509 F.Supp.3d 235
M.D. Penn.2020Background
- Plaintiffs: two restaurants (Fenicci’s of Hershey; River House Bar & Grill) and the Hershey Independent Restaurant Association challenged Pennsylvania limited-time mitigation orders issued Dec. 10, 2020 that prohibited indoor dining through Jan. 4, 2021.
- Orders left outdoor dining, takeout/delivery, and many other indoor retail businesses open (at reduced capacity), while banning all in-person indoor dining; enforcement notices were issued to restaurants that remained open indoors.
- Plaintiffs sought emergency relief (TRO/preliminary injunction) alleging equal protection (class-of-one) and due process claims, but limited emergency relief request to the Equal Protection claim.
- Defendants (Governor Wolf; Secretary Levine) justified the ban by findings of record showing a sharp surge in COVID-19 cases/hospitalizations and the higher transmission risk of indoor dining where masks cannot be consistently worn.
- The court applied rational-basis/Jacobson-style deference to public-health measures and concluded plaintiffs failed to show likelihood of success on the merits or irreparable harm; the TRO/PI was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appropriate standard of review for pandemic public-health orders | Jacobson should not displace ordinary scrutiny; similar to modern scrutiny | Jacobson controls or is reconcilable with rational-basis review in this context | Jacobson governs and aligns with rational-basis review for this claim; deferential review applied |
| Whether banning indoor dining while allowing other indoor retail violates Equal Protection (class-of-one) | The distinction is arbitrary and irrational; no legitimate reason to single out restaurants | Indoor dining materially differs epidemiologically (masks removed; sustained close contact); ban rationally advances public health | No likelihood of success: defendants’ differentiation is rational and compelling given transmission risks |
| Whether defendants produced adequate factual basis for the restriction | Plaintiffs: defendants must show specific evidence that indoor dining significantly drove the surge | Defendants: surging statewide cases, epidemiological principles, and CDC guidance provide a rational basis; precision not required under rational basis/Jacobson | Court: mathematical precision not required; the record and public-health findings suffice |
| Whether plaintiffs will suffer irreparable harm absent injunctive relief | Economic devastation and permanent closures of restaurants | Harm is largely economic (compensable), orders are temporary and allow takeout/outdoor service; plaintiffs remained able to operate | No irreparable harm shown (weak merits + economic injuries insufficient) |
Key Cases Cited
- Jacobson v. Massachusetts, 197 U.S. 11 (1905) (public-health measures receive judicial deference unless wholly unrelated to public health or arbitrary and oppressive)
- Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (class-of-one equal protection standard requires intentional different treatment without any rational basis)
- Reilly v. City of Harrisburg, 858 F.3d 173 (3d Cir. 2017) (four-factor preliminary injunction framework; likelihood of success and irreparable harm are gateway factors)
- Heller v. Doe, 509 U.S. 312 (1993) (rational-basis review accepts rough accommodations and imperfect fits between means and ends)
- City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) (rational-basis limits where distinctions are so attenuated as to be arbitrary)
- S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) (Roberts concurring mem.) (states have broad latitude in public-health decisions during pandemic)
- Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) (mem.; concurrences critiquing broad application of Jacobson in modern contexts)