USCA4 Appeal: 23-1887 Doc: 71 Filed: 12/31/2024 Pg: 1 of 21

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-1887

WEST VIRGINIA PARENTS FOR RELIGIOUS FREEDOM; PASTOR CHRIS FIGARETTI; JUDD UHL, individually and on behalf of their minor children, and on behalf of others similarly situated,

Plaintiffs – Appellants,

and

ANDREW WALDRON,

Plaintiff,

v.

DR. MATTHEW CHRISTIANSEN, in his official capacity as the State Health Officer; JUSTIN DAVIS, in his official capacity as the Interim Commissioner for the Bureau of Public Health,

Defendants – Appellees,

and

BELINDA MOSS, in her official capacity as the Principal Administrator of Cheat Lake Elementary School; MINDY WILSON, in her official capacity as the Principal Administrator of the Jefferson Elementary Center,

Defendants.

Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. John Preston Bailey, District Judge. (5:23-cv-00158-JPB)

Argued: September 25, 2024 Decided: December 31, 2024 USCA4 Appeal: 23-1887 Doc: 71 Filed: 12/31/2024 Pg: 2 of 21

Before KING, BENJAMIN, and BERNER, Circuit Judges.

Vacated and remanded by published opinion. Judge King wrote the opinion, in which Judge Benjamin joined. Judge Berner wrote a dissenting opinion.

ARGUED: Christopher David Wiest, Covington, Kentucky, for Appellants. Jonathan Zak Ritchie, HISSAM FORMAN DONOVAN RITCHIE PLLC, Charleston, West Virginia, for Appellees. ON BRIEF: Aaron Siri, Elizabeth A. Brehm, Walker Moller, SIRI & GLIMSTAD LLP, New York, New York, for Appellants. Michael B. Hissam, Maureen F. Gleason, HISSAM FORMAN DONOVAN RITCHIE PLLC, Charleston, West Virginia, for Appellees.

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KING, Circuit Judge:

The Plaintiffs herein seek appellate relief from an abstention ruling made against

them in August 2023 in the Northern District of West Virginia. See W. Va. Parents for

Religious Freedom v. Christiansen,

(N.D.W.Va. 2023) (the

“Abstention Ruling”). By their Complaint, the Plaintiffs sued under

and

sought declaratory and injunctive relief against Dr. Matthew Christiansen, the State Health

Officer and Commissioner of the West Virginia Bureau of Public Health (the

“Commissioner”). The Complaint alleges a single First Amendment claim, i.e., that West

Virginia’s mandatory vaccination requirement for children — section 16-3-4 of the West

Virginia Code (the “Vaccination Mandate”) — is unconstitutional under the Free Exercise

Clause of the First Amendment. 1

In its Abstention Ruling, the district court applied the so-called Pullman abstention

doctrine and did not resolve the Free Exercise claim alleged in the Complaint. See R.R.

Comm’n of Tex. v. Pullman Co.,

(1941). As our colleague Judge Niemeyer

recognized recently in Sonda v. W. Va. Oil & Gas Conservation Comm’n, the Pullman

abstention doctrine is described thusly:

[T]he Pullman exception may be applied when there is (1) an unclear issue of state law presented for decision (2) the resolution of which may moot or present in a different posture the federal constitutional issues such that the state law issue is potentially dispositive.

1 The Free Exercise Clause of the First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” U.S. Const. amend. I.

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See

(4th Cir. Jan. 31, 2024) (cleaned up). As explained herein, we are

satisfied that — in these circumstances — the Abstention Ruling was erroneously made,

and we therefore vacate and remand.

I.

A.

Pursuant to West Virginia law, the public school attendance of all children in the

State aged six to seventeen is mandated, with exceptions for private schooling, parochial

schooling, learning pods, microschooling, and home schooling. See

-

8-1–1a. In order for the State’s children to attend a public, private, or parochial school,

however, their parents are obliged to comply with the Vaccination Mandate. Pursuant

thereto, those children are required to be immunized against “chickenpox, hepatitis-b,

measles, meningitis, mumps, diphtheria, polio, rubella, tetanus, and whooping cough.” See

(b).

The Commissioner is authorized, however, to exempt a child from the Vaccination

Mandate “upon sufficient medical evidence that immunization is contraindicated or there

exists a specific precaution to a particular vaccine.” See

(h). A

request for an exemption from the Vaccination Mandate must be accompanied by a

certification of a licensed physician “stating that the physical condition of the child is such

that immunization is contraindicated or there exists a specific precaution to a particular

vaccine.” See

(h)(1). The West Virginia Code does not authorize

the Commissioner to issue an exemption authorized for religious reasons.

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B.

On April 26, 2023, the Plaintiffs filed this lawsuit in the Northern District of West

Virginia. They sued the Commissioner in his official capacities and pleaded their single

claim — that the Vaccination Mandate contravenes the Free Exercise Clause of the First

Amendment. 2 More specifically, the Plaintiffs simply contend that the Vaccination

Mandate is unconstitutional because there is no exemption for religious purposes.

Two days after the Complaint was filed, on April 28, 2023, the Plaintiffs moved for

a preliminary injunction and sought expedited consideration of their § 1983 Free Exercise

claim. The parties promptly submitted supporting and opposing briefs, and the district

court, on May 10, heard oral argument from the lawyers. 3 On May 18, the district court

entered an order denying the preliminary injunction request, ruling that the Plaintiffs had

failed to demonstrate a substantial threat of irreparable injury if an injunction was denied.

See J.A. 210–14. 4 The court explained that the 2022-23 school year was ending soon, and

“[P]laintiffs will not be forced to choose between religious conviction and mandatory

2 Pursuant to § 1983 of Title 42, an individual can sue government officials and others acting “under the color of state law” for a civil rights violation. 3 Two amicus curiae participants — The Center for Rural Health Development, Inc. and the Attorney General of West Virginia — came forth and made submissions in the preliminary injunction proceedings. The Center for Rural Health Department supported the Commissioner, and the Attorney General supported the Plaintiffs. Neither has participated in this appeal. 4 Our citations herein to “J.A. ___” refer to the Joint Appendix filed herein by the parties.

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vaccination for several additional months.” See J.A. 214. The court also established an

expedited briefing schedule for the relevant issues.

Soon thereafter, the Plaintiffs and the Commissioner each moved for summary

judgment. The Plaintiffs contended that the Vaccination Mandate plainly contravenes the

Free Exercise Clause. The Commissioner made three contentions in response, arguing in

what was designated as a cross-motion for summary judgment: (1) that the district court

should abstain from resolving the Free Exercise claim, pursuant to the Pullman abstention

doctrine; (2) that the Plaintiffs had failed to sue the proper State official, were unable to

satisfy the Ex Parte Young exception to sovereign immunity, and that the lack of

redressability undermined Article III standing; and (3) that the Vaccination Mandate is

constitutional and does not contravene the Free Exercise Clause.

The Commissioner’s summary judgment brief advised the district court of a recent

State enactment — called the Equal Protection for Religion Act (the “EPRA”) — that was

passed by the West Virginia legislature in March 2023 and made effective on May 29,

2023. The Commissioner asserted — in arguing for Pullman abstention — that the state

courts should be accorded an initial opportunity to assess how EPRA impacted the

Vaccination Mandate. 5 The Commissioner also pointed out that the Vaccination Mandate

5 The ERPA provides, inter alia, as follows:

Notwithstanding any other provision of law, no state action may . . . [s]ubstantially burden a person’s exercise of religion unless applying the burden to that person’s exercise of religion in a particular situation is (Continued) 6 USCA4 Appeal: 23-1887 Doc: 71 Filed: 12/31/2024 Pg: 7 of 21

had been upheld by our Court several years ago in the face of constitutional challenges,

that is, in Workman v. Mingo Cnty. Bd. of Educ., 419 Fed. App’x 348 (4th Cir. 2011)

(unpublished) (holding that Vaccination Mandate does not contravene, inter alia, Free

Exercise Clause).

By its Abstention Ruling of August 2, 2023, the district court denied the Plaintiffs’

summary judgment request, resolved to abstain from the Free Exercise claim, and did not

reach, address, or resolve the Commissioner’s substantive contentions. The Abstention

Ruling decided that the Pullman abstention doctrine applied to the situation presented and

that a stay of the proceedings was warranted on that basis, stating that an EPRA claim “has

the potential to resolve this issue without this Court having to render an opinion on a

substantial federal constitutional question.” See Abstention Ruling, 685 F. Supp. 3d at 379.

The Abstention Ruling explicitly recited that the court would “abstain from ruling on the

substantive issues presented by this case” and “stay[ed] this matter until such time that the

essential to further a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest.

See

-1A-1(a). EPRA purports to create a cause of action for any “person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened” in violation of the Act.

at § 35-1A-1(b)(1). No West Virginia state court has heretofore applied or construed EPRA.

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claims addressed herein are presented to the state courts of West Virginia.” Id. 6 The

Plaintiffs thereupon filed a notice of appeal, seeking reversal of the Abstention Ruling.

In their appellate submissions, the parties each addressed the jurisdictional issue

presented, in that the Abstention Ruling appears to be a non-final interlocutory order. The

Plaintiffs contended that appellate jurisdiction exists under

, in that the

Abstention Ruling placed them “effectively out of court.” Alternatively, the Plaintiffs

argued that appellate jurisdiction exists under the “collateral order doctrine.” The

Commissioner’s brief agreed with the Plaintiffs’ jurisdictional contentions.

Of importance, Judge Niemeyer’s recent Sonda decision has now resolved the

jurisdictional issue in favor of the Plaintiffs. See Sonda v. W. Va. Oil & Gas Conservation

Comm’n,

, 218 (4th Cir. Jan. 31, 2024) (recognizing that § 1291 final order

jurisdiction, as well as collateral order jurisdiction, are proper in appeal from stay order

predicated on Pullman abstention). Pursuant to Sonda’s thorough explanation of its

jurisdictional ruling, we possess jurisdiction in this appeal. 7

6 The Abstention Ruling denied the summary judgment request of the Plaintiffs and awarded the abstention request interposed by the Commissioner. The Abstention Ruling was entitled — apparently with a misnomer — as:

Order Denying Plaintiffs’ Motion for Summary Judgment and for Permanent Injunction and Granting Defendant’s Cross-Motion for Summary Judgment.

See Abstention Ruling, 685 F. Supp. 3d at 371 (emphasis added). 7 The Sonda decision was rendered on January 31, 2024, almost six months after the Abstention Ruling. Sonda’s rulings bear substantially on the controlling issues herein, and they constrain our resolution of this appeal.

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II.

We are obliged to review a district court’s Pullman abstention decision for abuse of

discretion. See Richmond, Fredericksburg & Potomac R.R. Co. v. Frost,

(4th Cir. 1993). And an abuse of discretion occurs when the district court is guided by an

erroneous legal principle. See Cooter & Gell v. Hartmarx Corp.,

, 401–02

(1990). Importantly, however, “there is little or no discretion to abstain in a case which

does not meet traditional abstention requirements.” See Martin v. Stewart,

(4th Cir. 2007) (internal quotation marks omitted). And “[w]hether a case satisfies the

basic requirements of abstention” is a legal question that we review de novo. See Myles

Lumber Co. v. CNA Fin. Corp.,

, 823 (4th Cir. 2000).

III.

A.

The Plaintiffs pursue three contentions in arguing that the district court abused its

discretion in abstaining under the Pullman abstention doctrine. First, they contend that the

Abstention Ruling fails to satisfy the requirements of Pullman abstention. Second, the

Plaintiffs contend that the Abstention Ruling improperly created a state court exhaustion

requirement — compelling a West Virginia plaintiff pursuing a § 1983 claim under the

Free Exercise Clause to first exhaust that claim in a state court. Third, they contend that

Pullman abstention is not warranted in this situation, where the challenged state law, in

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their view, plainly violates the Free Exercise Clause. As explained herein, we are satisfied

that the Abstention Ruling is fatally flawed.

B.

Put simply, a federal court’s decision to abstain from the exercise of its jurisdiction

is “the exception, not the rule.” See Hawaii Hous. Auth. v. Midkiff,

(1984) (internal quotations omitted). And as a general proposition, as Judge Niemeyer

emphasized in Sonda, “a federal court, whose jurisdiction has been invoked, must exercise

that jurisdiction and address the matter before it.” See Sonda v. W. Va. Oil and Gas

Conservation Comm’n,

(4th Cir. Jan. 31, 2024) (emphasis in the

original). Indeed, “[t]he Supreme Court has repeatedly instructed that federal courts have

a strict duty to exercise the jurisdiction that is conferred upon them by Congress.” See

Martin v. Stewart,

(4th Cir. 2007) (internal quotation marks omitted).

As Sonda also emphasized, that duty constitutes a “virtually unflagging obligation.” See

(internal quotation marks omitted).

There are multiple abstention doctrines — including Pullman abstention — that

constitute “extraordinary and narrow exceptions to a federal court’s duty to exercise the

jurisdiction conferred on it.” See Sonda,

(internal quotation marks omitted).

Again, — repetition sometimes being helpful — the Pullman abstention doctrine only

applies where:

[T]here is (1) an unclear issue of state law presented for decision (2) the resolution of which may moot or present in a different posture the federal constitutional issue such that the state law issue is potentially dispositive.

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(internal quotation marks omitted). As a result, Pullman abstention can only be invoked

to avoid the unnecessary adjudication of a federal constitutional issue and to prevent

friction between federal and state legal principles. See Midkiff,

.

Pullman abstention is typically reserved for a situation where the state law being

presented is unclear and could be interpreted in a way that avoids the federal constitutional

issue. See City of Houston v. Hill,

(1987). And Pullman abstention is

not applicable if the state law is not subject to an interpretation that would render

unnecessary the adjudication of a federal constitutional question. See Midkiff,

(quoting Harman v. Forssenius,

(1965)) (internal quotation marks

omitted). The Supreme Court has repeatedly emphasized that abstention should only be

invoked in “special circumstances,” after careful consideration of the applicable facts, due

to litigation delays that can be caused by abstention. See Harris Cnty. Comm’rs Ct. v.

Moore,

(1975). And an exercise of caution by a court abstaining in a Free

Exercise claim is particularly important, because the delay may impact the exercise of

religious freedoms. Indeed, the Court has “been particularly reluctant to abstain in cases

involving facial challenges based on the First Amendment.” See City of Houston,

.

With these authorities in mind, we turn to resolution of this appeal. As the Plaintiffs

correctly contend, the only state law presented for decision here is the Vaccination

Mandate. On the other hand, the only state law identified as being unclear is the recently

adopted EPRA. And the Plaintiffs are not challenging the Vaccination Mandate under

EPRA. Rather, the Plaintiffs pursue their Free Exercise claim solely under the Free

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Exercise Clause. Otherwise stated, they consider and steadfastly maintain that EPRA is

irrelevant.

If the Plaintiffs had deemed it appropriate, they could have sought to pursue a claim

under EPRA. As the Supreme Court has emphasized, however, “abstention cannot be

ordered simply to give state courts the first opportunity to vindicate the federal claim.” See

Zwickler v. Koota,

(1967) (discussing McNeese v. Bd. of Educ.,

(1963)). And the Court has also recognized that abstention is not justified when “the

plaintiffs might have sought relief under a similar provision of the state constitution.” See

Examining Bd. of Engr’s, Architects, and Surveyors v. Flores de Otero,

(1976); see also Wisconsin v. Constantineau,

(1971); Midkiff,

, 237 n.4.

Finally, the Commissioner argues — perhaps hoping the federal courts set off on a

“wild goose chase” — that abstention under the Pullman doctrine is proper in these

circumstances. But the Pullman abstention doctrine requires that the federal claim

“present” an unclear issue of state law, or that the federal court will have to “interpret an

unclear state law.” See Nivens v. Gilchrist,

(4th Cir. 2006); see also

Sonda,

. Again, EPRA — the Commissioner’s assertedly unclear state law

— is not “presented” as unclear in connection with the Free Exercise claim, and the district

court was not “required” to interpret it. 8

8 Although the Commissioner also asserts that an assessment of strict scrutiny and rational basis standards of review are somehow impacted by EPRA, those assertions are akin to a “red herring.” The West Virginia legislature is not empowered to bind a federal (Continued) 12 USCA4 Appeal: 23-1887 Doc: 71 Filed: 12/31/2024 Pg: 13 of 21

Anticipating that he could receive an adverse decision from us on the Abstention

Ruling, the Commissioner alternatively argued that we should resolve this appeal by

awarding judgment to him based on his contentions regarding Ex Parte Young and Article

III standing. But — as we have emphasized may times — we are a “court of review, not

of first view.” See Moses Enter., LLC v. Lexington Ins. Co.,

(4th Cir.

2023) (quoting Cutter v. Wilkinson,

, 718 n.7 (2005)). So, we will be content

to leave resolution of the issues concerning Ex Parte Young and Article III standing to the

sound judgment of the district court. As his final alternative, if those contentions fail, the

Commissioner urges that we remand for the district court to resolve the Free Exercise

claim.

In these circumstances, we are satisfied that the district court erred in applying the

Pullman abstention doctrine, and that it abused its discretion in making the Abstention

Ruling. We will therefore vacate and remand for further proceedings. Those proceedings

should include resolution of the Commissioner’s Ex Parte Young and Article III standing

contentions, and, if necessary, the Plaintiffs’ Free Exercise claim. 9

court, and it cannot require us to apply strict scrutiny principles to a federal legal issue. Nor could the West Virginia legislature offer controlling guidance to the federal courts on when or whether strict scrutiny should be applied. See England v. Louisiana State Bd. of Med. Exam’rs,

(1964) (recognizing “the primacy of the federal judiciary in deciding questions of federal law”).

If the district court’s remand proceedings reach the merits of the Free Exercise 9

claim, the court should assess the applicability of our 2011 decision in Workman v. Mingo Cnty. Bd. of Educ., 419 Fed. App’x 348 (4th Cir. 2011) (unpublished). As noted, we have therein already ruled, inter alia, that the Vaccination Mandate does not contravene the Free Exercise Clause. And although that decision was not published, it was unanimously (Continued) 13 USCA4 Appeal: 23-1887 Doc: 71 Filed: 12/31/2024 Pg: 14 of 21

IV.

Pursuant to the foregoing, we vacate the Abstention Ruling and remand for such

other and further proceedings as may be appropriate.

VACATED AND REMANDED

rendered after full briefing and oral argument, and on the basis of Jacobson v. Massachusetts and its progeny. See

(1905).

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BERNER, Circuit Judge, dissenting:

In light of the deference owed to the district court, I would affirm its decision to

abstain. Two conditions must exist for a federal court to invoke Pullman abstention. See

R.R. Comm’n of Tex. v. Pullman Co.,

(1941). The doctrine applies only where

“there is (1) an unclear issue of state law presented for decision (2) the resolution of which

may moot or present in a different posture the federal constitutional issue such that the state

law issue is potentially dispositive.” Wise v. Circosta,

, 101 (4th Cir. 2020) (en

banc) (citation omitted). Whether a case meets these two basic requirements is reviewed

de novo. See Erie Ins. Exch. v. Md. Ins. Admin.,

(4th Cir. 2024). If a

case fulfills both prerequisites, however, “we review the district court’s ultimate decision

to abstain for abuse of discretion.”

(internal quotation marks omitted).

Unlike the majority, I believe this case comfortably satisfies both Pullman

prerequisites. Plaintiffs argue that Section 16-3-4 of the West Virginia Code (the

Vaccination Mandate) is unlawful. They seek to challenge the Vaccination Mandate under

the Free Exercise Clause of the United States Constitution. The answer to an unclear

question of West Virginia law, however, may moot their federal constitutional claim or, at

the very least, present their case “in a different posture.” Wise, 978 F.3d at 101. Whether

the Vaccination Mandate violates West Virginia’s Equal Protection for Religion Act (the

EPRA) is an open and fundamentally different question from whether the Vaccination

Mandate violates the Free Exercise Clause. West Virginia state courts’ resolution of the

former may obviate the federal courts’ need to decide the latter.

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This case satisfies the first Pullman requirement because there is “an unclear issue

of state law presented for decision.” Wise, 978 F.3d at 101. No one disputes that the

Vaccination Mandate’s legality under the EPRA is an unsettled question of West Virginia

law. The EPRA establishes that strict scrutiny applies to any state regulation that

substantially burdens religion.

-1A-1. The statute applies

“[n]otwithstanding any other provision of law,”

§ 35-1A-1(a), and Plaintiffs argue that

the Vaccination Mandate substantially burdens religion. Plaintiffs decline to pursue a state

law claim, but the West Virginia Attorney General, writing in support of the Plaintiffs as

amicus curiae before the district court, asserted that the Vaccination Mandate’s lack of a

religious exemption is unlawful under the EPRA. See J.A. 219, 224-25.

In arguing that this case fails to satisfy the first Pullman factor, Plaintiffs misread

the phrase “presented for decision,” Wise, 978 F.3d at 101. According to Plaintiffs, there

cannot be “an unclear issue of state law presented for decision,” id., unless a litigant raises

a state law claim. Plaintiffs contend that “[w]hether or not the [Vaccination Mandate]

violates the EPRA has not been ‘presented for decision’ because it is not and never has

been at issue in this litigation as Plaintiffs have not asked a federal court to interpret that

statute.” Plaintiffs’ Opening Br. 30-31. In Plaintiffs’ view, “[t]he only claim ‘presented for

decision’ below was a federal constitutional claim.” Plaintiffs’ Reply Br. 2.

This cramped reading of the phrase “presented for decision” does not comport with

our precedent. The majority seemingly accepts Plaintiffs’ interpretation, stating that “the

only state law presented for decision here is the Vaccination Mandate.” Maj. Op. 11. Yet

no federal court of appeals, including the Fourth Circuit, has conditioned the

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appropriateness of Pullman abstention on the affirmative invocation of a state law claim.

An issue of state law may be “presented for decision” even where the plaintiff does not

plead a state law claim. In Franklin & Waldron, Inc. v. City of Martinsville, for example,

this court affirmed a district court’s decision to abstain under Pullman even where no

violation of state law was alleged and, indeed, the plaintiff “insist[ed] that relief in the

courts of Virginia [was] precluded.”

(4th Cir. 1974) (Clark, J., sitting

by designation). This court similarly found abstention proper in multiple other instances

where the plaintiffs declined to raise a claim under state law. See Webster v. Perry,

(4th Cir. 1975) (per curiam); Ratcliff v. Buncombe County,

(4th

Cir. 1985).

Conditioning the availability of Pullman abstention on whether the plaintiff

affirmatively raised a state law claim also defies common sense. As the Second Circuit

explained, “[i]t is no answer to the contention that the district court should have abstained,

that [plaintiffs-appellants] did not raise their state claims in their complaint. [Plaintiffs-

appellants] cannot be allowed to frustrate the policies underlying the doctrine of abstention

by this simple expedient.” Reid v. Bd. of Ed. of City of N.Y.,

, 243 n.7 (2d Cir.

1971).

After setting aside the EPRA issue as not “presented,” the majority concludes that

this case cannot satisfy the first Pullman prerequisite. It endorses Plaintiffs’ argument that

there is no “unclear issue of state law” because the wording of the Vaccination Mandate is

unambiguous. See Plaintiffs’ Reply Br. 8. This limited inquiry misses the mark. In

determining whether Pullman abstention is appropriate, we are not constrained to

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evaluating only whether the meaning of the challenged law seems “unclear” in isolation.

Rather, the ambiguity may derive from the uncertain relationship between the challenged

provision and another state law. The unclear issue of state law in this case concerns the

relationship between the Vaccination Mandate and the EPRA. The text of the Vaccination

Mandate may be unambiguous, but no West Virginia court has analyzed whether the

Vaccination Mandate, as it applies to people with a religious objection to vaccination,

violates the EPRA. This is an unresolved issue of state law with no clear answer.

In several cases where the meaning of the challenged state law was perfectly clear,

this court and the Supreme Court have found abstention proper because the challenged

law’s relationship with a different state law or constitutional provision was unsettled. In

Ratcliff, for example, we held that the district court should properly have abstained from

hearing a federal constitutional challenge to a North Carolina law because a different

provision of the North Carolina code may have conflicted with that law: “[T]he dual office

holding provision in Chapter 129 may well control . . . because, in North Carolina, a special

and particular statute controls over a statute that is general in nature.” 759 F.2d at 1186.

Similarly, the Supreme Court in Reetz v. Bozanich found abstention appropriate where the

challenged Alaska law, though not facially ambiguous, was potentially invalidated by

“provisions of the Alaska Constitution at issue [that] have never been interpreted by an

Alaska court.”

(1970); see also City of Meridian v. S. Bell Tel. & Tel. Co.,

(1959) (per curiam); Askew v. Hargrave,

(1971) (per

curiam); Harris Cnty. Comm’rs Ct. v. Moore,

(1975) (“[I]n this case, the

uncertain status of local law stems from the unsettled relationship between the state

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constitution and [the challenged] statute.”). Because the relationship between the

Vaccination Mandate and the EPRA is unsettled, this case satisfies the first Pullman

requirement.

This case also meets the second Pullman precondition, which provides that a federal

court should abstain only where “the resolution of [the state law issue] may moot or present

in a different posture the federal constitutional issue such that the state law issue is

potentially dispositive.” Wise, 978 F.3d at 101. There is no requirement that the resolution

of the state law issue necessarily moot the federal constitutional issue. Instead, it is enough

that questions of state law “may dispose of the case and avoid the need for deciding the

constitutional question.” Meredith v. Talbot County,

(4th Cir. 1987). See

also Martin v. Stewart,

(4th Cir. 2007) (stating that “courts may abstain

when the need to decide a federal constitutional question might be avoided.”). In this

instance, it is sufficiently likely that a ruling from a West Virginia state court would render

unnecessary the adjudication of the Free Exercise claim in federal court.

At the very least, adjudication of the state law issue may “present the issue in a

different posture.” Wise, 978 F.3d at 101. The EPRA requires West Virginia courts to apply

strict scrutiny to laws substantially burdening religion, see

-1A-1, but

heightened scrutiny might not apply to Plaintiffs’ Free Exercise claim. As the district court

correctly noted, “the most hotly contested issue for decision posed to this Court is whether

strict scrutiny applies under federal law.” W. Va. Parents for Religious Freedom v.

Christiansen,

, 378 (N.D. W. Va. 2023). Plaintiffs argue that federal

courts evaluating a Free Exercise claim must also apply strict scrutiny, citing two recent

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rulings by the Supreme Court, Fulton v. City of Philadelphia,

(2021), and

Tandon v. Newsom,

(2021) (per curiam), which Plaintiffs describe as “directly

on point.” Plaintiffs’ Opening Br. 1. This characterization of Fulton and Tandon overstates

their relevance here. All three federal courts of appeals to hear post- Fulton and Tandon

challenges to compulsory vaccination policies similar to the Vaccination Mandate—

regulations that provide for medical exemptions but not religious exemptions—declined to

apply strict scrutiny. See Does 1-6 v. Mills,

(1st Cir. 2021); We the

Patriots USA, Inc. v. Conn. Off. of Early Childhood Dev.,

(2d Cir.

2023); Spivack v. City of Philadelphia,

(3d Cir. 2024). At a

minimum, a challenge under the EPRA may “present the issue in a different posture” than

a challenge under the Free Exercise Clause because, under the EPRA, the level of scrutiny

would not be disputed.

The majority points to the Supreme Court’s admonitions that (1) “abstention cannot

be ordered simply to give state courts the first opportunity to vindicate the federal claim,”

Zwickler v. Koota,

(1967), and (2) abstention is not justified when

“plaintiffs might have sought relief under a similar provision of the state constitution,”

Examining Bd. of Eng’rs, Architects, and Surveyors v. Flores de Otero,

(1976) (quoting Harris County,

). Maj. Op. 12. This case brushes up against

neither of those limitations, however. First, abstention was ordered to provide the state

court the initial opportunity to vindicate the state claim. Second, the EPRA and the Free

Exercise Clause are not “similar provision[s].” Flores de Otero,

; compare

U.S. Const. amend. I with

-1A-1.

20 USCA4 Appeal: 23-1887 Doc: 71 Filed: 12/31/2024 Pg: 21 of 21

Because this case satisfies Pullman’s two prerequisites, we should analyze the

district court’s abstention decision solely for abuse of discretion. Erie Ins. Exch.,

. Federal courts should be reluctant to abstain in cases involving facial challenges

under the First Amendment, see Zwickler,

, but “abstention is not always

precluded by a claim of First Amendment privilege.” Pub. Citizen Health Rsch. Grp. v.

Comm’n. on Med. Discipline of Md.,

(4th Cir. 1978) (per curiam). The

Supreme Court has found abstention appropriate in several such cases. E.g., Gov’t & Civic

Emps. Org. Comm. v. Windsor,

(1957); Harrison v. NAACP,

(1959); Babbitt v. United Farm Workers Nat’l. Union,

(1979). So too has this

court. In Public Citizen, a case presenting a First Amendment challenge, this court affirmed

the district court’s decision to abstain despite recognizing that “First Amendment claims

do require special attention from a federal court that is considering whether to order

abstention.”

. The invocation of the First Amendment does not foreclose

abstention. For these reasons, I cannot conclude that the district court’s use of Pullman

abstention in this case amounted to an abuse of discretion. I respectfully dissent.

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