UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 20-2311

ANTIETAM BATTLEFIELD KOA; SSG JASON ANDERSON, U.S.A. (ret.); 

LCPL CHRISTOPHER REPOGLE, U.S.M.C. (former); REV. CHRISTOPHER

OGNE, pastor of Lutheran Church of Our Savior; REV. JAMES WICKHAM; REV. 

FREDRICK CAUDLE; REV. PAUL GOODWIN; REV. JOHN SEAY; REV. 

GARY COX; REV. STEVEN DIXON; REV. JOHNNY HUDSON; DAVID 

SERENDA; DELEGATE WARREN MILLER; DELEGATE DAN COX; 

DELEGATE NEIL PARROTT; REOPEN MARYLAND, LLC, 

Plaintiffs - Appellants, 

and 

ADVENTURE PARK USA, LLC; REV. GARY POMRENKE, 

Plaintiffs, 

v. 

LAWRENCE HOGAN, in his official capacity as Governor of the State of Maryland; 

DENNIS R. SHRADER, in his official capacity as Acting Secretary of Maryland 

Health Department; JINLENE CHAN, in her official capacity as Acting Deputy 

Secretary for Public Health Services; WOODROW W. JONES, III, in his official 

capacity as Maryland State Police Superintendent, 

Defendants - Appellees. 

Appeal from the United States District Court for the District of Maryland, at Baltimore. 

Catherine C. Blake, Senior District Judge. (1:20-cv-01130-CCB) 

Submitted: January 31, 2022 Decided: May 9, 2022
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Before DIAZ and THACKER, Circuit Judges, and KEENAN, Senior Circuit Judge. 

Dismissed in part; affirmed in part by unpublished per curiam opinion. 

ON BRIEF: Daniel L. Cox, THE COX LAW CENTER, LLC, Emmitsburg, Maryland; 

John R. Garza, GARZA LAW FIRM, P.A., Rockville, Maryland, for Appellants. Brian E. 

Frosh, Attorney General, Adam D. Snyder, Assistant Attorney General, Kathleen A. Ellis,

Assistant Attorney General, Justin E. Fine, Assistant Attorney General, OFFICE OF THE 

ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. 

Unpublished opinions are not binding precedent in this circuit. 
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PER CURIAM: 

Antietam Battlefield KOA and fifteen others appeal from the district court’s order 

denying their motion for a temporary restraining order and preliminary injunction and the 

court’s order dismissing their amended complaint challenging executive orders and 

emergency proclamations issued by Lawrence J. Hogan, Governor of the State of 

Maryland, in response to COVID-19. As explained below, we dismiss the appeal in part 

and affirm in part. 

To control and prevent the spread of COVID-19, Governor Hogan issued a 

proclamation declaring a state of emergency and the existence of a catastrophic health 

emergency in Maryland on March 5, 2020. Governor Hogan renewed this proclamation 

on March 17 and April 10, 2020. The proclamation of emergency authorized the Governor 

to issue orders to control and terminate the emergency, Md. Code Ann., Pub. Safety 

§ 14-303(b), and, to this end, Governor Hogan issued various executive orders. The 

Governor’s March 30, 2020, executive order directed persons living in Maryland to stay in 

their homes or residences with certain exceptions; prohibited “[s]ocial, community, 

spiritual, religious, recreational, leisure, and sporting gatherings and events” of more than 

ten people; ordered that non-essential businesses, organizations, establishments, and 

facilities remain closed to the general public with certain exceptions; and ordered that 

various other organizations and facilities close or remain closed to the general public. Prior 

to issuing the March 30 executive order, Governor Hogan had issued executive orders on 

March 12, March 16, March 19, and March 23, 2020. These orders limited the attendance 

of people at gatherings, events, and facilities; closed senior citizen activities centers; and 
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closed various other establishments to the general public. Governor Hogan’s April 15, 

2020, executive order required certain persons to use face coverings in retail and 

foodservice establishments and while on public transportation and required retail 

establishments to implement physical distancing and sanitizing measures. All the 

executive orders provided they would remain in effect until after termination of the state 

of emergency and the rescission of the proclamation of the catastrophic health emergency 

or until rescinded, superseded, amended, or revised by additional orders and that a person 

who knowingly and willfully violated them was guilty of a misdemeanor and subject on 

conviction to imprisonment for a term not exceeding one year or a fine not exceeding $5000 

or both.

In May 2020, when the April 10 renewal proclamation and the March 30 and April 

15 executive orders were in effect, Plaintiffs—two former members of the military, three 

members of the Maryland House of Delegates, nine religious pastors and a church officer, 

two limited liability corporations, and business Antietam Battlefield KOA—filed a civil 

action under 42 U.S.C. § 1983 and the Maryland Constitution against Governor Hogan, the 

Maryland Secretary of Health, the Maryland Deputy Secretary for Public Health Services, 

and the Maryland Secretary of State Police in their official capacities. The complaint 

generally referred to the Governor’s executive orders and emergency proclamations in 

collective senses1 and claimed they violated the right to free exercise of religion protected 

1 Other than referring to the alleged effects of the March 30 executive order on 

Antietam Battlefield KOA and noting the existence of the March 5 proclamation, the 

complaint did not distinguish among the Governor’s executive orders and proclamations. 
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by the First Amendment and Article 36 of the Maryland Declaration of Rights; the rights 

to peaceably assemble and to freedom of speech protected by the First Amendment; the 

Establishment Clause of the First Amendment; the Equal Protection Clause of the 

Fourteenth Amendment; the guarantee of a republican form of government protected by 

Article IV, Section 4 of the Constitution and Article 2 of the Maryland Declaration of 

Rights; the rights to freedom of speech, assembly, due process, rule of law, separation of 

powers, to not be subject to martial law, to have laws suspended only by the Maryland 

General Assembly, and rights under English common law protected by Articles 5, 8, 9, 10, 

13, 24, 32, 40, and 44 of the Maryland Declaration of Rights; the Taking Clause of the 

Fifth Amendment; and the Commerce Clause in Article I, Section 8 of the Constitution. 

Plaintiffs sought as relief, among other matters, the issuance of temporary, preliminary, 

and permanent injunctive relief against enforcement of the Governor’s orders and a 

declaratory judgment that the orders were unconstitutional. Plaintiffs also moved under 

Fed. R. Civ. P. 65 for the issuance of a temporary restraining order as requested in the 

complaint and a preliminary injunction. 

On May 20, 2020, the district court denied Plaintiffs’ motion for a temporary 

restraining order and preliminary injunction. Antietam Battlefield KOA v. Hogan, 

461 F. Supp. 3d 214, 242 (D. Md. 2020). Treating the motion as one for a preliminary 

injunction, the district court: noted that Plaintiffs did not discuss the merits of their 

Establishment Clause, Takings Clause, Guarantee Clause, and Equal Protection Clause

claims and several of their Maryland Declaration of Rights claims in their briefing and 

declined to address those claims; determined that Plaintiffs’ argument regarding their free 
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exercise claims had not been rendered moot by the issuance on May 13, 2020, of a new 

executive order that, among other matters, removed “spiritual” and “religious” gatherings 

from the prohibition on gatherings and events of more than ten people and allowed 

religious facilities to open to the general public at 50 percent of the facility’s maximum 

occupancy; determined that the Supreme Court’s decision in Jacobson v. Massachusetts

provided the proper scope for review of Plaintiffs’ constitutional claims and that, as a 

result, they would have to demonstrate they were likely to succeed in showing that 

Governor Hogan’s orders had either no “real or substantial relation” to protecting public 

health or that they were “beyond all question, a plain, palpable invasion of rights secured 

by the fundamental law,” 197 U.S. 11, 31 (1905); determined that the Governor’s orders 

had a real or substantial relation to the public health crisis resulting from the spread of 

COVID-19; determined that Plaintiffs had not shown a likelihood of success on the merits 

of their free exercise claims because the prohibition on large gatherings was neutral, 

generally applicable, and rationally related to the legitimate government interest in 

reducing the spread of COVID-19, and Plaintiffs had not demonstrated the restriction 

would fail under strict scrutiny; determined that Plaintiffs had not shown a likelihood of 

success on their claims that the prohibition against large gatherings and the face covering 

requirement violated speech and assembly rights protected by the First Amendment and 

Article 40 of the Maryland Declaration of Rights because these measures did not regulate 

speech based on its content and were narrowly-tailored, did not express any message, and 

Plaintiffs had not demonstrated the measures would fail under strict scrutiny; determined 

that Plaintiffs had not shown a likelihood of success on their claim under the Commerce 
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Clause because the directive that certain businesses close did not discriminate against 

interstate commerce and survived rational basis review; determined that Plaintiffs had not 

shown a likelihood of success on their claim under Article 8 of the Maryland Declaration 

of Rights because Governor Hogan had not silenced Plaintiff Delegate Cox; determined 

that Plaintiffs had not shown a likelihood of success on their claim under Article 44 of the 

Maryland Declaration of Rights because they had not demonstrated Defendants violated 

their clearly defined rights; determined that, because Plaintiffs had not shown the harm 

they faced resulted from constitutional violations, this factor weighed against granting their 

motion; determined that the balance of equities and the public interest also did not weigh 

in favor of granting Plaintiffs’ motion; and determined that Plaintiffs had not shown that 

the orders were “beyond all question, a plain, palpable invasion of rights secured by the 

fundamental law.” Antietam Battlefield KOA, 461 F. Supp. 3d at 227-42. 

Plaintiffs appealed, and appeal No. 20-1579 was opened in this court. While that 

appeal was pending, Plaintiffs other than Reverend Gary Pomrenke filed an amended 

complaint in the district court presenting the same allegations and claims raised in the 

initial complaint against Defendants. Defendants moved pursuant to Fed. R. Civ. P. 

12(b)(6) to dismiss the amended complaint. The parties stipulated in the district court to 

the dismissal without prejudice of Plaintiff Adventure Park USA, LLC under Fed. R. Civ. 

P. 41(a)(1), and a panel of this court later granted the Fed. R. App. P. 42(b) motion for 

voluntary dismissal Plaintiffs filed in appeal No. 20-1579. Antietam Battlefield KOA v. 

Hogan, No. 20-1579 (4th Cir. Jul. 6, 2020) (unpublished order). 
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On November 18, 2020, the district court granted Defendants’ Rule 12(b)(6) motion 

and dismissed the amended complaint. In this order, the court: incorporated the May 20 

order; applied Jacobson to determine whether Plaintiffs’ constitutional claims survived the 

motion to dismiss; relied on the March 30 executive order because the amended complaint 

failed to specify which of the Governor’s orders were being challenged; determined that 

Plaintiffs had failed to plausibly allege plain and palpable violations of the Commerce and 

Establishment Clauses and of their rights to free speech, assembly, free exercise, and equal 

protection; determined their Article IV and takings claims also failed; and determined that 

their claims under the Maryland Constitution were barred by the Eleventh Amendment. 

Appellants timely appealed the May 20 and November 18 orders, and the subject 

appeal was opened.2

 Invoking Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 

63 (2020) (per curiam) (granting application for injunctive relief and enjoining Governor 

of New York from enforcing COVID-19-related executive order’s occupancy limits on 

attendance at religious services after reviewing limits under strict scrutiny), Appellants 

moved for an immediate injunction or, alternatively, an immediate remand to the district 

court. We denied their motion without prejudice to their right to refile it after first moving 

for an injunction pending appeal with the district court on January 20, 2021, and the parties 

2 We conclude after review of the record in light of Affinity Living Grp., LLC v. 

StarStone Specialty Ins. Co., 959 F.3d 634, 639 (4th Cir. 2020), and Bing v. Brivo Sys., 

LLC, 959 F.3d 605, 610-12, 614-15 (4th Cir. 2020), cert. denied, 141 S. Ct. 1376 (2021), 

that we have jurisdiction to review this appeal following the dismissal without prejudice of 

Adventure Park USA, LLC. 
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completed their briefing on March 4, 2021. Appellants argue on appeal for reversal of the 

district court’s orders and a remand for further proceedings. 

Following the completion of briefing, Governor Hogan issued additional

proclamations and executive orders, easing COVID-19 restrictions as Maryland continued 

to navigate through the pandemic. On March 9, 2021, the Governor issued an executive 

order amending prior orders, providing that the then-in-effect 50 percent occupancy limit 

for religious and several other types of establishments would remain in effect until March 

12, 2021, and providing this limit would cease to be effective as of 5:00 PM on that date. 

The March 9 order also required the wearing of face coverings in certain circumstances. 

The Governor’s April 21, 2021, executive order amended prior orders and reduced the 50 

percent occupancy limit. His April 28, 2021, executive order amended prior orders and 

omitted the requirement to wear face coverings at outdoor locations. His May 12, 2021, 

executive order amended prior orders and omitted occupancy limits altogether. His May 

14, 2021, executive order amended prior orders and reduced the face covering requirement 

again. His June 15, 2021, executive order rescinded the May 14 order and rendered that 

order of no further effect as of July 1, 2021. The last of Governor Hogan’s proclamations 

renewing the state of emergency and catastrophic health emergency issued on August 11, 

2021. The August 11 proclamation renewed these states until 11:59 PM on August 15, 

2021. 

On January 4, 2022, in response to the Omicron variant of COVID-19, Governor 

Hogan proclaimed a new state of emergency and a catastrophic health emergency. That 

day, the Governor issued executive orders allowing the augmenting of the emergency 
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medical services workforce and regulating healthcare personnel, care space, and supplies. 

On February 3, 2022, Governor Hogan terminated the state of emergency and rescinded 

the January 4 proclamation as of 11:59 PM that day. 

The first issue before us is whether these developments moot any portion of this

appeal. “The mootness doctrine is rooted in the case-or-controversy limitation on federal 

judicial power contained in Article III, Section 2 of the Constitution.” Lighthouse 

Fellowship Church v. Northam, 20 F.4th 157, 162 (4th Cir. 2021) (citing Friends of the 

Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000)). The 

jurisdiction of the federal courts extends only to actual cases or controversies. See Porter

v. Clarke, 852 F.3d 358, 363 (4th Cir. 2017). “When a case or controversy ceases to exist—

either due to a change in the facts or the law—the litigation is moot, and the court’s subject 

matter jurisdiction ceases to exist also.” Id. (internal quotation marks omitted). “Put 

differently, a case is moot when the issues presented are no longer live or the parties lack 

a legally cognizable interest in the outcome.” Id. (internal quotation marks omitted); 

see Lighthouse Fellowship Church, 20 F.4th at 162 (noting that a case may become moot 

after entry of district court’s judgment and while appeal is pending). 

We conclude that Appellants’ religious exercise claims are moot. The 

proclamations and executive orders they challenged as violative of the First Amendment 

and the Maryland Declaration of Rights are no longer in effect, having expired on their 

own terms and with the termination of the state of emergency. Further, given the absence 

here of any reasonable expectation that Appellants will be subject to future restrictions on 

religious practice like those present in the orders they challenged, we discern that no 
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exception to mootness is applicable. See Am. Fed. of Gov’t Emps. v. Off. of Special Couns., 

1 F.4th 180, 187-88 (4th Cir. 2021) (rejecting argument that case challenging withdrawn 

advisory opinion was not moot because it was not reasonable to expect complaining party 

would be subject to same action again given that opinion had been withdrawn in response 

to changed circumstances); Lighthouse Fellowship Church, 20 F.4th at 163-64 (reasoning 

that decision in Roman Catholic Diocese of Brooklyn rendered it “speculative to assert” 

that the Virginia Governor would “reinstate [COVID-19-based] restrictions on religious 

exercise” that had already expired and that mootness finding was consistent with Am. Fed.

because easing of restrictions occurred as Virginia navigated through the pandemic). In 

the absence of a live controversy between the parties regarding Appellants’ religious 

exercise claims, we dismiss the appeal as to these claims as moot. 

As to the remainder of the Appellants’ claims, we review the district court’s denial 

of a preliminary injunction for an abuse of discretion, reviewing factual findings for clear 

error and legal conclusions de novo. Leaders of a Beautiful Struggle v. Baltimore Police 

Dep’t, 2 F.4th 330, 339 (4th Cir. 2021) (en banc). We review a district court’s dismissal 

under Rule 12(b)(6) for failure to state a claim de novo, viewing the facts in the light most 

favorable to the plaintiff. Sheppard v. Visitors of Va. State Univ., 993 F.3d 230, 234 

(4th Cir. 2021). Having reviewed the remainder of the district court’s denial and dismissal 

orders, we conclude that the court did not reversibly err in those rulings. We therefore 

affirm these rulings for the reasons the district court stated. Antietam Battlefield KOA v. 

Hogan, No. 1:20-cv-01130-CCB (D. Md. May 20 & Nov. 18, 2020). 
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We dispense with oral argument because the facts and legal contentions are 

adequately presented in the materials before this court and argument would not aid the 

decisional process. 

DISMISSED IN PART;

AFFIRMED IN PART