COLUMBUS ALE HOUSE, INC. doing business as “The Graham,” Plaintiff, v. ANDREW M. CUOMO, in his official capacity as Governor of the State of New York, Defendant.
Case 1:20-cv-04291-BMC
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
October 15, 2020
COGAN, District Judge
COGAN, District Judge.
Plaintiff sought a preliminary injunction enjoining defendant, the Governor of the State of New York, from enforcing a rule prohibiting service after midnight in New York City food service establishments. Plaintiff claimed that the rule violates its substantive due process rights under the
At the conclusion of a hearing on October 6, 2020, I denied plaintiff‘s motion for a preliminary injunction on the record, stating that I would later file a written opinion. This is that opinion.
BACKGROUND
I. COVID-19 and New York‘s Pandemic Restrictions
The novel coronavirus, SARS-CoV-2, and its associated disease, COVID-19, need no introduction. This potentially lethal virus has no known cure, no particularly effective treatment, and no vaccine. So far this year, it has infected over 250,000 people and killed nearly 24,000 people in New
COVID-19 transmission increases when people are in close contact because the virus spreads through contact, respiratory droplets, and aerosols.4 Airborne transmission of the virus, in which infection spreads through exposure to small droplets and particles that can remain suspended in the air for hours, is more likely to occur in enclosed spaces and with prolonged exposure.5 To slow the spread of COVID-19, the Centers for Disease Control and Prevention recommends mask wearing and social distancing by keeping six feet away from other people and limiting contact with others outside your household, whether indoors or outdoors.6
New York State implemented extensive restrictions on business and social activities in an effort to reduce viral transmission. As part of these restrictions, indoor dining was not permitted in New York City from March 17, 2020 through September 29, 2020. On September 30, 2020, new rules from the Governor went into effect allowing New York City restaurants to resume indoor dining at 25 percent capacity, subject to certain other restrictions. One of those restrictions is that there can be no service after midnight (the “midnight close rule“).7
II. The Parties’ Positions
Plaintiff brings suit challenging the midnight close rule. Plaintiff is a food service establishment operating in Brooklyn, New York. Historically, it generates a substantial percentage of its revenue from sales after midnight. Plaintiff alleges that the midnight close rule (i) violates its substantive due process rights under the
Plaintiff claims that the midnight close rule violates its substantive due process rights because the rule arbitrarily curtails its right to do lawful business. Plaintiff argues that the rule is arbitrary because
The Governor responds that the midnight close rule, like the other restrictions on social and business activities this year, seeks to balance industry needs while avoiding the congregating and mingling that increases COVID-19 transmission. The virus spreads more easily indoors and people cannot wear masks while they are eating and drinking. The rule attempts to mitigate the risk that people will gather for a longer period of time or will drink more alcohol over the course of the night and neglect social distancing rules. The Governor further explains that New York City is being treated differently because it is the most densely populated region in the state and was the hardest hit by the pandemic.
In reply, plaintiff points out that other restrictions on indoor dining, including capacity limits, already mitigate the risk of mingling. Restaurants that resume indoor dining are subject to several restrictions and enforcement of those other restrictions will not decline after midnight. Plaintiff further argues that the effect of alcohol is irrelevant because the rule restricts dining service, not just alcohol service, and applies equally to restaurants that do not serve alcohol. As to New York City‘s population density, plaintiff urges that this factor is irrelevant because the density within restaurants is restricted by existing capacity regulations.
DISCUSSION
A party seeking to enjoin government action “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Geller v. de Blasio, No. 20-CV-3566, 2020 WL 2520711, at *2 (S.D.N.Y. May 18, 2020) (quoting Trump v. Deutsche Bank AG, 943 F.3d 627, 640 (2d Cir. 2019), rev‘d and remanded sub nom. on other grounds, Trump v. Mazars USA, LLP, 140 S. Ct. 2019 (2020)).
Where a party seeks a “mandatory preliminary injunction” that will modify the status quo, or where the requested injunction will provide the party substantially all the relief it seeks, a heightened standard applies, and the movant must demonstrate a “clear or substantial” likelihood of success on the merits and make a “strong showing” of irreparable harm. Yang v. Kosinski, 960 F.3d 119, 127 (2d Cir. 2020). This comports with “the idea that governmental policies implemented through legislation or regulations developed through presumptively reasoned democratic processes are entitled to a higher degree of deference and should not be enjoined lightly.” Able v. United States, 44 F.3d 128, 131 (2d Cir. 1995).
I assumed arguendo that the less rigorous standard applied for purposes of this motion.
I. Plaintiff‘s Substantive Due Process Claim
A. Likelihood of success on the merits
As an initial matter, the parties disagree on the applicable standard of review for
As I explained in my oral ruling, I agree that Jacobson sets out the relevant standard.8 Jacobson predates rational basis review,9 is still good law, and is the most on-point authority for a due process challenge to emergency measures during a public health crisis.
Under Jacobson, the state may curtail constitutional rights in response to a society-threatening epidemic 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.” Jacobson, 197 U.S. at 38. “Courts may ask whether the state‘s emergency measures lack basic exceptions for ‘extreme cases,’ and whether the measures are pretextual – that is, arbitrary or oppressive. At the same time, however, courts may not second-guess the wisdom or efficacy of the measures.” In re Rutledge, 956 F.3d 1018, 1028 (8th Cir. 2020) (quoting In re Abbott, 954 F.3d 772, 784-85 (5th Cir. 2020) (quoting Jacobson, 197 U.S. at 38)); see also Luke‘s Catering Serv., LLC v. Cuomo, No. 20-CV-1086S, 2020 WL 5425008, at *6-13 (W.D.N.Y. Sept. 10, 2020) (applying the “highly deferential Jacobson standard” and holding that plaintiff did not demonstrate that Cuomo‘s executive orders imposing a 50-person limit on non-essential gatherings had no “real or substantial relation” to public health or was “beyond all question, a plain palpable invasion of [plaintiff‘s] rights“). This approach accords with the general principle that “[s]ubstantive due process protects against government action that is arbitrary, conscience-shocking, or oppressive in a constitutional sense, but not against government action that is incorrect or ill advised.” Cunney v. Bd. of Trustees of Vill. of Grand View, N.Y., 660 F.3d 612, 626 (2d Cir. 2011).
As Chief Justice Roberts recently cautioned, “[t]he 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.” S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613 (2020) (Roberts, C.J., concurring) (denying application for injunctive relief enjoining enforcement of the Governor of California‘s executive order limiting attendance at places of worship). When elected officials “undertake[] to act in areas fraught with medical and scientific
Here, I found that plaintiff likely cannot establish that the midnight close rule does not have a real and substantial relation to the COVID-19 pandemic. It is by now well-understood that the virus spreads more easily indoors and when people gather in close proximity. Social distancing and mask wearing are among the few tools available to slow its spread, but these precautions are impacted by indoor dining. Diners cannot wear masks while they eat and drink, and indoor dining necessarily brings individuals from different households together in a restaurant, even if at a distance. Thus, indoor dining poses a greater risk of virus transmission than many other activities.
The Governor believes that restricting late-night service will help mitigate the risks by reducing the likelihood that patrons will mingle indoors without masks for an extended period of time. The Governor further believes that this is necessary in New York City and not elsewhere because of the City‘s high population density and experience with the virus earlier this year. Even though restaurants have capacity restrictions, New York‘s population density is relevant because it makes it more likely that an outbreak linked to indoor dining will spread throughout the community at large.
Although plaintiff questions the wisdom of the midnight close rule with several arguments for why it may be unnecessary or ineffective, I afford great deference to the Governor‘s judgment. See S. Bay United Pentecostal Church, 140 S. Ct. at 1613. “The possibility that the [state‘s] belief may be wrong, and that science may yet show it to be wrong, is not conclusive; for the legislature has the right to pass laws which . . . are adapted to prevent the spread of contagious diseases.” Jacobson, 197 U.S. at 35; see also Connecticut Citizens Def. League, Inc. v. Lamont, No. 3:20-cv-646, 2020 WL 3055983, at *11 (D. Conn. June 8, 2020) (“[C]ourts owe great deference to the protective measures ordered by government officials in response to the COVID-19 crisis, not simply because the virus has lethal consequences but also because the virus acts in unknown ways that engender uncertainty about what scope of protective measures are warranted.“).
In this pandemic, regulating to protect public health is fraught with medical and scientific uncertainty. There is room for significant disagreement about the wisdom and efficacy of the Governor‘s protective measures. But it is not the role of the courts to second-guess the Governor‘s approach. Jacobson does not “require that courts take a piecemeal approach and scrutinize individual” aspects of a rule designed to protect public health or “otherwise create an exception for particular” individuals impacted by it. See In re Rutledge, 956 F.3d at 1029. It is enough that the restrictions have a real and substantial relation to public health.
I also found that plaintiff likely cannot establish that the midnight close rule invades its fundamental rights. Plaintiff alleges an infringement of its right to conduct lawful business. But “the right to conduct a business, or to pursue a calling, may be conditioned.” New Motor Vehicle Bd. of California v. Orrin W. Fox Co., 439 U.S. 96, 107 (1978). “[T]he due process clause is [not] to be so broadly construed that the Congress and state legislatures are put in a strait jacket when they attempt to suppress business and industrial conditions which they regard as offensive to the public welfare.” Id. (citation omitted); see also Williamson v. Lee Optical of Oklahoma Inc., 348 U.S. 483, 488 (1955) (“The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.“).
The right to conduct business or engage in a chosen profession does not entitle plaintiff to operate its business free from governmental regulation. Instead, “[t]his type of due process claim requires a showing that the plaintiff has been prevented from exercising his right” completely. Schultz v. Inc. Vill. of Bellport, 479 F. App‘x 358, 360 (2d Cir. 2012) (citing Conn v. Gabbert, 526 U.S. 286, 291–92 (1999) (recognizing that cases in this area “all deal with a complete prohibition of the right“)).
I found that plaintiff cannot show that it has been prevented from operating its business completely because the midnight close rule does not prohibit plaintiff‘s operations, it just restricts them. Plaintiff has been operating under more severe restrictions for months and is in a better position under the new rule than the prior unchallenged restrictions. Plaintiff claims that the rule prevents it from generating enough business to stay in business. But even if that is the ultimate effect of the rule, it is not enough to constitute a violation of plaintiff‘s due process rights.
For these reasons, I held that plaintiff is unlikely to succeed on its claim that the midnight close rule arbitrarily infringes its due process rights.
B. Irreparable harm, balance of equities, and the public interest
I further found that the remaining factors for an injunction weigh against plaintiff. Although the loss of plaintiff‘s business is likely an irreparable harm, enjoining the actions of state elected officials in matters that affect public safety also constitutes an irreparable harm. See Maryland v. King, 567 U.S. 1301, 1301 (2012). The balance of these harms weighs against plaintiff because, while “[p]laintiff[] bear[s] the very real risk of losing [its] business[], the Governor‘s interest in combatting COVID-19 is at least equally significant.” League of Indep. Fitness Facilities & Trainers, Inc. v. Whitmer, 814 F. App‘x 125, 129 (6th Cir. 2020).
The public interest also weighs against plaintiff‘s injunction. Nearly 24,000 people have died from this virus in New York City alone. The state‘s elected officials must be allowed to exercise their judgment to protect the public health as restrictions on activities are slowly lifted.
I also noted that the Governor is certainly aware of the potential consequences of a wrong or overly protective decision on restrictions during this pandemic. Those consequences are not only political, although the political implications are obvious and growing daily as more people chafe at the restrictions while the death rate continues to decline. New York City is in the middle of an economic crisis brought about by the pandemic. Much has been written about the falling real estate prices, vacant store fronts, fleeing residents, and the potential permanent or long-term demise of the entertainment and restaurant
II. Plaintiff‘s Article 78 Claim
Plaintiff also sought the injunction under its state law claim under
I explained that an Article 78 claim can be interpreted as seeking something akin to a writ of prohibition, and thus federal courts can exercise supplemental jurisdiction over such claims under the All Writs Act,
The reasons for denying supplemental jurisdiction were particularly compelling here. Plaintiff challenges a newly enacted rule that the state courts have not had an opportunity to analyze. See Kent v. New York, No. 11-CV-1533, 2012 WL 6024998, at *11 (N.D.N.Y. Dec. 4, 2012) (“[T]his Court declines to exercise supplemental jurisdiction over plaintiffs’ Article 78 claim because to do so would require this Court to interpret state law before the New York State courts have an opportunity to analyze and resolve the issues.“). And plaintiff‘s federal claim is unlikely to succeed on the merits, further cautioning against the exercise of supplemental jurisdiction over plaintiff‘s state law claim. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988) (noting that when “all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine – judicial economy, convenience, fairness, and comity – will point toward declining to exercise jurisdiction over the remaining state-law claims“).
Dated: Brooklyn, New York
October 15, 2020
Digitally signed by Brian M. Cogan
U.S.D.J.