Case Information
*1 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION
ARJN #3, d/b/a JONATHAN’S GRILLE, et )
al. )
) NO. 3:20-cv-00808 Plaintiffs, )
) JUDGE RICHARDSON v. )
)
JOHN COOPER, et al., )
)
Defendants. )
MEMORANDUM OPINION
Pending before the Court is Defendants’ Motion to Dismiss (Doc. No. 42, “Motion”), supported by a Memorandum of Law (Doc. No. 43). Plaintiffs filed a response in opposition, (Doc. No. 49), and Defendants replied (Doc. No. 50). For the reasons set forth below, Defendants’ Motion will be GRANTED.
BACKGROUND [1]
In response to COVID-19 pandemic, Defendants issued numerous orders in attempting to “flatten the curve.” (Doc. No. 38 at ¶ 2). [2] On March 15, 2020, the Nashville Davidson County Metropolitan Board of Health held a special public meeting and voted to issue a Declaration of *2 Public Health Emergency related to the ongoing COVID-19 pandemic. ( Id . at ¶ 3). The declaration directed the Chief Medical Director of Health, Dr. Michael Caldwell, to “act as necessary to maintain and protect the public health” in a manner consistent with the authority derived from state and local law and to limit the operation of businesses licensed to serve food or beverages. ( Id .). Pursuant to that declaration, Dr. Caldwell issued a series of orders over the following months that placed restrictions on certain businesses, including food service businesses, in an announced effort to limit the spread of COVID-19. ( Id. at ¶¶ 4-31).
Dr. Caldwell issued the first of these orders on March 17, 2020. This initial order (“Order 1”) limited bars and restaurants to operating at fifty percent (50%) capacity and also limited bars within restaurants to ten percent (10%) capacity. ( Id . at ¶ 4). On March 20, 2020, Dr. Caldwell issued an amended Order 1, (“Order 1A”) which prohibited restaurants from offering dine-in services, thereby relegating restaurants to sustain their businesses based on take-out orders only. ( Id . at ¶ 6). On that same day, Dr. Caldwell issued Order 2, which suspended operations of gyms and fitness facilities. ( Id .). [3]
On April 23, 2020, Defendant Cooper released the “Roadmap to Reopen Nashville” that implemented a four-phase plan to reduce the restrictions on businesses in the event certain metrics were met. ( Id . at ¶ 9). On May 8, 2020, Dr. Caldwell issued Order 5, which encompassed Phase 1 of the reopening plan and allowed restaurants to open at fifty percent capacity but required bar areas within restaurants to remain closed. ( . at ¶ 13). On May 22, 2020, Defendant Caldwell issued Order 6, which encompassed Phase 2 of the reopening plan and allowed restaurants to operate at a seventy-five percent capacity but required bar areas within restaurants to still remain *3 closed. ( Id . at ¶ 14). Order 6 allowed businesses such as gyms to open at fifty percent capacity. ( Id .).
On May 30, 2020, Nashville civil rights activists and others held an “I Will Breathe Rally” in response to the death of George Floyd at the legislative plaza in downtown Nashville. ( Id . at ¶ 16). During the rally, thousands of protestors marched condemning police brutality and calling for change. ( Id .). That same day, Defendant Cooper released a public statement urging individuals to attend the “I Will Breathe Rally” with no mention of concerns of spreading COVID-19. ( Id . at ¶ 17).
On June 22, 2020, Dr. Caldwell issued Order 7, which encompassed Phase 3 of the reopening plan and allowed restaurants to operate at seventy-five percent capacity and allowed bar areas within restaurants to open at fifty percent capacity. ( Id . at ¶ 18). On July 2, 2020, Dr. Caldwell issued Order 9, which reverted back to Phase 2 of the reopening plan with modifications. ( Id . at ¶ 21). Order 9 required any food service business with more alcohol sales than food sales, defined as a Limited Service Restaurant (“LSR(s)”) by Tenn. Code Ann. § 57-4-102(22), to close completely. ( Id .). Additionally, Order 9 required any food services businesses that did not have more alcohol than food sales, defined as a Full-Service Restaurant (“FSR(s)”) by Tenn. Code Ann. § 68-14-703(9), to revert back to a maximum operating capacity of fifty percent capacity. ( Id .). Just two days later on July 4, 2020, the Black Lives Matter organization hosted a rally at Bicentennial Mall State Park which brought over 10,000 people to the downtown area. ( Id . at ¶ 23).
On July 17, 2020, Dr. Caldwell issued Amendment 1 to Order 9, which extended the closure of LSRs. ( . at ¶ 24). On July 23, 2020, Dr. Caldwell issued Amendment 2 to Order 9, *4 which required FSRs to close at 10:00 p.m.; however, Amendment 2 did not require businesses such as gyms to close at a particular time. ( Id . at ¶ 25).
On August 16, 2020, Dr. Caldwell issued Order 11, which required LSRs to operate at the lesser of 50 percent maximum capacity or 25 patrons on the premises (and subject to social- distancing requirements). ( Id . at ¶ 28). Order 11 also required FSRs, like Plaintiffs, to operate at the lesser of 50% capacity or 100 patrons per floor (and subject to social-distancing requirements) and a maximum of six people per table. ( Id .).
On September 30, 2020, Dr. Caldwell issued Order 12, which continued to limit capacity of FSRs to fifty percent, but extended the required closing time until 11:00 p.m. ( Id . at ¶ 31). Order 12 also allowed gyms to operate at fifty percent capacity with no particular closing time required. ( .). Order 12 as originally issued will be referred to below as simply “Order 12,” as distinguished from any amended and restated version of Order 12.
The Court will take judicial notice of the following health orders that were issued after the filing of the Amended Complaint. On November 2, 2020, Amended and Restated Order 12 went into effect and limited the capacity of FSRs to 100 patrons per floor and 100 patrons outdoors. [4] On November 20, 2020, Dr. Caldwell issued the Second Amended and Restated Order 12, which included the same restrictions on FSRs did as the First Amended and Restated Order 12. [5] On November 30, 2020, Dr. Caldwell issued Third Amended and Restated Order 12, which again limited the capacity of FSRs to 100 patrons per floor and 100 patrons outside but also prescribed that the number of patrons on the premises shall not exceed 5fifty percent of the maximum *5 capacity. [6] On December 14, 2020, Dr. Gill Wright, acting as Interim Chief Medical Director of Health, [7] issued the Fourth Amended and Restated Order 12, which included the same restrictions on FSRs as did the Third Amended and Restated Order 12. [8] On December 31, 2020, Dr. Wright issued the Fifth Amended and Restated Order 12, which included the same restriction on the capacity of FSRs (100 patrons per floor and 100 patrons outside) and also prescribed that the number of patrons on the premises shall not exceed fifty percent of the maximum capacity. [9] On February 1, 2021, Dr. Wright issued the Sixth Amended and Restated Order 12, which included the same restrictions regarding capacity but extended the closing time of FSRs that serve alcohol until 12:00 a.m. [10] FSRs that do serve alcohol are not required to close at a certain time. The Sixth Amended and Restated Order 12 is the health order that is currently in effect as of the date of the issuance of this Opinion.
On September 18, 2020, Plaintiffs ARJN#3, LLC d/b/a/ Jonathan’s Grille and Jonathan’s Grille-Green Hills, LLC d/b/a Jonathan’s Grille filed suit against Defendants John Cooper, Dr. Michael Caldwell, Leslie Waller (in their official capacity), and the Health Department for Metropolitan Nashville-Davidson County. (Doc. No. 1). On October 29, 2020, Plaintiffs filed the Amended Complaint, which asserts that Defendants’ Health Director Orders (“Orders”) place severe restrictions on bars and restaurants that are in violation of Plaintiffs’ rights protected by the *6 United States Constitution and the Tennessee Constitution. Specifically, Plaintiffs assert that the restaurant curfew and occupancy restrictions encompassed within Order 12 violate Plaintiffs’ right to equal protection under the law and substantive due process rights as guaranteed by the United States Constitution and the Tennessee Constitution. ( Id . at ¶ 34). Plaintiffs seek declaratory relief in the form of a declaration that the curfew and occupancy restrictions set forth in Order 12 are in violation of Plaintiffs’ above-mentioned constitutional rights, and injunctive relief enjoining Defendants from enforcing the curfew and occupancy restrictions set forth in Order 12.
On November 12, 2020, Defendants filed the instant Motion to Dismiss. (Doc. No. 42). Plaintiffs responded on November 26, 2020, (Doc. No. 49), and Defendants filed a reply on December 3, 2020 (Doc. No. 50). Thus, the Motion is ripe for adjudication.
LEGAL STANDARD
For purposes of a motion to dismiss brought pursuant to Rule 12(b)(6), the Court must
view all the factual allegations in the complaint as true.
Ashcroft v. Iqbal
,
In determining whether a complaint is sufficient under the standards of
Iqbal
and its
predecessor and complementary case,
Bell Atlantic Corp. v. Twombly
,
In reviewing a Rule 12(b)(6) motion to dismiss, “[t]he moving party has the burden of
proving that no claim exists.”
Total Benefits Planning Agency, Inc. v. Anthem Blue Cross and Blue
Shield
,
ANALYSIS
In their Motion, Defendants raise three arguments for dismissal of the Amended
Complaint: (1) Plaintiffs’ requests for declaratory judgment and injunctive relief are moot; (2) the
Supreme Court’s standard in
Jacobson v. Commonwealth of Massachusetts
,
I. Mootness
Defendants argue that Plaintiffs’ claims are moot because the Amended Complaint seeks
equitable relief as to Order 12—an order that is no longer in effect, having since been replaced by
successive orders amending and restating Order 12. (Doc. No. 43 at 7-8). This Court, and numerous
other courts, have previously found that challenges to expired (
i.e.
, no longer in effect) public
health orders are moot.
See ARJN #3 v. Cooper
, No. 3:20-CV-00808,
However, the Supreme Court recently issued an opinion that provides guidance on the issue
of mootness and ever-changing COVID-19 public health orders. In
Roman Catholic Diocese of
Brooklyn v. Cuomo
,
It is clear that this matter is not moot.
See Federal Election Comm’n v.
Wisconsin Right to Life, Inc.
,
designation were not moot, despite the current absence of an “orange zone” designation, because such restrictions were capable of being reinstated, which would happen any time the applicable area designation changed back to orange. In short, the challenged to the restrictions were not moot because the restrictions were capable of being repeated.
Although the Supreme Court did not use the particular buzzwords, this appears to have
been a straightforward application of the “exception to the mootness doctrine [that] exists for cases
that are capable of repetition, yet evading review.”
Barry v. Lyon
,
Here, although Order 12 is no longer in effect, substantially the same regulations regarding
occupancy limits exist in the successive order currently in effect—the Sixth Amended and Restated
Order 12. Although the Sixth Amended and Restated Order 12 removed the closing time
requirement for restaurants that do not serve alcohol, restaurants that do serve alcohol are required
to close by 12:00 a.m. And in the Amended Complaint, it is these specific regulations (
i.e.
,
“capacity restrictions and curfews imposed on Plaintiffs’ restaurants contained in Order 12”) that
Plaintiffs challenge. (
See
Doc. No. 38 at 31). Thus, the challenged provisions of Order 12 have
been repeated in the most recent order, so the challenged restrictions not only are
capable
of being
repeated, they in fact
have
been repeated. Thus, like the challenged provisions in
Roman Catholic
Diocese
, the challenged restrictions are capable of repetition yet evading review.
Fed. Election
Comm’n
,
Accordingly, the Court finds that Plaintiffs’ constitutional challenges are not moot. II. The Jacobson Standard
Next, Defendants argue that the Supreme Court’s standard in
Jacobson v. Massachusetts
,
In
Jacobson
, the plaintiff challenged Massachusetts’s mandatory compulsory smallpox
vaccination law.
Relying on
Jacobson
, many courts have held that the traditional tiers of constitutional
scrutiny do not apply to COVID-19 related restrictions and that courts may overturn state or local
public-health measures only if they are arbitrary or a plain and palpable invasion of constitutional
rights.
See In re Abbott
,
Despite
Jacobson,
however, the Supreme Court recently applied strict scrutiny to a state
public health order, and Justice Gorsuch advised that courts should not depart from the “traditional
legal test associated with the right at issue.”
Roman Catholic Diocese
,
Although
Jacobson
pre-dated the modern tiers of scrutiny, this Court
essentially applied rational basis review to Henning Jacobson’s challenge to a state
law that, in light of an ongoing smallpox pandemic, required individuals to take a
vaccine, pay a $5 fine, or establish that they qualified for an exemption.
Id
., at 25,
Thus,
Roman Catholic Diocese
advises courts to use the “traditional legal test associated
with the right at issue” when determining constitutional challenges raised during the COVID-19
pandemic.
See Agudath Israel of Am. v. Cuomo
, No. 20-3572,
Traditional constitutional review still will be relatively deferential to the government in most circumstances involving a crisis of this sort. Whether it is deemed an “emergency” or not, responding to a public-health threat is undeniably a compelling government interest. Jacobson ,197 U.S. at 25 ,25 S.Ct. 358 ; Denver Bible Church [ v. Azar ], [---F. Supp. 3d]---,]2020 WL 6128994 , at *6, *8 [(D. Colo. Oct. 15, 2020)]. Emergency measures subject to rational-basis review will generally be upheld.
Lawrence v. Polis
, No. 120CV00862DDDSKC,
In light of Roman Catholic Diocese , the Court will apply the traditional constitutional test when evaluating Plaintiffs’ claims involving their equal protection and due process rights. However, this decision will not be of much consequence in this case, because as the Court explains below, rational basis review applies to Plaintiffs’ claims. And as the Supreme Court has explained, in Jacobson the “Court essentially applied rational basis.” Roman Catholic Diocese , 141 S. Ct. at 70. With or without Jacobson , given Plaintiffs’ particular rights involved, rational-basis review is applicable. Thus, the Court’s decision not to apply Jacobson is not outcome determinative of Defendants’ Motion.
III. Rule 12(b)(6) Review
Now that the Court has established that “traditional constitutional review” will apply to Plaintiffs’ claims, the Court proceeds to Defendants’ argument that Plaintiffs’ claims should be dismissed pursuant to Rule 12(b)(6). Specifically, Defendants argue that Plaintiffs fail to state a claim because (1) “Plaintiffs have no fundamental right at issue in this case”; (2) “Order 12 and Amended and Restated Order 12 easily satisfy rational basis review”; and (3) “Plaintiffs offer no plausible allegations of similarly-situated businesses that were treated differently.” (Doc. No. 43 at 12). The Court will assess Defendants’ arguments below.
A. Substantive Due Process
The Due Process Clause of the Fourteenth Amendment prohibits states from depriving
“any person of life, liberty, or property, without due process of law.” The Fourteenth Amendment
has a substantive due process component and a procedural due process component.
Howard v.
Grinage
,
Here, Plaintiffs do not allege the deprivation of a fundamental right because Plaintiffs do
not allege that they are prevented from engaging in their profession. In fact, the allegations make
clear that the restaurants are still in operation. (Doc. No. 38 at ¶ 39). And numerous courts,
adjudicating substantive due process challenges to government orders instituted to combat
COVID-19, have held that there is no fundamental right to pursue a career or run a business.
See
4 Aces Enterprises, LLC v. Edwards
, ---F. Supp. 3d---,
The Court finds that Plaintiffs have not alleged a violation of a fundamental right in the
context of the substantive due process claim. Therefore, the Court will apply rational-basis review.
*16
See Stolz v. J & B Steel Erectors, Inc
.,
“As the Supreme Court often has reiterated, the party challenging [a government action]
subject to rational basis review must ‘negate every conceivable basis which might support it.’”
Am. Exp. Travel Related Servs. Co. v. Kentucky
, 641 F.3d 685, 690 (6th Cir. 2011) (citing
Lehnhausen v. Lake Shore Auto Parts Co
.,
“Under rational basis review, official decisions are afforded a strong presumption of
validity.”
In re Flint Water Cases
,
To support their argument that Order 12’s curfew and occupancy restrictions pass constitutional muster on rational-basis review, Defendants submit the declaration of Dr. Caldwell (Doc. No. 15) that had previously been filed to oppose Plaintiffs’ request for a temporary restraining order. [12] Defendants point out (as do Plaintiffs in their Amended Complaint) that in his *18 declaration, Dr. Caldwell explained that “large numbers of patrons in close proximity to one another creates an environment conducive to the spread of COVID-19.” (Doc. No. 38 at ¶ 66 (citing Doc. No. 15 at ¶ 30)). Dr. Caldwell also stated that contract tracing connected COVID-19 clusters to bars and restaurants. ( . at ¶¶ 57, 66 (citing Doc. No. 15 at ¶¶ 26, 30)). Dr. Caldwell also explained in his declaration that prior to Order 12’s implementation, Dr. Anthony Fauci, Director of the National Institute of Allergy and Infectious Diseases, called for states experiencing a surge in COVID-19 cases to close bars and indoor restaurants or, alternatively, ensure properly distanced seating. (Doc. No. 15 at ¶ 35). These are plausible justifications for the specific restrictions on restaurants located within Order 12. See Am. Exp. Travel Related Servs. , 641 F.3d at 690 (citation omitted).
Moreover, the Court takes judicial notice of the language of Order 12, which is a matter of
public record.
See Roane Cty., Tennessee
,
Nashville’s substantial and sustained effort has reduced our new COVID-19 cases to a lower level than seen through much of the summer. Although the surge in numbers has fallen, epidemiologists and infectious disease experts agree that in the absence of strict social distancing and wearing cloth face coverings or masks, numbers would once again surge. . . .
Living with COVID-19 means finding ways for our city to return to work with COVID-19 still circulating. The Roadmap for Reopening Nashville (Roadmap) presented a framework for a four-phase reopening reflecting the state of the COVID-19 pandemic in Tennessee and distinctive needs in Nashville. The Roadmap with modifications provides ways for our city to continue to return to work with COVID-19 still circulating.
Health Director Order 12: Phase 3 Reopening, Nashville.gov, available at
https://www.nashville.gov/Metro-Clerk/Legal-Resources/Emergency-Health-Orders/Order-
12.aspx (last accessed January 14, 2021). Thus, through the above-referenced language Defendants
*19
made clear that Defendants’ purported goal in instituting the regulations within Order 12, including
the curfew and occupancy restrictions, was to reduce the spread of COVID-19 in Nashville. As
the Supreme Court has recognized, “[s]temming the spread of COVID-19 is unquestionably a
compelling interest.”
Roman Cath. Diocese
,
Plaintiffs have failed to plausibly rebut Metro’s asserted justifications for the regulations contained within Order 12, as required to overcome the presumed validity of Order 12’s regulations. See id. In fact, Plaintiffs appear to concede that the health orders were issued to slow the spread of COVID-19. In the Amended Complaint, Plaintiffs allege that the Metro Board of Health directed Dr. Caldwell to “act as necessary to maintain and protect the public health,” ( id . at ¶ 3), and “[i]n response to COVID-19, Defendants issued numerous orders in efforts to ‘flatten the curve.’” (Doc. No. 38 at ¶ 2).
Nevertheless, Plaintiffs argue that Order 12 is not based on “rational speculation” because
the “forty-nine (49) cites where COVID-19 clusters have been linked does not contain either of
Plaintiffs restaurants nor any other restaurants.” (Doc. No. 49 at 16). Plaintiffs also reference
emails between Metro officials that Plaintiffs allege demonstrate “extremely low coronavirus cases
emanating from bars and restaurants.” (Doc. No. 38 at ¶70). However, the Sixth Circuit instructed
that under rational-basis review, the government’s action “is not subject to courtroom fact-finding
and may be based on rational speculation
unsupported
by evidence or empirical data. [] Especially
so, we note, in the case of a public health crisis like the one presented by COVID-19[.]”
League
of Indep. Fitness Facilities & Trainers, Inc. v. Whitmer
,
B. Equal Protection
The Fourteenth Amendment provides that “[n]o State shall . . . deny to any person within
its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. To state an equal
protection claim, a plaintiff must adequately allege that the government treated the plaintiff
“disparately as compared to similarly situated persons and that such disparate treatment either
burdens a fundamental right, targets a suspect class, or has no rational basis.”
Ctr. for Bio-Ethical
Reform, Inc. v. Napolitano
,
The Court finds that even if Plaintiffs had plausibly alleged that restaurants were similarly situated to gyms and protests (which it does not find), Plaintiffs’ equal protection claim would still fail because the Amended Complaint does not rebut a rational basis for the distinction in treatment of restaurants and gyms/protests. The Amended Complaint cites Dr. Caldwell’s criteria for determining the restrictions in health orders:
(1) Indoor vs. Outdoor—spread is much more likely in an indoor setting; (2) Masks
vs. No Masks—spread is much more likely in an environment where masks are not
being worn; (3) Social Distancing vs. No Social Distancing—spread is much more
likely in environments where social distancing is not possible or is not being
observed; and (4) Alcohol vs. No Alcohol—spread is much more likely in settings
where alcohol is being consumed than otherwise, likely due to the fact that
consumption of alcohol necessarily occurs without a mask covering being utilized
and, equally importantly, that the consumption of alcohol often lowers inhibitions
and makes it less likely for citizens to comply with social distancing guidelines.
19). Accordingly, because “no suspect class or fundamental right is implicated, the Court must apply rational basis
review.”
Wagner v. Haslam
,
Additionally, although there is no allegation present that Plaintiffs are a member of a suspect class, the Court
notes that Plaintiffs do not belong to a suspect or quasi-suspect class.
C.f. Loving v. Virginia
,
Based on this criterion, the Court can conceive a rational justification for treating
restaurants, where patrons are seated unmasked in close proximity, differently from protests, which
occur outside and allow for mask wearing, and gyms, where patrons are better able to practice
social distancing and do not serve alcohol.
See Michigan Rest. & Lodging Ass’n v. Gordon
, No.
1:20-CV-1104, 2020 WL 7053230, at *2 (W.D. Mich. Dec. 2, 2020) (finding that Michigan’s
restrictions treating gyms and restaurants differently passed rational-basis review because “the
Court finds that a plausible explanation for the emergency order exists: Restaurant patrons cannot
wear a mask while eating or drinking.”);
see also Am. Exp. Travel Related Servs.
,
C. Tennessee Constitution
In the Amended Complaint, Plaintiffs allege that Order 12’s curfew and occupancy restrictions violate Plaintiffs’ due process rights and Plaintiffs’ right to equal protection under the Tennessee Constitution. (Doc. No. 38 at ¶¶ 123-28). Defendants move to dismiss these claims, arguing (in part) that Plaintiffs’ Tennessee constitutional claims fail for the same reasons as do Plaintiffs’ federal constitutional claims because the Tennessee Constitution confers essentially the same equal protection and due process protections as the United States Constitution. (Doc. No. 43 at 18).
Plaintiffs failed to respond to Defendants’ argument. Therefore, in Defendants’ Reply, they
argue that Plaintiffs have abandoned their Tennessee constitutional law claims. The Court agrees.
By failing to respond to Defendants’ argument regarding Plaintiffs’ Tennessee constitutional
claims, Plaintiffs have indeed abandoned their claims.
See PNC Bank, Nat. Ass’n v. Goyette Mech.
Co., Inc.
,
IV. Plaintiffs’ Previously Stayed Claims
In a prior Order, the Court stayed, pursuant to the Younger abstention doctrine, Plaintiffs’ “claims related to the issuance and prosecution of the citations and civil warrant, subject to any party’s prerogative to move to lift the stay on the ground that court proceedings have been finally concluded with respect to the two citations and the civil warrant.” (Doc. No. 24 at 9-10).
“A district court deciding to abstain under
Younger
has the option of either dismissing the
case without prejudice or holding the case in abeyance.”
Eidson v. State of Tennessee Dep’t of
Children’s Servs.
,
CONCLUSION
It is, at best, cold comfort for Plaintiffs to hear that the Court sympathizes with them for their plight. The Court does not deny the difficulties that restaurants have faced during the pandemic. Nor does it deny the role that small to mid-sized businesses have played in keeping the U.S. economy afloat during the pandemic (and, for that matter, at all other times). Furthermore, the Court does not begrudge Plaintiffs believing that the substance and/or enforcement of Defendants’ orders is bad policy, unfairly slanted in favor of or against various constituencies, and ultimately not supported by sound science. The Court understands Plaintiffs’ apparent frustration in this regard. The Court takes no position on these beliefs, however, because it need not do so, and indeed so doing is beyond its role. Also beyond the Court’s role is telling the Metropolitan Government of Nashville and Davidson County how, within constitutional boundaries, to respond to the threat of COVID-19. Justice Kavanaugh’s observation in a case last year, in granting a point to the majority from which he was dissenting, is clearly correct: “ Under the Constitution, state and local governments, not the federal courts, have the primary responsibility for addressing COVID–19 matters such as quarantine requirements, testing plans, mask mandates, phased reopenings, school closures, sports rules, adjustment of voting and election procedures, state court and correctional institution practices, and the like.” Calvary Chapel Dayton Valley v. Sisolak , 140 S. Ct. 2603, 2614 (2020) (Kavanaugh, J., dissenting from denial of application for injunctive relief).
The Court’s proper role is constrained to deciding whether Plaintiffs have adequately stated claims upon which relief can be granted. Here, that means deciding whether Plaintiffs have set forth factual content plausibly suggesting that the restrictions in question (irrespective of whether they are ultimately wrongheaded) are violative of the U.S. and Tennessee Constitution in the *25 manner alleged. Given the standards applicable to Plaintiffs’ particular challenges, which are quite lenient towards Defendants here, the Court answers that question in the negative for the above- stated reasons.
Accordingly, Defendants’ Motion to Dismiss (Doc. No. 42) will be GRANTED and Plaintiffs’ claims will be dismissed. An appropriate order will be entered.
___________________________________ ELI RICHARDSON UNITED STATES DISTRICT JUDGE
Notes
[1] The cited facts are either (1) alleged in the Complaint and accepted as true for purposes of the instant motion
to dismiss; or (2) publicly available records that the Court takes judicial notice of.
See Roane Cty., Tennessee v. Jacobs
Eng’g Grp., Inc.
, No. 3:19-CV-206-TAV-HBG,
[2] Readers may recall that at the outset of the pandemic in the United States, the original strategy was a 15- day period to “flatten the curve”— i.e. , slow the spread (though not necessarily the eventual total incidence) of COVID- 19 so that fewer people were infected at one time, a result intended to lower the risk of health care facilities being overwhelmed with COVID-19 patients. Readers may also discern that some citizens are (rightly or wrongful) frustrated by what has happened since the expiration of that 15-day period, in particular the fact that the 15-day period is now so far in the rearview mirror with no end in sight to particular government-mandated or government- recommended countermeasures.
[3] The Court will not discuss every health order issued by Defendants. However, the health orders not discussed by the Court in this section either did not pertain to restaurants, or simply extended restrictions that were already in place through prior orders.
[4] Amended and Restated Order 12, Nashville.gov, https://www.asafenashville.org/wp- content/uploads/2020/11/Amended-and-Restated-Order-12-FINAL-SIGNED-30-Oct-20FINAL.pdf.
[5] Second Amended and Restated Order 12, Nashville.gov, https://www.asafenashville.org/wp- content/uploads/2020/11/Second-Amended-and-Restated-Order-12-FINAL-SIGNED-20-Nov-20.pdf
[6] Third Amended and Restated Order 12, Nashville.gov, https://www.asafenashville.org/wp- content/uploads/2020/11/Third-Amended-and-Restated-Order-12-FINAL-SIGNED-25-Nov-20.pdf
[7] By virtue of assuming this position, Dr. Wright has been substituted in place of Dr. Caldwell as a defendant (in his official capacity only).
[8] Fourth Amended and Restated Order 12, Nashville.gov, https://www.asafenashville.org/wp- content/uploads/2020/12/Fouth-Amended-and-Restated-Order-12-FINAL-SIGNED-13-Dec.-20.pdf
[9] Fifth Amended and Restated Order 12, Nashville.gov, https://www.asafenashville.org/wp- content/uploads/2020/12/Fifth-Amended-and-Restated-Order-12-FINAL-SIGNED-30-Dec-20-1.pdf
[10] Sixth Amended and Restated Order 12, Nashville.gov, https://www.nashville.gov/Metro-Clerk/Legal- Resources/Emergency-Health-Orders/Order-12f.aspx
[11] “A plaintiff may demonstrate that governmental action lacks a rational basis in one of two ways: (i) by
negating ‘every conceivable basis which might support the government action’
or (ii) by ‘demonstrat[ing] that the
challenged government action was motivated by animus or ill-will.
’”
Sanders v. City of Hodgenville, Kentucky
, 323
F. Supp. 3d 904, 912 (W.D. Ky. 2018) (quoting
Klimik v. Kent Cty. Sheriff’s Dep’t
,
[12] The Court may properly consider Dr. Caldwell’s declaration on Defendant’s Rule 12(b)(6) motion because
the Court may consider information contained in “a document that is not formally incorporated by reference or
attached to a complaint” where it “‘is referred to in the complaint and is central to the plaintiff’s claim.’”
Greenberg
v. Life Ins. Co. of Virginia
,
[13] Rational-basis review applies to Plaintiffs’ equal protection claim because the alleged disparate treatment
does not burden a fundamental right or target a suspect class. In the Amended Complaint, Plaintiffs allege that
“Plaintiffs have a fundamental right under the U.S. Constitution and its Amendments, to pursue any common
occupation of life, including owning and operating a restaurant[.]” (Doc. No. 38 at ¶ 102). Of course, this is a legal
conclusion that need not be taken as true at the motion-to-dismiss stage. As Defendants point out, the Sixth Circuit
has clearly stated that pursing one’s chosen profession does not implication a fundamental right for purposes of the
equal protection clause.
Whittle v. United States
,