518 F.Supp.3d 705
S.D.N.Y.2021Background
- Plaintiffs (a NYC restaurant, a restaurant worker, and a restaurant trade group) challenged Governor Cuomo’s COVID-19 "Dining Policy": statewide 10:00 PM closure and a New York City ban on indoor dining. Plaintiffs sought a preliminary injunction to allow 50% indoor capacity in NYC and extend closing to midnight statewide.
- The State and City defended the restrictions as public-health measures responding to a second COVID-19 surge and relied on Jacobson deference and public-interest justifications.
- The court considered whether Jacobson’s deferential standard or traditional constitutional tiers govern COVID-19 restrictions following recent Supreme Court and Second Circuit decisions (e.g., Roman Catholic Diocese, Agudath Israel).
- The court applied Jacobson’s deferential framework (while also conducting traditional analysis) and found Plaintiffs unlikely to succeed on the merits of their Fourteenth Amendment, Dormant Commerce Clause, and First Amendment claims.
- The court found Plaintiffs failed to show irreparable harm (losses were monetary and not shown imminent business closure) and held the public interest favored denying injunctive relief to preserve public health. The preliminary injunction motion was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicable judicial standard for COVID restrictions | Jacobson is outdated; apply ordinary constitutional scrutiny | Jacobson requires substantial deference to public-health decisions | Court applied Jacobson deferential standard (but also analyzed under traditional tests) and found Jacobson governs here |
| Fourteenth Amendment (procedural and substantive due process) | Policy infringes right to operate businesses and lacked process | Policy is legislative, addresses public health, and does not implicate a fundamental economic right | Procedural DP fails (legislative action); substantive DP fails (no shock-to-conscience, no fundamental right) |
| Dormant Commerce Clause | Policy burdens interstate suppliers and commerce | Policy applies in-state and any burden is incidental and justified by health benefits | Claim unlikely to succeed; no discrimination or extraterritorial control and burdens are justified |
| First Amendment (assembly/association) | Restrictions impede social/business associations protected by First Amendment | Social/ordinary commercial associations are not protected; regulation is neutral public-health measure | Claim unlikely to succeed; social associations not within First Amendment protection for this purpose |
| Preliminary injunction factors (irreparable harm & public interest) | Lost revenue and business risk constitute irreparable harm; their ventilation systems reduce risk | Monetary losses are compensable; no evidence of imminent closure; public interest favors infection control and deference to elected public-health judgments | Plaintiffs failed to show irreparable harm; public interest favors denial; PI denied |
Key Cases Cited
- Jacobson v. Massachusetts, 197 U.S. 11 (U.S. 1905) (upholding public-health regulation under a deferential standard).
- South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (U.S. 2020) (Chief Justice concurrence urging deference to state public-health officials).
- Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (U.S. 2020) (applied strict scrutiny to singling-out of houses of worship; did not rely on Jacobson).
- Agudath Israel of America v. Cuomo, 983 F.3d 620 (2d Cir. 2020) (Second Circuit applying traditional scrutiny to free exercise claims on remand).
- United States v. Salerno, 481 U.S. 739 (U.S. 1987) (standards for substantive due process: shock-the-conscience and fundamental-rights inquiry).
- Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441 (U.S. 1915) (legislative actions of general applicability do not require individualized procedural due process).
- City of Dallas v. Stanglin, 490 U.S. 19 (U.S. 1989) (social associations generally fall outside First Amendment protection).
- Selevan v. New York Thruway Auth., 584 F.3d 82 (2d Cir. 2009) (Dormant Commerce Clause analytical framework).
- Gen. Motors Corp. v. Tracy, 519 U.S. 278 (U.S. 1997) (Dormant Commerce Clause principles).