Savage v. Mills, 1:20-cv-00165-LEW

478 F.Supp.3d 16

Rick SAVAGE, individually and on behalf of Two Brothers, LLC d/b/a Sunday River Brewing Company, Mike Mercer, James Fahey, and Lindsey Crosby, Plaintiffs,

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

1:20-cv-00165-LEW

United States District Court, D. Maine.

Signed August 7, 2020

John E. Baldacci, Stephen C. Smith, Lipman & Katz, P.A., Augusta, ME, for Plaintiffs.

Christopher C. Taub, Kimberly L. Patwardhan, Office of the Attorney General, Augusta, ME, for Defendant.

ORDER ON DEFENDANT'S MOTION TO DISMISS

Lance E. Walker, UNITED STATES DISTRICT JUDGE

On June 23, 2020, Defendant Janet T. Mills filed a Motion to Dismiss Plaintiffs’ Second Amended Complaint on the grounds that Plaintiffs lack Article III standing and fail to state a claim upon which relief can be granted. Motion to Dismiss (ECF No. 22). For reasons that follow, Defendant's Motion will be GRANTED and this case is DISMISSED.

BACKGROUND

A motion to dismiss challenges the adequacy of the complaint's allegations. Accordingly, I recite the allegations here, along with additional facts pertinent to the motion.¹

Governor Mills began to exercise executive power on March 15, 2020, when she proclaimed a State of Civil Emergency to Protect Public Health in response to the COVID-19 outbreak. Second Amended Complaint (hereinafter "Compl.") ¶ 22. Subsequently, the Governor issued a series of Executive Orders to contain the spread of the virus and protect Maine's health care system.

On March 18, 2020, the Governor issued Executive Order 14 FY 19/20, which required all restaurants and bars statewide to close except for carry out and delivery service, and prohibited gatherings of more than ten people. Compl. ¶ 23. The next week the Governor issued Executive Order 19 FY 19/20, which required all "non-essential" businesses to cease "public facing" activities. Compl. ¶ 24. At all times, non-essential businesses that were not public facing could continue to operate, provided that the workplace could accommodate appropriate social distancing or had 10 or fewer employees. Id. On March 31, 2020, the Governor issued Executive Order 28 FY 19/20, which required people to stay at home except when performing "essential activities" and to "stay 6 feet apart when outside the home." Compl. ¶ 25. On April 3, 2020, the Governor issued Executive Order 34 FY 19/20, which required that "any person, resident or non-resident, traveling into Maine must immediately self-quarantine for 14 days." Compl. ¶ 26.

On April 29, 2020, the Governor issued Executive Order 49 FY 19/20, which extended Orders 14, 19, 28 and 34 through May 31, 2020. Compl. ¶ 27. Executive Order 49 also directed the Commissioner of the Maine Department of Economic and Community Development (DECD) to implement a Restarting Plan, which would "identify businesses and activities where current restrictions may be adjusted to safely allow for more economic and personal activity." Motion to Dismiss, Ex. 6. Under the Restarting Plan, barber shops and hair salons (among other businesses) could open as of May 1, 2020, and restaurants (among other businesses) could open as of June 1, 2020, "provided that they comply with detailed checklists." Compl. ¶¶ 28-29. Additional types of businesses could open on July 1, 2020. Compl. ¶ 30.

Plaintiffs filed suit on May 8, 2020, alleging that the Governor's executive orders negatively affected their respective businesses. By that time, the complete closure of so-called non-essential, public-facing businesses was ended.²

On May 29, 2020, the Governor issued Executive Order 55 FY 19/20. The order, effective May 31, 2020, modified Executive Order 14 by increasing the size of permissible gatherings to 50 people. Motion to Dismiss, Ex. 7. The order further stated:

The distinction between essential and non-essential businesses set forth in Executive Order 19 shall continue to be phased out consistent with the implementation of the Restarting Plan. Any essential or non-essential business not authorized by Executive Order 19 or the Restarting Plan to be open shall continue to comply with pertinent provisions of Executive Order 19 until so authorized. Any business authorized now to be open shall comply with the pertinent COVID-19 Prevention Checklist or other State of Maine Guidance.

Id. The order also allowed people to leave home to access all reopened businesses. Id.

On June 9, 2020, the Governor issued Executive Order 57 FY 19/20. Motion to Dismiss, Ex. 8. The order repealed and replaced Executive Order 34, which had required those entering Maine to self-quarantine for 14 days. Pursuant to Executive Order 57, people entering Maine now must either (1) "[r]eceive a recent negative test for COVID-19 in accordance with standards established by Maine CDC and set forth in the Keep Maine Healthy Plan" or (2) "[q]uarantine for 14 days upon arrival in Maine." Id. However, persons traveling from New Hampshire and Vermont are exempt from these requirements (and thus need not self-quarantine upon arrival in Maine regardless of whether they have a negative COVID-19 test). Id.

Plaintiffs are Maine residents. The named plaintiffs are: (1) Rick Savage, individually and on behalf of Two Brothers, LLC d/b/a Sunday River Brewing Company; (2) Mike Mercer; (3) James Fahey; and (4) Lindsey Crosby. The Plaintiffs also purport to bring this lawsuit as a class action on behalf of "over 20 identified Maine businessowners, businesses, customers, and employees adversely impacted by the Governor's executive orders, the partial shutdown of the State, and the mass quarantine of its citizens." Compl. ¶ 40.

In addition to the foregoing facts, Plaintiffs base their civil action on the following "general allegations":

33. Although the coronavirus is highly contagious, it does not invariably result in COVID-19. For those who do develop COVID-19, the mortality rate is low. As of May 4, 2020, the State reported on its official coronavirus webpage 1226 suspected or confirmed cases of COVID-19, which is roughly 0.09% of the State population. Even for the known fractional percent of those who have developed COVID-19, the State reports a 95% survival rate. As a result, only 0.005% of the State's population has succumbed to the virus.

34. In all likelihood, the survival rate in Maine is far higher. Recent antibody testing conducted in New York State and a study in Los Angeles suggest that millions more have been infected with the coronavirus than previously known, and that the supermajority of those previously infected were either asymptomatic or experienced mild reactions to it. In New York, this new information has dropped the mortality rate to 0.5%—i.e., a survival rate of 99.5%. In Los Angeles, it dropped the mortality rate to 0.1–0.3%—i.e., a survival rate of 99.7–99.9%. There is no reason to believe that Maine is exempt from this good news. As more Maine residents are tested, increases in positive tests will yield a higher survival rate.

35. The number of deaths caused by COVID-19, while unquestionably tragic, is not "unprecedented," as routinely claimed. What is unprecedented is Governor Mills’ response to it.

36. In the late 1960s, the Hong Kong Flu swept across the globe killing more than 1 million people. The CDC estimated that 100,000 people died in the U.S. Maine, like other States, was affected. Governor Kenneth Curtis did not place residents under house arrest or shutdown the economy.

37. Governor Mills repeatedly states that decisions must be made on data. Yet, despite the positive State-specific data, the Governor has tightened restrictions through further executive orders.

38. An economic depression is predictable following the shutdown of civil society caused by the Executive Orders. Businesses around Maine are permanently closing because they cannot pay employees and vendors. More will be forced to permanently close the longer that the Executive Orders and any similarly drafted successor orders are in place.

39. Plaintiffs want to reopen their businesses, but Governor Mills forbids them from doing so under pain of criminal punishment and civil fines. Plaintiffs should not be forced to choose between risking criminal prosecution and economic sanctions on the one hand, or exercising their constitutional rights on the other.

DISCUSSION

Through the Motion to Dismiss, the Governor contends Plaintiffs lack Article III standing and have failed to state a claim for which relief can be granted. When faced with a motion to dismiss on both jurisdictional and merits grounds, "absent good reason to do otherwise," a district court should decide the jurisdictional issue first. Ne. Erectors Ass'n of BTEA v. Sec'y of Labor, Occupational Safety & Health Admin. , 62 F.3d 37, 39 (1st Cir. 1995).

A. STANDING

"[T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III." Lujan v. Defs. of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Article III standing contains three elements:(1) injury-in-fact, (2) causation, and (3) redressability. Id. at 560-61, 112 S.Ct. 2130. See also Susan B. Anthony List v. Driehaus , 573 U.S. 149, 134 S. Ct. 2334, 2341, 189 L.Ed.2d 246 (2014) ("An injury sufficient to satisfy Article III must be concrete and particularized and actual or imminent, not conjectural or hypothetical." (quotation marks omitted)). In addition, "prudential concerns ordinarily require a plaintiff to show that his claim is premised on his own legal rights (as opposed to those of a third party), that his claim is not merely a generalized grievance, and that it falls within the zone of interests protected by the law invoked." Pagán v. Calderón , 448 F.3d 16, 27 (1st Cir. 2006). "The party invoking federal jurisdiction bears the burden of establishing these elements." Lujan , 504 U.S. at 561, 112 S.Ct. 2130. "[E]ach element [of standing] must be supported in the same way as any other matter on which the plaintiff...