COVID-19 executive orders are upheld

Virginia Lawyers Weekly//August 24, 2020

COVID-19 executive orders are upheld

Virginia Lawyers Weekly//August 24, 2020

Plaintiffs are denied injunctive and mandamus relief in this challenge to executive orders issued in response to the COVID-19 pandemic.

Plaintiffs have not demonstrated that they will suffer irreparable harm without an injunction, or that a temporary injunction is in the public interest. Further, the equities do not tip in plaintiffs’ favor. As a result, the court will not reach the issue of whether plaintiffs are likely to succeed on the merits.

And, because issuing the orders was a discretionary, rather than a ministerial, act, plaintiffs cannot obtain mandamus relief.


Plaintiffs in this case are Dillon and his corporation, which does business as Abbey Road Pub & Restaurant. Plaintiffs challenge two executive orders issued by the governor in response to the COVID-19 pandemic.

Executive Order 63 requires individuals to wear face coverings while inside buildings such as “restaurants, dining establishments, food courts, breweries, microbreweries, distilleries, wineries, tasting rooms, and farmers markets, when permitted to reopen for indoor dining.”

EO 67 “removed the prior maximum-capacity limits on restaurants; however, restaurants still must space tables six feet apart and close ‘bar seats and congregating areas of restaurants … except for through-traffic.”

EO 67 also requires “requires restaurant employees ‘working in customer-facing areas’ to ‘wear face coverings over their nose and mouth at all times.’”

Dillon seeks a temporary injunction to prevent enforcement of the challenged orders. He also seeks a writ of mandamus to compel 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 because they are unconstitutional and ultra vires.”

Irreparable harm

“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. … Under certain circumstances, however, courts have found that difficult-to-calculate damages can constitute an irreparable injury. … That said, a party cannot support its claim that difficult-to-calculate damages will cause irreparable injury with general, unsupported allegations of irreparable injury. …

“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.’ … Only later did he suggest that the variation in annual expenses between 2019 and 2020 made damages difficult to ascertain. …

“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, … 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.”

Plaintiffs argue they will be irreparably harmed because the orders infringe on the constitutional right to assemble, and the orders “could remain in effect” indefinitely.

“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.’”

Public interest

“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. …

“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.”

Equities balance

“[T]he 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. …

“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.’ … The Court therefore finds that Plaintiffs have failed to prove that the balance of equities tips in their favor.”


“A court cannot grant a petition for a writ of mandamus unless a party seeks to compel performance of a ministerial duty. … 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.’ …

“The Court finds that promulgation of the Contested Orders … involved and will continue to involve discretionary, as opposed to ministerial, acts.”

Plaintiffs’ motion for a temporary injunction, and their petition for mandamus relief, is denied.

Dillon, et al. v. Northam, et al., Case No. CL20-3812, July 30, 2020; Norfolk City Cir. Ct. (Lanetti) Paul J. Duggan, Calvin C. Brown, Sandra S. Gregor for the parties. VLW 020-8-075, 17 pp.

VLW 020-8-075


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