COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Decker, Judges Humphreys and O’Brien

Argued by videoconference

VIRGINIA MANUFACTURERS ASSOCIATION, 

 JON TIGGES, ZION SPRINGS, LLC,

 GRACE CHURCH OF FREDERICKSBURG, 

 JOSH TIGGES, DAVE LaROCK,

ANNE WAYNETTE ANDERSON, 

 SPONSOR HOUNDS, LLC, 

 RIVER ROCK ENTERTAINMENT, INC., LINDA PARK,

FUJIYA HOUSE, INC., HEIDI BUNDY (INDIVIDUALLY 

 AND ON BEHALF OF “A LITTLE BIT HAPPY”),

 JEFFREY FREDERICK AND BREW REPUBLIC BIERWORKS

OPINION BY

v. Record No. 0316-21-2 JUDGE MARY GRACE O’BRIEN

DECEMBER 7, 2021

RALPH S. NORTHAM, GOVERNOR OF VIRGINIA, 

 M. NORMAN OLIVER, STATE HEALTH COMMISSIONER, 

 C. RAY DAVENPORT, STATE COMMISSIONER OF LABOR

AND INDUSTRY AND VIRGINIA SAFETY AND HEALTH 

 CODES BOARD, C/O CHARLES L. STIFF, CHAIR

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

W. Reilly Marchant, Judge

Nandan Kenkeremath (Matthew D. Hardin; Joseph J. Traficanti;

Celsius GC, PLC, on briefs), for appellants.

Jerald R. Hess, Assistant Attorney General (Mark R. Herring, 

Attorney General; Donald D. Anderson, Deputy Attorney General;

David C. Grandis, Senior Assistant Attorney General/Section Chief,

on brief), for appellees.

The Virginia Manufacturers Association and other parties (collectively, “appellants”) appeal 

a circuit court order dismissing their complaint challenging executive actions taken in response to 

the COVID-19 pandemic: Executive Order (“EO”) 63, which required patrons to wear face 

coverings inside buildings; EO 67, which placed Virginia in “Phase Three” of its reopening plan; 

and the Virginia Safety and Health Codes Board’s Emergency Temporary Standard (“ETS”), which 

PUBLISHED
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provided certain workplace requirements designed to prevent the spread of disease to and among 

employees and employers. The EOs received separate numbers as Orders of Public Health 

Emergency (“OPHE”) and were signed by Governor Ralph Northam and Health Commissioner 

M. Norman Oliver. EO 63 is also numbered as OPHE 5, and EO 67 is also numbered as OPHE 7.

Appellants challenged the EOs and ETS in a four-count complaint against Governor 

Northam, Health Commissioner Oliver, Commissioner of Labor and Industry C. Ray Davenport, 

and the Virginia Safety and Health Codes Board (collectively, “appellees”).

Count I alleged that the EOs and OPHEs violated the Virginia Administrative Process Act 

(“VAPA”); Count II requested a declaratory order setting aside the ETS; Count III alleged that the 

EOs, OPHEs, and the ETS imposed restrictions that violated the Virginia Religious Freedom 

Restoration Act (“VRFRA”); and Count IV alleged that these restrictions violated the separation of 

powers provisions of the Virginia Constitution and impermissibly infringed on rights of assembly 

and association and the free exercise of religion.

Appellants assert eight assignments of error on appeal. In the first two, appellants contend 

the court erred by dismissing Count I and holding that VAPA does not apply to “rules” that are 

“written into” the EOs. In the third assignment of error, appellants argue the court erred by 

dismissing the request for declaratory relief in Count II and holding that a vote by the Virginia 

Safety and Health Codes Board regarding the need for the ETS “satisfied all applicable legal 

standards and precluded judicial review.” The fourth assignment of error also challenges the court’s 

dismissal of Count II on mootness grounds.

In the fifth assignment of error, appellants contend the court used the wrong standard for 

reviewing a demurrer and based the dismissal of Count III on an “incorrect interpretation of the 

threshold statutory standard in VRFRA.”
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The sixth and seventh assignments of error challenge the court’s determination that Count 

IV failed to state a legally cognizable separation of powers claim as to either the Governor or the 

Health Commissioner. In the eighth assignment of error, appellants argue the court erred by 

dismissing Count IV claiming infringement of fundamental rights, “including in the context of 

religious service,” by not properly addressing allegations of infringement nor identifying proper 

legal standards.

BACKGROUND

On February 7, 2020, Health Commissioner Oliver declared COVID-19 a “Communicable 

Disease of Public Health Threat for Virginia” as defined in Code § 32.1-48.06.

On March 12, 2020, Governor Northam issued EO 51 stating that the “anticipated effects of 

COVID-19 constitute a disaster” and declaring a state of emergency pursuant to the Virginia 

Emergency Services and Disaster Law (“Virginia Emergency Law”), Code §§ 44-146.13 through 

44-146.29:3.

The Governor subsequently issued a series of EOs designed to slow the spread of 

COVID-19 in Virginia. These EOs limited public and private gatherings, restricted restaurant and 

retail businesses, directed schools to cease in-person instruction, and required most recreational and 

entertainment businesses to temporarily close. Subsequent EOs began a multi-phase reopening 

process.

A. EO 63 and EO 67

Appellants primarily challenge EO 63 and EO 67. The EOs, signed by the Governor and 

co-signed by the Health Commissioner, are prefaced with the following statement of statutory 

authority:

Therefore, by virtue of the authority vested in me by Article V of the 

Constitution of Virginia, by § 44-146.17 of the Code of Virginia, by 

any other applicable law, and in furtherance of Amended Executive 
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Order 51 (2020), and by virtue of the authority vested in the State 

Health Commissioner pursuant to §§ 32.1-13, 32.1-20, and 35.1-10 

of the Code of Virginia, the following is ordered: . . . .

EO 63, first issued May 26, 2020, required face coverings for all patrons (over age ten) of 

certain types of businesses, as well as for employees of essential retail businesses whenever working 

in customer-facing areas. Violations were punishable as Class 1 misdemeanors pursuant to Code 

§ 32.1-27, and the Health Commissioner was also authorized to seek injunctive relief to enforce the 

EO under Code § 32.1-27.

EO 67, first issued June 30, 2020, moved Virginia to Phase Three of its reopening plan and 

eased many restrictions from prior EOs. EO 67 imposed certain obligations on businesses, 

including requirements to space patrons six feet apart and ensure that employees working in 

customer-facing areas wore “face coverings over their nose and mouth at all times.” Businesses that 

could not comply with the requirements were required to close. EO 67 limited all public and private 

gatherings to 250 people. EO 67 also restricted “religious services” by requiring non-family 

members to sit six feet apart and mandating single-serving containers for food and drink.

EO 67 imposed additional restrictions on restaurants, farmers’ markets, exercise facilities, 

and public beaches. EO 67 removed prior maximum-capacity limits for restaurants but still 

required that tables be spaced six feet apart and “[b]ar seats and congregating areas of restaurants

. . . [be closed] except for through-traffic.” Violations of EO 67 also were punishable as Class 1 

misdemeanors and subject to injunctive relief.

EO 63 and EO 67 were amended at various times during the state of emergency declared by 

Governor Northam. The state of emergency expired on June 30, 2021, and all EOs imposing 

COVID-19 restrictions ceased to have any effect.
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B. Emergency Temporary Standard

On July 15, 2020, the Virginia Safety and Health Codes Board (“Board”) adopted the ETS 

pursuant to Code § 40.1-22(6a).

1

 See 16 VAC 25-220-10(C). The statute authorizes the Board to 

issue an “emergency temporary standard” lasting no longer than six months, and it specifically 

exempts the initial adoption of an emergency temporary standard from VAPA. See Code 

§ 40.1-22(6a) (“The Board shall provide, without regard to the requirements of Chapter 40 ([Code] 

§ 2.2-4000 et seq.) of Title 2.2. [i.e., VAPA], for an emergency temporary standard . . . .”).

The ETS took effect on July 27, 2020, and was set to expire “within six months of its 

effective date, upon expiration of the Governor’s State of Emergency, or when superseded by a 

permanent standard, whichever occurs first.” 16 VAC 25-220-20. See Code § 40.1-22(6a).

The ETS required employers to take one of two actions. Employers could either undertake 

certain safety and health precautions based on an assessment of their employees’ risk of contracting 

COVID-19, or employers could follow CDC guidelines. See 16 VAC 25-220-10(E), (G)(1). The 

ETS contained a process for requesting religious waivers from the required use of face coverings. 

16 VAC 25-220-40(J).

The ETS expired on January 27, 2021, six months after it went into effect, and was replaced 

by a permanent standard with similar but not identical provisions. Before establishing the 

permanent standard, the Board conducted sixteen hours of public meetings, made available an 

online public comment forum from December 10, 2020, to January 9, 2021, and considered new 

scientific briefings. An economic impact analysis accompanied the permanent standard. On 

1 The ETS was set forth in 16 VAC 25-220-10 through -90. This administrative code 

section now contains the revised permanent standard. Here, unless otherwise noted, references to 

the ETS are from the prior version of the administrative code, which the Department of Labor and 

Industry maintains at its website. See https://www.doli.virginia.gov/wpcontent/uploads/2020/07/RIS-filed-RTD-Final-ETS-7.24.2020.pdf (last visited Dec. 2, 2021).
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September 8, 2021, a revised permanent standard took effect following another period for public 

notice and comment, another economic impact analysis, and review by the Governor.

The revised permanent standard addresses vaccines and updated CDC guidelines, and 

accordingly it modifies requirements for employers. See, e.g., 16 VAC 25-220-40 (effective Sept. 

8, 2021). It contains new definitions of physical distancing, minimal occupational contact, and 

symptoms of COVID-19. See 16 VAC 25-220-30 (effective Sept. 8, 2021). Further, employers are 

no longer subject to enforcement actions for failing to provide personal protective equipment when 

they are making good-faith efforts to procure these supplies. See 16 VAC 25-220-10(C) (effective 

Sept. 8, 2021). In short, the revised permanent standard differs substantially from the ETS.

C. Pleadings

Appellants filed their initial complaint September 16, 2020. By agreed order, a first 

amended complaint adding three plaintiffs was filed on October 26, 2020.

Appellants asserted four counts against appellees. Count I sought judicial review of the EOs 

pursuant to Code § 2.2-4026 of VAPA. Count II requested a declaratory order setting aside the ETS 

based on allegations of both procedural and substantive deficiencies. Count III alleged that the 

restrictions on assembly and association violated VRFRA by substantially burdening the free 

exercise of religion. Count IV alleged that the EOs and ETS violated the separation of powers 

provision of the state constitution and infringed on rights of assembly, association, and religious 

exercise.

Appellees moved to dismiss on three grounds. First, they contended that appellants lacked 

standing regarding all four counts; second, they sought dismissal of Count I on the grounds that 

VAPA did not apply; third, they argued that the request for declaratory relief under Count II was 

legally deficient. At the hearing, the court took appellees’ motion to dismiss under advisement and 

granted appellants leave to amend “but only as to factual allegations that relate to standing.”
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Appellants’ second amended complaint “incorporate[d] by reference” the first amended 

complaint and added new factual allegations attempting to demonstrate how each party had been 

adversely affected by the executive actions. The second amended complaint also added allegations 

describing executive actions that had occurred after the filing of the first amended complaint in 

October 2020, stating that “[t]he facts relevant to standing, and some other matters, continue to 

change.” Appellants added that the Governor and Health Commissioner had signed further EOs 

that were “progeny” of those EOs referenced in the earlier pleading. Specifically, appellants added 

references to amended versions of EO 63 and 67, as well as references to an entirely new executive 

order, EO 72, issued on December 14, 2020.

Appellees moved to strike the second amended complaint, arguing that it violated Rule 

1:4(d)’s requirement to clearly state a party’s claims. Further, they contended that appellants 

violated the court’s instruction to amend only the factual allegations related to standing and the 

complaint now sought to “retroactively establish standing by alleging new injuries.” Appellees also 

renewed their motion to dismiss on the same grounds stated in their prior motion.

D. The Court’s Ruling

The court ruled that appellants had sufficiently alleged direct injury and therefore had 

standing to sue. The court also denied the motion to strike based on Rule 1:4(d), although it found 

the second amended complaint “somewhat confusing and extremely long and somewhat 

intertwining.”

However, the court dismissed Count I because “VAPA doesn’t apply to executive orders.” 

It dismissed Count II as moot because the ETS had expired in January 2021 and appellants failed to 

state a claim that the ETS did not meet the requirements of Code § 40.1-22. The court dismissed 

Count III for failing to sufficiently allege a “substantial burden” on the free exercise of religion, as 

required by VRFRA, Code § 57-2.02(B). Finally, the court dismissed Count IV because appellees 
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acted pursuant to explicit statutory authority, and because any curtailment of appellants’ freedom of 

assembly had a “real or substantial relation” to the COVID-19 public health crisis and did not rise to 

the level of a “plain, palpable invasion of rights secured by the fundamental law,” quoting Jacobson 

v. Massachusetts, 197 U.S. 11, 31 (1905).

ANALYSIS

A. Standard of Review

“Where, as here, ‘no evidence [has been] taken with regard to [a] motion to dismiss[,] we

treat the factual allegations . . . as we do on review of a demurrer.’” Bragg v. Bd. of Supervisors, 

295 Va. 416, 423 (2018) (alterations in original) (quoting Va. Marine Res. Comm’n v. Clark, 281 

Va. 679, 686-87 (2011), overruled in part on other grounds by Woolford v. Va. Dep’t of Tax’n, 294 

Va. 377, 390 n.4 (2017)). We accept “the truth of all material facts that are . . . expressly alleged, 

impliedly alleged, and which can be inferred from the facts alleged.” Harris v. Kreutzer, 271 Va. 

188, 195-96 (2006). This “inquiry encompasses ‘not only the substantive allegations of the 

pleading attacked but also any accompanying exhibit mentioned in the pleading.’” Bragg, 295 Va. 

at 423 (quoting Flippo v. F & L Land Co., 241 Va. 15, 17 (1991)).

Accordingly, in reviewing the court’s decision, we look solely to the allegations in the 

pleading and accompanying affidavits. See id. Additionally, because the sufficiency of appellants’ 

pleading presents “pure questions of law, we do not accord a presumption of correctness to the 

judgment below, but review the issues de novo.” Philip Morris USA Inc. v. Chesapeake Bay 

Found., Inc., 273 Va. 564, 572 (2007); see also Bragg, 295 Va. at 423 (“We . . . review the circuit 

court’s decision to dismiss the petition, and any corresponding issues of statutory interpretation, de 

novo.”).
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B. Assignments of Error 1 and 2: Judicial Review under VAPA

Appellants’ first two assignments of error challenge the court’s dismissal of Count I of the 

second amended complaint that alleged that EO 63 (also numbered as OPHE 5) and EO 67 (also 

numbered as OPHE 7) were issued in violation of VAPA. They argue that the court erred in 

determining that VAPA does not apply to the rules articulated in the EOs that were also issued as 

OPHEs.

The Governor issued EO 63 and EO 67 pursuant to Code § 44-146.17, a statute within the 

Virginia Emergency Law. According to its express legislative purpose, the Virginia Emergency 

Law reflects the General Assembly’s intent “[t]o confer upon the Governor . . . emergency powers 

provided herein.” Code § 44-146.14(a)(2). Code § 44-146.17 is cited in the EOs and provides in 

relevant part as follows: 

The Governor shall be Director of Emergency Management. He 

shall take such action from time to time as is necessary for the 

adequate promotion and coordination of state and local emergency 

services relating to the safety and welfare of the Commonwealth in 

time of disasters.

The Governor shall have, in addition to his powers hereinafter or 

elsewhere prescribed by law, the following powers and duties:

(1) To proclaim and publish such rules and regulations and to issue 

such orders as may, in his judgment, be necessary to accomplish the 

purposes of this chapter . . . .

Executive orders, to include those declaring a state of emergency and 

directing evacuation, shall have the force and effect of law and the 

violation thereof shall be punishable as a Class 1 misdemeanor in 

every case where the executive order declares that its violation shall 

have such force and effect. . . .

(7) Whenever, in the opinion of the Governor, the safety and welfare 

of the people of the Commonwealth require the exercise of 

emergency measures due to a threatened or actual disaster, to declare 

a state of emergency to exist . . . .

Code § 44-146.17(1), (7) (emphasis added).
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Therefore, the General Assembly expressly authorized the Governor to declare a state of 

emergency and conferred upon the Governor the broad authority to issue rules, regulations, and 

executive orders that “in his judgment” are necessary to protect public health and safety in an 

emergency. See id.; see also Boyd v. Commonwealth, 216 Va. 16, 18-19 (1975). In Boyd, the 

Supreme Court upheld an executive order declaring an emergency due to an “acute fuel shortage” 

and imposing a speed limit of fifty-five miles per hour on all state highways. 216 Va. at 16-17. In 

affirming the defendant’s speeding conviction, the Supreme Court rejected his argument that the 

fuel shortage “was not such a ‘disaster’ as contemplated by the [Virginia Emergency Law].” Id. at 

19; see Code § 44-146.16 (defining “disaster”). Instead, the Supreme Court determined that the 

governor acted within the broad authority conferred by the legislature. Id. at 19-20. Construing the 

language of a prior but substantively similar version of the Virginia Emergency Law, the Supreme 

Court was “convince[d] . . . that the Governor acted within the limits of the authority delegated to 

him.” Id. at 19. “It is elementary that the health, safety[,] and welfare of the people of this 

Commonwealth depend upon an adequate supply of motor vehicle fuel. . . . Prompt action was 

required.” Id.

Here, on February 7, 2020, the Health Commissioner identified COVID-19 as a public 

health threat. The Governor then issued EO 51 stating that the anticipated effects of COVID-19 

constituted a disaster and declaring a state of emergency. Subsequent EOs, including EO 63 and 

EO 67, initiated a response plan and reflected the Governor’s judgment concerning the actions 

necessary to accomplish the purposes of the Virginia Emergency Law.

Code § 44-146.17(1) grants the Governor broad emergency powers and commits the 

exercise of those powers to the Governor’s “judgment,” reflecting a legislative determination that 

the Governor must be able to respond immediately and effectively to emergency situations. It 

would be inconsistent for this broad authority to be limited by the procedural requirements of 
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VAPA for notice and public comment. See, e.g., Code § 2.2-4007.01(A) (requiring at least thirty 

days for public comment after notice of intended regulatory action by a state agency). Further, 

compliance with VAPA’s procedural requirements would forestall implementation of emergency 

rules designed to prevent the spread of disease and would thwart the purpose of the Virginia 

Emergency Law, to empower the Governor to take swift action to protect public health and safety. 

See Code § 44-146.14(a)(2).

Additionally, actions taken pursuant to the Virginia Emergency Law are required to be 

temporary and must be accompanied by notice to the legislature. See Code § 44-146.17(1) 

(providing that “no rule, regulation, or order issued under this section shall have any effect beyond 

June 30 next following the next adjournment of the regular session of the General Assembly”); 

Code § 44-146.17:1 (requiring the Governor to “cause copies of any order . . . proclaimed and 

published by him pursuant to Code § 44-146.17 to be transmitted forthwith to each member of the 

General Assembly”). These requirements ensure that the General Assembly is formally advised of 

the Governor’s actions during an emergency and the resulting concentration of authority in the 

Governor cannot last indefinitely. These parameters on the Governor’s emergency authority 

indicate that the General Assembly recognized the unique nature of emergency orders and designed 

a specific set of procedural safeguards to address the risks they present. Those safeguards operate in 

lieu of the measures VAPA imposes on agency action generally. See Wal-Mart Stores E., LP v. 

State Corp. Comm’n, 299 Va. 57, 70 (2020) (stating that courts “‘presume that the legislature chose, 

with care, the’ specific words of the statute” and that “[t]he act of choosing carefully some words 

necessarily implies others are omitted with equal care” (alteration in original) (quoting Rickman v. 

Commonwealth, 294 Va. 531, 540 n.3 (2017))).2

2 We note that the General Assembly amended the Virginia Emergency Law after the 

Governor declared a state of emergency and began issuing EOs to address the COVID-19 
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Appellants contend that the EOs are subject to judicial review under VAPA because VAPA 

provides for emergency rulemaking in Code § 2.2-4011. We disagree. Code § 2.2-4011 is a 

general statute allowing state agencies to adopt emergency regulations after consultation with the 

Attorney General and only with approval “at the sole discretion of the Governor.” Code 

§ 2.2-4011(A). Here, even assuming the Governor himself could issue emergency rules pursuant to 

Code § 2.2-4011, the Virginia Emergency Law confers authority to issue emergency EOs “in 

addition to [the Governor’s] powers . . . elsewhere prescribed by law.” Code § 44-146.17(1). 

Further, when “one statute speaks to a subject generally and another deals with an element of that 

subject specifically, the more specific statute is controlling.” Conger v. Barrett, 280 Va. 627, 631 

(2010) (quoting Viking Enter., Inc. v. County of Chesterfield, 277 Va. 104, 110 (2009)). Thus, 

VAPA’s general grant of emergency rulemaking authority to administrative agencies does not limit

the Governor’s separate and specific authority to issue EOs under the Virginia Emergency Law. 

Nothing in Code § 2.2-4011 subjects the EOs to judicial review under VAPA.

Although the EOs set forth rules for wearing face coverings and maintaining physical 

distances in public areas, they did not therefore constitute agency regulations subject to VAPA. 

Nothing required appellants to pursue administrative remedies prior to filing their action in circuit 

court challenging the EOs, a prerequisite for judicial review under VAPA, and they in fact did not 

pursue any preliminary administrative remedies. See Foltz v. Dep’t of State Police, 55 Va. App. 

182, 185-89 (2009) (finding that VAPA did not apply where the complaining party was not first 

required to pursue administrative remedies prior to filing suit). The EOs were issued pursuant to the 

pandemic. The amendments relate to enforcement of EO violations by civil penalties and 

authorize the Governor to establish a program for purchasing and distributing personal protective 

equipment to private, nongovernmental entities. See 2020 Va. Acts chs. 14, 15, 17, 38. If the 

General Assembly wanted to impose limitations on the Governor’s authority to issue EOs, such 

as expressly ensure that they comply with VAPA, it could have done so. See Wal-Mart Stores 

E., LP, 299 Va. at 70.
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Governor’s delegated authority to take prompt action under the Virginia Emergency Law. 

Requiring EOs to comply with VAPA would undermine the legislative purpose of the Virginia 

Emergency Law to confer exigent rulemaking authority upon the Governor.

Appellants also challenge the court’s determination that VAPA does not apply to OPHEs. 

The EOs received OPHE numbers and were co-signed by the Health Commissioner pursuant to 

Code §§ 32.1-13, 32.1-20, and 35.1-10. Appellants contend that because the Health Commissioner 

issued the OPHEs pursuant to this statutory authority, he was “acting as an ‘agency’ as that term is 

defined under the VAPA” and therefore these orders were subject to VAPA’s requirements.

However, the OPHEs are precisely the same documents as the EOs: EO 63 is subtitled as 

OPHE 5, and EO 67 is subtitled as OPHE 7. VAPA, which does not apply to EOs, does not 

automatically apply merely because the EOs were co-signed by the Health Commissioner and given 

separate OPHE numbers.

Emergency executive actions are not immune from judicial review. For example, in 

separate lawsuits filed in both state and federal court, many appellants sought to enjoin enforcement 

of the executive actions and received hearings on the merits of their claims. See, e.g., Tigges v. 

Northam, 473 F. Supp. 3d 559 (E.D. Va. 2020). However, a request for judicial review under 

VAPA is not the proper mechanism for challenging executive orders issued pursuant to the Virginia 

Emergency Law.

Therefore, because Count I sought judicial review under VAPA, the court did not err in 

finding that appellants failed to state a claim and dismissing that count.

C. Assignments of Error 3 and 4: ETS claims

Count II of the second amended complaint requested a declaratory judgment pursuant to 

Code § 40.1-22(7) that “the ETS is void.” The court dismissed Count II both because the ETS was 

adopted in compliance with Code § 40.1-22(6a) and because it had already expired, rendering the 
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issue moot. Because we agree with appellees’ contention that the issue was moot, we affirm the 

court’s ruling on that basis.

Although Count II sought a declaration that “the ETS is void,” the ETS expired January 27, 

2021, and no longer had any effect when the parties appeared in court on appellees’ motion to 

dismiss in February 2021. See Code § 40.1-22(6a) (stating that an emergency temporary standard 

expires after six months, or when replaced by a permanent standard, or when repealed, whichever 

comes first). Because the relief appellants were seeking had already occurred, the court dismissed 

Count II as moot, as an alternative basis to its other grounds for dismissing Count II.

Appellees now claim that their challenge to ETS is not moot because the Board’s adoption 

of a permanent standard was a “form over substance change” and “most” of the ETS “remain[s] 

substantially ‘on the books.’”

However, the permanent standard was both adopted and revised through a separate 

rulemaking process distinct from the procedure for adopting an ETS. The process for a permanent 

standard provides for a public notice and comment period, economic impact analysis, and public 

Board meetings to consider its substance. See, e.g., Code §§ 2.2-4007 to 2.2-4017 (prescribing 

process for promulgating regulations). The permanent standard is not a mere continuation of the 

ETS; it is a separate and substantively different regulation that replaced the ETS.

Appellants never challenged the permanent standard in the court below and are precluded 

from doing so for the first time on appeal. See Rule 5A:18. Appellants could conceivably initiate a 

new lawsuit seeking judicial review of the permanent standard under Code § 40.1-22(7), which 

would require the circuit court to consider the record of its adoption. But this Court is precluded 

from reviewing that record for the first time on appeal. See Rule 5A:18.

“Generally, a case is moot and must be dismissed when the controversy that existed between 

litigants has ceased to exist.” Daily Press, Inc. v. Commonwealth, 285 Va. 447, 452 (2013). “No 
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matter how vehemently the parties continue to dispute the lawfulness of the conduct that 

precipitated the lawsuit, the case is moot if the dispute ‘is no longer embedded in any actual 

controversy about [appellants’] particular legal rights.’” Ingram v. Commonwealth, 62 Va. App.

14, 21-22 (2013) (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013)).

There are limited exceptions to this mootness doctrine. For example, an issue is not moot 

when a proceeding is “short-lived by nature” or “when the underlying controversy is one capable of 

repetition, yet evading review.” Id. at 22 (first quoting Daily Press, Inc., 285 Va. at 452; and then

quoting Va. Dep’t State Police v. Elliott, 48 Va. App. 551, 554 (2006)). In Ingram, an 

institutionalized defendant appealed an order requiring him to undergo psychiatric and mental 

treatment for 180 days. Id. at 20-21. This Court dismissed the appeal as moot after the 180-day 

order expired, stating that “[e]ven if a case is alive at the time of filing, ‘subsequent events can moot 

the claim.’” Id. at 22 n.1 (quoting Pashby v. Delia, 709 F.3d 307, 316 (4th Cir. 2013)).

Here, the ETS expired both by its express language and by statute, and therefore the precise 

relief requested by appellants — to declare the ETS void — is unavailable. Moreover, no exception 

to the mootness doctrine applies: the six-month duration of the ETS was adequate time for 

appellants to seek injunctive relief, and appellants’ claims are not “capable of repetition” because 

the ETS has been replaced by a substantively distinct permanent standard pursuant to VAPA’s 

requirements for public notice and comment. See id. There is no “reasonable expectation that the 

same complaining party [will] be subject to the same action again,” a requirement for this mootness 

exception to apply. See Spencer v. Kemna, 523 U.S. 1, 17 (1998) (alteration in original) (quoting 

Lewis v. Cont’l Bank Corp., 494 U.S. 472, 481 (1990)). Therefore, the court did not err in 

dismissing Count II as moot.
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D. Assignment of Error 5: VRFRA claims

Appellants contend the court erred in dismissing Count III, which alleged that the 

restrictions imposed by EO 63 and EO 67 substantially burdened the free exercise of religion in 

violation of VRFRA. VRFRA provides in relevant part as follows:

No government entity shall substantially burden a person’s free 

exercise of religion even if the burden results from a rule of general 

applicability unless it demonstrates that application of the burden to 

the person is (i) essential to further a compelling governmental 

interest and (ii) the least restrictive means of furthering that 

compelling governmental interest.

Code § 57-2.02(B). The statute allows an aggrieved party to sue for declaratory or injunctive relief, 

Code § 57-2.02(D), and “[t]he decision . . . may be appealed by petition to the Court of Appeals of 

Virginia,” Code § 57-2.02(F).

In Count III, certain appellants alleged that the EOs impermissibly limited their religious 

practices. For example, they alleged that limitations on public gatherings and seating arrangements 

interfered with church attendance, created difficulties in ministering to families, and hampered 

weddings and funerals.

However, the state of emergency expired on June 30, 2021, and all EOs imposing 

COVID-19 restrictions terminated. Nevertheless, citing Commonwealth ex rel. State Water Control 

Board v. Appalachian Power Co., 12 Va. App. 73, 76 (1991) (en banc), appellants argue that 

although the restrictions challenged in Count III have expired, the harm involved falls under the 

“capable of repetition, but evading review” exception to the mootness doctrine. See Salvatierra v. 

City of Falls Church, 35 Va. App. 453, 456-57 (2001) (applying mootness exception when the 

defendant’s commitment to the Department of Juvenile Justice “was too short to fully litigate the 

issues through an appeal” and the ruling could impact his future probation status). Cf. Ingram, 62 

Va. App. at 21-22. Further, the exception requires a “reasonable expectation that the same 
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complaining party [will] be subject to the same action again.” Spencer, 523 U.S. at 17 (alteration in 

original) (quoting Lewis, 494 U.S. at 481).

This exception to the mootness doctrine does not apply here. Count III challenged the 

substance of the EOs and alleged that they burdened the free exercise of religion. Because the EOs 

have expired by operation of law and are not currently in effect, we cannot speculate on how or 

whether the content of future EOs might substantively affect religious rights, if at all. To do so 

would be to render an impermissible advisory opinion. See Elliott, 48 Va. App. at 554 (noting the 

Court’s “duty ‘not to give opinions upon moot questions or abstract propositions, or to declare 

principles or rules of law which cannot affect the matter in issue in the case before it’” (quoting 

Hankins v. Town of Virginia Beach, 182 Va. 642, 644 (1944))); see also Ingram, 62 Va. App. at 22 

(“‘Advisory opinions represent an attenuate exercise of judicial power,’ . . . ‘one which we 

traditionally avoid in all but the most extenuating circumstances’” (first quoting Elliott, 48 Va. App. 

at 553, then quoting Pilson v. Commonwealth, 52 Va. App. 442, 446 (2008))).

Therefore, because the executive actions that appellants claimed violated VRFRA have 

expired by operation of law, and we cannot speculate on whether appellants will be subject to the 

same action again, see Spencer, 523 U.S. at 17, we dismiss assignment of error 5 as moot.

E. Assignments of Error 6, 7, and 8: Constitutional claims

Appellants’ remaining assignments of error challenge the court’s dismissal of Count IV, 

which alleged that the executive actions violated the separation of powers provisions of the state 

constitution and infringed on fundamental rights including the freedom of assembly and free 

exercise of religion. Appellants argue that the court erred in finding no legally cognizable 

constitutional claims in Count IV. However, our limited jurisdiction does not include the issues 

raised in assignments of error 6, 7, and 8.
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Code § 17.1-405(1)(i) authorizes an aggrieved party to appeal to the Court of Appeals from 

“[a]ny final decision of a circuit court on appeal from . . . a decision of an administrative agency.” 3 

For an appeal to lie within this Court’s subject matter jurisdiction under this code section, appellants 

must have been required to “pursue administrative remedies prior to filing a civil action.” See Foltz, 

55 Va. App. at 189. In Foltz, the plaintiff brought an action in circuit court seeking a declaratory 

judgment that his prior conviction for assault and battery against his wife did not render him 

ineligible to purchase a firearm under federal law. Id. at 183. The court sustained the demurrer of 

the Department of State Police (“DSP”), and the plaintiff appealed to this Court. Id. We ruled that 

the matter was not an administrative appeal within our subject matter jurisdiction and transferred the 

appeal to the Supreme Court under Code § 8.01-677.1. Id. at 189-90. The plaintiff was not 

appealing from a DSP case decision, and a separate statute expressly provided for bringing a “civil 

action” for “[c]ivil remedies” for violations of the “Criminal Justice Services” chapter of the Code. 

Id. at 186-88 & n.5. Nothing required the plaintiff to pursue administrative remedies before filing 

the civil action contesting the adverse decision regarding his eligibility to purchase a firearm. Id. at 

189.

Likewise, nothing required appellants to pursue administrative remedies as a precursor to 

bringing the constitutional claims in Count IV, and they in fact did not pursue any. Therefore, it 

was not an “appeal” from an administrative agency’s decision within the meaning of Code 

§ 17.1-405(1)(i). Rather, Count IV alleged that the executive actions exceeded the scope of 

authority delegated by the General Assembly and infringed on fundamental rights. Thus, the claims 

in Count IV do not fall within any category of the Court’s limited jurisdiction. See Code 

§ 17.1-405. They are enforceable, if at all, as common law actions. See Gray v. Va. Sec’y of 

3 This code section limiting the Court’s jurisdiction is effective until January 1, 2022.
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Transp., 276 Va. 93, 106 (2008) (stating that “self-executing” constitutional provisions, such as the 

separation of powers, are “operative without the need for supplemental legislation” and are therefore 

“enforceable in a common law action”).

Accordingly, assignments of error 6, 7, and 8 are not subject to this Court’s statutory 

jurisdiction under Code § 17.1-405, and we transfer this portion of the appeal to the Supreme Court. 

See Code § 8.01-677.1.

CONCLUSION

We affirm the court’s decisions dismissing Count I because VAPA does not apply to 

emergency executive orders and dismissing Counts II and III as moot. Because this Court does not 

have jurisdiction to entertain appellants’ claims concerning Count IV, we transfer assignments of 

error 6, 7, and 8 to the Supreme Court of Virginia.

Affirmed in part, transferred in part.