IN THE

SUPREME COURT OF VIRGINIA

ANTHONY PENA,

Petitioner,

v. Record No. 211184

RALPH NORTHAM, IN HIS

OFFICIAL CAPACITY AS
GOVERNOR OF VIRGINIA,
et al.,

Respondents.

DEMURRER AND MOTION TO DISMISS

AND MEMORANDUM OF LAW IN SUPPORT

Respondents Governor of Virginia Ralph Northam, Virginia Department of

Human Resource Management (DHRM), DHRM Director Emily Elliott, Virginia

Department of Health (VDH), and State Health Commissioner M. Norman Oliver,

by counsel, under Va. Code § 8.01-647 and Rule 5:7(b)(6), submit this Demurrer

and Motion to Dismiss in response to the Verified Petition for Writs of Mandamus

filed by pro se petitioner Anthony Pena. The Petition seeks to compel the Governor

to amend Executive Directive No. 18 (ED-18), which sets COVID-19 workplace

protocols for executive branch employees and state contractors, and to compel the

remaining respondents to amend DHRM and VDH policies implementing ED-18.

 The Court should dismiss the Petition and deny the writ because Pena is not

entitled to mandamus relief. First, Pena lacks standing to challenge ED-18 and its

implementing policies because he alleges no direct interest in this dispute. Second,

Pena seeks to compel the discretionary acts of amending executive actions and

policies, rather than any ministerial duty. Third, Pena lacks a clear legal right to

relief because no Virginia law compels the respondents to perform the acts sought.

Fourth, Pena seeks to undo the completed acts of issuing ED-18 and its

implementing policies. Finally, if Pena had standing, he would have the adequate

remedy at law of a declaratory judgment action to adjudicate his concerns.

I. FACTUAL ALLEGATIONS

The Petition challenges the Governor’s ED-18, which went into effect on

September 1, 2021 and is in force until amended or rescinded by further executive

action. See Ex. A, ED-18 (Aug. 5, 2021). Subtitled “Ensuring a Safe Work Place,”

ED-18 establishes COVID-19 workplace protocols for executive branch employees

and state contractors. See id. Covered employees and contractors must disclose

their vaccination status to designated agency personnel. See id. ¶ A. Employees

(but not contractors) who are not fully vaccinated or who refuse to disclose their

vaccine status must undergo weekly COVID-19 testing and disclose the results to

their agency. See id. ¶ B. Employees and contractors who are not fully vaccinated

must also wear a mask when indoors and conducting public business. See id. ¶ C.

2
 ED-18 tasks DHRM with issuing policies, procedures, and guidance to

implement its directives, including addressing any exceptions and the availability

of a process to evaluate requests related to religious objections or disabilities. See

ED-18 ¶ E. Accordingly, DHRM has developed and issued policies, forms, and

guidance documents implementing ED-18.1 These policies incorporate guidance

from VDH on topics such as COVID-19 screening and testing.2

Pena disagrees with certain provisions in ED-18 and its implementing

policies, and he seeks writs of mandamus compelling: (1) the Governor to amend

ED-18 “with a directive providing informed consent”; (2) DHRM and its Director

to update DHRM policies “regarding ‘Long COVID’ ” and to “establish

administrative disclosures for informed consent”; and (3) VDH and the State

Health Commissioner to update VDH policies “to remove antibody test exclusion,”

to update policies “regarding ‘Long COVID,’ ” to “establish medical disclosures

for informed consent,” and to “[l]ist COVID19 spike protein as a toxic substance.”

Pet. ¶¶ 7-9. Though proceeding pro se, he also seeks attorney’s fees. See id. ¶ 10.3

1
See DHRM, Safe at Work, https://www.dhrm.virginia.gov/covid-19
(supplying links to policies, forms, and guidance documents issued under ED-18).
2
See, e.g., DHRM, ED-18 FAQs No. C.1, https://www.dhrm.virginia.gov/
docs/default-source/covid-19/ed-18-faqs-final-09032021.pdf (“VDH has advised
that antibody testing does not meet the requirements of ED #18.”)
3
Pena also seeks “declaratory and injunctive relief under the Virginia
Declaratory Judgment Act.” Pet. ¶ 2. The circuit courts possess exclusive original

3
II. LEGAL STANDARD

In a mandamus action, “the contention that a pleading does not state a cause

of action or that such pleading fails to state facts upon which the relief demanded

can be granted may be made by demurrer.” Va. Code Ann. §§ 8.01-273, 8.01-647.

A demurrer “tests the legal sufficiency” of a pleading. Harris v. Kreutzer, 271 Va.

188, 195 (2006). It “admits the truth of the facts contained in the pleading to which

it is addressed, as well as any facts that may be reasonably and fairly implied and

inferred from those allegations,” but “does not, however, admit the correctness of

the pleader’s conclusions of law.” C. Porter Vaughan, Inc. v. DiLorenzo, 279 Va.

449, 455 (2010). “To survive a challenge by demurrer, a pleading must be made

with sufficient definiteness to enable the court to find the existence of a legal basis

for its judgment.” Rafalko v. Georgiadis, 290 Va. 384, 396 (2015).

III. ARGUMENT

The Court should dismiss this Petition because, as a matter of law, Pena is

not entitled to mandamus relief. The “extraordinary remedy” of mandamus is

“used to compel a public official to perform a purely ministerial duty that is

imposed upon the official by law.” Town of Front Royal v. Front Royal & Warren

Cty. Indus. Park Corp., 248 Va. 581, 584 (1994). “A writ of mandamus may be

jurisdiction over such claims. See Va. Code Ann. § 8.01-184; D.D. Jones Transfer
& Warehouse Co. v. Commonwealth, 174 Va. 184, 193 (1939) (“Declaratory
judgments are creatures of statutes. . . . We have no original jurisdiction.”).

4
issued only when there is a clear right to the relief sought, a legal duty to perform

the requested act, and no adequate remedy at law.” Ancient Art Tattoo Studio v.

City of Va. Beach, 263 Va. 593, 597 (2002). “The petition must show on its face a

clear legal right to relief which the writ, if granted, would remedy,” Lehman v.

Morrissett, 162 Va. 463, 469 (1934), and “the writ is never granted in doubtful

cases.” Hertz v. Times-World Corp., 259 Va. 599, 608 (2000).

A. Pena lacks standing to challenge ED-18 and its implementing

policies because he alleges no direct interest in this dispute.

Pena pleads no facts showing that he has standing to pursue this action.

Standing to seek mandamus relief “is a threshold issue and a question of law.”

Howell v. McAuliffe, 292 Va. 320, 330 (2016). The “general requirements of

standing apply to applications for writs of mandamus and prohibition.” Id. In

determining whether a mandamus petitioner has standing, this Court considers the

petition’s “factual allegations as true.” Id. “It is incumbent on [the] petitioner[] to

allege facts sufficient to demonstrate standing.” Id. Specifically, the petitioner must

“demonstrate a direct interest, pecuniary or otherwise, in the outcome of the

controversy that is separate and distinct from the interest of the public at large.” Id.

The Petition is devoid of any facts stating Pena’s direct interest in this

dispute.4 Pena does not assert that he is an executive branch employee or state

4
Pena states the bare legal conclusion that he “continues to be injured” by the
respondents’ alleged violations of various constitutional and statutory provisions,

5
contractor to whom ED-18 or its implementing policies would apply, and he does

not claim that he has been or will be injured in any way. Simply put, taking the

Petition’s factual allegations as true, Pena pleads no interest in the outcome or

relief sought that is separate and distinct from that of the Virginia public at large.

Pena also lacks standing to sue in a representative capacity. A party “does

not acquire standing to sue in a representative capacity by asserting the rights of

another, unless authorized by statute to do so.” Casey v. Merck & Co., 283 Va.

411, 418 (2012). No statute authorizes representative standing here, and “when a

party without standing brings a legal action, the action so instituted is, in effect, a

legal nullity.” Id. Because Pena lack standing to represent himself or anyone else

on the mandamus claims asserted in the Petition, this action should be dismissed.

B. The Petition seeks to compel the discretionary acts of amending

executive actions and policies, rather than any ministerial duty.

Further, mandamus “may be used to compel performance of a purely

ministerial duty, but it does not lie to compel the performance of a discretionary

duty.” Ancient Art Tattoo Studio v. City of Va. Beach, 263 Va. 593, 597 (2002). A

ministerial duty “is one which a person performs in a given state of facts and

prescribed manner in obedience to the mandate of legal authority without regard to,

or the exercise of, his own judgment upon the propriety of the act being done.”

see Pet. ¶ conclusion, but he provides no factual support for this claim. He also
incorrectly asserts that as a mandamus petitioner, he may proceed “without any
special or pecuniary interest” in the subject matter of the dispute. Id. ¶ 118.

6
Richlands Med. Ass’n v. Commonwealth ex rel State Health Comm’r, 230 Va. 384,

386 (1985). In contrast, “mandamus will not lie to compel the performance of any

act or duty necessarily calling for the exercise of judgment and discretion on the

part of the official charged with its performance.” Ancient Art, 263 Va. at 598.

Mandamus cannot adjudicate whether an action “is proper, wise, or desirable.”

Griffin v. Bd. of Supervisors of Prince Edward Cty., 203 Va. 321, 329 (1962).

Pena seeks to compel the Governor to amend ED-18 and to compel the other

respondents to amend policies implementing ED-18. Issuing these executive

branch employment policies required the exercise of judgment and discretion.

Moreover, the fact that these measures may be amended or rescinded at any time

further underscores their discretionary nature. Mandamus does not lie to compel

the respondents to revisit and change these discretionary acts.

C. Pena lacks a clear legal right to relief because no Virginia law

compels the respondents to perform the acts sought.

The petition “must show on its face a clear legal right to relief which the

writ, if granted, would remedy,” Lehman v. Morrissett, 162 Va. 463, 469 (1934),

by identifying “a clear and unequivocal duty of a public official to perform the act

in question.” Smith v. Richmond Newspapers, Inc., 261 Va. 113, 118 (2001). See

Legum v. Harris, 205 Va. 99, 102 (1964) (“It is essential to the issuance of a writ

of mandamus that the legal right of the plaintiff or the relator to the performance of

the particular act, sought to be compelled, be clear, specific, and complete.”). Thus,

7
the petitioner must be entitled “to have the duty sought to have coerced, done in

the manner specified in the application and by the defendant.” Bd. of Supervisors

of Amherst Cty. v. Combs, 160 Va. 487, 496 (1933) (emphasis in original).

None of the legal authorities cited by Pena confers a clear legal right to the

relief that he seeks or sets forth any clear and unequivocal duty to be performed by

the Governor, DHRM Director, or State Health Commissioner. The Petition relies

on Article V, §§ 1 and 7 of the Constitution of Virginia and Va. Code § 2.2-103,

which are ED-18’s authorizing authorities. See Pet. ¶¶ 17-20; ED-18 at 1. Article

V, §§ 1 and 7 state that the Governor possesses the “chief executive power” and

must “take care that the laws be faithfully executed.” Va. Const. Art. V, §§ 1, 7.

Section 2.2-103 provides that the Governor is the Commonwealth’s “Chief

Personnel Officer” and “shall have the authority and responsibility for the

formulation and administration of the policies of the executive branch.” Va. Code

Ann. § 2.2-103(A), (B). These authorities confer broad discretion on the Governor

to set executive branch employment policy, as he has done in ED-18.

The Petition also alleges that the respondents’ actions have violated Virginia

Code provisions including §§ 2.2-3900, 32.1-162.16, 32.1-162.18, 51.5-1, 51.5-40,

and 51.5-41. See Pet. ¶¶ 7, 110-11, 113, conclusion. These laws address issues

including employment discrimination, informed consent in human research, and

protections for persons with disabilities, but none of them imposes any specific

8
ministerial duties on the Governor, DHRM Director, or State Health Commissioner

to issue particular directives or policies. In sum, Pena has cited no law that requires

any respondent to perform any of the acts that he seeks to compel in this action.

D. The Petition seeks to undo the respondents’ completed acts of

issuing ED-18 and its implementing policies.

Next, “[w]hen a public official has failed to perform his ministerial duty at a

time required by law, mandamus will lie to compel the discharge of such duty

within a reasonable time after issuance of the writ.” Earley v. Landsidle, 257 Va.

365, 369 (1999). This writ, however, “is applied prospectively only and will not be

used to undo an act already done.” Morrissette v. McGinniss, 246 Va. 378, 382

(1993). Mandamus “does not lie to compel an officer to undo what he has done in

the exercise of his judgment and discretion, and to do what he had already

determined ought not to be done.” In re Commonwealth, 278 Va. 1, 9 (2009).

By seeking to compel amendment of ED-18 its implementing policies, the

Petition attempts to undo the Governor’s past act of issuing ED-18 on August 5,

2021 and the other respondents’ past acts of issuing policies and other guidance to

implement ED-18. These are discretionary acts that have already been completed,

and Pena is not entitled to a writ of mandamus to undo these past acts and to

compel the respondents to take new acts that align with his subjective views.

9
 E. If Pena had standing, he would have the adequate remedy at law
of a declaratory judgment action to adjudicate his concerns.

Lastly, mandamus is unavailable because Pena has an adequate legal remedy

short of mandamus relief. “One of the fundamental principles underlying the entire

jurisdiction is that mandamus never lies where the party aggrieved has another

adequate remedy at law, by action or otherwise.” Hertz v. Times-World Corp., 259

Va. 599, 608 (2000). “The requirement that a litigant who seeks the issuance of a

writ of mandamus must have no adequate remedy at law is deeply imbedded in the

jurisprudence of this Commonwealth.” Id. As available here, a declaratory

judgment is an adequate remedy at law short of seeking a writ of mandamus. See

Stroobants v. Fugate, 209 Va. 275, 278 (1968) (“Virginia’s Declaratory Judgment

Law, as amended, provides petitioners with an adequate remedy at law.

Accordingly, there is no occasion for them to resort to the extraordinary writ of

mandamus or for this court to exercise its original jurisdiction.”).

If Pena has standing, he also has the adequate legal remedy of filing a

declaratory judgment action. “In cases of actual controversy, circuit courts within

the scope of their respective jurisdictions shall have power to make binding

adjudications of right, whether or not consequential relief is, or at the time could

be, claimed . . . .” Va. Code Ann. § 8.01-184. The circuit courts may adjudicate

controversies involving, inter alia, “the interpretation of . . . statutes, municipal

ordinances and other governmental regulations,” id., such as the executive actions

10
and policies at issue here. Pena may not bypass the adequate remedy at law of a

declaratory judgment action to seek extraordinary relief from this Court.

IV. CONCLUSION

For the foregoing reasons, Pena is not entitled to the extraordinary remedy of

a writ of mandamus against any respondent. In addition, no further evidence is

needed for the proper disposition of this proceeding. See Va. Sup. Ct. R. 5:7(b)(6).

Accordingly, the Court should dismiss the Petition, deny the writs of mandamus,

and grant any other relief to the respondents that it deems appropriate.

Respectfully submitted,

RALPH NORTHAM, EMILY ELLIOTT,

VIRGINIA DEPARTMENT OF HUMAN
RESOURCE MANAGEMENT,
M. NORMAN OLIVER, MD, MA, and
VIRGINIA DEPARTMENT OF HEALTH

By: /s/ Sheri H. Kelly

Counsel

MARK R. HERRING
Attorney General of Virginia

MARSHALL H. ROSS
Senior Assistant Attorney General/Trial Section Chief

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*SHERI H. KELLY, VSB No. 82219
Assistant Attorney General
Office of the Attorney General
204 Abingdon Place
Abingdon, Virginia 24211
Phone: 276-628-2964
Fax: 276-628-4375
Email: [email protected]
*Counsel for Respondents

CERTIFICATE

1. On January 10, 2022, pursuant to Rule 5:4(a)(1), the pro se petitioner

was informed of the intended filing of this responsive pleading.

2. This responsive pleading complies with the word count limitation set

forth in Rule 5:7(b)(7). The total word count is 2,779 words.

3. On January 10, 2022, pursuant to Rule 5:1B(b) of the Rules of this

Court, this responsive pleading was electronically filed with the Clerk of the Court

using VACES, the Virginia Appellate Courts Electronic System.

4. On January 10, 2022, pursuant to Rule 5:1B(c) of the Rules of this

Court, a true and accurate copy of this responsive pleading was served by email on

the pro se petitioner at [email protected].

/s/ Sheri H. Kelly

Sheri H. Kelly

12
 COMMONWEALTH of VIRGINIA
Executive Department

Executive Directive Number Eighteen (2021)

Ensuring a Safe Work Place

Importance of the Initiative

For the past 16 months, the COVID-19 pandemic has disrupted all of our lives. The
Commonwealth implemented policies over this time to protect state workers, including
expanding telework policies, masking, and social distancing measures. While these measures
have proven effective, vaccination is the only method to protect fully against the virus.

Vaccinations are now widely available and easily accessible, and Virginia’s vaccination
rates are outpacing most other states. More than 73 percent of Virginia adults have received at
least one shot, and 54 percent of all Virginians are fully vaccinated against the virus. Because the
vaccines are safe and effective, unvaccinated Virginians account for nearly everyone who is
now being hospitalized or dying from COVID-19. But the urgency to expand vaccinations
further is growing, as the highly-contagious Delta variant spreads, case numbers rise again, and
hospitalizations increase. In order to protect the safety of Virginia’s workforce and the people we
serve, it is necessary to require state employees to be vaccinated and to encourage other
employers to do the same.

Directive

By virtue of the authority vested in me as Governor, by Article V, Sections 1 and 7 of the

Constitution of Virginia, and by § 2.2-103 of the Code of Virginia, I direct the following:

A. Disclosure of Vaccine Status

All Executive Branch Employees and state contractors who enter the work place or who
have public-facing work duties must disclose their vaccine status to the designated
agency personnel.

B. Weekly Testing

Executive Branch Employees who are not fully vaccinated or who refuse to disclose their
current vaccine status, according to paragraph A, must undergo weekly COVID-19
testing and disclose weekly the results of those tests to the designated agency personnel.

EXHIBIT A
 C. Mask Requirement

1. All Executive Branch Employees and state contractors who have not been fully
vaccinated must cover their mouth and nose with a mask in accordance with the
Centers for Disease Control and Prevention while indoors and conducting public
business.

D. Scope

For purposes of this Directive, “Executive Branch Employees” should be construed

broadly and includes but is not limited to employees in the following offices, agencies,
institutions, and authorities:

• Office of the Governor;

• Office of the Lieutenant Governor;
• Secretary of the Commonwealth;
• Executive Branch Agencies;
• Institutions of Higher Education; and
• Authorities established within the Executive Branch by the Code of Virginia or
designated under a Secretariat in the Code of Virginia.

This Directive does not apply to Executive Branch Employees or state contractors while
they work remotely without in-person contact with other employees, the public, visitors,
vendors, those in custodial care, or customers.

E. Implementation

The Department of Human Resource Management shall issue policies, procedures, and
guidance to implement this Directive no later than August 15, 2021. Such policies, procedures,
and guidance shall address any exceptions and the availability of a process to evaluate requests
related to religious objections or a disability.

EXHIBIT A
Effective Date

This Executive Directive shall be effective September 1, 2021 and shall remain in full
force and effect until amended or rescinded by further executive action.

Given under my hand and under the Seal of the Commonwealth of Virginia this 5th day of
August, 2021.

Ralph S. Northam, Governor

Attest:

Kelly Thomasson, Secretary of the Commonwealth

EXHIBIT A