BIG TYME INVESTMENTS, L.L.C., doing business as BIG DADDY‘S PUB & GRUB; CD ENTERPRISES OF HOUMA, L.L.C., doing business as LARUSSA‘S LOUNGE; JOM, L.L.C., doing business as JUST ONE MORE; LONGSHOTZ 1, L.L.C., doing business as LONGSHOTZ; PARADISE SPORTS BAR & DAIQUIRIS, L.L.C., doing business as EPIC LOUNGE; R&J LAPEYROUSE, L.L.C., doing business as JEAUX‘S NEW HORIZON; R. HEASLEY, L.L.C., doing business as RAM ROD‘S SALOON; TAP DAT, L.L.C., doing business as THE BRASS MONKEY; THE MUSIC COVE, L.L.C.; THE OUTER LIMITS BAR, L.L.C., Plaintiffs-Appellants, v. JOHN BEL EDWARDS, in his official capacity as Governor of the State of Louisiana; H. BROWNING, JR., in his official capacity as Fire Marshal of the State of Louisiana, also known as BUTCH BROWNING, Defendants-Appellees, CONSOLIDATED WITH 910 E MAIN, L.L.C., doing business as QUARTER TAVERN; DOUG MCCARTHY ENTERPRISES, INCORPORATED, doing business as 501; MY PLACE BAR & GRILL, L.L.C.; POOL DOS SPORTS BAR, L.L.P.; SOCO SPORTS BAR, L.L.C.; SANDI‘S ANCHOR LOUNGE, L.L.C., doing business as DA CAMP; TIPSY CAJUN, L.L.C.; WANOUS, L.L.C., doing business as AJ‘S 2ND ST. PUB; C K B C P B 5, L.L.C., doing business as CHATTER BOX; BIG DAN‘S BAR, INCORPORATED; CITY BAR, INCORPORATED, Plaintiffs-Appellants, v. JOHN BEL EDWARDS, in his official capacity as Governor of the State of Louisiana; H. BROWNING, JR., in his official capacity as Fire Marshal of the State of Louisiana, also known as BUTCH BROWNING, Defendants-Appellees.
No. 20-30526 c/w No. 20-30537
United States Court of Appeals for the Fifth Circuit
January 13, 2021
Before DENNIS, HIGGINSON, and WILLETT, Circuit Judges. STEPHEN A. HIGGINSON, Circuit Judge. DON R. WILLETT, Circuit Judge, concurring.
Appeal from the United States District Court for the Western District of Louisiana USDC No. 6:20-CV-965
STEPHEN A. HIGGINSON, Circuit Judge:
In this consolidated appeal, 21 bar owners in Louisiana challenge the Governor‘s restrictions to the operation of bars in response to COVID-19 (the “Bar Closure Order“). The Bar Closure Order prohibited on-site consumption of alcohol and food at “bars,” but permitted on-site consumption of alcohol and food at “restaurants.” Two district courts below denied the bar owners’ motions for preliminary injunctive relief. The bar owners timely appealed, arguing only that the Bar Closure Order‘s
I. BACKGROUND
A. The Governor‘s emergency proclamations
As all are painfully aware, in early 2020 our nation was gripped with an unprecedented public health emergency caused by COVID-19. On March 11, 2020, the World Health Organization (“WHO“) declared a global pandemic in response to the spread of COVID-19. Louisiana, like the rest of the United States, was no exception. By mid-March, the state reported the “fastest growth rate of confirmed [COVID-19] cases in the world,” and ranked third in per capita cases within the United States.
Since March, cases have continued to increase. At the time this appeal was taken, the United States had recorded over 5 million confirmed cases and over 160,000 deaths from COVID-19, and Louisiana had recorded nearly 130,000 cases and over 4,000 deaths. To date, the United States has recorded over 22.5 million cases and over 375,000 deaths from COVID-19, and Louisiana has reported 352,939 cases and 7,971 deaths.1
The same day as the WHO‘s declaration, Louisiana Governor John Bel Edwards declared the pandemic a statewide public health emergency.2 In
The Governor subsequently announced that businesses would reopen in phases. Consistent with guidelines from the White House Coronavirus Task Force, each phase was tied to gating criteria based on the state‘s total number of cases, positivity rates, and hospital capacity. In mid-May, as the state‘s COVID-19 cases and hospitalizations decreased, the Governor announced “Phase 1” of reopening Louisiana‘s businesses. See La. Exec. Dep‘t, Proclamation No. 58 JBE 2020 (May 14, 2020). Under Phase 1, businesses were permitted to reopen subject to distancing and capacity limitations as determined by the state‘s Fire Marshal. The proclamation included a link to the state‘s “Open Safely” website where the Fire Marshal‘s guidance was published. Under Phase 1, restaurants and bars with approved food-service permits could reopen at 25% capacity, though bars without a food license remained closed.
In June, the Governor moved Louisiana into “Phase 2,” which allowed bars without food service permits to reopen at 25% capacity, and bars with food service permits to operate at 50% of capacity subject to additional guidance and restrictions from the Fire Marshal. La. Exec. Dep‘t,
B. The challenged Bar Closure Order
Beginning in July, “the COVID-19 situation in Louisiana had steadily worsened” and the state showed increased cases, positivity rates, and hospitalizations. Unlike the initial March and April surges which were limited to urban “hot spots,” the new cases were increasing statewide, including in rural parishes and within younger age groups. These trends were consistent with data in states “across the Sun Belt” and reports from the White House Coronavirus Task Force.
As a result, on July 11, 2020, the Governor issued new “Phase 2 mitigation measures” which included the Bar Closure Order challenged here. La. Exec. Dep‘t, Proclamation No. 89 JBE 2020 (July 11, 2020). The Bar Closure Order prohibited on-premises consumption in bars:
No bar, with or without a food service permit from the Louisiana Department of Health, shall allow for on premises consumption of any food or drinks. However, any bar shall be allowed to provide for takeout through drive-thru or curbside delivery, including alcoholic beverages.
Id. § 2.3 By contrast, “restaurants” were permitted to continue dine-in service at 50% capacity, subject to “applicable guidance from the State Fire
None of these proclamations defines “bar,” nor does Louisiana law. Instead, the state regulates businesses through its Office of Alcohol and Tobacco Control (“ATC“), which provides liquor permits in primarily two categories: “Class A-General” (“AG“) and “Class A-Restaurant” (“AR“).4 AG permits are primarily for bars: the establishment can sell alcohol but is not required to sell food, and unlike AR establishments, minors under the age of 18 are not permitted on the premises. See
The bar owners assert that the Bar Closure Order effectively defines “bars” as businesses with AG permits. While the Governor denies that he intended to distinguish between “stand-alone” bars and restaurant-bars, the revised Fire Marshal‘s guidance does just that. Specifically, it included a letter from the ATC Commissioner noting that “all bars or businesses
C. Procedural History
Appellants (the “bar owners“) are 21 businesses that operate bars in the Eastern and Western Districts of Louisiana. At the time the Governor issued the Bar Closure Order, each bar operated with an AG permit; since the filing of this appeal at least five have obtained conditional AR permits.
The bar owners filed identical suits in the Eastern and Western Districts of Louisiana seeking to enjoin the Governor and Fire Marshal (the “appellees“) from enforcing the Bar Closure Order.5 Following expedited evidentiary hearings, both Judge Feldman in the Eastern District and Judge Summerhays in the Western District denied the bar owners’ motions for preliminary injunctive relief because they were unlikely to succeed on the merits of their due process and equal protection claims.
The evidentiary hearings focused on the testimony of Dr. Alexander Billioux, the Assistant Secretary of the Office of Public Health of the Louisiana Department of Health. The Governor also testified before the Western District.
Both district courts agreed with the bar owners that the Bar Closure Order classified businesses based on whether they had an AG or AR permit,
- The “primary purpose” of bar goers is “to socialize“; bars often have loud music, which requires their patrons to “move closer to each other“; and with increased intoxication, patrons are “less likely to maintain appropriate social distance and to wear masks.”
- Bar patrons are “younger adults” who are “more likely to be asymptomatic carriers of COVID-19 and therefore more likely to patronize bars without realizing that they are spreading the virus.” Relatedly, state data also “showed a dramatic increase in cases among 18-29-year-olds.”
- Despite limited data, statewide contact tracing linked a significant percentage of COVID-19 cases to bars.
- The White House and CDC recommended closing bars, and the White House Coronavirus Task Force “repeatedly recommended to the State of Louisiana that bars be closed because of Louisiana‘s increasing COVID-19 caseload.”
- Reports showed that foreign countries, including South Korea and the United Kingdom, were successful in controlling the spread of COVID-19 by shutting down “bars and nightclubs.”
By contrast, Dr. Billioux testified that the “primary purpose” of restaurant-goers is to “sit at a table with one group” and “eat[] a meal.” The Governor similarly testified that these different environments motivated his decision to close bars, but that the “risk of spreading the virus is not as pronounced in a restaurant, where couples, families, or small groups sit by themselves, socially distant from others eating at the restaurant.” This, too,
The bar owners appealed only their equal protection claim. They do not challenge the “stated goal of protecting the public by closing bars,” but rather only “whether the differential classification of bars is rationally related to that goal.”
II. STANDARD OF REVIEW
We have jurisdiction to review denials of preliminary injunctive relief pursuant to
A preliminary injunction is warranted only “if the movant establishes: (1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) that the grant of an injunction will not disserve the public interest.” Speaks v. Kruse, 445 F.3d 396, 399-400 (5th Cir. 2006) (internal quotation marks omitted). “A preliminary injunction is an extraordinary remedy that should not be granted unless the party seeking it has clearly
Only the first prong—the likelihood of success on the merits of the bar owners’ equal protection claim—is at issue in this appeal. “If the party requesting a preliminary injunction cannot show a substantial likelihood of success on the merits, the injunction should be denied and there is no need for the court to address the other requirements for a preliminary injunction.” Butts v. Aultman, 953 F.3d 353, 361 (5th Cir. 2020) (citing Lake Charles Diesel, Inc. v. Gen. Motors Corp., 328 F.3d 192, 203 (5th Cir. 2003)).
III. MOOTNESS
While this appeal was pending, appellees moved to dismiss the appeal as moot because the Bar Closure Order was superseded by the Governor‘s “Phase 3” proclamations.7 “Whether an appeal is moot is a jurisdictional matter, since it implicates the Article III requirement that there be a live case or controversy.” United States v. Heredia-Holguin, 823 F.3d 337, 340 (5th Cir. 2016) (en banc) (quoting Bailey v. Southerland, 821 F.2d 277, 278 (5th Cir. 1987)). A matter is moot “when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Knox v. Serv. Emps. Int‘l Union, Local 1000, 567 U.S. 298, 307 (2012) (internal quotation marks and citation omitted).
Appellees argue that, as recently articulated by our court, “a case challenging a statute, executive order, or local ordinance usually becomes
Under Phase 3, which began on September 11, 2020, “bars” can reopen for on-premises consumption at 25% capacity. La. Exec. Dep‘t, Proclamation No. 117 JBE 2020, § 2(B)(3) (Sept. 11, 2020). However, such reopening was subject to the parish maintaining a 5% positivity rate for two consecutive weeks and that parish affirmatively allowing on-premises consumption in bars to resume. Id. “Restaurants,” in turn, can operate at 75% capacity, subject to the applicable Fire Marshal guidance but not the additional parish-based restrictions. Id. § 2(D)(1).8
Both parties rely on our court‘s recent decision in Spell v. Edwards, which dismissed as moot a Louisiana pastor‘s challenge to the first stay-at-home order‘s ten-person restriction on in-person gatherings. 962 F.3d at 177. During the pendency of that appeal, the stay-at-home order expired and was
Spell is instructive but readily distinguishable. Here, the Governor‘s subsequent orders continue to differentiate between “bars” and “restaurants” in their respective operating capacities and reopening gating criteria. Consequently, even though the restrictions on “bars” may have lessened, the crux of the bar owners’ equal protection claim remains unchanged. See Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 662 (1993) (“The new ordinance may disadvantage them to a lesser degree than the old one, but . . . it disadvantages them in the same fundamental way.“).9
IV. DISCUSSION
Satisfied of our jurisdiction to consider the bar owners’ appeal, we turn to the merits. First, the bar owners argue that the district courts erred in applying Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), and this court‘s recent decision in In re Abbott, 954 F.3d 772 (5th Cir. 2020), as controlling their equal protection challenge to the Governor‘s public health
A. Jacobson and Abbott
Our court recently articulated that a state‘s emergency response to public health crises, including pandemics such as COVID-19, is reviewed under the framework originally set forth by the Supreme Court in Jacobson. See Abbott, 954 F.3d at 786. Both district courts, necessarily adhering to our court‘s pronouncement that ”Jacobson remains good law,” id. at 785, applied the Jacobson and Abbott framework to the bar owners’ challenge here.
Jacobson involved a challenge to Massachusetts‘s 1902 compulsory vaccination law during a smallpox epidemic. Jacobson, 197 U.S. at 26. In that case, the plaintiff argued that the law violated his
In Abbott, our court explained that ”Jacobson instructs that all constitutional rights may be reasonably restricted to combat a public health emergency.” Abbott, 954 F.3d at 786 (emphasis in original). Like Jacobson, Abbott involved a substantive due process challenge to a state‘s public health order. Specifically, the Abbott plaintiffs challenged the Texas Governor‘s March 22, 2020 executive order, GA-09, which temporarily postponed “non-essential surgeries and procedures,” including abortions, in order to preserve hospital capacity and personal protective equipment in light of the
The panel pronounced that “when faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some ‘real or substantial relation’ to the public health crisis and are not ‘beyond all question, a plain, palpable invasion of rights secured by the fundamental law.‘” Id. at 784 (quoting Jacobson, 197 U.S. at 31). Consequently, under Jacobson, “the district court was empowered to decide only whether GA-09 lacks a ‘real or substantial relation’ to the public health crisis or whether it is ‘beyond all question, a plain, palpable invasion’ of the right to abortion.” Id. at 786 (quoting Jacobson, 197 U.S. at 31).
In Abbott, the majority concluded that the answer to both was “no.” Id. As to the first inquiry, the majority found that the order was a “valid emergency response to the COVID-19 pandemic” that was “supported by findings” related to the shortage of medical supplies and hospital capacity. Id. at 787. Though a “drastic measure,” the majority concluded that it “cannot be maintained on the record before us that [it] bears ‘no real or substantial relation’ to the state‘s goal of protecting public health in the face of the COVID-19 pandemic.” Id. (quoting Jacobson, 197 U.S. at 31).
As to the second inquiry, the majority concluded that because GA-09 only “temporar[ily] postpone[d] . . . non-essential medical procedures, including abortion, subject to facially broad exceptions,” it did not
Here, while both parties initially agreed that Jacobson and Abbott applied to the Bar Closure Order, the bar owners now argue it does not apply to their equal protection claim. Alternatively, they assert that the district courts misapplied Abbott and Jacobson by granting “elevated deference” to the Governor beyond even modern rational basis jurisprudence. We disagree on both fronts.10
To start, the bar owners assert that Jacobson and Abbott, both of which dealt with fundamental rights under substantive due process, do not apply to their equal protection claim. However, Abbott and its application of Jacobson govern our review of emergency public health measures, regardless of the rights at stake. Abbott, 954 F.3d at 786.
More fundamentally, and contrary to the bar owners’ assertion, neither Jacobson nor Abbott compel a lower level of scrutiny than rational basis review. The bar owners concede that at most rational basis review applies to their equal protection claim. Consequently, we need not consider their broader critique that Jacobson or Abbott compel a lower standard of
Abbott sets forth a two-part inquiry for reviewing the Bar Closure Order here. The first inquiry asks whether the Bar Closure Order lacks a “real or substantial relation” to the COVID-19 crisis in Louisiana. Abbott, 954 F.3d at 784 (quoting Jacobson, 197 U.S. at 31). It is undisputed that the Bar Closure Order is substantially related to curbing the spread of COVID-19 in Louisiana. The second inquiry asks whether the Bar Closure Order is “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” Id. (quoting Jacobson, 197 U.S. at 31). In other words: whether the Bar Closure Order is “beyond question, in palpable conflict with the Constitution.” id. at 787-88 (emphasis omitted) (quoting Jacobson, 197 U.S. at 31).
This second inquiry requires courts to consider the alleged constitutional harm, and then evaluate that harm in accordance with established principles of constitutional interpretation. See also Roman Catholic Diocese, 141 S. Ct. at 70 (Gorsuch, J., concurring) (”Jacobson didn‘t seek to depart from normal legal rules during a pandemic, and it supplies no precedent for doing so. Instead, Jacobson applied what would become the traditional legal test associated with the right at issue.“). For example, in Abbott, the court explained that the district court failed to apply Casey‘s undue-burden test, and therefore failed to balance GA-09‘s “temporary
B. Equal Protection Claim
“The Equal Protection Clause of the
To establish their equal protection claim, the bar owners must show that “two or more classifications of similarly situated persons were treated differently” under the Bar Closure Order. Gallegos-Hernandez v. United States, 688 F.3d 190, 195 (5th Cir. 2012) (citing Stefanoff v. Hays Cty., 154 F.3d 523, 525-26 (5th Cir. 1998)). Once that threshold showing is made, the court determines the appropriate level of scrutiny for our review. “If neither a suspect class nor a fundamental right is implicated, the classification need only bear a rational relationship to a legitimate governmental purpose.” Butts, 953 F.3d at 358 (citing Richard v. Hinson, 70 F.3d 415, 417 (5th Cir. 1995)).
Both parties dispute the threshold question of whether the Bar Closure Order treats similar businesses differently. It clearly does. The Bar Closure Order and the Governor‘s subsequent proclamations effectively
Because this classification is based on a business permit, and does not differentiate on the basis of a suspect class, rational basis review applies. Such a classification does not “run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.” Heller v. Doe, 509 U.S. 312, 320 (1993).
The bar owners concede that the Bar Closure Order serves a legitimate government interest. We therefore address the only remaining issue challenged on appeal: whether the differential classification is rationally related to that goal.
The bar owners principally argue that the differential treatment of their businesses is irrational because the Governor denies that he intended to treat any “bar” differently. In other words, they contend that by denying that the classification exists, any rationale for the classification is an invalid pretext.12 Consequently, they say, the Governor is not entitled to any “theoretical deference” for distinguishing between AG- and AR-permitted businesses.
In any event, a classification survives rational basis review “if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” F.C.C. v. Beach Commc‘ns, Inc., 508 U.S. 307, 313 (1993). Moreover, we have held that “[a]s long as there is a conceivable rational basis for the official action, it is immaterial that it was not the or a primary factor in reaching a decision or that it was not actually relied upon by the decisionmakers or that some other nonsuspect irrational factors may have been considered.” Reid v. Rolling Fork Pub. Util. Dist., 854 F.2d 751, 754 (5th Cir. 1988) (emphasis omitted).
Nor is this a case where we are asked to “accept nonsensical explanations for regulation.” St. Joseph Abbey v. Castille, 712 F.3d 215, 226 (5th Cir. 2013). As always, any “hypothetical rationale, even post hoc, cannot be fantasy” or be “betrayed by the undisputed facts.” Id. at 223. Here, the bar owners do not meaningfully refute any of the appellees’ theoretical or empirical rationales for the permit-based classification, let alone carry their burden “to negative every conceivable basis which might support it.” Armour v. City of Indianapolis, Ind., 566 U.S. 673, 685 (2012) (internal quotation marks and citation omitted).
Unlike AG-permitted bars whose primary purpose is to serve alcohol, AR-permitted businesses must serve more food than alcohol to meet their
Finally, the Bar Closure Order is not unconstitutional because some “bars” may nonetheless continue to operate under AR or conditional AR permits.13 “A classification does not fail rational-basis review because it is not made with mathematical nicety or because in practice it results in some inequality.” Veritext Corp. v. Bonin, 901 F.3d 287, 291 (5th Cir. 2018) (alteration omitted) (quoting Heller, 509 U.S. at 319). Imperfect classifications that are underinclusive or overinclusive pass constitutional muster. See, e.g., Vance v. Bradley, 440 U.S. 93, 108 (1979) (“Even if the classification involved here is to some extent both underinclusive and overinclusive, and hence the line drawn by Congress imperfect, it is
* * *
We are sympathetic to the bar owners, their employees, and other businesses who are hurting financially and face great adversity during this time. Judges Feldman and Summerhays, however, expedited evidentiary hearings, and based on the testimony credited at those hearings refused to second-guess the Governor‘s determination regarding the health and safety of the state. Judges “are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area.” Roman Catholic Diocese, 141 S. Ct. at 68; see also S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1614 (2020) (Mem.) (Roberts, C.J., concurring) (“The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.‘“).
Appellees’ motion to dismiss the appeal as moot is DENIED. The district courts’ orders denying injunctive relief are AFFIRMED.
As the majority opinion ably explains, we are not the first Fifth Circuit panel to weigh the constitutionality of a state‘s response to COVID-19. That task fell to In re Abbott in April 2020 during the early stages of the pandemic.1 Reviewing Texas‘s order postponing non-essential surgeries, In re Abbott discerned a governing rule from a 1905 Supreme Court case, Jacobson v. Massachusetts: “[W]hen faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some ‘real or substantial relation’ to the public health crisis and are not ‘beyond all question, a plain, palpable invasion of rights secured by the fundamental law.‘”2
Jacobson was decided 116 years ago. And I do not believe it supplies the standard by which courts in 2021 must assess emergency public health measures.3 Jacobson predates modern constitutional analysis, particularly the judge-invented tiers of scrutiny that distinguish between strongly and weakly protected rights (and between protected and unprotected classes). This elaborate three-tiered regime of judicial interest-balancing, a twentieth-
That said, it‘s unclear what, if anything, Jacobson added to the analysis in In re Abbott, given that, under Jacobson‘s second inquiry, the panel ultimately applied the current constitutional test (deferential rational-basis review) to the challenged government action.7 But applying the modern test at Jacobson step two (whether measures are “beyond all question, in palpable conflict with the Constitution“) renders superfluous Jacobson step one (whether measures “have at least some ‘real or substantial relation’ to the public health crisis“).8 That‘s because today‘s constitutional tests consider the government‘s interest in restricting rights, such as protecting public health. So as applied in In re Abbott, Jacobson‘s “governing framework” is just a roundabout way of conducting a conventional constitutional analysis. In my view, In re Abbott misdescribed Jacobson as a stand-alone test, rather than as merely a recognition of a state‘s authority to enact temporary measures during emergent public health crises.
STEPHEN A. HIGGINSON
UNITED STATES CIRCUIT JUDGE
DON R. WILLETT
UNITED STATES CIRCUIT JUDGE