Bayley's Campground, Inc. v. Mills

985 F.3d 153

BAYLEY'S CAMPGROUND, INC., d/b/a Bayley's Camping Resort ; FKT Resort Management, LLC; FKT Bayley Limited Partnership; Curtis Bonnell, Dolores Humiston, and James Boisvert, Plaintiffs, Appellants

v.Janet T. MILLS, in her official capacity as the Governor of the State of Maine, Defendant, Appellee.

No. 20-1559

United States Court of Appeals, First Circuit.

January 19, 2021

Tyler J. Smith, with whom Gene R. Libby, Kennebunk, ME, and Libby O'Brien Kingsley & Champion, LLC, were on brief, for appellants.

Christopher C. Taub, Deputy Attorney General, Chief, Litigation Division, with whom Aaron M. Frey, Attorney General, and Kimberly L. Patwardhan, Assistant Attorney General, were on brief, for appellee.

Before Howard, Chief Judge, Selya and Barron, Circuit Judges.

BARRON, Circuit Judge.

In the spring of 2020, as the United States confronted the COVID-19 pandemic, the Governor of Maine issued an executive order that, with few exceptions, required persons traveling to that state to self-quarantine upon their arrival for a period of fourteen days before venturing out in public. The plaintiffs here -- three individuals who intended to travel from New Hampshire to Maine and certain businesses reliant on out-of-state customers -- filed suit in response. They alleged that the self-quarantine requirement violated their federal constitutional right to interstate travel as well as their federal constitutional right to procedural due process, and they sought a preliminary injunction prohibiting the requirement's enforcement. The District Court rejected the request to issue the preliminary injunction because it determined that the plaintiffs had not met their burden to show that they had a likelihood of success on the merits of their federal constitutional claims. The plaintiffs now appeal the portion of that ruling that concerns the right-to-travel claim, which we affirm, after concluding that the fact that the Governor rescinded the executive order that contains the self-quarantine requirement that is at issue here during the pendency of this appeal and replaced that order with one that imposed a less restrictive self-quarantine requirement does not moot the case.

I.

On April 3, 2020, the Governor issued Executive Order 34 ("EO 34"). Titled "An Order Establishing Quarantine Restrictions on Travelers Arriving in Maine," EO 34 required, with limited exceptions, all persons, "resident or non-resident," who were "traveling into Maine" to "immediately self-quarantine for 14 days" upon their arrival in the state. EO 34 also directed all lodging operations in Maine, including campgrounds, to cease providing services aside from "[h]ousing vulnerable populations," "[p]roviding accommodations for health care workers," furnishing "self-quarantine or self-isolation facilities," or offering additional services pursuant to "verifiable extenuating circumstances." EO 34 provided that it would "be enforced by law enforcement" and that a violation of its terms could "be charged as a Class E crime subject to a penalty of up to six months in jail and a $1,000 fine."

The individual plaintiffs are two New Hampshire residents, Curtis Bonnell and Dolores Humiston, and one Maine resident, James Boisvert. The corporate plaintiffs -- Bayley's Campground, Inc., d/b/a Bayley's Camping Resort; FKT Resort Management, LLC; FKT Bayley Limited Partnership; and DMJ Parks, LLC d/b/a Little Ossipee Campground¹ -- operate campgrounds and related businesses in Maine. Both Bonnell and Humiston are consistent, seasonal patrons of Bayley's Campground.

The plaintiffs filed suit in the federal court for the District of Maine on May 15, 2020, in which they sought declaratory and injunctive relief from EO 34 on right-to-travel and procedural due-process grounds. The plaintiffs concurrently moved for a preliminary injunction.² The complaint alleged, among other things, that the self-quarantine requirement that EO 34 imposed "practically" prevented the three individual plaintiffs from traveling between Maine and New Hampshire "to recreate, associate with friends, visit businesses, and simply take trips." The complaint also alleged that the requirement caused "economic injury" to the corporate plaintiffs due to "a substantial number of cancellations by out-of-state campers who [we]re unable or unwilling to self-quarantine for 14[ ] days upon their arrival to Maine."

The Governor filed an opposition to the preliminary injunction motion on May 25, 2020, and, on May 29, the District Court denied the motion. See Bayley's Campground, Inc. v. Mills, 463 F. Supp. 3d 22, 38 (D. Me. 2020). In so ruling, the District Court agreed with the plaintiffs that EO 34's self-quarantine requirement implicated the federal constitutional right to interstate travel and was subject to strict scrutiny in consequence. Id. at 31-35. But, "at this early stage," the District Court concluded, in light of what the record showed about the Governor's basis for concluding that the self-quarantine requirement would slow the spread of the virus in Maine and protect the state's health care system from being overwhelmed by patients infected with the disease, the plaintiffs had failed to show that their right-to-travel claim regarding the requirement had a likelihood of success on the merits. Id. at 35. On that basis, the District Court denied the requested preliminary relief on that claim.³ Id. at 38.

The plaintiffs filed this interlocutory appeal on June 1, 2020, in which they challenged that ruling, and they also moved at that time for an injunction against the self-quarantine requirement pending appeal. On June 25, 2020, a panel of this Court denied the plaintiffs' motion. An expedited briefing schedule was set.

Shortly after the plaintiffs filed their notice of appeal, on June 9, 2020, the Governor rescinded EO 34 in its entirety and replaced it with Executive Order 57 ("EO 57"). The new executive order contained a 14-day self-quarantine requirement that was identical to EO 34's save for additional exceptions that restricted its scope. As relevant here, EO 57, unlike EO 34, exempted from the requirement to self-quarantine all persons who (1) "[r]eceive[d] a recent negative test for COVID-19 in accordance with standards established by" the Maine Center for Disease Control and Prevention ("Maine CDC"), or (2) were "residents of New Hampshire and Vermont, or ... Maine residents returning from travel to New Hampshire and Vermont." EO 57 also permitted lodging operations, including campgrounds, to offer normal services to persons in compliance with EO 57 -- but tasked such operations with collecting "a complete certificate stating compliance with this Order from each individual subject to [the self-quarantine] requirement as a prerequisite to check-in."

In the wake of EO 57, the parties addressed in their briefing to us whether the plaintiffs' request for a preliminary injunction to prohibit the enforcement of EO 34's self-quarantine requirement on right-to-travel grounds is moot. We begin our analysis with this threshold jurisdictional question, which concerns whether the parties' dispute over the plaintiffs' request for injunctive relief from the now-rescinded requirement from EO 34 presents a "case or controversy" within the meaning of Article III of the federal Constitution. See U.S. Const. Art. III § 2 cl. 1 ; Redfern v. Napolitano, 727 F.3d 77, 82 (1st Cir. 2013).

II.

"[A] case is moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome. Another way of putting this is that a case is moot when the court cannot give any effectual relief to the potentially prevailing party." Town of Portsmouth v. Lewis, 813 F.3d 54, 58 (1st Cir. 2016) (quoting Am. C.L. Union of Mass. ("ACLUM") v. U.S. Conf. of Cath. Bishops, 705 F.3d 44, 52 (1st Cir. 2013) ).

The plaintiffs contend that, even though EO 34 has been superseded by EO 57, their request for injunctive relief from the self-quarantine requirement is not moot because it pertains to an executive action that the Governor voluntarily rescinded and could unilaterally reimpose. See Roman Cath. Diocese of Brooklyn v. Cuomo, ––– U.S. ––––, 141 S. Ct. 63, 68, ––– L.Ed.2d –––– (2020) (per curiam); City of Mesquite v. Aladdin's Castle, 455 U.S. 283, 289, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982). We agree.

To be sure, nothing in the record suggests that the Governor rescinded EO 34 for litigation-related reasons rather than to account for changing conditions owing to the course of the virus itself. Cf. Ne. Fla. Chapter of Assoc. Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 661-62, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993) (explaining that rescinding executive action for litigation reasons does not necessarily moot a challenge to it). Indeed, any decision by the Governor to issue an executive order that imposes the same requirement to self-quarantine that EO 34 imposed would most likely be predicated on at least somewhat different facts and considerations. The dynamic nature of both the virus that has given rise to this pandemic and the public health response to it all but ensures that would be so, just as the dynamic nature of both the virus and the response appears to explain why EO 34 was rescinded in favor of EO 57.

Against this background, there is a question whether the issues presented by the plaintiffs' request for relief from EO 34's self-quarantine requirement -- given that it has been rescinded -- could recur. See Trinity Lutheran Church of Columbia, Inc. v. Comer, ––– U.S. ––––, 137 S. Ct. 2012, 2019 n.1, 198 L.Ed.2d 551 (2017) ; Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). But, the Governor has not denied that a spike in the spread of the virus in Maine could lead her to impose a self-quarantine requirement just as strict as EO 34's. Thus, we cannot say that the Governor has carried "the formidable burden" that she ...