed at Fort Belvoir (Mar. 7, 2020), https://www.vdh.virginia.gov/news/2020-news-releases/first-virginia-case-of-covid-19-confirmed-at-fort-belvoir/. Four days later, the World Health Organization declared COVID-19 a pandemic. Timeline of WHO's Response to COVID-19, World Health Organization, https://www.who.int/news-room/detail/29-06-2020-covidtimeline (last updated June 30, 2020). To date, COVID-19 has infected over four million people in the United States, including more than 85,000 Virginians. CDC, United States COVID-19 Cases and Deaths by State, https://www.cdc.gov/covid-data-tracker/index.html#cases (last visited July 29, 2020). During this same time period, the virus has killed almost 150,000 Americans and more than 2,000 Virginians. Id.
Although much remains unknown about COVID-19, public health officials currently believe that it spreads "mainly from person-to-person," especially when people come within six feet of each other. CDC, How COVID-19 Spreads (updated June 16, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html. Even asymptomatic people can spread the disease. Id. To help prevent the disease's spread, the Centers for Disease Control and Prevention recommend that people practice social distancing, wash hands frequently, "routinely clean and disinfect frequently touched surfaces," and wear face coverings. Id. There is no current vaccine or known treatment options to protect against infection from COVID-19. Order of Pub. Health Emergency No. 2 (Mar. 25, 2020).
In response to increasing cases of COVID-19 in Virginia, Governor Ralph Northam declared a State of Emergency on March 12, 2020. Exec. Order No. 51 (Mar. 12, 2020.). Consistent with the advice of health professionals, Governor Northam issued Executive Order 53 on March 23, 2020, which, inter alia, closed "all dining and congregation areas in restaurants, dining establishments, food courts, breweries, microbreweries, distilleries, wineries, tasting rooms, and farmers markets." Exec. Order No. 53 (Mar. 23, 2020). Subsequent Executive Orders, which were issued as the spread of the virus slowed, relaxed these restrictions. See, e.g., Exec. Order No. 61 (May 8, 2020) (allowing, inter alia, restaurants to begin outdoor dining at fifty percent occupancy with parties of up to ten patrons, social distancing, and certain employee facemask requirements); Exec. Order No. 65 (June 2, 2020) (allowing, inter alia, restaurants to host indoor and outdoor dining at fifty percent occupancy with parties of up to fifty patrons, social distancing, and facemask requirements); Exec. Order No. 67 (June 30, 2020) (lifting restrictions in restaurant regarding, inter alia, occupancy and the number of patrons per party but maintaining social distancing and facemasks requirements). The Governor has acknowledged that the "extreme measures" mandated by these orders requires Virginians to make "sacrifices." Exec. Order No. 61. Nevertheless, he stated that these sacrifices have been important "to slow the spread of COVID-19 and "necessary to save lives." Id.
On July 28, 2020, in response to a rapid increase in COVID-19 cases in Hampton Roads, Virginia, the Governor announced additional restrictions on area restaurants that are effective as of July 31, 2010, which include prohibiting on-premises alcohol sales after 10:00 p.m., requiring restaurants to close by midnight, and limiting indoor dining to fifty percent capacity. Exec. Order No. 68 (July 28, 2020).
On May 26, 2020, the Governor issued EO 63, which mandated that individuals wear face coverings while inside most buildings, including "[f]ood and beverage establishments," which the order defines as "restaurants, dining establishments, food courts, breweries, microbreweries, distilleries, wineries, tasting rooms, and farmers markets, when permitted to reopen for indoor dining." Exec. Order No. 63 (May 26, 2020). EO 67, issued on June 30, 2020, removed the prior maximum-capacity limits on restaurants; however, restaurants still must space tables six feet apart and close "[b]ar seats and congregating areas of restaurants . . . except for through-traffic." Exec. Order No. 67. Consistent with EO 63, EO 67 requires restaurant employees "working in customer-facing areas" to "wear face coverings over their nose and mouth at all times." Id. These Executive Orders received separate numbers as "Orders of Public Health Emergency." For example, EO 67 is also known as Order of Public Health Emergency 7.
Dillon is the President and Director of Tampico Enterprises, Inc. ("Tampico"), a Virginia corporation headquartered in the City of Virginia Beach and doing business as Abbey Road Pub & Restaurant ("Abbey Road"). (Am. Compl. ¶¶ 1-2.) The restaurant can seat approximately 240 patrons using 15 bar seats, 45 outdoor seats, and 180 indoor seats. (July 1, 2020, Hr'g Tr. ("Tr.") 20.)
On May 28, 2020, Dillon, pro se, filed a "Complaint, Application for Temporary Injunction, and Petition for Writ of Mandamus" (the "May 28 Pleading") on behalf of Tampico. On June 16, 2020, Paul J. Duggan, Esquire, moved to amend the May 28 Pleading and filed a "Complaint, Application for Temporary Injunction and Declaratory Judgment, Verified Petition for Writ of Mandamus, and Memorandum of Law in Support Thereof" on behalf of both Dillon and Tampico. Because Dillon is not a licensed Virginia attorney, the Court declared the May 28 Complaint a nullity and deemed the June 16 Complaint the initial pleading in this matter. (June 24, 2020, Order.) On June 24, 2020, with leave of Court, Duggan filed an Amended Complaint (the "Complaint") and sought emergency relief in the form of a temporary injunction and writ of mandamus.
The Court presided over a hearing on July 1, 2020 (the "Hearing"). On the morning of the Hearing, the Commonwealth filed "Defendants' Memorandum in Opposition to Temporary Injunction and Writ of Mandamus." At the conclusion of the Hearing, the Court took the matter under advisement and granted Dillon leave to file a response to the Commonwealth's opposition memorandum. (Tr. 97.) Dillon filed his responsive brief on July 22, 2020, and the Commonwealth filed a reply brief on July 24, 2020.
Positions of the Parties
Plaintiffs argue that the Court should grant them a temporary injunction because they satisfy all four temporary injunction requirements. (Am. Compl. ¶¶ 71-167.) The bulk of the Complaint alleges why Plaintiffs believe they will ultimately succeed on the merits at trial. (Id. ¶¶ 71-165.) More specifically, they argue that the Contested Orders (1) were issued in contravention of the Virginia Constitution, (2) violate their right to assemble, particularly because the orders' indefinite nature and disparate treatment of assemblies—at, for example, home improvement stores versus concert venues versus restaurants—have "no logical (much less medical) basis," (3) fail to adhere to the procedural requirements of the Virginia Administrative Process Act ("VAPA"), (4) constitute an unconstitutional delegation of legislative authority to the executive branch, and (5) ignore the public welfare, rendering them void. (Id.)
Plaintiffs articulate three bases to support their claim that they will suffer irreparable harm absent a temporary injunction. First, they claim that "[i]t is exceedingly difficult to calculate the monetary harm suffered by the Plaintiffs and their employees to date and the future harm the Plaintiffs and their employees will suffer." (Id. ¶ 161.) At the Hearing, Plaintiffs expanded on this allegation by arguing that the Contested Orders have resulted in lost sales revenue and profits when compared to 2019; they claim that they cannot easily ascertain "differences in profits" between 2019 and 2020, however. (Tr. 25, 30, 52.) Second, Plaintiffs note that the Commonwealth's ability to assert a sovereign immunity defense would result "in there being no adequate remedy at law." (Am. Compl. ¶ 162.) Third, they argue that the indefinite duration of the Contested Orders might cause the closure of "a large number of restaurants." (Id. ¶ 163.)
Plaintiffs did not address how the Commonwealth's possible assertion of this defense might affect the likelihood-of-success prong of the temporary injunction analysis. When questioned on this at the Hearing, Plaintiffs conceded that arguing that the Commonwealth might successfully assert a sovereign immunity defense cuts against their argument that they will likely succeed on the merits at trial. (Tr. 53.)
Plaintiffs contend that the balance of equities tips in their favor because COVID-19 presents unknown risks to Virginians whereas the Contested Orders cause "definite, concrete, and irreparable harm that will be suffered by the Plaintiffs." (Id. ¶ 164.) Moreover, they note that "[w]hatever the risk of transmission may be, . . . such risk would be borne primarily by persons who choose to accept that risk—i.e. customers and employees of Abbey Road." (Id. ¶ 165.)
Finally, Plaintiffs argue that granting the temporary injunction is in the public interest because "the public interest favors the protection of constitutional liberties from being abridged"; "[i]t is always in the public interest for the Governor to follow the law"; and the "Supreme Court of Virginia has recognized that established industries that provide wholesome foods to supply the public demand, such as restaurants, are in the public interest." (Id. ¶¶ 166-67.)
Plaintiffs also seek a writ of mandamus directing Governor Northam to notify Virginians that Plaintiffs are not limited by the Contested Orders and that the government has no discretion to enforce these orders because they are unconstitutional and ultra vires. (Id. ¶ 168.) Plaintiffs assert that "[s]uch a writ is appropriate where, as here, there is no adequate remedy at law." (Id. ¶ 169.)
The Commonwealth's Position
The Commonwealth counters that Plaintiffs have not satisfied any of the temporary injunction analysis factors. (Defs.' Mem. Opp'n Temp. Inj. & Writ Mandamus 8-21.) More specifically, the Commonwealth argues that Plaintiffs have not suffered irreparable injury because they allege only monetary damages, which "are generally insufficient to establish irreparable harm." (Id. at 10.) Moreover, the Commonwealth highlights that Plaintiffs "cite no authority for the assertion that a defendant's ability to assert defenses to a claim for monetary relief entitles a plaintiff to an injunction." (Id.) In its combined argument regarding balancing the equities and the public interest, the Commonwealth notes that Plaintiffs "do nothing beyond describing economic losses." (Id. at 10-11.) With respect to balancing the equities, the Commonwealth maintains that Plaintiffs' alleged economic losses do not outweigh the Commonwealth's interest in containing the transmission of COVID-19. (Id. at 11.) Finally, the Commonwealth argues that Plaintiffs have not demonstrated the likelihood of succeeding on the merits because (1) the Contested Orders are constitutional and not ultra vires, (2) the VAPA does not apply to the Contested Orders, (3) the Contested Orders do not ignore the public welfare and are not arbitrary or vague, and (4) "nothing in Va. Code § 32.1-13 or § 32.1-20 prohibit[s] the Health Commissioner from issuing emergency orders jointly with the Governor." (Id. at 11-21.)
Regarding Plaintiffs' petition for a writ of mandamus, the Commonwealth asserts that section 44.146 of the Code of Virginia grants the Governor statutory authority to issue executive orders responding to the current COVID-19 pandemic. (Id. at 22.) The Commonwealth also highlights three critical differences between the instant case and Howell v. McAuliffe, which Plaintiffs cite to support their request for a writ of mandamus. First, "unlike in Howell, Governor Northam has not suspended, abrogated, or rewritten any 'general rule of law.'" (Id. (quoting Howell v. McAuliffe, 292 Va. 320, 349, 788 S.E.2d 706, 723 (2016)).) Second, "the Governor's actions do not conflict with any limitation on his authority and were taken pursuant to authority expressly granted to him by the General Assembly and state constitution." (Id. at 22-23.) Third, "there is no 'unbroken historical record' casting doubt on the Governor's particular exercise of authority." (Id. at 23 (quoting Howell, 292 Va. at 341, 788 S.E.2d at 718).) Additionally, the Commonwealth argues that issuing a writ of mandamus "would cripple the Commonwealth's ability to address the ongoing emergency caused by COVID-19" and could potentially cause "catastrophic and permanent harm" to the Commonwealth. (Id. at 21, 23.) At the Hearing, the Commonwealth also urged the Court to deny Plaintiffs' petition for a writ of mandamus because "a [w]rit of [m]andamus only applies to a ministerial duty, not a discretionary duty that requires judgment." (Tr. 87.)
"No temporary injunction shall be awarded unless the court shall be satisfied of the plaintiff's equity." Va. Code § 8.01-628. "A plaintiff seeking a [temporary] injunction must establish [(1)] that he is likely to succeed on the merits, [(2)] that he is likely to suffer irreparable harm in the absence of preliminary relief, [(3)] that the balance of equities tips in his favor, and [(4)] that an injunction is in the public interest." Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). "[A]ll four requirements must be satisfied." The Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 346 (4th Cir. 2009), vacated on other grounds, Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010), aff'd, The Real Truth About Obama, Inc. v. Fed. Election Comm'n, 607 F.3d 355 (4th Cir. 2010) (per curiam).
"A writ of mandamus is an extraordinary remedial process, which is not awarded as a matter of right but in the exercise of sound judicial discretion." Richmond-Greyhound Lines, Inc. v. Davis, 200 Va. 147, 151, 104 S.E.2d 813, 816 (1958). Courts may issue a writ of mandamus "to compel performance of a purely ministerial duty, but it does not lie to compel the performance of a discretionary duty." Bd. of Cty. Supervisors of Prince William Cty. v. Hylton Enters., Inc., 216 Va. 582, 584, 221 S.E.2d 534, 536 (1976). A ministerial act is "one which a person performs in a given state of facts and prescribed manner in obedience to the mandate of legal authority without regard to, or the exercise of, his own judgment upon the propriety of the act being done." Richlands Med. Ass'n v. Commonwealth, 230 Va. 384, 386, 337 S.E.2d 737, 739 (1985) (quoting Dovel v. Bertram, 184 Va. 19, 22, 34 S.E.2d 369, 370 (1945)). Conversely, "'where the official duty in question involves the necessity on the part of the officer of making some investigation, and of examining evidence, and forming his judgment thereon,' mandamus will not lie." Thurston v. Hudgins, 93 Va. 780, 783, 20 S.E. 966, 967-68 (1895) (citations omitted).
The Court has considered the pleadings, evidence and oral arguments presented at the Hearing, and applicable authorities. The Court now rules as follows. A. Dillon Has Failed to Adequately Demonstrate the Necessary Factors for the Requested Temporary Injunction.
1. Virginia's Temporary Injunction Test.
A temporary injunction under Virginia law, like a federal preliminary injunction, is an extraordinary remedy. Levisa Coal Co. v. Consolidation Coal Co., 276 Va. 44, 61, 662 S.E.2d 44, 53 (2008). This form of preliminary relief "allows a court to preserve the status quo between the parties while litigation is ongoing." May v. R.A. Yancey Lumber Corp., 297 Va. 1, 18, 822 S.E.2d 358, 367 (2019). Although the Code of Virginia provides that "[n]o temporary injunction shall be awarded unless the court shall be satisfied of the plaintiff's equity," Va. Code § 8.01- 628, the Virginia General Assembly and Virginia appellate courts have not yet provided any additional guidance regarding how Virginia circuit courts should evaluate motions for temporary injunctions.
In 1988, when evaluating a federal preliminary injunction related to an underlying claim that the defendant had violated a Virginia statute, the U.S. Court of Appeals for the Fourth Circuit opined that "there is no great difference between federal and Virginia standards for preliminary injunctions" and that "[b]oth draw upon the same equitable principles." Capital Tool & Mfg. v. Maschinefabrik Herkules, 837 F.2d 171, 173 (4th Cir. 1988). Since then, many Virginia circuit courts implicitly have relied on the Fourth Circuit's proclamation and have applied federal preliminary injunction law when analyzing Virginia temporary injunctions.
Against a backdrop where virtually every federal circuit court of appeals evaluated preliminary injunctions differently, the United States Supreme Court in 2008 decided Winter v. Natural Resources Defense Council, Inc. In Winter, the Court held that "[a] plaintiff seeking a preliminary injunction must establish [(1)] that he is likely to succeed on the merits, [(2)] that he is likely to suffer irreparable harm in the absence of preliminary relief, [(3)] that the balance of equities tips in his favor, and [(4)] that an injunction is in the public interest." 555 U.S. 7, 20 (2008).
In 2009, the Fourth Circuit decided its first post-Winter preliminary injunction case—The Real Truth About Obama, Inc. v. Federal Election Commission. 575 F.3d 342 (4th Cir. 2009). The Fourth Circuit held that "[b]ecause a preliminary injunction affords, on a temporary basis, the relief that can be granted permanently after trial, the party seeking the preliminary injunction must demonstrate by 'a clear showing' that, among other things, it is likely to succeed on the merits at trial." Id. at 345 (quoting Winter, 555 U.S. at 22). The court then declared that "the Supreme Court articulated clearly what must be shown to obtain a preliminary injunction" and pointed out that "all four requirements must be satisfied." Id. at 346.
Perhaps surprisingly, the various federal circuit courts of appeals did not interpret Winter uniformly. For a description of the various post-Winter approaches adopted, as well as a recommendation on how courts should apply the test for Virginia temporary injunctions, see David W. Lannetti, The "Test"—or Lack Thereof—for Issuance of Virginia Temporary Injunctions: The Current Uncertainty and a Recommended Approach Based on Federal Preliminary Injunction Law, 50 U. Rich. L. Rev. 273, 299-311, 318-22 (2015).
Since the Fourth Circuit decided Real Truth About Obama, most Virginia circuit courts have evaluated temporary injunctions using that court's sequential analysis. See, e.g., Freemason St. Area Ass'n v. City of Norfolk, 100 Va. Cir. 172, 183-84 (Norfolk 2018); CG Riverview, LLC v. 139 Riverview, LLC, 98 Va. Cir. 59, 62 (Norfolk 2018); In re Volkswagen "Clean Diesel" Litigation, 94 Va. Cir. 189, 206 (Fairfax Cty. 2016); Wings, LLC v. Capitol Leather, LLC, 88 Va. Cir. 83, 89 (Fairfax Cty. 2014); McEachin v. Boiling, 84 Va. Cir. 76, 77 (Richmond 2011); Strong Found. Youth Initiative LLC v. Ashford, 2009 Va. Cir. LEXIS 140, at *1 (Richmond, Nov. 4, 2009). Consistent with this approach, the Virginia Civil Benchbook refers to the Winter four-factor test—and the Fourth Circuit's interpretation of the Winter factors as applied in Real Truth About Obama—in the section regarding motions for temporary injunctions. See Virginia Civil Benchbook for Judges and Lawyers § 8.06[b] (2019-20 ed. Matthew Bender).
This is consistent with Virginia circuit courts' prior reliance on another Fourth Circuit decision, Blackwelder Furniture Co. of Statesville, Inc. v. Seilig Manufacturing Co., 550 F.2d 189 (4th Cir. 1977), which Real Truth About Obama overturned. See, e.g., Midgette v. Arlington Props., 83 Va. Cir. 26, 28 (Chesapeake 2011); Owens v. City Council, 75 Va. Cir. 91, 101 (Norfolk 2008); Long & Foster Real Estate, Inc. v. CLPF - King St. Venture, L.P., 74 Va. Cir. 87, 89 (Alexandria 2007); S. Auburn, L.P. v. Old Auburn Mills, L.P., 68 Va. Cir. 145, 145 (Loudoun Cty. 2005); Int'l Limousine Serv. Inc. v. Reston Limousine & Travel Serv., Inc., 68 Va. Cir. 84, 85-86 (Loudoun Cty. 2005); Hardinge, Inc. v. Buhler, 72 Va. Cir. 39, 39 (Amherst Cty. 2006); Wilson v. Henry Cty. Zoning Appeals Bd., 68 Va. Cir. 317, 317-18 (Henry Cty. 2005) (citing Child Evangelism v. Montgomery Cty., 373 F.3d 589, 593 (4th Cir. 2004) and E. Tenn. Nat. Gas Co. v. Sage, 361 F.3d 808, 828 (4th Cir. 2004), which "follow[ed] Blackwelder"); Villalobos v. City of Norfolk, 62 Va. Cir. 158, 158-59 (Norfolk 2003); Democratic Party of Va. v. State Bd. of Elections, 1999 Va. Cir. LEXIS 551, at *4 (Richmond, Oct. 19, 1999); Cubic Toll Sys., Inc. v. Va. Dep't of Transp., 37 Va. Cir. 522, 522 (Fairfax Cty. 1993); In re Smith, 1999 Va. Cir. LEXIS 743, at *5-6 (Loudoun Cty., June 4, 1999); Newell Indus. Corp. v. Lineal Techs., 43 Va. Cir. 412, 413 (Roanoke 1997); MFS Network Techs. v. Commonwealth, 33 Va. Cir. 406, 408-09 (Richmond 1994); Plate v. Kincannon Place Condo. Unit Owners' Ass'n Bd. of Dirs., 30 Va. Cir. 323, 325 (Fairfax Cty. 1993).
In the case before the Court, Plaintiffs have failed to demonstrate the requisite factors to support the Court granting the requested temporary injunction.
2. Plaintiffs failed to demonstrate that they likely will suffer irreparable injury without the requested temporary injunction.
As part of its four-factor analysis, "Winter requires that the plaintiff make a clear showing that it is likely to be irreparably harmed absent preliminary relief." Real Truth About Obama, 575 F.3d at 347 (emphasis added) (citing Winter, 555 U.S. at 19-23). Specifically, the court stated the following:
Indeed, the Court in Winter rejected a standard that allowed the plaintiff to demonstrate only a "possibility" of irreparable harm because that standard was "inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief."Id. at 346 (emphasis added) (citations omitted). When evaluating preliminary relief, the irreparable injury the Court analyzes is the potential harm to the plaintiff—before the trial on the merits—without the preliminary relief. Granting a motion for a temporary injunction implies that judicial intervention will prevent the irreparable injury about which the plaintiff is concerned.
Here, Plaintiffs allege that they will suffer irreparable injury without a temporary injunction because, inter alia, "[i]t is exceedingly difficult to calculate the monetary harm suffered by the Plaintiffs and their employees to date and the future harm the Plaintiffs and their employees will suffer." Plaintiffs have not, however, clearly shown the veracity of this allegation or that, if proven, it would satisfy the irreparable-injury prong of the temporary injunction analysis.
Under well-established equitable principles, the party seeking a temporary injunction ordinarily will not suffer irreparable injury if damages provide full compensation. Levisa Coal Co., 276 Va. at 62, 662 S.E.2d at 54 (holding that "[u]nless the plaintiff can demonstrate . . . that monetary damages would otherwise not make him whole, the court will deny the injunction because the legal remedy is sufficient"); see also Moore v. Steelman, 80 Va. 331, 339 (1885) (holding that the "injury complained of must be such that it is not susceptible to compensation in damages at law" for a party to receive an injunction). Indeed, "[u]nder traditional applications, irreparable injury means that an award of money or monetary damages alone cannot make the [plaintiff] whole." David W. Lannetti & Jennifer L. Eaton, Making the Case to Avoid Entering the eBay Marketplace: A Recommended Analytical Framework for Evaluating Requests for Permanent Injunctions in Virginia, 32 Regent U. L. Rev. 1, 16 (2019-20) (emphasis added).
Under certain circumstances, however, courts have found that difficult-to-calculate damages can constitute an irreparable injury. See, e.g., MicroAire Surgical Instruments, LLC v. Arthrex, Inc., 726 F. Supp. 2d 604, 639 (W.D. Va. 2010) ("[A] showing that monetary damages are difficult to ascertain or inadequate generally supports a finding of irreparable injury."); Black & White Cars, Inc. v. Groome Transp., Inc., 247 Va. 426, 431-32, 442 S.E.2d 391, 395 (1994) (holding that "the difficulty of ascertaining monetary damages with precision . . . have previously met the prerequisites for issuance of an injunction"). That said, a party cannot support its claim that difficult-to-calculate damages will cause irreparable injury with general, unsupported allegations of irreparable injury. See Moore, 80 Va. at 340 ("[T]he facts which show the irreparable nature of the injury must be set out in the bill, a mere general averment is not sufficient."). Some courts have found irreparable injury when the plaintiff demonstrated that it sought to avoid some harm in addition to difficult-to-calculate damages. For instance, in Black & White Cars, Inc. v. Groome Transportation, Inc., the Supreme Court of Virginia found that the plaintiff would suffer irreparable injury because it alleged difficult-to-calculate damages and a desire to avoid a multiplicity of suits. 247 Va. at 431-32, 442 S.E.2d at 395. Further, courts normally rely on the difficulty of ascertaining damages as proof of irreparability only when the damages are inherently difficult to measure, such as when a plaintiff asserts a damages claim based on lost goodwill, damage to reputation, or an attenuated impact on corporate operations or profits. Douglas Laycock & Richard L. Hasen, Modern American Remedies: Cases and Materials 396-97 (5th ed. 2018).
Determining whether a party has satisfied the irreparable-injury prong necessarily requires a fact-intensive inquiry. Safeway Inc. v. CESC Plaza Ltd. P'ship, 261 F. Supp. 2d 439, 470 (E.D. Va. 2003) (noting that, in cases where difficult-to-calculate damages constituted irreparable injury, the court "analyze[d] the specific facts of the case before determining that the loss of future customers or the harm to goodwill [made] damages difficult to ascertain"). For example, in Safeway Inc. v. CESC Plaza Ltd. Partnership, the United States District Court for the Eastern District of Virginia rejected the plaintiff's argument "that money damages are inadequate here because the actual damages are difficult to ascertain" because "[a]bsent any specific, persuasive evidence showing that the damages here will be especially difficult to calculate, or that [the plaintiff] is threatened with a loss of goodwill that is significant but incalculable," the plaintiff is not entitled to injunctive relief. 261 F. Supp. 2d at 469, 471. In arriving at its decision, the court observed that the plaintiff operated a business with "an abundance of sales and profits data available" and did not allege harm to its goodwill or a desire to avoid a multiplicity of suits. Id. at 470 (observing that the Fourth Circuit found that difficult-to-calculate damages were irreparable in cases where the moving party also showed that it based its damages claim on a novel service or harm to goodwill).
The Safeway court based its analysis on two Fourth Circuit cases, Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Operating Co. and Blackwelder Furniture Co. of Statesville, Inc. v. Seilig Manufacturing Co., which established that a plaintiff must either provide evidence of unique circumstances that make past revenue or profits an inadequate measure of financial harm or allege the risk of more indeterminable harm—such as harm to goodwill—in order to demonstrate that difficult-to-calculate damages are irreparable. Id. at 469-72. In Multi-Channel TV, the court held that difficult-to-calculate damages would likely cause the plaintiff irreparable harm because the plaintiff based its expected damages claim on a relatively new and novel service that would not be captured by its historical average revenue. 22 F.3d 546, 552 (4th Cir. 1994), abrogated on other grounds by Winter, 555 U.S. 7. Additionally, the court found that "the threat of a permanent loss of customers and the potential loss of goodwill also support a finding of irreparable harm." Id.
In Blackwelder, the Fourth Circuit held that difficult-to-calculate damages would likely cause the plaintiff irreparable harm because past profits would account for only some of the harm that the plaintiff would suffer without an injunction. 550 F.2d at 196-97 ("[The plaintiff's] past profits on [defendant-manufactured] furniture afford a plausible basis for calculating some of the damages from any wrongful termination. But not all."). The court noted that, in addition to lost profits, the "[w]ord-of-mouth grumbling of customers" about the plaintiff's inability to fill outstanding furniture orders could harm its "general goodwill." Id. at 197. The court deemed such damages "incalculable." Id. ("The harm posed to [the plaintiff's] general goodwill by its inability to fill outstanding and accumulating orders in excess of $15,000 for furniture listed in its catalogues is incalculable[,] not incalculably great or small, just incalculable."). The court therefore found that the plaintiff demonstrated that it would likely suffer irreparable injury absent an injunction. Id.
Here, Plaintiffs have failed to clearly show that they will likely suffer irreparable injury if they are not granted preliminary relief. When the Court repeatedly inquired at the Hearing about whether Plaintiffs' purported financial loss was relevant to irreparability for purposes of a temporary injunction, counsel for Plaintiffs initially responded, "I don't have an answer to that." (Tr. 39-40.) Only later did he suggest that the variation in annual expenses between 2019 and 2020 made damages difficult to ascertain. (Tr. 51-52.) Such variable annual expenses do not, however, substantiate Plaintiffs' claim that it will be difficult to calculate their damages. Indeed, courts regularly use the sort of gross sales and profit data about which Dillon testified, (Tr. 22-25), to calculate damages, see, e.g., Safeway, 261 F. Supp. 2d at 470 (describing how the Court could use sales and profit data to calculate damages). Plaintiffs do no more than make a "general averment" that they will incur difficult-to-calculate damages—and thus will suffer irreparable injury—because their expenses change annually. The Court finds, as the Moore court did, that this "is not sufficient."
In addition to failing to demonstrate why it is difficult to ascertain their damages, Plaintiffs allege almost exclusively economic losses. Unlike the plaintiff in Multi-Channel TV, Plaintiffs do not base their damages claim on a new and novel revenue stream or harm to their business's goodwill. They also do not claim that they will suffer reputational damage in the absence of preliminary relief, like the plaintiff in Blackwelder. And unlike the plaintiff in Black & White Cars, they do not seek an injunction to avoid a multiplicity of suits.
Plaintiffs also claim that failure to comply with EO 63's mask mandate will put them at risk of criminal prosecution. The Court is unaware of any authority holding that the threat of criminal prosecution can satisfy the irreparable-injury prong of the temporary injunction analysis, however. Indeed, the U.S. Supreme Court has held that the imminent threat of criminal prosecution, "even though alleged to be unauthorized and hence unlawful[,] is not alone ground for relief in equity which exerts its extraordinary powers only to prevent irreparable injury to the plaintiff who seeks its aid." Beal v. Mo. Pac. R.R. Corp., 312 U.S. 45, 49 (1941); see also Steffel v. Thompson, 415 U.S. 452, 463 n.12 (1974) ("We note that, in those cases where injunctive relief has been sought to restrain an imminent, but not yet pending, prosecution for past conduct, sufficient injury has not been found to warrant injunctive relief."). Thus, the Court finds that Plaintiffs' potential for criminal prosecution for noncompliance with EO 63, absent a temporary injunction, does not constitute irreparable injury.
The Court acknowledges that Plaintiffs could satisfy the irreparable-injury prong by demonstrating that the failure to grant a temporary injunction would lead to a violation of their constitutional rights. See, e.g., Johnson v. Bergland, 586 F.2d 993, 995 (4th Cir. 1978) ("Violations of first amendment rights constitute per se irreparable injury."). In their pleadings, Plaintiffs argue that the Contested Orders infringe upon their First Amendment right to assemble because the orders could remain in effect indefinitely and because the disparate treatment regarding assemblies at, for example, home improvement stores versus concert venues versus restaurants has "no logical (much less medical) basis." Although the Court recognizes Plaintiffs' concern about the temporal uncertainty of the Contested Orders, it cannot conclude at this time that such an inchoate apprehension sufficiently establishes that Plaintiffs will suffer irreparable injury without a temporary injunction. Moreover, the Court finds that Plaintiffs are ultimately unlikely to succeed on their claim that the Contested Orders infringe upon their right to assemble because, as one court recently noted, the orders are "content neutral" and "justified by the need to slow the spread of an extremely contagious and deadly virus." Lighthouse Fellowship Church v. Northam, No. 2:20cv204, 2020 U.S. Dist. LEXIS 80289, at *37-38 (E.D. Va., May 1, 2020). In other words, the Contested Orders "serve a significant governmental interest, and are narrowly tailored to serve that interest." Id. at *38; see also Tigges v. Northam, No. 3:20-cv-410, 2020 U.S. Dist. LEXIS 131592, at *21 (E.D. Va., July 21, 2020) (finding that EO 67 addresses "a significant governmental interest" and "the Governor's phased approach to lifting restrictions 'indicates narrow tailoring'" (citation omitted)).
At the Hearing, Plaintiffs argued that they "would think that there is a Constitutional freedom I will allow for, that if you are healthy that you shouldn't be required to wear a mask" and that "there is a constitutional freedom in that regard." (Tr. 48.) But Plaintiffs could not cite any authority to support this vague proposition. The Court therefore finds that Plaintiffs have failed to allege—or show—a violation of a cognizable constitutional right to satisfies the irreparable-injury prong.
Plaintiffs also argue that they have satisfied the irreparable-injury prong because the Contested Orders could cause businesses to close permanently. The mere risk of business closings does not automatically satisfy the irreparable injury prong, however. See Safeway, 261 F. Supp. 2d at 470 ("[T]here is nothing in the record to suggest that damages in this case would be difficult to ascertain with reasonable accuracy, whether the breach is shown to reduce store sales or require the store's closing. Accordingly, there is no showing on this ground that monetary damages are inadequate." (emphasis added)). Moreover, Plaintiffs do not allege that the orders at issue will shutter their business. Instead, they claim that the orders might cause other businesses to close. Plaintiffs do not have standing to embrace the speculative injuries that others might suffer to demonstrate that they will suffer irreparable harm, and they have not alleged how other businesses closing will somehow damage them.
Finally, the Court is aware of no authority that supports Plaintiffs' argument that the Commonwealth's potential defenses to their damages claim can establish irreparable injury. Indeed, when specifically asked if they knew of any authority where a potential sovereign-immunity defense to a claim for monetary damages constituted irreparable injury, Plaintiffs conceded that they did not. (Tr. 53.)
Based on the evidence presented to the Court at this early juncture of the case and considering the express language of Winter and its Fourth Circuit progeny, the Court finds that Plaintiffs have failed to demonstrate that they are likely to suffer irreparable harm in the absence of the requested temporary injunction.
3. Plaintiffs failed to demonstrate that the requested temporary injunction is in the public interest.
Even if Plaintiffs had demonstrated irreparable injury, Winter and Real Truth About Obama expressly require that they also demonstrate that, among other factors, the requested temporary injunction is in the public interest, i.e., that the public interest advanced by granting the motion for temporary injunction outweighs the public interest advanced by denying the motion. The U.S. Supreme Court discussed this factor at length in Winter, noting the expansive scope of the related analysis. 555 U.S. at 24-26 (pointing out in a marine environmental case that the public interests "must be weighed against the possible harm to the ecological, scientific, and recreational interests that are legitimately before this Court"). The Court opined that "[i]n exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction." Id. at 24 (emphasis added) (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982)).
The Court evaluates the public interest only between now and the trial on the merits.
On brief, Plaintiffs argue that granting the requested temporary injunction advances the public interest because "the public interest favors the protection of constitutional liberties from being abridged"; "[i]t is always in the public interest for the Governor to follow the law"; and the "Supreme Court of Virginia has recognized that established industries that provide wholesome foods to supply the public demand, such as restaurants, are in the public interest." At the Hearing, Plaintiffs intimated that, in addition, public rights are being infringed upon because their employees are required to wear masks, patronage is limited due to reduced seating stemming from required social distancing, and restaurants may close if there is noncompliance with the ordered restrictions.
The Commonwealth, by contrast, argues that denying the temporary injunction advances the public interest because there is significant interest in and concern for protecting the public from the effects of a potentially deadly disease that spreads rapidly through person-to-person contact. It asserts that, to further this interest, the Contested Orders mandate that Virginians follow guidance from leading public health officials to arrest the spread of COVID-19. The Commonwealth concludes that the public safety risk presented by COVID-19 outweighs the unfettered operation of dining establishments. It contends that stripping the Governor, Health Commissioner, and Police Superintendent of their ability to enforce the Contested Orders could immediately cause serious and permanent harm to the public.
The Court recognizes the public interest in allowing businesses to operate without restrictions and in enabling the public to freely patronize them. It also recognizes that the parties disagree regarding the prognosis of COVID-19, and the Court cannot discount the Commonwealth's dire assessment regarding the necessity of the Contested Orders based on the minimal evidence produced to support Plaintiffs' request for preliminary relief. See Lighthouse Fellowship Church, 2020 U.S. Dist. LEXIS 80289, at *34. (finding that Governor Northam's COVID-19 Orders "serve a substantial governmental interest," namely "the preservation of existing human life"). When the Governor and Health Commissioner issued the Contested Orders, they understood that they were requiring Virginians to make "sacrifices." They nevertheless issued the Contested Orders based on the substantial public health risk posed by the unmitigated spread of COVID-19. Indeed, the Governor and Health Commissioner acknowledged that the orders were "extreme measures . . . necessary to save lives."
Considering the above, the Court finds that Plaintiffs have failed to demonstrate that the requested temporary injunction is in the public interest. The Court notes that, in doing so, it joins other courts that have found that the Contested Orders and their predecessors support the public interest. See Tigges, 2020 U.S. Dist. LEXIS 131592, at *25 (finding that "[t]he public interest in protecting human life—particularly in the face of a global and unpredictable pandemic—would not be served by enjoining state officials from taking executive action designed to slow the spread of COVID-19"); Bareford v. Northam, No. 4:20cv50, at *15 (E.D. Va., May 8, 2020) (citations omitted) (finding that "the public interest factor weighs heavily against the issuance of an injunction" because the "life-or-death" stakes for the Commonwealth's residents outweighed the plaintiff's interest in "'freely mov[ing] about outside of [his home],' attending church services, social functions, political functions, and other events"); Lighthouse Fellowship Church, 2020 U.S. Dist. LEXIS 80289, at *49 (finding that the public interest "in saving human life" outweighed any interest in attending church together); Tolle v. Northam, No. 1:20-cv-363 (LMB/MSN), 2020 WL 1955281, at *1 (E.D. Va., Apr. 8, 2020) (finding that a preliminary injunction enjoining enforcement of the Governor's stay-at-home order, Executive Order 55, would "disserve the public interest, because enabling large groups to gather . . . without practicing social distancing . . . could facilitate the spread of the virus and endanger the lives of many Virginians"); Schilling v. Northam, No. CL20-799, at *6 (Albemarle Cty., July 20, 2020) (finding that plaintiffs challenging EO 63 "failed to establish that an injunction is in the public interest"); Strother v. Northam, No. CL20-260, at *9 (Fauquier Cty., June 29, 2020) (finding that "the interest of the public weighs in favor of allowing the Commonwealth to enforce EO 63); Hall v. Northam, No. CL20-632, at *3 (Culpeper Cty., May 1, 2020) (finding that the plaintiff "failed to establish that an injunction is in the public interest"); Webb v. Northam, No. CL20-1624, at *7 (Alexandria, Apr. 15, 2020) ("The restrictions set forth in the Governor's Order, including restricting all public and private in person gatherings of 10 or more individuals and restricting the number of patrons allowed in restaurants, fitness centers or theaters to 10 patrons or less, and not exempting places of worship or designating places of worship 'essential businesses,' are in direct response to a public health emergency, and in the public interest.").
Although none of these cases bind the Court, the Court finds them persuasive for this proposition.
In consideration of the foregoing, the Court finds that Plaintiffs have not shown that the requested temporary injunction is in the public interest.
4. Plaintiffs failed to demonstrate that the balance of the equities served by the requested temporary injunction tip in their favor.
Winter and Real Truth About Obama also require that Plaintiffs show that the balance of equities tips in their favor. In other words, Plaintiffs must demonstrate that the harm to them before the trial on the merits without the requested preliminary relief is greater than the harm to the Commonwealth during the same time period with the requested relief.
Based on the Court's analysis of irreparability, the harm to Plaintiffs before trial without the requested temporary injunction consists only of economic losses, which admittedly could be significant. Should Plaintiffs ultimately prevail at trial, however, such damages can be remedied with a money judgment. The harm to the Commonwealth with the requested temporary injunction, on the other hand, is much more extreme and, in fact, irreparable. See Tolle, 2020 U.S. Dist. LEXIS 74463, at *1 (noting that "it is no exaggeration to recognize that the stakes for residents of the Commonwealth are life-or-death"). The Court agrees with the following summation recently provided by the U.S. District Court for the Eastern District of Virginia: "Given that no known vaccine or treatment options are available to protect the public against infection from COVID-19, the Commonwealth and its elected officials have an urgent need to act to protect the health and safety of all Virginians." Tigges, 2020 U.S. Dist. LEXIS 131592, at *24-25.
The defendants are responsible for, inter alia, the health and welfare of Virginia and its citizens and therefore have statutory authorization to declare a state of emergency. The Governor is the Director of Emergency Management vested with "emergency powers," Va. Code §§ 44-146.14(a)(2), 44-146.17, and the Health Commissioner is empowered to "meet any emergency or to prevent a potential emergency caused by a disease dangerous to public health, id. § 32.1-42; see also Lighthouse Fellowship Church, 2020 U.S. Dist. LEXIS 80289, at *48 ("The Commonwealth has a responsibility to safeguard the lives of its residents. The Commonwealth has a responsibility to protect frontline healthcare workers from being overwhelmed by more patients than the Virginia health system has the capacity to adequately care for.").
As the Tigges court found, Plaintiffs' "economic loss does not 'outweigh the severe harm [the] defendants would suffer if they could not enforce' the Executive Orders and Orders of Public Health Emergency at issue here." Id. at *24 (quoting Tolle, 2020 U.S. Dist. LEXIS 74463, at *1). The Court further notes that the Commonwealth incrementally relaxed restrictions through subsequent orders as circumstances changed within the Commonwealth; the Court finds that such modifications minimize the economic loss to Plaintiffs and demonstrate that the orders are narrowly tailored.
The Court therefore finds that Plaintiffs have failed to prove that the balance of equities tips in their favor.
5. The Court need not consider whether Plaintiffs are likely to succeed on the merits.
It is well established that a plaintiff seeking a temporary injunction must satisfy all four temporary-injunction factors in order to prevail. Real Truth About Obama, 575 F.3d at 346. The U.S. Court of Appeals for the Fourth Circuit recently held that a district court did not err in denying preliminary injunctive relief without evaluating other factors once it found that the plaintiff failed to prove irreparable injury. Henderson v. Bluefield Hosp. Co., 902 F.3d 432, 439 (4th Cir. 2018). Here, the Court elects not to address the remaining factor—likelihood of success—because Plaintiffs failed to demonstrate irreparable injury before trial, that granting the temporary injunction is in the public interest, and that the balance of equities before trial tips in their favor.
The Court notes that the parties are not yet at issue, and a trial date has not been set. COVID-19 has presented unique challenges, and scientists' understanding of the virus has evolved significantly since its discovery. Great progress apparently is being made toward developing effective treatments and an eventual vaccine. At the same time, the orders issued by the Commonwealth have attempted to respond incrementally as knowledge of the virus has progressed. Predicting the likelihood of success at trial—based on the ever-changing dynamics of the situation—therefore is difficult. Although the Court certainly could engage in that exercise—based on either assuming the status quo or making assumptions regarding, e.g., infection rate, positivity rates, number of deaths, possible mutation of the virus, new protective measures, the availability of effective treatments, the accessibility of a vaccine—it need not do so in light of Plaintiffs' failure to satisfy the other temporary injunction factors.
At the same time, the Court recognizes that other courts have made findings—based on the then-current status of COVID-19 and related governmental orders—that could present significant challenges to Plaintiffs at the eventual trial on the merits. See, e.g., Hall, No. CL20-632, at *2 ("Governor Northam's Executive Orders are consistent with Virginia Code § 44-146.17[,] . . . are not plainly wrong, grossly negligent, executed in bad faith or issued in violation of the United States or Virginia Constitutions, and are consistent with Virginia laws in general."); Schilling, No. CL20-799, at *4 (holding that "requests to enjoin the government's actions" with respect to EO 63 are barred by sovereign immunity); id. at *6 (finding that "the Governor's Executive Orders are consistent with the Virginia Constitution and the Code of Virginia[, and] . . . are not plainly wrong, grossly negligent, executed in bad faith or issued in violation of the United States or Virginia Constitutions, and are consistent with Virginia laws in general"); Strother, No. CL20-260, at *5 (finding that "the Governor's powers do not preclude him from issuing orders requiring face coverings and, in fact, [the Code of Virginia] explicitly anticipates such an event"); id. at *6 (finding the Virginia State Health Commissioner "was within his powers to join in the issuance of EO 63"); id. (finding that "the requirements of EO 63 have been made in good faith and are supported by scientific data"). B. Plaintiffs Have Not Satisfied the Standard for Issuance of a Writ of Mandamus.
Although none of these cases bind the Court, they may ultimately be persuasive. --------
Plaintiffs also petition the Court for a writ of mandamus directing the Governor to notify Virginians that Plaintiffs are not limited by the Contested Orders and that the government has no discretion to enforce these orders against Plaintiffs.
A court cannot grant a petition for a writ of mandamus unless a party seeks to compel performance of a ministerial duty. Hylton Enters., 216 Va. at 584, 221 S.E.2d at 536. Plaintiffs' counsel unequivocally agreed with this proposition at the Hearing. (Tr. 95.) When asked how the Governor, the Health Commissioner, or the Police Superintendent performed a ministerial duty when the Contested Orders were promulgated or enforced, Plaintiffs' counsel conceded, "I don't really have a good response to that." (Tr. 96.) The Court finds that promulgation of the Contested Orders by Governor Northam and enforcement of those orders by the government—including but not limited to the Governor, the Health Commissioner, and the Police Superintendent—involved and will continue to involve discretionary, as opposed to ministerial, acts.
The Court therefore denies Plaintiffs' petition for a writ of mandamus.
The Court appreciates that the Contested Orders impose considerable burdens on Plaintiffs, their employees, and those who patronize their business. The Court also acknowledges the existence of widespread public debate about the best way for the Commonwealth to confront, mitigate, and eventually overcome the threat posed by COVID-19. Courts, however, resolve legal—as opposed to social or political—questions; the other branches of government establish and enforce statutes and policies.
As discussed above, Plaintiffs have failed to demonstrate the legal requirements to obtain a temporary injunction or a writ of mandamus based on what has been presented to the Court. Specifically, Plaintiffs failed to adequately demonstrate that (1) they will suffer irreparable injury in the absence of preliminary relief, (2) granting the requested temporary injunction is in the public interest, or (3) the balance of equities tips in their favor. As such, the Court finds that Plaintiffs cannot prevail on their motion for a temporary injunction. Plaintiffs also cannot prevail on their petition for a writ of mandamus because the Governor, the Health Commissioner, and the Police Superintendent did not perform ministerial acts when promulgating and enforcing the Contested Orders. For these reasons, the Court DENIES Plaintiffs' motion for temporary injunction and DENIES Plaintiffs' petition for a writ of mandamus.
Attached is an Order consistent with the ruling in this letter opinion. Signatures are waived pursuant to Rule 1:13 of the Rules of Supreme Court of Virginia. The parties shall file any objections with the Court within fourteen days.
David W. Lannetti
Judge Designate DWL/mrs